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A Better Partnership
September 16, 2009

COA Opinion: MDEQ Rule 1830 held invalid

In Wolverine Power Supply Cooperative, Inc. v. Department of Environmental Quality, No. 287553 (published September 15, 2009), the Michigan Court of Appeals struck down MDEQ Rule 1830, which purported to add a contested case proceeding to the process for obtaining a permit to install a new source of air emissions. Under the detailed procedures that the Legislature has enacted for air permitting, an RJA appeal is the only prescribed remedy when the MDEQ issues a new permit to install. By contrast, the Legislature provided both an RJA appeal and a contested case proceeding for MDEQ decisions involving operating permits. In its published opinion, the Court of Appeals held that the inclusion of the contested case procedure in the subsection concerning operating permits, but not in the subsection concerning permits to install, demonstrates the Legislature's decision that contested case hearings are not appropriate for decisions on permits to install. Accordingly, Rule 1830 cannot stand.

Disclaimer: WNJ represented the prevailing party, Wolverine Power, in the Court of Appeals.

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