90-Day MDEQ Permit Appeal Period Upheld

This ruling reaffirms the ability of the public to hold the Michigan Department of Environmental Quality accountable in its issuance of permits. The Court’s affirmation that the permit appeal period is 90 days as opposed to 21 days is a win for environmental groups and members of the public seeking to hold DEQ and industry in Michigan to a high standard when it comes to permitting for air pollution sources. Overall, this is a win for individuals and communities across Michigan when it comes to regulating air pollution and ensuring environmental health and safety.

South Dearborn Environmental Improvement Association, Inc. (South Dearborn), along with other environmental groups, filed a petition for judicial review of a permit granted to steel mill Severstal Dearborn, LLC (Severstal) by the Michigan Department of Environmental Quality (DEQ). In circuit court, AK Steel, which recently purchased the mill from Severstal, argued that the case must be dismissed because South Dearborn waited too long to file a petition for judicial review. The circuit court ruled in favor of South Dearborn, reasoning that under sections 5505 and 5506 of Michigan’s Natural Resources and Environmental Protection Act (NREPA), a plaintiff had until 90 days after the DEQ’s final permit action to file a petition. The Michigan Court of Appeals affirmed the lower court’s decision. In a 4-3 split, the Supreme Court again determined that the 90-day period had not expired, and that the petition should be allowed.

In 2006, The Michigan Department of Environmental Quality approved a permit to install three new air pollution control devices and rebuild a blast furnace at the Severstal Dearborn steel mill. In 2008 and 2009, the DEQ found that Severstal’s air pollution emissions violated their permit. DEQ investigated the steel mill and ultimately relaxed the permit requirements to bring Severstal into emissions compliance. The DEQ issued a new permit to install for the existing source in May of 2014. 

The Michigan Natural Resources and Environmental Protection Act of 1994 grants any person the right to appeal DEQ’s issuance or denial of a permit to install. South Dearborn Environmental Improvement Association filed a petition for judicial review of DEQ’s permit in July of 2014, 59 days after the new permit to install was issued.

Does section 5505 and 5506 of NREPA apply to DEQ permits issued for both new and existing sources of air pollution, such that South Dearborn’s petition for judicial review of the DEQ’s permit was filed in a timely manner?

The majority opinion, written by Justice Bernstein, and joined by Justices McCormack, Viviano, and Clement affirmed the Court of Appeals ruling that the petition for review had been filed within the required period, based on the language of sections 5505 and 5506 of NREPA. By interpreting the Michigan legislature’s true intent behind the statute, they determined that individuals have 90 days to appeal a permit for an existing source as well as a new source.

The dissenting opinion, written by Justice Wilder and joined by Justices Markman and Zahra, argued that the language in section 5506 indicates that permits for existing sources are not subject to a 90-day petition for review. The dissenting Justices reasoned that section 5506 sets a 90 day petition filing period which only applies to operating permits, not permits to install. Therefore, the dissent would have found South Dearborn’s petition for judicial review of the permit to install to be time-barred, as the petition came later than the 21-day period that the dissent would have held to be the applicable time window for the filing of petitions for judicial review of permits to install issued by the DEQ.