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1 Wisconsin’s “Tough” Mining Laws and Rules, and how they compare to 2011 Assembly Bill 426 A Supplement to Analyses of AB 426 done by the Wisconsin Legislative Reference Bureau (Exhibit A) and the Wisconsin Legislative Council (Exhibit B) Laura Gauger, February 20121 Wisconsin Statute or Rule Number2

What it Says Where to find Docu-mentation

What AB 426 Says

Background Information: Wisconsin’s Weak Set of Mining Statutes and Rules that are Currently on the Books Chapter 293, Wisconsin Statutes (Metallic Mining)

Chapter 293 of the Wisconsin Statutes (Metallic Mining) is the primary chapter of Wisconsin law currently regulating metallic mineral exploration, prospecting, mining and reclamation. The law originally was enacted in 1973 as the Metallic Mining Reclamation Act (Wis. Stats. 144.80-144.94). Key amendments to the law were adopted in 1977 (1977 AB 1045) and 1981 (1981 AB 800) to facilitate mining in the state. In 1995 the Wisconsin Legislature renumbered Wisconsin’s mining laws, so the provisions of the Metallic Mining Reclamation Act are now found in Chapter 293, Wisconsin Statutes. Specific provisions of Chapter 293 are discussed below as separate entries to the table.

Chapters 27, 30 and 36, The Buzzards Have Landed!

While Chapter 293 of the Wisconsin Statutes currently applies to both nonferrous and iron mining, the Bill exempts iron mining from having to comply with the chapter’s requirements. Indeed, the Bill includes a provision to change the title of Chapter 293 from “Metallic Mining” to “Nonferrous Metallic Mining” (AB 426, p. 34, line 2) and changes the Chapter 293 definitions of “mineral exploration,” “mining,” and “prospecting” to include only nonferrous metallic minerals (AB 426, pp. 34-35). The Bill proposes that the new set of laws, specific to iron mining, be placed in existing Chapter 295 of the Wisconsin Statutes (Nonmetallic Mining Reclamation; Oil and Gas”) as “Subchapter III – Ferrous Metallic Mining.” (AB 426, p. 40, lines 24-25 and p. 41, lines 1-3).

2 Chapter 160, Wisconsin Statutes (Groundwater Protection Standards)

Chapter 160 of the Wisconsin Statutes (Groundwater Protection Standards) is the primary chapter of Wisconsin law regulating groundwater pollution. The title of Chapter 160 is “Groundwater Protection Standards,” but it might be more appropriate to call it “Groundwater Pollution Standards,” since the law greatly weakened standards that had been set to protect groundwater quality. Chapter 160 had its origins in 1983 AB 595, a bill that was drafted with the assistance of Exxon lobbyist James Derouin. The new law abandoned Wisconsin’s previous non-degradation standard for groundwater. Instead it established a framework for allowing pollution to occur up to arbitrary limits known as Maximum Contaminant Levels (MCLs) – at which point water is on the verge of being unfit to drink. In addition, s.160.19 and s.160.21 authorize the DNR to write flexible rules to implement the law rather than requiring the department to enforce the already weakened standards. When the law was enacted by the Wisconsin Legislature in 1984, it became legal for anybody in the State of Wisconsin to pollute groundwater to MCL limits. In addition, s. 160.19(12) made mining companies exempt from having to comply with any of the requirements of Chapter 160. As a result, the mining industry is exempt from having to follow even the weakened terms of Wisconsin’s groundwater protection law. Prior to the early 1980s, the DNR had taken a hard stand on upholding the state’s non-degradation standard, as clearly shown in a brochure developed by the Department sometime before July 1981, entitled “Drinking Water Standards … Not Good Enough for Wisconsin’s Groundwater” (Exhibit C). The DNR and Wisconsin Legislature need to be reminded of these words, which reflect the truth of the situation. Specific provisions of Chapter 160 are discussed below as separate entries to the table.

Chapters 34 and 45, The Buzzards Have Landed!

The Bill amends Chapter 160, Wisconsin Statutes to specifically exempt both nonferrous and iron mining from having to comply with the requirements of Wisconsin’s groundwater law (AB 426, page 31, lines 19-22).

3 Chapter 289, Wisconsin Statutes (Solid Waste Facilities)

Chapter 289 of the Wisconsin Statutes (Solid Waste Facilities) is the primary chapter of Wisconsin law currently regulating all solid waste facilities in the state, including, as specified in s. 289.01(4), any “approved facility which is part of a mining site, as defined under s. 293.01(12), used for the disposal of waste resulting from mining, as defined under s. 293.01(9), or prospecting, as defined under s. 293.01(18).” Key provisions of Chapter 289 were enacted in the early 1980s (1981 AB 936) under the guise of “consensus,” but the influence of James Derouin (Exxon lobbyist and attorney) and James Morgan (lobbyist for Waste Management, Inc., one of the largest landfill companies in the country) is clearly evident. Specific provisions of Chapter 289 are discussed below as separate entries to the table.


The Bill exempts iron mining from following most of the provisions of Wisconsin’s Solid Waste Facilities Law (Chapter 289, Wisconsin Statutes) and rules. Specifically, the Bill states: “Subchapters I to V and VII of ch. 289 and rules promulgated under those subchapters do not apply to a mining waste site, to the disposal of mining waste in a mining waste site, or to mining wastes used in the reclamation or construction of facilities and structures on the mining site” (AB 426, page 106, lines 20-23). Instead, iron mining waste is only subject to the regulations specified in AB 426.

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Chapter 291, Wisconsin Statutes (Hazardous Waste Management)

Chapter 291 of the Wisconsin Statutes (Hazardous Waste Management) is the primary chapter of Wisconsin law currently regulating the disposal of hazardous waste. Key provisions of Chapter 291, Wisconsin Statutes were enacted in the early 1980s (1981 AB 936) under the guise of “consensus,” and several sets of administrative rules for the management of hazardous waste were adopted in 1991 (Chapters NR 600 and 605, Wisconsin Administrative Code, later renumbered to Chapters NR 660 and 661). The influence of the mining industry on these statutes and rules is clearly evident. In particular, metallic mines were made exempt from the requirements of Chapter 291 and the corresponding administrative rules, even if the waste contains toxic substances like cyanide. Specific provisions of Chapter 291 and NR 661 are discussed below as separate entries to the table.


The Bill exempts iron mining from following the provisions of Wisconsin’s Hazardous Waste Management Law (Chapter 291, Wisconsin Statutes) and rules (chs. NR 660 to 669, Wisconsin Administrative Code), no matter what the mining waste contains, even if it is cyanide. Instead, the Bill states that the disposal of any mining waste identified as hazardous is subject to the provisions of AB 426, “except as necessary to comply with applicable federal regulations adopted under the federal Resource Conservation and Recovery Act, 42 USC 6901 to 6991m.” See AB 426, p. 86, lines 18-22 and p. 182, lines 5-15 for the Hazardous Waste Law /Rule exemption for iron mining.

