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.

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

term. After serving 2 consecutive terms, the individual ~~may~~ shall

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

risk, 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

the fund.

(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

response 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

3 years.

(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.

(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

the agency.

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.

(d) Senate Bill No. 532.

(e) Senate Bill No. 533.