Environmental Law Section Blog: Changes in Metallic Mining Laws Effective July 1, 2018:

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  • Environmental Law Section Blog
    July
    17
    2018

    Changes in Metallic Mining Laws Effective July 1, 2018

    Cheryl Widder Heilman

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    Mining for metals such as copper, lead, iron, and zinc has played a major role in the history and development of several regions of Wisconsin. Cheryl Widder Heilman discusses recent changes to Wisconsin’s nonferrous metallic mining laws in 2017 Wisconsin Act 134.

    Recent changes to Wisconsin’s metallic mining laws became effective July 1, 2018.

    Nonferrous metallic mining – mining for metals such as for gold, copper, lead and zinc – is primarily governed by Wis. Stat. chapter 293. Ferrous metallic mining – mining for iron ore, including taconite and hematite – is primarily governed by subchapter III of chapter 295.

    The legislature adopted Wisconsin’s ferrous mining law in 2013 Act 1 and made changes to the nonferrous metallic mining law in 2017 Wisconsin Act 134 (Act).

    Among other things, the Act:

    • Adds a license requirement and approval process for “bulk sampling” activity.
    • Modifies the preapplication notice procedures for a mining application.
    • Revises the process for obtaining a mining or prospecting permit.
    • Repeals the “mining moratorium” requirements in Wis. Stat. section 293.50  and added a requirement that an applicant demonstrate that the technology proposed for the mining operation is capable of resulting in, and is likely to result in, compliance with applicable environmental laws.
    • Changes the financial assurance requirements applicable to nonferrous mining operations.

    New Category: Bulk Sampling

    The Act added a new category of mining activity – bulk sampling – similar to the bulk sampling regulated under the ferrous mining law. For nonferrous metallic mining, bulk sampling is excavating in a potential mine site by removing less than 10,000 tons of material, including overburden and any other material removed from any portion of the excavation site, for the purposes of assessing the quality and quantity of a mineral deposit.

    Cheryl Heilman gov cheryl.heilman wisconsin Cheryl Widder Heilman, Minnesota 1981, is a deputy chief counsel with the Wisconsin Department of Natural Resources, where she focuses her practice on mining and other environmental regulatory matters.

    Before engaging in bulk sampling, a person must file a bulk sampling plan with the Department of Natural Resources (DNR) that satisfies the minimum standards prescribed in the statutes. Within 14 days after receiving a complete bulk sampling plan, the DNR must identify any other approvals needed for bulk sampling in addition to the bulk sampling license.

    The applicant must submit any required applications at the same time. The applicant also must submit a bond, conditioned on the faithful performance of the bulk sampling requirements, in order to receive a bulk sampling license. The law requires public notice and a hearing if an individual permit (such as an individual wetland permit) is required for bulk sampling activity.

    Changes in Preapplication Notice Procedures

    A person intending to submit a prospecting or mining permit application must notify the DNR at least 12 months before filing the permit.

    The Act modified the process for review of the notice of intent and included procedures under which a prospective applicant can begin collecting environmental baseline data prior to submitting the notice. Once a notice is received, there is a public notice and comment process which may include a public information hearing.

    After the close of the public comment period, the DNR must inform the applicant of the other permits, licenses and approvals required for the project and must identify the information needed to support an application, including the information that should be included in an environmental impact report. DNR must also seek to enter into a memorandum of understanding with the applicant, the U.S Army Corps of Engineers, and any other federal regulatory agency with responsibilities relating to the potential operation. The memorandum may include an agreement between the DNR and the applicant relating to timelines, including timelines for the parties to conduct environmental studies and for granting or denying the prospecting or mining permit.

    Process for Mining or Prospecting Permit Application

    Chapter 293 contains requirements for a prospecting or mining permit application and sets out a process for DNR’s review of the application, including review of the applicant’s environmental impact report and the applications for other necessary approvals. 2017 Wisconsin Act 134 adds specific timelines for certain DNR review actions and makes other changes to the process for DNR’s consideration of the applications.

    Instead of a “master hearing” which included a contested case hearing, the law now provides for public comment and an informational hearing prior to issuance of permit decisions. The public informational hearing must be held in the county where the majority of the proposed mining site is located. The DNR must summarize the comments received during the comment period and provide the department’s response prior to issuance of a final decision.

    Once a final decision is issued by DNR, a contested case hearing may be held. A petition for judicial review of the decision in a contested case hearing may follow. Any petition for judicial review must be brought in the circuit court for the county in which the majority of the mining activity will occur.