4 Wisconsin Administrative Code: NR 130 (Metallic Mineral Exploration) NR 131 (Metallic Mineral Prospecting) NR 132 (Metallic Mineral Mining) NR 182 (Metallic Mining Wastes) NR 660, (Hazardous Waste Management) NR 661, (Hazardous Waste Identification and Listing)

Current mining and waste facility regulations in Wisconsin consist of a combination of statutes (found in the Wisconsin Statutes) and rules developed to implement those statutes (found in the Wisconsin Administrative Code). See Exhibit D for an essay entitled, “The Difference Between State Statutes and Administrative Rules”). In terms of Metallic Mining regulations, Chapter NR 130, Wisconsin Administrative Code was created in 1979. In addition, Chapters NR 131, 132 and 182 were created in 1981 under the guise of “consensus.” Citizens from proposed mining areas were not included in the “consensus process.” Rather, the negotiators included:

1. representative of the mining industry (Exxon lobbyist James Derouin, Kennecott lobbyists Steve Braden and James Wimmer, and Inland Steel lobbyists James Ludwig and Jeffrey Bartell);

2. Wisconsin Public Intervenor Peter Peshek (who later joined Exxon’s law firm in Madison, WI);

3. a representative of an environmental group called Wisconsin’s Environmental Decade (Kathleen Falk); and

4. various DNR officials. Citizens were not pleased with the regulations drawn up by the “consensus lawyers” and voiced their disapproval. Even the Wisconsin Water Well Association went on record against the proposed rules, but to no avail.4 The Wisconsin DNR adopted NR 131, NR 132 and NR 182 in March 1982. In terms of Solid Waste Management regulations, Chapters NR 500-555 of the Wisconsin Administrative Code address solid waste management issues. In terms of Hazardous Waste Management regulation, Chapters NR 660-679, Wisconsin Administrative Code, address hazardous waste management issues. Specific provisions of various existing administrative rules for mining are discussed below as separate entries to the table.


The Bill cuts the Wisconsin Administrative Code out of the entire regulatory process for iron mining. First, it does not require any new administrative rules to be written for implementation of the proposed iron mining law. In other words, standards for iron mining and for the reclamation of iron mining sites will lie solely in the new section of the Wisconsin Statutes created by the Bill (Chapter 295, Subchapter III), and there will be no attendant administrative rules. According to the Wisconsin Legislative Reference Bureau: “The standards in the bill are similar in many respects to DNR’s currents rules and are less stringent in other respects.”3 Besides not creating any new administrative rules for the implementation of the iron mining law, the Bill calls for existing rules (for example, Chapters NR 130-132 and 182 of the Wisconsin Administrative Code) to be amended to exempt iron mining from their purview. See AB 426, p. 181, lines 18-25 and p. 182, lines 1-15 for the various exemptions to existing administrative rules given to the iron mining industry.

5 Wisconsin’s Weak Groundwater Protection Laws Wis. Stat. 160.19(12)

As discussed above, mining companies are exempt from following the requirements of Wisconsin’s groundwater protection law (Chapter 160, Wisconsin Statutes).

Chapter 45, The Buzzards Have Landed!

The Bill amends §160.19(12) to specifically exempt both nonferrous and iron mining from following the provisions of Wisconsin’s groundwater protection law (AB 426, page 31, lines 19-22).

Wis. Stat. 293.15(11)

Wis. Stat. 293.15(11) empowers the DNR to write flexible groundwater rules specific for any metallic mining activity or metallic mining waste site instead of requiring the mining industry to follow the state’s groundwater protection law. This resulted in the creation of NR 182.075, Wisconsin Administrative Code, in 1981 (see next entry)


The Bill does not change the wording of §293.15(11), but it “modifies the current laws regulating metallic mining so that they cover only mining for nonferrous minerals.”3 This includes Chapter 293 of the Wisconsin Statutes, so s. 293.15(11) in and of itself will no longer apply to iron mining. As discussed above, the Bill does not require any new rules to be written for implementation of the proposed iron mining law. Instead, the Bill calls for existing rules, including those found in Chapter NR 182, Wisconsin Administrative Code, to be amended to exempt iron mining from their purview.

NR 182.075

Per the terms of NR 182.075, mining companies can pollute the groundwater beneath a mine site and up to 1200 feet from the edge of a mine site (or at the boundary of the property owned or leased by the applicant, whichever is less) to no limit. This area is known as the Design Management Zone (DMZ). There are no limits on the amount of groundwater pollution allowed within this area, which may easily encompass several square miles and have rivers running through it (like what happened at the Flambeau Mine site, where the Flambeau River runs through the DMZ). Under current

Chapters 34, 35, 36, 69, 98 and 125, The Buzzards Have Landed!

The Bill calls for existing rules, including those found in Chapter NR 182, Wisconsin Administrative Code, to be amended to exempt iron mining from their purview. Instead, iron mining is only to be subject to regulations specifically included in the Bill. The Bill does call for the creation of a 1200-foot Design Management Zone at iron mine

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rules, the “DNR may reduce the horizontal distance to the boundary of the DMZ … but may not expand it.”5 Beyond the 1200-foot Design Management Zone (previously known as the compliance boundary), a mining company can pollute private wells up to the Maximum Contaminant Levels (MCLs) specified in the federal drinking water standards, even though water of MCL quality is on the verge of being unfit to drink. Plus, there is no limit as to how far the pollution can extend beyond the 1200-foot design management zone, and the DNR can grant exemptions to allow the MCLs to be exceeded! “Currently, for metallic mining waste sites and metallic mines, in addition to the DMZ, DNR’s rules provide for a mandatory intervention boundary that is 150 feet from the outer waste boundary or the edge of the mine [NR 182.075(1)(c)]. Under the rules, if a preventive action limit [PAL] or an enforcement standard [MCL] is exceeded beyond the mandatory intervention boundary, DNR must require a response by the operator.”4 Unfortunately, however, the DNR has a wide range of “responses” at its disposal that fall short of remediation.6

sites (AB 426, p. 163, lines 7-14). However, the Bill allows the horizontal distance of the zone to be doubled to 2,400 feet (AB 426, p. 163, lines 15-23 and p. 164, lines 1-3)! As stated in the analysis of AB 426 provided by the Wisconsin Legislative Reference Bureau, “DNR may not reduce the horizontal distance to the boundary of the DMZ on a metallic mining site but may expand it by an additional 1200 feet in any direction.”5 Doubling the horizontal distance of the DMZ is of no small significance. All you have to do is look at a diagram of the Flambeau Mine compliance boundary (Exhibit E) that encompasses about 535 acres and picture the allowable pollution zone extending out twice as far! This is especially tragic because pollution levels are unacceptably high in the mine’s backfilled pit (see graphs included as Exhibits F1 and F2) and Flambeau Mining Company has predicted it will take 3,000 to 4,000 years for the sulfate and metals levels in the water in the backfilled pit to return to normal. In other words, the water has been polluted forever, and that’s with the current set of mining regulations! Besides weakening DMZ requirements, the Bill fails to provide for a mandatory intervention boundary (currently required in DNR rules for metallic mines).

7 Wis. Stats. 281.75 (17)(b)

In the Wisconsin Statutes, Subchapter VI of Chapter 281 (Water and Sewage) provides for compensation to owners of wells that have become contaminated with pollutants from various sources. The statute, however, contains an exemption for metallic mining operations. It states: “This section does not apply to contamination which is compensable under subch. II of ch. 107 or s. 293.65 (4).” See below entry for the weak provisions of s.293.65(4).


The Bill expands the s.281.75(17)(b) exemption to include contamination arising out of iron mining operations (AB 426, p. 33, lines 1-3).

