October 25, 2013 by Bruce Johnson

[Bruce Johnson is a Supervisor on the Town of Pepin board and serves as the Pepin Plan Commission chair. -Editors]

I travelled to Madison this week to present a unanimous resolution from the Town of Pepin Board opposing an attempt in the state legislature to preempt all local units of government (Counties, Towns, Villages and Cities) from regulating or monitoring air and water quality, blasting and local road use agreements.

The public hearing on Senate Bill 349 lasted more than 9 hours. If you have the stomach for it you can watch all or part of it on Wisconsin Eye.



Although I arrived more than an hour early and was the first to register to testify, I had to wait until about 4:30 to be called to testify. Chairman Tom Tiffany ordered the list of people testifying to his own agenda and thus a heavy portion of the early testimony was from entities like Wisconsin Manufacturing and Commerce and the mining companies and their lawyers. The result was that most local officials and citizens with real experience with the impacts of frac sand mining had to wait to the end of the hearing when much of the media covering the event had left. If you are watching the archive video, please fast forward to late in the day for the testimony of the Clerk for the Town of Howard who gave moving testimony on her struggle with respiratory disease as a result of living near a mine.

Listening to Senator Tiffany, Representative Joan Ballweg and the advocates for the mining industry testify in favor of this bill was to enter an alternative universe. In this universe, poor mine operators are being oppressed by local officials who are the captives of an international conspiracy to stop fracking, prevent the growth of jobs in Wisconsin and prevent national energy independence. The operators are stymied by local licensing agreements (agreements that they have signed and have never challenge in court), and by the burden of requirements by local officials to set the routes for their trucks and provide monies to cover the cost of upgrading and repairing damages to roads.

The attorney for Fairmont Minerals testified that the Maiden Rock mine was “almost shut down” by the actions of the Maiden Rock Town Board. The attorney for the Bechel mine in the Town of Frankfort testified that the poor family owned business operating the mine was forced by a county road agreement to take an alternative truck route and to deposit cash with the county – “that could otherwise be creating jobs” – to cover costs of damage to county roads.

A key word in the talking points that must have been prepared for their testimony was “hodgepodge.” The mining companies, in this universe, are oppressed by a hodgepodge of regulations by local governments on air and water quality, blasting, and road use that are not consistent with DNR regulations. The aim of SB 349, according to Senator Tiffany, is “Regulatory Certainty.” Local regulations, according to the mining companies, are often “arbitrary and capricious.” The Pepin County road use agreement, and the requirement by the Town of Frankfort for testing of waste products for acrylamides before being used in reclamation in the Bechel mine site were cited as examples of such arbitrary requirements.

Senator Bob Jauch managed to break through this alternative universe with simple questions:

Why, if mining operators are so stymied by ‘regulatory uncertainty’, has the number of industrial frac sand mines in the state grown from less than 10 three years ago to more than 100 now?

Why have mining operators successfully negotiated agreements with local governments that allow them to operate, make money and provide jobs?

Why have no current local regulations been ever challenged in court?

What then is the purpose of having local officials?

In their opening testimony, Senator Tiffany and Representative Ballweg were unable to provide a single example of a local regulation that was arbitrary and capricious. “That will be coming in later testimony,” said Senator Tiffany, revealing his own lack of knowledge and dependency on mining lobbyists to define the problem his bill is supposed to solve. The Senator did state that his bill was based in the fundamental principle of private property rights, though he betrayed no concern for the health, safety and well-being nor the property values of people living near to mine sites.

So what about regulatory certainty? Indeed, there would be a benefit and a virtue in state regulations that addressed issues of frac sand mining with appropriate baseline standards while allowing local control for specific local conditions and sites. But Senators favoring the bill and their mining operator sponsors were caught in several contradictions. On the one hand they noted the decades of traditional nonmetallic mining in Wisconsin; on the other, they proclaimed the wonderful new opportunity for economic growth represented in the frac sand mining boom.

