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A Better Partnership
July 14, 2016

COA determines 60-day appeal period applies to challenges to the issuance of permits to install control devices

In South Dearborn Environmental Improvement Association Inc. v. Department of Environmental Quality No. 326485, the Court of Appeals determined that MCR 7.119 governed, and requires appeals to be filed within 60 days of the granting of a permit to install certain control equipment. Since the petitioners appeal was within the 60-day period, the denial of the respondent’s motion to dismiss was upheld.
 
The Department of Environmental Quality (DEQ) issued several permits to AK Steel Corporation authorizing the building and installation of certain control devices. It is undisputed that the permits that were issued were considered “permits to install.” 59 days after the permit was issued, the South Dearborn Environmental Improvement Association appealed and requested that the court vacate the issuance of the permit. AK Steel filed a motion to dismiss the appeal arguing that pursuant to MCR 7.123(B)(1) and MCR 7.104(A) the appeal was untimely filed. The lower court rejected AK Steel’s argument and held that pursuant to MCL 324.5506(14) of the Michigan Natural Resources and Environmental Protection Act (NREPA) petitioners had 90 days to file their appeal after the issuance of the permit. Section 5506(14) reads in pertinent part that “[a]ny person may appeal the issuance or denial of an operating permit in accordance with [MCL 600.631]. A petition for judicial review is the exclusive means of obtaining judicial review of a permit and shall be filed within 90 days after the final permit action.”
 
Although it is undisputed that the first sentence of the portion in question refers only to operating permits, the circuit court interpreted the “a” in the second sentence to mean “any” permit. The Court of Appeals determined that the circuit court erred in its interpretation when it ignored the plain context of the section and should have read the second sentence to only apply to operating permits. Therefore, because the permits at issue were “permits to install,” and not operating permits the appeals process outlined in section 5506(14) did not apply. Petitioners argued that MCR 7.119 governed because the DEQ’s decision to grant the permit was the equivalent of the granting of a license and therefore covered under Chapter 5 of the Administrative Procedures Act (APA).  The Court of Appeals agreed and as a result upheld the lower court’s decision. 

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