AB46: Bill Text

LRB-1470/1

RCT&JK:cjs:jf

2013 - 2014 LEGISLATURE

2013 Assembly BILL 46

February 28, 2013 - Introduced by Representatives Clark, Barca, Jorgensen, Kahl, Kolste, Sinicki, Zepnick, Smith and Berceau, cosponsored by Senators T. Cullen, Schultz, Jauch, C. Larson, Hansen, Lassa, Taylor, Wirch and Lehman. Referred to Committee on Jobs, Economy and Mining.

AB46,1,11 An Act to repeal 293.43 (3) (a) and 293.43 (5); to amend 70.375 (2) (a), 70.375 (5) (intro.), 70.395 (1e), 70.395 (2) (dc) 1., 70.395 (2) (dc) 2., 70.395 (2) (dc) 3., 70.395 (2) (g) (intro.), 227.42 (4), 281.93 (3), 283.63 (3), 285.81 (3), 289.05 (2), 289.27 (3), 289.29 (5), 293.31 (1), 293.35 (5), 293.43 (title), 293.43 (1m), 293.43 (2), 293.43 (3) (c), 293.43 (4), 293.45 (1) and (2), 293.49 (1) (a) (intro.), 293.49 (1) (a) 3., 293.49 (2) (intro.) and 293.51 (3); to repeal and recreate 293.43 (1) and 293.43 (3) (b) (intro.); and to create 20.192 (1) (g), 70.375 (7), 70.395 (2) (L), 238.14, 289.645 (4) (g), 293.313, 293.37 (2) (gm), 293.42, 293.43 (2m), 293.44, 293.45 (2m), 293.49 (4g), 293.51 (2m) and 293.64 of the statutes; relating to: regulation of metallic mining, an occupation tax on iron mining, and making an appropriation.

Analysis by the Legislative Reference Bureau

Regulation of metallic mining

Processing application for mining permit

Under current law, a person who proposes to mine for metallic minerals must obtain a mining permit from the Department of Natural Resources (DNR), as well as any other permit, license, certification, or other authorization that is required under other environmental and natural resources laws (approval).

Current law requires DNR to prepare an environmental impact statement (EIS) for every proposed metallic mine. After the EIS is finalized, DNR must hold a public hearing (called the master hearing), that includes a public informational hearing and a contested case hearing with sworn testimony and the opportunity for cross-examination, before acting on the application for the mining permit and other approvals. Current law does not specify a time, after the application for a mining permit is filed, within which DNR must act on a 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 application within 90 days after the completion of the record for the master hearing.

Under this bill, DNR must hold a public informational hearing after the EIS for a proposed metallic mine is finalized. After the public informational hearing, the bill requires DNR to hold a contested case hearing covering the application for the mining permit and other approvals if any person notifies DNR that the person wishes to be a party within 30 days after DNR provides notice about the contested case hearing. The bill requires DNR to give the notice no more than 520 days after the application for the mining permit is complete, unless the deadline is extended as provided in the bill. The bill authorizes DNR to extend the deadline for a total of not more than 180 days if the applicant changes its proposal for the mine or if additional time is needed to ensure collaboration with a federal agency with responsibilities related to the proposed mine or to evaluate new information related to the mine. The bill authorizes the applicant to extend the deadline as often and for as long as it decides is necessary. The bill also authorizes DNR and the applicant to negotiate an agreement for a timeline for processing the mining permit application that includes a different deadline for DNR to provide notice of the contested case hearing.

The bill requires that the contested case hearing on a proposed metallic mine be concluded and the record of the hearing be completed no more than 680 days after the application for the mining permit is complete, except that if the deadline for providing notice concerning the contested case hearing is extended, the deadline for concluding the hearing and completing the record of the hearing is extended by the same number of days. The bill requires DNR to act on the application for the mining permit and other approvals no more than 730 days after the application for the mining permit is complete, except that if the deadline for providing notice concerning the contested case hearing is extended, the deadline for acting on the applications is extended by the same number of days.

Processing application for prospecting permit

Under current law, a person may not prospect for metallic ore without a prospecting permit from DNR. Prospecting is examining an area to determine the quantity and quality of metallic minerals by means other than drilling, for example, by excavating. Under current law, an EIS is not mandatory for proposed prospecting. DNR determines whether it must prepare an EIS for prospecting in the same way that it determines whether it must prepare an EIS for other actions for which an EIS is not mandatory. Under current law, the rest of the procedure for processing an application for a prospecting permit is similar to that for processing the application for a mining permit.

This bill provides an expedited procedure for processing a prospecting permit if the application for the permit shows that less than 10,000 tons of material is proposed to be excavated. Under the expedited process:

1. An EIS is not required.

2. DNR must hold a public informational hearing.

3. DNR must act on the application for the prospecting permit and, generally, for other approvals covered in the informational hearing no later than 60 days after the application for the prospecting permit is complete.

