Exemptions for metallic mining appear in sections of the Wisconsin Administrative Code relating to water quality standards for wetlands (s. NR 103.06), the well compensation program (s. NR 123.02), nonmetallic mining (s. NR 135.02), groundwater quality (s. NR 140.03), industrial lagoons (s. NR 213.02), land treatment of industrial liquid wastes (s. NR 214.02), air program construction permits (s. NR 406.08), well construction and pump installation (s. NR 812.02), and injection wells (ss. NR 815.03 (30) (Note), 815.06, and 815.11).

The objective of the proposed rules is to implement 2013 Wisconsin Act 1. The proposed rules clarify that ferrous mining activities are regulated under the new subchapter III of Chapter 295, Wis. Statutes created by 2013 Wisconsin Act 1. The proposed rules 1) revise the mining regulations in chapters NR 130, 131, 132, and 182, Wis. Adm. Code, to clarify that these rules apply only to nonferrous mining; 2) revise the solid waste regulations in chapters NR 500 through 538 to be consistent with the new ferrous mining law and to clarify that the rules apply only to solid waste facilities that are not regulated under the mining laws; and 3) revise sections of other regulations that currently provide an exemption for metallic mining activities so that the rules are consistent with 2013 Wisconsin Act 1.

The Department has reviewed all NR chapters and has proposed amendments to those rules where amendments are required by section 103 of 2013 Wisconsin Act 1. The proposed rules generally add language to specific sections so that the rules are consistent with the new ferrous mining law, subch. III of ch. 295, Wis. Statutes, and with other statutory amendments made by 2013 Wisconsin Act 1.

The Department has determined that some rules identified in section 103 do not require revision. The Department has not proposed revisions to chs. NR 540 to 555 of the solid waste rules because these rules do not apply to metallic mining. The Department has not proposed revisions to chs. NR 660 to 679, the hazardous waste rules, because the applicable rules are required by federal law and thus the existing rules are in accordance with the new ferrous mining law.

The Department has also determined that certain rules identified in the scope statement do not require amendment. No changes to ch. NR 150, Wis. Adm. Code, are needed in this Board Order because a separate Board Order, OE-46-10, proposes to amend ch. NR 150 in a way that complies with 2013 Wisconsin Act 1. The proposed revision to ch. NR 150 (which was approved for public hearing by the Natural Resources Board in February 2013) includes a s. NR 150.30 (j) that applies equally to ferrous and nonferrous mining and that provides generally that if there are conflicting procedures for environmental review in other statutes, those procedures govern. No changes are required to the fee exemption provision of ch. NR 216 provided for nonferrous metallic mining storm water permits because no storm water permit fee will be required for a ferrous mining storm water permit application. No changes are required in ch. NR 350 because the applicable provisions in ch. NR 350 are consistent with the statutory provisions for regulation of ferrous and nonferrous mining.

The changes in state law made by 2013 Wisconsin Act 1 and the changes in state rules proposed in this Board Order apply to the State of Wisconsin's regulation of mining activity. All applicable federal laws continue to apply to proposed ferrous and nonferrous mining activities. The proposed changes do not conflict with any applicable federal laws and regulations.

Both ferrous and nonferrous metallic mining activities must meet the requirements of federal laws such as the Clean Water Act, 42 U.S.C. ss. 1342, and the Clean Air Act, 42 U.S.C. ss. 4209. These federal laws are administered by EPA and the U.S. Army Corps of Engineers (ACOE). In addition, hazardous wastes are subject to federal hazardous waste laws under RCRA, Subtitle C, although mining wastes are generally exempt from federal hazardous waste laws under the Bevill Exclusion (42 U.S.C. s. 6921 (b) (3) (A)).

The ferrous metallic mining statute, s. 295.51 (1e) (b), specifies that mining wastes that are hazardous are subject to regulation under subchapter III of chapter 295, and not under chs. NR 660 to 679, the state's hazardous waste rules, except as necessary to comply with applicable federal hazardous waste regulations adopted under the federal Resource Conservation and Recovery Act, 42 U.S.C. ss. 6901 to 6991m (RCRA). The Department is authorized by the EPA to administer the federal hazardous waste program in Wisconsin. The state is required to have regulations that are at least as stringent as those required by federal law. State hazardous waste rules that identify when a waste is hazardous (e.g., if the waste has certain characteristics or meets specific listings) parallel and are equivalent to the federal hazardous waste regulations. State regulations that identify when a mining waste is exempt from regulation also exactly parallel to federal law under the Bevill Exclusion. Because the applicable state regulations in chs. NR 660 to 679 are necessary to comply with federal hazardous waste regulations, no changes are proposed in these chapters.

