The Wisconsin Department of Natural Resources is allowing more frac sand mines to open even though it let its environmental regulations on the industry expire nine months ago because the rules didn’t adequately protect streams from pollution, a state water regulator has confirmed.

Over the last four years the DNR has approved more than 200 sand mining operations under a 2009 non-metallic mining permit that was designed to prevent pollution from gravel pits, not the sprawling sand extraction operations that each day ship hundreds of rail cars of silica sand to natural gas and oil drilling sites.

“The initial non-metallic mining permit did not contemplate these kinds of operations,” DNR water division administrator director Russ Rasmussen said.

The result has been spills of sand, silt, clay and chemicals into waterways, including some of the state’s pristine trout streams, as sand operators have failed to prevent rains from washing away sand piles or overwhelming storm water basins that collect contaminants.

Spills can smother valuable aquatic breeding grounds, damage fish gills, increase the likelihood of flooding by filling in stream channels, contribute to stream bank erosion, and degrade the recreational value of the water body.

Rasmussen said agency workers were unable to add stronger environmental protections to the existing rules structure, so he recently told them to create a separate sand mining permit.

Wisconsin has become the leading source of sand for hydraulic fracturing, which uses the granules, mixed with water and chemicals, to extract natural gas and crude oil from rock formations.

The rapid growth of the industry has been accompanied by complaints about air and water pollution. The state took about two dozen enforcement actions against sand mining operations in 2012 and 2013, according to the Wisconsin Center for Investigative Journalism. Most cases involved violations of water regulations.

Operators are supposed to take steps such as planting vegetation to prevent erosion and designing water retention ponds large enough to prevent runoff.

Too often, permit rules have made it difficult to prevent discharges like the ones that darkened the clear waters of Eighteen Mile Creek, a Class I trout stream that runs through Chippewa County, in September, said Jimmy Parra, a staff attorney for the Madison-based Midwest Environmental Advocates.

Potential fines

The DNR enforces federal clean air and water laws by issuing permits to polluters that spell out limits for emissions and required prevention practices. There are specific laws and rules for mining of iron, other metals and for non-metallic material such as sand.

Discharging significant amounts of pollutants into water without a permit is illegal and could result in fines of $37,500 a day if someone sued, Parra said.

“Because DNR’s actions are beyond the scope of its authority under state law, we request the DNR immediately cease granting coverage to new dischargers under the expired (permit),” Parra said in a Dec. 8 letter to agency Secretary Cathy Stepp.

Rasmussen said he didn’t know if the state or the mining companies faced additional liability.

“We’ve got our legal folks looking at that and I’m not in a position to comment because they’re still working on it,” Rasmussen said.

Deb Dix, a DNR spokeswoman for frac sand mining, said she couldn’t immediately say how many mines have opened since the permit lapsed. Parra said documents he obtained through the state open records law indicates the number is at least four.

Metals and solids

Parra said the expired permit had several weaknesses:

• No restrictions on discharging metals. DNR tests have found elevated levels of toxic metals and acidity that can kill wildlife.

• No specific limits on suspended solids from mines without on-site processing facilities. Numeric limits are needed for enforcement action after spills of clay and silt into waterways.

• Infrequent monitoring. The mines are only required to monitor their discharge flow four times a year. Many spills have gone undetected for days and are only discovered when citizens notice a waterway has turned cloudy, Parra said.

Rasmussen said he didn’t want to discuss the specific problems in the old permit until new permit language is drafted and ready for public hearings in late winter or early spring.

“At this point I’m not prepared to go into a lot of detail because we are still working on it,” Rasmussen said.

Sand mines, processing plants and rail-loading facilities have been approved under the DNR’s general permit for non-metallic mining. The department uses a general permit because each facility has similar potential environmental impacts, although it’s possible to make modifications, Rasmussen said.

The department can write individual permits for each new facility, but it is much more time-consuming, Rasmussen said.