NR 103 (Water Quality Standards for Wetlands)

NR 103 contains specific provisions to help protect what are known as ASNRI wetlands. As explained by the Wisconsin Legislative Reference Bureau, “Current law relating to wetlands … makes a distinction between wetlands that are in, or in close proximity to, an area of special natural resource interest (ASNRI wetlands) and wetlands that are outside these areas. Current law defines “an area of special natural resource interest" as being an area that has significant ecological, cultural, aesthetic, educational, recreational, or scientific values and specifically lists certain areas, including Lake Michigan and Lake Superior, state forests, and state parks [See NR 103.04 for a list of ASNRI waters, including “wild rice waters”]. … Current law prohibits DNR from considering wetlands mitigation in reviewing whether to grant a permit or other approval for a project that adversely affects an area of special natural resource interest or an ASNRI wetland.”7 Unfortunately, NR 103.06(3) goes on to exempt metallic mining projects from following the provisions of Chapter NR 103. It states: “Wetland alterations which are directly caused by operations on a metallic mineral prospecting site or mining site shall be regulated pursuant to specific wetland standards under chs. NR 131 and 132, respectively.” In other words, NR 103.06(3) exempts mining companies from having to follow the wetland regulations specified in NR Chapter


The Bill appears to make no mention of NR Chapter 103, but it does specifically exempt iron mining from the provisions of NR Chapters 131 and 132 (AB 426, p. 181, lines 18-25 and p. 182, lines 1-4). The Bill, like NR 132, does not identify numeric water quality standards for wetlands. Instead it states: “Adverse impacts to the functional values and water quality of wetlands and adverse impacts to other waters of the state that are influenced by wetlands shall be minimized, and any significant adverse impacts remaining after minimization shall be subject to a compensation and mitigation program” (AB 426, p. 132, lines 19-22). Unfortunately, the Bill does not provide a definition of “minimized.” Of special note is the fact that the Bill weakens protections for federal ASNRI wetlands (Areas of Special Natural Resource Interest). As explained by the Wisconsin Legislative Reference Bureau, “Current law prohibits DNR from considering wetlands

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103 (Water Quality Standards for Wetlands), including the rules relating to ASNRI wetlands. Instead, NR 103.06(3) defers to NR 131 (Metallic Mineral Prospecting) and NR 132 (Metallic Mineral Mining) for regulation of wetland alterations caused by metallic mining activities. Unfortunately, however, NR 131 and 132 make no mention of ASNRI wetlands. See next entry.

mitigation in reviewing whether to grant a permit or other approval for a project that adversely affects an area of special natural resource interest or an ASNRI wetland. Under the bill, mitigation and compensation to offset significant adverse impacts to these areas and ASNRI wetlands are allowed.”7

NR 132.06(4)

NR 132.06(4) states: “The department has been directed, pursuant to ch. 421, laws of 1977, to assure that mining activities conducted in this state result in a minimization of disturbance to wetlands.” But then NR 132.06(4)(d) proceeds to allow the use of wetlands for disposal of mining waste if doing so is demonstrated to be technically and economically feasible by the mining company. The rule states: “The use of wetlands for mining activities, including the disposal or storage of mining wastes or materials, or the use of other lands for such uses which would have a significant adverse effect on wetlands, are presumed to be unnecessary unless the applicant demonstrates, taking into account economic, environmental, technical, recreational and aesthetic factors, that the site proposed for use:

1. Constitutes a viable site; 2. Is the alternative which causes the least overall adverse

environmental impact; and 3. Will be used in a manner so as to minimize the loss of

wetlands functions which those wetlands may serve with respect to related wetlands or other waters of the state, or both, outside the proposed area of use.”


The Bill specifically exempts iron mining from the provisions of NR Chapter 132 (AB 426, p. 181, lines 18-25 and p. 182, lines 1-4), but it does address the use of wetlands for activities related to iron mining.

The Bill states that: “the use of wetlands for bulk sampling and mining activities, including the disposal or storage of mining wastes or materials, or the use of other lands for mining activities that would have a significant adverse impact on wetlands, is presumed to be necessary” (AB 426, page 42, lines 2-5). The Bill goes on to include numerous provisions that enable the iron mining industry to use wetlands as waste dumps (AB 426, pp. 127-138). See pages 8-11 of the analysis of AB 426 prepared by the Wisconsin Legislative Reference Bureau for additional information (Exhibit A).

9 Wisconsin’s Weak Waste Management Laws Wis. Stat. 291.35

Metallic mines are exempt from the requirements of Wisconsin’s Hazardous Waste Law, even if the mining waste contains toxic substances like cyanide. Instead the waste is regulated under the provisions of Wisconsin’s Solid Waste Facilities law (Chapter 289, Wisconsin Statutes) and rules.


The Bill exempts iron mining from following the provisions of Wisconsin’s Hazardous Waste Management Law (Chapter 291, Wisconsin Statutes) and rules (chs. NR 660 to 669, Wisconsin Administrative Code), no matter what the mining waste contains, even if it is cyanide. It also exempts iron mines from the provisions of Wisconsin’s Solid Waste Facilities law (Chapter 289, Wisconsin Statutes) and rules. See earlier entries.

NR 182.02(2)

The management of metallic mining waste is exempt from the natural resource rules governing the management of hazardous waste, no matter what the mining waste contains, even if it is cyanide. Instead, the disposal of metallic mining waste is governed by Chapter 289, Wisconsin Statutes [Solid Waste Facilities; see 289.05(2)] and ch. NR 182, Wisconsin Administrative Code (Metallic Mining Wastes).


The Bill calls for existing rules, including those found in Chapters NR 182 and NR 661, Wisconsin Administrative Code, to be amended to exempt iron mining from their purview. Instead, iron mining is only to be subject to regulations specifically included in the Bill. See AB 426, p. 181, lines 18-25 and p. 182, lines 1-15 for the NR 182 and NR 661 exemptions. The Bill exempts iron mining from following the provisions of Wisconsin’s Hazardous Waste Management Law (Chapter 291, Wisconsin Statutes) and rules (chs. NR 660 to 669, Wisconsin Administrative Code), no matter what the mining waste contains, even if it is cyanide. Instead, the Bill states that the disposal of any mining waste identified as hazardous is subject to the provisions of AB 426 only. See AB 426, p. 86, lines 18-22 for the Hazardous Waste Law /Rule exemption.

NR 661.04(2)(c)(g) [formerly NR 605.05(1)(j)(k)]

Mining overburden and all solid waste from the extraction and processing of ores and minerals are excluded from regulation as hazardous waste, no matter what the waste contains, even if it is cyanide. In particular, see NR 661.04(2)(g) for a long list of mining wastes that are exempt from being regulated as hazardous waste.


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The Bill ALSO exempts iron mining from following the provisions of Wisconsin’s Solid Waste Facilities Law (Chapter 289, Wisconsin Statutes) and rules. Instead, iron mining waste is only subject to the regulations specified in AB 426, no matter what the mining waste contains. See AB 426, p. 106, lines 20-23 for the Solid Waste Facilities Law/Rule exemption.

NR 182.02(10)-(11)

These DNR rules exempt any backfilled mine pit or backfilled mine shaft from the normal rules governing mining waste sites. Virtually all siting criteria and requirements for inspections, monitoring activities, certified lab testing, record keeping and minimum design and operation standards do not apply. As a result, it is possible for hazardous waste to be dumped into an unlined pit or deep shaft in a wetland area without adequate monitoring.