To pretend that traditional quarries, gravel pits and sand mines that are essential to construction, road maintenance, foundries and other common uses are somehow similar to frac sand mines covering hundreds of acres and generating hundreds of truck trips per day is disingenuous at best. Most local licensing ordinances and agreements, including ours in the Town of Pepin, distinguish between these uses and operations and make no attempt to regulate those traditional operations. We have been told by DNR staff that DNR and statutory regulations which were designed for traditional nonmetallic mining are inadequate to address large scale industrial frac sand mining.

Even if DNR regulations were adequate, DNR staffing levels are not adequate to inspect and monitor frac sand mines. Interestingly, no one from the DNR testified at the hearing. Testimony did reveal that all DNR citations for violations of existing regulations originated with local citizens and units of government, not with DNR staff.

Testimony from Senator Kathleen Vinehout and Representative Chris Danou, who represent citizens in the heart of frac mining territory, revealed that a study several years ago determined that an additional 30 positions in the DNR would be required to inspect and monitor industrial sand mining sites. The Senator and the Representative have both authored legislation, using existing funds in the budget, to add 8 positions to the DNR. The majority in the legislature has refused to even schedule a hearing on their bill.

In the absence of effective statewide regulation and enforcement, many local units of government have adopted licensing ordinances and negotiated operators agreements requiring air and water quality monitoring. SB 349 would preempt and nullify all of these requirements. The problem, according to Senator Alberta Darling and the mining operators, is that regulations must be consistent and based on “sound science” rather than the concerns of local citizens. Senator Darling assured us that the DNR is required to enforce existing federal EPA standards. Returning to the ‘hodgepodge’ argument, she and the mine operators complained, local governments have generated hundreds of ‘mini-DNRs’ imposing standards that ‘exceed legal authority’.

The problem with that, as Senator Vinehout explained, is that we just don’t know what the health effects of frac sand mining are on our citizens. There is plenty of anecdotal evidence of respiratory disease and contamination of private and public wells by mining, but the DNR has not commissioned any studies to determine potential negative effects and needed regulation.

Henry Anderson, the Chief Medical Officer for the State of Wisconsin, declared in a public forum sponsored by Clean Wisconsin the day before the hearing that there are numerous studies of occupational exposure to airborne silica dust but few environmental studies. The federal agencies governing occupational health (NIOSH, OSHA and MSHA) have done studies and provided standards for occupational exposure with limits set based on an 8 hour work day. It would seem reasonable then for local governments to require monitoring for exposure to those limits for residents near mine sites with a 24 hour a day exposure. If such monitoring revealed no problems, local governments would be able to reassure our citizens of their health and safety. Such requirements for monitoring would be nullified by SB349.

There are many, many other problems with SB349. All local officials and concerned citizens should study the bill itself, the LRB Summary, and watch as much of the hearing archive as possible. The details are here: http://legiscan.com/WI/research/SB349/2011.

Look, for example, at the limitations on local governments’ ability to negotiate road use agreements. The bill would require local government funding of third party engineering, agreed to by mine operators, and repair of roads at government expense before any reimbursement could be obtained from those damaging our roads. Rick Stadleman of the Wisconsin Towns Association testified that the requirement for such third party engineering could take up a major portion of a local road maintenance budget without providing any actual road maintenance.

Fully half of SB349 provides a general preemption of local control over air and water quality in any form, not only in regard to frac sand mining. Such preemptions, testimony revealed, would eliminate local control of waste water treatment and testing.

Why this attack on long established tradition and laws of local control?

Perhaps impolitically, Representative Danou suggested a reason. Local officials are elected by local citizens through grass roots campaigns requiring little campaign funding. Some state legislators, on the other hand, have received large contributions from corporations and other entities with little interest in the health, safety and well-being of citizens. They, as well as this bill, should be defeated.

Video of Bruce Johnson’s testimony: