Recent Updates to Wisconsin’s Mining Law Have Taken Effect

November 15, 2018

Beginning on July 1st, 2018, significant changes went into effect regarding nonferrous metallic mining in Wisconsin. These changes, part of 2017 Wisconsin Act 134 (the Act), once again open Wisconsin to mining minerals other than iron, such as copper, gold, silver, and zinc, to name a few. Wisconsin has abundant nonferrous metallic mineral deposits in certain locations, according to the Wisconsin Department of Natural Resources (DNR), yet mining these minerals had been effectively blocked for nearly two decades under the former mining moratorium, also known as the “Prove It First” Law. Supporters of the Act hope these changes to Wisconsin’s mining law will spur nonferrous metallic mining in Wisconsin once again. Wisconsin state history is so tied to mining that multiple mining symbols are featured prominently on the state flag and seal and is also the source of our state nickname, the “Badger” state. Others hope that the rigorous environmental standards of the “Prove It First” law are retained after Act 134.

One of the key points of Act 134 was to repeal the now former statute, § 293.50, which provided for the moratorium on the issuance of permits for the mining of sulfide ore deposits. This former moratorium blocked the issuance of permits for the mining of sulfide ore unless the applicant could provide verifiable evidence that it had performed another sulfide ore (nonferrous metallic) mining operation that had gone 10 years without the pollution of groundwater or surface water from acid drainage at the tailings site, at the mine site, or from the release of heavy metals in the United States or Canada. Furthermore, the permit applicant also had to provide verifiable evidence that its sulfide ore mining operation had been closed for an additional minimum of 10 years without the pollution of groundwater or surface water from acid drainage. These former requirements set a very high bar for a potential mining operation to be granted a permit, and required a showing of an example mine with geologic or environmental conditions that might not even be applicable to a Wisconsin mining site. The moratorium had effectively eliminated mining permits since the now-repealed § 293.50 was enacted in 1998, shortly after the closure of the last significant nonferrous metallic mine in Wisconsin, the Flambeau Mine near Ladysmith, WI.

Instead, § 293.49(1) (a) 2m. now requires that the “technology that will be used at the proposed operation is capable of resulting in compliance with all applicable air, groundwater, surface water, and solid and hazardous waste management laws and rules of the department and is reasonably certain to result in compliance with these laws and rules at the proposed mining site.” In other words, the DNR will now limit their review to the conditions of the proposed mining site, and how the proposed operation plans to comply with environmental laws based on those site conditions, rather than showing compliance with the conditions of some other, perhaps unique or distinct site.

Act 134 has also streamlined the process for review and hearings on permit applications. This bill eliminated the requirement that a contested case hearing be held prior to the issuance of a permit by the Wisconsin Department of Natural Resources (DNR) as part of the public hearing process. Now, there are specific time periods for the mining permit preapplication and public notice period, the mining permit application submittal requirements and DNR review timeframes, and opportunities for public information hearings and public comment periods. These changes eliminate the adversarial case hearings prior to, or as a part of, the approval process under the former Master Hearing process, which required testimony under oath and the opportunity for cross-examination combined with the public information hearing. Instead, the new process is more standardized to provide opportunity for all relevant information to be gathered, a public hearing to be held, and for public comments to be collected and reviewed before a DNR decision is made, at which time an aggrieved party can then contest the DNR’s decision in the matter.

In addition to these important procedural changes, the Act also created a new option for those seeking to determine the feasibility of a potential mining site. This new category of site exploration, called “bulk sampling,” is defined in § 293.01(2m) as “excavating in a potential mining 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 obtaining site-specific data to assess the quality and quantity of the nonferrous metallic mineral deposits and of collecting data from and analyzing the excavated materials in order to prepare the application for a mining permit or for any other approval.” Bulk sampling now allows a business or mining operation to engage in a greater, or more extensive, level of sampling and testing of a potential mining site than was permitted under the prospecting definition, which is still retained in the statute but explicitly distinguished from bulk sampling. In order for a potential mining operation to conduct bulk sampling, it must now submit a bulk sampling plan and be issued a bulk sampling license by the DNR. These requirements, including the plan submittal requirements, timeline for DNR license approval, and other pertinent requirements, are specified in the new statute, § 293.26.

