SB-0653, As Passed Senate, January 25, 2018

SUBSTITUTE FOR

SENATE BILL NO. 653

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending section 1301 (MCL 324.1301), as amended by 2014 PA 215,

and by adding sections 1313 and 1315.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1301. As used in this part:

(a) "Appeal board" means a committee of the appeal panel,

appointed under section 1315(2).

(b) "Appeal panel" or "panel" means the permit appeal panel

established under section 1313(1).

an application for a permit is received by the state and ending

when the application is considered to be administratively complete

under section 1305 and any applicable fee has been paid.

(d) ~~(b)~~ "Department" means the department, agency, or officer

authorized by this act to approve or deny an application for a

particular permit.

(e) ~~(c)~~ "Director" means the director of the state department

authorized under this act to approve or deny an application for a

particular permit or the director's designee. However, as used in

sections 1313 and 1315, "director" means the director of the

department of environmental quality or the director's designee.

(f) ~~(d)~~ "Permit", except as provided in subdivision (g), means

a permit or operating license required by any of the following

sections or by rules promulgated thereunder, or, in the case of

section 9112, by an ordinance ~~adopted thereunder:~~referred to in

that section:

(i) Section 3104, floodplain alteration permit.

(ii) Section 3503, permit for use of water in mining iron ore.

(iii) Section 4105, sewerage system construction permit.

(iv) Section 6516, vehicle testing license.

(v) Section 6521, motor vehicle fleet testing permit.

(vi) Section 8310, restricted use pesticide dealer license.

(vii) Section 8310a, agricultural pesticide dealer license.

(viii) Section 8504, license to manufacture or distribute

fertilizer.

(ix) Section 9112, local soil erosion and sedimentation

control permit.

(x) Section 11509, solid waste disposal area construction

permit.

(xi) Section 11512, solid waste disposal area operating

license.

(xii) Section 11542, municipal solid waste incinerator ash

landfill operating license amendment.

(xiii) Section 11702, septage waste servicing license or

septage waste vehicle license.

(xiv) Section 11709, septage waste site permit.

(xv) Section 30104, inland lakes and streams project permit.

(xvi) Section 30304, state permit for dredging, filling, or

other activity in wetland. Permit includes an authorization for a

specific project to proceed under a general permit issued under

section 30312.

(xvii) Section 31509, dam construction, repair, or removal

permit.

(xviii) Section 32312, flood risk, high risk, or environmental

area permit.

(xix) Section 32512, permit for dredging and filling

bottomland.

(xx) Section 32603, permit for submerged log removal from

Great Lakes bottomlands.

(xxi) Section 35304, department permit for critical dune area

use.

(xxii) Section 36505, endangered species permit.

(xxiii) Section 41702, game bird hunting preserve license.

(xxiv) Section 42101, dog training area permit.

(xxv) Section 42501, fur dealer's license.

(xxvi) Section 42702, game dealer's license.

(xxvii) Section 44513, charter boat operating permit under

reciprocal agreement.

(xxviii) Section 44516, boat livery operating permit.

(xxix) Section 45503, permit to take frogs for scientific use.

(xxx) Section 45902, game fish propagation license.

(xxxi) Section 45906, game fish import license.

(xxxii) Section 61525, oil or gas well drilling permit.

(xxxiii) Section 62509, brine, storage, or waste disposal well

drilling or conversion permit or test well drilling permit.

(xxxiv) Section 63103a, ferrous mineral mining permit.

(xxxv) Section 63514 or 63525, surface coal mining and

reclamation permit or revision of the permit, respectively.

(xxxvi) Section 63704, sand dune mining permit.

(xxxvii) Section 72108, use permits for a Pure Michigan Trail.

(xxxviii) Section 76109, sunken aircraft or watercraft

abandoned property recovery permit.

(xxxix) Section 76504, Mackinac Island motor vehicle and land

use permits.

(xxxx) Section 80159, buoy or beacon permit.

