2004-PA-0449.htm

Act No. 449

Public Acts of 2004

Approved by the Governor

December 27, 2004

Filed with the Secretary of State

December 27, 2004

EFFECTIVE DATE: December 27, 2004

STATE OF MICHIGAN

92ND LEGISLATURE

REGULAR SESSION OF 2004

Introduced by Reps. Casperson, Farhat, Garfield, Brown, Adamini, Emmons, Amos, LaJoy, Huizenga, Gillard and Shackleton

ENROLLED HOUSE BILL No. 6243

AN ACT to amend 1994 PA 451, entitled "An act to protect the environment and natural resources of the state; to codify, revise, consolidate, and classify laws relating to the environment and natural resources of the state; to regulate the discharge of certain substances into the environment; to regulate the use of certain lands, waters, and other natural resources of the state; to prescribe the powers and duties of certain state and local agencies and officials; to provide for certain charges, fees, and assessments; to provide certain appropriations; to prescribe penalties and provide remedies; to repeal certain parts of this act on a specific date; and to repeal certain acts and parts of acts," by amending section63101 (MCL 324.63101), as amended by 1997 PA 149, and by adding section 63110 and part 632.

The People of the State of Michigan enact:

Sec. 63101. As used in this part:

(a) "Administratively complete" means an application for a mining permit under this part that is determined by the department to satisfy all of the conditions of this part and rules promulgated under this part.

(b) "Department" means the department of environmental quality.

(c) "Life of the mine" means the period of time from issuance of a permit under this part through the completion of reclamation as required by this part.

(d) "Metallic mineral" means ferrous ore or material mined for its ferrous content.

(e) "Metallic mineral operator" means a person who owns or leases the plant and equipment utilized in a metallic mineral mining area and is engaged in the business of mining metallic minerals or preparing to engage in mining operations for metallic minerals.

(f) "Metallic product" means a commercially salable metallic mineral in its final marketable form or state.

(g) "Mineral" means any substance to be excavated from the natural deposits on or in the earth for commercial, industrial, or construction purposes, including gypsum, limestone, dolostone, sandstone, shale, metallic mineral, or other solid materials. However, mineral does not include clay, gravel, marl, peat, inland sand or sand mined for commercial or industrial purposes, from sand dune areas regulated under part 637, coal regulated under part 635, or nonferrous metallic mineral regulated under part 632.

(h) "Mining area" or "area subjected to mining" means an area of land from which material is removed in connection with the production or extraction of minerals by surface or open pit mining methods, the lands on which material from that mining is deposited, the lands on which beneficiating or treatment plants and auxiliary facilities are located, the lands on which the water reservoirs used in the mining process are located, and auxiliary lands which are used.

(i) "Operator" means a metallic mineral operator or other persons engaged in or preparing to engage in mining operations for the production of mineral products.

(j) "Stockpile" means material, including, but not limited to, surface overburden, rock, or lean ore, which in the process of mineral mining and beneficiation or treatment has been removed from the earth and stored on the surface, but excluding materials that are being treated in the production of mineral products and the mineral product that has been produced by that operation.

(k) "Supervisor of reclamation" means the state geologist.

(l) "Surface or open pit mining" means the mining of more than 10,000 tons of a mineral or disturbing more than 1acre of land a year in the regular operation of a business by removing the overburden lying above a natural deposit of a mineral and mining directly from the natural deposit exposed or by mining directly from a deposit lying exposed in the mineral's natural state. Surface or open pit mining includes all mineral mining below the water table or which will upon cessation of mining result in creating a body of water of any size. Surface or open pit mining does not include excavation or grading preliminary to a construction project.

(m) "Tailings basin" means land on which is deposited, by hydraulic or other means, the material that is separated from the mineral product in the beneficiation or treatment of minerals including any surrounding dikes constructed to contain the material.

Sec. 63110. This part does not apply to activities subject to part 632.

