HOUSE BILL NO. 6388

September 22, 2022, Introduced by Reps. Howell and Cambensy and referred to the Committee on Natural Resources and Outdoor Recreation.

"Natural resources and environmental protection act,"

by amending sections 63205, 63209, and 63219 (MCL 324.63205, 324.63209, and 324.63219), as added by 2004 PA 449, and by adding sections 63102 and 63102b.

the people of the state of michigan enact:

Sec. 63102. If a person submits an application for a mining permit under this part and 1 or more other permits under this act with respect to a particular mining operation, the department must process the applications in a coordinated fashion to the extent feasible given procedural requirements applicable to individual permits. The coordinated permit process may include consolidating public hearings required under other parts of this act. Any notice of a consolidated public hearing shall state clearly the permits that are to be considered at the public hearing.

Sec. 63102b. (1) A person who has applied for a mining permit under section 63103a may challenge the department's inaction on or denial of the application for the mining permit or any permit processed as provided by section 63102 by filing a petition with the department to initiate a contested case hearing under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. The department may reject as untimely a petition filed more than 60 days after the department's inaction on or denial of the application.

(2) Any person who is aggrieved by an order, action, or inaction of the department or by the issuance, denial, revocation, or amendment of a mining permit under this part or a permit under this act processed as provided in section 63205(15) that is needed for a proposed mining operation may file a petition with the department requesting a contested case hearing. The petition must be filed not more than 60 days after issuance, denial, revocation, or amendment of the mining permit or issuance of the last permit processed under section 63102, whichever is later.

(3) A petition under subsection (2) shall include a statement of the issues proposed to be addressed by a contested case hearing and the specific relief or resolution requested. To the extent known by the petitioner, the petition may also include any of the following information with respect to the contested case hearing:

(a) A proposed list of prospective witnesses to be called, including experts, with a brief description of the proposed testimony of or a summary of evidence to be presented by each witness.

(b) A proposed list of publications, references, or studies to be introduced and relied upon.

(4) Any person may serve timely responses to a petition under subsection (2). The department shall establish deadlines for responses to be submitted.

(5) The department shall grant a petition under subsection (2) if the department finds all of the following:

(a) The petition raises a material issue of fact in dispute concerning the mining permit or a permit processed as provided under section 63102 that has not been sufficiently evaluated by the department.

(b) The department has jurisdiction to make a determination on the disputed material issue of fact.

(c) There is a reasonable basis underlying a disputed material issue of fact such that a contested case hearing would allow the introduction of information that would help the department resolve the issue of fact and make a final decision on the permit.

(6) Within 90 days after a petition is filed under subsection (2), the department shall determine whether to grant the petition. A determination not to grant the petition serves as the final decision of the department on the permits, subject to judicial review under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

(7) The contested case rights and procedures set forth in subsections (2) to (6) supersede and replace the contested case rights and procedures that would otherwise apply to the permits processed as provided in section 63102.

(8) Any contested case hearing under this part and judicial appeal of the final agency action resulting from the hearing shall be pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. The department shall provide notice of the hearing and shall mail copies of the notice to the person requesting the hearing and to the city, village, or township and the county where the proposed mining operation is to be located and to all affected federally recognized Indian tribes in this state. The department shall publish notice of the hearing in a newspaper of local distribution in the area of the mining operation at least 10 days before the hearing.

Sec. 63205. (1) A person shall not engage in the mining of nonferrous metallic minerals except as authorized in a mining permit issued by the department.

(2) An application for a mining permit shall be submitted to the department in a format to be developed by the department. The application shall be accompanied by all of the following:

(a) A permit application fee of $5,000.00. The department shall forward all permit application fees received under this section to the state treasurer for deposit in the fund.

(b) An environmental impact assessment for the proposed mining operation that describes the natural and human-made features, including, but not limited to, flora, fauna, hydrology, geology, and geochemistry, and baseline conditions in the proposed mining area and the affected area that may be impacted by the mining, and the potential impacts on those features from the proposed mining operation. The environmental impact assessment shall define the affected area and shall address feasible and prudent alternatives.

(c) A mining, reclamation, and environmental protection plan for the proposed mining operation, including beneficiation operations, that will reasonably minimize the actual and potential adverse impacts on natural resources, the environment, and public health and safety within the mining area and the affected area. The plan shall address the unique issues associated with nonferrous metallic mining and shall include all of the following:

(i) A description of materials, methods, and techniques that will be utilized.

(ii) Information that demonstrates that all methods, materials, and techniques proposed to be utilized are capable of accomplishing their stated objectives in protecting the environment and public health, except that such information may is not be required for methods, materials, and techniques that are widely used in mining or other industries and are generally accepted as effective. The required information may consist of results of actual testing, modeling, documentation by credible independent testing and certification organizations, or documented applications in similar uses and settings.

