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Local control threat: The implications of mining fight

By Stacy Gittleman

Michele Joliat lives on a hilltop home with her husband Tom in the rural township of Metamora in Lapeer County. When they purchased their home in 2001, they could drink the water that came from the well on their property that was fed by aquifers. What they were not aware of was that the section of town they moved into was zoned in a category known as Ag-2, which meant it was zoned for mining as well as agriculture.

In 2006, those aquifers became contaminated by a plume of 1,4 dioxane contaminant that was sourced from the site of a former unlined landfill declared a Superfund site in the 1980s. The polluters involved pay for the bottled water they must use to cook, bathe and drink.

But complete reliance on bottled water is not the couple's biggest concern. Joliat, who is active with the Metamora Land Preservation Alliance, said for decades her small town has been battling American Aggregates, a subsidiary of The Edward C. Levy Co. The mining company wants to mine 30 million tons of gravel over the next 30 years from a 724-acre site which sits just yards from her home – and 300 feet from that actively leaking Superfund site. Any activity of a new mine there could strip the land away of clay and other materials that serve as a natural filter that slows the spread of the toxic plume. Ironically, the site of the proposed gravel mine sits atop the Flint River watershed.

American Aggregates proposes to remove 400 acres of woodlands and destroy nine acres of wetlands. The mine would run 12-hour weekday shifts, beginning at 6 a.m. and from 6 to noon on Saturday, from mid-March through the end of November. A proposed onsite gravel crusher will create fugitive dust, an air pollutant that easily penetrates lung tissue. The plan calls for 100 trucks per day, some weighing 100,000 pounds when fully loaded, to haul away gravel and rumble down local roads.

Berl Falbaum, a spokesman for The Edward C. Levy Co., said aggregate materials are essential to everyday life and more is needed beyond what existing mining operations can supply.

Lapeer County is already home to 30 aggregate mines – proof enough, Joliat said, that local municipalities have approved mining plans and operations within reason.

But there is a set of bills that could come before the state House of Representatives as early as this fall’s post-election lame duck session that may wrest local mining permitting control away from Michigan’s local governing bodies and place them in the hands of the state.

Joliat explained that the Levy Company, on multiple occasions, lost its case in court to expand mining on this spot. In 2006, Metamora Township denied Levy’s request to mine the property, citing the negative impact on property values and the impact of gravel traffic on roads in the township. Both Dryden Township and the Village of Dryden also objected to Levy’s request, citing concerns about truck weight, safety, and noise on Dryden Road.

In 2004, the Detroit Area Council of Boy Scouts of America signed a lease with The Edward C. Levy Company, involving a portion of their property at the D-Bar-A Scout Ranch on Sutton Road in Metamora Township. The agreement gave the Levy Company permission to conduct mining operations at the Metamora location, and provide the Boy Scouts with monthly royalty payments on mined minerals. Metamora refused permitting, and Levy and the Boy Scouts sued the township again and lost.

“When the Levy Company had their lawsuit thrown out, that’s when they went to the state to create the set of legislation in question,” explained Joliat. “The bills essentially say that the mining industry no longer needs to care about local zoning ordinances around the whole state.

“We understand that every community needs to do their share to provide materials for road repair, and we already have mining in Metamora. But if these bills pass, they will basically strip all Michigan communities on the ability to say where mining can happen,” Joliet said.

“We are fighting for Metamora, but we're also fighting for every community in the state of Michigan.”

Falbaum said the Levy Co. has always been responsive to the individual community’s needs. When asked if breaking ground for a proposed mine close to the Metamora Superfund site would be a breach of trust between the company and the township, Falbaum said that moving such a permit proposal to the state level would allow for more thorough evaluation.

“We have always been responsive to the concerns of the local communities. I don't think we've had a problem anywhere whenever there has been a complaint if there has been one. We respond to it,” explained Falbaum. “The state will conduct a thorough review of such a mining application, and it will hear from the various local communities, and everyone will have input. And from these hearings, the state will respond (to details of a permit application) where they feel it would be essential to make those changes. We look forward to continuing to work in and with those communities, and if they file concerns, we will be responsive.”

We all know the campaign slogan. This summer, Governor Gretchen Whitmer continued to “fix the damn roads” by announcing the completion of four more road and bridge projects to the tune of $6.3 million and plans to repair over 16,000 lane miles of road and more than 1,200 bridges, supporting nearly 89,000 jobs before 2022 is over.

As her administration continues to accelerate the pace of road and infrastructure repairs, Whitmer signed the bipartisan 2023 budget, which includes $2.3 billion to help fix local roads and bridges and $1.7 billion to fix state highway roadways and bridges.

That’s going to take an ample supply of aggregate – sand, gravel and other materials that must be mined and then transported to road and repair construction sites to complete the task. According to the Michigan Aggregates Association (MAA), it takes 85,000 metric tons of aggregate material to construct one mile of an interstate highway or one quarter mile of a four-lane road.

Luckily, Michigan is among the nation’s biggest sand and gravel producers thanks to leftover underground deposits dragged here from as far away as Canada from receding glaciers from the last Ice Age. According to figures from the U.S. Geological Survey, Michigan produced about 44.7 million metric tons of sand and gravel in 2016, valued at $249 million, making it one of the top five producers of sand and gravel used in construction. The Michigan Geological Survey (MGS) reported that Michigan was one of 12 states that produced more than $2 billion worth of aggregates in 2021.

According to statistics from Western Michigan University, there are currently 325 aggregate mines in Michigan and 19 are in more rural areas of Oakland County. Still, the aggregate industry wants to open new mines and claim that local governments for decades have been dragging their feet in approving up to 10 new mining permits across the state, while at the same time working to change their zoning laws to prevent or block mining altogether in their municipalities.

This summer, a set of aggregate mining bills known as Senate Bills (SB) 429-430 narrowly passed in a bipartisan vote in the state Senate 19-17, and now are in the Michigan House where they may be up for a hearing and vote as early as the post-election lame duck session. For the first time in six years, there was a discussion of the bills last June at a Local Government and Municipal Finance Committee, where nearly every source interviewed for this article offered testimony. They included officials from the Michigan Townships Association (MTA), the Michigan Municipal League (MML), township officials and environmentalists who argued against the proposed legislation.

In summary, SB 429 would modify regulations for the mining of sand and gravel operations. SB 430 provides for sentencing guidelines for a violation of an intentional false statement in a mining permit application or report, and SB 431 modifies conditions under which a zoning ordinance may prohibit the mining of valuable natural resources unless serious consequences would result.

SB 429 would add Part 639 (Sand and Gravel Mining) to the Michigan Natural Resources and Environmental Protection Act (NREPA). Part 639 would preempt any local municipal or county government ordinance that prohibited or regulated certain aspects of a mine. It places all aspects of permitting, from accepting and expediting the processes of a permit, to overseeing approval, operations, permit renewals and responding to complaints and violations on the department of Environment, Great Lakes and Energy (EGLE).

SB 430 would amend the 1927 Code of Criminal Procedure Act for the establishment of sentencing guidelines for violation of intentionally false statements in a mining permit application or report.

Most concerning to officials from municipalities and townships is SB 431, which would amend the 2006 Michigan Zoning Enabling Act to prohibit a county or township from regulating or controlling aggregate mining and specify that the county or township would not have jurisdiction over the issuance of a permit, approval, or other authorization for the location, operation, abandonment, or reclamation of an aggregate mine unless certain conditions were met.

As it stands now, the zoning law states that an ordinance cannot prevent mining extraction of a valuable natural resource from any property unless very serious consequences would result from the extraction of those natural resources. Under the law, a local government can regulate, within reason, hours of operation, blasting hours, noise levels, dust control measures, and traffic.

The new set of bills is sponsored by state Senator Jim Ananich (D-Flint) who testified in the June hearing, saying he would be amenable to changing language in the bills to reflect that the legislation could only be applied to new mining permit applications and new mining operations moving forward, and that local municipalities would still remain in control of existing mining arrangements. Ananich did not return repeated requests for comment on the legislation and the question of how much he may be influenced by a $1,000 campaign contribution in May of 2021 from the aggregate industry group MAA which has been an active contributor to many state House and Senate members.

Supporters of the bills include organizations representing the concrete, construction and aggregates industries, labor unions and the Michigan Chamber of Commerce, claiming a need for expansion of aggregate mining due to limited supplies.

Levy's Falbaum said a transfer of permitting and oversight authorities from the local government to the state level would provide municipalities and the industry a consistent framework to conduct business and respond to the needs of the communities they work in to extract sand and gravel.

“We believe that we need a uniform approach to this issue,” Falbaum said. “Our products are needed for the Michigan economy to prosper. It’s needed to fill potholes, for construction, airport runways and many other applications. It is just simply essential for the well-being of the Michigan. We don't believe the proposed legislation will hurt our relationships with local communities, as we have been in this business for more than 100 years.”

In the marketing campaign for the bills, called “Build it Michigan Strong,” supporters using professionally produced videos say the bills would reduce the cost of road building materials by increasing access to the gravel and sand needed to make roads smooth and pothole-free. Expanding or creating new mining operations closer to where aggregate is most needed is more sustainable, they said, because it reduces the carbon footprint required to truck the materials if they came in from greater distances.

MAA, which supports the passing of the legislation, claims that the industry is most challenged by environmental regulations and getting zoning control to increase access to extract the minerals.

MAA spokesperson John Sellek said there is adequate language in SB 429 that would provide up to $500,000 per year to EGLE for staffing and other resources. Sellek maintained that Michigan’s dire need for road and infrastructure repairs, as well as new housing construction, warrants loosening regulations at the local level for more mining expansion.

“Michigan's aggregates supply chain has been broken for years because of dark money-funded campaigns that scare local officials into inaction,” said Sellek. “Aggregates are the basic building blocks of all concrete and asphalt that people depend on every day of our lives. Unfortunately, they are only available where Mother Nature happened to deposit them.”

Sellek said that Whitmer’s actions to accelerate the pace of road repair are something looked favorably upon by voters and the pieces of legislation have bipartisan support are at the center of what’s needed to accomplish this “to deliver the raw materials required to get the job done.”

Sellek said the association’s members at the local level are encountering increased “not in my backyard” resistance in the local permitting process.

"The legislation, if passed, will alleviate the negative political pressure placed on local officials to constantly deny or delay mining permits," Sellek said. "It will fix the broken aggregate supply chain by placing it in the hands of environmental experts at the state level. Local input would still take place, and strong environmental standards would be enforced while allowing access to sand and gravel close to the major road construction sites the public so badly wants repaired."