Last week, Wisconsin state legislators introduced a proposal to repeal the so-called “moratorium” on the mining of sulfide ore bodies (i.e., mineral deposits in which nonferrous metals are mixed with sulfide minerals) in Wisconsin. The state law in question was enacted in 1998 over concerns that sulfide minerals exposed during mining activities can react with air and water to form acid drainage which can pollute groundwater and harm lake and stream life.

The moratorium is actually a requirement that prohibits the Wisconsin Department of Natural Resources (“WDNR”) from issuing a permit for the mining of a sulfide ore body unless the applicant demonstrates, and the WDNR verifies, that a mining operation has operated in a sulfide ore body in the United States or Canada for at least ten years, and has been closed for at least ten years, without the pollution of groundwater or surface water from acid drainage at the tailings site or at the mine site or from the release of heavy metals

Proponents of the proposed moratorium repeal argue that the former Kennecott Flambeau Mine, an open pit copper-gold mine that was located near Ladysmith, Wisconsin, is an example of a sulfide ore mine which operated and was closed without polluting groundwater or surface water. The mine operated from approximately 1993 to 1997, and reclamation activities were substantially completed by the end of 1999. However, continued monitoring showed elevated copper concentrations on a portion of the mine property and in an associated biofilter used to collect surface water runoff from the property, and the WDNR has issued only a partial Certificate of Completion for the mine. Environmental groups have argued that the elevated metals in surface waters should disqualify the Flambeau mine from being used as an example of a non-polluting sulfide ore mine.

According to the legislative co-sponsorship memorandum, the legislation will do more than repeal the moratorium. It will also:

• Require the WDNR, for each mining or prospecting site, to determine the depth at which groundwater is not reasonably capable of being used for human consumption and is not hydrologically connected to other sources. Then the WDNR may not apply groundwater enforcement standards at any point deeper than the identified depth for the site;
• Removes requiring, as part of the permit application, an irrevocable trust for assurance of adequate funds to undertake preventive and remedial activities
• Removes disposal fees;
• Creates a separate process for building sampling for nonferrous metallic minerals;
• Makes changes to the application, review and permitting process;
• Moves the administrative contested case hearing from prior to the permitting decision to after the permitting decision;

If enacted, the legislation would be the second significant mining legislation to become law in Wisconsin in recent years. In 2013, Wisconsin enacted new legislation to separate ferrous mining laws and regulations from non-ferrous metallic mining laws, arguing that iron mining does not unearth the sulfide material that was the reason for the sulfide ore mining moratorium.

Husch Blackwell will continue to monitor this legislation as it advances through the legislative process.