Section 182.075. Groundwater standards.

 

(1)   Groundwater quality.

(a) Applicability. Notwithstanding the applicability provisions of s. NR 140.03 , under the authority of s. 293.15 (11) , Stats., mining waste facilities regulated under this chapter and other facilities situated on a prospecting site regulated under ch. NR 131 or a mining site regulated under ch. NR 132 , approved after June 1, 1998, shall comply with ch. NR 140 .

(b) Design management zones.

1. The horizontal distance to the boundary of the design management zone for mining waste facilities regulated under this chapter shall be 1,200 feet from the outer waste boundary, unless reduced pursuant to s. NR 140.22 (3) , or at the boundary of property owned or leased by the applicant, whichever distance is less. The outer waste boundary shall be the outermost limit at which waste from a facility has been stored or disposed of, or permitted or approved for storage or disposal.

2. The horizontal distance to the boundary of the design management zone for a surface mine or surface prospecting excavation shall be 1,200 feet from the edge of the mine or prospecting excavation, unless reduced pursuant to s. NR 140.22 (3) , or at the boundary of property owned or leased by the applicant, whichever distance is less.

3. The horizontal distance to the boundary of the design management zone for an underground mine or prospecting excavation shall be 1,200 feet from the maximum outer edge of the underground prospecting or mine workings adjacent to the ore body as projected to the land surface, unless reduced pursuant to s. NR 140.22 (3) , or at the boundary of property owned or leased by the applicant, whichever distance is less.

4. The horizontal distance to the boundary of the design management zone for facilities, other than the prospecting excavation, mine and mining waste facility, situated on a prospecting site regulated under ch. NR 131 or a mining site regulated under ch. NR 132 shall be as specified in Table 4 of ch. NR 140 , if listed, or 150 feet from the edge of the facility, unless expanded or reduced pursuant to s. NR 140.22 (3) , or at the boundary of property owned or leased by the applicant, whichever distance is less.

(c) Mandatory intervention boundary. The horizontal distance to the mandatory intervention boundary for a mining waste facility or a surface or underground mine or prospecting excavation shall be 150 feet from the outer waste boundary, the outer edge of the mine or prospecting excavation, or the outer edge of the underground workings as projected to the land surface, unless the boundary of the design management zone is within 300 feet of the outer waste boundary, mine, prospecting excavation, or underground prospecting, or mine workings. In no case may the mandatory intervention boundary extend more than one half the distance from the outer waste boundary, mine, prospecting excavation, or underground prospecting or mine workings to the boundary of the design management zone. The mandatory intervention boundary shall apply as specified in subs. (1s) and (1u) .

(1p)  For any substance for which there is not an enforcement standard and preventive action limit in ch. NR 140 , the waste site, mine and other facilities on a mining site may not cause concentrations which have a substantial deleterious impact on a current beneficial use or a significant future beneficial use, of groundwater, such as drinking, irrigation, aquaculture, maintenance of livestock, or maintenance of aquatic and terrestrial ecosystems, as designated at a hearing held pursuant to s. 293.43 , Stats.

(1s)   Contingency plan.

(a) At the hearing conducted under s. 293.43 , Stats. the department shall determine the adequacy of the contingency plan submitted by the applicant which specifies the action which will be taken if an analysis of groundwater samples requires a response under ss. NR 140.24 to 140.27 and 182.13 (2) (g) . The contingency plan shall provide that the response protocol include a comparison of the observed sampling results to the results of the original predictive modeling, completed as part of the mine permitting process, and updated predictive modeling performed subsequent to the start of operation. If the comparison indicates that the observed sampling results are consistent with the design and expected performance of the facility, and the sampling results indicate that an enforcement standard or a preventive action limit has not been exceeded beyond the mandatory intervention boundary, the operator may recommend a no response action in accordance with s. NR 140.24 .

(b)

1. If a preventive action limit or an enforcement standard has been exceeded beyond the mandatory intervention boundary, the department shall require a response in accordance with s. NR 140.24 , but may not approve a no action response under s. NR 140.24 (5) .

2. If a response under s. NR 140.24 (5) has previously been taken, and if subsequent monitoring results are consistent with updated predictive modeling projections and indicate that the groundwater standards will not be attained or exceeded at the design management zone, the department may determine that no additional response is necessary.

3. Notwithstanding the provisions of s. NR 182.19 , no exemption under s. NR 182.19 may be granted to subd. 1. of this subsection.

(1u)  The following requirements are to be applied in conjunction with those of ss. NR 132.11 and 182.13 . The department shall specify the parameters for groundwater analysis and may include those considered indicator parameters, those important parameters identified from the waste characterization studies, and others which might be appropriate under the specific conditions.

(a) The operator of a prospecting or mining site shall monitor groundwater quality at locations approved by the department along the mandatory intervention boundary and the boundary of the design management zone.

(b) The operator of a prospecting or mining site shall monitor groundwater quality at locations approved by the department within the mandatory intervention boundary and the design management zone.

(c) Intervention by the operator in accordance with the provisions of the contingency plan, developed in accordance with s. NR 182.09 (2) (d) and approved in accordance with ss. NR 182.08 (2) and 182.09 (1) , shall be required, regardless of the holding of any hearing pursuant to sub. (1x) , when analyses of samples from monitoring points within the design management zone or within the mandatory intervention boundary show a reasonable probability that, without intervention, there may be a violation of the established groundwater quality standards at the boundary of the design management zone. Criteria against which "reasonable probability" shall be measured are the results of the predictive modeling submitted by the applicant as part of the feasibility report and other information available to the department.