(g) "Permit", as used in sections 1313 and 1315, means a

permit or operating license issued by the department of

environmental quality under this act.

(h) ~~(e)~~ "Processing deadline" means the last day of the

processing period.

(i) ~~(f)~~ "Processing period" means the following time period

after the close of the application period, for the following

permit, as applicable:

(i) Twenty days for a permit under section 61525 or 62509.

(ii) Thirty days for a permit under section 9112 or 44516.

(iii) Thirty days after the department consults with the

underwater salvage and preserve committee created under section

76103, for a permit under section 76109.

(iv) Sixty days, for a permit under section 30104 for a minor

project established under section 30105(7) or 32512a(1), or an

authorization for a specific project to proceed under a general

permit issued under section 30105(8) or 32512a(2), or for a permit

under section 32312.

(v) Sixty days or, if a hearing is held, 90 days for a permit

under section 35304.

(vi) Sixty days or, if a hearing is held, 120 days for a

permit under section 30104, other than a permit or authorization

described in subparagraph (ii) or (iv), or for a permit under

section 31509.

(vii) Ninety days for a permit under section 11512, a revision

of a surface coal mining and reclamation permit under section

63525, or a permit under section 72108.

(viii) Ninety days or, if a hearing is held, 150 days for a

permit under section 3104 or 30304, or a permit under section 32512

other than a permit described in subparagraph (iv).

(ix) Ninety days after the close of the review or comment

period under section 32604, or if a public hearing is held, 90 days

after the date of the public hearing for a permit under section

32603.

(x) One hundred twenty days for a permit under section 11509,

11542, 63103a, 63514, or 63704.

(xi) One hundred fifty days for a permit under section 36505.

However, if a site inspection or federal approval is required, the

150-day period is tolled pending completion of the inspection or

receipt of the federal approval.

(xii) For any other permit, 150 days or, if a hearing is held,

90 days after the hearing, whichever is later.

Sec. 1313. (1) A permit appeal panel is established in the

department of environmental quality.

(2) The appeal panel shall consist of 15 individuals,

appointed by the governor. The governor shall appoint the first

panel within 60 days after the effective date of the amendatory act

that added this section. Each member of the panel shall meet all of

the following requirements:

(a) Meet 1 or more of the following:

(i) Hold a current professional engineering, geologist,

hydrologist, or hydrogeologist license or registration from a

state, tribe, or United States territory, or the Commonwealth of

Puerto Rico, and have the equivalent of 6 years of full-time

relevant experience.

(ii) Have a master's degree from an accredited institution of

higher education in a discipline of engineering or science related

to air or water and the equivalent of 8 years of full-time relevant

experience.

(b) Remain current in his or her field through participation

in continuing education or other activities.

(3) An individual is not eligible to be a member of the panel

if any of the following apply:

(a) The individual is a current employee of any office,

department, or agency of this state.

(b) The individual is a party to 1 or more contracts with the

department of environmental quality and the compensation paid under

those contracts in any of the preceding 3 years represented more

than 5% of the individual's annual gross income in that preceding

year.

1 or more contracts with the department of environmental quality

and the compensation paid to the individual's employer under those

contracts in any of the preceding 3 years represented more than 5%

of the employer's annual gross revenue in that preceding year.

(d) The individual was employed by the department of

environmental quality within the preceding 3 years.

(4) An individual appointed to the appeal panel shall serve

for a term of 4 years, except as provided in this subsection, and

may be reappointed. However, after serving 2 consecutive terms on

the panel, the individual is not eligible to serve on the panel for

2 years. The terms for members first appointed shall be staggered

so that 3 expire in 1 year, 4 expire in 2 years, and 4 expire in 3

years. A vacancy on the panel shall be filled in the same manner as

the original appointment.

(5) The governor may remove a member of the appeal panel for

incompetence, dereliction of duty, malfeasance, misfeasance, or

nonfeasance in office, or any other good cause.

(6) Individuals appointed to the appeal panel shall serve

without compensation. However, members of the panel may be

reimbursed for their actual and necessary expenses incurred in the

performance of their official duties as members of the panel.

(7) The business that the appeal panel may perform shall be

conducted at a public meeting of the panel held in compliance with

the open meetings act, 1976 PA 267, MCL 15.261 to 15.275.

Sec. 1315. (1) A permit applicant who is aggrieved by the

decision of the department of environmental quality regarding the

approval or denial of a permit application or the content of a

permit may, within 90 days after the department of environmental

quality sends the applicant notice of the decision, appeal to an

appeal board by submitting a petition to the director. The petition

shall include the issues in dispute, the relevant facts, and any

data, analysis, opinion, and supporting documentation for the

petitioner's position. If the director believes that the dispute

may be resolved without convening an appeal board, the director may

contact the petitioner regarding the issues in dispute and may

negotiate a resolution of the dispute.

(2) Unless the dispute is resolved pursuant to subsection (1),

the director shall convene a meeting of an appeal board. The

meeting shall be held within 45 days after the director received

the petition. The appeal board shall consist of 5 members of the

appeal panel selected by the director on the basis of their

relevant expertise. The director may select a replacement for a

member who is unable to participate in the appeal process. To serve

as an appeal board member, an appeal panel member must submit to

the director on a form provided by the department an agreement not

to accept employment from the appellant before 1 year after a

decision is rendered on the matter if gross income from the

employment would exceed 5% of the member's gross income from all

sources in any of the preceding 3 years. The attorney general may

bring an action to enforce the agreement.

(3) The members of the appeal board shall elect a chairperson.

Three members of the appeal board constitute a quorum. A majority

of the votes cast are required for official action of the appeal

board. The business that the appeal board may perform shall be

conducted at a public meeting of the panel held in compliance with

the open meetings act, 1976 PA 267, MCL 15.261 to 15.275.

(4) The director shall provide the appeal board with a copy of

the petition and its supporting documentation and a copy of all

supporting documentation from the department. At the meeting of the

appeal board, representatives of the appellant and the department

shall each be given an opportunity to present their positions.

(5) Within 45 days after hearing the appeal, the appeal board

shall make a decision regarding the petition and provide written

notice of the decision to the director of the department and the

petitioner. The written decision shall include the specific

scientific or technical rationale for the decision. The appeal

board may adopt, modify, or reverse, in whole or in part, the

department's decision that is the subject of the appeal.

(6) Within 60 days after receiving written notice of the

appeal board's decision, the director shall issue a final decision,

in writing, incorporating the appeal board's decision into the

terms of the permit. If the director fails to issue a final

Senate Bill No. 653 as amended January 24, 2018

decision within the time period provided for in this subsection,

the decision of the appeal board shall be considered the final

decision of the director. The final decision of the director under

this subsection regarding a permit is subject to review in the same

manner provided for a final decision by the department regarding

the permit under this act, the administrative procedures act of

1969, 1969 PA 306, MCL 24.201 to 24.328, and section 631 of the

revised judicature act of 1961, 1961 PA 236, MCL 600.631. If a

permit applicant declines to bring an appeal under this section,

the decision of the department regarding the permit is final permit

action for purposes of any judicial review or other review allowed

under this act, the administrative procedures act of 1969, 1969 PA

306, MCL 24.201 to 24.328, and section 631 of the revised

judicature act of 1961, 1961 PA 236, MCL 600.631.

(7) A member of the appeal panel shall not participate in an

appeal if the <<member has a conflict of interest. A member has a

conflict of interest if any of the following apply:

(a) The applicant has hired that member or the member's employer on any environmental matter within the preceding 3 years.

(b) The member has been an employee of the appellant within the preceding 3 years.

(8)the>> director shall select a member of the appeal panel to

participate in an appeal in place of <<a member disqualified under

subsection (7).>>

Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.

Enacting section 2. This amendatory act does not take effect

unless all of the following bills of the 99th Legislature are

enacted into law:

(a) Senate Bill No. 652.

(b) Senate Bill No. 654.