S. Dearborn Envtl. Improvement Ass'n, Inc. v. Dep't of Envtl. Quality

502 Mich. 349

917 N.W.2d 603

SOUTH DEARBORN ENVIRONMENTAL IMPROVEMENT ASSOCIATION, INC., Detroiters Working for Environmental Justice, Original United Citizens of Southwest Detroit, and Sierra Club, Petitioners-Appellees,

v.DEPARTMENT OF ENVIRONMENTAL QUALITY and Dan Wyant, Respondents-Appellants,andAK Steel Corporation, Appellee.

South Dearborn Environmental Improvement Association, Inc., Detroiters Working for Environmental Justice, Original United Citizens of Southwest Detroit, and Sierra Club, Petitioners-Appellees,

v.Department of Environmental Quality and Dan Wyant, Respondents-Appellees,andAK Steel Corporation, Appellant.

No. 154524

No. 154526

Supreme Court of Michigan.

Argued on application for leave to appeal March 6, 2018

Decided July 17, 2018

Olson, Bzdok & Howard, PC (by Christopher M. Bzdok and Tracy J. Andrews ), Traverse City, for South Dearborn Environmental Improvement Association, Inc.

Great Lakes Environmental Law Center (by Nicholas Leonard and Oday Salim ) for Detroiters Working for Environmental Justice, Original United Citizens of Southwest Detroit, and the Sierra Club.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Laura Moody, Chief Legal Counsel, and Neil D. Gordon, Assistant Attorney General, for the Michigan Department of Environmental Quality and Dan Wyant.

Driggers, Schultz & Herbst, PC (by Barbara D. Urlaub, William C. Schaefer, and Adam Hall ), Troy, for AK Steel Corporation.

BEFORE THE ENTIRE BENCH

Bernstein, J.

In this case, we consider how long an interested party has to file a petition for judicial review of a Michigan Department of Environmental Quality (DEQ) decision to issue a permit for an existing source of air pollution. We hold that MCL 324.5505(8) and MCL 324.5506(14) provide that such a petition must be filed within 90 days of the DEQ’s final permit action. Therefore, the circuit court correctly denied AK Steel Corporation’s (AK Steel’s) motion to dismiss pursuant to MCR 2.116(C)(1) because the petition for judicial review was timely filed 59 days after the final permit action in this case. Accordingly, we affirm the judgment of the Court of Appeals in part, albeit for different reasons, and remand this case to the circuit court for further proceedings.¹

I. FACTS AND PROCEDURAL HISTORY

AK Steel operates a steel mill within the Ford Rouge Manufacturing complex in Dearborn, Michigan. Before being acquired by AK Steel in 2014, the steel mill was operated by Severstal Dearborn, LLC (Severstal). The steel mill is subject to air pollution control and permitting requirements under the federal Clean Air Act,² 42 USC 7401 et seq ., and the Natural Resources and Environmental Protection Act (NREPA), MCL 324.101 et seq . In order to comply with the Clean Air Act, Part 55 of the NREPA requires the DEQ to promulgate rules to establish a permit-to-install program, MCL 324.5505(2), and an operating-permit program, MCL 324.5506(4).

In 2006, the DEQ issued Severstal a permit to install³ titled "PTI 182-05," which authorized the rebuilding of a blast furnace and the installation of three air pollution control devices at Severstal’s steel mill. In the years that followed, the permit was revised twice, first in 2006 (PTI 182-05A) and again in 2007 (PTI 182-05B). Each successive permit modified and replaced the preceding permit.

Emissions testing performed in 2008 and 2009 revealed that several emission sources at the steel mill exceeded the level permitted by PTI 182-05B. The DEQ sent Severstal a notice of violation, and after extended negotiations, they entered into an agreement, pursuant to which Severstal submitted an application for PTI 182-05C. The DEQ issued the permit on May 12, 2014, after a period of public comment and a public hearing as prescribed by the NREPA, MCL 324.5511(3). The DEQ stated that the purpose of PTI 182-05C was to correct inaccurate assumptions about pre-existing and projected emissions and to reallocate emissions among certain pollution sources covered by the permit to install.

On July 10, 2014, 59 days after PTI 182-05C was issued, appellee South Dearborn Environmental Improvement Association, Inc. (South Dearborn)⁴ and a number of other environmental groups appealed the DEQ’s decision by filing a petition for judicial review in the Wayne Circuit Court.⁵

AK Steel purchased the steel mill a short time later and filed a motion to dismiss pursuant to MCR 2.116(C)(1), arguing that South Dearborn’s petition was untimely filed and thus the circuit court lacked jurisdiction over the case.⁶ According to AK Steel, while MCL 324.5505(8)⁷ and MCL 324.5506(14)⁸ provide a right to appeal the issuance or denial of an operating permit⁹ and a permit to install for a new source, and state when such appeals must be filed, neither statute applies to a permit to install for an existing source.¹⁰ Instead, AK Steel argued that South Dearborn’s right to appeal a permit to install for an existing source is based in MCL 600.631 of the Revised Judicature Act, MCL 600.101 et seq ., and that the period in which to file an appeal is thus governed by MCR 7.123(B)(1) and MCR 7.104(A). AK Steel claimed that South Dearborn’s appeal was untimely because it was not filed within 21 days, as required by those court rules.

