In 1998, the State of Wisconsin enacted a hallmark piece of legislation designed to protect the state’s waters from adverse mining impacts. The Churchill Mining Moratorium Law (also known as “Prove It First”) requires that, before a mining company can receive a permit from the State of Wisconsin to build a new metallic sulfide mine, the company must first prove that, anywhere in the United States or Canada, a similar mine has operated for at least 10 years and been closed for at least 10 years without the pollution of groundwater or surface water from acid drainage or from the release of heavy metals.
Laura Gauger and Roscoe Churchill attend the Protect The Earth rally in Madison, Wisconsin shortly after the Churchill Mining Moratorium Law was signed into law in the State of Wisconsin (Photo by Bill Krupinski of Jefferson, WI, June 1998).
The rationale behind the enactment of the mining moratorium law is this: Why should the State of Wisconsin allow new mines to be built by private for-profit corporations if those mines have no track record of being able to protect public drinking water reserves, lakes and streams?
WIS. STAT. 293.50 MORATORIUM ON ISSUANCE OF PERMITS FOR MINING OF SULFIDE ORE BODIES.
(1) In this section:
(a) “Pollution” means degradation that results in any violation of any environmental law as determined by an administrative proceeding, civil action, criminal action or other legal proceeding. For the purpose of this paragraph, issuance of an order or acceptance of an agreement requiring corrective action or a stipulated fine, forfeiture or other penalty is considered a determination of a violation, regardless of whether there is a finding or admission of liability.
(b) “Sulfide ore body” means a mineral deposit in which metals are mixed with sulfide minerals.
(2) Beginning on May 7, 1998, the department may not issue a permit under s.293.49 for the mining of a sulfide ore body until all of the following conditions are satisfied:
(a) The department determines, based on information provided by an applicant for a permit under s.293.49 and verified by the department, that a mining operation has operated in a sulfide ore body which, together with the host rock, has a net acid generating potential in the United States or Canada for at least 10 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.
(b) The department determines, based on information provided by an applicant for a permit under s.293.49 and verified by the department, that a mining operation that operated in a sulfide ore body which, together with the host rock, has a net acid generating potential in the United States or Canada has been closed for at least 10 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.
(a) The department may not base its determination under sub. (2)(a) or (b) on any mining operation that has been listed on the national priorities list under 42 USC 9605 (a)(8)(B) or any mining operation for which the operator is no longer in business and has no successor that may be liable for any contamination from the mining operation and for which there are no other persons that may be liable for any contamination from the mining operation.
(b) The department may not base its determination under sub. (2)(a) or (b) on a mining operation unless the department determines, based on relevant data from groundwater or surface water monitoring, that the mining operation has not caused significant environmental pollution, as defined in s.293.01(4), from acid drainage at the tailings site or at the mine site or from the release of heavy metals.
(3) This sections applies without regard to the date of submission of the permit application.
Mining Moratorium Law Under Attack
As you might expect, Wisconsin’s Mining Moratorium Law and other protective measures built into Wisconsin’s regulatory framework for natural resource protection have occasionally come under attack by those who would like to advance new mining projects in Wisconsin. In particular, the Wisconsin Mining Association (WMA) lobbied for a rescinding of the state’s Mining Moratorium Law in 2012, when new regulations governing the iron mining industry were being debated by the Wisconsin Legislature.
Click here to listen to testimony offered to the Wisconsin Senate Select Committee on Mining in September 2012 by Stephen Donohue ( http://www.wiseye.org/Video-Archive/Event-Detail/evhdid/6623 ; Website static image ). Donohue is a WMA Board Member and a director at Foth Infrastructure & Environment, an engineering consulting firm that was/is involved in various mining projects in the Great Lakes region (Rio Tinto/Flambeau, PolyMet/NorthMet, Rio Tinto/Eagle). In his testimony, Donohue made false statements about the environmental performance of the Flambeau Mine in an effort to convince legislators to weaken Wisconsin’s mining regulations and rescind the state’s Mining Moratorium Law. Testimony of particular interest starts at just under 20 minutes into the tape, as recorded by Wisconsin Eye. A transcript of some of the more egregious comments made by Mr. Donohue can be seen by clicking HERE.
Even though the Wisconsin Legislature proceeded to enact new iron mining regulations in 2013 that effectively gutted environmental protections, the Mining Moratorium Law thankfully survived. But we must remain ever vigilant.
History of the Enactment of Wisconsin’s Mining Moratorium Law
To learn about the history of the enactment of Wisconsin’s Mining Moratorium Law, please click on the below links that will take you to several chapters that appear in the book I co-authored with Roscoe Churchill about the Flambeau Mine: The Buzzards Have Landed! – The Real Story of the Flambeau Mine. Several news articles of interest can also be accessed by link:
Please note that Chapter 127 of The Buzzards Have Landed! (The Flambeau Mine Fails Wisconsin’s Mining Moratorium Test) was written BEFORE the following three legal actions involving the Flambeau Mine took place. Evidence brought forth in each of these actions further strengthens the argument that the Flambeau Mine would not qualify as a “Prove It First” example of a clean mine:
- 2007: A contested case hearing was held over Flambeau Mining Company’s (FMC’s) application for a “Certificate of Completion” (COC) for reclamation of the Flambeau Mine site. A 32-acre portion of the site known as the “Industrial Outlot” was denied COC certification due to ongoing problems with surface water pollution in a small tributary of the Flambeau River (known as Stream C) into which FMC, by design, had been discharging contaminated runoff from the mine site since 1998.
- 2010-2014: A Clean Water Act lawsuit was filed against FMC in late 2010 over the pollution of Stream C at the Flambeau Mine site. The U.S. District Court for the Western District of Wisconsin found FMC to be in violation of the Clean Water Act on numerous counts. The ruling, however, was overturned by the U.S. Court of Appeals on a technicality. The appellate court did NOT dispute the fact that Stream C is polluted or that the source of the pollution was/is the Flambeau Mine. Rather, the ruling was based on a technicality that allowed errors made by the Wisconsin Department of Natural Resources (DNR) in its administration of the Clean Water Act to “shield” the company from prosecution. At issue was the fact that the Wisconsin DNR had never required FMC to obtain a NPDES permit (National Pollution Discharge Elimination System), a requirement of the Clean Water Act that would have put strict limitations on the amount of pollutants discharged to the stream.
- 2012: Stream C at the Flambeau Mine site was, upon the recommendation of the Wisconsin Department of Natural Resources, added to the U.S. Environmental Protection Agency’s official list of “impaired waters” due to copper and zinc toxicity linked to the Flambeau Mine operation. This designation requires that corrective action be taken vis-a-vis the establishment of TMDL standards (Total Maximum Daily Load) for copper and zinc in Stream C. As of December 2014, TMDL standards are yet to be established by the department.