The Bill calls for existing administrative rules, including those found in Chapter NR 182, Wisconsin Administrative Code, to be amended to exempt iron mining from their purview. Instead, iron mining is only to be subject to regulations specifically included in the Bill. See AB 426, p. 181, lines 18-25 and p. 182, lines 1-15 for the NR 182 and NR 661 exemptions. The Bill does address the backfilling of mine pits and mine shafts. First, it lists numerous areas where a mining waste site cannot be located: for example, within 1000 feet of a designated wild river (AB 426, p. 87, line 8) or within 1200 feet of any public or private water supply well that provides water for human consumption (AB 426, p. 88, lines 12-15). But in each and every case, the Bill exempts “the portion of a mining site from which ferrous minerals are extracted and that is backfilled with mining waste” from the restriction. See AB 426, pp. 86-88 for more examples [295.51(1m)].

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Second, the Bill lists numerous “required demonstrations” for a mining waste site (AB 426, pp. 103-106). For example, the applicant must demonstrate that: “No mining waste will be deposited in such a way that the mining waste or leachate from the mining waste will result in a violation of any applicable surface water quality criteria or standards, applicable wetland water quality standards, or applicable groundwater quality standards” (AB 426, p. 103, lines 15-18). However, the Bill also states that the so-called “required demonstrations” exclude the area “from which ferrous minerals will be extracted and that is backfilled with mining waste” (AB 426, p. 103, lines 10-14).

Wis. Stat. 293.01(25) NR 182.04(30) NR 182.04(54) NR 182.02(11)

“Mining waste” is defined in NR 182.04(30) to include “refuse,” which per the terms of Wis. Stat. 293.01(25) may include waste material from sources other than the mine itself. When combined with the terms specified in NR 182.04(54) and NR 182.02(11), the net result is that mine pits can be used by not only mining companies, but other businesses seeking a cheap way to dispose of their hazardous waste.


The Bill specifically excludes materials associated with iron mining from the ch.293 definition of “refuse” (AB 426, page 36, lines 4-9), but it includes a new definition of “refuse” that does include waste materials from other sources (AB 426, page 47, lines 9-10).

Laws that Weaken the Mining Company’s Responsibility to Clean Up Mining Pollution Wis. Stat. 289.41(1m)(c) and 289.41(1m)(g)

Wis. Stat. 289.41(1m)(c) states that, with regard to solid waste facilities, “the owner's responsibility for the long-term care of an approved facility does not terminate” (See Exhibit G). Yet, Wis. Stat. 289.41(1m)(g) states: “The owner of an approved mining facility may apply, at any time at least 40 years after the closing of the facility, to the department for termination of the owner's


The Bill exempts iron mining from following most of the provisions of Wisconsin’s Solid Waste Facilities Law (Chapter 289, Wisconsin Statutes) and rules, and it also exempts iron mining from the requirements of Chapter NR 182, Wisconsin Administrative Code. See

12 NR 182.17(2)(b) NR 182.17(10)(a)

obligation to maintain proof of financial responsibility for long-term care of the facility.” Forty years is not a very long time to require a mining company to maintain a bond as proof of financial responsibility. Problems with acid mine drainage do not always show up quickly and could very well manifest after the 40-year bonding period has expired. And once the bond is released, it’s likely that any attempt to hold the company responsible for the pollution will end up in the courts, even though the company, per the terms of Wis. Stat. 289.41(1m)(c), is responsible for the long-term care of the waste dump in perpetuity. It gets worse. NR 182.17(2)(b) and (10)(a), specific for metallic mining, are more lax than the requirements of Wis. Stat. 289.41(1m)(c) and (g), cited above. They require a metallic mining company to post a bond and take care of its mining waste dump for only 30 years after the mine closes (rather than in perpetuity), and the department has the option of terminating the company’s responsibility after only 10 years. Long-term care of acidic and possibly radioactive sulfide mine wastes may be necessary for centuries. Wisconsin needs a law that requires the mining company to deposit sufficient funds to cover long-term care of mine wastes at the same time the mining permit is issued, before mining starts.

earlier entries. It appears that the Bill, unlike Wis. Stat. 289.41(1m)(c), contains no provisions to make iron mining companies responsible for the care of their waste dumps in perpetuity. Instead, the Bill only addresses the time period during which the iron mining company must maintain a bond as proof of financial responsibility. It states: “An operator shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the long-term care requirements specified in the waste site feasibility study and plan of operation for a period of 40 years after closing of the mining waste site” (AB 426, p. 126, lines 3-7). However, the Bill goes on to state: “An operator may apply to the department for termination of its obligation to maintain proof of financial responsibility for long-term care of the mining waste site under s. 295.59 (2m) at any time after the mining waste site has been closed for 20 years” (AB 426, p. 172, lines 5-14). Once the company is no longer obligated to maintain proof of financial responsibility for long-term care of its waste dump, it appears the company is “off the hook” if and when pollution problems arise. Instead of requiring the company to be responsible for its dump in perpetuity, the Bill merely states that the company must, in its mining waste site feasibility study and plan of operation, include: “An analysis of the financial

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responsibility for closure and long-term care from the time of closing of the mining waste site to termination of the obligation to maintain proof of financial responsibility for long−term care” (AB 426, p. 102, lines 8-10).

Wis. Stat. 293.65(4)(c)

Local municipalities are required to supply water to any owner of a well that has been contaminated or gone dry from mining – until the mining company is proven guilty. Wisconsin needs a law like Montana had on the books at one time, whereby the mining company was immediately required to supply water to owners of wells that might have been damaged by mining and the mining company had to bear the burden of proof that it did not damage the wells. Without such a law in place, Wisconsin’s well owners and taxpayers are being forced to shoulder a burden that rightfully should be borne by the mining company.


While Chapter 293 of the Wisconsin Statutes currently applies to both nonferrous and iron mining, the Bill exempts iron mining from having to comply with the chapter’s requirements. It appears that the Bill contains no provisions to supply water to owners of wells that may have been damaged by iron mining.

Wis. Stat. 107.32

Wis. Stat. 107.32 states: “A mining company is liable for damages for mining-related injuries resulting from its prospecting, mining, refining or smelting in this state if, and to the degree that, the elements of liability are established in accordance with law, regardless of any change in the nature of the ownership of the interests in the prospecting or mining site, refinery or smelter held by the mining company and regardless of any reorganization, merger, consolidation or liquidation affecting the mining company.” Despite claims to the contrary made by the DNR, this statute does not guarantee that a mining company will be held responsible in perpetuity for environmental pollution caused by a mining operation (See Exhibit G). Laws need to be written to require mining companies to deposit sufficient funds with state and local governments up front to deal with potential pollution problems down the line.


The Bill does not specifically amend Wis. Stat. 107.32 to exclude iron mining companies from elements of liability, but the Bill does amend or repeal other provisions of Chapter 107, Wisconsin Statutes to make them specific for nonferrous mining. As a result, it is unclear if Wis. Stat. 107.32 would still apply to iron mines or not.

