The Wisconsin Assembly passed a bill  53-38 Thursday evening that would change the state’s mining regulations to lift the effective moratorium on sulfide mining. Now the bill goes to the state Senate where Republicans are in control 20-13 but passage is still uncertain.

As the Senate debates the return of mining to Wisconsin, both sides will use the closed Flambeau Mine in Ladysmith as an example of whether mining can be done safely. Democrats will claim the mine was an environmental disaster, while Republicans will claim the mine was closed without any harm done.

In a new report released Wednesday, the Wisconsin Institute for Law & Liberty (WILL) set the record straight on the Flambeau Mine.

“It is absolutely imperative that whenever policy makers take on important debates, they have access to the most accurate information,” said WILL President Rick Esenberg in a release Wednesday. “Here we have attempted to set the record straight regarding the Flambeau litigation.”

“As policymakers decide whether or not to lift the moratorium, they should have an accurate understanding of one of the key mining examples – the Flambeau Mine,” Esenberg said. “It’s without dispute that the trial court offered a glowing analysis of the efforts of the operation and most importantly, any alleged violation was ultimately overturned by the Seventh Circuit. To say otherwise is simply not consistent with the record.”

The author of the case study, WILL Associate Counsel Jake Curtis, said while the mine did violate the Clean Water Act, it did so only because of the federal law’s strict liability requirements.

“The court also emphasized that none of the violations were serious in nature and in fact none of the discharges came close to meeting or exceeding the copper limit the DNR had imposed,” Curtis said. “Frankly, the court was shocked the plaintiffs spent so much time and energy litigating against a company that seemed every bit as committed as they were to protecting the environment and preserving water quality.”

As the report indicates, the ruling of the court in the Flambeau Mine case was eventually reversed by the Seventh Circuit Court of Appeals.

The legislature lifted the mining moratorium on iron mining in 2013. However, the moratorium on sulfide mining, which includes mining for copper, continued.

The report by WILL explains the current restrictions in the sulfide mining law in Wisconsin and why it’s called a moratorium:

Under the terms of the moratorium, the DNR is prohibited from issuing a permit for sulfide ore mining to an applicant unless the DNR can first determine, based on information provided by the applicant, that a mining operation in the United States or Canada has operated which “has a net acid generating potential…for at least 10 years without the pollution of groundwater or surface water from acid drainage” and a mining operation in the United States or Canada has operated which “has been closed for at least 10 years without the pollution of groundwater or surface water from acid drainage.”

While critics refer to the law as a “moratorium” conservationists often refer to it as Wisconsin’s “prove it first” law. It is unique among mining regulations nationwide.

Four Republicans in the Senate are still considered holdouts on the bill. According to the MacIver News Service, “Sen. Robert Cowles, R-Green Bay is a no vote; Sen. Jerry Petrowski (R-Marathon) is looking for amendments to address his concerns with the bill; Sen. Sheila Harsdorf (R-River Falls) is reluctant, as is Sen. Luther Olsen (R-Ripon).”