As an alternative to the proposed rule-making, the department could scale back on the scope of the intended rules changes. The department could consider a petition to the legislative council staff requesting repeal of any unauthorized rules under Wis. Stat. s. 227.26(4)(b). The repeal would not, however, allow the department to propose replacement of outdated rule language with language that is consistent with current statutes. The agency could also focus only on the changes needed to bring the rule into conformance with the current statutes. Limiting the rulemaking in this way would not allow consideration during the rulemaking process of any proposals for clarifying existing rules. The department has included the potential for rulemaking clarifications in this scope statement. During the rulemaking process, the department will consider whether specific clarifications are most appropriately dealt with through rulemaking, through guidance, or on a case-by-case basis on a given project. 4. Detailed explanation of statutory authority for the rule (including the statutory citation and language):
Chapter 293, Stats., contains numerous provisions granting rule-making authority to the department. Following is a discussion of the most pertinent provisions as related to the anticipated rule revisions. - 293.13 (1) (b) – The department is directed to establish, by rule, minimum qualifications for applicants for prospecting or mining permits
- 293.13 (2) (a) – The department is required to develop rules that adopt minimum standards for exploration, prospecting, mining and reclamation.
- 293.15 (9) – The department is directed to write rules by which the department may grant exemptions, modifications or variances from any rule under chapter 293 or under chapters 289-292 as related to nonferrous mining waste.
- 293.15 (10) – The department is directed to promulgate rules regarding minimizing, segregating, backfilling or marketing mining waste
- 293.15 (11) – The department is directed to develop rules establishing groundwater quantity and/or quality standards for any prospecting or mining site including standards for mining waste sites.
- 293.21– The department is authorized to write rules pertaining to different aspects of metallic mineral exploration including license fees, drillhole fees, notifications and inspections and a procedure for bond release.
- 293.32 (1)- The department is directed to establish application fees for proposed prospecting and mining projects.
Chapter 289, specifically sections 289.05(2) and (3), authorize the department to promulgate rules related to essentially all aspects of a metallic mining waste facility including the location, design, operation, closure and long-term care of such facilities. Lastly, the department also has rule-making authority under s. 227.11(2)(a) which authorizes the department to adopt rules interpreting the provisions of chapter 293 if the department considers it necessary to effectuate the purpose of the statute. The department considers the rule changes proposed above necessary to effectuate the purpose of legislative changes made to the mining laws. As noted above, 2017 Wisconsin Act 134 made significant modifications to the prospecting and mining permit review and approval processes in addition to other aspects of the regulatory framework applicable to metallic mineral prospecting and mining activities. These and other statutory changes result in direct conflicts and inconsistencies between the law and existing administrative rules necessitating certain rule revisions. The proposed changes to clarify certain statutory and rule provisions are also necessary to carry out the purpose of the nonferrous metallic mineral exploration, bulk sampling, prospecting, mining, and mining waste site statutory provisions. 5. Estimate of amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule:
It is estimated that approximately 1600 hours of department staff time will be necessary to complete the rule changes. This estimate includes staff time related to working with a technical advisory committee.
6. List with description of all entities that may be affected by the proposed rule:
The proposed rule changes will predominantly affect business entities involved in metallic mining activities, namely mineral exploration companies and mining companies. Others affected could include federal agencies, local units of government and tribal governments. The rules will involve substantial stakeholder interest from environmental groups, trade associations, and municipal government associations,
7. Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule:
There are no corresponding federal regulations pertaining specifically to metallic mineral exploration, bulk sampling, prospecting or mining. Various federal environmental protection regulations administered primarily by the state apply to specific aspects of metallic mineral mining activities, but are not directly affected by the proposed rule changes. Examples of such regulations include those related to storm water management, wastewater discharge, air emissions, wetland impacts and solid and hazardous waste management.
8. Anticipated economic impact of implementing the rule (note if the rule is likely to have a significant economic impact on small businesses):
The proposed rule changes are not expected to result in a significant economic impact on small businesses. Given the capital-intensive nature of metallic mineral exploration and mining project development, such activities have generally not been conducted by small businesses. Since the department began regulating these activities in the late 1970’s, the vast majority of companies engaged in exploration and all of the companies pursuing mining permits in this state have been large corporations.
9. Anticipated number, month and locations of public hearings:
The department anticipates holding 3 public hearings in mid-2019. The department will hold these hearings to solicit public comments from the public and interested parties in various locations around the state, including areas where metallic mineral mining and exploration has most recently occurred and where potential future mining activities could take place. The hearings are tentatively planned to be held in Madison, Antigo and Ladysmith.
Contact Person: David Siebert, Director, Environmental Analysis and Sustainability