14 Wis. Stats. 20.370(2)(gr), 20.566(7)(v), 70.395(2)(j)-(k), 289.68(2) and 292.31(6)

If the state’s Environmental and Waste Management Funds do not have enough money to pay for long-term care or repair of mining waste sites, the DNR can seize money from the Local Impact Fund to pay the bill instead of holding the mining company accountable. A law needs to be enacted to make the mining company responsible for cleaning up its own mess (See next entry).


No change.

Wis. Stat. 70.395(2)(a)

This statute was repealed in 1981 and needs to be reinstated so that the Local Impact Fund will be used exclusively to provide funds to local municipalities to help them deal with the adverse impacts of mining rather than being used by the DNR to pay clean-up costs that rightfully should be borne by the mining company.


It appears that the Bill does NOT restore this beneficial statute.

Wisconsin’s Weak Regulatory Scheme for Metallic Mining Wis. Stat. 293.13 Wis. Stat. 293.15(9) NR 182.19 NR 132.19

The DNR is authorized to write rules governing mining and mining waste. But at the same time the department is authorized to grant variances, exemptions and modifications to any of those administrative rules, if they prove to be too cumbersome to a mining company. Even exemptions to the state’s groundwater quality standards may be granted. As a result, the DNR’s mining rules are no more than guidelines. Mining should be governed by strict laws, not rules that may be easily bent to suit polluters. At a bare minimum, laws should be developed to drastically restrict the types and numbers of allowable exemptions.

Chapters 34, 36, 69, 71, 95 and 109, The Buzzards Have Landed!

While Chapter 293 of the Wisconsin Statutes currently applies to both nonferrous and iron mining, the Bill exempts iron mining from having to comply with the chapter’s requirements. In addition, the Bill calls for existing rules, including those found in Chapter NR 182, Wisconsin Administrative Code, to be amended to exempt iron mining from their purview. Instead, iron mining is only to be subject to regulations specifically included in the Bill. Normally, the law is the law and it is not possible for the DNR to grant exemptions to

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statutes. Rather, the DNR is only authorized to grant exemptions to its own rules. However, the Bill “authorizes an applicant for an iron mining permit to request an exemption from any requirement in the iron mining laws applicable to a mining permit application, a mining permit, or any other approval issued by DNR that is needed to conduct the iron mining. DNR must grant or deny the exemption within15 days.”8 See AB 426, p. 111, lines 13-25 and p. 112, lines 1-23 for the exemption provision of the Bill.

Wis. Stat. 30.195(2)

A mining company has the right to change the course of a stream if needed for expansion of its operation. In fact, the law requires the DNR to grant such a permit if it will improve the economic value of the land. And if that isn’t enough, the DNR may grant such a permit without even holding a public hearing.

Chapter 53

No change.

NR 182.02(9)

This rule states that if necessary, the DNR will promulgate rules “to regulate uranium prospecting and mining and radioactive wastes resulting from any metallic prospecting or mining operation.” Unfortunately, however, such rules have yet to be developed, despite the fact that the Flambeau Deposit was located on the very edge of an area that the federal government had identified as favorable for uranium deposits. Tough rules for protecting groundwater and placing limits on the amount of radioactivity allowed in waste dumps need to be established, especially since Wisconsin is known to have radioactive “hot spot” zones.

Chapter 74

It appears that the Bill contains no provisions for handling radioactive minerals or wastes.

16 Wis. Stat. 293.25

This statute regulates “Radioactive waste site exploration,” defined in s. 293.25(1)(c) as “the on-site geologic examination from the surface of an area by core, rotary, percussion or other drilling for the purpose of determining the subsurface and geologic characteristics of an area in order to establish whether the area is suitable for a radioactive waste disposal site and includes associated activities such as clearing and preparing sites or constructing roads for drilling.” The existence of this type of regulation in the Wisconsin Statutes appears to be a set-up for inviting the disposal of radioactive waste in the state.

The Bill amends Wis. Stat. 293.25 to eliminate any reference to iron mining (see AB 426, page 36, lines 19-21 and page 37, lines 3-5). This raises the question as to whether or not the Bill allows for radioactive waste site exploration to be done at iron mine sites without being regulated as such. It is no secret that the U.S. Department of Energy is once again considering Wisconsin’s granite bedrock as a potential second site (after Yucca Mountain in Nevada) for a proposed nuclear waste repository. Would the Bill’s amending of Wis. Stat. 293.25 facilitate radioactive waste site exploration in the Penokee Hills area?

Wis. Stat. 706.057

Wisconsin’s Mineral Rights Law: Mineral rights are not taxed in Wisconsin, despite the fact that the owner of those rights has the power of dominant estate over the land. In addition, the law makes it difficult for the public to ascertain who owns the mineral rights in any given area.


No change.

Wis. Stat. 293.50

The Mining Moratorium Law: “Under current law, the DNR is prohibited from issuing a permit for the mining of a sulfide ore body unless the DNR determines, based on information provided by a mining permit applicant and verified by the DNR, that sulfide mining operations, with certain restrictions, have been operated and closed without polluting groundwater or surface water from acid drainage or from the release of heavy metals or other significant environmental pollution. [s. 293.50, Stats.] This requirement is titled the “sulfide mining moratorium law.”9


“The Bill amends the sulfide mining moratorium law, making it applicable only to nonferrous mining. In particular, it modifies the definition of ‘sulfide ore body’ to mean ‘a mineral deposit in which nonferrous metals are mixed with sulfide minerals.’” 9 See AB 426, p. 38, lines 1-21 for the proposed changes to the Mining Moratorium Law. The changes that the Bill makes to the

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“The concern with the disturbance of sulfide minerals is that when exposed to oxygen and water, sulfide minerals may undergo a series of chemical and biochemical reactions that produce acidic products which may have negative effects related to changing the pH level in groundwater and surface water and by dissolving other minerals, which may cause the release of heavy metals.” 9 “The sulfide mining moratorium law defines “sulfide ore body” broadly as “a mineral deposit in which metals are mixed with sulfide minerals.” Iron ore itself is not a sulfide ore. However, based on consultation with geologists at the U.S. Geological Survey and the DNR, virtually all geological formations in the state contain at least trace amounts of sulfide minerals, which means that this law could apply to any type of mining project. Although the DNR reports that it would be unlikely to apply the sulfide mining moratorium law to a ferrous mining project for which only trace amounts of sulfide minerals are present or the sulfide minerals that are present are avoidable, the breadth of the definition of “sulfide ore body” could create uncertainty as to the legitimacy of a prospective challenge to the DNR on this point.”9

Mining Moratorium Law are worrisome. In terms of the 4-5 mile long open-pit proposed for the Penokee Hills in northern Wisconsin, there are documented but unknown quantities of sulfide minerals (pyrite or iron sulfide) in the rock that will need to be stripped away to get to the iron ore. Taconite mining in Minnesota (Dunka Pit) and Michigan (Dober and Buck Mines) has resulted in acid mine drainage from the presence of sulfide minerals in the waste rock, and the consequences have been grave. According to a special Sierra Club report on taconite mining, “The Dober and Buck mines killed aquatic life in 7 miles of the Iron River and damaged 10.5 miles of the Brule River.” If the same thing happens with the new mine proposed for the Penokee Hills, with its hundreds of millions of tons of waste rock and tailings, the Bad River and Lake Superior are certain to be harmed.

