AB1: Bill Text

LRB-1129/1

RCT/MGG/RK/JK:cjs:ph

2013 - 2014 LEGISLATURE

2013 Assembly BILL 1

January 18, 2013 - Introduced by Representatives Suder, Honadel, Williams, August, Ballweg, Bernier, Bies, Born, Craig, Czaja, Endsley, Hutton, Jacque, Jagler, Kapenga, Kaufert, Kerkman, Kestell, Kleefisch, Klenke, Knodl, Knudson, Kooyenga, Kramer, Kuglitsch, T. Larson, LeMahieu, Loudenbeck, Murphy, Murtha, Nass, Nygren, A. Ott, J. Ott, Petersen, Petryk, Pridemore, Ripp, Sanfelippo, Schraa, Severson, Spiros, Steineke, Stone, Strachota, Stroebel, Swearingen, Tauchen, Thiesfeldt, Tittl, Vos, Weatherston and Weininger, cosponsored by Senators Tiffany, Gudex, Darling, Farrow, Kedzie, Lasee, Lazich, Leibham and Vukmir. Referred to Committee on Jobs, Economy and Mining.

AB1,2,10 An Act to repeal 107.001 (2) and 293.01 (8); to renumber and amend 30.123 (8) (c) and 87.30 (2); to amend 20.370 (2) (gh), 20.455 (1) (gh), 20.566 (7) (e), 20.566 (7) (v), 25.46 (7), 29.604 (4) (intro.), 29.604 (4) (c) (intro.), 30.025 (1e) (a), 30.025 (1m) (intro.), 30.025 (1m) (c), 30.025 (1s) (a), 30.025 (2), 30.025 (2g) (b) (intro.), 30.025 (4), 30.12 (3m) (c) (intro.), 30.133 (2), 30.19 (4) (c) (intro.), 30.195 (2) (c) (intro.), 32.02 (12), 70.375 (1) (as), 70.375 (1) (bm), 70.375 (4) (h), 70.38 (2), 70.395 (1e), 70.395 (2) (dc) 1., 70.395 (2) (dc) 2., 70.395 (2) (dc) 3., 70.395 (2) (dc) 4., 70.395 (2) (fm), 70.395 (2) (h) 1., 70.395 (2) (hg), 70.395 (2) (hr), 70.395 (2) (hw), 107.001 (1), 107.01 (intro.), 107.01 (2), 107.02, 107.03, 107.04, 107.11, 107.12, 107.20 (1), 107.20 (2), 107.30 (8), 107.30 (15), 107.30 (16), 160.19 (12), 196.491 (3) (a) 3. b., 196.491 (4) (b) 2., 281.36 (3g) (h) 2., 281.65 (2) (a), 281.75 (17) (b), 283.84 (3m), 287.13 (5) (e), 289.35, 289.62 (2) (g) 2. and 6., 292.01 (1m), chapter 293 (title), 293.01 (5), 293.01 (7), 293.01 (9), 293.01 (12), 293.01 (18), 293.01 (25), 293.21 (1) (a), 293.25 (2) (a), 293.25 (4), 293.37 (4) (b), 293.47 (1) (b), 293.50 (1) (b), 293.50 (2) (intro.), 293.50 (2) (a), 293.50 (2) (b), 293.51 (1), 293.65 (3) (a), 293.65 (3) (b), 293.86, chapter 295 (title), 295.16 (4) (f), 299.85 (7) (a) 2. and 4., 299.95, 323.60 (5) (d) 3., 706.01 (9) and 710.02 (2) (d); and to create 20.370 (2) (gi), 23.321 (2g), 25.49 (2m), 29.604 (7m), 30.025 (1e) (c), 30.025 (4m), 31.23 (3) (e), 87.30 (2) (b), 196.491 (3) (a) 3. c., 227.483 (3) (c), 238.14, 293.01 (12m), subchapter III of chapter 295 [precedes 295.40] and 323.60 (1) (gm) of the statutes; relating to: regulation of ferrous metallic mining and related activities, procedures for obtaining approvals from the Department of Natural Resources for the construction of utility facilities, making an appropriation, and providing penalties.