4. No contested case hearing is available on the application for the permit or for other approvals covered in the informational hearing.

For an application for a prospecting permit to which the expedited process does not apply, the bill makes changes to the permitting process that are the similar to those made for processing the application for a mining permit, including the deadlines for DNR action.

Notice of intent

Under current law, a person who intends to apply for a permit for mining or prospecting for metallic ore must notify DNR before collecting data intended to be used to support the application.

This bill requires a person who intends to apply for a permit for mining for metallic ore, but not for prospecting, to provide notice of that intent at least 12 months before filing the application.

Collaboration

This bill requires DNR to do all of the following in relation to proposed metallic mining:

1. Provide assistance to a person who notifies DNR of the person's intent to apply for a mining or prospecting permit during the processes related to obtaining a permit.

2. Work and consult with American Indian tribes and bands during the processes related to proposed mining in which the tribes and bands have an interest.

3. Work with and provide assistance to other regulatory agencies, including local and federal agencies, during the processes relating to proposed mining in which the agencies have an interest.

4. Seek to enter into a memorandum of understanding with any federal agency with responsibilities related to a potential mining operation covering timelines and other issues of mutual concern.

5. Seek to be the lead agency in matters related to processing an application for a mining permit that are undertaken in coordination with a federal agency.

Irrevocable trust

Currently, DNR's rules on metallic mining require a person to whom a mining permit is issued to establish an irrevocable trust to ensure adequate funds to undertake preventive measures to avoid adverse environmental consequences and to take measures in response to a spill of hazardous substances or the failure of a mining waste facility to contain the waste. DNR determines the level of funding required based on the likelihood of the need for preventive or response measures and the range of costs of the measures.

Under this bill, the level of funding for the irrevocable trust for a metallic mine is equal to the sum of the following:

1. Twenty percent of the amount of the bond or other security required under current law to ensure the availability of funds for reclamation of the mining site.

2. Twenty percent of the amount of the bond or other security required under current law as proof of financial responsibility for closure and long-term care of the mining waste facility.

Recycling tipping fee

Current law imposes several fees, often referred to as tipping fees, on generators of solid waste that are based on the tonnage of solid waste disposed of at solid waste disposal facilities. The recycling tipping fee is $7 per ton. Under current law there are some exemptions from the recycling tipping fee and the other tipping fees.

The bill exempts metallic prospecting and mining waste from the recycling tipping fee.

Groundwater

Under current law, among other conditions, to approve the application for a permit for metallic mining DNR must find that the proposed mine will comply with groundwater laws and rules. Under the groundwater laws, DNR and the Department of Health Services establish groundwater quality standards for substances that contaminate groundwater. Also under current law, for certain facilities, such as waste disposal facilities, the groundwater law requires DNR to establish a three-dimensional design management zone (DMZ) within the property boundaries. DNR's current rules require the applicant for a mining permit to submit information based on predictive modeling to demonstrate whether there is a reasonable certainty that a mining waste facility will result in the violation of a groundwater standard beyond the DMZ. There is no time frame specified for this modeling.

This bill requires an applicant for a mining permit to submit information based on predictive modeling to demonstrate whether there is a reasonable certainty that a mining waste facility will result in the violation of a groundwater standard beyond the DMZ within 250 years after the facility is planned to be closed.

Currently, for metallic mining waste sites, in addition to the DMZ, DNR's rules provide for a mandatory intervention boundary that is generally 150 feet from the outer waste boundary. Under the rules, if a preventive action limit or an enforcement standard is exceeded beyond the mandatory intervention boundary, DNR must require a response by the operator.

This bill provides that DNR and an applicant for a mining permit may agree to use a mandatory intervention boundary that is a longer distance, up to 600 feet, from the outer waste boundary.

The bill also requires DNR to study whether, in connection with metallic mining, groundwater standards should apply in an aquifer containing saline (salty) water and to report its conclusions to the legislature.

Mining waste characterization

Current law requires DNR to promulgate rules for the identification and regulation of metallic mining wastes. This bill requires DNR to adopt, in those rules, standards of the American Society for Testing and Materials for testing and other methodologies related to the evaluation of mining waste.

Occupation tax on mining

Under current law, the state imposes a net proceeds occupation tax on the mining of metallic minerals in this state. The tax is based, generally, on a percentage of net income from the sale of ore or minerals after certain mining processes have been applied to the ore or minerals. The tax rates are annually adjusted to reflect the change in gross national product. Gross national product, generally, measures the output generated by U.S. enterprises, regardless of whether those enterprises are located in this country.

Under this bill, instead of paying a net proceeds occupation tax based on net income, a person who is mining ferrous minerals in this state would pay a tax equal to $2.412 for each 2,240 pounds of ferrous minerals extracted from mines in this state, based on a three-year average. The tax rate would be annually adjusted to reflect the change in the gross domestic product.