Laws that Weaken Wisconsin’s Democratic Decision-Making Process Wis. Stats. 293.41 and 293.33(1)(g)

The Local Agreement Law: This law, crafted by Kennecott Attorney Henry Handzel in 1987, overrides tribal authority and elected town, village, city and county authority by empowering an unelected (i.e. appointed) local impact committee to negotiate a mining contract that can throw out legally adopted zoning ordinances and resolutions. The Local Agreement


The Bill does not change the wording of Wis. Stats. 293.41 and 293.33(1)(g), but it “modifies the current laws regulating metallic mining so that they cover only mining for nonferrous minerals.”3 Therefore, the provisions of Chapter 293 of the Wisconsin

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negotiated for the Flambeau Mine actually declared Rusk County’s zoning code for mining “inapplicable” to the mine project, a code that carefully had been written to protect the environment from mine impacts! Roscoe and Evelyn Churchill and others challenged the constitutionality of the Local Agreement Law in a 1990 lawsuit, but the suit was settled out of court to the dismay of the Churchills.

Statutes no longer apply to iron mining unless the Bill specifically incorporates them. Such is the case with the Local Agreement Law. The Bill “provides for local impact committees for proposed iron mines in a manner similar to the manner in which those committees are established under current law.”10 See AB 426, p. 63, lines 6-25, p. 64, lines 1-25 and p. 65, lines 1-15.

Wis. Stat. 60.22(1)-(2)

These regulations put the town board in charge of public policy decisions instead of the town’s voters. So even though the majority of voters in the Town of Grant, Rusk County, WI passed a resolution at the town’s annual meeting in 1988 to place a moratorium on mining, the town board, stacked with mining proponents, did not have to honor the terms of the moratorium and instead proceeded to sign the Local Agreement with Flambeau Mining Company that allowed the Flambeau Mine to be built.


No change.

Wis. Stats. 293.43(1m) and 293.43(5)(a)-(c)

The Master Hearing Law: Because of this law, public testimony has no bearing on the state’s final decision regarding the adequacy of a mining company’s Environmental Impact Statement (EIS) or whether or not to approve a mining permit. Both decisions are made as the result of a single hearing, with the official record consisting of only the “contested case” portion of the proceedings. In other words, only sworn testimony that is provided by “experts” can be considered by the hearing examiner when making the final decision. Public testimony is immaterial. The law also allows a local government to “sign off” on a mining proposal before the EIS is issued or the Master Hearing is conducted. That means legally-binding local approvals and permits can be signed before the public has all the facts!


The Bill does not change the wording of Wis. Stats. 293.43(1m) and 293.43(5)(a)-(c) , but it “modifies the current laws regulating metallic mining so that they cover only mining for nonferrous minerals.”3 Therefore, the provisions of Chapter 293 of the Wisconsin Statutes no longer apply to iron mining unless the Bill specifically incorporates them. The Bill makes the mine permitting process even less democratic than is currently the case, in that it eliminates the “contested case” portion of the mine permit hearing. While a hearing is still required, it has been reduced to a “public informational hearing” (AB 426,

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p.117, lines 15-24 and p. 118, lines 1-2). Several “public informational hearings” were held with regard to issues that arose over the Flambeau Mine after the mine permit was granted in 1991, but citizen input played either no role or a very limited role in the final decisions handed down by the DNR (see Chapters 94, 105 and 116 of The Buzzards Have Landed!) The most effective way for the public to force issues under current law is through the “contested case” process or the Courts, but the Bill has taken away the “contested case” option.

Wis. Stat. 293.47(3) and 107.15

These statutes allows mining companies to deny citizens full knowledge of the kinds and amounts of metals and toxic substances in core samples obtained through exploration or prospecting. Wisconsin needs a law similar to what Minnesota and Michigan had on the books at one time to provide disclosure of the core sample analysis to the public before mining permits are issued. In that way, the full impact of mining can be better ascertained before mining commences.


No change to Wis. Stat. 107.15. The Bill does not change the wording of Wis. Stat. 293.47(3), but it “modifies the current laws regulating metallic mining so that they cover only mining for nonferrous minerals.”3 Therefore, the provisions of Chapter 293 of the Wisconsin Statutes no longer apply to iron mining unless the Bill specifically incorporates them.

Confidentiality provisions are included in the Bill. Specifically, the Bill states: a. “The department shall protect as confidential any information, other than effluent data, contained in an application for an exploration license, upon a showing that the information is entitled to protection as a trade secret, as defined in s. 134.90 (1) (c), and any information relating to the location, quality, or quantity of a ferrous mineral deposit, to

20

production or sales figures, or to processes or production unique to the applicant or that would tend to adversely affect the competitive position of the applicant if made public” (see AB 426, p. 52, lines 18-24). b. “The department shall protect as confidential any information, other than effluent data, contained in a bulk sampling plan and in any application for an approval that is required before the bulk sampling may be implemented, upon a showing that the information is entitled to protection as a trade secret, as defined in s. 134.90 (1) (c), and any information relating to the location, quality, or quantity of a ferrous mineral deposit, to production or sales figures, or to processes or production unique to the applicant or that would tend to adversely affect the competitive position of the applicant if made public” (see AB 426, p. 66, lines 23-25 and p. 67, lines 1-5). c. “The department and the state geologist shall protect as confidential any information, other than effluent data, contained in an application for a mining permit, upon a showing that the information is entitled to protection as a trade secret, as defined in s. 134.90 (1) (c), and any information relating to production or sales figures or to processes or production unique to the applicant or that would tend to adversely affect the competitive position of the applicant if made public” (see AB 426, p. 113, lines 1-6).

21 Wis. Stat. 144.44(2)

This law was repealed in 1981 and needs to be reinstated. It said that nothing in Wisconsin’s solid waste law could limit the authority of counties, cities or towns to issue their own licenses and permits for any state-licensed solid waste facility or to adopt standards more restrictive than those adopted by the state. Local governments must once again be given the express power to set standards for mining waste disposal that are stricter than the lenient standards found in NR 182.


It appears that the Bill does NOT restore this beneficial statute.

Wis. Stat. 710.02

Because of this statute, enacted in 1984, there is no limit on the amount of land that a foreign company can own in Wisconsin for mineral (and oil) exploration and development. By contrast, only 640 acres of land may be foreign-owned for agricultural use.

Chapter 44 and CD 123-13, The Buzzards Have Landed!

The Bill amends Wis. Stat. 710.02 to specifically allow foreign corporations engaged in iron mining to own more than 640 acres of land in Wisconsin for their operations! See AB 426, p. 181, lines 15-17.

Wis. Stat. 293.55

This law deals with how the DNR is to handle any request made by a mining company to change its mining permit. The DNR does not have to provide public notice of any proposed modification to a mining permit, unless the proposal involves “an increase or decrease in the area of a mining site or a substantial change in the mining or reclamation plan” (whatever that means). Worse yet, the law specifies, “If 5 or more interested persons do not request a hearing in writing within 30 days of notice, no hearing is required on the modification.”And even if 5 or more people do request a hearing, the law does not specifically state if it is to be a traditional (noncontested) public hearing, a public informational meeting or a contested case hearing. Wis. Stat. 293.55 is a formula for enabling the DNR to ram through changes to a mining permit without affording the public due process. It’s not right that after going through an extensive review process, a mining permit can be altered substantially without even requiring that a bona fide public hearing be held.

Chapters 56, 69, 105 and 116, The Buzzards Have Landed!

