SB-0529, As Passed Senate, April 19, 2012
HOUSE SUBSTITUTE FOR
SENATE BILL NO. 529
A bill to amend 1994 PA 451, entitled
"Natural resources and environmental protection act,"
by amending section 20114e (MCL 324.20114e), as added by 2010 PA
227, and by adding sections 21332 and 21333.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 20114e. (1) The director shall establish a response
activity review panel to advise him or her on technical or
scientific disputes, including disputes regarding assessment of
risk, concerning response activity plans and no further action
reports under this part, and initial assessment reports, final
assessment reports, and closure reports under part 213.
(2) The panel shall consist of 15 individuals, appointed by
the director. Each member of the panel shall meet all of the
following minimum requirements:
(a) Meet 1 or more of the following:
(i) Hold a current professional engineer's or professional
geologist's license or registration from a state, tribe, or United
States territory, or the Commonwealth of Puerto Rico, and have the
equivalent of 6 years of full-time relevant experience.
(ii) Have a baccalaureate degree from an accredited institution
of higher education in a discipline of engineering or science and
the equivalent of 10 years of full-time relevant experience.
(iii) Have a master's degree from an accredited institution of
higher education in a discipline of engineering or science and the
equivalent of 8 years of full-time relevant experience.
(b) Remain current in his or her field through participation
in continuing education or other activities.
(3) An individual is not eligible to be a member of the panel
if any 1 of the following is true:
(a) The individual is a current employee of any office,
department, or agency of the state.
(b) The individual is a party to 1 or more contracts with the
department and the compensation paid under those contracts
represented more than 5% of the individual's annual gross revenue
in any of the preceding 3 years.
(c) The individual is employed by an entity that is a party to
1 or more contracts with the department and the compensation paid
to the individual's employer under these contracts represented more
than 5% of the employer's annual gross revenue in any of the
preceding 3 years.
(d) The individual was employed by the department within the
preceding 3 years.
(4) An individual appointed to the panel shall serve for a
term of 3 years and may be reappointed for 1 additional 3-year
After serving 2 consecutive terms, the individual
not be a member of the panel for a period of at least 2 years
before being eligible to be appointed to the panel again. The terms
for members first appointed shall be staggered so that not more
than 5 vacancies are scheduled to occur in a single year.
Individuals appointed to the panel shall serve without
compensation. However, members of the panel may be reimbursed for
their actual and necessary expenses incurred in the performance of
their official duties as members of the panel.
(5) A vacancy on the panel shall be filled in the same manner
as the original appointment.
(6) The business that the panel may perform shall be conducted
at a public meeting of the panel held in compliance with the open
meetings act, 1976 PA 267, MCL 15.261 to 15.275.
(7) A person who submitted a response activity plan or a no
further action report under this part or an initial assessment
report, final assessment report, or closure report under part 213
may appeal a decision made by the department regarding a technical
or scientific dispute, including a dispute regarding assessment of
concerning the response activity plan,
or no further action
report, initial assessment report, final assessment report, or
closure report by submitting a petition to the director. However,
an issue that was addressed as part of the final decision of the
director under section 21332 or that is the subject of a contested
case hearing under section 21332 is not eligible for review by the
panel. The petition shall include the issues in dispute, the
relevant facts upon which the dispute is based, factual data,
analysis, opinion, and supporting documentation for the
petitioner's position. The petitioner shall also submit a fee of
$3,500.00. If the director believes that the dispute may be able to
be resolved without convening the panel, the director may contact
the petitioner regarding the issues in dispute and may negotiate a
resolution of the dispute. This negotiation period shall not exceed
45 days. If the dispute is resolved without convening the panel,
any fee that is submitted with the petition shall be returned.