PART 632 NONFERROUS METALLIC MINERAL MINING

Sec. 63201. As used in this part:

(a) "Administratively complete" means an application for a mining permit under this part that is determined by the department to contain all of the documents and information required under this part and any rules promulgated under this part.

(b) "Affected area" means an area outside of the mining area where the land surface, surface water, groundwater, or air resources are determined through an environmental impact assessment to be potentially affected by mining operations within the proposed mining area.

(d) "Emergency management coordinator" means that term as defined in section 2 of the emergency management act, 1976 PA 390, MCL 30.402.

(e) "Fund" means the nonferrous metallic mineral surveillance fund created in section 63217.

(f) "Metallic product" means a commercially salable mineral produced primarily for its nonferrous metallic mineral content in its final marketable form or state.

(g) "Mining" means the excavation or removal of more than 10,000 tons of earth material a year or disturbing more than 1 acre of land a year in the regular operation of a business for the purpose of extracting a nonferrous metallic mineral or minerals by 1 or both of the following:

(i) Removing the overburden lying above natural deposits of a mineral and excavating directly from the natural deposits thus exposed or by excavating directly from deposits lying exposed in their natural state.

(ii) Excavating from below the surface of the ground by means of shafts, tunnels, or other subsurface openings.

(h) "Mining area" means an area of land from which earth material is removed in connection with nonferrous metallic mineral mining, the lands on which material from that mining is stored or deposited, the lands on which beneficiating or treatment plants and auxiliary facilities are located, the lands on which the water reservoirs used in the nonferrous metallic mineral mining process are located, and auxiliary lands that are used in connection with the mining.

(i) "Mining permit" means a permit issued under this part for conducting nonferrous metallic mineral mining and reclamation operations.

(j) "Nonferrous metallic mineral" means any ore or material to be excavated from the natural deposits on or in the earth for its metallic content, but not primarily for its iron or iron mineral content, to be used for commercial or industrial purposes.

(k) "Nonferrous metallic mineral operator" or "operator" means a permittee or other person who is engaged in, or who is preparing to engage in, mining operations for nonferrous metallic minerals, whether individually or jointly, or through agents, employees, or contractors.

(l) "Permittee" means a person who holds a mining permit.

(m) "Postclosure monitoring period" means a period following closure of a nonferrous metallic mineral mine during which the permittee is required to conduct monitoring of groundwater and surface water.

(n) "Stockpile" means material, including, but not limited to, surface overburden, rock, or lean ore, that in the process of mining and beneficiation or treatment has been removed from the earth and stored on the surface. Stockpile does not include materials that are being treated in the production of metallic products and the metallic product that has been produced by that operation.

(o) "Tailings basin" means land on which is deposited, by hydraulic or other means, the material that is separated from the metallic product in the beneficiation or treatment of minerals including any surrounding dikes constructed to contain the material.

Sec. 63202. The legislature finds that:

(a) It is the policy of this state to foster the conservation and development of the state's natural resources.

(b) Discoveries of nonferrous metallic sulfide deposits have resulted in intensive exploration activities and may lead to the development of 1 or more mines.

(c) Nonferrous metallic sulfide deposits are different from the iron oxide ore deposits currently being mined in Michigan in that the sulfide minerals may react, when exposed to air and water, to form acid rock drainage. If the mineral products and waste materials associated with nonferrous metallic sulfide mining operations are not properly managed and controlled, they can cause significant damage to the environment, impact human health, and degrade the quality of life of the impacted community.

(d) The special concerns surrounding nonferrous metallic mineral mining warrant additional regulatory measures beyond those applied to the current iron mining operations.

(e) Nonferrous metallic mineral mining may be an important contributor to Michigan's economic vitality. The economic benefits of nonferrous metallic mineral mining shall occur only under conditions that assure that the environment, natural resources, and public health and welfare are adequately protected.

