ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
RENUMBERING AND AMENDING, AMENDING, AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to renumber and amend NR 130.03 (11) , 131.03 (9), and 132.03 (9); to amend NR 103.06 (3), 123.02, 130 (title), 130.01, 130.02, 130.03 (8), 130.06 (1) (intro.), 131 (title), 131.01, 131.02, 131.03 (8), (15), and (22), 132 (title), 132.01, 132.02 (1), 132.03 (8), (11), (14), (17) and (23), 132.085 (1), 135.02 (3) (h), 140.03, 182 (title), 182.01, 182.02 (1), (4), (5), and (9), 182.04 (28), (29), (30), (33), and (40), 182.075 (1) (b) 2. and 3., and (c), 182.18 (3) (a) Table 2, 213.02 (2) (b), 214.02 (3) (f), 350.02, 406.08 (1), 500.02 (1), 502.02 (1), 503.02 (1), 504.02 (1), 506.02 (1), 507.02 (1), 508.02 (1), 509.02 (2) (c), 510.02 (1), 512.02 (1), 514.02 (1), 516.02 (1), 518.02 (1), 520.02 (1), 524.02 (1), 526.02 (3), 538.02 (1), 700.03 (21) and (Note), 812.02 (2), 812.05 (5) (e), 815.03 (30) (Note), 815.06 (5) (e), and 815.11 (6); and to create NR 103.06 (4m), 182.04 (28m), (29m), and (30m) and (Note), 528.02 (3) (i) and (j), 812.02 (4), and 815.11 (7) relating to 2013 Wisconsin Act 1, the Ferrous Mining Law. WA-14-13
Analysis Prepared by the Department of Natural Resources
1. Statutes interpreted: In promulgating these rules, section 103 of 2013 Wisconsin Act 1 has been interpreted as authorizing rule revisions. Section 103 is a non-statutory provision directing the Department to revise certain rules and to clarify the rules’ applicability to ferrous mining activities that are regulated under the new provisions of subchapter III of chapter 295, Stats. 3. Explanation of agency authority:
2013 Wisconsin Act 1 (hereafter the Act) modified existing laws relating to metallic mining and created subch. III of ch. 295, Stats., for the regulation of ferrous metallic mining. A “ferrous mineral” is an ore that exists primarily in the form of an iron oxide, including taconite and hematite. Section 103 of the Act direct the Department to propose revisions to certain rules so that the rules are consistent with subch. III of chapter 295, Stats., and with the other statutory revisions made by the Act. These included:
Section 103(1)(a) of the Act directs the Department to revise the mining regulations in chs. NR 130, 131, 132, and 182, Wis. Adm. Code, to clarify that these rules do not apply to ferrous metallic mining regulated under subch. III of ch. 295, Stats.
Section 103(1)(b) of the Act directs the Department to revise the solid waste rules in chs. NR 500 to 555, Wis. Adm. Code, and the hazardous waste rules in chs. NR 660 to 679, Wis. Adm. Code, so that the rules are consistent with the provisions of subch. III of ch. 295, Stats.
Section 103(1)(c) of the Act directs the Department to revise any rules that provide exemptions for nonferrous mining or associated activities to provide the same exemptions for ferrous mining and associated activities in accordance with 2013 Wisconsin Act 1.4. Related statutes or rules:
Exemptions for metallic mining appear in sections of the Wisconsin Administrative Code relating to water quality standards for wetlands (s. NR 103.06), the well compensation program (s. NR 123.02), nonmetallic mining (s. NR 135.02), groundwater quality (s. NR 140.03), industrial lagoons (s. NR 213.02), land treatment of industrial liquid wastes (s. NR 214.02), air program construction permits (s. NR 406.08), well construction and pump installation (s. NR 812.02), and injection wells (ss. NR 815.03 (30) (Note), 815.06 and 815.11). 5. Plain language analysis: The objective of the proposed rules is to satisfy the Department’s obligation to promulgate rules as directed by section 103 of the Act, and as explained in item 3. above. The proposed rules clarify that ferrous mining activities are regulated under the new subch. III of chapter 295, Stats., created by the Act. The proposed rules 1) revise the mining regulations in chs. NR 130, 131, 132, and 182, Wis. Adm. Code, to clarify that these rules apply only to nonferrous mining; 2) revise the solid waste regulations in chs. NR 500 to 538, Wis. Adm. Code, to be consistent with the new ferrous mining law and to clarify that the rules apply only to solid waste facilities that are not regulated under the mining laws; and 3) revise sections of other regulations that currently provide an exemption for metallic mining activities so that the rules are consistent with the Act. The Department has reviewed all chapters of the Wisconsin Administrative Code administered by the Department and has proposed amendments to those rules as required by section 103 of the Act. Generally, proposed language has been added to specific sections so that the rules are consistent with the new ferrous mining law, subch. III of ch. 295, and with other statutory amendments made by the Act. The Department determined that some rules identified in section 103 do not require revision. The Department did not propose revisions to chs. NR 540 to 555 of the solid waste rules because these rules do not apply to metallic mining. The Department did not propose revisions to chs. NR 660 to 679, the hazardous waste rules, because the applicable rules are required by federal law and thus the existing rules are in accordance with s. 295.51(1e)(b), Stats. of the new ferrous mining law. 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
