Bill Text: MI HB4200 | 2017-2018 | 99th Legislature | Introduced

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Bill Title: Environmental protection; air pollution; air pollution control commission; establish. Amends secs. 5501 & 5522 of 1994 PA 451 (MCL 324.5501 & 324.5522) & adds secs. 5501b & 5501d.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2017-02-15 - Bill Electronically Reproduced 02/14/2017 [HB4200 Detail]

Download: Michigan-2017-HB4200-Introduced.html

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HOUSE BILL No. 4200

 

 

February 14, 2017, Introduced by Reps. Chang, Lasinski, LaGrand, Moss, Ellison, Howrylak, Lucido, Pagan, Faris, Neeley, Love, Santana, Hertel, Hoadley, Phelps, Elder, Sowerby, Hammoud, Gay-Dagnogo, Rabhi, Sneller, Wittenberg, Yanez, Durhal, Peterson and Robinson and referred to the Committee on Natural Resources.

 

     A bill to amend 1994 PA 451, entitled

 

"Natural resources and environmental protection act,"

 

by amending sections 5501 and 5522 (MCL 324.5501 and 324.5522),

 

section 5501 as amended by 1998 PA 245 and section 5522 as amended

 

by 2015 PA 60, and by adding sections 5501b and 5501d.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 5501. (1) As used in this part:

 

     (a) "Air contaminant" means a dust, fume, gas, mist, odor,

 

smoke, vapor, or any combination thereof.

 

     (b) "Air pollution" means the presence in the outdoor

 

atmosphere of air contaminants in quantities, of characteristics,

 

under conditions and circumstances, and of a duration that are or

 

can become injurious to human health or welfare, to animal life, to

 

plant life, or to property, or that interfere with the enjoyment of

 

life and property in this state, and excludes all aspects any

health or safety hazard that is an aspect of employer-employee

 

relationships. as to health and safety hazards. With respect to any

 

mode of transportation, nothing in this part or in the rules

 

promulgated under this part shall be inconsistent with the federal

 

regulations, emission limits, standards, or requirements on various

 

modes of transportation. Air pollution does not mean those usual

 

and ordinary odors associated with a farm operation if the person

 

engaged in the farm operation is following generally accepted

 

agricultural and management practices.

 

     (c) "Air pollution control equipment" means any method,

 

process, or equipment that removes, reduces, or renders less

 

noxious air contaminants discharged into the atmosphere.

 

     (d) "Category I facility" means a fee-subject facility that is

 

a major stationary source as defined in section 302 of title III of

 

the clean air act, 77 Stat. 400, 42 U.S.C. 42 USC 7602, an affected

 

source as defined pursuant to section 402 of title IV of the clean

 

air act, chapter 360, 104 Stat. 2641, 42 U.S.C. 42 USC 7651a, or a

 

major stationary source as defined in section 169a of subpart 2 of

 

part C of title I of the clean air act, chapter 360, 91 Stat. 742,

 

42 U.S.C. 42 USC 7491.

 

     (e) "Category II facility" means a fee-subject facility that

 

is a major source as defined in section 112 of part A of title I of

 

the clean air act, 84 Stat. 1685, 42 U.S.C. 42 USC 7412, or a

 

facility subject to requirements of section 111 of part A of title

 

I of the clean air act, chapter 360, 84 Stat. 1683, 42 U.S.C. 42

 

USC 7411, except that a category II facility that also meets the

 

definition of a category I facility is a category I facility.

     (f) "Category III facility" means any fee-subject facility

 

that is not a category I or category II facility.

 

     (g) "Clean air act" means chapter 360, 69 Stat. Stat 322, 42

 

U.S.C. USC 7401 to 7431, 7470 to 7479, 7491 to 7492, 7501 to 7509a,

 

7511 to 7515, 7521 to 7525, 7541 to 7545, 7547 to 7550, 7552 to

 

7554, 7571 to 7574, 7581 to 7590, 7601 to 7612, 7614 to 7617, 7619

 

to 7622, 7624 to 7627, 7641 to 7642, 7651 to 7651o, 7661 to 7661f,

 

and 7671 to 7671q, and regulations promulgated under the clean air

 

act.