Sec. 63203. (1) The department shall administer and enforce this part in order to regulate nonferrous metallic mineral mining. In addition to other powers granted to it, the department may promulgate rules it considers necessary to carry out its duties under this part, including standards for construction, operation, closure, postclosure monitoring, reclamation, and remediation of a nonferrous metallic mineral mine. However, the department shall not promulgate any additional rules under this part after December 31, 2005.

(2) The department may do either of the following:

(a) Enter at all reasonable times in or upon a mining area for the purpose of inspecting and investigating conditions relating to the operation of a mining area. However, an investigation or inspection under this subsection shall comply with the United States constitution, the state constitution of 1963, and this section.

(b) Conduct research or enter into contracts related to mining areas and the reclamation of mining areas as may be necessary to implement this part.

(3) Subject to subsections (4) and (5), a local unit of government shall not regulate or control mining or reclamation activities that are subject to this part, including construction, operation, closure, postclosure monitoring, reclamation, and remediation activities, and does not have jurisdiction concerning the issuance of permits for those activities.

(4) A local unit of government may enact, maintain, and enforce ordinances, regulations, or resolutions affecting mining operations if the ordinances, regulations, or resolutions do not duplicate, contradict, or conflict with this part. In addition, a local unit of government may enact, maintain, and enforce ordinances, regulations, or resolutions regulating the hours at which mining operations may take place and routes used by vehicles in connection with mining operations. However, such ordinances, regulations, or resolutions shall be reasonable in accommodating customary nonferrous metallic mineral mining operations.

(5) Subsections (3) and (4) do not prohibit a local unit of government from conducting water quality monitoring.

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 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 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 person to be 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 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 permits 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. 63207. (1) A mining permit issued by the department shall remain in effect until terminated or revoked by the department.

(2) The department may terminate a mining permit under 1 or more of the following conditions:

(a) The permittee has not commenced construction of plant facilities or conducted actual mining activities covered by the mining permit within 2 years after the effective date of the mining permit.

(b) The permittee has completed final reclamation of the mining area and requests the termination of the mining permit and the department determines all of the following:

(i) The mining operation has not polluted, impaired, or destroyed the air, water, or other natural resources or the public trust in those resources by activities conducted within the scope of the permit.

(ii) The permittee has otherwise fulfilled all conditions determined to be necessary by the department to protect the public health, safety, and welfare and the environment.

(iii) The requirements for the postclosure monitoring period have been satisfied.

(3) The department may revoke a mining permit pursuant to section 63221.

(4) A mining permit may be transferred to a new operator with approval of the department after public notice as follows:

(a) The person acquiring the mining permit shall submit to the department on forms provided by the department a request for transfer of the mining permit and shall provide the financial assurance required under section 63211.

(b) The person acquiring the mining permit shall accept the conditions of the existing mining permit and adhere to the requirements set forth in this part.

(c) If the permittee is determined by the department to be in violation of this part or the rules promulgated under this part at the mining site involved in the transfer, then the mining permit shall not be transferred to a person until the permittee has completed the necessary corrective actions or the person acquiring the mining permit has entered into a written consent agreement to correct all of the violations.

(5) Pending the transfer of an existing mining permit under subsection (4), the proposed transferee shall not operate the mine.

(6) A mining permit may be amended as follows:

(a) The permittee may submit to the department a request to amend the mining permit to address anticipated changes in the mining operation, including, if applicable, amendments to the environmental impact assessment and to the mining, reclamation, and environmental protection plan.

(b) The department may require a mining permit to be amended if the department determines that the terms and conditions of the mining permit are not providing the intended reasonable protection of the environment, natural resources, or public health and safety.

