Chapter 295

295.635(10) (10) Applicability. This section does not apply to a surface mine that is backfilled with mining waste.

295.635 History History: 2013 a. 1.

295.64 295.64 Mining site monitoring; general.

295.64(1) (1) General. The department, as a condition of a mining permit, shall require the operator to perform adequate monitoring of environmental changes during the course of the mining and for the additional period of time that is necessary to satisfactorily complete reclamation and completely release the operator from any bonds or other security required. The department may monitor environmental changes concurrently with the operator and for an additional period after the security is released.

295.64(2) (2) Analyses.

295.64(2)(a) (a) The department shall review baseline water quality data with respect to groundwater and monitoring data associated with the mine, mining waste sites, and sites for the disposal of wastes that are not mining wastes at the time of each review of the mining permit or reclamation plan under s. 295.63 (3) and when the operator requests a modification of the mining permit or reclamation plan.

295.64(2)(b) (b) An operator shall have bacteriological analyses of water samples and all radiological analyses associated with the mining site performed by the state laboratory of hygiene or at a laboratory certified or approved by the department of health services. An operator shall have other laboratory tests the results of which are submitted to the department under this subchapter performed by a laboratory certified or registered under s. 299.11, except that this requirement does not apply to any of the following:

295.64(2)(b)1. 1. Physical testing of soil.

295.64(2)(b)2. 2. Air quality tests.

295.64(2)(b)3. 3. Tests for hydrogen ion concentration (pH).

295.64(2)(b)4. 4. Tests for chlorine residual.

295.64(2)(b)5. 5. Tests for temperature.

295.64 History History: 2013 a. 1.

295.643 295.643 Mining waste site monitoring.

295.643(1) (1) General. The department may require the monitoring of groundwater, surface water, leachate, or other physical features associated with a mining waste site.

295.643(2) (2) Physical features. The department may require the monitoring of air quality, berms, embankments, vegetation growth, and drainage control structures associated with the mining waste site. The department may require monitoring of other chemical or biological conditions, if the department determines that the monitoring is necessary to assess the impact of the mining waste site on critical aquatic and terrestrial ecosystems.

295.643(3) (3) Monitoring wells and other devices.

295.643(3)(a) (a) The department shall require the installation of groundwater monitoring wells at a mining waste site. The department may require installation of leachate monitoring wells, lysimeters, moisture probes, and similar devices and associated water quality sampling and analysis programs to detect the effects of leachate on groundwater.

295.643(3)(b) (b) The department shall determine the required number of groundwater monitoring wells based on the size of the mining waste site, the design of the mining waste site, the types of mining waste, and the hydrologic and geologic setting of the mining waste site. The department shall ensure that the number of wells is adequate to yield samples representative of the groundwater quality both up gradient and down gradient of the mining waste site.

295.643(3)(c) (c) An operator shall construct all monitoring wells in accordance with ch. NR 141, Wis. Adm. Code, and in such a manner as to prevent, to the extent practicable, the exchange of water between aquifers.

295.643(4) (4) Destruction of monitoring devices.

295.643(4)(a) (a) If for any reason a monitoring well or other monitoring device associated with a mining waste site is destroyed or otherwise fails to function properly, the operator shall notify the department in writing within 5 days of discovering the destruction or malfunction.

295.643(4)(b) (b) The operator shall either restore the monitoring well or other device or properly abandon it and replace it with a functioning device within 60 days of notifying the department under par. (a) unless the department notifies the operator otherwise in writing within 30 days of receiving notice from the operator.

295.643(5) (5) Sampling other wells. The department may require an operator to sample public or private wells as part of a regular monitoring program or to determine the extent of groundwater contamination associated with a mining waste site. If the owner of a well does not authorize access for sampling, the operator shall promptly notify the department.

295.643(6) (6) Required monitoring and analysis.

295.643(6)(a) (a) An operator shall monitor groundwater at locations identified in the waste site feasibility study and plan of operation on a quarterly basis, during March, June, September, and December, unless the department agrees to an alternate schedule. The department may base an alternate schedule on the hydrogeologic system’s characteristics, such as flow velocity and stratigraphy, and on fluctuations in quality as determined through background water quality or baseline water quality sampling and mining waste type. The operator shall analyze for the parameters listed in the approved waste site feasibility study and plan of operation.

