Penokee Hills Destruction Act of 2013: Summary

A new mining bill very similar to 2012's AB426 was introduced to the state legislature on January 16. This bill, the Penokee Hills Destruction Act, poses a significant threat to Wisconsin's environmental protections and public input for iron mining. A separate mining bill sponsored by Sen. Tim Cullen (D-Janesville) will be introduced next week. After four committee listening sessions last fall, Cullen released a statement calling for a two-year time limit on permitting, eliminating the environmental review and hearing for prospecting, and eliminating contested case hearings prior to a permit being issued. Contested case hearings are the public's only opportunity to question mining company officials under oath before a project is approved. This page will be updated when Cullen's bill becomes available. Links to and analysis of the PHDA are below.

 

 

Links to the Penokee Hills Destruction Act (aka Senate Bill 1):

Senate Bill LRB 0762/1 (LRB 1129 is its identical Assembly companion)

Legislative Council Analysis of LRB 0762/1

 

WNPJ Summary of the Penokee Hills Destruction Act (Based on Legislative Council Analysis of LRB 0762/1 and LRB 1129/Senate Bill 1)

The bill...

  • Separates “ferrous” from “non-ferrous” metallic mining
  • Modifies the sulfide mining moratorium law to apply only to “a mineral deposit in which nonferrous minerals are mixed with sulfide minerals.”

Exploration

  • Caps required exploration damage protection insurance at $1 million (currently no cap)
  • Overwrites current DNR rules with statutes specifying components of exploration and reclamation plans.
  • Requires the DNR to consider an exploration application complete the day it is submitted unless it is missing specified components, and forbids the DNR from considering the quality of the information provided when considering its completeness. Licenses are automatically approved after 10 business days unless the DNR notifies the applicant that it is incomplete.
  • Forbids the DNR from requiring any environmental review of the proposed exploration.
  • Requires the DNR to hide from the public any information in the application designated by the applicant as a trade secret, other than effluent data.
  • Eliminates requirement for companies to notify the DNR before they start drilling or filling a drill hole.
  • Requires DNR inspectors not to interfere with drilling activities.

Prospecting/Bulk Sampling

  • Replaces prospecting permit—and its required Environmental Impact Statement—with a bulk sampling plan and “pre-application description” of the proposed full mining project.
  • Requires the DNR to approve or deny bulk sampling plan within 30 days.
  • Requires one public information session to cover all aspects of the pre-application description and any permits required by the federal government for bulk sampling activities.
  • No Environmental Impact Statement or Environmental Assessment is required for bulk sampling.

Mining Permit

  • Replaces the Notice of Intent—with its required public hearing—with a pre-application notice filed at least 12 months before a mining permit application.
  • Eliminates the ability of the DNR to request a “scope of study,” a process that lasts up to 120 days to identify data requirements, methodologies, a schedule for collecting field data, people responsible for collecting data, and related information.
  • Requires the DNR to determine whether an application is complete within 30 days, and make one request for additional information if it is not. Information quality can be considered in determining whether an application is complete.
  • Requires the DNR to issue or deny a mining permit within 420 days (1 year 2 months) after the application is deemed complete.
  • Allows the DNR to request one extension of up to 60 days only if the U.S. Army Corps of Engineers needs more time or there are changes to the mining proposal, which is granted only if mutually agreed upon by the applicant.
  • Requires the DNR to approve or deny all related environmental permits along with the mining application as long as the applicant has submitted their permit applications within 60 days of the mining application being deemed complete.
  • Requires the DNR to refund the applicant’s fees if it does not meet the permitting deadline.
  • Eliminates the ability of the DNR to request additional information from the applicant not specified in the statute.
  • Eliminates the requirement for an applicant to submit details of the nature and depth of the overburden at the mine site.
  • Eliminates the requirements of proper grading, stabilization, topsoil protection, and achievement of aesthetic standards from the mining plan, and includes them in the reclamation plan instead.
  • Eliminates the requirements of maintenance of adequate vegetative cover and impoundment of water from the mining plan.
  • Changes the requirement for adequate water diversion and drainage to only apply “to the extent possible.”
  • Eliminates the standard prohibiting adverse affects on public health or welfare from backfilling of excavations.
  • Changes the requirement that a proposed mine must meet all administrative rules for air quality, water quality, and waste disposal to requiring that the applicant has committed to complying with the issued permits and submitted plans.
  • Changes the requirement that an applicant conform with all applicable zoning ordinances to requiring that an applicant has applied for zoning approval and allows the DNR to approve projects that do not conform to all applicable zoning ordinances.
  • Eliminates the requirement that mining reclamation comply with administrative rules; it must only comply with the statute.
  • Requires mine to meet or exceed DNR’s floodplain zoning rules.
  • Excludes archaeological areas and other lands designated by the DNR from consideration when determining whether a site is unsuitable for mining.
  • Allows the DNR to grant an exemption from any requirement of the mining law regardless of whether or not it will endanger public health, safety, welfare, or the environment, so long as any environmental damages are offset through mitigation.
  • Eliminates all restrictions on the timing of exemption requests.
  • Eliminates the requirement of public notice of a potential exemption.
  • Eliminates the ability to hold a public hearing on an exemption request.
  • Requires the DNR to act on all exemption requests within 15 days.