(c) Within 30 days after receiving a request to amend a mining permit, or upon a determination by the department that an amendment is necessary, the department shall determine within 30 days whether the request constitutes a significant change from the conditions of the approved mining permit. If the department determines that the request is a significant change from the conditions of the approved mining permit, the department may submit the request for amendment to the same review process as provided for a new permit application in section 63205(4) to (9). If a request to amend the mining permit is denied, the reasons for denial shall be stated in a written report to the permittee. If the department determines that the request for amendment does not constitute a significant change from the conditions of the approved mining permit, the department shall provide written notice of the determination 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 also give notice of the determination by publication in a newspaper of local distribution in the area where the proposed mining operation is to be located. The department shall approve the amendment within 14 days after publication of the notice and shall notify the permittee of the approval.

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 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).

(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. 63211. (1) An operator shall maintain financial assurance during mining operations until the department determines that all reclamation has been completed and for a postclosure monitoring period as determined under section 63209(6) and (7), except that financial assurance shall be released immediately upon termination of a mining permit under section 63207(2)(a).

(2) The financial assurance required under subsection (1) shall apply to all mining and reclamation operations subject to the mining permit and be sufficient to cover the cost to administer, and to hire a third party to implement, reclamation under the mining, reclamation, and environmental protection plan as well as necessary environmental protection measures, including remediation of any contamination of the air, surface water, or groundwater that is in violation of the mining permit. The financial assurance shall consist of a conformance bond, escrow, cash, certificate of deposit, irrevocable letter of credit, or other equivalent security, or any combination thereof, covering at least 75% of the total required amount. Financial assurance for the balance of the required total amount, if any, shall consist of a statement of financial responsibility.

(3) Every 3 years, or as the department considers necessary, a permittee shall update the statement of financial responsibility required under subsection (2) and shall adjust the conformance bond, escrow, cash, certificate of deposit, irrevocable letter of credit, or other security, as applicable, to assure that the financial assurance is sufficient for the purposes of subsection (2).

(4) The financial assurance mechanism required by this section may be satisfied in whole or in part by financial assurance provisions required by other parts of this act if those provisions address the remediation activities required under this part.

(5) Failure to provide financial assurance under this section constitutes grounds for the department to order immediate suspension of activities at a mining operation, including the removal of metallic product from the site, pursuant to section 63221.

Sec. 63213. (1) A permittee shall file with the department a mining and reclamation report on or before March 15 of each year, during the period the mine is operating and during the postclosure monitoring period. The mining and reclamation report shall contain all of the following:

(a) A description of the status of mining and reclamation operations.

(b) An update of the contingency plan. The permittee shall provide a copy of the update to the emergency management coordinator.

(d) A report of the total tons of material mined from the mining area, and the amount of metallic product by weight, produced from the nonferrous metallic mineral mine for the preceding calendar year.

(e) A list of the reports required under subsection (2) for the preceding calendar year.

(2) A permittee shall promptly notify the department and each emergency management coordinator having jurisdiction over the affected area of any incident, act of nature, or exceedance of a permit standard or condition at a mining operation that has created, or may create, a threat to the environment, natural resources, or public health and safety.

(3) Records upon which the mining and reclamation reports are based shall be preserved by the permittee for 3years and made available to the department upon request.

(4) Records upon which incident reports under subsection (2) are based shall be preserved by the permittee for 3years or until the end of the postclosure monitoring period, whichever is later.

Sec. 63215. (1) For purposes of surveillance, monitoring, administration, and enforcement of this part, the department shall assess a permittee a nonferrous metallic mineral surveillance fee of not more than 5 cents per ton of material mined from the mining area as reported under section 63213(1)(d), but not less than $5,000.00, for each calendar year the mine is in operation and during the postclosure monitoring period. Surveillance fees collected under this section shall be forwarded to the state treasurer for deposit in the nonferrous metallic mineral surveillance fund created in section 63217. The surveillance fee rate shall be calculated each year as follows:

(a) The department shall determine the total tons of material mined from mining areas in this state in the prior calendar year.

(b) The department shall calculate the adjusted appropriation by deducting any unexpended money in the fund at the close of the prior fiscal year from the amount appropriated for the current fiscal year for surveillance, monitoring, administration, and enforcement of this part.