The Department's proposed rules implement changes required by 2013 Wisconsin Act 1. The Department has not prepared a detailed analysis of ferrous mining rules in adjacent states. In a memorandum dated October 26, 2011, the Wisconsin Legislative Council prepared an analysis of the mine permitting process in adjacent States at the request of the Senate Select Committee On Mining Jobs. The analysis is titled, “Ferrous Mining Permit Application Process in Wisconsin, Minnesota, and Michigan." At present, both Minnesota and Michigan have active ferrous mining operations.

The Department reviewed current rules to determine if amendments were required by section 103 of 2013 Wisconsin Act 1. The Department did not conduct any other analysis or use specific data to support the proposed changes to the rules. The Department made no changes other than those directed by section 103.

The department did complete the Fiscal Estimate and Economic Impact Analysis form [DOA-2049 (RO3/2012)] as part of this rule analysis.

The Department does not believe these proposed rule changes will affect small businesses.

The Small Business Regulatory Coordinator may be contacted at smallbusiness@dnr.state.wi.us, or by calling (608) 266-1959.

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

The Department believes the proposed rule changes will have no economic effects as the proposed rule changes simply act to ensure the rules are consistent with current statutory provisions governing ferrous and nonferrous metallic mining. Consequently, the Department believes the promulgation of these proposed rule changes will have no economic effect on small or large businesses or on state or local governments. This rule drafting effort followed the direction set forth in section 103 of 2013 Wisconsin Act 1 to clarify the applicability of existing metallic mining administrative rules to nonferrous mining activities regulated under subchapter III of chapter 295, as described in Wisconsin Act 1. The proposed rules clarify the applicability of administrative rules to ferrous and nonferrous mining activities and will align administrative codes to the current mining law. To the extent that there are economic impacts due to changes in the law, those impacts will come from the changes made by the Legislature, not these proposed rule changes.

The Department believes these proposed rule changes, in and of themselves, will not have an economic impact on any private sector businesses and consequently the significance level of these rules will be minimal.

STATE OF WISCONSIN DEPARTMENT OF ADMINISTRATION DOA-2049 (R03/2012)	Division of Executive Budget and Finance 101 East Wilson Street, 10th Floor P.O. Box 7864 Madison, WI 53707-7864 FAX: (608) 267-0372
ADMINISTRATIVE RULES Fiscal Estimate & Economic Impact Analysis

