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."

But environmentalists, officials and grassroots organizations are concerned that EGLE is not up to the task. They say the agency is chronically underfunded and understaffed and cannot take on the complexities and nuances of permitting mines down to the municipal level.

Jennifer Rigterink, the assistant director of state and federal affairs for the MML, explained that municipalities are already limited in what they can regulate when it comes to mining, such as trucking routes, dust mitigation, hours of operation and setbacks from housing and business property lines. Typical setback parameters are between 300 and 500 feet from residential property lines, which is consistent with permitting requirements from EGLE, according to the June House testimonial records.

Rigterink said the set of laws are a pushback on local ordinances, such as plastic bag and Styrofoam bans that have been attempted in places like Ann Arbor. But this has more far-reaching implications.

“As with many legislative pushes for preemption, there is usually one interest group – and this time it’s the aggregate mining industry – that things have not gone exactly the way they want them to go,” she explained. “And then what is proposed is this one-size-fits all approach at the state level as we see in these pieces of legislation. The MML opposes SB 429-431 because they make null and void existing regulations that have been tailored at the municipal level, cancel existing working relationships between municipal governments and mining companies, and silence concerned residents that are living near existing or proposed mining operations.”

As a compromise, Rigterink said the league supports House Bill 4875. Introduced in 2021 by state Rep. Julie Alexander (R-Hanover), it serves as a middle ground for industry and the communities where they operate mines. This legislation intends to address complaints from the industry about lagging response times to their permit application submissions and puts finite time parameters on the mining permit submission and approval process.

“HB 4875 is a compromise because it will fast track any permitting applications that are not raising concerns from the community,” Rigterink said. “It puts in time parameters that mining companies are asking for when they are looking for a response from the local government, even if that response is a request for more information. This bill would be a solution, where the other set of bills are just solutions which are seeking problems.”

Placing the entire permitting and operating monitoring process on EGLE, SB 429 states that any mining permit submitted to the agency – at a cost of $5,000 to the permit applicant –would need to be processed within 14 days. The permit would require the applicant to provide a mining and reclamation plan and all reclamation provisions to be carried to completion with reasonable diligence and be conducted concurrently with mining to the extent practicable.

EGLE would have to communicate to local communities that a mining permit application had been filed through local media and local municipal officials within 42 days after receiving an administratively complete application.

The public would be allowed to submit comments in writing to EGLE within 30 days after the notice was published. If EGLE determined that there was enough cause from these public comments to contest the permit – EGLE would have to hold a public hearing on the application. The permit issued by EGLE would be valid for the mine’s operating lifetime and the mining permit could be transferred or amended with approval. Any public complaints about the mine would need to be submitted in writing to the agency.

Environmental organizations say there is not enough specific language in the bills to give EGLE the teeth it needs in terms of staffing and oversight to effectively carry out a statewide aggregate permitting and oversight program or be responsive enough should problems arise at local levels.

“Every year, the Michigan Environmental Council fights back on cuts to EGLE that come down from the state legislature,” said Megan Tinsley, the organization’s water policy director. “Our concern about shifting permitting control from the local level to the state is, while EGLE has the expertise among its personnel about protecting things like water resources, would they have the capacity to handle the volume of incoming permits? Do they know the ins and outs of every little town? Therefore, we believe that the local communities still need to have some sort of say, when it comes to things like air pollution, water pollution and noise. These bills preempt all local involvement. It removes the local voices of the people who will be impacted by the mining. And that's a big concern.”

EGLE spokesperson Hugh McDiarmid Jr. said the agency has provided input and suggestions to legislative leaders as the proposed legislation is considered.

“EGLE has not taken a position on current versions of that legislation, which we expect to change as negotiations continue,” McDiarmid Jr. said. “We suggest that legislative appropriations and fees paid by newly permitted mines provide adequate resources and capacity for EGLE to effectively and efficiently carry out any new regulatory program that would be necessitated by these bills. EGLE has tried to impress that if the legislature decides to move this permitting authority to the state, we have an adequately funded program that we can effectively administer, and the agency would be able to provide a high level of environmental protection. EGLE’s primary focus is that the environment and public health be rigorously protected from the potential impacts of mining operations in local communities.”

Judy Allen, director of government relations for the MTA, said the township organization has always understood the need for mining aggregate materials in order to improve infrastructure. What the MTA opposes is the overruling of local ordinances and the possible overreach of state government into municipal decisions that is built into the three pieces of legislation.