295.643(6)(b) (b) An operator shall use the methods for groundwater and surface water sample collection, preservation, and analysis that are specified in the approved mining waste site facility study and plan of operation.

295.643(7) (7) Water elevation measurements. The operator shall make water elevation measurements on a quarterly basis.

295.643(8) (8) Operations report. The department may require an operator to submit an operations report to assess the effectiveness and environmental acceptability of mining waste site operations. The operator may include in the report a discussion of confinement of the active fill area and an analysis of leachate and other monitoring, surface water control and erosion control, revegetation, settlement, volume of the mining waste site utilized, leachate quantity and quality, slope stability, equipment performance, volume and type of waste disposed of, and other relevant parameters.

295.643(9) (9) Reports of monitoring data. The operator shall forward to the department, within 60 days after sampling, 3 copies of the monitoring data required by this section to be collected during each quarter.

295.643 History History: 2013 a. 1.

295.645 295.645 Groundwater quality, monitoring, and response.

295.645(1) (1) Definitions. In this section:

295.645(1)(a) (a) “Alternative concentration limit” means the concentration of a substance in groundwater established by the department to replace a groundwater quality standard when the department grants an exemption.

295.645(1)(b) (b) “Statistically significantly different” means an amount of change determined by the use of statistical tests for measuring significance at the 95 percent confidence level.

295.645(2) (2) Design management zone.

295.645(2)(a) (a) Notwithstanding the rule-making authority in s. 160.21 (2) and except as provided under par. (b), for the purposes of ch. 160, the horizontal distance to the boundary of the design management zone for a mining operation is 1,200 feet from the limits of the engineered structures of the mining waste site, including any wastewater and sludge storage or treatment lagoons, the edge of the mine, and the adjacent mine mill and ferrous mineral processing facilities or at the boundary of the property owned or leased by the applicant or on which the applicant holds an easement, whichever distance is less.

295.645(2)(b) (b) When issuing or modifying a mining permit or issuing or reissuing any other approval, the department may reduce the design management zone by a horizontal distance of not more than 600 feet. The department may not reduce the design management zone unless the department determines that preventive action limits and enforcement standards or alternative concentration limits will be met at the boundary of the reduced design management zone. The department shall consider the following factors in determining whether to reduce the design management zone:

295.645(2)(b)1. 1. Nature, thickness, and permeability of unconsolidated materials, including topography.

295.645(2)(b)2. 2. Nature and permeability of bedrock.

295.645(2)(b)3. 3. Groundwater depth, flow direction, and velocity.

295.645(2)(b)4. 4. Waste volume, type, and characteristics.

295.645(2)(b)5. 5. Contaminant mobility.

295.645(2)(b)6. 6. Distances to the property boundary and surface waters.

295.645(2)(b)7. 7. Engineering design of the facility.

295.645(2)(b)8. 8. Life span of the facility.

295.645(2)(b)9. 9. Present and anticipated uses of land and groundwater.

295.645(2)(b)10. 10. Potential abatement options if an enforcement standard is exceeded.

295.645(2)(c) (c) Notwithstanding the rule-making authority in s. 160.21 (2), for the purposes of ch. 160, the vertical distance to the boundary of the design management zone for a mining site, including any mining waste site, extends no deeper than 1,000 feet into the Precambrian bedrock or than the final depth of the mining excavation, whichever is greater.

295.645(2)(d) (d) An operator shall monitor groundwater quality at locations approved by the department along the boundary of the design management zone and within the design management zone.

295.645(3) (3) Point of standards application.

295.645(3)(a) (a) Any point at which groundwater is monitored is a point of standards application to determine whether a preventive action limit or an alternative concentration limit to a preventive action limit has been attained or exceeded for an activity regulated under a mining permit or another approval related to the mining operation. Any of the following is a point of standards application to determine whether an enforcement standard or an alternative concentration limit to an enforcement standard has been attained or exceeded for an activity regulated under a mining permit or another approval related to the mining operation:

295.645(3)(a)1. 1. Any point of present groundwater use.

295.645(3)(a)2. 2. Any point beyond the boundary of the property on which the activity is conducted, subject to par. (b).

295.645(3)(a)3. 3. Any point that is within the boundary of the property on which the activity is conducted but is beyond the design management zone, subject to par. (b).

