The Department has also determined that certain rules identified in the scope statement do not require amendment. No changes to ch. NR 150, Wis. Adm. Code, are needed in this Board Order because a separate Board Order, OE-46-10, included a provision in ch. NR 150 that complies with the Act. Specifically, language in s. NR 150.30 (1) (j) applies equally to ferrous and nonferrous mining and provides that if there are conflicting procedures for environmental review in statutes, including ch. 295, Stats., those procedures govern. No changes are required to the fee exemption provision of ch. NR 216, Wis. Adm. Code, provided for nonferrous metallic mining storm water permits because no storm water permit fee will be required for a ferrous mining storm water permit application. While the Department believes no changes were required in ch. NR 350, Wis. Adm. Code, because the applicable provisions in ch. NR 350 are consistent with the statutory provisions for regulation of ferrous and nonferrous mining, the department did add a statement to s. NR 350.02, clarifying that ch. NR 350 does not apply to ferrous mining or bulk sampling activities conducted in accordance with s. 295.60, Stats. 6. Summary and comparison with existing and proposed federal regulations.
The changes in state law made by the Act and the changes in state rules proposed in this Board Order apply to the State of Wisconsin’s regulation of mining activity. All applicable federal laws continue to apply to proposed ferrous and nonferrous mining activities. The proposed rule changes do not conflict with applicable federal laws and regulations.
Both ferrous and nonferrous metallic mining activities must meet the requirements of federal laws such as the Clean Water Act, 42 U.S.C. 1251 to 1387 and the Clean Air Act, 42 U.S.C. 7401 to 7671q. These federal laws are administered by EPA and the U.S. Army Corps of Engineers (ACOE). In addition, hazardous wastes are subject to federal hazardous waste laws under Subtitle C of the Resource Conservation and Recovery Act (RCRA), although mining wastes are generally exempt from federal hazardous waste laws under the Bevill Exclusion (42 U.S.C. 6921(b)(3)(A)). The ferrous metallic mining statute, s. 295.51(1e)(b), specifies that mining wastes that are hazardous are subject to regulation under subch. III of ch. 295, and not under chs. NR 660 to 679, the state’s hazardous waste rules, except as necessary to comply with applicable federal hazardous waste regulations adopted under the RCRA, 42 U.S.C. 6901 to 6991m. The Department is authorized by the EPA to administer the federal hazardous waste program in Wisconsin. The state is required to have regulations that are at least as stringent as those required by federal law. State hazardous waste rules that identify when a waste is hazardous (e.g., if the waste has certain characteristics or meets specific listings) are parallel and equivalent to the federal hazardous waste regulations. State regulations that identify when a mining waste is exempt from regulation are also parallel to federal law. Because the applicable state regulations in chs. NR 660 to 679 are consistent with and necessary to comply with federal hazardous waste regulations, no changes are proposed in these chapters. 7. Comparison of similar rules in adjacent states:
The Department’s proposed rules implement changes required by the Act. The Department has not prepared a detailed analysis of ferrous mining rules in adjacent states. In a memorandum dated October 26, 2011, the Wisconsin Legislative Council prepared an analysis of the mine permitting process in adjacent States at the request of the Senate Select Committee On Mining Jobs. The analysis is titled, “Ferrous Mining Permit Application Process in Wisconsin, Minnesota, and Michigan”. A copy of this analysis will be provided upon request. At present, both Minnesota and Michigan have active ferrous mining operations.
Neither Iowa or Illinois have active metallic mining programs. Iowa does not have metallic mining regulations. Illinois regulations for mining are focused on specific areas covering mine reclamation, mine safety, abandoned mines, and oil & gas.
8. Summary of factual data and analytical methodologies:
The Department reviewed current rules to determine if amendments were required by section 103 of the Act. The Department did not conduct any other analysis or use specific data to support the proposed changes to the rules. The Department made no changes other than those directed by section 103.
