REPEALING AND RECREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal and recreate Chapters NR 130, NR 131, NR 132 and NR 182 relating to nonferrous metallic mineral exploration, bulk sampling, prospecting and mining and nonferrous mining waste management. |
EA-14-18
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted: Wis. Stat. ch. 289 and 293, Stats. Chapter 293 regulates nonferrous metallic mining including exploration, bulk sampling, prospecting, mining, and reclamation activities. Chapters 289 and 293 regulate mining waste facilities, including requirements for long term care and financial assurance for mining waste sites. 2. Statutory Authority: Wis. Stats., §§ 293.13, 293.15, 293.21, 293.32; Wis. Stat. § 289.05(2) and (3); and Wis. Stat. § 227.11(2)(a). 3. Explanation of Agency Authority: Chapter 293, Stats., contains numerous provisions granting rule-making authority to the department including the following pertinent provisions as related to the proposed rule revisions.
293.13(1)(a) – The department is directed to adopt rules implementing and consistent with ch. 293.
293.13(1)(b) – The department is directed to establish, by rule, minimum qualifications for applicants for prospecting or mining permits.
293.13(2)(a) – The department is required to develop rules that adopt minimum standards for exploration, prospecting, mining and reclamation.
293.15(9) – The department is directed to write rules by which the department may grant exemptions, modifications or variances from any rule under chapter 293 or under chapters 289-292 as related to nonferrous mining waste.
293.15(10) – The department is directed to promulgate rules regarding minimizing, segregating, backfilling or marketing mining waste.
293.15(11) – The department is directed to develop rules establishing groundwater quantity and/or quality standards for any prospecting or mining site including standards for mining waste sites.
293.21 – The department is authorized to write rules pertaining to different aspects of metallic mineral exploration including license fees, drillhole fees, notifications and inspections and a procedure for bond release.
293.32(1) - The department is directed to establish application fees for proposed prospecting and mining projects.
293.35(1) and 293.37(1) – The department is authorized to establish requirements for applications for prospecting and for mining permits.
293.63 - the department is authorized to establish procedures for the release of reclamation bonds for prospecting sitesChapter 289, specifically s. 289.05(2) and (3), Stats., authorize the department to promulgate rules related to essentially all aspects of a metallic mining waste facility including the location, design, operation, closure and long-term care of such facilities. Section 289.05(2) requires the rules to be in accordance with any or all of the applicable provisions of ch, 289 and chs. 30 and 283, Stats. The proposed rules in ch, NR 182 are in accordance with multiple provisions in ch. 289 and the NR 500 series of administrative rules. The proposed rules also reference requirements in ch. 283 concerning the regulation of discharges of pollutants to waters of the state, including wastewater discharges regulated under s. 283.31 and stormwater discharges regulated under s. 283.33, Stats. Section 227.11(2)(a), Wis. Stats., authorizes the department to adopt rules interpreting the provisions of ch.293, Wis. Stats., if the department considers it necessary to effectuate the purpose of the statute. The department considers the rule changes necessary to effectuate the purpose of legislative changes made to chapters 289 and 293 since initial adoption of the rules. In compliance with s. 227.22(4), Wis. Stats., the department has reviewed 2017 Wisconsin Act 134 and has determined that rulemaking is necessary to address the statutory changes made by the legislature. The department is also proposing to revise rules that have been superseded or that require amendment due to prior legislative changes, including those related to financial responsibility for long term care of mining waste facilities, collection of prospecting and mining permit application fees, processing of modifications, information related to applicant compliance history and specific decision-making criteria. 4. Related Statutes or Rules: Chapter 295, Wis. Stats., applies to ferrous (iron) mining and contains provisions similar to those in the revised rules, particularly, chs. NR 130 and 132. In addition, a number of the rules in the ch. NR 500 series, applicable to solid waste facilities, contain provisions that are similar to requirements specified in proposed ch. NR 182. 5. Plain Language Analysis: The proposed rule repeals and recreates existing rules on exploration, prospecting, mining, and mining waste sites. The proposed rule has been reorganized to provide greater clarity and contains substantial portions of the existing rules when those provisions remain consistent with the current law. Proposed revisions to the existing rules are a result of passage of 2017 Wisconsin Act 134 including the following major changes:
Under Act 134, the department is required to determine, on a case-specific basis, the depth at which groundwater enforcement standards are applied. Act 134 establishes that an applicant must demonstrate the project will comply with groundwater quality standards for a period of 250 years following closure of the mining waste facility. Rule changes incorporate these concepts and provide technical clarification regarding how these determinations and demonstrations are made.
Act 134 created two new forms of financial assurance applicable to metallic mining operations. Chapters NR 132 and 182 have been revised to incorporate these new financial assurance mechanisms and provide a framework for determining the amount of the financial assurance related to anticipated repair and replacement of various pollution control design elements.