 

     (h) "Commission" means the air pollution control commission

 

created in section 5101b.

 

     (i) "Department" means the department of environmental

 

quality.

 

     (j) (h) "Emission" means the emission of an air contaminant.

 

     (k) (i) "Farm operation" has the meaning ascribed to it in

 

means that term as defined in section 2 of the Michigan right to

 

farm act, 1981 PA 93, MCL 286.471 to 286.474.286.472.

 

     (l) (j) "Fee-subject air pollutant" means particulates,

 

expressed as PM-10 pursuant to 1996 MR 11, R 336.1116(k) of the

 

Michigan administrative code, sulfur dioxide, volatile organic

 

compounds, nitrogen oxides, ozone, lead, and any pollutant

 

regulated under section 111 or 112 of part A of title I of the

 

clean air act, chapter 360, 84 Stat. 1683 and 1685, 42 U.S.C. 42

 

USC 7411 and or 7412, or title III of the clean air act, chapter

 

360, 77 Stat. 400, 42 U.S.C. 42 USC 7601 to 7612, 7614 to 7617,

 

7619 to 7622, and 7624 to 7627.7628.

 

     (m) (k) "Fee-subject facility" means the following sources:

     (i) Any major source as defined in 40 C.F.R. CFR 70.2.

 

     (ii) Any source, including an area source, subject to a

 

standard, limitation, or other requirement under section 111 of

 

part A of title I of the clean air act, chapter 360, 84 Stat. 1683,

 

42 U.S.C. 42 USC 7411, when the standard, limitation, or other

 

requirement becomes applicable to that source.

 

     (iii) Any source, including an area source, subject to a

 

standard, limitation, or other requirement under section 112 of

 

part A of title I of the clean air act, 84 Stat. 1685, 42 U.S.C. 42

 

USC 7412, when the standard, limitation, or other requirement

 

becomes applicable to that source. However, a source is not a fee-

 

subject facility solely because it is subject to a regulation,

 

limitation, or requirement under section 112(r) of part A of title

 

I of the clean air act, chapter 360, 84 Stat. 1685, 42 U.S.C.

 

7412.42 USC 7412(r).

 

     (iv) Any affected source under title IV.

 

     (v) Any other source in a source category designated by the

 

administrator of the United States environmental protection agency

 

Environmental Protection Agency as required to obtain an operating

 

permit under title V, when the standard, limitation, or other

 

requirement becomes applicable to that source.

 

     (n) (l) "Fund" means the emissions control fund created in

 

section 5521.

 

     (o) (m) "General permit" means a permit to install, permit to

 

operate authorized pursuant to rules promulgated under section

 

5505(6), or an operating permit under section 5506, for a category

 

of similar sources, processes, or process equipment. General

provisions for issuance of general permits shall be provided for by

 

rule.

 

     (p) (n) "Generally accepted agricultural and management

 

practices" has the meaning ascribed to it in means that term as

 

defined in section 2 of the Michigan right to farm act, 1981 PA 93,

 

MCL 286.471 to 286.474.286.472.

 

     (q) (o) "Major emitting facility" means a stationary source

 

that emits 100 tons or more per year of any of the following:

 

     (i) Particulates.

 

     (ii) Sulfur dioxides.

 

     (iii) Volatile organic compounds.

 

     (iv) Oxides of nitrogen.

 

     (r) (p) "Process" means an action, operation, or a series of

 

actions or operations at a source that emits or has the potential

 

to emit an air contaminant.

 

     (s) (q) "Process equipment" means all equipment, devices, and

 

auxiliary components, including air pollution control equipment,

 

stacks, and other emission points, used in a process.

 

     (t) (r) "Responsible official" means, for the purposes of

 

signing and certifying as to the truth, accuracy, and completeness

 

of permit applications, monitoring reports, and compliance

 

certifications, any of the following:

 

     (i) For a corporation: a president, secretary, treasurer, or

 

vice-president in charge of a principal business function, or any

 

other person who performs similar policy or decision making

 

functions for the corporation, or an authorized representative of

 

that person if the representative is responsible for the overall

operation of 1 or more manufacturing, production, or operating

 

facilities applying for or subject to a permit under this part and

 

either the facilities employ more than 250 persons or have annual

 

sales or expenditures exceeding $25,000,000.00, or if the

 

delegation of authority to the representative is approved in

 

advance by the department.

