November 9, 2016, Introduced by Rep. McBroom and referred to the Committee on Natural Resources.
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
(MCL 324.101 to 324.90106) by adding part 6.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
PART 6
DEPARTMENT OF ENVIRONMENTAL QUALITY
Sec. 601. As used in this part:
(a) "Commission" means the commission of environmental
quality.
(b) "Department" means the department of environmental
quality.
(c) "Director" means the director of the department.
Sec. 602. The department of environmental quality is created.
The department has the powers and shall perform the duties granted
and imposed by this act and as otherwise provided by law.
Sec. 603. (1) The commission of environmental quality is
created as the head of the department.
(2) The commission shall be composed of 7 voting members, not
more than 4 of whom shall be members of the same political party,
appointed by the governor by and with the advice and consent of the
senate. At least 1 member must be from the Upper Peninsula. The
governor shall select members of the commission with special
reference to each person's training and experience and the ability
and fitness of that person to deal with the activities of the
commission. The commission shall be composed of 1 member from each
of the following areas of expertise:
(a) Business and manufacturing.
(b) Public utilities.
(c) Waste management.
(d) Local or municipal government.
(e) Conservation or environmental protection.
(f) Medicine or public health.
(g) Agriculture.
(3) Members of the commission shall serve for terms of 4 years
or until a successor is appointed, whichever is later, except that
of the members first appointed, 2 shall serve for 2 years, 2 shall
serve for 3 years, and 3 shall serve for 4 years. Each member of
the commission shall hold office until appointment and
qualification of that member's successor.
(4) If a vacancy occurs on the commission, the governor shall
appoint a member for the unexpired term in the same manner as the
original appointment.
(5) Following a hearing, 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.
(6) Within 30 days after members first appointed have
qualified, the commission shall meet at its office in Lansing. The
commission shall appoint a secretary, who need not be a member of
the commission. An appointed secretary who is not a member of the
commission shall not vote on commission decisions. The commission
shall elect from among its members any officers as it considers
advisable. Not later than September 30 of each year the commission
shall designate a chairperson to serve in that role through
September 30 of the following year. A member shall not serve as
chairperson for more than 3 consecutive years.
(7) Five members of the commission constitute a quorum for the
transaction of business. The commission shall conduct its business
at a public meeting held in compliance with the open meetings act,
1976 PA 267, MCL 15.261 to 15.275. The commission shall give public
notice of the time, date, and place of the meeting in the manner
required by that act. The chairperson may call a meeting and shall
call a meeting on request of not fewer than 4 members of the
commission. The commission may meet as often as necessary and at
other places than the commissioners' offices at Lansing. The
commission shall meet at least once each month.
(8) For any business of the commission, if support for the
business item is not unanimous by all voting members of the
commission, the commission shall vote in person at a meeting of the
commission. A majority vote consisting of not less than 4 votes
from commissioners is required for any nonunanimously supported
business item to be considered completed by the commission.
(9) The members of the commission shall not receive
compensation, but each member and the other officers are entitled
to reasonable expenses while traveling in the performance of their
duties. Each member of the commission qualifies by taking and
subscribing to the constitutional oath of office and by filing it
in the office of the secretary of state.
(10) A member of the commission shall discharge his or her
duties in a nonpartisan manner, in good faith, in the best
interests of this state, and with the degree of diligence, care,
and skill that a fiduciary would exercise under similar
circumstances in a like position. A member of the commission shall
not make or participate in making a decision, or in any way attempt
to use his or her position as a member of the commission to
influence a decision, on a matter before the department or the
commission regarding a loan, grant, or other expenditure in which
the member is directly or indirectly interested. A member of the
commission shall not have an interest, directly or indirectly, in
any contract with the department or the commission that would cause
a substantial conflict of interest. Members of the commission shall
comply, and the commission shall adopt policies and procedures for
members to comply, with the requirements of this subsection and all
of the following:
(a) 1978 PA 472, MCL 4.411 to 4.431.
(b) 1978 PA 566, MCL 15.181 to 15.185.
