LRB-4118/1
MCP:all
2017 - 2018 LEGISLATURE
September 14, 2017 - Introduced by Representatives Hutton, Kulp, Jarchow,
Rodriguez, Horlacher, Quinn, Macco, Sanfelippo, Edming, Kremer,
Gannon, Tauchen, Duchow, Kleefisch, Skowronski, Wichgers, Knodl,
Bernier, Kooyenga, R. Brooks, Zimmerman and Brandtjen, cosponsored by
Senators Tiffany, Fitzgerald, Darling, LeMahieu, Moulton, Feyen,
Stroebel, Kapenga, Wanggaard, Craig, Lasee, Nass and Vukmir. Referred to
Committee on Labor.
AB499,1,12 1An Act to repeal 227.42 (4), 293.43 (2), 293.43 (3), 293.43 (4), 293.43 (5) and
2293.50; to amend 20.370 (2) (gh), 70.375 (4) (h), 281.35 (5) (e), 283.84 (3m),
3293.01 (9), 293.01 (18), 293.13 (2) (b) (intro.), 293.13 (2) (b) 4., 293.13 (2) (b) 7.,
4293.13 (2) (c) (intro.), 293.13 (2) (c) 7., 293.15 (8), 293.31 (title), 293.31 (1),
5293.31 (2), 293.31 (3), 293.31 (4), 293.43 (1), 293.43 (1m) (b), 293.49 (1) (a)
6(intro.), 293.51 (title), 293.51 (3), 293.55 (1) (c), 293.55 (1) (d), 293.65 (3) (b) and
7293.81; to repeal and recreate 293.95; and to create 293.01 (2m), 293.15
8(7m), 293.26, 293.31 (4m), 293.32 (4), 293.37 (5), 293.40, 293.43 (2m), 293.43
9(3m), 293.43 (4m), 293.495, 293.51 (2m), 293.51 (5) and 293.66 of the statutes;
10relating to: the regulation of nonferrous metallic mining, prospecting,
11exploration, and bulk sampling, repealing administrative rules relating to
12wetlands, granting rule-making authority, and making an appropriation.
Analysis by the Legislative Reference Bureau
This bill makes changes in the laws relating to the regulation and permitting
of nonferrous metallic mineral prospecting and mining. Nonferrous metallic

minerals are metallic minerals other than iron, such as copper or zinc. Under current
law, the Department of Natural Resources regulates exploration, prospecting, and
mining for nonferrous metallic minerals.
Sulphide ore moratorium
This bill repeals the existing prohibition on issuing sulfide ore mining permits.
Current law prohibits DNR from issuing any permits for the purpose of mining a
sulfide ore body until DNR determines that 1) there is a mining operation in a
potentially acid-generating sulfide ore body in the United States or Canada that has
been in operation for at least ten years without resulting in the pollution of
groundwater or surface water from acid drainage or from the release of heavy metals;
and 2) there is a mining operation that operated in a potentially acid-generating
sulfide ore body in the United States or Canada that has been closed for at least ten
years without resulting in the pollution of groundwater or surface water from acid
drainage or from the release of heavy metals.
Point of application for groundwater standards
This bill also makes changes to the locations at which groundwater standards
may apply at nonferrous metallic mining and prospecting sites. The bill does not
make changes to numerical groundwater standards.
Under current law, DNR establishes enforcement standards for certain
substances that contaminate groundwater. When determining whether a
groundwater enforcement standard at certain facilities, including mining or
prospecting operations, has been met or exceeded, the enforcement standard may
apply at any point beyond a three-dimensional design management zone (DMZ)
established by DNR by rule. Under DNR's current rules, for a nonferrous metallic
mining site the DMZ extends vertically from the land surface through all saturated
geological formations.
This bill requires DNR, for each mining or prospecting site, to determine the
depth in the Precambrian bedrock below which the groundwater is not reasonably
capable of being used for human consumption and is not hydrologically connected to
other sources of groundwater that are suitable for human consumption. Under the
bill, for a nonferrous metallic mining or prospecting site, DNR may not apply
groundwater enforcement standards at any point deeper than that identified depth
for the site.
Wetlands
Pursuant to the laws of 1977, DNR promulgated rules designed to ensure that
metallic mining activities would result in a minimization of disturbance to wetlands
while taking into consideration the fact that, in siting some mining operations, it
may be virtually impossible to avoid impacts to wetlands. To help weigh and evaluate
these competing considerations when reviewing proposed sites for mining
operations, DNR promulgated section NR 132.06 (4) of the Wisconsin Administrative
Code. This section was later modified to apply only to nonferrous metallic mining.
After section NR 132.06 (4) was promulgated, this state enacted section 281.36
of the statutes, which requires DNR to issue wetland permits, in a manner consistent
with the federal Clean Water Act, for any activity that may affect wetlands, including
nonferrous metallic mining operations. This bill repeals section NR 132.06 (4) of the

