Wis. Mining Hearing Reveals Gaps in Oversight  09.19.2012

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By Rebecca Kemble

The newly formed Senate Select Committee on Mining met for the first time on Tuesday to hear expert testimony about Wisconsin's current mining laws. Dr. Tom Evans of the Wisconsin Geological Survey, Rebecca Grasser of the US Army Corps of Engineers, and Ann Coakley, Director of the Wisconsin Department of Natural Resources Waste and Materials Management Program, gave presentations and answered questions during the six hour hearing.

The committee is chaired by Sen. Tim Cullen (D-Janesville), who was appointed to the position by Senate Majority Leader Sen. Mark Miller (D-Madison) last summer in a deal made after Cullen threatened to resign from the Democratic Caucus. At that time he was also appointed Chair of the Committee on Venture Capital and Small Business.

“The committee will not work from any bill from the past session, but will rather focus on Wisconsin’s current (mining) law and what changes are warranted, as well as the justification for those potential changes,” said Cullen. In his statement Cullen was referring to AB 426, the controversial mining bill that passed the Assembly but failed to pass the Senate by a slim, one vote margin back in March. That bill was roundly criticized for having been written by a mining company for their own business interests.

Republican legislators pushing AB 426 last session claimed that mining companies needed better timelines and more certainty in the permitting process in order to invest in mining activities in Wisconsin. The experts testifying at Tuesday’s hearing gave an overview of the current federal and state legal and regulatory framework for mining.

All three experts concurred that the complex interplay of federal, tribal and state clean water and air regulations require that agencies collaborate with each other and with mining companies in crafting an Environmental Impact Statement of any proposed mine. If state standards and timelines differ significantly from federal ones, then a mining company would have to spend more time and money going through two parallel but divergent permitting processes before gaining approval.

As Dr. Evans said, “Once a mining company is looking at property, every decision they make is an economic decision. They’re responsible to shareholders.” He added, “It is costly for them to be at odds with the regulator all the time. It’s an unproductive way to run a business. So the complexity of the enterprise kind of requires the company and the regulators to be on the same page for it to be an efficient process.”

Evans went on to describe the philosophy behind Wisconsin’s current mining laws. “Metal mining requires regulation to protect society from unregulated mining activity and unreasonable degradation of land and water. These laws define what is unreasonable. The whole thing works if you have good law enforcement, good monitoring data and a cooperative relationship between the companies and the regulator.”

Current law requires a master hearing – a legal proceeding at which any interested party may bring evidence and make arguments for or against a proposed mining project - at the end of the permitting process. Dr. Evans’s recommendation to the committee was that an impartial administrative law judge gets involved in the permitting process early on to resolve disputes about the adequacy of data and completeness of the permit application in what he referred to as a “staged” master hearing. “Our current regulatory process is good; we just need to move through it. Staged master hearings would help move the process along,” he said.

Rebecca Grasser of the US Army Corps of Engineers described her agency’s role in permitting mines. They are responsible for administering section 404 of the Clean Water Act, which regulates discharges of dredged or fill materials in waterways of the US, which includes most wetlands, rivers, lakes and open water bodies.

Grasser warned that too much tinkering with Wisconsin’s mining regulations could create a substantial burden for mining companies who would need to follow parallel permitting processes instead of a single, integrated one as is currently the case.

Sen. Glenn Grothman (R-West Bend), who arrived to the hearing an hour late and left an hour early, asked Grasser to speculate about the adequacy of federal standards alone. “If there was no DNR, would you feel comfortable signing off that we would have a safe mine?”

Grasser seemed surprised by the question, but reiterated that her agency is only involved with impacts on US waterways, not on other environmental, social or economic impacts.

Ann Coakley of the Wisconsin DNR concurred with Grasser about the need for alignment between federal and state permitting processes. “It’s hard to think of any disadvantages to collaboration with federal and tribal agencies on the permitting process while it is easy to think of disadvantages to not collaborating,” she said.

Coakley gave a PowerPoint presentation describing the major metallic mineral deposits in the state and some of the recent, current and proposed mining projects. She mentioned that the proposal by Gogebic Taconite for a 21-mile long mountain top removal project in the Penokee Hills by far surpassed the scale and scope of any other mining operation in the state.

Coakley also informed the committee that the DNR has only three staff members dedicated to mining, and that the metallic mining program is not funded. Sen. Jon Erpenbach (D-Middleton) asked her what she meant by that. Coakley reiterated that there is no money in the DNR budget to pay for dedicated staff to work on metallic mining issues. Money for those positions would be funded out of fees that mining companies pay for permit applications

Each of the three experts was asked about their recommendations for tightening up timelines in the permitting process. They all said that each project is evaluated on a case-by-case basis, and that most if not all of the delays in the process are the results of the mining companies not providing adequate information in the first place, or new information coming to light in the course of the process that requires further planning and study.

They also concurred that putting a hard and fast time limit on the process would more likely than not result in permit denials. Said Coakley, “Really, the timeline is under control of the applicant and the scope of the project.”

Sen. Cullen’s plan is for the committee to visit existing taconite mines in Minnesota. Sen. Dale Schultz (R-Richland Center), who voted with 16 Democratic senators to defeat AB 426 last spring, asked Rebecca Grasser for her recommendation of “well-run” mining sites to visit in the state. “I don’t know any off the top of my head that would be shining examples,” was her response.

Two more hearings are scheduled for September 20 and September 25.

Rebecca Kemble reports for The Progressive magazine and website. She also participates when she can in the Solidarity Sing Along