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The Truth About Iron Mining Legislation: Questions and Answers on Environmental Regulations

Published on February 1, 2013, 08:02am CDT

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Passage of comprehensive iron mining reform legislation has the opportunity to help create thousands of family-supporting jobs throughout Wisconsin, and improve the standard of living for an impoverished area of our state.  With so much at stake, voters deserve an honest and factual debate about the environmental aspects of the proposed legislation.

Anti-mining special interest groups have waged an ongoing campaign of misinformation, distortions and false statements with respect to the iron mining bill.  In an effort to promote an honest debate, we have provided factual answers to common questions about environmental protection under the bill. 

Does the bill lower or rollback Wisconsin’s environmental standards?

No.  The bill does not change any air quality standards (NR 404), water quality standards (NR 102) or groundwater/ drinking water quality standards (NR 140).  Each environmental permit the DNR considers under the bill would be measured against the exact same public health-based standards that are on the books today.  The bill would change environmental permitting processes, but not the underlying environmental health standards themselves.

What does the bill do to protect water bodies like lakes and streams?

The bill prohibits the DNR from issuing a permit to impact any navigable water body unless the proposed activity will not have a significant impact on (1) water quality; (2) public rights; (3) riparian rights; or (4) the flow capacity of a stream.  In addition, the bill authorizes the DNR to require that any impact be mitigated by increasing public access to up to 1.5 acres for each acre of navigable waterway impacted where necessary to meet the four conditions above – a requirement that does not exist under current law.

The bill could possibly allow the DNR to issue a permit, at their discretion, to fill in a large puddle, but only if each of the four conditions above were satisfied, including the requirement of no significant impact to public rights.  By contrast, the bill would not allow the DNR to issue a permit to fill-in a lake where public rights to fishing, navigation, recreation, etc. would be present.

Does the bill conform to public trust requirements?

Yes.  Great care was taken to ensure the bill conforms to constitutional public trust requirements, and preserve DNR’s duty to appropriately balance factors related to public rights in water bodies.  For example, the bill prohibits the DNR from issuing a permit to impact a navigable waterway if doing so would significantly impair public rights, and further authorizes the DNR to require that any such impacts to be mitigated.  The bill also prohibits the DNR from issuing a water withdrawal/pumping permit if doing so would significantly impair public rights.

Would the bill allow an applicant to fill-in a trout stream?

Absolutely not.  The bill would not allow the filling of a trout stream, nor would the company propose to do so.  The bill prohibits the DNR from issuing a navigable water permit that would significantly impair public rights or significantly reduce the effective flood flow capacity of a stream.  DNR would, therefore, be prohibited from issuing a permit to fill a trout stream.

How does the bill protect water quality from mining waste?

There are many provisions in the bill designed specifically to regulate mining waste to protect water quality.  For example, a mining waste site cannot be placed within 1,000 feet of a lake or within 300 feet of a stream.  DNR may authorize a shorter distance only if stringent water quality standards will be met.   Prior to mining, the bill also requires extensive and rigorous rock sampling to identify the geology and chemistry of mining waste, and ensure solutions are engineered for the safe disposal of all material.  Perhaps most significantly, the bill prohibits the DNR from issuing permits for mining waste disposal unless all surface and groundwater quality standards will be met.

What does the bill do to ensure groundwater/ drinking water is protected?

First and foremost, the bill requires applicants to meet all of the health-based standards for groundwater that exist under current law – there are no changes to those standards.  To ensure those water quality standards are met, the bill requires extensive monitoring to occur before mining begins, while mining is taking place, and after mining has ended.  To protect adjacent landowners, the bill requires monitoring to ensure water quality standards are met at the boundary of the mining site.

If a significant change to water quality is monitored, the bill requires an analysis and implementation of contingency measures, and the mine operator must follow the response determined to be necessary by the DNR in accordance with existing NR 140 requirements.  As an added measure of protection, the bill prohibits mining waste from being sited within 1,200 feet of a well used for drinking water purposes, and must monitor compliance with groundwater standards to a depth of 1,000 feet into the bedrock. 

What happens if there are sulfides present at the mining site?

Prior to submitting a waste disposal plan to the DNR for approval, the bill requires extensive soil and rock borings to perform a comprehensive chemical, radiological, physical and mineralogical analysis of each type of mining waste, including an analysis of their leaching potential.  An applicant must then tailor a waste disposal plan to account for the site-specific characteristics for the area in which mining will take place in order to protect groundwater and surface water from contamination.

If there are small amounts of sulfide in the overburden, that issue will be known before mining occurs, and the applicant will be required to engineer a disposal solution to ensure acidification does not happen.  The DNR may not grant a permit under the bill unless the applicant can demonstrate that disposal of all mining waste, including waste involving sulfides, can meet all applicable water quality standards for groundwater, surface water or wetlands.  As noted above, the bill requires extensive water quality monitoring before, during and after mining activity to ensure those standards continue to be met.

Would the bill allow an applicant to pump groundwater that would drain lakes or rivers?