 

     (ii) For a partnership or sole proprietorship: a general

 

partner or the proprietor.

 

     (iii) For a county or municipality or a state, federal, or

 

other public agency: a principal executive officer or ranking

 

elected official. For this purpose, a principal executive officer

 

of a federal agency includes the chief executive officer having

 

responsibility for the overall operations of a principal geographic

 

unit of the agency.

 

     (iv) For sources affected by the acid rain program under title

 

IV: the designated representative insofar as actions, standards,

 

requirements, or prohibitions under that title are concerned.

 

     (u) (s) "Schedule of compliance" means, for a source not in

 

compliance with all applicable requirements of this part, rules

 

promulgated under this part, and the clean air act at the time of

 

issuance of an operating permit, a schedule of remedial measures

 

including an enforceable sequence of actions or operations leading

 

to compliance with an applicable requirement and a schedule for

 

submission of certified progress reports at least every 6 months.

 

Schedule of compliance means, for a source in compliance with all

 

applicable requirements of this part, rules promulgated under this

 

part, and the clean air act at the time of issuance of an operating

permit, a statement that the source will continue to comply with

 

these requirements. With respect to any applicable requirement of

 

this part, rules promulgated under this part, and the clean air act

 

effective after the date of issuance of an operating permit, the

 

schedule of compliance shall contain a statement that the source

 

will meet the requirements on a timely basis, unless the underlying

 

applicable requirement requires a more detailed schedule.

 

     (v) (t) "Source" means a stationary source as defined in

 

section 302(z) of title III of the clean air act, 77 Stat. 400, 42

 

U.S.C. 7602, 42 USC 7602, and has the same meaning as stationary

 

source when used in comparable or applicable circumstances under

 

the clean air act. A source includes all the processes and process

 

equipment under common control that are located within a contiguous

 

area, or a smaller group of processes and process equipment as

 

requested by the owner or operator of the source, if in accordance

 

with the clean air act.

 

     (w) (u) "Title IV" means title IV of the clean air act,

 

pertaining to acid deposition control, chapter 360, 104 Stat. 2584,

 

42 U.S.C. 42 USC 7651 to 7651o.

 

     (x) (v) "Title V" means title V of the clean air act, chapter

 

360, 104 Stat. 2635, 42 U.S.C. 42 USC 7661 to 7661f.

 

     (2) With respect to any mode of transportation, nothing in

 

this part or in the rules promulgated under this part shall be

 

inconsistent with the federal regulations, emission limits,

 

standards, or requirements on various modes of transportation.

 

     Sec. 5501b. (1) The air pollution control commission is

 

created within the department.

     (2) The commission shall consist of the following members:

 

     (a) The director of the department.

 

     (b) The following 11 members, who shall be appointed by the

 

governor by and with the advice and consent of the senate and

 

represent diverse geographic areas of this state:

 

     (i) Two individuals representing commerce and industry in this

 

state.

 

     (ii) Two individuals representing local units of government in

 

this state.

 

     (iii) Two health professionals with experience in the

 

toxicology of air contaminants.

 

     (iv) Two individuals representing private environmental

 

protection organizations.

 

     (v) Three individuals representing the general public.

 

     (3) The members first appointed to the commission shall be

 

appointed within 30 days after the effective date of this section.

 

     (4) Members of the commission appointed under subsection

 

(2)(b) shall serve for terms of 3 years or until a successor is

 

appointed, whichever is later, except that of the members first

 

appointed 3 shall serve for 1 year, 4 shall serve for 2 years, and

 

4 shall serve for 3 years.

 

     (5) If a vacancy occurs in an appointed seat on the

 

commission, the governor shall make an appointment for the

 

unexpired term in the same manner as the original appointment.

 

     (6) The governor may remove a member of the commission for

 

incompetence, dereliction of duty, malfeasance, misfeasance, or

 

nonfeasance in office, or any other good cause.