Analysis by the Legislative Reference Bureau

Overview

This bill makes changes in the laws relating to the regulation of iron mining.

Iron mining, generally

Under current law, DNR regulates mining for metallic minerals. The laws under which DNR regulates metallic mining apply to mining for ferrous minerals (iron) and mining for nonferrous minerals, such as copper or zinc.

This bill creates new statutes for regulating iron mining and modifies the current laws regulating metallic mining so that they cover only mining for nonferrous minerals.

Under current law, a person who proposes to mine for metallic minerals must obtain a mining permit and any other permit, license, certification, or other authorization (approval) that is required under the environmental and natural resources laws, other than the mining laws, for example, wastewater discharge permits, high capacity well approvals, and permits for discharges into wetlands.

Under the bill, a person who proposes to mine for iron ore must obtain an iron mining permit. The person must obtain some of the approvals under other environmental and natural resources laws, for example, wastewater discharge permits, but the bill provides approvals specific to iron mining in lieu of some current approvals, for example, high capacity well approvals and permits for discharges into wetlands. The standards and procedures for granting, and the requirements related to, an iron mining permit and the other approvals specific to iron mining differ in some respects from the standards, procedures, and requirements under current law, as described below.

Current law requires DNR to promulgate rules specifying standards for metallic mining and for the reclamation of mining sites. The rules relating to mining must contain standards for grading and stabilization, backfilling, vegetative cover, prevention of pollution resulting from leaching of waste materials, and prevention of significant environmental pollution. The rules relating to reclamation must contain provisions for disposal of wastes in disposal facilities licensed under the solid waste laws or otherwise in an environmentally sound manner, for management of runoff so as to prevent soil erosion, flooding, and water pollution, and for minimization of disturbance to wetlands. DNR has promulgated rules on these matters.

The bill places standards for iron mining and for the reclamation of iron mining sites in the statutes, rather than requiring rule-making. The standards in the bill are similar in many respects to DNR's current rules and are less stringent in other respects.

Current law prohibits DNR from issuing a permit for metallic mining in a sulfide ore body (a mineral deposit in which metals are mixed with sulfide minerals) unless it finds, based on information provided by the applicant, that two conditions are satisfied. The first condition is that a mining operation has operated in a sulfide ore body that has a net acid generating potential for at least ten years without causing water pollution from acid drainage or the release of heavy metals. The second condition is that a mining operation that operated in a sulfide ore body that has a net acid generating potential has been closed for at least ten years without causing water pollution from acid drainage or the release of heavy metals.

Under the bill, these conditions on issuing a permit for metallic mining in a sulfide ore body do not apply to issuing a permit for iron mining.

Preapplication process

Under current law, a person who intends to apply for a permit for mining for metallic ore must notify DNR before collecting data intended to be used to support the application. DNR is required to provide public notice when it receives such a notification. After considering public comments, DNR must tell the person who filed the notice of intent what information DNR believes is needed to support an application for a mining permit. The person must submit the information as soon as it is in final form. Under this bill, these provisions do not apply to a person who intends to apply for an iron mining permit.

This bill requires a person who is contemplating an iron mining project to provide DNR with a general description of the proposed mining project. The description must include a description of the mining site, including the nature, extent, and final configuration of the proposed excavation and mining site and certain other informations including a map showing the boundaries of the area of land that will be affected by the mining project. The bill requires the person to include this information with the bulk sampling plan, described below, or if the person does not file a bulk sampling plan, with the person's notification to DNR of the person's intent to apply for an iron mining permit. The bill requires DNR to conduct a public informational hearing on a proposed mining project after receiving the general description, either as part of the hearing on approvals required for bulk sampling or, if there is no such hearing, as a separate hearing.

This bill requires a person who intends to apply for an iron mining permit to notify DNR of that intention at least 12 months before filing the application. The bill requires DNR to meet with the applicant to make a preliminary assessment of the project's scope, to make an analysis of alternatives, to identify potential interested persons, and to ensure that the person intending to apply for an iron mining permit is aware of the approvals that the person may be required to obtain. DNR must also ensure that the person is aware of the requirements for submission of an environmental impact report and of the information DNR will require to enable it to process the application for the mining permit in a timely manner.

