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, including overburden and any other
material removed from any portion of the excavation site, 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 requires a person to obtain a bulk sampling license and any other
permit, license, or approval required by DNR before engaging in bulk sampling.
Under the bill, a person who intends to engage in bulk sampling must 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.
Under the bill, if there are any significant changes to the information provided
in a bulk sampling plan submitted to DNR, the applicant must file a revised bulk
sampling plan. DNR must then provide the applicant with updated information
regarding any approvals or modifications to existing approvals that DNR requires.
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. After all of the required approvals are issued, DNR must then issue the
applicant a bulk sampling license.
The bill provides that DNR is not required to prepare an environmental impact
statement (EIS) for an approval required for bulk sampling or for a bulk sampling
license. The bill also 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.
Finally, the bill provides that DNR may revoke or suspend a bulk sampling
license if it determines, after a hearing, that the license holder has failed to comply
with any law, DNR rule, or license term, or has failed to increase the amount of any
bond required for bulk sampling.
Financial assurance requirements
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 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.
The bill also requires two additional forms of financial assurance from the
operator of a mine. First, before beginning to mine, the operator must file with DNR
a bond, cash, certificate of deposit, or government security to cover unforeseen
remedial contingencies that are not otherwise covered by the bonds or other security
for remediation and long-term care. The bond or other security for remedial
contingencies must be 10 percent of the total amount of the bonds or other security
for remediation and long-term care, and must be released no later than 40 years
after the operator stops extracting material from the mining site.
Second, at the time of closure of the mining waste site, the operator must
provide DNR with proof of financial responsibility in an amount equal to the
reasonably anticipated costs, for the period running from 40 to 250 years after
closure of the mining waste site, to repair or replace any engineered cover systems
or tailings water management control systems. The proof of financial responsibility
must be in the form of an interest-bearing security or account. At the time that the
mining permit is approved, DNR must determine the amount of the proof of financial
responsibility to be provided and identify the reasonably anticipated costs that the
amount is intended to cover. The operator may use these funds to cover any identified
anticipated cost. DNR must release any remaining funds to the operator after all of
the identified anticipated costs are incurred or after determining that the identified
anticipated costs are no longer applicable.
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.
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.
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 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, DNR must issue a mining permit within 90 days after
completion of the public hearing record if it makes certain determinations, including
that the proposed operation will comply with all applicable air, groundwater, surface
water, and solid and hazardous waste management laws and DNR rules and that the
proposed mine will not endanger public health, safety, or welfare. Under the bill,
DNR must also issue a mining permit during this 90-day timeline if it finds that the
technology that will be used at the proposed operation is capable of resulting in
compliance with all applicable air, groundwater, surface water, and solid and
hazardous waste management law and DNR rules and is reasonably certain to result
in compliance with these laws and rules at the proposed mining site.
Review process
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 60 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. 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.
Net proceeds tax
Under the bill, for purposes of imposing and collecting the net proceeds tax on
mining, the secretary of the Department of Revenue may adjust the allocation of
gross revenue, deductions, allowances, or credits between or among organizations
owned or controlled by the same interests, if the secretary determines that the
adjustment is necessary in order to prevent evasion of the tax or to clearly reflect the
income of any such organizations. Under current law, the secretary of DOR may
make the same determination and adjustment with regard to the imposition and
collection of income and franchise taxes.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB499-engrossed,9,42
20.370
(2) (gh)
Nonferrous metallic mining regulation and administration. 3The amounts in the schedule for the administration, regulation
, and enforcement of
4nonferrous metallic mining exploration,
bulk sampling, prospecting, mining and
1mine reclamation activities under ch. 293. All moneys received under ch. 293 shall
2be credited to this appropriation.
AB499-engrossed,10,84
70.375
(2) (b) The secretary may promulgate any rules necessary to implement
5the tax under ss. 70.37 to 70.39 and 70.395 (1e). In respect to mines not in operation
6on November 28, 1981, ss. 71.10 (1), 71.30 (1)
and (2), 71.74 (2), (3), (9), (11) and (15),
771.77, 71.78, 71.80 (6), 71.83 (1) (a) 1. and 2. and (b) 2. and (2) (a) 3. and (b) 1. and
871.85 (2) apply to the administration of this section.
AB499-engrossed,10,1110
70.375
(4) (h) The cost of premiums for bonds required under s.
293.26 (9), 11293.51, 295.45 (5), or 295.59.
AB499-engrossed,10,1714
281.35
(5) (e)
Right to hearing. Except as provided in s. 227.42 (4), any Any 15person who receives notice of a denial or modification requirement under par. (c) is
16entitled to a contested case hearing under ch. 227 if the person requests the hearing
17within 30 days after receiving the notice.
AB499-engrossed,10,2219
283.84
(3m) A person engaged in mining, as defined in s. 293.01 (9) or 295.41
20(26), prospecting, as defined in s. 293.01 (18), bulk sampling, as defined in s.
293.01
21(2m) or 295.41 (7), or nonmetallic mining, as defined in s. 295.11 (3), may not enter
22into an agreement under sub. (1).
AB499-engrossed,11,624
293.01
(2m) “Bulk sampling” means excavating in a potential mining site by
25removing less than 10,000 tons of material, including overburden and any other
1material removed from any portion of the excavation site, for the purposes of
2obtaining site-specific data to assess the quality and quantity of the nonferrous
3metallic mineral deposits and of collecting data from and analyzing the excavated
4materials in order to prepare the application for a mining permit or for any other
5approval. Bulk sampling does not constitute prospecting within the meaning of sub.
