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154524 - South Dearborn Environmental Improvement Assn v DEQ

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South Dearborn Environmental Improvement Association, Inc., Detroiters Working for Environmental Justice, Original United Citizens of Southwest Detroit, and Sierra Club,  
 
Christopher M. Bzdok
Tracy Jane Andrews
Nicholas Schroeck
 
Petitioners-Appellees,
 
v
(Appeal from Ct of Appeals)
 
 
(Wayne – Hathaway, D.)
 
Department of Environmental Quality and Dan Wyant,
 
Neil D. Gordon
 
Respondents-Appellants,
 
and
 
 
AK Steel Corporation,
Appellee.
 
 
 
 

Summary

Beginning in 2005, the Department of Environmental Quality (DEQ) approved a series of permits for the rebuilding of a blast furnace and the installation of three air pollution control devices at a steel plant originally operated by Severstal Dearborn and later purchased by AK Steel. Each successive “permit to install” modified and replaced the preceding one. The DEQ issued the fourth of these permits on May 12, 2014. On July 10, 2014, 59 days after this permit renewal was issued, petitioners filed a claim of appeal in Wayne Circuit Court, seeking to have the permit vacated. Petitioners are environmental groups who object to the permit and allege that the DEQ lacked authority to issue the permit. After acquiring Severstal, AK Steel moved to dismiss petitioners’ appeal for lack of jurisdiction, arguing that the claim was not timely filed under MCR 7.123(B)(1) and MCR 7.104(A). Appeals from agencies not governed by another court rule are governed by MCR 7.123, and subrule (B)(1) provides that the time requirements of MCR 7.104(A) apply. That subrule provides that an appeal of right shall be filed in the circuit court within 21 days of the decision being appealed. The circuit court denied AK Steel’s motion, agreeing with petitioners that, pursuant to MCL 324.5506(14) of the Natural Resources and Environmental Protection Act (NREPA), they had 90 days after issuance of the permit to file their appeal, and therefore the filing was timely. In a published opinion, the Court of Appeals held that pursuant to MCR 7.119, which applies to agency decisions made under the Administrative Procedures Act (APA) and has a 60-day filing period, petitioners’ appeal was timely filed. AK Steel and the DEQ have applied for leave to appeal. The Supreme Court has directed oral argument on the applications to address: (1) whether MCL 324.5505(8) and MCL 324.5506(14) prescribe the applicable time period for filing a petition for judicial review of the DEQ’s issuance of the challenged permit; and (2) if not, whether the issuance of that permit was a decision of that agency subject to the contested case provisions of the APA, such that the time period for filing a petition for judicial review set forth in MCR 7.119(B)(1) applies, rather than the time period established by MCR 7.123(B)(1) and MCR 7.104(A).