The Bill does not change the wording of Wis. Stat. 293.55, but it “modifies the current laws regulating metallic mining so that they cover only mining for nonferrous minerals.”3 Therefore, the provisions of Chapter 293 of the Wisconsin Statutes no longer apply to iron mining unless the Bill specifically incorporates them. The Bill does address how changes to an iron mine permit are to be handled. It weakens current law, in that “substantial” changes to a mine permit no longer need to be noticed to the public. Instead, a public notice is only required if the proposed change would make “substantial compliance” with the approved mining plan impossible.

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Because of Wis. Stat. 293.55, the DNR was required to provide public notice of several proposed “substantial” changes to the Flambeau Mine permit over the years. In 1991, the company applied for permission to increase its production rate (which meant the mine would close earlier than expected, causing job losses), and in 1998, the company applied to drastically alter its reclamation plan for the mine (allowing an Industrial Park to be created at the reclaimed mine site instead of reverting everything to prairie). In each instance, members of the public requested a public hearing. While the DNR did not agree to conduct a true public hearing in either case, the Department at least agreed to hold a “public informational meeting.”

Specifically, the Bill states: “(1)(a) An operator at any time may request a change to a mining permit, the mining plan, the reclamation plan, or the mining waste site feasibility study and plan of operation for any mining site that the operator owns or leases, or request cancellation of the mining permit for any or all of the unmined part of a mining site. The operator shall submit an application for the change or cancellation in the form of a letter giving notice to the department of the proposed change or cancellation and shall identify in the letter the tract of land to be affected by a change in the mining plan, reclamation plan, or mining waste site feasibility study and plan of operation or to be removed from the permitted mining site. (b) The department shall grant a request under par. (a) unless it determines that the requested change makes it impossible for the permit holder to substantially comply with the approved mining plan, reclamation plan, or mining waste site feasibility study and plan of operation. If the department determines that the requested change would make substantial compliance impossible, it shall follow the procedure in sub. (3)” (see AB 426, p. 152, lines 3-18). In addition, the Bill states: “If the department finds that a change requested under sub. (1) (a) would make substantial compliance with the approved mining plan, reclamation plan, or mining waste site feasibility study and plan of operation impossible or it finds, based on a review conducted no more frequently than

23

every 5 years, that because of changing conditions, including changes in reclamation costs or reclamation technology, the reclamation plan for a mining site is no longer sufficient to reasonably provide for reclamation of the mining site consistent with this subchapter, it shall require the applicant to submit an amended mining plan, reclamation plan, or mining waste site feasibility study and plan of operation and applications for amending any approval associated with the proposed amendments to the mining plan, reclamation plan, or mining waste site feasibility study and plan of operation. The public notice, public comment, and public hearing procedures in s. 295.57 apply to amended plans and applications under this subsection.” (see AB 426, p. 154, lines 11-25 and p. 155, lines 1-3).

Wis. Stats. 289.21-289.36

Wisconsin’s Siting Law for Solid Waste Facilities: Local municipalities are powerless in the matter of deciding where mining waste dumps can be placed. The mining company does not have to show a need for having a waste dump at a particular location and is not required to obtain local approvals. Normal negotiation and arbitration procedures involving the public do not apply. Local citizens are left out in the cold.


The Bill exempts iron mining from following most of the provisions of Wisconsin’s Solid Waste Facilities Law (Chapter 289, Wisconsin Statutes) and rules. Instead, iron mining waste is only subject to the regulations specified in the Bill. It appears that the Bill does not contain provisions to correct the problems with current statutes and rules listed in the first column of this table. For example, the Bill contains no provisions for negotiation and arbitration involving local municipalities with regard to where a waste dump for an iron mine can be located. It appears that all decisions regarding the siting and operation of waste dumps

Wis. Stats. 289.22(3) and 289.33(12)(d)

Mining companies are exempt from following the laws that normally apply to negotiation and arbitration whenever a waste dump is proposed for an area. Normally an operator has to negotiate an agreement with a committee of local people, but not so for mining companies. They do not have to get local approval to put a solid or hazardous waste dump in a town. The public is left out in the cold.

24 Wis. Stat. 289.25(3)

No public hearing is required before the DNR issues a permit for a mining waste dump (or any waste dump, for that matter), even if the mining company plans on putting hazardous waste in it. All the DNR has to do is publish a notice in the local newspaper.

associated with iron mines will be made by the DNR when reviewing the application for an iron mining permit. For more information on provisions contained in the Bill with regard to waste dumps please see the above sections on: (1) NR 182.02(10)-(11); and (2) Wis. Stat. 289.41(1m)(c) and 289.41(1m)(g).

Wis. Stats. 289.26 and 289.27

The only way a public hearing can be held on a permit for a mining waste dump (or any solid waste dump) is if a hearing is requested in writing by 6 or more citizens. This is a crime. For something as important as waste disposal, a public hearing should be held automatically.

Wis. Stat. 289.28(2)(a)

When a mining company applies for a permit to place a waste dump in a town, it does not have to establish that a need exists. So even though it might make more sense to transport the waste elsewhere, the company does not have to justify why the dump needs to be in a particular location.

Wis. Stat. 289.29(1)(c)

The Environmental Impact Statement for a mining waste dump (or any waste dump) is not subject to challenge at a public hearing.

Wis. Stat. 289.30(2)

The plan of operation for a mining waste dump (or any waste dump) is not subject to challenge at a public hearing.

Wis. Stat. 289.31(6)

The public has no right to a hearing on the operating license for a mining waste dump (or any waste dump).

Wis. Stats. 289.36(2), 293.15(6) and 32.02(12)

Mining companies have the power of eminent domain and can condemn private property for use as waste dumps. (Note: When you read Wis. Stat. 32.02(12), it sounds like mining companies cannot condemn private property, but this is misleading, as explained in Chapter 37 of The Buzzards Have Landed!).

25 Wis. Stats. 289.30(6) and 293.55(1)(a)

These statutes allow the DNR to grant modifications to: (1) mining permits; (2) reclamation plans; and (3) plans of operation for mining waste dumps. While mining companies may request modifications to presumably make a permit or plan more lenient, no explicit provisions exist in the law to allow ordinary citizens to request modifications that would make the permits or plans more stringent. If new technologies arise that offer greater environmental protection, why should citizens be prevented from requesting that the mining company be required to utilize the improved technology?


The Bill allows the iron mining company to request various permit modifications to presumably make a permit or plan more lenient. It states: “An operator at any time may request a change to a mining permit, the mining plan, the reclamation plan, or the mining waste site feasibility study and plan of operation for any mining site that the operator owns or leases, or request cancellation of the mining permit for any or all of the unmined part of a mining site” (AB 426, p. 152, lines 3-7).

In terms of “Withdrawals of surface waters and groundwaters,” the Bill requires the DNR to approve a request from the mining company to withdraw up to an average of 2 million gallons more of water per day than specified in its permit. The Bill states: 1. An operator to whom a permit has been issued under this section may request a modification of any condition in the permit. 2. If the request for a modification under subd. 1. does not result in an increase in an existing withdrawal resulting in a water loss averaging more than 2,000,000 gallons per day in any 30-day period above the operator’s authorized base level of water loss, within 30 days of receiving the request the department shall approve the request and amend the permit to incorporate the modification” (see AB 426, p. 147, lines 23-24 and p. 148, lines 1-5). Only if the requested increase in water withdrawal averages more than 2 million gallons per day can the public get involved in the decision-making process, and then the only thing citizens can do is request a public informational hearing (AB 426, p. 148, lines 18-25 and p. 149, lines 1-2).