6(18).
AB499-engrossed,11,128
293.01
(9) “Mining" or “mining operation" means all or part of the process
9involved in the mining of nonferrous metallic minerals, other than for exploration
,
10bulk sampling, or prospecting, including commercial extraction, agglomeration,
11beneficiation, construction of roads, removal of overburden and the production of
12refuse.
AB499-engrossed,12,214
293.01
(18) “Prospecting" means engaging in the examination of an area for the
15purpose of determining the quality and quantity of nonferrous metallic minerals,
16other than for exploration
or bulk sampling but including the obtaining of a
17nonferrous metallic mineral sample, by such physical means as excavating,
18trenching, construction of shafts, ramps and tunnels and other means, other than for
19exploration
or bulk sampling, which the department, by rule, identifies, and the
20production of prospecting refuse and other associated activities. “Prospecting" shall
21not include such activities when the activities are, by themselves, intended for and
22capable of commercial exploitation of the underlying nonferrous ore body. However,
23the fact that prospecting activities and construction may have use ultimately in
24mining, if approved, shall not mean that prospecting activities and construction
1constitute mining within the meaning of sub. (9), provided such activities and
2construction are reasonably related to prospecting requirements.
AB499-engrossed,9
3Section
9. 293.13 (2) (b) (intro.) of the statutes is amended to read:
AB499-engrossed,12,54
293.13
(2) (b) (intro.) Minimum standards for exploration,
bulk sampling, 5prospecting
, and mining shall include the following:
AB499-engrossed,12,87
293.13
(2) (b) 4. Adequate diversion and drainage of water from the
8exploration,
bulk sampling, prospecting
, or mining site.
AB499-engrossed,12,1110
293.13
(2) (b) 7. Removal and stockpiling, or other measures to protect topsoils
11prior to exploration,
bulk sampling, prospecting, or mining.
AB499-engrossed,12
12Section
12. 293.13 (2) (c) (intro.) of the statutes is amended to read:
AB499-engrossed,12,1513
293.13
(2) (c) (intro.) Minimum standards for reclamation of exploration
and
14bulk sampling sites, where appropriate, and for prospecting and mining sites shall
15conform to s. 293.01 (23) and include provision for the following:
AB499-engrossed,12,2017
293.13
(2) (c) 7. Revegetation to stabilize disturbed soils and prevent air and
18water pollution, with the objective of reestablishing a variety of populations of plants
19and animals indigenous to the area immediately prior to exploration,
bulk sampling, 20prospecting
, or mining.
AB499-engrossed,12,2222
293.15
(7m) Issue licenses and approvals necessary for bulk sampling.
AB499-engrossed,13,524
293.15
(8) Promulgate rules regulating the production, storage and disposal
25of radioactive waste from exploration,
bulk sampling, prospecting
, or mining after
1seeking comments from the department of health services. At a minimum, rules
2promulgated under this subsection shall achieve the margin of safety provided in
3applicable federal statutes and regulations. If the department promulgates rules
4under this subsection, the department shall investigate the need for standards more
5restrictive than the applicable federal statutes and regulations.
AB499-engrossed,13,9
7293.26 Bulk sampling. (1) In this section, “approval” means any permit,
8license, certification, contract, or other authorization that the department issues, or
9any other action by the department, that is required to engage in bulk sampling.
AB499-engrossed,13,19
10(1m) No person may engage in bulk sampling except as provided in a bulk
11sampling license issued by the department under sub. (4) or (14m) and any approval
12required by the department to engage in bulk sampling identified under sub. (4) or
13sub. (4m). A person who intends to engage in bulk sampling shall file a bulk sampling
14plan with the department. The collection of data under a bulk sampling plan may
15include sampling and analysis related to geophysical, geochemical, groundwater,
16and surface water conditions, as well as any other data or studies necessary to
17prepare an application for a mining permit, including the mining plan, reclamation
18plan, mining waste site feasibility study and plan of operation, or any other approval
19required for the proposed mining.
AB499-engrossed,13,20
20(2) A person shall include all of the following in a bulk sampling plan:
AB499-engrossed,13,2421
(a) A description and map of the bulk sampling site, including the number of
22acres in the site, the number of acres of land that will be disturbed, if any, associated
23with each bulk sampling location, and the locations and types of sampling or studies
24to be conducted at each bulk sampling location.
AB499-engrossed,13,2525
(b) A description of the methods to be used for the bulk sampling.
AB499-engrossed,14,3
1(c) A site-specific plan for controlling surface erosion that conforms to
2requirements under ss. 281.33 (3) and 283.33 and that identifies how impacts to
3plant and wildlife habitats will be avoided or minimized to the extent practicable.
AB499-engrossed,14,84
(d) A revegetation plan for each area where bulk sampling will be performed
5that describes how adverse impacts to the environment will be avoided or minimized
6to the extent practicable and how the site will be revegetated and stabilized and that
7identifies how adverse impacts to plant and wildlife habitats will be avoided or
8minimized to the extent practicable.
AB499-engrossed,14,109
(e) The estimated time for completing the bulk sampling and revegetation of
10the bulk sampling locations.