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Tuesday, September 30, 2014 |  Madison, WI: 48.0° F  Overcast
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Local environmental regulation at stake in Wisconsin sand mining debate
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State Sen. Tom Tiffany (R-Hazelhurst) says a Wisconsin mining bill would simply grandfather existing operations, while Sen. Kathleen Vinehout (D-Alma) says the new industry poses unknown risks.
State Sen. Tom Tiffany (R-Hazelhurst) says a Wisconsin mining bill would simply grandfather existing operations, while Sen. Kathleen Vinehout (D-Alma) says the new industry poses unknown risks.

A seven-hour legislative hearing on a proposed mining bill revolved around one question: Should local governments in Wisconsin be able to apply new environmental regulations to existing sand mining operations. Supporters said no, while opponents said yes.

On Monday, sand mining industry representatives spoke in support of a pared down version of a controversial bill, SB 349, which last fall proposed sweeping limitations on any environmental regulation by municipalities. The current legislation is narrower in scope and prohibits local communities from applying new ordinances, including environmental regulations, to established mining operations.

Representatives from small towns in western Wisconsin opposed the legislation, joined by Rick Stadelman of the Wisconsin Towns Association.

During the hearing before state Senate and Assembly committees charged with overseeing mining, supporters argued that the legislation (SB 632 and AB 816) would protect the large capital investments that mining companies make to establish mines and the jobs generated by the rapidly growing sand mining industry. Opponents cited concerns about public health and safety, arguing that the legislation would tie the hands of local communities in regulating an industry that is still in its infancy and about which little is known.

"Our goal with this legislation is to ensure that the businesses that have gone through this rigorous approval process to date won't have the rules change on them after they have made significant investments and commenced operations," said Rep. Joan Ballweg (R-Markesan), a co-sponsor of the bill.

The proponents of the bill do not believe that local government should be able to enact ordinances that deal with environmental issues.

Rep. Tod Ohnstad (D-Kenosha) suggested that local communities might want to reserve the right to enact new ordinances if future scientific research shows that mining causes environmental or health problems.

In response, co-sponsor Sen. Tom Tiffany (R-Hazelhurst) said that there were already laws on the books that address environmental degradation and that the state would take care of such problems.

"If there's environmental degradation, we have laws that cover that," Tiffany said.

Ballweg agreed that it was the proper role of the state Department of Natural Resources and federal Environmental Protection Agency to regulate environmental issues. She said that local governments do not have the expertise to make those judgments.

Effect on infrastructure

Rep. Brett Hulsey (D-Madison) expressed concerns about enforcement.

"The DNR said we need 10 more people to regulate the mining industry, [but] they got two," Hulsey said. He asked Tiffany if he would support hiring more DNR regulators.

"I do not believe it takes another eight people to regulate the industry appropriately," Tiffany said.

The DNR did not send a representative to the hearing.

Hulsey also noted the wear and tear on Wisconsin road from sand trucks. Each weighs about 80 tons and thousands of them travel on Wisconsin roads and bridges daily.

Hulsey said he was concerned about the 1,100 deficient bridges in Wisconsin that need repair and upgrading. "My own plan puts a $1 per ton fee on sand to help address this problem. I think we need to have mitigation going the other way," he said.

Hulsey said Tuesday he has submitted draft legislation he calls the "Responsible Mining Bill" (LRB 3265/2), which proposes a $1 per ton fee on sand mined in Wisconsin. These revenues would be used to pay for eight more DNR regulators and would be distributed to the municipalities to make the necessary repairs on the bridges.

Ohnstad said he was concerned that the bill was very complex and was being rushed through at the end of a legislative session without a legislative memo.

"This is a simple bill, a grandfathering bill," Tiffany countered.

Sen. Kathleen Vinehout (D-Alma) disagreed.

"The proponents of this bill argue that this bill merely grandfathers existing mines. This language is very misleading. Make no mistake. Most of these mines are not grandfathers. In fact, most of these mines are toddlers. Like toddlers, they make mistakes." Vinehout said.

She said no long-term studies exist on this industry because it is so new. "I would suggest that the state use prudence and caution in proceeding," she said. She recommended that the state start collecting data.

'A very dangerous road'

Last week the Wisconsin Towns Association had told the sponsors of the bill that it would remain neutral on the revised bill, but changed course and testified against the bill Monday.

The organization opposed the legislation in part because the case law on which it is based applies to 40-acre parcels for gravel pit operations. These are much smaller in scale than industrial sand mining operations, which can be larger than 1,000 acres.

Rick Stadelman, executive director of the Wisconsin Town Association, noted that the industry was less than five years old. "The concern is there may be new issues that come up in the future, with all due respect to people who have said the state will take over, that local governments may feel they want to get in sooner," Stadelman said. "If we’re grandfathered in with whatever ordinance we have in place, we could not amend it, we would be limited to that standard forever.”"

Eric Bott of Wisconsin Manufacturers & Commerce testified in support of the bill. "This is an important piece of legislation," he said. "It quite simply gives businesses the guarantee that they're going to keep open and employ people beyond the next town board election. We've heard it mentioned twice today that the precautionary principle is the way to go. That is, you have to prove beyond any doubt whatsoever that a given activity will not do any harm before you can commence with that activity. That's a very dangerous road to go down."

Wisconsin has the largest reserves of frac sand in the country, and mining operations are booming across a wide swath of the state. The sand used in the hydraulic fracturing (fracking) industry. Fracking is a process used to extract natural gas and oil. Wisconsin supplies about two-thirds of the sand used in North America fracking operations.

According to the Wisconsin Democracy Campaign, from 2007 through 2102, campaign contributions to Wisconsin state office candidates and legislators totaled $757,894 from sand mining and natural gas companies, increasing by 2,100 % during those years. Contributions grew from $18,762 in 2007, when there were only five active frac sand mines in Wisconsin, to $413,642 in 2012. There are 170 sand mining and processing sites in the state today.

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