administrative code. As a result, the only provisions that DNR may apply in
evaluating a proposed site for a prospecting or mining operation are those contained
in s. 281.36 and in rules promulgated under that section and under other provisions
under current law.
Bulk sampling
This bill creates a separate process for engaging in bulk sampling for
nonferrous metallic minerals. Current law regulates activities relating to
nonferrous metallic minerals differently depending on whether the activity involves
exploration, prospecting, or mining. Under current law, a person who wants to
engage in exploration for nonferrous metallic minerals must first obtain a license
from DNR. Exploration consists of drilling holes that are less than 18 inches in
diameter into the surface of an area to search for nonferrous metallic minerals.
Current law also provides that a person may not prospect for nonferrous metallic
minerals without a prospecting permit from DNR. Prospecting means examining an
area to determine the quality and quantity of nonferrous metallic minerals by means
other than drilling, for example by excavating. Under current law, the process for
obtaining a prospecting permit is similar to the process for obtaining a mining
permit. When a person completes a prospecting operation, the person must conduct
reclamation, which means rehabilitation of the site to either its original state or, if
that is not feasible, to a state that provides long-term environmental stability.
The bill defines “bulk sampling” as excavating in a potential mining site by
removing less than 10,000 tons of material to assess the quality and quantity of
nonferrous metallic mineral deposits and to collect and analyze data to prepare an
application for a mining permit or other approval. Under the bill, bulk sampling does
not constitute prospecting, and prospecting activities do not include bulk sampling.
The bill allows a person who intends to engage in bulk sampling to file a bulk
sampling plan with DNR. A person who files a bulk sampling plan must 1) describe
the bulk sampling site and the methods to be used for bulk sampling; 2) submit a plan
for controlling surface erosion that identifies how adverse impacts to plant and
wildlife habitats will be avoided or minimized; 3) submit a plan for revegetation that
describes how adverse environmental impacts will be avoided or minimized; 4)
provide the estimated time for completing bulk sampling and revegetation of the site;
5) describe any known adverse environmental impacts that are likely to be caused
by bulk sampling and how those impacts will be avoided or minimized; and 6)
describe any adverse effects that the bulk sampling might have on any historic
property or on any scenic or recreational areas and plans to avoid or minimize those
adverse effects. The bill also requires a person to submit, with the bulk sampling
plan, a $5,000 bond. DNR may require the amount of the bond to be increased if it
is unlikely that the bond will be adequate to fund the state's cost for completing the
revegetation plan.
The bill requires DNR, within 14 days of receipt of a bulk sampling plan, to
identify in writing any kind of approval that DNR issues that is needed to conduct
the proposed bulk sampling, such as a wastewater discharge permit or a permit for
a discharge into wetlands, and any waivers, exemptions, or exceptions to those
approvals that may be available. The bill also requires a person who has submitted

a bulk sampling plan to submit all applications for approvals and all applications for
waivers, exemptions, or exceptions to approvals for the bulk sampling at one time.
The bill specifies deadlines for DNR to act on approvals needed to conduct bulk
sampling. When a person who files a bulk sampling plan applies for an approval or
a waiver, exemption, or exception to an approval, the application is considered to be
complete on the 30th day after DNR receives the application, unless before that day
DNR informs the person that the application is not complete. Once an application
is complete, DNR must act within 30 days on an application for a waiver, exemption,
or exception to an approval, for a determination that an activity is below the
threshold that requires an approval, or for a determination of eligibility for coverage
under a general permit or a registration permit. For other approvals, DNR must act
within 60 days after the application is complete, except that DNR must act on an
approval for an individual permit for which federal law requires an opportunity for
public comment or a hearing, such as a wastewater discharge permit, within 180
days.
The bill provides that DNR is not required to prepare an environmental impact
statement (EIS) for an approval required for bulk sampling. Finally, the bill requires
DNR to act on any required construction site erosion control or storm water
management approval required for bulk sampling, even if DNR has authorized a
local program to issue approvals for construction site erosion control or storm water
management.
Application, review, and permitting process
Under current law, a person who proposes to prospect or mine for nonferrous
metallic minerals must obtain a prospecting or mining permit and any other permit,
license, certification, or other authorization (approval) that is required under the
environmental and natural resources laws, for example wastewater discharge
permits, high capacity well approvals, and permits for discharges into wetlands.
This bill makes changes to certain parts of the preapplication, application,
review, and hearing process for these permits and approvals.
Preapplication process
Under current law, a person who intends to apply for a permit to prospect or
mine for nonferrous metallic minerals must notify DNR of that intent, and may not
collect data intended to be used to support the application before submitting the
notice of intent to apply. DNR is required to provide public notice when it receives
a notice of intent to apply for a prospecting or mining permit, and is required to
receive and consider public comments within 45 days after giving the public notice.
After considering public comments, DNR must tell the person who filed the notice
of intent what data DNR believes is needed to support an application for a
prospecting or mining permit and the methodologies that must be used to collect that
data, along with certain other information relating to groundwater in the area and
to other approvals that are required for the proposed prospecting or mining project.
This bill requires a person who intends to apply for a prospecting or mining
permit to provide DNR with a notice of intent at least 12 months before filing an
application for a prospecting or mining permit. The bill removes the prohibition on
collecting data before filing the notice of intent to apply. The bill requires DNR, upon

