Bill Text: MI HB5901 | 2023-2024 | 102nd Legislature | Introduced
Bill Title: Environmental protection: permits; denial of or imposition of additional conditions on; provide for when projects are located in environmentally overburdened communities, and repeal environmental permit review commission provisions. Amends secs. 1301, 1305, 1307 & 1311 of 1994 PA 451 (MCL 324.1301 et seq.); adds secs. 1331, 1333, 1335, 1337, 1339 & 1341 & repeals secs. 1313 - 1317 of 1994 PA 451 (MCL 324.1313 - 324.1317).
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced) 2024-08-01 - Bill Electronically Reproduced 08/01/2024 [HB5901 Detail]
Download: Michigan-2023-HB5901-Introduced.html
HOUSE BILL NO. 5901
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending sections 1301, 1305, 1307, and 1311 (MCL 324.1301, 324.1305, 324.1307, and 324.1311), section 1301 as amended by 2018 PA 451, section 1305 as amended by 2011 PA 246, section 1307 as amended by 2018 PA 631, and section 1311 as amended by 2018 PA 268, and by adding sections 1331, 1333, 1335, 1337, 1339, and 1341; and to repeal acts and parts of acts.
the people of the state of michigan enact:
SUBPART 1
PERMIT PROCESSING GENERALLY
Sec. 1301. As used in this part:subpart:
(a) "Application period" means the period beginning when 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.
(b) "Department" means the department, agency, or officer authorized by this act to approve or deny an application for a particular permit. As used in sections 1315 to 1317, "department" means the department of environmental quality.
(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. As used in sections 1313 to 1317, "director" means the director of the department of environmental quality.
(d) "Environmental permit review commission" or "commission" means the environmental permit review commission established under section 1313(1).
(e) "Environmental permit panel" or "panel" means a panel of the environmental permit review commission, appointed under section 1315(2).
(d) (f) "Permit" , except as provided in subdivision (g) , means a permit, operating license, or registration required by any of the following sections or by rules promulgated thereunder, or, in the case of section 9112, by an ordinance 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 41329, nonnative aquatic species sales registration.
(xxiv) Section 41702, game bird hunting preserve license.
(xxv) Section 42101, dog training area permit.
(xxvi) Section 42501, fur dealer's license.
(xxvii) Section 42702, game dealer's license.
(xxviii) Section 44513, charter boat operating permit under reciprocal agreement.
(xxix) Section 44516, boat livery operating permit.
(xxx) Section 45902, game fish propagation license.
(xxxi) Section 45906, game fish import license.
(xxxii) Section 48705, permit to take amphibians and reptiles for scientific or educational use.
(xxxiii) Section 61525, oil or gas well drilling permit.
(xxxiv) Section 62509, brine, storage, or waste disposal well drilling or conversion permit or test well drilling permit.
(xxxv) Section 63103a, ferrous mineral mining permit.
(xxxvi) Section 63514 or 63525, surface coal mining and reclamation permit or revision of the permit, respectively.
(xxxvii) Section 63704, sand dune mining permit.
(xxxviii) Section 72108, use permits for a Pure Michigan Trail.
(xxxix) Section 76109, sunken aircraft or watercraft abandoned property recovery permit.
(xl) (xxxx) Section 76504, Mackinac Island motor vehicle and land use permits.
(xli) (xxxxi) Section 80159, buoy or beacon permit.
(g) "Permit", as used in sections 1313 to 1317, means any permit or operating license that meets both of the following conditions:
(i) The applicant for the permit or operating license is not this state or a political subdivision of this state.
(ii) The permit or operating license is issued by the department of environmental quality under this act or the rules promulgated under this act.
(e) (h) "Processing deadline" means the last day of the processing period.
(f) (i) "Processing period", subject to section 1307(2) and (3), 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 or 32512 for a project in a minor project category established under section 30105(7) or 32512a(1), or respectively, for 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 or 41329.
(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, 32605, 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. 1305. (1) After a department receives an application for a permit, the department shall determine whether the application is administratively complete. Unless Subject to section 1335, unless the department proceeds as provided under subsection (2), the application shall be considered to be administratively complete when the department makes that determination or 30 days after the state receives the application, whichever is first.
(2) If, before the expiration of the 30-day period under subsection (1), the department notifies the applicant that the application is not administratively complete, specifying the information necessary to make the application administratively complete, or notifies the applicant that a fee required to accompany the application has not been paid, specifying the amount due, the running of the 30-day period under subsection (1) is tolled until the applicant submits to the department the specified information or fee amount due. The notice shall be given in writing or by electronic notification.