1. Type of Estimate and Analysis
⍽ Original   X Updated   ⍽ Corrected
2. Administrative Rule Chapter, Title and Number
Several Administrative codes: Chapters NR 130, 131, 132, and 182, Wis. Adm. Code relating to metallic mining, Chapters NR 500 to 518, 524, 528 and 538, Wis. Adm. Code relating to solid waste management, and, Chapters NR 103, 123, 135, 140, 213, 214, 406, 812, and 815, Wis. Adm. Code to provide the same exemptions for ferrous mining and associated activities that exist for nonferrous mining activities.
3. Subject
Implementation of Section 103 of Wisconsin Act 1. The proposed rules will revise the following: • Chapters NR 130, 131, 132, and 182, Wis. Adm. Code and other rules promulgated under section 293.13 (1) (a) of the statutes to clarify these chapters do not apply to ferrous metallic mining, • Chapters NR 500 to 518, 524, 528, and 538, Wis. Adm. Code and any other rules promulgated under sections 289.05 and 289.06 (1) of the statutes so these rules are consistent with ferrous mining law, subch. III of chapter 295 of the statutes, and, • Other rules that provide exemptions for nonferrous mining or associated activities to provide the same exemptions for ferrous mining and associated activities in accordance with 2013 Wisconsin Act 1.
4. Fund Sources Affected			5. Chapter 20, Stats. Appropriations Affected
⍽ GPR   ⍽ FED   ⍽ PRO   ⍽ PRS   ⍽SEG   ⍽ SEG-S			No
6. Fiscal Effect of Implementing the Rule
X No Fiscal Effect ⍽ Indeterminate	⍽ Increase Existing Revenues ⍽ Decrease Existing Revenues		⍽ Increase Costs ⍽ Could Absorb Within Agency's Budget ⍽ Decrease Cost
7. The Rule Will Impact the Following (Check All That Apply)
⍽ State's Economy ⍽ Local Government Units		⍽ Specific Businesses/Sectors ⍽ Public Utility Rate Payers ⍽ Small Businesses (if checked, complete Attachment A)
8. Would Implementation and Compliance Costs Be Greater Than $20 million? ⍽ Yes   X No
9. Policy Problem Addressed by the Rule
These proposed rule changes do not address a specific policy problem, but rather align administrative rules with current law as directed by section 103 of 2013 Wisconsin Act 1. The changes will clarify the applicability of existing metallic mining administrative rules and 2013 Wisconsin Act 1.
10. Summary of the businesses, business sectors, associations representing business, local governmental units, and individuals that may be affected by the proposed rule that were contacted for comments.
The Department does not believe the proposed rule changes will have any economic impacts. However, the Department did solicit comments on a draft of this Fiscal Estimate / Economic Impact Analysis (FE/EIA) from parties that could be interested in the proposed rule changes. These interested parties included Native American Tribes, environmental groups, federal environmental agencies, mining companies, business associations, etc. The Department received one response letter from the Red Cliff Band of Lake Superior Chippewa. The letter states that the Fiscal Estimate/Economic Impact Analysis is inherently flawed. However, the Band's comments appear directed primarily to 2013 Wisconsin Act 1 and potential future mining activity. The Department believes that the proposed rules will not have an economic impact on Native American Tribes or tribal members.
11. Identify the local governmental units that participated in the development of this EIA.
The Department shared the draft of this FE/EIA with local government representatives. The Department did not receive comments from local governments or from associations representing local governments. The Department does not believe the proposed changes will have economic impacts to local governments.
12. Summary of Rule's Economic and Fiscal Impact on Specific Businesses, Business Sectors, Public Utility Rate Payers, Local Governmental Units and the State's Economy as a Whole (Include Implementation and Compliance Costs Expected to be Incurred)
The Department believes the proposed rule changes will have no economic effects as the proposed rule changes simply act to ensure the rules are consistent with current statutory provisions governing ferrous and nonferrous metallic mining. Spending will not be affected as the changes should not influence commercial activities related to mining. The proposed rules clarify the applicability of administrative rules to ferrous and nonferrous mining activities and will align administrative codes to the current mining law. The changes do not affect the location or quantity of ferrous or nonferrous metallic material that may be mined as the amount and location of mining activities is driven by location of the mineral deposit. Spending will not be affected as the changes should not influence commercial activities related to mining.
13. Benefits of Implementing the Rule and Alternative(s) to Implementing the Rule
The proposed rules will provide for a more clear understanding, and consistent implementation, of administrative rules as they apply to mining activities. Other alternatives were not considered because this approach is directed in the non-statutory provisions of section 103 of 2013 Wisconsin Act 1.
14. Long Range Implications of Implementing the Rule
The proposed rules clarify the applicability of the Department's administrative rules to both ferrous and nonferrous mining activities.
15. Compare With Approaches Being Used by Federal Government
The changes in state law made by the 2013 Wisconsin Act 1 and the proposed changes in state administrative rules constitute the State of Wisconsin's regulation of mining activity. All applicable federal laws continue to apply to proposed ferrous and nonferrous mining activities. The proposed rule changes do not conflict with any applicable federal laws and regulations. Both ferrous and nonferrous metallic mining activities must meet the requirements of federal laws such as the Clean Water Act and the Clean Air Act administered by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACOE).
16. Compare With Approaches Being Used by Neighboring States (Illinois, Iowa, Michigan and Minnesota)
The Department's proposed rules implement changes required by the 2013 Wisconsin Act 1. In a memorandum dated October 26, 2011, the Wisconsin Legislative Council prepared an analysis of the mine permitting process in adjacent States at the request of the Senate Select Committee On Mining Jobs. The analysis is titled, “Ferrous Mining Permit Application Process in Wisconsin, Minnesota, and Michigan". A copy of this analysis will be provided upon request. At present, both Minnesota and Michigan have active ferrous mining operations. Neither Iowa or Illinois have active metallic mining programs. Iowa does not have metallic mining regulations. Illinois regulations for mining are focused on specific areas covering mine reclamation, mine safety, abandoned mines, and oil & gas.
17. Contact Name				18. Contact Phone Number
Edward Lynch				(608) 267-0545

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.16 and 227.17, Wis. Stats, the Department of Natural Resources, hereinafter the Department, will hold a public hearing to consider modification of requirements under subch. III of ch. NR 446, Wis. Adm. Code, related to the control of mercury emitted by coal-fired electric generating units, on the date and at the time and location listed below.

Date:   Tuesday, November 12, 2013
Time:   10:00 a.m..
Location:   Natural Resources State Office Building
  Room 713
  101 South Webster Street
  Madison, WI

Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI 53703; by email to robert.eckdale@wisconsin.gov; or by calling (608) 266-2856. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.