295.645(3)(b) (b) No point at a depth of greater than 1,000 feet into the Precambrian bedrock or than the final depth of the mining excavation, whichever is greater, is a point of standards application under this subsection.

295.645(3)(c) (c) Section 160.21 (2) does not apply to an activity regulated under this subchapter.

295.645(4) (4) Change in groundwater quality. If the analysis of samples collected through monitoring indicates that the quality of groundwater is statistically significantly different from either baseline water quality or background water quality and the evaluation of the data shows a reasonable probability that without intervention groundwater quality standards or alternative concentration limits will be attained or exceeded, the operator shall do all of the following:

295.645(4)(a) (a) Notify the department within 10 days after the operator receives the results of the analysis of the samples.

295.645(4)(b) (b) Determine, if possible, the cause of the difference in water quality, such as a spill, a design failure, or an improper operational procedure.

295.645(4)(c) (c) Determine the extent of groundwater contamination or the potential for groundwater contamination.

295.645(4)(d) (d) Implement the applicable portions of the approved contingency plan.

295.645(5) (5) Response concerning preventive action limits. In accordance with s. NR 140.24 (1) to (5), Wis. Adm. Code, the department shall evaluate the range of responses proposed by the operator when a preventive action limit or an alternative concentration limit to a preventive action limit is attained or exceeded and the analysis of samples indicates that the quality of groundwater is statistically significantly different from either baseline water quality or background water quality at a point of standards application. In designating the appropriate response, the department shall evaluate the operator’s proposed range of responses, including any alternate responses to those identified in s. NR 140.24, Wis. Adm. Code. For any alternate responses, the department shall consider the technical and economic feasibility of alternate responses, the practicality of stopping the further release of the substance, and the risks and benefits of continued mining operations. The department shall designate the appropriate response, except that, notwithstanding s. 160.21 (3) and the rule-making authority under s. 160.21 (1), the department may not prohibit a practice or activity or require closure and abandonment of a mining waste site, including any wastewater and sludge storage or treatment lagoon, unless it has followed the procedures in s. 295.78 and satisfies the requirements of s. 160.23 (4) and (6). The department may determine that no response is necessary and that an exemption is not required when the requirements of s. NR 140.24 (5) (a) or (b), Wis. Adm. Code are met.

295.645(6) (6) Response concerning enforcement standards.

295.645(6)(a) (a) In accordance with s. NR 140.26 (1) and (2), Wis. Adm. Code, the department shall evaluate the range of responses proposed by the operator based on the responses listed in Table 6 of s. NR 140.26, Wis. Adm. Code, when an enforcement standard or an alternative concentration limit to an enforcement standard is attained or exceeded and the analysis of samples indicates that the quality of groundwater is statistically significantly different from either baseline water quality or background water quality at a point of standards application. In designating the appropriate response, the department shall evaluate the operator’s proposed range of responses against those identified in Table 6 of s. NR 140.26, Wis. Adm. Code. The department shall designate the appropriate response, except that, notwithstanding ss. 160.21 (3) and 160.25 (1) (a) and the rule-making authority under s. 160.21 (1), the department may not prohibit a practice or activity or require closure and abandonment of a mining waste site, including any wastewater and sludge storage or treatment lagoon, unless it has followed the procedures in s. 295.78 and all of the following apply:

295.645(6)(a)1. 1. The department bases its decision upon reliable test data.

295.645(6)(a)2. 2. The department determines, to a reasonable certainty, by the greater weight of the credible evidence, that no other remedial action would prevent the violation of the enforcement standard at the point of standards application.

295.645(6)(a)3. 3. The department establishes the basis for the boundary and duration of the prohibition.

295.645(6)(a)4. 4. The department ensures that any prohibition imposed is reasonably related in time and scope to maintaining compliance with the enforcement standard at the point of standards application.

295.645(6)(a)5. 5. If the substance involved is naturally occurring, unless the substance involved is carcinogenic, teratogenic, or mutagenic in humans, the department considers the existence of the background concentration of the substance in evaluating response options to the noncompliance with the enforcement standard or alternative concentration limit for that substance and determines that the proposed prohibition will result in the protection of or substantial improvement in groundwater quality notwithstanding the background concentrations of the substance.

295.645(6)(b) (b) The department may only require a remedial action to be taken if the remedial action is reasonably related in time and scope to the substance, activity, or practice that caused the enforcement standard or alternative concentration limit to an enforcement standard to be attained or exceeded and the quality of groundwater to be statistically significantly different from either baseline water quality or background water quality at the point of standards application.