(3) Subject to subsection (4), after an application for a permit is considered to be administratively complete under this section, the department shall not request from the applicant any new or additional information that is not specified in the list required under section 1303(2)(a) unless the request includes a detailed explanation of why the information is needed. The applicant is not required to provide the requested information as a condition for approval of the permit.
(4) After an application for a permit is considered to be administratively complete under this section, the department may request the applicant to clarify, amplify, or correct the information required for the application. The applicant shall provide the requested information.
Sec. 1307. (1) By the processing deadline, the department shall approve or deny an application for a permit.
(2) If requested by the permit applicant, the department shall extend the processing period for a permit by not more than 120 days, as specified by the applicant. If requested by the permit applicant, the department may extend the processing period beyond the additional 120 days. However, a processing period shall not be extended under this subsection to a date later than 1 year after the application period ends.
(3) A processing period is tolled from the date that a permit applicant submits a petition under section 1315(1) until the date that a decision of the director is made under section 1315(6). If a permit applicant submits a petition under section 1315(1), the department shall not approve or deny the application for the permit under subsection (1) until after the director issues a decision under section 1315(6).
(3) (4) The approval or denial of an application for a permit shall be in writing and shall be based upon evidence that would meet the standards in section 75 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.275.
(4) (5) Approval of an application for a permit may be granted with conditions or modifications necessary to achieve compliance with the part or parts of this act under which the permit is issued.
(5) (6) A denial of an application for a permit or, for a permit under part 301 or 303, an approval with modification of an application for a permit shall document, and any review upholding the denial or modification shall determine, to the extent practical, all of the following:
(a) That the decision is based on specifically cited provisions of this act or rules promulgated under this act.
(b) That the decision is based upon sufficient facts or data, which are recorded in the file.
(c) To the extent applicable, all of the following:
(i) That the decision is the product of reliable scientific principles and methods.
(ii) That the decision has applied the principles and methods reliably to the facts.
(d) In the case of denial of an application for a permit under part 301 or 303, suggestions on changes to allow the permit to be approved.
(6) (7) Except for permits described in subsection (8), (7), if the department fails to satisfy the requirements of subsection (1) with respect to an application for a permit, the department shall pay the applicant an amount equal to 15% of the greater of the following, as applicable:
(a) The amount of the application fee for that permit.
(b) If an assessment or other fee is charged on an annual or other periodic basis by the department to a person holding the permit for which the application was submitted, the amount of the first periodic charge of that assessment or other fee for that permit.
(7) (8) If the department fails to satisfy the requirements of subsection (1) with respect to a permit required by section 11509, 11512, 30304, or 32603, the application shall be considered to be approved and the department shall be considered to have made any determination required for approval.
(8) (9) The failure of the department to satisfy the requirements of subsection (1) or the fact that the department is required to make a payment under subsection (7) (6) or is considered to have approved a permit under subsection (8) (7) shall not be used by the department as the basis for discriminating against the applicant. If the department is required to make a payment under subsection (7), (6), the application shall be processed in sequence with other applications for the same type of permit, based on the date on which the processing period began, unless the director determines on an application-by-application basis that the public interest is best served by processing in a different order.
(9) (10) If the department fails to satisfy the requirements of subsection (1) with respect to 10% or more of the applications for a particular type of permit received during a quarter of the state fiscal year, the department shall immediately devote resources from that program to eliminate any backlog and satisfy the requirements of subsection (1) with respect to new applications for that type of permit within the next fiscal quarter.
(10) (11) If the department fails to satisfy the requirements of subsection (1), the director shall notify the appropriations committees of the senate and house of representatives of the failure. The notification shall be in writing and shall include both of the following:
(a) An explanation of the reason for the failure.
(b) A statement of the amount the department was required to pay the applicant under subsection (7) (6) or a statement that the department was required to consider the application to be approved under subsection (8), (7), as applicable.
Sec. 1311. By December 1 each year, the director shall submit a report to the standing committees and appropriations subcommittees of the senate and house of representatives with primary responsibility for issues under the jurisdiction of that department. The department shall post the current report on its website. The report shall include all of the following information for each type of permit for the preceding fiscal year:
(a) The number of applications for permits the department received.
(b) The number of applications approved, the number of applications approved by the processing deadline, the number of applications approved after the processing deadline, and the average times for the department to determine administrative completeness and to approve or disapprove applications.
(c) The number of applications denied, the number of applications denied by the processing deadline, and the number of applications denied after the processing deadline.
(d) The number of applications approved or denied after the processing deadline that, based on the director's determination of the public interest, were not processed in sequence as otherwise required by section 1307(9).1307(8).
(e) The number of applications that were not administratively complete when received.
(f) The amount of money refunded and discounts granted under section 1307.
(g) The number of applications processed as provided in section 1309.