No.  There are numerous protections in the bill to ensure public rights and navigable waterways are protected.  For example, the DNR may not issue a water withdrawal permit under the bill if it results in significant injury to public rights, or has a significant adverse impact on the ecosystem of the Great Lakes Basin.  An applicant must also demonstrate that a proposed withdrawal and use of water will not be significantly detrimental to the quantity and quality of the waters of the state, or the DNR may not grant a permit. A withdrawal that would drain lakes or rivers would not meet these requirements, and the DNR could not permit it to take place.

Does the bill exempt iron mining from the Great Lakes Compact regulations?

No.  The bill specifically states that the Great Lakes Water Resources Compact is the controlling body of law that applies to an iron mining project.

How does the bill protect water quality for wetlands?

Like current law, the bill requires an applicant to attempt to avoid or minimize any impact to wetlands.  For those impacts that cannot be avoided, the bill requires a permit before any wetland may be disturbed.  The bill maintains the “functional values” standards for wetlands that exist under current law, including protection from flooding, recharging groundwater, providing wildlife habitat and providing protection from shoreline erosion.  DNR considers these factors when determining whether to issue a permit, and may not issue a permit unless they certify that water quality will be protected.

In addition to the water quality certification for wetlands, the bill requires impacts to wetland functional values to be mitigated at a ratio up to 1.5 acres for each acre disturbed, with a preference toward mitigation occurring in an area within one-half mile of the mining site.  If on-site mitigation is not feasible, the DNR may allow mitigation to occur elsewhere, but it must be done in the area of the ceded territory of the Chippewa Indians.

Does the bill allow DNR the option of granting exemptions from certain requirements?

Like Wisconsin’s current mining law, the bill gives the DNR the discretion to grant exemptions, but only under very limited circumstances.  For example, the bill does not allow the DNR to exempt an applicant from environmental laws or standards outside of iron mining — like air quality, drinking water or water quality standards.  Nor can the DNR exempt an applicant from federal environmental quality standards or requirements.  Perhaps most importantly, the bill prevents the DNR from granting any exemption that would result in a significant environmental impact that cannot be offset.

What does the bill require for reclamation of the mining site?

The bill provides extensive reclamation requirements to protect the environment, consistent with current law.  For example, the bill requires all waste to be disposed in conformance with state and federal law, grading and stabilization must conform to state and federal environmental and safety standards, backfilling must be done such that groundwater standards will be met, underground and surface water runoff must be managed and treated in compliance with discharge and storm water management approvals, water must be adequately diverted and drained from the site to prevent erosion and contamination of surface water, and disturbed surface areas must be re-vegetated to minimize air and water pollution. 

What does the bill do to address long-term environmental protection at a mining site?

The bill requires extensive monitoring to occur long after mining has ended to ensure water quality standards continue to be met, as well as steps that must be taken if a change in water quality is detected.  In addition, the bill requires a bond in an amount sufficient to cover the cost of reclamation to be in place before any mining can begin, as does current law.  Like current law, the bill requires an applicant to demonstrate proof of financial responsibility for the long-term care and maintenance of the site after mining has ended.  Although that requirement terminates 40 years after the mine has closed, a mining operator remains forever liable for any environmental release that may occur in the future under the Wisconsin Spills Law (Chapter 292), including any release that occurs after the 40-year bond has been terminated.

Does the bill require applicants to work closely with regulators before submitting a permit?

Yes.  The bill requires a minimum 12-month pre-application process during which an applicant meets with environmental regulators to discuss the project and exchange information.  The process affords regulators an opportunity to better understand what is being proposed, and gives applicants detailed information about the data and other information that will need to be collected and compiled for a mining permit application.  The bill directs the DNR to work jointly with federal and local agencies to prepare the Environmental Impact Statement (EIS), allows DNR to sign agreements with federal agencies specifying responsibilities in the EIS process, and directs the DNR to serve as the lead agency for environmental review.

The bill also allows robust public participation in the permitting process by requiring a minimum of two public hearings, and by authorizing the DNR to hold as many additional hearings as the agency deems necessary.  In addition, each underlying environmental permit necessary for mining (air, water, wetland, etc.) has a public comment opportunity allowing citizens to provide input.  Finally, the bill provides for a contested case hearing after the DNR makes the permit decision, consistent with the approach in other environmental permits.

Is the timeline in the bill sufficient to allow the Environmental Impact Statement to be done?

Yes.  Work on the environmental impact report will begin during the 12-month pre-application period, even before the 420-day clock begins ticking.  Federal law (Council of Environmental Quality) directs federal agencies to work cooperatively with states to the fullest extent possible to avoid duplication, including doing a joint EIS, and indicates that the time period for preparing a final EIS should normally not exceed one year.  The bill’s 12-month pre-application process, along with the 420-day permit review period, should be more than adequate.

Does the bill allow the DNR to grant a mining permit that would harm public health?

No.  Under the bill, the DNR may not grant a mining permit if the project is likely to result in substantial adverse impacts to public health, safety or welfare.  The DNR is also required to deny a mining permit if the site is unsuitable for mining, or mining is reasonably expected to create irreparable substantial environmental damage.

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