the request of a person who intends to file a notice of intent to apply, to review the
person's proposed methodology for collecting data, and to either approve the
proposed methodology or provide the methodology that DNR requires to be used.
Under the bill, DNR may assess the person a fee to cover DNR's costs in reviewing
or providing these methodologies. The bill also provides that, if DNR holds a public
informational hearing to solicit the required public comments on a notice of intent
to apply, the hearing must be held within the 45-day period for soliciting public
comments. In addition, the bill requires DNR to inform the person within 90 days
after the 45-day period for soliciting public comments of the required data and
methodologies for the application, the information that should be included in the
person's environmental impact report, and the information DNR will need to prepare
an EIS. Under the bill, DNR must begin the process of entering into a memorandum
of understanding with the applicant, the U.S. army corps of engineers, and other
relevant federal agencies before informing the person of the required data and
methodologies for the application and providing the other required information. The
bill provides that such a memorandum of understanding may include an agreement
between DNR and the applicant regarding timelines for the permitting process.
Application process — predictive modeling
Currently, under rules promulgated by DNR, a person who wishes to operate
a solid waste disposal facility for a nonferrous metallic mineral mining operation
must submit information based on predictive modeling to demonstrate that there is
a reasonable certainty that the facility will not violate groundwater quality
standards. This bill provides that, if DNR requires an applicant for a nonferrous
metallic mining permit to conduct modeling to determine whether the proposed
mining operation's waste site complies with groundwater or surface water quality
standards, DNR may not require the applicant to examine a period longer than the
proposed operating period of the waste site plus 250 years.
Application process — financial assurance requirement
Under current law, an operator of a nonferrous mining or prospecting operation
must file a bond, cash, certificates of deposit, or government securities with DNR to
ensure that the operator will be able to cover the cost of the reclamation plan for the
mining or prospecting site. An operator must also submit a certificate of insurance
certifying that the operator has a liability insurance policy in place that adequately
covers personal injury and property damage and must maintain proof of financial
responsibility for complying with the long-term care requirements of the mining or
prospecting site after the site is closed. Under rules promulgated by DNR, an
applicant for a nonferrous metallic mining permit must also create and maintain an
irrevocable trust in perpetuity to ensure the availability of funds for preventative
and remedial activities, such as responding to a spill of a hazardous substance at the
mining site.
This bill limits the forms of proof of financial responsibility for long-term care
that DNR may require to a bond, cash, certificates of deposit, government securities,
or insurance. The bill provides that DNR may not require an operator to provide a
form of financial assurance other than those listed in the statutes.