    Repeal of ‘Mining Moratorium’ and Addition of Technology Specific Requirements

    The “mining moratorium” provisions in Wis. Stat. section 293.50  contained requirements for issuing a permit for mining a sulfide ore body.

    The moratorium required an applicant to submit relevant data and documentation and the DNR to verify that

    1) a mining operation in the United States or Canada had operated for ten years without a violation of environmental laws and without causing significant environmental pollution of surface or groundwater, and
    2) a mining operation in the United States or Canada had been closed for ten years without a violation of environmental laws and without causing significant environmental pollution of groundwater or surface water.

    The moratorium provisions did not focus on the site-specific characteristics of a proposed mine in Wisconsin.

    Because of the differences in geology and hydrogeology, climate, and regulatory requirements in different geographic areas compared to Wisconsin, it could be difficult to draw meaningful conclusions about a proposed mine in Wisconsin based on other mining operations. In addition, it could be difficult to compare the condition of a mining site after practices that occurred over ten years in the past with the conditions that would likely occur based on the use of technologies or practices that may be used today.

    The Act repeals the moratorium provisions, and adds a site specific requirement that must be met for a mining permit to be issued. The applicant must show and the DNR must find that the technology that will be used at a proposed operation is capable of resulting in compliance with all applicable air, groundwater, surface water, and solid and hazardous waste management laws and rules, and is reasonably certain to result in compliance with these laws and rules at the proposed mining site.

    Changes in Types of Financial Assurance

    The Act changes the types of financial assurance the DNR can require for a mining operation.

    The law now limits financial assurance to those forms specifically authorized in the statutes. Prior to the Act, the statutes required a reclamation bond and financial assurance for the long term care of the waste site. The statutes did not include one form of financial assurance – an irrevocable trust agreement – that had been authorized by DNR regulations in NR 132.085.

    The DNR adopted the trust fund requirement in 2000 after receiving a petition from a group of legislators requesting that rules be adopted to require mining permit holders to carry insurance adequate to fund any remedial measures in case of environmental contamination caused by a mining operation.

    The Act effectively repeals NR 132.085 and adds other financial assurance requirements: a remedial action bond and financial responsibility for reasonably anticipated costs between 40 and 250 years after closure of the mining waste site.

    The law now requires:


    • A reclamation bond based on the estimated cost to the state of reclaiming the site as prescribed in the approved reclamation plan. At least 10 percent of the cost to the state of reclamation of the entire mine site must be maintained for at least 20 years after the DNR determines through issuance of a Certificate of Completion that reclamation of the mine site is completed.

    • Financial assurance for the long term care of the waste site. The amount is based on the cost to carry out the long term care responsibilities for the waste site, which would include such activities as regular inspections, land surface maintenance, erosion control, groundwater monitoring and leachate monitoring and management. This financial assurance must be maintained during the operation of the mining waste facility for at least 40 years after closure of the facility. After the 40-year period, the owner of the waste facility may apply to the DNR to reduce or eliminate the bond. The DNR can require the bond to continue for so long as necessary to protect human health or the environment.

    • A remedial action bond or other financial assurance to cover unforeseen remedial contingencies. This financial mechanism is to be posted prior to commencement of mining operations and is to be maintained for up to 40 years after extraction activities end. The amount of the bond is set at 10 percent of the combined amount of the reclamation bond and long term care financial assurance.

    • Proof of financial responsibility for reasonably anticipated costs between 40 and 250 years after closure of the mining waste site. An acceptable form of financial responsibility is to be submitted at the time of closure of the mining waste facility in an amount adequate to cover the repair or replacement of any engineered cover systems or tailings water management control systems used at the mining site or mining waste site to avoid adverse environmental consequences. The operator or any successor may use the funds to cover any reasonably anticipated costs.

    Other Changes

    There are several other changes made by the Act.

    The law specifies that modeling assessments of potential groundwater and surface water quality impacts be limited to a period of 250 years following closure of the mining waste facility, and requires the DNR to establish the vertical distance (depth) used to determine compliance with groundwater standards.

    In addition, the law explicitly authorizes DNR to include conditions requiring mitigation of water quantity-related impacts to waters of the state including public or private water supply wells in any approval of a high capacity well and modifies the standards for the assessment of wetland impacts so that the standards are consistent with the current wetland statute, Wis. Stat. section 281.36.

    Finally, the law exempts a mining operator from certain solid waste fees, consistent with the fee exemptions provided in the ferrous mining law.





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