“MTA supports access to materials necessary for infrastructure to fix Michigan roads and for development and from construction in the state,” Allen said. “However, we oppose (SB 429-431) because they represent a dynamic shift from local oversight that has been in place since the enactment of the 2006 Zoning Enabling Act to a one-size-fits-all approach. If passed, the legislation would incorrectly treat all communities and mining companies the same and would install industrial type standards with the state doing the oversight.

“The Zoning Enabling Act is very clear that a municipality must grant permits unless it can clearly demonstrate serious consequences as to why it should be denied.”

Allen also upheld the point that at the root of this tug of war between mining companies and municipalities is the lack of geological mapping that should have been in place and used as a tool for creating zoning ordinances that could have planned for mining first, and then development later. The state has not funded geological mapping since 1978, and lots of development has happened since then.

“I have had conversations with my counterparts in other states on the topic and they are surprised to learn that Michigan has not thoroughly mapped and surveyed where the minerals and aggregate materials are located,” Allen said. “Without thorough mapping, she contended that it is tough for municipalities to properly zone land for residential, commercial or industrial uses.” If the proposed legislation goes into effect, Allen said municipal officials her organization represents fear aggregate miners can submit to the state an application to mine anywhere – next to open spaces like parks or golf courses, residential areas, schools or daycare centers.

“We've had some local townships contacting us saying their residents are up in arms because sand and gravel mining operation might be going in right next to a housing development, a school or a golf course. Having that knowledge (geological mapping provides) would be empowering to potential home and property buyers if there is a chance that their surroundings may someday be rezoned for the sake of mining. As residents and taxpayers, there is a long-standing trust you are putting into that community, and you need to know if an adjacent parcel of land may someday devalue your investment if one day a mining permit is issued next to your property.”

One place in Oakland County that has mined for sand and gravel for decades is Groveland Township, which runs along I-75 and Dixie Highway. The township has been home to nine mining operations over the decades, a number which is currently down to four.

Township Supervisor Robert DePalma, who has held this post for 27 years and was on the township's planning commission 16 years before that, said there never has been a time when Groveland Township has denied a permit for aggregate mining. As he puts it, the new proposal to take municipal authority and transfer permitting, oversight and regulations to the state is “a solution that’s actually looking for a problem.”

“Because of the Zoning Enabling Act, a township cannot legally tell a mining or mineral operation that they cannot extract materials unless that town can specifically prove there would be significant damage to the town,” DePalma said. “Every permit we have issued is under a consent decree, and that means there is a partnership between the town and the company to lay down reasonable parameters such as hours of operation, trucking routes and determining setback lines so the mine does not infringe on other properties. In the decades I’ve been working with mines, there has never been an issue that has arisen that has not been solved between the township and the company. All the mining reviews came through me. So, what will happen if these same processes now go through the state?”

DePalma, who testified at the June hearing in Lansing, expressed his lack of confidence in EGLE’s ability to quickly get up to speed on all the history and all the nuances of every issued mining permit across the state judging by how underfunded and understaffed the agency has been.

“I have no idea why the legislature is trying to push this through, and how EGLE is going to get up to speed and do this in any orchestrated manner,” he said. “The state does not have everything in place – they just don’t want to deal with municipalities. This is 'cart before the horse' thinking.”

But Oxford Township Supervisor Jack Curtis said is he is not concerned about the possible transfer of mining permitting power from his office to Lansing. Curtis said whether permitting rests at the state or local level, at the heart of the matter is not local or state control, but partnerships and good communication. The small township in northern Oakland County was once known as the sand and gravel capital of the world, and aggregate has been mined there for over 100 years, he added.

“Over the years, former gravel pits have been remediated into beautiful subdivisions in Oxford,” he said. “Any time Oxford has asked of a gravel company for something – like decorative boulders to put in front of a public building, or 20,000 tons of crushed gravel for our sidewalks, they have given it to us. We have the relationship to ask the mining company to alter hours of operation if residents complain of the noise level or there are too many trucks on the road, and they respond. Those people in Metamora are fighting the mines because it’s about the noise and dust. Nobody likes that. That’s where these mining operations get their bad reputation.”

Curtis believes that if local control would be transferred to EGLE, the state agency would be more strict and more responsive to complaints from local residents than local governments. Plus, he said mining companies may be more compliant if they knew they would have to answer to the state.

“When someone files a complaint with EGLE, there are mounds of paperwork to deal with, and I don’t think any mining operation wants that. Even so, Oxford has had decades of experience and relationships with aggregate companies, and I don’t think those relationships will be diminished.”