Environmental Regulations

  • Eliminates “other significant factors” from review in the economic aspects of the  Environmental Impact Statement (considerations allowed include the mine’s impact on tourism, employment, schools, medical care facilities, social services, the tax base, and the local economy).
  • Requires the DNR to use data collected by the applicant as a starting point of the EIS, as long as the data meet one of three weak litmus tests (the data are statistically similar to DNR or other agency data, they fit within “the range of expected results” of the DNR or a consultant, or the DNR or a consultant verifies that the testing methodology is adequate).
  • Takes precedence over all conflicting environmental regulations except the Great Lakes Compact.
  • Allows iron mining to be covered under a “wetland general permit,” which would apply to any activity related to iron mining in any part of the state. (The “wetland general permit” was established with the passage of a Wetlands bill in 2012 and intended to apply to minor projects).
  • Includes a statement that significant adverse impacts on wetlands from mining are “presumed to be necessary.”
  • Restricts the ability of the DNR to place requirements for wetland fill/dredge permit approval above and beyond those required by the Army Corps of Engineers.
  • Allows mitigation for impacted wetlands to be done anywhere in the state, except for wetlands in the Ceded Territories, for which mitigation is required to take place within the Ceded Territories.
  • Allows exemptions from wetlands permits in certain circumstances, even if the activity may impair a wetland’s circulation or reach.
  • Eliminates the authority of the DNR to take enforcement action against possible statute violations related to wetlands activities related to ferrous mining.
  • Allows mining projects to significantly impact navigable waterways and offset/compensate/mitigate for the impacts.
  • Eliminates the prohibition from filling in a lake bed in connection with mining.
  • Eliminates the requirements of separate surface water withdrawal and groundwater withdrawal permits and replaces them with one mining water withdrawal permit.
  • Replaces specific requirements for water withdrawals with subjective standards under which a mining water withdrawal permit may be approved.
  • Authorizes an applicant to enter any land from which they intend to withdraw water under an approved permit.
  • Changes the design management zone for groundwater quality enforcement to be measured from any engineered structures or the edge of a mine, rather than the outer waste boundary of a waste storage facility or the edge of a mine.
  • Eliminates the ability of the DNR to reduce the size of the design management zone, and allows the DNR to expand the size of the design management zone an additional 1,200 feet in any direction (for a possible total of 2,400 feet, or almost ½-mile, from the edge of a mine, processing facility, or waste storage site).
  • Moves the mandatory intervention boundary—where groundwater monitoring is required—from 150 feet to 300 feet from the edge of a mine or waste storage site.
  • Exempts ferrous mining activity from shoreland zoning ordinances.
  • Exempts ferrous mining from municipal floodplain zoning ordinances except as required for the municipality to maintain its eligibility for the National Flood Insurance Program.
  • Allows mining companies to move endangered species for the purposes of bulk sampling (current law does not allow anyone to take, possess, or transport a wild animal on the endangered and threatened species list).