The Act makes a few additional changes related to mine permitting. First, the Act changes to the Financial Assurance requirements provided in § 293.51 for mining applications, now requiring the mine operator to file a bond conditioned on faithful performance of all of the statutory requirements with the DNR. Next, an operator must maintain proof of financial responsibility throughout the mining operation, which will ensure the availability of funds for compliance with the long-term reclamation and other environmental requirements. Also, the mine operator must also provide proof of financial responsibility at the time of closure of the mining waste site to the DNR in an amount equal to the reasonably anticipated costs during the period between 40 and 250 years after closure of the mining waste site to repair or replace any engineered cover systems or tailings water management control systems used at the mining site or mining waste site to avoid adverse environmental consequences, as determined at the time of closure of the mining waste site. See § 293.51(1r). The potential mine operator must submit their proof of financial responsibility at the time that the application for a mining permit is approved. To provide some assurance to the potential mining operators regarding the definite costs to be anticipated under the permitting and operations process, the Act also provides that the DNR may not require an operator to provide a type or form of financial assurance other than those specified in § 293.51.

There are a few additional changes in Act 134 that are worth mentioning. First, § 293.65(3)(b) has been amended to require the DNR to provide conditions, if it determines that a proposed withdrawal of groundwater or dewatering of mines will result in the unreasonable detriment of public or private water supplies or the unreasonable detriment of public rights in the waters of the state, to prevent these unreasonable detrimental results from occurring. This requirement applies to groundwater withdrawals for prospecting and mining purposes as well as to high capacity wells. Next, for any activities that will take place under a prospecting or mining permit, the DNR must determine the depth of bedrock below which the groundwater is not suitable for human consumption and not hydrologically connected to other groundwater sources, and the DNR may not apply any groundwater enforcement standard that is deeper than this depth. Finally, this Act repealed Administrative Code § NR 132.06(4), which provided wetland disturbance and mitigation requirements specific to mining operations. Instead, potential wetlands disturbances and impacts caused by a nonferrous metallic mining operation are now governed by the generally applicable wetlands permit statute (also recently updated under 2017 Wisconsin Act 183), § 281.36, which provides for permits for discharges into wetlands under specific conditions, as well as wetlands mitigation requirements.

In summary, Wisconsin’s newly effective 2017 Act 134 has made significant changes to the law regarding nonferrous metallic mineral mining in Wisconsin. This new law, which has repealed Wisconsin’s former mining moratorium, the so-called “Prove It First” Law, now makes the process for application and approval of mining and prospecting permits similar to the process utilized for permits required of other environmental actions. It has created an opportunity for bulk sampling of a site prior to initiating mining activities, and it makes some additional mining-related changes regarding wetlands and the point of application for groundwater standards. The last major nonferrous metallic mining operation in Wisconsin, the Flambeau mine near Ladysmith, was closed in 1997, and, while it was the subject of more recent litigation regarding Clean Water Act violations in federal court in 2012 and 2013, it is considered reclaimed now by the DNR. The expectation is that this Act will provide a more well-defined path for the permitting process and long-term management for potential mining operations in Wisconsin, while still maintaining the environmental protections that Wisconsinites expect. It remains to be seen, now, whether this new law will spur mining operations in Wisconsin, as the law’s supporters have hoped.

The mining permitting process is a long and complicated process and requires a number of steps and approvals through the DNR. For more information about the permitting process, contact Axley.

For more information about "Recent Updates to Wisconsin’s Mining Law Have Taken Effect," contact Sean W. Frye, P.E. at sfrye@axley.com or 262.409.2287.