The proposed rule and supporting documents, including the fiscal estimate and economic impact analysis, may be viewed and downloaded from the Administrative Rules System Website at https://health.wisconsin.gov/admrules/public/Rmo?nRmoId=14923. If you do not have internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate and economic impact analysis, may be obtained free of charge by contacting Robert Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St., Madison, WI, 53703, or by calling (608) 266-2856.

Comments on the proposed rule must be received on or before November 14, 2013. Written comments may be submitted by U.S. mail, fax, email, or through the internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:

Sections 227.11 (2) (a) and 285.11 (9), Wis. Stats.

Sections 227.11 (2) (a) and 285.11 (9), Wis. Stats.

Wisconsin statute s. 227.11 (2) (a) authorizes the Department to promulgate rules interpreting the provisions of any statutes enforced or administered by it. Wisconsin statute s. 285.11 (9) authorizes the Department to prepare and adopt minimum standards for the control of mercury emissions.

This proposed rulemaking affects control of mercury emissions as required under subchs. II and III of ch. NR 446, Wis. Adm. Code. These rules were established in 2008 under authority of s. 285.11 (9), Wis. Stats., which in turn refers to requirements under s. 285.27 (2) (b), Wis. Stats. The latter statute allows promulgation of state emissions limitations for hazardous pollutants only if there is a finding that control of emissions is needed to protect human health and welfare. A health and welfare finding was made for the 2008 mercury rulemaking process.

Wisconsin statute s. 285.27 (2) (d) specifies that sources of hazardous air pollutants are exempt from state rule requirements when emissions are regulated by federal rules promulgated under section 112 of the Clean Air Act (CAA). This means that electric generating utilities (EGUs) will be exempt from requirements under subchs. II and III of ch. NR 446, Wis. Adm. Code, when their mercury emissions are regulated under the federal Mercury and Air Toxics Standards (MATS) and Industrial, Commercial and Institutional (ICI) Boiler rules.

Mercury emitted by coal-fired EGUs is regulated by the state under subchs. II and III of ch. NR 446, Wis. Adm. Code. This administrative code is commonly referred to as the “state mercury rule" with subchapter II referred to as phase 1 and subchapter III as phase 2. The action proposed in this Board Order will delay the initial compliance date for emission reductions required under phase 2 of the state mercury rule until April 16, 2016.

Under phase 2 of the original state mercury rule, 31 EGUs are required to achieve 90 percent control of mercury by January 1, 2015. Currently, these EGUs are subject to a 40 percent control requirement under phase 1 of the state mercury rule. Phase 2 of the state mercury rule will also require four smaller EGUs not affected under phase 1 to begin operating best available control technology (BACT) by January 1, 2015.

The same coal-fired EGUs subject to the state mercury rule will also be subject to mercury emission limits under one of two recently promulgated federal rules: the MATS rule or the ICI Boiler rule. EGUs subject to the MATS rule must demonstrate compliance by April 16, 2015. The EGUs subject to the ICI Boiler rule must demonstrate compliance by January 31, 2016. However, individual EGUs may request a one-year extension to any federal rule regulating hazardous air pollutant emissions as allowed under section 112 of the Clean Air Act.

Under the current schedule of compliance dates, EGUs will be subject to phase 2 of the state rule three and a half months before compliance is required under the MATS rule and thirteen months before compliance is required under the ICI Boiler rule. However, according to s. 285.27 (2) (d), Wis. Stats., EGUs will be exempt from state mercury rule requirements when mercury emissions are regulated under the federal rules. Therefore, under the current compliance schedules, EGUs would comply with phase 2 of the state mercury rule for only a short period of time.

The Department has concluded that requiring compliance with phase 2 of the state mercury rule for a short period of time is not warranted for a number of reasons. First, state law directs that mercury emissions will be regulated in the long-term by any promulgated federal requirement. Second, the Department believes that meeting requirements of both the state and federal rules adds complexity, cost, and compliance burden for the affected EGUs. Lastly, with the federal rules becoming effective on April 16, 2015 and January 31, 2016, and the state rule no longer applicable after those dates, delaying the state mercury rule requirements will not result in higher levels of mercury emissions compared to implementing only the state rule.

Therefore, the Department is proposing to delay the compliance date for phase 2 of the state mercury rule from January 1, 2015 to April 16, 2016. The Department is proposing this date to accommodate individual EGUs subject to the MATS rule that may require a one-year extension. It is the Department's opinion that EGUs affected by the ICI Boiler rule will not request a one-year extension and therefore will not require the compliance date for phase 2 of the state mercury rule to be one year after the ICI Boiler rule's compliance date.