(c) 1968 PA 318, MCL 15.301 to 15.310.
(d) 1968 PA 317, MCL 15.321 to 15.330.
(e) 1973 PA 196, MCL 15.341 to 15.348.
(11) Within 1 year after the establishment of the commission,
the commission shall submit proposed performance measures to the
governor for approval with advice and consent of the senate. The
performance measures must be designed as a limited list of metrics
that do all of the following:
(a) Gauge progress toward the commission's goals and mission.
(b) Use standard terminology and definitions.
(c) Identify relevant performance targets.
(d) Use accurate and reliable data sources.
(e) Measure customer satisfaction.
(12) After the performance measures are approved under
subsection (11), the commission shall submit to the governor and
the legislature, not later than September 30 of each year, a report
on its performance during the previous year. The commission may
change or update performance measures as needed with approval of
the commission and the governor with advice and consent of the
senate.
(13) As used in this section, "expertise" means qualifications
consisting of 1 or more of the following:
(a) Representing a statewide organization dedicated to the
specified area.
(b) Possessing a current state or federally recognized
certification or licensure in a specialty serving that specified
area.
(c) Being employed full-time in, having an ownership interest
in, being a listed partner in, or operating primarily in the
specified area.
Sec. 604. (1) The commission shall appoint and employ a
director who remains in office at the pleasure of the commission.
The director may appoint 1 or more deputy directors and other
assistants and employees as necessary to implement this part and
any other law affecting the powers and duties of the department. A
person to whom the director has lawfully delegated decision-making
authority in writing may perform a duty or exercise a power
conferred by law upon the department at the time and to the extent
the duty or power is delegated to that person. If a vacancy in the
office of director occurs or the director is unable to perform the
director's duties or is absent from the state, the powers and
duties of the director are transferred to a deputy director
designated by the commission until the vacancy is filled or the
director's inability or absence from the state ceases.
(2) The commission may establish general policies related to
environmental protection for the guidance of the director.
(3) The director shall consult with the commission on
environmental policy matters.
Sec. 605. (1) The commission shall possess the powers and
perform the duties granted and imposed by this act and as otherwise
provided by law.
(2) The commission shall do all of the following:
(a) Exercise appellate authority under sections 606 and 607.
(b) Provide advice to the director on matters relating to the
department, including, but not limited to, environmental policy.
(c) Provide a forum for public review of administrative rules,
permits, orders, proposals, and other actions by the department.
(d) Recommend that the governor declare an emergency or
disaster pursuant to the Michigan emergency management act, 1976 PA
390, MCL 30.401 to 30.421, if it finds a generalized dangerous
condition of water or air pollution.
(e) Make inquiries, studies, and investigations and hold
hearings and receive comments from the public. The commission or a
subcommittee of the commission may consult with outside experts in
performing its duties, including, but not limited to, experts in
the private sector, organized labor, government agencies, and
institutions of higher education.
(f) Establish from among its members 2 permanent subcommittees
to undertake the following activities:
(i) Annually review and develop recommendations for submission
to the director regarding rules the department proposes, amends, or
rescinds to update scientific standards, comply with federal
requirements, or improve regulatory efficiency.
(ii) Provide technical advice on scientific environmental
issues as directed by the commission.
(g) In addition to subcommittees established under subsection
(f), establish subcommittees to serve at the pleasure of the
commission to perform research and investigate topics assigned by
the commission. A subcommittee created by the commission under this
subdivision shall report its finding to the full commission at a
regular meeting of the commission.
(h) Review actions by the department to ensure that they are
based on sound science and technical validity, after considering
the economic impact and the risks and benefits to the public and
the natural resources of this state.
(i) Performing additional duties as provided by other law, or
as requested by the director or the governor.