     (7) The first meeting of the commission shall be called by the

 

director of the department not more than 60 days after the

 

effective date of this section. At the first meeting, the

 

commission shall elect from among its members a chairperson and

 

other officers as it considers necessary or appropriate. After the

 

first meeting, the commission shall meet at least quarterly, or

 

more frequently at the call of the chairperson or if requested by 3

 

or more members.

 

     (8) A majority of the members of the commission constitute a

 

quorum for the transaction of business at a meeting of the

 

commission. A majority of the members present and serving are

 

required for official action of the commission.

 

     (9) The business that the commission may perform shall be

 

conducted at a public meeting of the commission held in compliance

 

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

 

     (10) A writing prepared, owned, used, in the possession of, or

 

retained by the commission in the performance of an official

 

function is subject to the freedom of information act, 1976 PA 442,

 

MCL 15.231 to 15.246.

 

     (11) Members of the commission shall serve without

 

compensation. However, the director of the department shall serve

 

without additional compensation. Members of the commission may be

 

reimbursed for their actual and necessary expenses incurred in the

 

performance of their official duties as members of the commission.

 

     Sec. 5501d. (1) The commission shall carry out all

 

responsibilities as provided in this act and as otherwise provided

 

by law.

     (2) Notwithstanding any other provision of this part, the

 

commission shall exercise supervisory authority over all of the

 

following under this part:

 

     (a) The issuance, denial, revocation, suspension, or

 

modification of permits.

 

     (b) The promulgation of rules.

 

     (c) The development of department policies.

 

     (3) Notwithstanding any other provision of this part, the

 

department or the director shall not exercise the powers listed in

 

subsection (2) without the approval of the commission.

 

     (4) The commission shall receive complaints of air pollution

 

in alleged violation of this part, rules promulgated under this

 

part, or any determination, permit, or order issued under this

 

part.

 

     (5) In response to a complaint under subsection (4), the

 

commission may do any of the following:

 

     (a) Require the department or the director to take

 

investigatory or enforcement action as provided in this part.

 

     (b) Request the attorney general to commence an action in

 

court as provided in this part.

 

     (6) The powers and duties of the commission under subsections

 

(4) and (5) are in addition to and not in derogation of the powers

 

and duties of the department and the director of the department

 

under this part.

 

     Sec. 5522. (1) Until October 1, 2019, the owner or operator of

 

each fee-subject facility shall pay air quality fees as required

 

and calculated under this section. The department may levy and

collect an annual air quality fee from the owner or operator of

 

each fee-subject facility in this state. The legislature intends

 

that the fees required under this section meet the minimum

 

requirements of the clean air act and that this expressly stated

 

fee system serve as a limitation on the amount of fees imposed

 

under this part on the owners or operators of fee-subject

 

facilities in this state.

 

     (2) The annual air quality fee shall be calculated for each

 

fee-subject facility, according to the following procedure:

 

     (a) Except as provided in subdivision (d), for category I

 

facilities, the annual air quality fee shall be the sum of a

 

facility charge of $5,250.00 and an emissions charge as specified

 

in subdivision (e) or (f).

 

     (b) For category II facilities, the annual air quality fee

 

shall be the sum of a facility charge of $1,795.00 and an emissions

 

charge as specified in subdivision (e) or (f).

 

     (c) For category III facilities, the annual air quality fee

 

shall be $250.00.

 

     (d) For municipal electric generating facilities that are

 

category I facilities and that emit more than 730 tons of fee-

 

subject air pollutants, the annual air quality fee shall be the

 

following amount, based on the number of tons of fee-subject air

 

pollutants emitted:

 

     (i) For more than 730 tons but less than 5,000 tons, an annual

 

fee of $41,830.00.

 

     (ii) For 5,000 tons or more, an annual fee equal to the sum of

 

a facility charge of $5,250.00 and an emissions charge as specified

in subdivision (e).

 

     (e) The emissions charge for category I facilities that are

 

electric providers and that are not covered by subdivision (d) and

 

for category II facilities that are electric providers shall equal

 

the emission charge rate multiplied by the actual tons of fee-

 

subject air pollutants emitted. The emission charge rate for fee-

 

subject air pollutants shall be $51.15. A pollutant that qualifies

 

as a fee-subject air pollutant under more than 1 class shall be

 

charged only once. The actual tons of fee-subject air pollutants

 

emitted shall be considered to be the sum of all fee-subject air

 

pollutants emitted at the fee-subject facility for the calendar

 

year 2 years preceding the year of billing, but not more than the

 

lesser of the following:

 

     (i) 6,100 tons.