(h) If a department failed to satisfy the requirements of section 1307(1) with respect to 10% or more of the applications for a particular type of permit received during a quarter of the state fiscal year, the type of permit and percentage of applications for which the requirements were not met, how the department attempted to eliminate any backlog and satisfy the requirements of section 1307(1) with respect to new applications for that type of permit within the next fiscal quarter, and whether the department was successful.
SUBPART 2
OVERBURDENED COMMUNITIES
Sec. 1331. As used in this subpart:
(a) "Department" means the department of environment, Great Lakes, and energy.
(b) "Discriminatory" means likely, to any extent and whether directly or indirectly, to cause or contribute to adverse cumulative environmental or public health stressors in an overburdened community that are at a level higher than the state level or the county level, whichever is lower.
(c) "Environmental justice impact assessment" or "impact assessment" means a written assessment of the potential environmental and public health stressors associated with the facility, including, but not limited to, all of the following:
(i) Characteristics of the overburdened community, including, but not limited to, race, ethnicity, national origin, tribal and indigenous population, population under age 5, population over age 64, and socioeconomic status and other indicators identified by the Centers for Disease Control and Prevention and Agency for Toxic Substances and Disease Registry Social Vulnerability Index.
(ii) Existing environmental or public health stressors affecting the overburdened community, considering factors including, but not limited to, health data, disparities, and trends; social vulnerability indices; presence of food deserts; and climate risk indices.
(iii) Any adverse environmental or public health stressors that, on their own or together with other stressors, may adversely impact the overburdened community as a result of granting the permit.
(d) "Environmental or public health stressors" means any of the following:
(i) Existing and foreseeable sources of pollution, proximity to nearby sources, and the number of nearby sources. Sources of pollution include, but are not limited to, all of the following:
(A) Mobile sources of air pollution, including, but not limited to, vehicles on major roadways and diesel truck traffic.
(B) Sources of sound and light trespass.
(C) Contaminated sites.
(D) Facilities generating, treating, storing, or disposing of hazardous waste.
(E) Solid waste sites and transfer stations, recycling facilities, and scrapyards.
(F) Point and nonpoint sources of water pollution, including permitted and unpermitted wastewater discharges from industrial, agricultural, and commercial sources and combined sewer overflows.
(G) Impaired water bodies.
(ii) Existing public health burdens considering factors that include, but are not limited to, population of young children, population over age 64, level of unemployment, and housing burden.
(iii) Conditions that may, alone or synergistically, cause or exacerbate existing or potential public health burdens in the overburdened community, including, but not limited to, levels and severity of asthma, cancer, elevated blood lead levels, cardiovascular disease, low infant birth weights, infant mortality, mental health conditions, and reduced life expectancy.
(iv) Interrelated cultural, social, occupational, historical, or economic factors that may amplify the natural and physical environmental effects of the proposed action, including historical patterns of exposure to environmental hazards.
(e) "Facility" means any of the following:
(i) A stationary source as defined by 42 USC 7602.
(ii) A sludge processing facility, combustor, or incinerator.
(iii) A sewage treatment plant with a capacity of more than 50,000,000 gallons per day.
(iv) A disposal area as defined in section 11503.
(v) A disposal facility as defined in section 11102.
(vi) A storage facility as defined in section 11104.
(vii) A treatment facility as defined in section 11104.
(viii) A concentrated animal feeding operation.
(ix) A scrap metal facility.
(x) A mine.
(f) "Limited English proficiency" describes a household that does not have an adult that speaks English "very well" according to the United States Census Bureau.
(g) "Low-income household" means a household that is at or below 200% of the official poverty threshold as that threshold is determined annually by the United States Census Bureau.
(h) "Overburdened community" means a census block group, as determined by the United States Census Bureau for the most recent United States census, in which the annual median household income is not more than 65% of the statewide annual median household income and to which 1 or more of the following apply:
(i) At least 35% of the households are low-income households.
(ii) At least 20% of the residents identify as members of a minority group.
(iii) At least 15% of the households have limited English proficiency.
(iv) The census block group includes American Indian land for a federally recognized tribe.
(i) "Permit", subject to subdivision (j), means any of the following:
(i) The renewal of an operating permit under part 55.
(ii) An individual permit, registration, or license for a new facility or the expansion of an existing facility, issued by the department under part 31, 55, 111, 115, 301, 303, 323, 325, or 327.
(iii) The renewal of an operating license under part 111.
(j) Permit does not include authorization or approval required for either of the following:
(i) To perform remedial action, as defined in section 20101.
(ii) To make a minor modification to a permit under part 55 for activities or improvements that do not increase air emissions.
Sec. 1333. Not later than 120 days after the effective date of this section, the department shall publish on its public website a list of overburdened communities in this state. The department shall update the list of overburdened communities at least once every 2 years. The department shall notify a municipality if any part of the municipality is listed as an overburdened community under this section.