(8) If a dispute is not resolved pursuant to subsection (7),
the director shall schedule a meeting of 5 members of the panel,
selected on the basis of their relevant expertise, within 45 days
after receiving the original petition. If the dispute involves an
underground storage tank system, at least 3 of the members selected
shall have relevant experience in the American society for testing
and materials risk-based corrective action processes described in
part 213. A member selected for the dispute resolution process
shall agree not to accept employment by the person bringing the
dispute before the panel, or to undertake any employment concerning
the facility in question for a period of 1 year after the decision
has been rendered on the matter if that employment would represent
more than 5% of the member's gross revenue in any of the preceding
3 years. The director shall provide a copy of all supporting
documentation to members of the panel who will hear the dispute. An
alternative member may be selected by the director to replace a
member who is unable to participate in the dispute resolution
process. Any action by the members selected to hear the dispute
shall require a majority of the votes cast. The members selected
for the dispute resolution process shall elect a chairperson of the
dispute resolution process. At a meeting scheduled to hear the
dispute, representatives of the petitioner and the department shall
each be afforded an opportunity to present their positions to the
panel. The fee that is received by the director along with the
petition shall be forwarded to the state treasurer for deposit into
(9) Within 45 days after hearing the dispute, the members of
the panel who were selected for and participated in the dispute
resolution process shall make a recommendation regarding the
petition and provide written notice of the recommendation to the
director of the department and the petitioner. The written
recommendation shall include the specific scientific or technical
rationale for the recommendation. The panel's recommendation
regarding the petition may be to adopt, modify, or reverse, in
whole or in part, the department's decision that is the subject of
the petition. If the panel does not make its recommendation within
this 45-day time period, the decision of the department is the
final decision of the director.
(10) Within 60 days after receiving written notice of the
panel's recommendation, the director shall issue a final decision,
in writing, regarding the petition. However, this time period may
be extended by written agreement between the director and the
petitioner. If the director agrees with the recommendation of the
panel, the department shall incorporate the recommendation into its
to the response activity plan,
or the no further action
report, initial assessment report, final assessment report, or
closure report. If the director rejects the recommendation of the
panel, the director shall issue a written decision to the
petitioner with a specific rationale for rejecting the
recommendation of the panel. If the director fails to issue a final
decision within the time period provided for in this subsection,
the recommendation of the panel shall be considered the final
decision of the director. The final decision of the director under
this subsection is subject to review pursuant to section 631 of the
revised judicature act of 1961, 1961 PA 236, MCL 600.631.
(11) Upon request of the director, the panel shall make a
recommendation to the department on whether a member should be
removed from the panel. Prior to making this recommendation, the
panel may convene a peer review panel to evaluate the conduct of
the member with regard to compliance with this part.
(12) A member of the panel shall not participate in the
dispute resolution process for any appeal in which that member has
a conflict of interest. The director shall select a member of the
panel to replace a member who has a conflict of interest under this
subsection. For purposes of this subsection, a member has a
conflict of interest if a petitioner has hired that member or the
member's employer on any environmental matter within the preceding
(13) As used in this section, "relevant experience" means
active participation in the preparation, design, implementation,
and assessment of remedial investigations, feasibility studies,
interim response activities, and remedial actions under this part
or experience in the American society for testing and materials
risk-based corrective action processes described in part 213. This
experience must demonstrate the exercise of sound professional
judgment and knowledge of the requirements of this part or part
213, or both.
Sec. 21332. (1) Subject to subsection (2), an owner or
operator may petition the department for a contested case hearing
pursuant to the administrative procedures act of 1969, 1969 PA 306,
MCL 24.201 to 24.328, regarding any of the following:
(a) Corrective action proposed, commenced, or completed.
(b) The SSTLs proposed for a site.
(c) The imposition of penalties pursuant to section 21313a.
(d) The results of any audit performed under section 21315.
(2) Upon receipt of a petition from an owner or operator
pursuant to this section, the department shall conduct the hearing
pursuant to chapter 4 of the administrative procedures act of 1969,
1969 PA 306, MCL 24.271 to 24.287. However, an issue that was
addressed as part of the final decision of the director under
section 20114e or that is being considered by the response activity
review panel under section 20114e is not eligible for review as
part of a contested case hearing under this section.
Sec. 21333. An owner or operator may appeal a final agency
decision to affix a placard under section 21316a(2) or issue an
administrative order under section 21319a(2) to the circuit court
for the county where the underground storage tank system is located
or the Ingham county circuit court in the same manner as and
according to the same procedures provided for appeals to the
circuit court under section 631 of the revised judicature act of
1961, 1961 PA 236, MCL 600.631. The court shall set aside the final
agency decision if substantial rights of the petitioner have been
prejudiced because the decision or order is any of the following:
(a) In violation of the constitution or a statute.
(b) In excess of the statutory authority or jurisdiction of
(c) Made upon unlawful procedure resulting in material
prejudice to a party.
(d) Not supported by competent, material, and substantial
evidence on the whole record.
(e) Arbitrary, capricious, or clearly an abuse or unwarranted
exercise of discretion.
(f) Affected by other substantial and material error of law.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 96th Legislature are
enacted into law:
(a) Senate Bill No. 528.
(b) Senate Bill No. 530.
(c) Senate Bill No. 531.
(d) Senate Bill No. 532.
(e) Senate Bill No. 533.