(c) The fee rate shall be the ratio, to the nearest 1/100 of 1%, of the adjusted appropriation to the total tons of material mined.

(2) The nonferrous metallic mineral surveillance fee described in subsection (1) is due by 30 days after the department sends written notice to the permittee of the amount due.

(3) A penalty equal to 10% of the amount due, or $1,000.00, whichever is greater, shall be assessed against the permittee for a metallic mineral surveillance fee that is not paid when due. The department may file an action in the circuit court for Ingham county to collect the unpaid fee and penalty. The unpaid fee and penalty shall constitute a debt and become the basis of a judgment against the permittee.

(4) Penalties paid pursuant to this section shall be used for the implementation, administration, and enforcement of this part.

Sec. 63217. (1) The nonferrous metallic mineral surveillance fund is created within the state treasury.

(2) The state treasurer may receive money or other assets from any source for deposit into the fund. The state treasurer shall direct the investment of the fund. The state treasurer shall credit to the fund interest and earnings from fund investments.

(3) Unexpended money in the fund at the close of the fiscal year shall remain in the fund and be carried over to the succeeding fiscal year.

(4) The department shall expend money from the fund, upon appropriation, only for surveillance, monitoring, administration, and enforcement under this part.

Sec. 63219. (1) A 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 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.

(2) Any hearing under this part 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.

Sec. 63221. (1) If the department determines that an operator has violated this part, a rule promulgated under this part, or a mining permit issued under this part, the department shall require the operator to correct the violation.

(2) If the department determines that a violation under subsection (1) is causing or resulting in an imminent and substantial endangerment to the public health or safety, environment, or natural resources, the department shall take action necessary to abate or eliminate the endangerment. Such action may include 1 or more of the following:

(a) Revoking the mining permit.

(b) Issuing an order to the operator requiring immediate suspension of activities at the mining operation, including the removal of metallic product from the site.

(c) Issuing an order to the operator to undertake such other response actions as may be necessary to abate or eliminate the endangerment.

(3) Before taking action under this section to suspend operations or revoke a mining permit, or to otherwise prevent the continuation of mining operations, the department shall give written notice, in person or by mail, to the operator. Subject to subsection (4), the department shall provide the operator an opportunity for an evidentiary hearing.

(4) If the department finds that emergency action is required to protect the public health, safety, or welfare, or to protect the environment, the department may issue an emergency order without a public hearing to require an operator to suspend operations or to take other corrective actions. An emergency order shall remain in force and effect for not more than 21 days.

(5) If the operator or surety fails or neglects to correct the violation or take corrective actions as specified under an order of the department, the department may, after giving written notice to the operator and surety, enter in or upon the mining area and upon and across any private or public property necessary to reach the mining area and take whatever action is necessary to curtail and remediate any damage to the environment and public health resulting from the violation, and the operator and surety are jointly and severally liable for all expenses incurred by the department. The claim shall be paid by the operator or surety within 30 days, and, if the claim is not paid within that time, the department may bring suit against the operator or surety, jointly or severally, for the collection of the claim in any court of competent jurisdiction. This part does not limit the department's authority to take whatever response activities it determines necessary to protect the public health, safety, and welfare and the environment.

(6) The revocation of a mining permit or suspension of activities under subsection (2) does not relieve a permittee of the responsibility to complete reclamation, maintain financial assurance required under section 63211, and undertake all appropriate measures to protect the environment, natural resources, and public health and safety.

(7) If the department receives an allegation of improper action under or a violation of this part, a rule promulgated under this part, or a condition of a permit issued under this part, and the person making the allegation provides evidence or corroboration sufficient to support the allegation, as determined by the department, the department shall do all of the following:

(a) Make a record of the allegation.

(b) Conduct an inspection of the mining operation to investigate the allegation not more than 5 business days after receipt of the complaint or allegation. If the complaint or allegation is of a highly serious nature, as determined by the department, the mining operation shall be inspected as quickly as possible. However, an investigation or inspection under this subsection shall comply with the United States constitution, the state constitution of 1963, and this section.