Mine Waste

  • Eliminates the DNR’s ability to promulgate administrative rules for mining wastes, and prohibits the DNR from regulating mining waste except under the mining plan, reclamation plan, and mining permit application.
  • Changes the solid waste disposal feasibility study to eliminate the requirement that it not pollute groundwater outside the design management zone, and replace it with groundwater modeling to a depth of at most 1,000 feet or the depth of the mine, whichever is greater.
  • Changes the requirement for modeling that the waste site comply with groundwater standards indefinitely, to requiring that the waste site comply with groundwater standards for 100 years following mine closure.
  • Eliminates the requirement of a waste site selection process designed to minimize adverse environmental impacts.
  • Eliminates some information requirements regarding site operations, closing, and long-term care.
  • Changes the requirement for maximum slope of a complete waste pile from 33% to 50%.
  • Eliminates the requirement for the waste site to be located so that tailings pipelines do not cross any major watercourse or pass through any wetland.
  • Eliminates a standard that high priority be given to a design and operating procedure that provides for reclamation of all disturbed sites and minimizes the risk of pollution.
  • Eliminates protection from mine waste siting for area identified as unsuitable for mining due to the presence of endangered and threatened species in waste.
  • Eliminates the minimum distance of mine waste from a navigable waterway (currently 1,000 feet from still water and 300 feet from a river or stream).
  • Eliminates the minimum distance from a property line of a backfilled mine pit (currently 200 feet).
  • Eliminates protection from mine waste siting for areas with a reasonable probability that mine waste will result in a violation of surface or ground water quality standards.
  • Eliminates the requirement to submit groundwater elevation measurements with routine groundwater monitoring data.
  • Changes the requirement for regular visual inspections of the mine waste site from weekly to monthly inspections.
  • Eliminates the requirement to keep a general operating log of waste facility operations and several reporting requirements, replacing quarterly reports with an annual summary report.
  • Allows a waste site owner to apply for termination of financial responsibility for long-term care of the site after 20 years, and automatically terminates their financial responsibility after 40 years.
  • Eliminates the requirement of a public hearing and comment period regarding termination of a site owner’s financial responsibility.

Mine Reclamation

  • Relaxes requirement for immediate revegetation of disturbed surface areas by adding “to the extent practicable.”
  • Eliminates the requirement that non-indigenous plant species used must be first approved by the DNR.
  • Eliminates the requirement for a separate comprehensive long-term reclamation plan.

Public Hearings

  • Replaces a public hearing on prospecting with a public information session on the pre-application description and bulk sampling plan.
  • Replaces a minimum of three public hearings on the mine permit with one public information session covering all aspects of the mining activities and the environmental impact statement for the mine, unless any federal permit approval requires a separate hearing.
  • Requires the DNR to take written comments for 45 days, unless any federal permit approval requires a separate hearing.
  • The single public information session does not include a contested case hearing, which is currently required prior to a mining permit being issued.
  • Allows for a contested case hearing after a ferrous mining permit has been issued, and prohibits any stay of mining activity during the period of up to 150 days in which the case is being decided.
  • Penalizes parties that bring a contested case hearing if the purpose of the case is deemed to be to cause a delay in the mining project.

Judicial Review and Enforcement

  • Requires any judicial review of final DNR decisions on mine permitting to be brought in the county in which the majority of the proposed mining site is located.
  • Prohibits fines on the mining company for mining-related problems while a mining permit is being amended.
  • Eliminates the ability of the DNR to issue a stop order if it determines that continued mining constitutes an immediate and substantial threat to public health or the safety of the environment.
  • Limits the intervention of the public in enforcement cases brought by the Department of Justice to only those persons who may be adversely impacted by enforcement (currently, anyone can intervene).
  • Eliminates citizen suits for enforcement.

Costs

  • Caps the applicant’s reimbursement to the DNR for permitting costs at $2 million.
  • Exempts the applicant from any application fees except for the mining permit application fee and fees required for approval by the Great Lakes Compact.
  • Excludes the cost of long-term care of the mining waste site from the estimated cost to the state of fulfilling the reclamation plan.
  • Caps the amount of insurance required for personal injury and property damage at $1 million.
  • Eliminates the requirement of an irrevocable trust agreement, a trust fund set up by the applicant to ensure adequate funds for prevention and clean-up of mine waste spills.
  • Exempts mining companies from three out of seven fees currently required for solid waste disposal (license fee, tonnage fee, and recycling fee).

Taxes

  • Reduces the amount of tax revenue received by the investment and local impact fund from 100% to 60% of net proceeds occupation tax revenue, with the other 40% going to a state-run economic development fund.
  • Notice of Intent Fees (1-3 required) are increased from $50,000 to $75,0