Act 134 created two new forms of financial assurance applicable to metallic mining operations. Chapters NR 132 and 182 have been revised to incorporate these new financial assurance mechanisms and provide a framework for determining the amount of the financial assurance related to anticipated repair and replacement of various pollution control design elements.
Act 134 created a new permitting criterion requiring the department to find that the proposed project will incorporate technology that will ensure compliance with applicable environmental protection laws and rules. The rules were revised to provide clarification as to how the department will make this determination and what information may be needed to support the department’s determination.
Act 134 made substantial changes to the permitting processes for mining and prospecting projects, including the preapplication notification process, and the rules revised accordingly.
Act 134 creates regulatory processes and minimum standards related to bulk sampling projects including plan and bond submittals, approvals, licensing, inspections, enforcement and bond release requirements. Proposed rules were developed to implement the bulk sampling regulatory framework created in Act 134.
Act 134 includes provisions that either directly or indirectly repealed specific rule requirements including those related to regulation of mining activities near wetlands, and the irrevocable trust fund. Those provisions of the rules have been removed.In addition to changes necessary due to enactment of Act 134, the existing rules are also inconsistent with the statutes as amended by other statutory changes enacted since the inception if the rules in 1982. Rule changes to address these inconsistencies include:
Updating the prospecting and mining fee collection process so fee collection starts when a prospective applicant submits a preapplication notification.
Updating the provisions by which the department review the compliance history of a prospective applicant to conforms with s. 293.37(2)(e), Wis. Stats.
Revising the permit and plan modification process to be consistent with the procedures in s. 293.55, Wis. Stats.
Revision of ch. NR 182 so it conforms with s. 289.41, Wis. Stats., which specifies the acceptable means of providing financial assurance for long-term care of mining waste facilities and requires owners of mining waste to maintain financial assurance for at least forty years following closure of the facility. Additional rule changes are proposed to provide greater clarity and effectiveness to the rules based on past experience in implementing the rules over the past 35 years. Examples of these types of changes include:
More specificity has been added to ch. NR 131 and 132 regarding the process for assessing success and completion of reclamation under s. 293.63, Wis. Stats.
Additional criteria have been added to the rule to provide greater structure to the process related to issuance of the certificate of completion, the regulatory status of mining sites for which certificates of completion have been issued and the residual reclamation bond under s. 293.63, Wis. Stats.
Additional informational requirements have been added to ch. NR 182 as related to the feasibility report, plan of operation and construction documentation reports. In addition, a requirement to submit a detailed preconstruction report has been added to the rule.
Minimum requirements for conducting groundwater modeling assessments of proposed mining operations and mining waste facilities have been added to the rules.
The exploration licensing requirements and notification procedures in ch. NR 130 have been revised to require additional detail in the licensing and notification submittals and greater accountability by requiring ongoing licensing and reporting until all drillholes are properly terminated. 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: While there is no nationwide regulatory program applicable to nonferrous metallic mining, the requirements specified in this set of administrative rules is similar to the requirements imposed by the U.S. Forest Service, U.S. Bureau of Land Management and other federal agencies in regard to mining and mining-related activities on lands under their management and control. The federal agencies review exploration and mining proposals for their economic and environmental feasibility and conduct technical reviews to ensure compliance with applicable federal laws including the National Environmental Policy Act, Endangered Species Act, Clean Water Act and Clean Air Act.
7. Comparison with Similar Rules in Adjacent States: Of the states bordering Wisconsin, Michigan and Minnesota are those that have comparable geology and potential for development of nonferrous metallic mineral mining of a type similar to that which has and could take place in Wisconsin. Michigan and Minnesota have each developed or revised their metallic mining regulations in the past 10-15 years in response to new mining development activity. The laws and rules in each of those states are comparable to the regulatory framework in place in Wisconsin and would be consistent with the proposed rule changes. While each state follows procedures that are unique to their state, the overall approaches are similar in that each requires extensive pre-permitting environmental analyses, thorough engineering and technical evaluations of the proposed project and demonstrated compliance with all applicable permitting criteria as part of the review and approval process for nonferrous metallic mineral mining projects.
Neither Illinois nor Iowa contain metallic mineral deposits similar to those identified in northern Wisconsin and therefore have not developed specific regulatory frameworks comparable to those in Wisconsin, Minnesota and Michigan. While both states, along with Wisconsin, experienced historic metallic mining activity as part of the Tri-state Upper Mississippi Valley lead/zinc mining district, there has been no metallic mining activity in either state for over forty years.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The proposed rule revisions correct inconsistencies with controlling statutes, implement new statutory provisions, bring the rules up-to-date with current technologies and clarify existing rule provisions and procedures. There was not a need to evaluate factual data and analytical methods as a means to identify regulatory approaches. Rather, experienced department staff reviewed the existing rules to identify necessary changes and developed the preliminary drafts of the proposed rules.
9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: The projected increased costs, as a result of the proposed rule revisions, were developed by department staff by considering the cost implications as a result of the expanded documentation and reporting requirements and procedural changes specified in the revised rules. The staff estimates were provided to and discussed with a mining industry representative to determine if the estimate was reasonable.
10. Effect on Small Business (initial regulatory flexibility analysis):
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.
