SB395: Bill Text

CORRECTED COPY

LRB-2652/1

MCP:all

2017 - 2018 LEGISLATURE

2017 Senate BILL 395

August 29, 2017 - Introduced by Senators Tiffany, Fitzgerald, Darling, LeMahieu, Moulton, Feyen, Stroebel, Kapenga, Wanggaard, Craig, Lasee, Nass and Vukmir, cosponsored 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. Referred to Committee on Sporting Heritage, Mining and Forestry.

SB395,1,12 An Act to repeal 227.42 (4), 293.43 (2), 293.43 (3), 293.43 (4), 293.43 (5) and 293.50; to amend 20.370 (2) (gh), 70.375 (4) (h), 281.35 (5) (e), 283.84 (3m), 293.01 (9), 293.01 (18), 293.13 (2) (b) (intro.), 293.13 (2) (b) 4., 293.13 (2) (b) 7., 293.13 (2) (c) (intro.), 293.13 (2) (c) 7., 293.15 (8), 293.31 (title), 293.31 (1), 293.31 (2), 293.31 (3), 293.31 (4), 293.43 (1), 293.43 (1m) (b), 293.49 (1) (a) (intro.), 293.51 (title), 293.51 (3), 293.55 (1) (c), 293.55 (1) (d), 293.65 (3) (b) and 293.81; to repeal and recreate 293.95; and to create 293.01 (2m), 293.15 (7m), 293.26, 293.31 (4m), 293.32 (4), 293.37 (5), 293.40, 293.43 (2m), 293.43 (3m), 293.43 (4m), 293.495, 293.51 (2m), 293.51 (5) and 293.66 of the statutes; relating to: the regulation of nonferrous metallic mining, prospecting, exploration, and bulk sampling, repealing administrative rules relating to wetlands, 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.

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.