After the meeting, DNR must provide to the applicant any available information relevant to the potential impact of the project on threatened or endangered species and historic or cultural resources and any other information relevant to impacts that are required to be considered in the environmental impact statement.

Application for mining permit

Under current law, a person who wishes to obtain a permit for metallic mining must submit an application to DNR that includes a mining plan, a reclamation plan, information about the owners of the mining site, and information related to the failure to reclaim mining sites and to any criminal convictions for violations of environmental laws in the course of mining by persons involved in the proposed mining. The application must also include evidence that the applicant has applied for necessary approvals under applicable zoning ordinances and for any approvals issued by DNR that are necessary to conduct the mining, such as air pollution permits and wastewater discharge permits.

This bill includes similar provisions for the application for an iron mining permit, except that the applicant may provide evidence that the applicant will apply, rather than has applied, for necessary zoning approvals and for other approvals issued by DNR.

The required content of the mining plan for iron mining under the bill is similar to that required under current statutes and DNR rules. The required content of the reclamation plan for iron mining is also similar to that required under current law.

Current law requires the applicant for a metallic mining permit to show that the mining and reclamation will comply with specified minimum standards. The bill requires showings by the applicant for an iron mining permit that differ in some ways from current law. For example, current law requires a demonstration that water runoff from the mining site will be managed so as to prevent soil erosion to the extent practicable, flooding, damage to agricultural lands or livestock, damage to wild animals, pollution of ground or surface waters, and damage to public health and safety. The bill, instead, requires a showing that water runoff from an iron mining site will be managed in compliance with any approval that regulates construction site erosion control or storm water management.

Permitting process

Environmental impact statement

Current law requires DNR to prepare an environmental impact statement (EIS) for every proposed metallic mine. An EIS contains detailed information about the environmental impact of a proposed project, including any adverse environmental effects that cannot be avoided if the proposal is implemented, alternatives to the proposed project, the beneficial aspects of the proposal, and the economic advantages and disadvantages of the proposal. For a metallic mining project, current law requires a description of significant long-term and short-term impacts, including impacts after the mining has ended, on tourism, employment, schools, social services, the tax base, the local economy, and "other significant factors."

This bill requires DNR to prepare an EIS for every proposed iron mine. The bill requires DNR to include a description of significant impacts on most of the same matters as under current metallic mining law.

Under current law, when a person applies for a permit or other approval for which DNR is required to complete an EIS, DNR is generally authorized to require the applicant to prepare an environmental impact report (EIR) that discloses environmental impacts of the proposed project to assist DNR in preparing the EIS. Current law authorizes DNR to enter into an agreement with a person considering applying to DNR for approval of a project that is large, complex, or environmentally sensitive to provide preapplication services necessary to evaluate the environmental impact of the project and to expedite the anticipated preparation of an EIS for the project.

The bill requires the applicant for a mining permit to prepare an EIR. The bill requires the applicant for a mining permit to submit the EIR with the application for the mining permit.

Current law authorizes DNR to conduct the processes related to an EIS jointly with other agencies who have responsibilities related to a proposed project.

The bill requires DNR to conduct its environmental review process for a proposed iron mine jointly with other state agencies and requires the preparation of one joint EIS. The bill requires DNR to conduct its environmental review process jointly with any federal or local agency that consents to a joint process.

Current law requires DNR to hold at least one informational meeting on a preliminary environmental report for a mining project before it issues the EIS. This bill does not require such an informational meeting.

Mining hearing

Current law requires DNR to hold a public hearing, called a master hearing, on an application for a metallic mining permit between 120 and 180 days after it issues the EIS for the proposed mine and before it acts on the mining permit application. The hearing includes both a contested case hearing, with testimony under oath and the opportunity for cross-examination, and a public informational hearing. The law requires the hearing to cover the EIS and all other approvals issued by DNR that are required for the mining project, to the extent possible. Under current law, the provisions related to notice, hearing, and comment in the metallic mining law apply to any other needed approval, unless the applicant fails to make an application for an approval in time for it to be considered at the master hearing.