11. Agency Contact Person: Larry Lynch, Wisconsin DNR – EX/7, P.O. Box 7921, Madison, WI 53707. Lawrence.lynch@wisconsin.gov. (608)267-0869. 12. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, or email to:
Lawrence Lynch – EX/7
Department of Natural Resources
Box 7921
Madison, WI 73707
608-267-0869
The consent of the Attorney General will be requested for the incorporation by reference of two specific technical resource documents. Section NR 182.1095(2)(c), Wis. Adm. Code, includes a reference to ASTM method D5321, which specifies testing protocols for evaluating installation of specific geosynthetic materials. Section NR 182.113(2)(g), Wis. Adm. Code, refers to a U.S. EPA document (Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA Publication SW 846, third edition, November 1986, as amended by Updates I in July 1992, II in September 1994, IIA in August 1993, IIB in January 1995, III in December 1996 and IIIA in April 1998) specifying testing methods applicable to groundwater, lysimeter, and leachate sampling. Section 1 Chapter NR 130 is repealed and recreated to read:
NONFERROUS METALLIC MINERAL EXPLORATION AND BULK SAMPLING
SUBCHAPTER I - NONFERROUS METALLIC MINERAL EXPLORATION
NR 130.101 Purpose. The purpose of this subchapter is to establish licensing and notice procedures and ensure compliance with minimum standards for nonferrous metallic mineral exploration in this state.
NR 130.102 Applicability. The provisions of this subchapter are applicable to all nonferrous metallic mineral exploration as defined in s. NR 130.103 (8). This subchapter does not apply to operators engaged in exploration on lands included in a mining and reclamation plan approved as part of a mining permit issued under s. 293.49, Stats., if the plan contains provisions relating to termination of the exploration activities. NR 130.103 Definitions. In this chapter:
(1) “Abandonment" means filling or sealing a drillhole in accordance with the procedures specified in s. NR 130.111. (2) “Concrete grout" means a mixture consisting of 94 pounds of cement, sand and water meeting the material specifications of s. NR 812.20 (1) (b). (3) “Department" means department of natural resources.
(4) “Driller" means a person who performs core, rotary, percussion, or other drilling involved in exploration for nonferrous metallic minerals.
(5) “Drilling mud” means a fluid mixture of water, drill cuttings and drilling additives approved by the department.
(6) “Drilling site" means the area disturbed by exploration including the drillhole, drill pad, sumps, staging areas, and access roads.
(7) “Explorer" means any person who engages in exploration or who contracts for the services of drillers for the purpose of exploration.
(8) “Exploration" means the on-site 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 drilling sites and constructing access roads. For the purposes of the definition of exploration, geologic examination does not include drillholes constructed for the purpose of collecting soil samples, conducting geophysical surveys or groundwater investigations, or determining radioactivity by means of placement of radiation-sensitive devices.
(9) “Exploration license" means the license required under s. 293.21 (2), Stats., as a condition of engaging in exploration. (10) “Flowing drillhole” means a drillhole that has a static water level above the ground surface.
(11) “License year" means the period commencing on July 1 of any year and ending on the following June 30.
(11m) “Metallic sulfide-bearing rock” means native rock formations that contain an average metallic sulfide content of 3percent or greater by volume for the purposes of management and disposal of drilling mud and cuttings under this subsection.
(12) “Neat cement grout" means a mixture of cement and water meeting the material specifications of s. NR 812.20 (1) (a). Powdered bentonite may be added up to a ratio of 5 pounds per 94-pound bag of cement. (12m) “Nonferrous metallic mineral" has the meaning given in s. 293.01 (12m), Stats. (13) “Parcel" means an identified section, fractional section, or government lot.
(14) “Permanent abandonment” means filling an exploration drillhole with concrete, neat cement grout or other approved materials as provided in NR 130.111 (1) (b).
(15) “Temporary abandonment” means sealing the upper end of the exploration drillhole casing with a watertight and locking threaded or welded cap.
(16) “Termination" means filling of drillholes and reclamation and revegetation of drilling sites.
NR 130.105 Application for an exploration license.
(1) No explorer may engage in exploration without securing an exploration license.
(2) Any explorer wishing to engage in exploration shall file an application for an exploration license with the department upon forms prepared and furnished by the department. The application shall be accompanied by all of the following:
(a) A fee of $600.00 for the exploration license.
(b) An original, signed surety bond payable to the department in the amount of $5,000 conditioned on faithful performance of the provisions of this subchapter. The bond under this paragraph is subject to all of the following conditions:
1. The bond shall be issued by a surety company licensed to do business in Wisconsin. If the surety company's license to do business is revoked or suspended, the explorer, within 30 days after receiving written notice thereof from the department, shall substitute surety underwritten by a surety company licensed to do business in Wisconsin. Upon failure of the explorer to make a substitution of surety, the department shall suspend the explorer's exploration license until substitution has been made.
2. Each bond shall provide that the bond shall not be canceled by the surety, except after not less than 90 days’ notice to the department in writing by registered or certified mail. Not less than 30 days prior to the expiration of the 90-day notice of cancellation, the explorer shall deliver to the department a replacement bond in the absence of which all exploration shall cease.
3. The department may require that the amount of the bond be increased at any time, if the department determines that the explorer's current level of activity makes it likely that the bond would be inadequate to fund the termination of all holes drilled for which the explorer is responsible.
4. One year after all drilling sites constructed by the explorer have been issued a certificate of completion under s. NR 130.111 (4), and upon request by the explorer, the department shall release the bond and terminate the exploration license if the department determines that the explorer has complied with all provisions of this subchapter. (c) A certificate of insurance certifying that the explorer has in force a liability insurance policy issued by an insurance company authorized to do business in this state covering all exploration of the explorer in this state and affording personal injury and property damage protection in a total amount deemed adequate by the department but not less than $50,000.
