A bill that would limit local and county governments’ regulation of mines and quarries could produce a sudden wave of unrestricted operations, including frac sand mining, at now-dormant sites throughout Dane County, county officials said.
“When we look at potential impacts, we could see the western third of the county open to frac sand mining,” Dane County Executive Joe Parisi said.
Senate Bill 349 would roll back many local regulations of more than 105 frac sand operations and 2,400 other non-metallic mines in the state where stone, gravel, sand and other materials, known as aggregate, are extracted. The bill would allow local governments to use only zoning laws to regulate mines, prohibiting the use of municipal licensing or other ordinances.
Parisi said the bill would block an effort taking shape in the Dane County Board to tighten rules for nearly 100 quarry sites that are now exempt from county restrictions covering issues like noise, blasting hours and expansion.
Most of those sites are quarries that are mined for aggregate for road or housing construction. But some sit atop high-quality sand that could be mined for use elsewhere in hydraulic fracturing — or fracking — to extract oil and gas.
Wisconsin is home to some of the best frac sand formations in the world, and 20 million to 25 million tons of sand is mined per year here, mostly in the western and central parts of the state. When all the proposed mines and processing plants come on line, the total could hit 40 million tons, according to the state Department of Natural Resources. While Dane County does have frac sand deposits, it does not have any active operations.
While proponents of the industry tout the jobs it has created, opponents say they have come at a cost to the environment in ground, water and air pollution.
“Think of the areas that are susceptible to frac sand mining right now. (The towns of) Berry and Cross Plains; a beautiful part of our county. And there could be virtually unregulated mining in those areas and we could not do anything about it,” Parisi said.
A co-author of the bill, Sen. Tom Tiffany, R-Hazelhurst, acknowledged it needed some changes after last week’s heated public hearing about it and said it was unlikely the Senate would take it up until next year — a similar timeline expected by Assembly leaders.
But Tiffany said the legislation is necessary to stem the growing number of local governments that are restricting the activities of the mining industry.
“What this does is balance local control and property rights,” he said. “I would say this about any level of government, whether it be local, state or federal, when they begin to trample on established private property rights, I’m going to oppose that. And there are a few local municipalities that have done that.”
Tiffany also said that while the bill moves more authority over regulating the mining industry to the state level, local and county governments still would be able to regulate mines using zoning ordinances.
But “they cannot just set arbitrary limits by using their policing powers or licensing ordinances in that way to keep somebody out of town,” he said.
vs. local rules
Parisi and other opponents of the bill called it unfair, noting that 240 towns around the state don’t have the ability to create zoning ordinances.
In Dane County’s case, Parisi said the bill would allow quarry sites that existed before the county started regulating them in 1968 to operate without county-imposed restrictions.
Elsewhere in the state, such “nonconforming” quarries become subject to regulation if they are inactive for a year, he added. Dane County is unique because such quarries are never subject to regulation as long as they remain registered with the county, Parisi said.
Since many of the nonconforming sites in Dane County have been inactive for decades, they are disguised as parks, farm fields and even residences. A zoning check may offer no clues of their potential as a much-feared nuisance neighbor.
Parisi added that the bill was introduced by Tiffany at the same time that county Supervisor Patrick Miles started making it known that he was planning to introduce an ordinance that would require nonconforming sites to follow the same regulations as newer quarries if they are inactive for one year.
“I think it’s an interesting coincidence,” Parisi said. “If this bill passes, the door will be shut on our ability to get that done.”
Also, the proposed bill would render useless ordinances passed by towns like Berry and Dunn over the past two years requiring quarry owners to obtain blasting permits and other measures meant to make them better neighbors. Berry’s ordinance also imposed restrictions on new sites in an attempt to stave off frac sand mining from the town, according to Todd Violante of the Dane County planning office.
Said Parisi: “They are pushing this bill for a reason. They want access to frac sand, they want access to aggregate and they want unfettered and unregulated access.”
Eric McLeod, a former attorney for Michael Best & Friedrich, said Thursday at a public hearing for the bill that companies won’t invest in the state if a town can prohibit mining on a piece of property the company owns or leases even though it may be zoned properly for it.
“A company is not going invest millions of dollars when a lawful use can be taken away from a local permitting process,” said McLeod.
He also said some towns in Wisconsin have required permits to be renewed annually. “One year is not going to be sufficient for people to make significant investments and be able to rely on any certainty,” he added.
in Dane County
Far western and northern portions of Dane County have sand deposits suitable for fracking because they crop out at or near the land surface, according to Bill Batten of the U.S. Geological Survey.
“It’s conceivable if the call for frac sand got big enough, someone would attempt to open up a place,” Batten said. “It gets down to the proximity of rail that makes it viable.”
Rail lines exist in Cross Plains, Mazomanie and Sauk City. “Something over there would be a possibility. There’s no question,” Batten said.
Parisi said he is particularly bothered by a provision of the bill that would allow unregulated expansion of those nonconforming sites.
“If they run out of room and gain access to the land next to them by buying or leasing it, they can still move forward unregulated onto the next piece of land,” he said.
Tiffany disagreed with Parisi’s assessment, saying the mining sites would still need to follow state and federal regulations.
Town of Dunn clerk Cathy Hasslinger said the bill would have serious repercussions for towns throughout the state because quarries are always a hot-button issue with their residents.
Earlier this year, Dunn passed its ordinance after a meeting that included the lawyers of operators of a nonconforming quarry as well as residents who lived near it and complained about damaged homes, noise pollution and safety issues.
After the meeting, “we heard from the quarry operator and they said it was OK, it wasn’t interrupting their business, this is OK,” Hasslinger said. “We did work with the business owners and tried to really listen when it came to whether what we were planning would impede with their business.”
Hasslinger said the ordinance was not a strict regulation. “It was more of a compromise that addressed some of the concerns the residents had, and making sure if somebody had a property damage claim that it would be handled,” she said.
It was an example of how a town is best at handling problems with mining companies, she added.
If the bill is passed, Hasslinger said residents will become frustrated when they call her for help and she has to tell them to take their problems to the state.
“As a local government agency, that does get difficult to advocate to people to go to the correct level of government to plead their case,” she said.