Bill would limit local control of frac sand mining in Wisconsin

Oct. 20, 2013

Two Republican state lawmakers are sponsoring a bill to restrict the ability of local communities to regulate Wisconsin’s booming frac sand industry.

The draft bill, now being circulated for co-sponsors by Sen. Tom Tiffany, R-Hazelhurst, and Rep. Joan Ballweg, R-Markesan, would bar local governments from regulating some aspects of nonmetallic mining, including its impacts on air quality, water, road use and reclamation.

In an email sent to fellow lawmakers Wednesday, Tiffany said local governments can discriminatorily impose restrictions, which “creates an arbitrary and uncertain regulatory climate for the nonmetallic mining industry.”

He added, “It discourages future investment and threatens existing operations.”

Tiffany told the Wisconsin Center for Investigative Journalism on Thursday that some local units of government are “trying to establish mini-DNRs” — for instance, by doing their own air and water testing. “That’s the purview of the state. The environmental regulator for the state of Wisconsin for air and water quality is the Department of Natural Resources, not local entities.”

Tiffany hopes the Senate’s committee on Workforce Development, Forestry, Mining and Revenue, which he chairs, can hold a hearing on the bill next Thursday. He does not think the bill is moving too fast, saying he unveiled it “eight days ahead of time.”

Wisconsin is the nation’s No. 1 producer of sand used in fracking, a process used to extract oil and natural gas. There are currently at least 115 permitted or operational frac sand mines and processing plants in the state.

Richard Shearer, president and CEO of the Texas-based Superior Silica Sands, recently declared that “Wisconsin is the global epicenter” of the frac sand mining boom, “and we’re just getting started.”

Currently, control over different parts of the mining process, from day-to-day operations to long-term reclamation plans, can be divided between many levels of government.

The proposed bill restricts local governments’ authority over roads and traffic and the use of explosives, as well as their ability to regulate air or water quality related to nonmetallic mines. It would also prohibit the DNR from establishing nonmetallic mining reclamation standards relating to water quality or air quality that are more restrictive than existing state laws.

In some cases, Tiffany said, the bill would allow mining companies to renegotiate existing agreements with local governments.

But the lead sponsors say in their memo that it will not end the ability of local governments to prohibit nonmetallic mining or “lessen the stringent regulatory standards on siting and operating” these mines.

Sen. Kathleen Vinehout, D-Alma, has introduced bills, which have not advanced, to increase regulatory controls over frac sand operations. In an interview, she called the new bill “another example of legislation happening in Wisconsin in the state Capitol that is being driven by out-of-state corporate interests that takes away local people’s ability to protect their health, their safety and their neighborhood.”

Tiffany dismissed Vinehout’s criticisms as “just rhetoric.”

Eau Claire attorney Glenn Stoddard, who has represented parties suing frac sand companies, ripped the bill as “an obvious giveaway to the frac sand industry.” He wrote in an email that the bill “essentially takes away all meaningful regulatory authority of local and county governments to protect the public from the adverse environmental and public health impacts of frac sand mining.”

Rick Stadelman, executive director of the Wisconsin Towns Association, said taking away licensing agreements, which give communities the power to force companies to negotiate, could backfire on the industry.

“There is going to be potentially more backlash against these sites from neighbors who feel the state has not given them even a voice in this process,” Stadelman said.

He added that the growing number of facilities is evidence that current licensing ordinances and zoning have not hindered industry growth.

John Behling, an attorney from law firm Weld, Riley, Prenn & Ricci in Eau Claire, who represents clients in the frac sand industry, said a “complex regulatory environment” is not new to industry, and companies must figure out how to navigate it.

On Aug. 30, Trempealeau County in western Wisconsin instituted a moratorium prohibiting the permitting of additional frac sand facilities, citing the need to study potential health effects stemming from air quality.

In neighboring Minnesota, the city of Winona is looking into monitoring air quality to protect its residents.

— The nonprofit Wisconsin Center for Investigative Journalism ( collaborates with Wisconsin Public Radio, Wisconsin Public Television, other news media and the UW-Madison School of Journalism and Mass Communication.

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