Some who testified in Lansing this summer are calling for more robust funding for geological mapping, a much-needed tool to more judiciously determine zoning areas and create better legislation around aggregate mining.

Geologist Mike Wilczynski, who worked for 11 years as senior geologist at Michigan Department of Environmental Quality (DEQ), said the history of the call to create zoning regulations for areas with potential mining value dates to the 1960’s. That’s when geology faculty members at Wayne State University served on a gubernatorial committee to study how mining operations would impact groundwater quality.

Wilczynski said geologists advised the state to fund the creation of a thorough geological mapping survey of sand and gravel reserves and other precious minerals to prevent the land to be developed for residential commercial or other uses.

“Back then, geologists were pushing for zoning laws that allowed the state to first mine for gravel deposits and then develop the land for other uses,” said Wilczynski. “Now this idea is resurfacing, and it took a long time for this idea to catch on here in Michigan while this has been the practice in other states such as Wisconsin and Minnesota where they have conducted statewide geologic mapping. So, we build over these deposits and then we complain that we don’t have enough supplies close to where the aggregate materials are needed, or now we have to open up mining operations too close to communities because there was no overall regional planning that took place.”

John Yellich, director of the Michigan Geological Survey, explained that statewide comprehensive geological mapping is something both local government and aggregate industry leaders have supported “1,000 percent.” However, from 1980 to 2011, a time when the state saw much suburban and exurban development, no mapping or data was compiled due to zero funding. It was only in 2011 when the mapping project received funding through three special appropriations through the state in 2016, 2018 and 2019. Still, Yellich cannot hire full time staff.

“Not having accurate mapping makes it a challenge for towns to properly zone for mining,” Yellich said on a call out in the field in Allegan County. “Either they may be building over the most ideal locations to mine, or homeowners may someday find themselves living close to an area that will be mined which they had no intentions of living nearby. In this regard, Michigan is way behind other states like Ohio, Indiana, Minnesota and Illinois.”

For example, Yellich explained in the last three years, the Michigan Geological Survey completed mapping Calhoun County. The survey had discovered about 166 square miles of potential underground aggregate resources. But most of this area had already been zoned for housing or contained development areas that contained sensitive wetlands. “Once you took away land zoned for housing development or wetlands that should not be disturbed, Calhoun was left with about 44 square miles available for mining,” Yellich said.

Another crucial reason to map, Yellich insisted: wherever there is sand and gravel, there is water.

“I have been advising town officials to restrict the growth along their city boundaries for years, but people tend to like to develop and build homes along rivers and waterways, which is right where sand and gravel reserves are located,” Yellich said. “Where you have sand and gravel, you have water resources, and we need to know where these are in order to protect them. Wetlands represent near surface water which must be protected from contaminating the groundwater, which seeps into the sand and gravel. What ties all this together will be a solid mapping program to identify and protect water resources as well as depths of where sand and gravel resources are located. So, accurate geological mapping is a win-win for everyone.”

Tim Minotas, legislative and political coordinator and chapter compliance officer for the Sierra Club Michigan chapter, said the aggregate industry has misled the public to believe there is a looming shortage of aggregate material, and said SB 429-431 would create a statewide program that serves only to favor the aggregate mining industry at the expense of our local communities and environment.

“Michigan is not experiencing a shortage of aggregate mines nor materials,” explained Minotas. “Recent data shows that the state has about 600 companies mining in about 1,300 sites throughout the state. While some may have been idle due to the COVID pandemic, they are not completely closed. And if there is an aggregate shortage in the state, why is Michigan one of the top exporters of gravel in the country?”

Citing the aggregate industry’s argument for more closely located aggregate activity would offset emissions if materials would not have to be trucked from long distances, Minotas said that the existing mines are already evenly dispersed throughout the state and any reduction in a carbon footprint would be minimal.

Though Minotas said the Sierra Club is not opposed to mining and the organization would like to ideally see a baseline framework of regulations set by EGLE for the aggregate mining industry, he noted the current legislation as it is written provides no details on how this will be accomplished.

“Under the current laws, where mine permits are regulated at the local level, we don’t see a problem at all. There are some localities (like Metamora) that are doing a great job, and others that need more of a framework and resources,” Minotas said. “And while it would be great to have a piece of legislation that would require EGLE to create some framework for baseline standards for permitting to then be adapted at local levels, we would be for that. But the way the bills are currently written, they truly fail to provide any sort of effective and truly robust regulatory framework for oversight and review of these mines and protecting the environment. So, full stop, we are against the currently proposed legislation.”