The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6818

September 15, 1994

ENVIRONMENTAL PROTECTION:

Mining access road subject to Soil Erosion and Sedimentation Control Act of 1972

MINING:

Mining access road subject to Soil Erosion and Sedimentation Control Act of 1972

The legislative exemption of mining from the provisions of the Soil Erosion and Sedimentation Control Act of 1972 does not include an access road leading to and from the area of mineral extraction and related activities.

Roland Harmes

Director

Department of Natural Resources

P.O. Box 30028

Lansing, Michigan 48909

You have asked if the legislative exemption of mining from the provisions of the Soil Erosion and Sedimentation Control Act of 1972 (SESCA), 1972 PA 347, MCL 282.101 et seq; MSA 13.1820(1) et seq, includes an access road leading to and from the area of mineral extraction and related activities.

SESCA, as originally introduced in 1971 HB 4709, expressly included mining in section 2(4). However, as ultimately enacted into law and amended, section 16 of SESCA provides:

This act does not apply to land on which a person, partnership or corporation is engaged in the industry generally referred to as logging or is engaged in the industry generally referred to as mining or the plowing or tilling of land for the purpose of crop production or the harvesting of crops. [Emphasis added.]

MCL 282.116; MSA 13.1820(16).

Thus, it is clear that the Legislature made a conscious decision to except mining from SESCA. The question is whether that exemption is broad enough to include an access road leading to and from the area of mining related activities.

Statutory exceptions are given a limited rather than an expansive construction. Rzepka v Farm Estates, Inc, 83 Mich App 702, 706-707; 269 NW2d 270 (1978). This is especially true here in light of the public policy of environmental protection established by the people in adopting Const 1963, art 4, Sec. 52. That constitutional provision provides that "[t]he legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction." See also, OAG, 1969-1970, No 4590, p 17, 29-30 (January 27, 1969).

In addition, this office has been informed that the mining that gave rise to this question is open pit mining. In section 1(b) of the statute dealing with the reclamation of open pit mining lands, 1970 PA 92, MCL 425.181 et seq; MSA 18.594(1) et seq, the Legislature defined "[m]ining area" or "area subjected to mining" as:

[A]n area of land from which material is hereafter removed in connection with the production or extraction of minerals by open pit mining methods, the lands on which material from such mining is hereafter deposited, the lands on which beneficiating or treatment plants and auxiliary facilities are hereafter located, the lands on which the water reservoirs used in the mining process are hereafter located, and auxiliary lands which are hereafter used.

Also, the administrative rules implementing 1970 PA 92 require reclamation activities on abandoned roads. 1979 AC, R 425.47. This broad definition of the mining area is consistent with the purpose of minimizing environmental damage in reclaiming as much land as possible once the mining operation is terminated.

On the other hand, SESCA is designed to control soil erosion and to protect our waters from sedimentation by requiring permits before manmade earth changes may be undertaken. Thus, in this context, a broad definition of mining limits protection of the environment. That may explain why the Legislature did not adopt the broad definition of mining area found in 1970 PA 92 when it passed SESCA.

In section 16 of SESCA, the statutory exception is for "land on which a person . . . is engaged in . . . mining." While this statutory language may very well cover mining related activities in close proximity to the area of mineral extraction, it does not encompass an access road to and from the mining area.

This result is consistent with a Letter Opinion of the Attorney General to the Department of Natural Resources dated January 8, 1976, which concluded that the exemption for logging contained in section 16 of SESCA does not include access roads. That letter opinion also correctly observed that, although logging was exempt from regulation under SESCA, persons engaging in logging that impair our natural resources are subject to suit under the Thomas J. Anderson, Gordon Rockwell Environmental Protection Act of 1970, 1970 PA 127, MCL 691.1201 et seq; MSA 14.528(201) et seq. That observation is equally applicable to persons engaging in mining.

It is my opinion, therefore, that the legislative exemption of mining from the provisions of the Soil Erosion and Sedimentation Control Act of 1972 does not include an access road leading to and from the area of mineral extraction and related activities.

Frank J. Kelley

Attorney General