(d) Additional monitoring locations and tests may be specified by the department so that the actual effects of the mining site on groundwater quality may be compared with the effects projected in the feasibility report, mining permit application and waste water engineering report.

(e) Groundwater shall be monitored at locations approved by the department in the vicinity of the prospecting or mining site on a monthly basis for at least 12 consecutive months during the initial site preparation and construction phase at the prospecting or mining site to determine baseline water quality. Parameters analyzed shall include those substances identified in ch. NR 140 and specified by the department for monitoring, indicator parameters as specified by the department, parameters identified as important in the waste material, and any other parameters deemed appropriate by the department for the specific conditions of the site.

(f) Monitoring shall also be performed with respect to the quality of groundwater which is not affected by the site but which is in the aquifers near the site.

(1x)  

(a) If the department has reason to believe that a site is not in compliance with the requirements of this section, or if the department projects with reasonable probability that a site will not achieve such compliance at the boundary of the design management zone, it shall refer the matter to the department of justice pursuant to s. 293.95 , Stats., or hold a class 2 contested case hearing pursuant to s. 293.15 (1) , Stats., after giving 30 days notice to the persons identified in s. 293.43 , Stats. Notice to the operators shall include the specific information on which the department has based its determination. The purpose of the hearing shall be to determine the existence and extent of noncompliance or, if noncompliance does not exist, whether a site will not achieve compliance at the boundary of the design management zone. Pursuant to the hearing, the department:

1. Shall determine whether the same constitutes an immediate and substantial threat to public health and safety or the environment pursuant to s. 293.83 , Stats., and, therefore, requires the issuance of a stop order;

2. Shall determine whether to cancel the mining or prospecting permit if the site is in violation of ch. 293 , Stats. , according to the provisions of s. 293.85 , Stats.;

3. Shall determine if the noncompliance constitutes a grievous and continuous failure to comply with the approved plan of operation pursuant to s. 289.30 (7) or 289.31 (1) , Stats., and, therefore, requires license revocation; and

4. Shall determine, if appropriate, if any other sanctions authorized by s. 293.15 (3) or 293.83 , Stats., are necessary to assure compliance.

(b) A decision shall be issued with respect to a hearing held pursuant to par. (a) within 30 days of its conclusion, and shall be in writing accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise and separate statement of the ultimate conclusions upon each material issue of fact with recital of evidence.

(2)   Groundwater quantity.

(a) If the department finds that the proposed waste site will adversely affect or reduce the availability of water to any public utility, as defined in s. 196.01 (5) , Stats., in furnishing water to or for the public, it shall either deny the license or grant a license under which it imposes such conditions as to location, depth, construction and ultimate use so that the water supply of any public utility engaged in furnishing water to or for the public will not be impaired.

(b) If the department finds that the waste site would cause unreasonable harm to any person through lowering the water table or reducing artesian pressure, it shall deny the license or grant a license under which it imposes conditions whereby such unreasonable harm will be precluded.

(c) If the department finds that the waste site will have a direct and substantial effect upon a watercourse or lake, and that such water used by or coming from the site will:

1. Be put to an unreasonable use and will cause harm to an existing use of a watercourse or lake by a riparian proprietor or a nonriparian who holds a grant from a riparian proprietor of the grantor's right to use the water, or

2. Cause harm to a nonriparian exercising a right to use public or private waters created by government authority, permit, or license, or

3. Interfere with the exercise of a public right to use the waters; then the department shall deny the license or grant a license imposing conditions whereby such harm will be precluded.

(d) The department shall not deny the waste site license merely because operation of the site will interfere with or prevent the initiation of a new use of groundwater, or a new use of the water or a watercourse or lake by a riparian proprietor.

(e) For the purpose of par. (c) , the determination of the reasonableness of the use of water depends on a consideration of the interests of the user, of any person harmed thereby, and of society. Factors which affect the determination include the following:

1. The purpose of the respective uses;

2. The suitability of the uses of the watercourse, lake or aquifer;

3. The economic value of the uses;

4. The social value of the uses;

5. The extent and amount of the harm caused;

6. The practicality of avoiding the harm by adjusting the use or method of use of one party or the other;

7. The practicality of adjusting the quantity of water used by each party;

8. The protection of existing values of water uses, land, investments and enterprises; and

9. The justice of requiring the user causing harm to bear the loss.

History: Cr. Register, August, 1982, No. 320 , eff. 9-1-82; corrections made under s. 13.93 (2m) (b) 1. and 7., Stats., Register, September, 1995, No. 477 ; r. (intro.), (1g), (1m) and (1r), r. and recr. (1), and (1s) (b), renum. and am. (1p) (c) 4., to be (1p) and am. (1s) (a), (1u) (a), (b), (c), (d), (e), and (1x) (a), Register, May, 1998, No. 509 , eff. 6-1-98; corrections in (1x) (b), (2) (a) made under s. 13.92 (4) (b) 7., Stats., Register March 2011 No. 663 ; CR 13-057 : am. (1) (b) 2. and 3., (c) Register July 2015 No. 715 , eff. 8-1-15.