9. Analysis and supporting documents used to determine effect on small business or in preparation of an economic impact analysis:
The department has completed the Fiscal Estimate and Economic Impact Analysis form [DOA-2049 (RO3/2012)] as part of this rule analysis. The Department did solicit comments on a draft of this Fiscal Estimate / Economic Impact Analysis (FE/EIA) from parties that could be interested in the proposed rule changes. These interested parties included Native American Tribes, environmental groups, federal environmental agencies, mining companies, and business associations. All comments received were considered in finalizing the Economic Impact Analysis.
10. Effect on small business (initial regulatory flexibility analysis):
The Department does not believe these proposed rule changes will affect small businesses.
11. A copy of any comments and opinion prepared by the Board of Veterans Affairs under s. 45.03 (2m), Stats., for rules proposed by the Department of Veterans Affairs: Not applicable.
12. Agency contact person:
Edward K. Lynch, PE, Chief,
Hazardous Waste and Mining Section – WA/5
608/267-0545
SECTION 1. NR 103.06 (3) is amended to read:
NR 103.06 (3) Wetland alterations which are directly caused by operations on a nonferrous metallic mineral prospecting site or mining site shall be regulated pursuant to specific wetland standards under chs. NR 131 and 132, respectively. SECTION 2. NR 103.06 (4m) is created to read:
NR 103.06 (4m) Wetland alterations which are directly caused by a ferrous metallic mining operation or bulk sampling shall be regulated pursuant to specific wetland standards under s. 295.60, Stats. SECTION 3. NR 123.02 is amended to read:
NR 123.02 Applicability. This chapter applies to contaminated private water supplies compensable under s. 281.75, Stats. Well compensation grants awarded prior to August 9, 1989 are governed by s. 281.75, Stats., and this chapter as they existed on August 8, 1989. This chapter does not apply to contamination which is compensable under subch. II of ch. 107, Stats., or s. 293.65 (4), Stats., or s. 295.61 (8), Stats. SECTION 4. NR 130 (title) is amended to read:
NR 130 (title) NONFERROUS METALLIC MINERAL EXPLORATION
SECTION 5. NR 130.01 is amended to read:
NR 130.01 Purpose. The purpose of this chapter is to establish a licensing procedure and minimum standards for nonferrous metallic mineral exploration in this state.
SECTION 6. NR 130.02 is amended to read:
NR 130.02 Applicability. The provisions of this chapter are applicable to all nonferrous metallic mineral exploration as defined in s. NR 130.03. This chapter does not apply to operators engaged in exploration on lands included in a mining and reclamation plan, if the plan contains provisions relating to termination of the exploration activities. This chapter also does not apply to ferrous metallic mining regulated under subch. III of ch. 295, Stats. SECTION 7. NR 130.03 (8) is amended to read:
NR 130.03 (8) “Exploration” means the onsite geologic examination from the surface of an area by core, rotary, percussion, or other drilling, where the diameter of the hole does not exceed 18 inches, for the purpose of searching for nonferrous metallic minerals or establishing the nature of a known nonferrous metallic mineral deposit and includes associated activities such as clearing and preparing sites or constructing roads for drilling. For the purposes of the definition of exploration, geologic examination does not include drillholes constructed for the purpose of collecting soil samples or for determining radioactivity by means of placement of radiation−sensitive devices.
SECTION 7m. NR 130.03 (11) is renumbered NR 130.03 (12m) and amended to read:
NR 130.03 (12m) “Metallic Nonferrous metallic mineral” means a naturally occurring, inorganic, metal−containing substance which is mined or proposed to be mined for the purpose of extracting a metal or metals which form all or a part of the chemical composition of the mineral. Such metals include but are not limited to iron, has the meaning given in s. 293.01 (12m), Stats. Note: This definition does not apply to substances mined primarily for their iron oxide content. This definition includes substances mined for the purpose of extracting a metal or metals such as copper, zinc, lead, gold, silver, titanium, vanadium, nickel, cadmium, molybdenum, chromium, manganese, cobalt, zirconium, beryllium, thorium, and uranium.