This bill requires DNR to hold a public informational hearing for a proposed iron mining project before it acts on a mining permit application. The hearing does not include a contested case hearing. The hearing must cover the mining permit, the EIS, and all other approvals issued by DNR that are required for the mining project, unless the application for an approval is filed too late to allow the approval to be considered at the mining hearing. The bill requires DNR to take testimony at the hearing on certain issues with regard to a proposed withdrawal of groundwater or surface water including the public rights in any body of water and the related environment that may be injured by the proposed withdrawal, the public benefits provided by increased employment, economic activity, and tax revenues from the proposed mining, and the rights of competing users of the groundwater or surface water. Under the bill, the provisions related to notice, hearing, and comment in the iron mining law apply to any other required approval.

Deadline; for acting on permit application

Current law does not specify a time, after the application for a mining permit is filed, within which DNR must act on a metallic mining permit application. It does require the master hearing to be held between 120 days and 180 days after DNR issues the EIS and requires DNR to act on the permit within 90 days after the completion of the record for the public hearing.

The bill requires DNR to act on an application for an iron mining permit no more than 420 days after the application is considered to be complete unless DNR and the applicant agree to extend the deadline. The parties may agree to only one extension, which may not exceed 60 days. DNR and the applicant may agree to an extension only if an extension is necessary to allow DNR and the U.S. Army Corps of Engineers to jointly prepare the EIS or if new information or a change to the mining proposal necessitates additional time to review the application. Under the bill, if the applicant submits the application for another approval within 60 days after the application for the mining permit is considered to be complete, DNR must also act on the application for that approval by the deadline for acting on the mining permit application. If the applicant files the application for another approval more than 60 days after the application for the mining permit is considered to be complete, the deadline for DNR's action on the approval is extended by the number of days the application is late.

If DNR does not act within the deadline for acting on the application for an iron mining permit, DNR must refund the fees paid by the applicant. The bill also authorizes the applicant to bring a court action to compel DNR to act on the mining permit.

Determination of completeness

The bill requires DNR to review the application for a mining permit and, within 30 days, determine whether the application is complete. If DNR determines that the application is complete, it notifies the applicant and the date of the notification is the date on which the application is considered to be complete. If DNR determines that the application is incomplete, it notifies the applicant and may make one request for additional information within the 30-day review period. If DNR fails to provide a notice during the 30-day review period, the application is considered to be complete at the end of that period. Within 10 days after receiving additional requested information, DNR notifies the applicant whether it has received all of the requested information. The day on which DNR sends the second notice is the day on which the application is considered to be complete. If DNR fails to provide a notice during the 10-day period, the application is considered to be complete at the end of that period.

The bill authorizes DNR to request additional information needed to process the application for a mining permit after the application is considered to be complete, but it may not delay the determination that the application is complete based on a request for additional information.

Grant or denial of mining permit

Grounds for denial

Current law requires DNR to deny an application for a metallic mining permit for a proposed surface mine if the site is unsuitable for surface mining. A site is unsuitable for surface mining if the surface mining may reasonably be expected to destroy or damage either: 1) habitats required for the survival of endangered species of vegetation or wildlife that cannot be firmly reestablished elsewhere; or 2) unique features of the land, as determined by state or federal designation, as, for example, wilderness areas, national or state parks, archaeological areas, and other lands of a type specified by DNR by rule, as unique or unsuitable for surface mining. DNR has designated more than 150 specific scientific areas for the purposes of the determination of unsuitability.

This bill requires DNR to deny an application for an iron mining permit under the same standards for unsuitability as under current law, except that archaeological areas and areas designated by DNR as being unique or unsuitable for surface mining are not considered for the purposes of determining unsuitability.

Current law requires DNR to deny an application for a metallic mining permit if the mining operation is reasonably expected to cause the destruction or filling in of a lake bed or to cause landslides or substantial deposition in stream or lake beds that cannot be feasibly prevented.

The bill requires DNR to deny an application for an iron mining permit if the mining operation is reasonably expected to cause the destruction or filling in of a lake bed, unless DNR has authorized the destruction or filling in of the lake bed under the provisions of the bill related to wetlands, navigable waters, or water withdrawals. The bill requires DNR to deny an application for an iron mining permit if the mining operation is reasonably expected to cause landslides or substantial deposition in stream or lake beds that cannot be feasibly prevented, unless DNR has authorized the landslides or substantial deposition in stream or lake beds under the provisions of the bill related to wetlands or navigable waters.