In summary, this rule change will achieve the following objectives:

Information and analysis supporting this rule change are provided in the report “Wisconsin's State Mercury Air Emission Rule." This report was presented to the Natural Resources Board on May 22, 2013. At that time, the Board approved the report's recommendation to extend the compliance date for meeting requirements under subch. III of ch. NR 446, Wis. Adm. Code to April 16, 2016.

As discussed in Item 5 of this Board Order, mercury emitted by 35 coal-fired boilers will be regulated under phase 2 of the state mercury rule beginning January 1, 2015. Mercury emission standards will apply to these same EGUs under either the federal MATS beginning on April 16, 2015, or the ICI Boiler rule beginning on January 31, 2016. The resulting control and mercury emission levels anticipated under either the state or federal rules are summarized in the following table. Emissions are presented through 2021 in order to show the effects of delayed implementation of mercury reductions under the state mercury rule multi-pollutant compliance option. A detailed comparison of the state and federal rules is presented in the report provided to the Natural Resources Board on May 22, 2013. The information in the table shows that the state and federal rules are expected to achieve comparable mercury emission reductions.

Year	State Rule Compliance		Federal Rule Compliance
	Percent Control	Remaining Hg Emissions (lbs.)	Percent Control	Remaining Hg Emissions (lbs.)
2015	83 – 87%	550 – 743	84 – 86%	584 – 663
2016	83 – 87%	550 – 743	87 – 89%	446 – 558
2021	89 – 92%	345 – 449	87 – 89%	446 – 558

Note: Percent control is measured from the baseline uncontrolled emissions of 4,275 pounds per year as determined under s. NR 446.06, Wis. Adm. Code. The baseline uncontrolled emissions are the average of uncontrolled emissions for 2002, 2003, and 2004.

The federal MATS and ICI Boiler rules will affect EGUs in adjacent states in the same manner as EGUs in Wisconsin. Like Wisconsin, some of these states also have existing state mercury emission standards in place. These states are responding in a variety of ways, as summarized in the following table:

State	Existing State Hg Rule (Y/N)	Response to Federal MATS
Illinois	Yes	Have not considered state response to federal MATS in detail. Expect that sources will need to meet both state and federal regulations.
Michigan	Yes	Revising the state rule to be consistent with MATS.
Minnesota	Yes	Adopting federal MATS rule. Will also require compliance with more stringent state rule.
Iowa	No	No action at this time. Waiting for EPA's response to reconsideration of the MATS rule.

The Department reviewed all applicable state statutes and administrative code. The Department determined that affected EGUs will be exempt from state mercury rule requirements when mercury emissions are regulated under federal rules. This exemption from state requirements is provided under s. 285.27 (2) (d), Wis. Stats.

The Department evaluated mercury emission control levels and remaining emissions that are expected under full implementation of either the state mercury rule or the two federal rules. The Department determined that the current compliance date of the state mercury rule may result in undue compliance burden and cost even though mercury emissions, in the long-term, will be regulated under the current federal MATS and ICI Boiler rules. Therefore, the Department evaluated options to transition regulation of mercury emissions from under the state mercury rule to the federal rules in a manner consistent with the applicable statutes. The factual data and methodologies used to evaluate the state and federal mercury rule requirements are documented in the report presented to the Natural Resources Board on May 22, 2013, which can be accessed from the May 22, 2013, agenda on the Natural Resource Board's website.

One goal of the proposed rule change is to avoid undue regulatory cost. In accordance with s. 227.137, Wis. Stats., the Department solicited information and advice from affected sources and stakeholders concerning the economic impacts of the proposed rule. The Department received comments from two affected utilities which supports the conclusion that the rule change will reduce compliance burden and cost. This information was considered in preparing the fiscal estimate and economic impact analysis.

The proposed rule will only affect electric utilities generating electricity and will not affect small businesses.

The Department has made a preliminary determination that adoption of the proposed rules would not involve significant adverse environmental effects and would not need an environmental analysis under ch. NR 150, Wis. Adm. Code. However, based on comments received, an environmental analysis may be prepared before proceeding. This analysis would summarize the Department's consideration of the impacts of the proposal and any reasonable alternatives.

The proposed rule will not result in additional cost to state and local government. The proposed rule is intended to avoid additional compliance costs for coal-fired electric generating units. Manitowoc Public Utility, the one local government entity that is affected by the rule change, has commented that the proposed rule will reduce compliance burden and avoid additional costs.