(iii) Plans and schedules for interim and final reclamation of the mining area following after cessation of mining operations.

(iv) A description of the geochemistry of the ore, waste rock, overburden, peripheral rock, and tailings, including characterization of leachability and reactivity.

(v) Provisions for the prevention, control, and monitoring of acid-forming waste products and other waste products from the mining process so as to prevent leaching into groundwater or runoff into surface water.

(d) A contingency plan that includes an assessment of the risk to the environment or public health and safety associated with potential significant incidents or failures and describes the operator's notification and response plans. When the application is submitted to the department, the applicant shall provide a copy of the contingency plan to each emergency management coordinator having jurisdiction over the affected area.

(e) Financial assurance as described in section 63211.

(f) A list of other state and federal permits that are anticipated to be required.

(3) The applicant has the burden of establishing that the terms and conditions set forth in the permit application; mining, reclamation, and environmental protection plan; and environmental impact assessment will result in a mining operation that reasonably minimizes actual or potential adverse impacts on air, water, and other natural resources and meets the requirements of this act.

(4) Effective 14 days after the department receives an application for a mining permit, the application shall be considered to be administratively complete unless the department proceeds as provided under subsection (5).

(5) If, before the expiration of the 14-day period under subsection (4), the department notifies the applicant that the application is not administratively complete, specifying the information necessary to make the application administratively complete, or notifies the applicant that the fee required to accompany the application has not been paid, specifying the amount due, the running of the 14-day period under subsection (4) is tolled until the applicant submits to the department the specified information or fee amount due. The notice shall be given in writing or electronically.

(6) Within 42 days after an application for a mining permit is determined to be administratively complete, the department shall hold a public meeting on the application. The department shall give notice of the public meeting not less than 14 or more than 28 days before the date of the public meeting. The notice shall specify the time and place of the public meeting, which shall be held in the county where the proposed mining operation is located, and shall include information on how to review a copy of the application. The notice shall be given in writing to the city, village, or township and the county where the proposed mining operation is to be located and to all affected federally recognized Indian tribes in this state. The notice shall also be given by publication in a newspaper of local distribution in the area where the proposed mining operation is to be located.

(7) The department shall accept written public comment on the permit application for 28 days following the public meeting under subsection (6). Within 28 days after the expiration of the public comment period, the department shall reach a proposed decision to grant or deny a mining permit and shall establish a time and place for a public hearing on the proposed decision. The department shall give notice of the public hearing not less than 14 or more than 28 days before the date of the public hearing. The notice shall be given in writing to the city, village, or township and the county where the proposed mining operation is to be located and to all affected federally recognized Indian tribes in this state. The notice shall also be given by publication in a newspaper of local distribution in the area where the proposed mining operation is to be located. The notice shall contain all of the following:

(a) A summary of the permit application.

(b) Information on how to review a complete copy of the application. The application shall be made available at a public location in the area.

(c) A listing of other permits and hearings that are pending or anticipated under this act with respect to the proposed mining operation.

(d) The time and place of the public hearing, which shall be held in the area where the proposed mining operation is located.

(8) The department shall accept written public comment on the proposed decision to grant or deny a mining permit for 28 days following the public hearing. At the expiration of the public comment period, the department shall issue a report summarizing all comments received and providing the department's response to the comments.

(9) Within 28 days after the expiration of the public comment period under subsection (8), the department shall grant or deny the mining permit application in writing. A determination that an application is administratively complete does not preclude the department from requiring additional information from the applicant. The 28-day period under this subsection shall be tolled until such time as the applicant submits the requested information. If a mining permit is denied, the reasons shall be stated in a written report to the applicant.

(10) A mining permit shall not be issued or transferred to a person if the department has determined that the person to be is in violation of this part, rules promulgated under this part, the permit, or an order of the department under this part, unless the person has corrected the violation or the person has agreed in writing to correct the violation pursuant to a compliance schedule approved by the department.

(11) Subject to subsection (10), the department shall approve a mining permit if it determines both of the following:

(a) The permit application meets the requirements of this part.

(b) The proposed mining operation will not pollute, impair, or destroy the air, water, or other natural resources or the public trust in those resources, in accordance with part 17. of this act. In making this determination, the department shall take into account the extent to which other permit determinations afford protection to natural resources. For the purposes of this subsection, excavation and removal of nonferrous metallic minerals and of associated overburden and waste rock, in and of itself, does not constitute pollution, impairment, or destruction of those natural resources.

(12) The department shall deny a mining permit if it determines the requirements of subsection (11) have not been met.

(13) Terms and conditions that are set forth in the permit application and the mining, reclamation, and environmental protection plan and that are approved by the department shall be incorporated in and become a part of the mining permit.