Sec. 1335. (1) Subject to section 1341(2), but not withstanding any other provision of this act, the department shall not consider an application for a permit to be complete if the facility is proposed to be located or is located, in whole or in part, in an overburdened community, unless the permit applicant has done all of the following:
(a) Prepared an environmental justice impact assessment.
(b) Held a public hearing in the overburdened community, subject to all of the following requirements:
(i) The permit applicant shall publish a notice of the public hearing in at least 2 newspapers circulating within the overburdened community, including a local non-English language newspaper, if any, not less than 60 days before the public hearing. The notice shall include all of the following:
(A) The date, time, and location of the public hearing.
(B) A description of the facility.
(C) A map indicating the location of the facility.
(D) A brief summary of the environmental justice impact assessment.
(E) Information on how an interested person may review a copy of the complete environmental justice impact assessment.
(F) An address for the submission of written comments to the permit applicant.
(G) Any other information that the department considers appropriate.
(ii) At least 60 days before the public hearing, the permit applicant shall send a copy of the notice under subparagraph (i) and the environmental justice impact assessment to the department and to the governing body and the clerk of each municipality in which the overburdened community is located. Upon receipt of the impact assessment, the department shall post the impact assessment on its public website.
(iii) At the public hearing, the permit applicant shall provide clear, accurate, and complete information about the facility and the potential environmental or public health stressors associated with the facility. The permit applicant shall accept written and oral comments from any interested party and provide an opportunity for public participation at the public hearing.
(iv) Not later than 10 days after the public hearing, the permit applicant shall submit to the department a transcript of the public hearing and any written comments received.
(2) The department may require or, on request of the applicant, authorize the applicant to consolidate the public hearing under subsection (1) with any other public hearing held or required by the department regarding the permit application, if the consolidated public hearing will otherwise meet the requirements of subsection (1). The consolidation of public hearings does not preclude an application from being considered complete for review pursuant to subsection (1).
(3) If a permit applicant is applying for more than 1 permit for a facility, the permit applicant is only required to comply with subsection (1) once, unless the department determines that more than 1 public hearing is necessary because of the complexity of the permit applications. This section does not otherwise limit the authority of the department to hold or require additional public hearings as may be required by this act.
Sec. 1337. (1) Subject to section 1341(2), after the public hearing under section 1335, the department shall consider the environmental justice impact assessment prepared under section 1335, written or oral comments received at or in connection with the public hearing, and any other relevant information possessed by the department.
(2) Notwithstanding any other provision of this act but subject to subsection (3), the department shall deny an application for a permit that is subject to section 1335(1) submitted after rules are promulgated under section 1341 unless the department finds that approval of the permit as proposed would not be discriminatory. The department and the applicant have the burden of proof under this standard.
(3) Subsection (2) does not apply if all of the following conditions are met:
(a) The department determines that the facility will serve a compelling public interest in the overburdened community that is necessary to meet a goal that is integral to the department's mission.
(b) There is no alternative that is less discriminatory.
(c) The department has adopted comparably effective less discriminatory alternative practices to substantially address potential disparate impacts.
(4) Notwithstanding any other provision of this act, if the department finds that approval of an application for a permit would be discriminatory but approves the application under subsection (3), the department shall impose conditions on the permit necessary to substantially do all of the following in the overburdened community:
(a) Protect public health.
(b) Reduce disparate impact of environmental harms.
(c) Reduce cumulative health impacts.
(d) Prevent further pollution resulting from noncompliance.
(e) Mitigate past impacts from pollution.
(f) Provide equitable participation and community engagement opportunities.
(g) Increase transparency.
(h) Promote the fair and just transition to a pollution-free economy.
(i) Reduce impacts and future risks of climate change.
(j) Meet community needs.
(5) The department shall not approve or deny an application for a permit subject to section 1335(1) until at least 45 days have elapsed after the public hearing described in section 1335. When issuing its final decision to approve or deny a permit subject to section 1335, the department shall respond to all comments received at or in connection with the public hearing.
Sec. 1339. Subject to section 1341(2), in addition to any other fee authorized by this act, the department shall assess each person that applies for a permit a reasonable fee to cover the department's costs associated with the implementation of this subpart, including costs to provide technical assistance to permit applicants and overburdened communities as needed to comply with this subpart.
Sec. 1341. (1) By 1 year after the effective date of this section, the department shall promulgate rules to implement this subpart.
(2) Sections 1335 to 1339 apply beginning on the effective date of rules promulgated under subsection (1).
Enacting section 1. Sections 1313 to 1317 of the natural resources and environmental protection act, 1994 PA 451, MCL 324.1313 to 324.1317, are repealed.