Review timeline
This bill creates a timeline for DNR to review an application for a prospecting
or mining permit, request additional information from the applicant, and prepare a
draft environmental impact statement, a draft prospecting or mining permit, and
other draft approvals.
Under the bill, DNR has 180 days after an applicant submits an application for
a prospecting or mining permit, an environmental impact report, and any
application for other related approvals, to provide comments and request additional
information. If DNR requests additional information, it has 90 days after the
applicant submits additional information to again provide comments and request
additional information. If DNR requests this additional information, it has 180 days
after the applicant submits additional information to prepare a draft environmental
impact statement, a draft prospecting or mining permit, and any other related draft
approvals. The applicant and DNR may agree to modify all or part of this timeline.
DNR may request additional information after these time periods expire, but may
not delay the application and review process based on a request for additional
information.
If, during the 90-day period described above, the DNR secretary determines
that the applicant has made a substantial modification to the mining or prospecting
plan that significantly changes the information necessary to prepare the
environmental impact statement or adequately review an application, DNR may
request additional information from the applicant. When the applicant submits
additional information, the timeline described above resets and begins again.
Issuing a mining permit — effects on other waters
Under current law, an applicant must obtain an approval for a high capacity
well if the applicant will withdraw groundwater for prospecting or mining or dewater
mines and if the capacity and rate of withdrawal or dewatering exceeds 100,000
gallons each day. Current law prohibits DNR from issuing an approval for a high
capacity well if the withdrawal of groundwater or the dewatering of mines will result
in the unreasonable detriment of public or private water supplies or the
unreasonable detriment of public rights in the waters of the state.
The bill removes this prohibition. Instead, under this bill, if DNR determines
that the withdrawal of groundwater or the dewatering of mines will result in the
unreasonable detriment of public or private water supplies or the unreasonable
detriment of public rights in the waters of the state, DNR must include conditions
in the high capacity well approval or in the prospecting or mining permit to ensure
that those detriments will not occur. These conditions may include a requirement
that the applicant provide a replacement water supply or temporarily augment the
quantity of water in, or flowing into or from, the affected body of water.
Hearing and review process
Under current law, DNR holds a public informational hearing on DNR's draft
EIS, after which DNR prepares a final EIS. DNR then conducts a master hearing
on the final EIS, the draft mining or prospecting permits that DNR has prepared, and
all other approvals that are required for the prospecting or mining project, to the
extent possible. Under current law, the provisions related to notice, hearing, and

comment in the nonferrous metallic mining law apply to any other needed approval,
unless the applicant fails to apply for an approval in time for it to be considered at
the master hearing. The master hearing includes both a contested case hearing, with
testimony under oath and the opportunity for cross-examination, and a public
informational hearing. After the master hearing, DNR either denies the application
for a prospecting or mining permit or approves the application and issues the permit
and related approvals.
This bill requires DNR to hold a public informational hearing on the draft
prospecting or mining permit, the draft EIS, and all other approvals that are related
to the prospecting or mining project, unless the application for a related approval is
filed too late to allow the approval to be considered at the hearing in which case
another public informational hearing is held using the same procedure as for the
mining or prospecting permit hearing. The hearing does not include a contested case
hearing. Before the hearing, DNR must make the applications for the permit and
any additional approvals, and the draft EIS, the draft permit, any other draft
approvals, available for review in the city, town, or village in which the proposed
prospecting or mining site is located. DNR must also publish a notice with the date,
time, and location of the public informational hearing, and accept public comments
within 45 days after the notice is published. DNR must publish the hearing notice
within 30 days of completing the draft EIS and draft mining or prospecting permit
under the timeline described above.
Under current law, any person who is aggrieved by a DNR decision relating to
nonferrous metallic exploration, prospecting, or mining may request an
administrative contested case hearing, unless the matter was heard at the master
hearing.
Under the bill, a person may not request a contested case hearing on a DNR
decision relating to exploration or bulk sampling. However, a person may request
a contested case hearing on a DNR decision relating to a mining or prospecting
permit, including a decision related to the EIS for the proposed prospecting or mining
operation or a decision on any approval related to the prospecting or mining permit
application. A person seeking such a contested case hearing must request the
hearing within 30 days after DNR issues the decision to approve or deny the mining
or prospecting permit. In addition, the bill requires the hearing examiner in such
a contested case hearing to issue a decision within 270 days after DNR approves or
denies the mining or prospecting permit. The hearing examiner may not issue an
order prohibiting an activity that is authorized by the DNR decision being reviewed
in the contested case hearing. Under the bill, a person seeking judicial review of a
decision in such a contested case hearing must bring the action within 30 days of the
decision. The bill also allows a person to request a contested case hearing on other
DNR decisions relating to prospecting or mining that are issued after DNR's final
decision to grant or deny a prospecting or mining permit. Under the bill, a person
seeking judicial review of a decision in a contested case hearing or of any DNR
decision relating to nonferrous metallic mining, prospecting, exploration, or bulk
sampling must bring the action in the court for the county in which the majority of

the mining or prospecting site is located or in which the majority of the exploration
or bulk sampling will occur.
Fees
This bill exempts nonferrous metallic mining from certain solid waste disposal
fees that are required under current law. Under current law, a generator of solid or
hazardous waste, including at a nonferrous metallic mining waste site, must
generally pay license and review fees; tonnage fees; groundwater and well
compensation fees; a solid waste facility siting board fee; a recycling fee; and an
environmental repair fee and repair surcharge. This bill exempts nonferrous
metallic mining waste sites from the review and license fees, tonnage fees, and
recycling fee. Under the bill, the operator of a mining waste site must continue to
pay the groundwater fee, the environmental repair fee and surcharge, and the solid
waste facility siting board fee.
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