(c) Not more than 15 business days after completing an investigation of the allegation, make a written report of the allegation and the results of the investigation to the operator and the person who made the allegation.

(8) The department shall comply with the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328, in its actions under this section.

Sec. 63223. (1) The department may request the attorney general to commence a civil action for appropriate relief, including a permanent or temporary injunction, for a violation of this part or a provision of a permit or order issued or rule promulgated under this part. An action under this subsection may be brought in the circuit court for the county of Ingham or for the county in which the defendant is located, resides, or is doing business. The court has jurisdiction to restrain the violation and to require compliance. In addition to any other relief granted under this subsection, the court may impose a civil fine of not less than $2,500.00, and the court may award reasonable attorney fees and costs to the prevailing party. The maximum fine imposed by the court shall be not more than $25,000.00 per day of violation.

(2) Upon a finding by the court that an operator has violated this part or a provision of a permit or order issued or rule promulgated under this part, and that the violation poses or posed a substantial endangerment to the public health, safety, or welfare, the court shall impose, in addition to the sanctions set forth in subsection (1), a fine of not less than $500,000.00 and not more than $5,000,000.00.

(3) The attorney general may file a civil suit in a court of competent jurisdiction to recover, in addition to a fine, the full value of the injuries done to the natural resources of this state and the costs of surveillance and enforcement by the state resulting from the violation.

(4) A person who on or after February 1, 2005 intentionally makes a false statement, representation, or certification in an application for or form pertaining to a permit under this part or in a notice or report required by the terms and conditions of a permit issued under this part is guilty of a felony and may be imprisoned for not more than 2 years and shall be fined not less than $2,500.00 or more than $25,000.00 for each violation. If the conviction is for a violation committed after a first conviction of the person under this subsection, the court shall impose a fine of not less than $25,000.00 per day and not more than $50,000.00 per day of violation. With the exception of the issuance of criminal complaints, issuance of warrants, and the holding of an arraignment, the circuit court for the county in which the violation occurred has exclusive jurisdiction. Knowledge possessed by a person other than the defendant under this subsection may be attributable to the defendant if the defendant took affirmative steps to shield himself or herself from the relevant information.

(5) Upon a finding by the court that the actions taken by a criminal defendant on or after February 1, 2005 pose or posed a substantial endangerment to the public health, safety, or welfare, the court shall impose, in addition to the penalties set forth in subsection (2), a sentence of 5 years' imprisonment and a fine of not less than $1,000,000.00.

(6) To find a defendant civilly or criminally liable for substantial endangerment under subsection (2) or (5), the court shall determine that the defendant knowingly or recklessly acted in such a manner as to cause a danger of death or serious bodily injury and that either of the following occurred:

(a) The defendant had an actual awareness, belief, or understanding that his or her conduct would cause a substantial danger of death or serious bodily injury.

(b) The defendant acted in gross disregard of the standard of care that any reasonable person should observe in similar circumstances.

(7) A civil fine or other civil award imposed under this section is payable to this state and shall be credited to the general fund. The fine constitutes a lien on any property, of any nature or kind, owned by the defendant.

(8) A lien under subsection (7) is effective and has priority over all other liens and encumbrances except those filed or recorded prior to the date of judgment only if notice of the lien is filed or recorded as required by state or federal law.

(9) A lien filed or recorded pursuant to subsection (8) shall be terminated according to the procedures required by state or federal law within 14 days after the fine or other award ordered to be paid is paid.

(10) If a violation of this part also constitutes a violation of another part of this act, a court may apply a civil fine or penalty for the violation, and each day of continued violation, in accordance with and subject to the penalty limits of the other part.

This act is ordered to take immediate effect.

Clerk of the House of Representatives

Secretary of the Senate

Approved

Governor