SECTION 8. NR 130.06 (1) (intro.) is amended to read:
NR 130.06 (1) (intro.) Metallic Nonferrous metallic mineral exploration drillholes shall be abandoned as follows:
SECTION 9. NR 131 (title) is amended to read:
NR 131 (title) NONFERROUS METALLIC MINERAL PROSPECTING
SECTION 10. NR 131.01 is amended to read:
NR 131.01 Purpose. The purpose of this chapter is to establish procedures and standards for the comprehensive regulation of nonferrous metallic mineral prospecting in this state and to coordinate and reconcile applicable state and federal statutes and regulations so as to facilitate the procedures by which department permits, licenses, and approvals may be applied for, hearings may be held, and determinations may be made by the department in a coordinated and integrated manner.
SECTION 11. NR 131.02 is amended to read:
NR 131.02 Applicability. The provisions of this chapter are applicable to all nonferrous metallic mineral prospecting as defined in s. 293.01 (18), Stats., including the storage, handling, processing, transportation, and disposal of all materials resulting from a prospecting operation except to the extent that prospecting wastes are regulated by ch. NR 182. The provisions of this chapter are not applicable to those activities which are intended for and capable of commercial exploitation of the underlying ore body. However, the fact that prospecting activities and construction may have use ultimately in mining, if approved, shall does not mean that prospecting activities and construction constitute mining pursuant to the definition of mining contained in s. 293.01 (9), Stats., provided such activities and construction are reasonably related to prospecting requirements. This chapter also does not apply to ferrous metallic mining regulated under subch. III of ch. 295, Stats. SECTION 12. NR 131.03 (8) is amended to read:
NR 131.03 (8) “Merchantable by−product” means all waste soil, rock, mineral, liquid, vegetation and other material directly resulting from or displaced by the prospecting, cleaning or preparation of nonferrous metallic minerals during prospecting operations which are determined by the department to be marketable upon a showing of marketability made by the operator, accompanied by a verified statement by the operator of his or her intent to sell such material within 3 years from the time it results from or is displaced by prospecting. If after 3 years from the time merchantable by−product results from or is displaced by prospecting such material has not been transported off the prospecting site, it shall be considered and regulated as refuse unless removal is continuing at a rate of more than 12,000 cubic yards per year. Regardless of whether the material constitutes merchantable by−product, it shall be subject to the requirements of this chapter.
SECTION 12g. NR 131.03 (9) is renumbered NR 131.03 (10m) and amended to read:
NR 131.03 (10m) “Metallic Nonferrous metallic mineral” means a naturally occurring, inorganic, metal−containing substance which is mined or proposed to be mined for the purpose of extracting a metal or metals which form all or a part of the chemical composition of the mineral. Such metals include but are not limited to iron, has the meaning given in s. 293.01 (12m), Stats. Note: This definition does not apply to substances mined primarily for their iron oxide content. This definition includes substances mined for the purpose of extracting a metal or metals such as copper, zinc, lead, gold, silver, titanium, vanadium, nickel, cadmium, molybdenum, chromium, manganese, cobalt, zirconium, beryllium, thorium, and uranium.
SECTION 12r. NR 131.03 (15) and (22) are amended to read:
NR 131.03 (15) “Prospecting” means engaging in the examination of an area for the purpose of determining the quality and quantity of nonferrous metallic minerals, other than for exploration but including the obtaining of an a nonferrous metallic mineral ore sample, by such physical means as excavating, trenching, construction of shafts, ramps, tunnels, pits and the production of refuse and other associated activities.
(22) “Refuse” means all waste soil, rock, mineral, liquid, vegetation, and other material, except merchantable by−products, directly resulting from or displaced by the prospecting, and from the cleaning or preparation of nonferrous metallic minerals during prospecting operations, and shall include all waste materials deposited on or in the prospecting site from other sources and solid waste as defined in s. NR 182.04. SECTION 13. NR 132 (title) is amended to read:
NR 132 (title) NONFERROUS METALLIC MINERAL MINING
SECTION 14. NR 132.01 is amended to read:
NR 132.01 Purpose. The purpose of this chapter is to establish procedures and standards for the comprehensive regulation of nonferrous metallic mineral mining in this state and to coordinate and reconcile applicable state and federal statutes and regulations so as to facilitate the procedures by which department permits, licenses, and approvals may be applied for, hearings may be held, and determinations may be made by the department in a coordinated and integrated manner.
SECTION 15. NR 132.02 (1) is amended to read:
