HOUSE BILL NO. 5305

December 19, 2019, Introduced by Reps. Warren and Alexander and referred to the Committee on Transportation.

A bill to amend 2006 PA 110, entitled

"Michigan zoning enabling act,"

by amending section 205 (MCL 125.3205), as amended by 2018 PA 366.

the people of the state of michigan enact:

Sec. 205. (1) A zoning ordinance is subject to all of the following:

(a) The electric transmission line certification act, 1995 PA 30, MCL 460.561 to 460.575.

(b) The regional transit authority act, 2012 PA 387, MCL 124.541 to 124.558.

(c) The small wireless communications facilities deployment act, 2018 PA 365, MCL 460.1301 to 460.1339.

(2) A county or township shall not regulate or control the drilling, completion, or operation of oil or gas wells or other wells drilled for oil or gas exploration purposes and shall not have jurisdiction with reference to the issuance of permits for the location, drilling, completion, operation, or abandonment of such wells.

(3) An ordinance shall not prevent the extraction, A person shall not extract, by mining, of valuable natural resources from any property unless very serious consequences would result from the extraction of those natural resources.the person has obtained a permit for that activity from the local unit of government exercising zoning authority. The local unit of government shall not issue the permit unless all of the following apply:

(a) The person seeking to extract natural resources has submitted an administratively complete permit application to the local unit of government. An administratively complete permit application shall include, at a minimum, the following:

(i) A phase I environmental site assessment, for the property that is the subject of the permit application, that meets the requirements of 40 CFR part 312 for conducting all appropriate inquiries.

(ii) An alternatives analysis that evaluates, at a minimum, the following:

(A) Whether there is a need for the natural resources in the region where the project is proposed to be located.

(B) Alternative sites for the proposed project.

(C) Alternatives for the project scope, including a no-action alternative.

(D) Whether the proposed project is superior to each alternative considering cost, feasibility, logistics, public health, community impact, environmental impact, and any other appropriate factor.

(iii) If the local unit of government requires reclamation under subsection (9), a financial guarantee, in a form approved by the local unit of government, to ensure the rehabilitation and reclamation of the property that is the subject of the permit application.

(b) The natural resources are valuable. Natural resources shall be considered are valuable for the purposes of this section if a person, by extracting the natural resources, can receive revenue and reasonably expect to operate at a profit.

(c) No very serious consequences would result from the extraction of the natural resources.

(4) A person challenging a zoning decision under subsection (3) has the initial burden of showing that all of the following:

(a) That there are valuable natural resources located on the relevant property. , that

(b) That there is a need for the natural resources by the person or in the market served by the person. , and that

(c) That no very serious consequences would result from the extraction, by mining, of the natural resources.

(5) In Subject to subsection (6), in determining under this section subsection (3) whether very serious consequences would result from the extraction, by mining, of natural resources, the standards set forth in Silva v Ada Township, 416 Mich 153 (1982), shall be applied and all of the following factors may shall be considered, if applicable:

(a) The relationship of extraction and associated activities with existing land uses.

(b) Environmental impact, including, but not limited to, the effect on protected wetlands, conservation areas, or areas of known contamination in the vicinity of the property. Areas of known contamination include, but are not limited to, all of the following:

(i) A facility.

(ii) A site as defined in section 21303 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.21303.

(iii) Property identified on the national priorities list under section 105 of the comprehensive environmental response, compensation and liability act of 1980, 42 USC 9605.

(iv) Property subject to cleanup, remediation, or other legal requirements because of the presence of hazardous substances in the environment.

(c) (b) The impact on existing land uses in the vicinity of the property.

(d) (c) The impact on property values in the vicinity of the property and along the proposed hauling route serving the property, based on credible evidence.

(e) (d) The impact on pedestrian and traffic safety in the vicinity of the property and along the proposed hauling route serving the property.

(f) (e) The impact on other identifiable health, safety, and welfare interests in the local unit of government.

(g) (f) The overall public interest in the extraction of the specific natural resources on the property.

(h) The alternatives analysis under subsection (3)(a)(ii).

(6) A local unit of government may by ordinance or permit action prevent or prohibit the extraction by mining of natural resources for 1 or more of the following reasons, each of which constitutes very serious consequences:

(a) The property on which the mining will occur is a facility, irrespective of whether response activities or corrective action has been completed at the facility.

(b) A proposed haul route to transport natural resources from the mining area to a primary road runs through or adjacent to a historic district or other property listed on the National Register of Historic Places under the national historic preservation act, 54 USC 300101 to 307108.

(c) The local unit of government already contains 3 or more mining operations wholly or partly within its boundaries.

(7) (6) Subsections (3) to (5) do not limit a local unit of government's reasonable regulation of a mining operation, including, but not limited to, hours of operation, setbacks, berming, blasting hours, noise levels, dust control measures, and traffic, not preempted by part 632 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.63201 to 324.63223. However, such regulation shall be reasonable in accommodating customary mining operations.

(8) The local unit of government exercising zoning authority may require additional environmental sampling, analysis, or testing at the permit applicant's sole expense before making a final decision on the permit application under subsection (3).

(9) The local unit of government exercising zoning authority may impose reasonable conditions on a permit issued under subsection (3) as follows:

(a) Conditions based on the phase I environmental site assessment submitted under subsection (3)(a)(i) and any subsequent environmental sampling, analysis, testing, or reports, to prevent, monitor, or remediate reasonably anticipated environmental impacts of the permitted activity.

(b) A requirement that the permittee submit plans for reclamation of the mining area following cessation of mining operations that include all of the following:

(i) Grading, revegetating, and stabilization that will minimize, to the extent practicable, soil erosion, sedimentation, noise, off-site migration of dust, and public safety concerns as identified in subsection (5).

(ii) Reclaiming slopes of the banks of the excavation to not exceed 1 foot vertical to 3 feet horizontal measured from the nearest setback line into any area disturbed by mining operations.

(iii) Where open water with a maximum depth in excess of 5 feet will result from mining operations, reclaiming slopes into the water to not exceed 1 foot vertical to 5 feet horizontal maintained and extended into the water to a depth of 5 feet.

(10) A person issued a permit required under subsection (3) is liable for response activity costs and natural resource damages attributable to any exacerbation, as defined in section 20101 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.20101, or failure to mitigate unacceptable exposure to hazardous substances with respect to the property at which the mining operations are conducted. This subsection does not limit the liability or obligations a person may otherwise have under the natural resources and environmental protection act, 1994 PA 451, MCL 324.101 to 324.90106.

(11) (7) This act does not limit state regulatory authority under other statutes or rules.

(12) As used in subsections (5) and (6), "facility" means that term as defined in section 20101 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.20101.