Wis. Dems Brace for Changes in Mining Law 12.07.12 


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By Rebecca Kemble, December 7, 2012

On Thursday the Senate Select Committee on Mining wrapped up its deliberations on a proposal to update Wisconsin’s mining law. The committee discussed 19 provisions in five categories: Streamlining the permit process, protecting the public voice, technical changes, protecting the taxpayer, and fees.

Chairman Tim Cullen (D-Janesville) reiterated his intention for the committee’s work to reflect the cumulative knowledge gained from the twenty or so expert witnesses who testified in public hearings over the course of the past two months. The committee hopes to have a draft bill ready for public hearings at the start of the new legislative session sometime in January.

Two major changes to current law are among the 19 recommendations. One is putting a limit of two years on the permitting process with provisions to enable the Department of Natural Resources to pause the process for up to 6 months, and for the applicant to pause the process an unlimited number of times at their discretion.

Sen. Cullen reasoned: “A mining company applies for a permit because it wants the answer of ‘yes.’ If the regulators tell the company that they need more time in order to come up with a yes decision, it is in the company’s interest to pause the process themselves.”

The second significant change shifts the master hearing – a proceeding overseen by an administrative law judge that establishes a legal record of sworn testimony and fact that can be used as a basis for any subsequent lawsuit – from before the DNR issues a final mining permit to immediately after the permit is issued, and prevents the mining company from proceeding with any mining activities until the hearing is concluded.

Sen. John Lehman (D-Kenosha) and Sen. Jon Erpenbach (D-Middleton) both raised questions about the timing. “Over the years I’ve been involved in hearings where people come in and feel the decision has already been made. They’re given a voice, but no power,” said Lehman. Erpenbach added, “Public input after they’ve made the decision diminishes the public voice.”

Sen. Jim Holperin (D-Conover) outlined the practical consequences of disempowering citizens in the process. “If the master hearing process is modified significantly to exclude the citizens’ voice, there’s more than one way to skin a cat and citizens will use them.” He added, “If this is changed, there will be public protests and legal challenges to the law outside of the master hearing process. There will be local ordinances adopted that are stricter than state law, etc.”

Mary Lazich (R-New Berlin) looks on as Jim Holperin (D-Conover) weighs in on the discussion. Photo by Rebecca Kemble

This proposal to change Wisconsin mining law comes in reaction to the attempt of one mining company to get a law passed that would facilitate and expedite their proposed 21-mile-long, 1,000-foot-deep open pit iron ore mine on the shores of Lake Superior.

AB 426 was written by lawyers for the company and from Wisconsin Manufacturers and Commerce. It would have sped up the permitting process, exempted iron mining from complying with environmental standards, and severely weakened the ability of members of the public to have meaningful input into decision making processes. Mining company officials said these regulatory changes were required to afford them and their investors more business certainty in the permitting process.

The iron ore deposit is located deep under the Penokee Hills interritories ceded to the U.S. by Ojibwe tribes in the 19th century in exchange for perpetual use and natural resource management rights in the area. Rights contained in those treaties and upheld by modern courts require co-management of natural resources between the state and the tribes. No meaningful consultation on AB 426 ever took place.

AB 426 passed the Assembly but failed by one vote in the Senate last spring after Dale Schultz (R-Richland Center) joined the Democratic senators in voting it down. After the bill’s failure, the mining company, Gogebic Taconite, said that they were no longer interested in mining in the Penokees.

However, this fall GOP leaders suggested that they would try to pass AB 426 again if they could win back one more state senate seat in November. Wisconsin Manufacturers and Commerce and other outside groups poured more than $2 million into defeating Jess King (D-Oshkosh), which gave Republicans an 18-15 majority and confidence that they have the votes to pass the bill.

Sen. Cullen’s committee has established a more robust public record of facts and expert opinion from various points of view about current mining laws as well as recommendations for updating them. Cullen has taken seriously and at face value mining industry complaints about Wisconsin’s allegedly unwieldy and ambiguous timeline provisions in the law. The goal of his committee was to openly address these issues without weakening environmental protections or public process.

While skeptical that the bill coming out of this committee will ever make it to the floor of the senate for a vote, members of the committee hope that the process of developing it will have educated and enlightened the public as well as their Republican colleagues enough to win at least one vote against another version of AB 426 should it be proposed again.

Sen. Jauch (D-Poplar), who represents the region on the shores of Lake Superior, lauded the leadership of Sen. Cullen and the committee process. “The open and transparent process, at the very least, should be applauded by all regardless of their position on the details. Whether they’re for or against mining, they should acknowledge the openness of this process.” He added, “Ultimately, what we’ve done in this committee is demonstrated good government.”

Sen. Cullen concluded: “I realize it’s easy to call this committee Democratic, lame duck, irrelevant… But you can’t eliminate the information and the facts that this committee heard.” Anticipating robust debate on this or any other mining bill that comes to the senate floor he said, “It will be extremely difficult to deny our work product.”

In his closing remarks, Sen. Schultz forewarned, “There will be an attempt to apply a slathering of dollars to frustrating what this committee has done. But like my father use to say, a lie makes it twice around the world before the truth gets its pants on.” He further warned that if AB 426 passed, multiple lawsuits and direct actions by those opposed to mining in the Penokee Hills would likely be the result.

At least one northern Wisconsin resident agrees with Schultz’s assessment. This comment on a Facebook discussion thread got multiple thumbs-up: “It flat ass doesn't matter what they decide in Madison. There will be no mining in the Lake Superior watershed.”

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

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