 

     (ii) 1,500 tons per pollutant, if the sum of all fee-subject

 

air pollutants except carbon monoxide emitted at the fee-subject

 

facility is less than 6,100 tons.

 

     (f) The emissions charge for category I or category II

 

facilities that are not electric providers shall be calculated in

 

the same manner as provided in subdivision (e). However, the actual

 

tons of fee-subject air pollutants emitted shall be considered to

 

be the sum of all fee-subject air pollutants emitted at a fee-

 

subject facility for the calendar year 2 years preceding the year

 

of billing, but not more than the lesser of the following:

 

     (i) 4,500 tons.

 

     (ii) 1,250 tons per pollutant, if the sum of all fee-subject

 

air pollutants except carbon monoxide emitted at the fee-subject

facility is less than 4,500 tons.

 

     (3) After January 1, but before January 15 of each year, the

 

department shall notify the owner or operator of each fee-subject

 

facility of its assessed annual air quality fee. Payment is due

 

within 90 calendar days of the mailing date of the air quality fee

 

notification. If an assessed fee is challenged under subsection

 

(5), payment is due within 90 calendar days of the mailing date of

 

the air quality fee notification or within 30 days of receipt of a

 

revised fee or statement supporting the original fee, whichever is

 

later. However, to combine fee assessments, the department may

 

adjust the billing date and due date under this subsection for

 

category III facilities that are dry cleaning facilities also

 

subject to the licensing or certification requirements of section

 

13305 of the public health code, 1978 PA 368, MCL 333.13305, and

 

section 5i of the fire prevention code, 1941 PA 207, MCL 29.5i. The

 

department shall deposit all fees collected under this section to

 

the credit of the fund.

 

     (4) If the owner or operator of a fee-subject facility fails

 

to submit the amount due within the time period specified in

 

subsection (3), the department shall assess the owner or operator a

 

penalty of 5% of the amount of the unpaid fee for each month that

 

the payment is overdue up to a maximum penalty of 25% of the total

 

fee owed. However, to combine fee assessments, the department may

 

waive the penalty under this subsection for dry cleaning facilities

 

described in subsection (3).

 

     (5) To challenge its assessed fee, the owner or operator of a

 

fee-subject facility shall submit the challenge in writing to the

department. The department shall not process the challenge unless

 

it is received by the department within 45 calendar days of after

 

the mailing date of the air quality fee notification described in

 

subsection (3). A challenge shall identify the facility and state

 

the grounds upon which the challenge is based. Within 30 calendar

 

days of receipt of the challenge, the department shall determine

 

the validity of the challenge and provide the owner with

 

notification of a revised fee or a statement setting forth the

 

reason or reasons why the fee was not revised. Payment of the

 

challenged or revised fee is due within the time frame described in

 

subsection (3). If the owner or operator of a facility desires to

 

further challenge its assessed fee, the owner or operator of the

 

facility has an opportunity for a contested case hearing as

 

provided for under the administrative procedures act of 1969, 1969

 

PA 306, MCL 24.201 to 24.328.

 

     (6) If requested by the department, by March 15 of each year,

 

or within 45 days of a request by the department, whichever is

 

later, the owner or operator of each fee-subject facility shall

 

submit information regarding the facility's previous year's

 

emissions to the department. The information shall be sufficient

 

for the department to calculate the facility's emissions for that

 

year and meet the requirements of 40 CFR 51.320 to 51.327.

 

     (7) By July 1 of each year, the department shall provide the

 

owner or operator of each fee-subject facility required to pay an

 

emission charge pursuant to this section with a copy of the

 

department's calculation of the facility emissions for the previous

 

year. Within 60 days of this notification, the owner or operator of

the facility may provide corrections to the department. The

 

department shall make a final determination of the emissions by

 

December 15 of that year. If the owner or operator disagrees with

 

the determination of the department, the owner or operator may

 

request a contested case hearing as provided for under the

 

administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to

 

24.328.

