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Environmental Law

Major Changes to Michigan’s Permitting Appeal Process—Part 1

By Brian Considine.

On June 28 2018, Governor Snyder signed the Public Act 268 of 2018, which created a new Environmental Permit Review Commission and Environmental Review Panel.

Background

Prior to the Act, Michigan’s Administrative Procedures Act provided applicants and aggrieved parties an avenue to review Michigan Department of Environmental Quality (DEQ) permitting decisions through the contested case hearing process. Generally, an applicant or other party aggrieved by a permit issued (or denied) by the DEQ could administratively appeal the DEQ’s decision by filing a petition within 60 days of the DEQ’s denial or issuance of a permit.

However, the sponsors of the legislation believed there were inefficiencies, so they created new avenues for applicants, but not the public, to influence the permitting process.

Who Can Be on the Panel?

The Environmental Permit Review Commission created by the Act is comprised of 15 individuals appointed by the governor who are to advise the DEQ director on disputes related to permits and permit applications. In short, each member must either be an engineer, geologist, hydrologist, or hydrogeologist, or have a scientific background applicable to air or water, but cannot be a State employee or have certain contracts with the DEQ.

An Environmental Permit Panel is comprised of three Commission members and is convened only when the DEQ director determines that he or she cannot resolve a permit dispute with an applicant. The Panel members are selected by the director based on their relevant areas of expertise. The Panel then chooses a chairperson and two panelists constitute a quorum for official action.

The Governor recently appointed a number of individuals to be part of the Commission. The new Commissioner’s names and backgrounds can be accessed by clicking on this link.

New Permit Appeal Process

Unlike contested case proceedings where aggrieved parties, including adjacent landowners and other interested parties, may dispute the issuance of a permit, the new permit panel appeal process is limited to permit applicants only. If an applicant has a dispute with the DEQ prior to the issuance or denial of a permit and wants the issue reviewed, the applicant must submit a petition to the director that includes the issues in dispute, relevant facts and any data, analysis, opinion and documentation supporting the petitioner’s position. The director then has 45 days to try to resolve the issue with the petitioner and if the dispute is not resolved, the director convenes the Panel and provides the Panel with the petition and all other documentation. The Panel issues its recommendation (either adopting, modifying or reversing the DEQ) within 45 days of the hearing and the director has 60 days after receiving the Panel’s recommendation to issue a written decision. If the 60-day deadline is not met, the Panel’s recommendation is considered the director’s decision.

Notably, the director’s decision is not subject to review under the contested case proceedings of the APA or the Revised Judicature Act (“RJA”).  Also, if an applicant fails to file a petition before the issuance or denial of a permit, the department’s decision regarding issuance or denial is final for purposes of review under the APA or the RJA.

While permits may still be appealed through the APA’s contested case provisions, Section 1317(1) of the Act has substantially changed current practice by making an Administrative Law Judge’s (“ALJ”) decision rendered during a contested case proceeding subject to review by a Panel. However, a review of a contested case proceeding is not limited to the applicant; any party to a contested case may seek review within 21 days of the final decision and order of the ALJ by submitting a petition to the director and notice to the ALJ. The Panel’s opinion must be in writing and clearly define the legal and technical principles being applied, which then becomes the final decision of the department and is subject to judicial review as provided under the APA. If the ALJ’s decision is not appealed to a Panel within 21 days, then the ALJ’s decision becomes the final decision and order of the DEQ for purposes of judicial review.

Stay tuned for part two discussing possible problems on the horizon. Do you have additional questions? Contact Brian Considine at bconsidine@dmms.com