Nancy Langston Testimony Opposing SB1 and AB1 01.23.13

Testimony on for Senate Committee on Workforce Development, Forestry, Mining, and Revenue and Assembly Committee on Jobs, Economy, and Mining

January 23, 2013

Distinguished members of the Senate and Assembly Committees:

Thank you for the opportunity to provide written testimony on my opposition to

SB1/AB1. Overseas travel means that I cannot give this testimony in person. I am a

member of the Lake Superior Binational Forum, a resident of Wisconsin, a property

owner in Cornucopia WI (in Bayfield County, which would affected by the proposed

taconite mine), and a professor who researches the effects of historic mining projects in

the Lake Superior basin.

A set of binational agreements guide management of Lake Superior resources:

U.S.-Canada Great Lakes Water Quality Agreement, the Lake Superior Lakewide

Management Plan, and the Zero Discharge Demonstration Program. Mining within the

Lake Superior basin must be carried out in accordance with these agreements. The

following provisions in SB1/AB1 are not consistent with the agreements.

Compliance with the Lakewide Management Plan

The Lake Superior Lakewide Management Plan (LaMP) provides the guiding

framework for the management interventions needed to maintain and restore the physical,

chemical and biological integrity of the lake. Wisconsin is a signatory party to the LaMP.

Before permits are issued for a mining operation within the Lake Superior Basin,

proposed mines must be shown to meet the environmental standards developed within the

LaMP. Specifically, before any state or province in the Lake Superior basin issues a

permit to operate a mine in the basin, that permitting process should require that the

company prevent the discharge of any contaminant-containing materials that will add

new stresses to streams, rivers, and wetlands within the Lake Superior basin. AB1/SB1

does not meet this requirement.


SB1/AB1 includes a general legislative finding that because of the fixed location

of ferrous mineral deposits, it is probable that mining those deposits will result in adverse

impacts to areas of special natural resource interest (ASNRI), and to wetlands in areas of

special natural resource interest (ASNRI wetlands), and that the use of wetlands for

mining activities in a way that would result in a significant adverse impact on wetlands is

presumed to be necessary. I am concerned that this provision is not consistent with the

LaMP and the Great Lakes Water Quality Agreement.

Current law prohibits the Wisconsin Department of Natural Resources (DNR)

from considering proposed mitigation as part of the review of an application for water

quality certification for any part of a project that will adversely impact an ASNRI

wetland. Under AB1/SB1, mitigation may be used to offset adverse impacts to all types

of wetlands, including ASNRI wetlands.

Current law generally requires that mitigation must occur within 1/2 mile of an

impacted wetland, which is considered “on-site” mitigation. If the DNR determines that

on-site mitigation is not practicable, the DNR must allow mitigation to be performed as

1near as practicable to the location of the adversely impacted wetland. AB426 weakens

these protections and allows mitigation to include purchases of credits from a mitigation

bank located anywhere in the state.

These provisions are unacceptable for ensuring water quality in the Lake Superior

basin. Wetlands outside the basin cannot perform critical ecological functions for Lake

Superior. No net loss of wetlands should be allowed to occur within the basin, and that

any mitigation should happen on site, or as near as practicable to the location of the

adversely impacted wetland, as is currently the law.

Regulation of Mining Waste

Mining operations produce waste in the form of overburden, tailings, and waste

rock. SB1/AB1 eliminates a requirement that a mine waste facility, where practicable,

should be located so that tailings pipelines do not cross any major watercourse or pass

through any wetland. I am concerned that this would put watercourses and wetlands at

unnecessary risk.

SB1/AB1 allows for mining waste to be put in places where the DNR determines

that there is a reasonable probability that the waste will result in a violation of surface

water or groundwater quality standards. This violates the core Zero Toxic Discharge

principle that both surface water and groundwater quality must be protected from toxic


SB1/AB1 does not allow the DNR to continuously and responsibly inspect and

monitor a mining waste site to ensure public and environmental health. Specifically, the

bill does not expressly authorize the department to monitor the site or facility. The bill

eliminates a provision requiring the submission of water elevation measurements and

sampling and requiring specified types of groundwater sampling. The bills remove

recordkeeping requirements for monitoring a ferrous mineral surface mine that is

backfilled with mining waste. These provisions could affect water quality, which cannot

be ensured without responsible monitoring.

Water Quality

Water quality objectives that are developed for any proposed mine site in the

Lake Superior basin should be consistent with the goals and objectives developed for the

LaMP. Technologies and practices that adequately contain and recycle waste water and

remove or encase toxic material and excessive sediment need to be implemented. Current

Wisconsin rules require that water runoff from a mining site be managed to prevent soil

erosion, flooding, damage to agricultural lands or livestock, damage to wild animals,

pollution of ground or surface waters, damage to public health, and threats to public

safety. SB1/AB1 would change this, so that only erosion control and storm water are

managed. This is a problem, because water runoff requires close management to prevent

flooding, wildlife damage, pollution of ground or surface waters, and damage to public

health and threats to public safety.

Shoreland and Floodplain Zoning

Wisconsin's current shoreland and floodplain zoning programs establish setback,

grading, and other parameters for land located within 1000 feet of a navigable lake, pond,

or flowage, and 300 feet from a navigable river or stream. These zoning programs are


essential for protecting water quality and riparian habitat within the Lake Superior basin.

SB1/AB1 exempts ferrous mining activities from floodplain and shoreland zoning

ordinances. Specifically, the bills provide that the DNR may not prohibit a waste site,

structure, building, fill, or other development or construction activity in an area that

would otherwise be prohibited under a shoreland or floodplain zoning ordinance, if the

activity is authorized as part of a ferrous mining permit. Finally, the bills specify that an

applicant for a ferrous mining permit need not obtain a variance from floodplain or

shoreland zoning ordinance for such activities." In other words, tailing and waste might

be located within a floodplain or riparian area, without any variance required. These

provisions are not consistent with the LaMP.

Grounds for Denial

Current law requires the DNR to deny an application for a mining permit if the

mining operation is reasonably expected to cause " substantial deposition in stream or

lake beds that cannot be feasibly prevented; or 4) the destruction or filling in of a lake

bed." SB1/AB1 weakens these grounds for denial. Deposition, destruction, or filling in of

stream or lake beds are inconsistent with the LaMP and should continue to be grounds for

denial of a mining permit.

Cleanup responsibilities

Past mining history along Lake Superior shows that decades after mines have

ceased to operate, mine waste in various forms has remained a potential source of

contaminants to the environment. SB1/AB1 would reduce a mine operator’s obligation to

provide proof of financial responsibility for long-term care of a mining waste site. This

provision could undermine future compliance with LaMP goals and objectives.

Citizen representation and oversight

Citizen participation and oversight is at the core of sustainable development.

SB1/AB1 would weaken Local Citizen Committees and eliminate Citizen Suits and

Contested Case. Restricting the rights of citizens and local communities is not consistent

with the existing Great Lakes Water Quality Agreement.

Wisconsin mining regulations must remain consistent with the Binational

Program, the Great Lakes Water Quality Agreement, the Lakewide Area Management

Plan, and the principles of the Zero Toxic Discharge Demonstration Program. Mining

projects should not be exempted from adherence to environmental regulations. The law

should continue to require that permitting authorities be provided with ample evidence of

the feasibility and effectiveness of proposed protections to water quality before approving

any permits.


Nancy Langston N5929 Schneeberger Rd, Albany WI 53502