Sec. 606. (1) Subject to subsection (2), if an individual has
legal standing to challenge a decision of the department under this
act regarding the issuance, denial, suspension, revocation,
annulment, withdrawal, recall, cancellation, or amendment of a
permit, an enforcement action, rules, or order, or another
department action related to property owned by that individual, the
commission, upon request of that individual, may review the
decision and make the final agency decision. A decision of the
department is reviewable by the commission only if the commission
elects to grant a review. If an individual is granted review by the
commission under this section, the individual is considered to have
exhausted his or her administrative remedies with regard to that
matter. Legal standing under this subsection means that an
individual demonstrates all of the following:
(a) The individual has sufficient connection to a decision and
harm from a decision such that the individual has suffered or will
suffer imminent injury.
(b) The injury is reasonably connected to the department's
decision.
(c) Commission review or legal action will likely redress the
injury.
(2) If a person has legal standing to challenge a decision of
the department under this act, that person may seek direct review
by the courts as provided by law. Direct review by the courts is
available to that person as an alternative to any administrative
remedy that is provided in this act. A preliminary, procedural, or
intermediate action or ruling of the department is not immediately
reviewable, except that the court may grant leave for review of a
preliminary, procedural, or intermediate action or ruling if the
court determines that review of the final decision would not
provide an adequate remedy. If a person is granted direct review by
the courts under this section, the person is considered to have
exhausted his or her administrative remedies with regard to that
matter.
(3) If the court does not review a decision of the department
brought before the court as provided in this section, the person
with legal standing retains any administrative appeal rights that
are otherwise provided by law.
(4) If the court reviews a preliminary, procedural, or
intermediate decision of the department brought before the court as
provided in this section, the person with legal standing retains
the right to judicial review of the final decision of the
department as provided by law.
Sec. 607. With respect to those matters related to property
owned by an individual, the commission may exercise quasi-judicial
powers in accordance with the provisions of the administrative
procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. This
section and any rules adopted by the commission govern proceedings
held under this section. The proceedings are subject to all of the
following:
(a) Challenges to department decisions shall be filed with the
commission within 30 days after the issuance of the department
decision, unless additional time is allowed by the chairperson of
the commission.
(b) Oral arguments by the parties may be allowed by the
chairperson of the commission upon request of the parties.
(c) In contested cases that arise from administrative
enforcement actions, the commission shall recognize in its
evaluation of each violation that harm to the natural resources of
this state arising from the violation of standards or limitations
established to protect those resources may be immediately observed
through damaged resources or may be incremental or cumulative with
no damage that can be immediately observed or documented.
(d) Administrative enforcement actions up to the maximum
authorized under this act may be based on any 1 or combination of
the following factors:
(i) The degree and extent of harm to the natural resources of
this state, to the public health, or to private property resulting
from the violation.
(ii) The duration and gravity of the violation.
(iii) The effect on ground or surface water quantity or
quality or on air quality.
(iv) The cost of rectifying the damage.
(v) The amount of money saved by noncompliance.
(vi) Whether the violation was committed willfully or
intentionally.
(vii) The prior record of the violator in complying or failing
to comply with programs over which the commission has regulatory
authority.
(viii) The cost to this state of the enforcement procedures.
(e) In any contested case challenging an administrative
enforcement action issued by the department, the chairperson shall
appoint a committee on administrative enforcement actions from the
members of the commission. A member of the committee on
administrative enforcement action shall not hear or vote on any
matter in which he or she has an economic interest. The committee
on administrative enforcement actions shall make the final agency
decision on the challenge to an administrative enforcement action.
In making the final agency decision, the committee shall consider
the recommendation of the director and all of the following
factors:
(i) Whether 1 or more of the factors listed in subdivision (d)
were wrongly applied to the detriment of the petitioner.
(ii) Whether the petitioner promptly abated continuing
environmental damage resulting from the violation.
(iii) Whether the violation was inadvertent or a result of an
accident.
(iv) Whether the petitioner had been assessed administrative
fines or other civil remedies for any previous violations.
(v) Whether the administrative enforcement action will
adversely affect payment for the remaining necessary remedial
actions.
(f) If an administrative fine has not been paid within 30 days
after the final agency decision or court order has been served on
the violator, the director shall request the attorney general to
institute a civil action in the circuit court of any county in
which the violator resides or the violator's principal place of
business to recover the amount of the administrative fine.