26 Wisconsin’s Weak Licensing Laws for Mining Wis. Stats. 293.49(2)(b)-(f), 293.37(2)(e)1.a-d, 293.49(8) and 293.45(2)

The DNR cannot consider the full foreign and domestic environmental track record of a mining company when licensing a mining operation. Only felonies, rather than all criminal convictions and civil penalties, need to be reported. In addition, only offenses that occurred in the United States are considered, even though Rio Tinto Zinc, for example, owned mines in 36 different countries in 1996 (while the Flambeau Mine was in operation). Since many mining tragedies have occurred in foreign countries, including Canada, these “bad actors” are able to shield themselves from proper scrutiny.

Chapter 89

The Bill does not change the wording of Wis. Stats. 293.49, 293.45 or 293.37(2), but it “modifies the current laws regulating metallic mining so that they cover only mining for nonferrous minerals.”3 Therefore, the provisions of Chapter 293 of the Wisconsin Statutes no longer apply to iron mining unless the Bill specifically incorporates them. The Bill contains provisions similar to those currently found in the statutes regarding “bad actors.” See AB 426, p. 78, lines 9-25, p. 122, lines 9-24 and p. 123, lines 1-21.

Wis. Stat. 293.49(6)

This law allows a metallic mining permit to be valid for the life of the project, instead of requiring it to be reevaluated and renewed after a set number of years. That means the state has no leverage for requiring the mining company to use better technology as it becomes available. Contrast this with the regulation of gravel pits! In the past, companies operating gravel pits in Wisconsin had to renew their permits every 5 years. Surely metallic mining permits should be reevaluated at least as often as those for gravel pits, if not more.


The Bill does not change the wording of Wis. Stat. 293.49(6), but it “modifies the current laws regulating metallic mining so that they cover only mining for nonferrous minerals.”3 Therefore, the provisions of Chapter 293 of the Wisconsin Statutes no longer apply to iron mining unless the Bill specifically incorporates them. The Bill states: “DURATION OF APPROVALS. (a) A mining permit is valid for the life of the mining project, subject to the enforcement provisions under s. 295.79. (b) An approval under s. 295.60 or 295.61 remains valid for the life of the mining, subject to the enforcement provisions under s. 295.79. (c) An approval issued for a mining project

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under ch. 23, 29, 30, 169, 281, 283, 285, 289, or 291, except for a permit under ch. 283 or 285 that is subject to a federal requirement limiting its duration, remains valid for the life of the mining project, subject to the enforcement provisions applicable to the approval” (see AB 426, p. 124, lines 1-8).

Wisconsin’s Weak Mining Tax Law Wis. Stats. 70.37-70.3965

Wisconsin’s Metallic Mining Tax Law: This law, enacted in 1977, abolished the 1.5% severance tax on copper that had been enacted by the state in 1973 and replaced it with a net proceeds tax. The law was further weakened in 1981 with the passage of 1981 AB 800, developed as part of the “consensus process” with input from mining lobbyists. The upshot of all this is that mining companies in Wisconsin pay taxes on the profit shown on their books rather than the fair market value of the ore. No taxes at all are paid on the first $250,000 of profit, and numerous deductions can be taken. Taxes owed are based on the mining company’s own records, and it is possible for no taxes to be owed at all, even if the mining company removes many tons of valuable ore. For example, records on file with the Wisconsin Department of Revenue show that Kennecott paid $0 in taxes for the first partial year that the Flambeau Mine operated (1993), despite the fact that this is when rich gold ore from the mine was being shipped to Canada for processing.

Chapters 26, 36, 101 and 117, The Buzzards Have Landed!

The Bill appears to incorporate the same basic tax scheme for iron mining as for nonferrous metallic mining (See Sections 15D-16J of Assembly Substitute Amendment 1, to 2011 Assembly Bill 426).

28 Weak Federal Laws Governing Metallic Mining The 1872 Mining Law

This federal law was written right after the Civil War to encourage settlement and exploration of the West. It grants special privileges to the mining industry not afforded to any other. The law allows domestic and foreign mining companies to privatize federal lands anywhere in the United States for less than $5 an acre and does not require that any royalties be paid. For example, Barrick Gold Corporation of Toronto, Ontario “privatized 1950 acres in Nevada, where it extracted gold worth more than $600 million. Taxpayers got a mere $10,000 from that deal” (CD 123-14, The Buzzards Have Landed!). In addition, the right to mine “trumps all other uses of publicly owned lands, superceding the rights of everyone else: community members seeking to protect scarce groundwater supplies, those who fish in local trout streams, vacationers who camp and hike in the area, native Americans who have sacred sites on the land, and the resource needs of future generations. The only public lands where mining is restricted are recognized Wilderness Areas, the banks of Wild and Scenic Rivers, National Parks and some National Wildlife Refuges” (CD 123-15, The Buzzards Have Landed!).

CDs 123-14 and 123-15, The Buzzards Have Landed!

The Bill appears to contain no provisions to tighten federal standards.

“Bevill Amendment” to the United States Resource Conservation and Recovery Act (RCRA)

Mining waste is exempt from the federal hazardous waste law, even if the waste contains toxic substances like cyanide.


The Bill appears to contain no provisions to tighten federal standards.

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1. Laura Gauger is not a lawyer or legal expert, but she did an extensive review of the history of Wisconsin’s mining laws and the status of current law (as of 2007) as part of a book project she did with Roscoe Churchill of Ladysmith, WI about the Flambeau Mine. As part of her research for the book, Laura drew heavily on papers written by Evelyn Churchill, who is described by Secretary of State Doug La Follette in the book’s forward, as “the best, self-taught mining lawyer in the state.” The table hereby presented for your use was adapted from a table assembled by Laura that appears in Roscoe and her book, The Buzzards Have Landed! The Real Story of the Flambeau Mine, Deer Tail Press, 2007, pp. 1008-1011.

2. Wisconsin Statutes and Wisconsin Administrative Code are available on-line. Go to: a. http://legis.wisconsin.gov/rsb/stats.html (for statutes) b. http://legis.wisconsin.gov/rsb/code.htm (for administrative rules)

3. Assembly Bill 426, Analysis by Wisconsin Legislative Reference Bureau, p. 2. 4. For more information on how citizens were excluded from the “consensus process” in the early 1980s and how they rebelled, see

Chapters 30, 34 and 35 of The Buzzards Have Landed!. 5. Assembly Bill 426, Analysis by Wisconsin Legislative Reference Bureau, p. 12. 6. For more information on PAL standards and intervention boundaries, please see The Buzzards Have Landed!, pp. 1032-1037. 7. Assembly Bill 426, Analysis by Wisconsin Legislative Reference Bureau, pp. 8-10. 8. Assembly Bill 426, Analysis by Wisconsin Legislative Reference Bureau, p. 18. 9. Assembly Bill 426, Analysis by Wisconsin Legislative Council, December 9, 2011, pp. 17-18. 10. Assembly Bill 426, Analysis by Wisconsin Legislative Reference Bureau, p. 22.

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