Friends and Neighbors,
At a meeting earlier this week in Wausau, DNR regulators asked the question, “What is happening in Iron County.” The question arose because it was stated that Iron County was holding a hearing on the issuance of a conditional use permit for bulk sampling to GTac (our mining company). That permitting process was based on the Wisconsin DNR stating that GTac’s bulk sampling plan was “complete.” Officials at the meeting exclaimed, “We never said that!”
When that news got to Iron County, officials said, “Yes you did!”
The DNR said, “We can’t, we have no authority or reason to say that. There is no such thing as a bulk sampling permit, no required submission of any plan. So how can we say anything is complete?”
As a result of investigation, yesterday, late in the afternoon, local attorney and former Iron County DA and Corporate Counsel, Tony Stella, sent the following email to Iron County Zoning Administrator, Tom Bergman:
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Tom:
After reviewing the Iron County Ordinance pertaining to bulk sampling, I believe it is fundamentally flawed, and that it currently defines bulk sampling in a way that does not allow for a permit to be issued by the county.
Section 9.7.14 (D) (1) of the Iron County Ordinances defines bulk sampling as: " excavating in a potential mining site by removing material for the purpose of obtaining site-specific data to assess the quality and quantity of a deposit pursuant to a permit under section 295.45 (1) Wisconsin Statutes and as set forth in section 295.41(7) as amended. "
The problem is, there is no such thing as a bulk sampling permit under 295.45(1).
Further, Section 9.7.14 (E) of the county ordinance states: "Bulk sampling under 295.41 (7) of any kind pursuant to a DNR permit 295.45 (1) for ferrous metallic mineral mining is a conditional use in the R-3, A-1, A-2, C-1, I-1, I-2, F-1, and W-1 districts.
First, there appears to be a word or two missing, as I think it was meant to read "DNR permit UNDER 295.45(1). But, again, there is no permit under 295.45(1), so it follows that there can be no conditional use. The ordinance makes clear that bulk sampling PURSUANT TO A DNR PERMIT is a conditional use, so if there is no permit, there can be no conditional use allowed.
This is more than just a technicality, because there is a strong argument here that those who voted for this provision assumed the county would not be allowing a conditional use in the absence of a DNR permit. As it turns out, the state law requires no such permit. I believe the county must pass a new ordinance if it intends to issue a bulk sampling permit, otherwise bulk sampling is a use that is not currently allowed.
The county ordinance also indicates at 9.7.14 (F) (2) that the applicant must submit "The Bulk Sampling Plan that is submitted to and deemed complete by the Wisconsin Department of Natural Resources."
The problem here is there is no mechanism for determining that the plan is complete. The law does not require the DNR to make such a determination, and it is my understanding that no such determination will be made.
It is clear that the ordinance was drafted and passed without a complete understanding of the state laws that it references. It is also very probable that board members approving this measure assumed the county would only be approving bulk sampling after a permit for bulk sampling is issued by the DNR. This position is strengthened by the fact that it was brought up several times in debate by several parties that the county was needlessly duplicating what the state was already required to do. That position was argued more than once by impact committee chair Leslie Kolesar, and by GTAC representatives. The implication was that the DNR would protect the county and would not issue a permit unless it was safe. The language of the ordinance clearly suggests that the county would be relying on the DNR's expertise in determining whether to issue a permit before the county would issue one. As it turns out, there is no requirement for a bulk sampling permit at the state level, and the county efforts to require such a permit do not duplicate state requirements in any way.
This must also be viewed in the context of recent developments wherein GTAC has informed the DNR that it is not obligated to provide certain information regarding bulk sampling, and wherein GTAC made it a point to note that no bulk sampling permit is required from the state. This makes the county's ordinance even more important, since the county can require what the DNR cannot. This situation brings in focus the importance of the county mining ordinance and what many have been trying to tell county officials for a long time now --namely, the county must look to protect its own interests because the mining law passed by the state does not allow the DNR to do so.
I believe a new ordinance must be drafted redefining the conditions which must precede the issuance of a permit by the county. The current conditions, i.e., that a DNR permit be issued and/or that the bulk sampling plan be deemed complete will never be met.
I suggest the county discuss this with counsel before proceeding further. There is strong interest in litigating this if there is an attempt to proceed under the current ordinance. Thank you for your attention to this. I would be happy to discuss this further if you would like to.
Tony Stella
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What does this mean?
Well, the effect on the mining company could end up being minimal or substantial. If Iron County has to rewrite and pass a new ordinance or just change parts of it there could be only a small delay in the start of GTac’s bulk sampling process since they do not yet have their stormwater permit. A longer delay could result if it is determined that that Iron County has no business issuing a bulk sampling permit if the state doesn't. That's more complicated.
What this does demonstrate is twofold:
First of all it points out yet another problem with Act 1 (Chapter 295 et. al.). Under the old law (Chapter 293), bulk sampling was considered exploration and required a license from the DNR. It also required submission of a plan which contained information about potential harmful materials, damage to environment, etc.. It required that all data derived from that exploration (including economic assays of the value of the deposit) be shared with the DNR. It required a public hearing, a reclamation plan, etc. all to be approved by DNR. Under 295 the mining company is not required to do anything (see the word "may" at the beginning of 295.45) and therefore the county and its residents are not protected in any way by the state. Basically, under Chapter 295.45 the mining company can do what it wants when it wants with no control or responsibility to anyone. A conditional use permit from the county based on a plan that can change at any time is an absurdity.
Add this to the recent rejection of Act 1 by the Army Corps of Engineers and you are looking at the beginning of a very long series of legal challenges to the bill.
Secondly, the email points out the ineptitude of the IC board. We paid a high priced attorney $24,427.50 to write an ordinance which, as we now know, is useless. Nobody at the county level bothered to read the state law (295.45) which it referenced!
Best regards,
Dick Thiede