Prior to the COVID-19 pandemic, dozens of individuals were packing the Senate Transportation committee week after week to have their voices heard in opposition of  Senate Bill 431 (previous blog can be found here). SB 431 seeks to take away the already very limited ability local government has to regulate aggregate mining operations. Even if your community doesn’t currently have sand or gravel mining operations, or there’s no issues with current operators in your area, this legislation is yet another swipe at the ability for your municipality to make decisions based on what’s best for your community and the health, safety and welfare of your residents!

SB 431 makes it virtually impossible to deny an aggregate mining permit if the applicant can show they’ll make a profit. The legislation does continue the “no very serious consequence” standard, but creates a new and impractical definition guaranteeing that the standard will not be met. This is a dangerous move putting profit over the health, safety and welfare of people.

The legislation gives no consideration to how many other mining operations already exist in a community. It does not provide sufficient safeguards for residents when  proposed operations are situated in a residential area, and it precludes a municipality from negotiating important issues regarding haul routes, or the ability to mitigate other negative impacts to the environment that create health hazards (there are no requirements for, or opportunity to review, the impacts on local wells for example). The legislation would also grandfather in all pending permit applications even if an applicant has refused to submit information needed to move forward in the permitting process.

It’s anticipated this week the Senate Transportation committee will meet to vote on a substitute S-5 of SB 431 along with SB 849 which requires the Department of Environment, Great Lakes and Energy to permit aggregate mining. The bills have been tie-barred together. Contact the Senate Transportation committee members (contact information below) and voice your opposition now.

A few highlights regarding SB 431 substitute are below. It includes changes that:

• Adds language to the MI Zoning Enabling Act (MZEA) preamble that could further restrict local decision making ability by subjecting local zoning to more state promulgation of rules. This change impacts the overall intent of the MZEA.

• Sec. 205 (3) does nothing to add criteria for the review of mining applications to mitigate unnecessary risk to public health, but does expand the prohibition list from ordinances to “ordinances or otherwise”. This catch-all has the potential to set up conflicts with other regulations that exist to mitigate risk to the health, safety and welfare of the public.

• Sec. 205 (6) adjusts the financial assurance requirements, but limits reclamation for post-mining operations to $3,000/acre. This amount is insufficient to ensure proper restoration is completed. Every operation is different (size, time span of operation, etc.) and financial assurance limits shouldn’t restrict needed reclamation after mines cease operations.

• Sec. 205 (7) provides for local review and determination if an application is administratively complete, but then arguably takes that ability away by allowing an applicant to make the determination that their application is complete by claiming the requirements of subsections (3) (c), (4) and (11) are satisfied.

• Sec. 205 (9) provides that if a zoning decision is challenged in court, that any prior judicial proceedings and the review of the zoning decision or ordinance shall be given no regard (de novo). This change only benefits people who have previously challenged local zoning decisions in court and lost.

• Sec. 205 (10) looks to allow some reasonable local regulation, but added language removes or restricts measures most municipalities would consider to mitigate negative impacts. No examination of surrounding land uses can be considered nor a reasonable determination of what hours of operation might be appropriate for the local circumstances.

The substitute for SB 431 has no substantive changes. It does not alleviate any local government concerns. The League was not (and has not) been involved nor invited to participate in any negotiations to reach a compromise on this issue. This legislation is being brought to appease one operator who has not been able to win in court.

Proponents of SB 431 have stated it restores balance and structure to the local zoning process, and that local control is maintained. We wholeheartedly disagree! This legislation hides behind the argument of property rights without acknowledging the property rights of those who are or will be impacted by sites proposed for future mining operations. It also claims this is a NIMBY (not in my backyard) issue when in reality it puts profits over people and protects no one except the aggregate industry.

Current information on the number of mining operations per county can be reviewed at: https://www.michigan.gov/documents/dnr/MI_Mineral_Producers_Directory_2017_610716_7.pdf

Urge your legislator to oppose SB 431 until meaningful discussions with all impacted stakeholders takes place seeking local government input. This must happen before any further consideration is given to moving this legislation forward.

UPDATE – Senate Transportation & Infrastructure Committee has posted and SB 431 is on the agenda. The meeting will take place on Wednesday, June 24 at 12:00 pm. Official committee posting can be viewed HERE. Committee contact information is below.

Sen. Tom Barrett, District 24, Chair – [email protected]

Sen. Kim LaSata, District 21 – [email protected]

Sen. Ed McBroom, District 38 – [email protected]

Sen. Roger Victory, District 30 – [email protected]

Sen. Rick Outman, District 33 – [email protected]

Sen. Dan Lauwers, District 25 – [email protected]

Sen. Erika Geiss, District 6 – [email protected]

Sen. Marshall Bullock, District 4 – [email protected]

Sen. Adam Hollier (bill sponsor), District 2 –[email protected]

Jennifer Rigterink is a legislative associate for the League handling economic development, land use and municipal services issues.  She can be reached at [email protected] or 517-908-0305.