Act 134 created a new permitting criterion requiring the department to find that the proposed project will incorporate technology that will ensure compliance with applicable environmental protection laws and rules. The rules were revised to provide clarification as to how the department will make this determination and what information may be needed to support the department’s determination.
Act 134 made substantial changes to the permitting processes for mining and prospecting projects, including the preapplication notification process, and the rules were revised accordingly.
Act 134 creates regulatory processes and minimum standards related to bulk sampling projects including plan and bond submittals, approvals, licensing, inspections, enforcement and bond release requirements. Proposed rules were developed to implement the bulk sampling regulatory framework created in Act 134.
Act 134 includes provisions that either directly or indirectly repealed specific rule requirements including those related to regulation of mining activities near wetlands, and the irrevocable trust fund. Those provisions of the rules have been removed.In addition to changes necessary due to enactment of Act 134, the existing rules are also inconsistent with the statutes as amended by other statutory changes enacted since the inception if the rules in 1982. Rule changes to address these inconsistencies include:
Updating the prospecting and mining fee collection process so fee collection starts when a prospective applicant submits a preapplication notification. (1997 Act 169)
Updating the provisions by which the department review the compliance history of a prospective applicant to conforms with s. 293.37(2)(e), Wis. Stats. (1991 Act 260)
Revising the permit and plan modification process to be consistent with the procedures in s. 293.55, Wis. Stats. (1995 Act 225)
Revision of ch. NR 182 so it conforms with s. 289.41, Wis. Stats., which specifies the acceptable means of providing financial assurance for long-term care of mining waste facilities and requires owners of mining waste to maintain financial assurance for at least forty years following closure of the facility. (1995 Act 225)Additional rule changes are proposed to provide greater clarity and effectiveness to the rules based on past experience in implementing the rules over the past 35 years. Examples of these types of changes include:
More specificity has been added to ch. NR 131 and 132 regarding the process for assessing success and completion of reclamation under s. 293.63, Wis. Stats.
Additional criteria have been added to the rule to provide greater structure to the process related to issuance of the certificate of completion, the regulatory status of mining sites for which certificates of completion have been issued and the residual reclamation bond under s. 293.63, Wis. Stats.
Additional informational requirements have been added to ch. NR 182 as related to the feasibility report, plan of operation and construction documentation reports. In addition, a requirement to submit a detailed preconstruction report has been added to the rule.
Minimum requirements for conducting groundwater modeling assessments of proposed mining operations and mining waste facilities have been added to the rules.
The exploration licensing requirements and notification procedures in ch. NR 130 have been revised to require additional detail in the licensing and notification submittals and greater accountability by requiring ongoing licensing and reporting until all drillholes are properly terminated. 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations: While there is no nationwide regulatory program applicable to nonferrous metallic mining, the requirements specified in this set of administrative rules are similar to the requirements imposed by the U.S. Forest Service, U.S. Bureau of Land Management and other federal agencies in regard to mining and mining-related activities on lands under their management and control. The federal agencies review exploration and mining proposals for their economic and environmental feasibility and conduct technical reviews to ensure compliance with applicable federal laws including the National Environmental Policy Act, Endangered Species Act, Clean Water Act and Clean Air Act.
7. Comparison with Similar Rules in Adjacent States: Of the states bordering Wisconsin, Michigan and Minnesota are those that have comparable geology and potential for development of nonferrous metallic mineral mining of a type similar to that which has and could take place in Wisconsin. Michigan and Minnesota have each developed or revised their metallic mining regulations in the past 10-15 years in response to new mining development activity. The laws and rules in each of those states are comparable to the regulatory framework in place in Wisconsin and would be consistent with the proposed rule changes. While each state follows procedures that are unique to their state, the overall approaches are similar in that each requires extensive pre-permitting environmental analyses, thorough engineering and technical evaluations of the proposed project and demonstrated compliance with all applicable permitting criteria as part of the review and approval process for nonferrous metallic mineral mining projects.
Neither Illinois nor Iowa contain metallic mineral deposits similar to those identified in northern Wisconsin and therefore have not developed specific regulatory frameworks comparable to those in Wisconsin, Minnesota and Michigan. While both states, along with Wisconsin, experienced historic metallic mining activity as part of the Tri-state Upper Mississippi Valley lead/zinc mining district, there has been no metallic mining activity in either state for over forty years.
8. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen: The proposed rule revisions correct inconsistencies with controlling statutes, implement new statutory provisions, bring the rules up-to-date with current technologies and clarify existing rule provisions and procedures. There was not a need to evaluate factual data and analytical methods as a means to identify regulatory approaches. Rather, experienced department staff reviewed the existing rules to identify necessary changes and developed the preliminary drafts of the proposed rules.
9. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report: The projected increased costs, as a result of the proposed rule revisions, were developed by department staff by considering the cost implications as a result of the expanded documentation and reporting requirements and procedural changes specified in the revised rules. The staff estimates were provided to and discussed with a mining industry representative to determine if the estimate was reasonable. The department solicited comments on the draft economic impact analysis and received input from one commenter. The commenter provided general observations about the potential economic benefits of mining but did not provide any specific comments or concerns regarding the economic impact analysis of the proposed rule.
The economic impact analysis estimates that the proposed rule revisions could increase costs for a typical proposed mining project by about $502,000, beginning at the start of exploration activities and continuing through the life of the mining project. The potential cost increases include: $20,900 (exploration), $22,000 (bulk sampling), $30,000 (mining permit application), $414,000 (mining waste facility approval) and $15,000 (additional review fees paid to the department). The increased costs related to the mining waste facility regulated under ch. NR 182 are a result of provisions in the proposed rule that would require an applicant to provide additional detail regarding design and construction of the waste facility as part of documents required for approval and licensing of the facility. The added detail and reports are consistent with requirements the department has previously imposed on mining waste facilities as conditions of approval and are also consistent with requirements applied to engineered solid waste facilities, also regulated under ch. 289, Stats. 10. Effect on Small Business (initial regulatory flexibility analysis):
The proposed rule changes are not expected to result in a significant economic impact on small businesses. Given the capital-intensive nature of metallic mineral exploration and mining project development, such activities have generally not been conducted by small businesses. Since the department began regulating these activities in the late 1970’s, the vast majority of companies engaged in exploration and all of the companies pursuing mining permits in this state have been large corporations.
11. Agency Contact Person: Larry Lynch, Wisconsin DNR – EX/7, P.O. Box 7921, Madison, WI 53707. Lawrence.lynch@wisconsin.gov. (608)267-0869. The consent of the Attorney General was received on January 22, 2021, for the incorporation by reference of two specific technical resource documents. Section NR 182.1095(2)(c), Wis. Adm. Code, includes a reference to ASTM method D5321, which specifies testing protocols for evaluating installation of specific geosynthetic materials. Section NR 182.113(2)(g), Wis. Adm. Code, refers to a U.S. EPA document (Test Methods for Evaluating Solid Waste, Physical/Chemical Methods," EPA Publication SW 846, third edition, November 1986, as amended by Updates I in July 1992, II in September 1994, IIA in August 1993, IIB in January 1995, III in December 1996 and IIIA in April 1998) specifying testing methods applicable to groundwater, lysimeter, and leachate sampling. Section 1 Chapter NR 130 is repealed and recreated to read:
NONFERROUS METALLIC MINERAL EXPLORATION AND BULK SAMPLING
SUBCHAPTER I - NONFERROUS METALLIC MINERAL EXPLORATION
NR 130.101 Purpose. The purpose of this subchapter is to establish licensing and notice procedures and ensure compliance with minimum standards for nonferrous metallic mineral exploration in this state.
NR 130.102 Applicability. The provisions of this subchapter are applicable to all nonferrous metallic mineral exploration as defined in s. NR 130.103 (8). This subchapter does not apply to operators engaged in exploration on lands included in a mining and reclamation plan approved as part of a mining permit issued under s. 293.49, Stats., if the plan contains provisions relating to termination of the exploration activities. NR 130.103 Definitions. In this chapter:
(1) “Abandonment" means filling or sealing a drillhole in accordance with the procedures specified in s. NR 130.111. (2) “Concrete grout" means a mixture consisting of 94 pounds of cement, sand and water meeting the material specifications of s. NR 812.20 (1) (b). (3) “Department" means department of natural resources.
(4) “Driller" means a person who performs core, rotary, percussion, or other drilling involved in exploration for nonferrous metallic minerals.
(5) “Drilling mud” means a fluid mixture of water, drill cuttings and drilling additives approved by the department.
(6) “Drilling site" means the area disturbed by exploration including the drillhole, drill pad, sumps, staging areas, and access roads.
(7) “Explorer" means any person who engages in exploration or who contracts for the services of drillers for the purpose of exploration.
(8) “Exploration" means the on-site geologic examination from the surface of an area by core, rotary, percussion, or other drilling, where the diameter of the hole does not exceed 18 inches, for the purpose of searching for nonferrous metallic minerals or establishing the nature of a known nonferrous metallic mineral deposit and includes associated activities such as clearing and preparing drilling sites and constructing access roads. For the purposes of the definition of exploration, geologic examination does not include drillholes constructed for the purpose of collecting soil samples, conducting geophysical surveys or groundwater investigations, or determining radioactivity by means of placement of radiation-sensitive devices.