(14) A mining permit is not effective until all other permits required under this act for the proposed mining operation are obtained.

(15) If a person submits an application for a mining permit and 1 or more other permits under this act with respect to a particular mining operation, the department may must process the applications in a coordinated fashion to the extent feasible given procedural requirements applicable to individual permits. The coordinated permit process may include consolidating public hearings under this part with public hearings required under other parts of this act. Any notice of a consolidated public hearing shall state clearly which the permits that are to be considered at the public hearing. An applicant may waive any required timelines under subsections (4) to (9) to facilitate the coordination.

Sec. 63209. (1) A permittee shall comply with all other applicable permit standards under this act.

(2) A permittee shall conduct reclamation activities at a mining area in accordance with the approved mining, reclamation, and environmental protection plan.

(3) If mining operations are suspended for a continuous period exceeding 90 days, the permittee shall take actions to maintain, monitor, and secure the mining area and shall conduct any interim sloping or stabilizing of surfaces necessary to protect the environment, natural resources, or public health and safety in accordance with the permit.

(4) Subject to subsection (5), a permittee shall begin final reclamation of a mining area within 3 years of after the date of cessation of mining operations and shall complete reclamation within the time set forth in the mining, reclamation, and environmental protection plan approved by the department.

(5) Upon written request of a permittee, the department may approve an extension of time to begin or complete final reclamation.

(6) A permittee shall conduct groundwater and surface water monitoring in accordance with the provisions of the permit during mining operations and during the postclosure monitoring period. The postclosure monitoring period shall be 20 years following cessation of mining, subject to the following conditions:

(a) The permittee shall provide to the department a written request to terminate the postclosure monitoring not less than 18 months before the proposed termination date and shall provide the department with technical data and information demonstrating the basis for the termination. The department shall extend the postclosure monitoring period in increments of up to 20 years unless the department determines, approximately 1 year before the end of a postclosure monitoring period or postclosure incremental monitoring period, that there is no significant potential for water contamination resulting from the mining operation.

(b) The department may shorten the postclosure monitoring period at any time upon determining that there is no significant potential for water contamination resulting from the mining operation.

(7) The department may extend or shorten the postclosure monitoring period under subsection (6) only after public notice and opportunity for a public hearing under section 63219(2).63219(8).

(8) Both the mining area and the affected area shall be reclaimed and remediated to achieve a self-sustaining ecosystem appropriate for the region that does not require perpetual care following closure and with the goal that the affected area shall be returned to the ecological conditions that approximate premining conditions, subject to changes caused by nonmining activities or other natural events. Any portion of the mining area owned by the applicant may be used for any legal purposes.

(9) Compliance with the provisions of this part does not relieve a person of the obligation to comply with all other applicable tribal, state, federal, or local statutes, regulations, or ordinances.

Sec. 63219. (1) A person who has applied for a mining permit under section 63205 may challenge the department's inaction on or denial of the application for the mining permit or any permit processed as provided by section 63205(15) by filing a petition with the department to initiate a contested case hearing under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. The department may reject as untimely a petition filed more than 60 days after the department's inaction on or denial of the application.

(2) (1) A Any person who is aggrieved by an order, action, or inaction of the department or by the issuance, denial, revocation, or amendment of a mining permit under this part or a permit under this act processed as provided in section 63205(15) that is needed for a proposed mining operation may file a petition with the department requesting a contested case hearing. , under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. A petition filed more than 60 days after an order, action, or inaction of the department or an action on a mining permit may be rejected as being untimely.The petition must be filed not more than 60 days after issuance, denial, revocation, or amendment of the mining permit or issuance of the last permit processed under section 63205(15), whichever is later.

(a) A proposed list of prospective witnesses to be called, including experts, with a brief description of the proposed testimony of or a summary of evidence to be presented by each witness.

(b) A proposed list of publications, references, or studies to be introduced and relied upon.

(4) Any person may serve timely responses to a petition under subsection (2). The department shall establish deadlines for responses to be submitted.

(5) The department shall grant a petition under subsection (2) if the department finds all of the following:

(a) The petition raises a material issue of fact in dispute concerning the mining permit or a permit processed as provided under section 63205(15) that has not been sufficiently evaluated by the department.

(b) The department has jurisdiction to make a determination on the disputed material issue of fact.

(8) (2) Any contested case hearing under this part and judicial appeal of the final agency action resulting from the hearing shall be held pursuant to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. The department shall provide notice of the hearing and shall mail copies of the notice to the person requesting the hearing and to the city, village, or township and the county where the proposed mining operation is to be located and to all affected federally recognized Indian tribes in this state. The department shall publish notice of the hearing in a newspaper of local distribution in the area of the mining operation at least 10 days before the hearing.