Current law requires DNR to deny an application for a mining permit if the mining operation is reasonably expected to cause hazards resulting in irreparable damage to specified kinds of structures, such as residences, schools, or commercial buildings, to public roads, or to other public property designated by DNR by rule, if the damage cannot be prevented under the mining laws, avoided by removal from the area of hazard, or mitigated by purchase or by obtaining the consent of the owner.

The bill requires DNR to deny an application for an iron mining permit if the mining operation is reasonably expected to cause hazards resulting in irreparable, substantial physical damage to the specified kinds of structures or to public roads, but not to other public property designated by DNR by rule, if the damage cannot be prevented under the mining laws created by the bill, avoided to the extent practicable by removal from the area of hazard, or offset by purchase or by obtaining the consent of the owner.

The bill requires DNR to deny an application for an iron mining permit if the mining operation is reasonably expected to cause irreparable substantial environmental damage to lake or stream bodies despite adherence to the mining laws, unless DNR has authorized the activity that causes the damage.

As under the current metallic mining laws, the bill requires DNR to deny an iron mining permit if the applicant has violated and continues to fail to comply with this state's mining laws. As also provided under current metallic mining law, the bill contains requirements for the denial of an iron mining permit based on the failure to reclaim mining sites, and based on criminal convictions for violations of environmental laws in the course of mining, in the United States by persons involved in the proposed iron mining.

Standards for approval

Under current law, if none of the grounds for denial of the application for a metallic mining permit apply, DNR must issue the mining permit if it finds the following: 1) the mining plan and reclamation plan are reasonably certain to result in reclamation of the mining site as required by current law and DNR has approved the mining plan; 2) the proposed mining operation will comply with all applicable air, groundwater, surface water, and solid and hazardous waste management statutes and rules; 3) the proposed mine will not endanger public health, safety, or welfare; 4) the proposed mine will result in a net positive economic impact in the area expected to be most impacted by the mine; and 5) the proposed mining operation conforms with all applicable zoning ordinances.

Under this bill, the standards for approval of an iron mining permit differ in some respects from the standards under current law. Under the bill, if none of the grounds for denial of the application for an iron mining permit apply, DNR must issue an iron mining permit if it finds the following: 1) the mining plan and reclamation plan are reasonably certain to result in reclamation of the mining site as required by the provisions of this bill; 2) the applicant has committed to conducting the proposed iron mining in compliance with the mining permit and any other approvals issued by DNR; 3) the proposed iron mining is not likely to result in substantial adverse impacts to public health, safety, or welfare; 4) the proposed iron mine will result in a net positive economic impact in the area expected to be most impacted by the mine; 5) the applicant has applied for all applicable zoning approvals; 6) the waste site feasibility study and plan of operation comply with the provisions of the bill (described below) and; 7) the proposed iron mining is likely to meet or exceed regulations that apply to floodplain zoning ordinances.

Review of DNR decisions

Generally, under current law, a person aggrieved by a decision of a state agency may obtain a contested case administrative hearing under this state's administrative procedure laws. If the matter was covered in the contested case hearing conducted before DNR acts on an application for a metallic mining permit, this general right to a contested case hearing after a decision has been made does not apply.

This bill does not allow a contested case hearing on any decision by DNR related to a proposed iron mine before DNR acts on the application for the iron mining permit. Under the bill, the right to a contested case hearing applies if a person is aggrieved by a decision to grant or deny an iron mining permit or a related DNR approval or a final decision on the EIS for a proposed iron mine and the person seeking the hearing requests the hearing within 30 days after DNR issues the decision on the iron mining permit application. One consolidated hearing is held on all of the issues raised by persons requesting a hearing.

The bill requires the hearing examiner presiding over the contested case hearing to issue a final decision no more than 150 days after DNR issues its decision. If the hearing examiner does not meet this deadline, DNR's decision is affirmed. Under the bill, the hearing examiner may not issue an order prohibiting activity authorized under the DNR decision that is being reviewed in the hearing.