The circuit court disagreed. The court noted that MCL 324.5506(14) states, "A petition for judicial review is the exclusive means of obtaining judicial review of a permit and shall be filed within 90 days after the final permit action." Relying heavily on the Legislature’s use of an indefinite article, the circuit court found that the phrase "a permit" in MCL 324.5506(14) included the permit to install appealed in this case. Therefore, South Dearborn had 90 days from the date that the fourth successive permit was issued to file a petition for judicial review. Accordingly, the circuit court held that South Dearborn’s petition was timely filed and denied AK Steel’s motion to dismiss.

AK Steel appealed in the Court of Appeals, which affirmed the result, but on different grounds. In the Court of Appeals’ view, "[t]he circuit court erred by ignoring the plain context of [ MCL 324.5506(14) ] and placing far too much importance on the Legislature’s use of the indefinite article ‘a.’ " South Dearborn Environmental Improvement Ass’n, Inc. v. Dep’t Of Environmental Quality , 316 Mich. App. 265, 273, 891 N.W.2d 233 (2016) ( SDEIA ). Rejecting the circuit court’s reasoning, the Court of Appeals held that the appeals period outlined in MCL 324.5506(14) applies only to operating permits. Id . at 274, 891 N.W.2d 233. The Court of Appeals determined that MCL 600.631 and MCR 7.119 governed this appeal because, in its view, the contested-case provisions of the Administrative Procedures Act, MCL 24.201 et seq ., applied to the permitting decision pursuant to MCL 24.291(1). Id . at 277, 891 N.W.2d 233. On this basis, the Court of Appeals held that the petition was timely because it was filed within the 60-day period provided by MCR 7.119 and MCR 7.104(A). Id . at 277-278, 891 N.W.2d 233.

AK Steel sought leave to appeal in this Court. The DEQ, participating for the first time in these legal proceedings, filed a separate application raising nearly identical arguments. This Court consolidated their applications for the purpose of appellate review and scheduled oral argument on the applications.

South Dearborn Environmental Improvement Ass’n, Inc. v. Dep’t of Environmental Quality , 500 Mich. 966, 892 N.W.2d 374 (2017). Our order instructed the parties to address, in substantive part:

(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 Department of Environmental Quality’s issuance of the permit that the petitioners are seeking to challenge, and (2) if not, whether the issuance of that permit was a decision of that agency subject to the contested case provisions of the Administrative Procedures Act, 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). [ Id . ]

II. STANDARD OF REVIEW

This Court reviews de novo the grant or denial of a motion to dismiss an appeal for a lack of jurisdiction.¹¹ Whether the circuit court has jurisdiction over this appeal is a question of statutory interpretation that we also review de novo. People v. Mazur , 497 Mich. 302, 308, 872 N.W.2d 201 (2015).

The principal goal of statutory interpretation is to give effect to the Legislature’s intent, and the most reliable evidence of that intent is the plain language of the statute. Id . When interpreting a statute, " ‘we must give effect to every word, phrase, and clause and avoid an interpretation that would render any part of the statute surplusage or nugatory.’ " People v. Rea , 500 Mich. 422, 428, 902 N.W.2d 362 (2017), quoting People v. Miller , 498 Mich. 13, 25, 869 N.W.2d 204 (2015). Moreover, "[n]ontechnical words and phrases" should be construed according to their plain meaning, taking into account the context in which the words are used. Rea , 500 Mich. at 428, 902 N.W.2d 362. "When a word or phrase is not defined by the statute in question, it is appropriate to consult dictionary definitions to determine [its] plain and ordinary meaning ...." Id .

III. INTERPRETATION AND APPLICATION OF MCL 324.5505(8) AND MCL 324.5506(14)

The focus of this appeal is on the interplay of MCL 324.5505(8) and MCL 324.5506(14). These subsections govern appeals of various DEQ permitting decisions made pursuant to Part 55 of the NREPA. The critical dispute in this case is whether the fourth sentence of MCL 324.5506(14) —"A petition for judicial review is the exclusive means of obtaining judicial review of a permit and shall be filed within 90 days after the final permit action"—applies to the issuance of a permit to install for an existing source. The Court of Appeals held that this sentence applies only to operating...