 

     (8) By March 1 annually, the department shall prepare and

 

submit to the governor, the legislature, the chairpersons of the

 

standing committees of the senate and house of representatives with

 

primary responsibility for environmental protection issues related

 

to air quality, and the chairpersons of the subcommittees of the

 

senate and house appropriations committees with primary

 

responsibility for appropriations to the department a report that

 

details the department's activities of the previous fiscal year

 

funded by the fund. This report shall include, at a minimum, all of

 

the following as it relates to the department:

 

     (a) The number of full-time equated positions performing title

 

V and non-title V air quality enforcement, compliance, or

 

permitting activities.

 

     (b) All of the following information related to the permit to

 

install program authorized under section 5505:

 

     (i) The number of permit to install applications received by

 

the department.

 

     (ii) The number of permit to install applications for which a

 

final action was taken by the department. The number of final

 

actions shall be reported as the number of applications approved,

the number of applications denied, and the number of applications

 

withdrawn by the applicant.

 

     (iii) The number of permits to install approved that were

 

required to complete public participation under section 5511(3)

 

before final action and the number of permits to install approved

 

that were not required to complete public participation under

 

section 5511(3) prior to before final action.

 

     (iv) The average number of final permit actions per permit to

 

install reviewer full-time equivalent position.

 

     (v) The percentage and number of permit to install

 

applications that were reviewed for administrative completeness

 

within 10 days of receipt by the department.

 

     (vi) The percentage and number of permit to install

 

applications submitted to the department that were administratively

 

complete as received.

 

     (vii) The percentage and number of permit to install

 

applications for which a final action was taken by the department

 

within 180 days of receipt for those applications not required to

 

complete public participation under section 5511(3) prior to before

 

final action, or within 240 days of receipt for those applications

 

which are required to complete public participation under section

 

5511(3) prior to before final action.

 

     (viii) The percentage and number of permit to install

 

applications for which a processing period extension was requested

 

and granted.

 

     (c) All of the following information for the renewable

 

operating permit program authorized under section 5506:

     (i) The number of renewable operating permit applications

 

received by the department.

 

     (ii) The number of renewable operating permit applications for

 

which a final action was taken by the department. The number of

 

final actions shall be reported as the number of applications

 

approved, the number of applications denied, and the number of

 

applications withdrawn by the applicant.

 

     (iii) The percentage and number of initial permit applications

 

processed within the required time.

 

     (iv) The percentage and number of permit renewals and

 

modifications processed within the required time.

 

     (v) The number of permit applications reopened by the

 

department.

 

     (vi) The number of general permits issued by the department.

 

     (d) The number of letters of violation sent.

 

     (e) The amount of penalties collected from all consent orders

 

and judgments.

 

     (f) For each enforcement action that includes payment of a

 

penalty, a description of what corrective actions were required by

 

the enforcement action.

 

     (g) The number of inspections done on sources required to

 

obtain a permit under section 5506 and the number of inspections of

 

other sources.

 

     (h) The number of air pollution complaints received,

 

investigated, not resolved, and resolved by the department or the

 

commission.

 

     (i) The number of contested case hearings and civil actions

initiated and completed, and the number of voluntary consent

 

orders, administrative penalty orders, and emergency orders entered

 

or issued, for sources required to obtain a permit under section

 

5506.

 

     (j) The amount of revenue in the fund at the end of the fiscal

 

year.

 

     (9) The report under subsection (8) shall also include the

 

amount of revenue for programs under this part received during the

 

prior fiscal year from fees, from federal funds, and from general

 

fund appropriations. Each of these amounts shall be expressed as a

 

dollar amount and as a percent of the total annual cost of programs

 

under this part.

 

     (10) The attorney general may bring an action for the

 

collection of the fees imposed under this section.

 

     (11) This section does not apply if the administrator of the

 

United States Environmental Protection Agency determines that the

 

department is not adequately administering or enforcing the

 

renewable operating permit program and the administrator

 

promulgates and administers a renewable operating permit program

 

for this state.

 

     (12) As used in this section, "electric provider" means that

 

term as defined in section 5 of the clean, renewable, and efficient

 

energy act, 2008 PA 295, MCL 460.1005.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.