295.645(6)(c) (c) If nitrates or any substance of welfare concern attains or exceeds an enforcement standard and if the analysis of samples indicates that the quality of groundwater is statistically significantly different from either baseline or background water quality, then the department shall evaluate whether the enforcement standard was attained or exceeded in whole or in part due to high background water quality concentrations of the substance and whether the additional concentrations represent a public welfare concern before it designates the appropriate response and, notwithstanding ss. 160.21 (3) and 160.25 (1) (a) and the rule-making authority under s. 160.21 (1), the department may not prohibit a practice or activity or require closure and abandonment of a mining waste site, including any wastewater and sludge storage or treatment lagoon, unless it has followed the procedures in s. 295.78 and par. (a) 1. to 4. apply.

295.645(6)(d) (d) If compliance with an enforcement standard is achieved at a point of standards application, then sub. (5) applies.

295.645(6m) (6m) Mandatory intervention boundary for mining waste site and mine.

295.645(6m)(a) (a) Except as provided under par. (am), the horizontal distance to the mandatory intervention boundary for a mining waste site is 300 feet from the outer waste boundary or the outer edge of the excavation, unless the boundary of the design management zone is within 600 feet of the outer waste boundary or the outer edge of the excavation, in which case the mandatory intervention boundary is one-half the distance from the outer waste boundary or the outer edge of the excavation to the boundary of the design management zone.

295.645(6m)(am) (am) The department may reduce the mandatory intervention boundary under par. (a) by a horizontal distance of up to 150 feet if the department determines that the reduction is necessary to adequately identify and respond to potential groundwater quality issues.

295.645(6m)(b) (b) An operator shall monitor groundwater quality at locations approved by the department along the mandatory intervention boundary, except for any portion of the mandatory intervention boundary that is within another mandatory intervention boundary, and within the mandatory intervention boundary. When approving locations for monitoring, the department shall ensure that duplicative monitoring is not required within overlapping mandatory intervention boundaries.

295.645(6m)(c) (c)

295.645(6m)(c)1. 1. Notwithstanding sub. (5), if a preventive action limit or an enforcement standard has been exceeded beyond the mandatory intervention boundary, the department shall require a response in accordance with s. NR 140.24, Wis. Adm. Code, except that s. NR 140.24 (5), Wis. Adm. Code, does not apply.

295.645(6m)(c)2. 2. If sampling results indicate that an enforcement standard or a preventive action limit has been exceeded within, but not beyond, the mandatory intervention boundary and a comparison of sampling results to the results of modeling indicates that the sampling results are consistent with the design and expected performance of the mining waste site, the operator may recommend a no response action, and the department may approve a no response action if that is authorized under s. NR 140.24 (5), Wis. Adm. Code.

295.645(7) (7) Environmental analysis not required. An action under sub. (5) or (6) with respect to a specific site does not constitute a major state action under s. 1.11 (2).

295.645(8) (8) Exemptions to groundwater quality standards. When issuing or modifying a mining permit or issuing or reissuing any other approval, the department may grant an exemption from a groundwater quality standard and establish an alternative concentration limit to a groundwater quality standard.

295.645(9) (9) Applicability of other law. Chapter NR 140, Wis. Adm. Code, applies to mining operations and mining sites, including mining waste sites, only to the extent that it does not conflict with this section.

295.645 History History: 2013 a. 1.

295.65 295.65 Successors.

295.65(1) (1) When one operator succeeds to the interest of another in an uncompleted mining operation by sale, assignment, lease, or otherwise, the department shall release the first operator from the duties imposed upon the first operator by this subchapter as to the mining operation and transfer the mining permit and any approvals under ss. 295.60, 295.605, and 295.61 to the successor operator if all of the following apply:

295.65(1)(a) (a) The successor operator agrees to comply with the requirements of this subchapter.

295.65(1)(b) (b) The successor operator discloses whether it has forfeited any performance security because of noncompliance with any mining laws within the previous 10 years, posts any bond or other security required under s. 295.59, and assumes all responsibilities of all applicable approvals granted to the predecessor operator.

295.65(2) (2) The department is not required to prepare an environmental impact statement or an environmental assessment for the purposes of this section.