CITY OF ROMULUS V MICH DEPT OF ENVIRONMENTAL QUALITY
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STATE OF MICHIGAN
COURT OF APPEALS
CITY OF ROMULUS and CITY OF TAYLOR,
Petitioners-Appellants,
FOR PUBLICATION
December 16, 2003
9:05 a.m.
and
COUNTY OF WAYNE
Petitioner,
v
No. 236673
Wayne Circuit Court
LC No. 01-108700-AV
MICHIGAN DEPARTMENT OF
ENVIRONMENTAL QUALITY,
Respondent-Appellee,
and
Updated Copy
February 27, 2004
ENVIRONMENTAL DISPOSAL SYSTEMS, INC.
Intervening Respondent-Appellee.
Before: Zahra, P.J., and Talbot and Owens, JJ.
ZAHRA, P.J.,
Appellee Environmental Disposal Systems, Inc. (EDS), submitted an application to
respondent, the Michigan Department of Environmental Quality (DEQ), for a permit under Part
111 of the Natural Resources and Environmental Protection Act (NREPA), MCL 324.11101 et
seq., authorizing the construction of a hazardous waste underground deep injection well facility
on an undeveloped site that contained wetlands located in the city of Romulus. 1999 AC, R
299.9603 (Rule 603) provides that new hazardous waste facilities shall not be located in a
wetland. After becoming aware that the site contained wetlands, EDS applied for and was
granted a permit under Part 303 of the NREPA, MCL 324.30301 et seq., authorizing it to fill the
wetlands. Thereafter, the DEQ issued a Part 111 permit to EDS, authorizing it to build the
hazardous waste facility. Petitioners initiated proceedings to challenge the DEQ's decision to
issue the Part 111 permit to EDS. The circuit court affirmed the issuance of the Part 111 permit,
-1-
and this Court granted the application for leave to appeal filed by petitioners city of Romulus and
city of Taylor. The most significant issue on appeal is whether the DEQ erred in issuing a Part
111 permit to EDS to build the hazardous waste facility on land designated as a wetland where
the DEQ had also issued a Part 303 permit authorizing EDS to fill the wetlands on the site
proposed for the facility. We conclude that the DEQ did not err in issuing the Part 111 permit to
EDS. Rule 603 provides that a hazardous waste facility shall not be located in a wetland. Here,
EDS obtained a Part 303 permit to fill and eliminate the wetlands on the site. The wetlands have
been lawfully filled.1 Thus, EDS would not be building the hazardous waste facility in a
wetland. We affirm.
I. Facts and Procedure
EDS, a company in the business of disposing of hazardous waste, sought to build and
operate a hazardous waste underground deep injection well facility on an undeveloped site (the
Citrin Drive site) located in the city of Romulus. The city of Romulus opposed construction of
the hazardous waste facility, and several lawsuits were initiated regarding this issue.2 EDS
obtained many of the federal, state, and municipal permits required for the construction of the
facility and then applied to the DEQ for a Part 111 hazardous waste management construction
permit. The DEQ determined that EDS's application was complete and technically adequate, and
then, in conformity with MCL 324.11119, referred the matter to a site review board (SRB).
Between October 1999 and March 2000, the SRB held a public hearing and several informal
hearings, where it received oral and written statements from local community officials, the
public, EDS, and the DEQ regarding the construction of the facility. At one of these hearings,
EDS learned that several areas constituting wetlands existed on the Citrin Drive site.3 At the
January 26, 2000, SRB hearing, the DEQ confirmed the existence of the wetlands and informed
the SRB that EDS would be required to obtain a Part 303 permit authorizing it to fill the
wetlands before it would be allowed to build the facility. EDS subsequently applied for a Part
303 permit.
On March 21, 2000, the SRB recommended that the DEQ deny EDS's application for a
Part 111 permit, listing nine reasons for its recommendation. One reason was that there was no
need for the facility because there was a surplus of hazardous waste disposal capacity in the area.
1
The DEQ issued the Part 111 permit before EDS filled the wetlands. However, the DEQ issued
the Part 111 permit with the understanding and expectation that the wetlands would be filled
before construction of the facility commenced.
2
Environmental Disposal Systems, Inc v City of Romulus, unpublished opinion per curiam of the
Court of Appeals, issued October 12, 1999 (Docket No. 206694), and City of Romulus v
Environmental Disposal Systems, Inc, unpublished opinion per curiam of the Court of Appeals,
issued October 15, 1999 (Docket No. 207850).
3
According to the DEQ, these wetlands did not exist when EDS first submitted its Part 111
permit application in January 1997, but had developed on the site by the time EDS resubmitted
its application in May 1999.
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Another reason for the SRB's recommendation was that wetlands existed on the site and EDS
had not obtained a permit to eliminate the wetlands.4 On June 9, 2000, the DEQ issued a Part
303 permit authorizing EDS to fill the wetlands on the Citrin Drive site for the purpose of
constructing the hazardous waste facility.
On December 8, 2000, the DEQ issued a "Fact Sheet" listing five reasons why it was
proposing to issue a Part 111 permit to EDS,5 and specifically addressing and rejecting each of
4
The SRB's other seven reasons for its recommendation to deny the permit were as follows:
First, the SRB found that the Citrin Drive site was an unsuitable and inappropriate location for
the proposed hazardous waste storage and treatment facility because: (a) the site contained only
one means of ingress and egress, which was insufficient to ensure adequate access for emergency
situations; (b) the proposed facility had an inadequate water supply and insufficient fire
suppression system that created an unacceptable risk of fire and explosion at the site; (c) EDS's
proposed truck route to the facility was unacceptable because it was along a roadway system that
was already overly congested and had unacceptable levels of service and EDS's trucks would
exacerbate the situation; and (d) the proposed facility was near the I-94 expressway and two
railways and posed an unacceptable risk of disrupting access to surrounding businesses and the
Detroit Metropolitan Airport in the event of an emergency. Second, the SRB found that the
community surrounding the site lacked adequate emergency response resources, and the facility
had the potential to overburden those limited resources. Third, the SRB found that the design of
the proposed facility created an unacceptable risk of the pollution of surface waters and
wetlands. Fourth, EDS failed to apply for approval of the facility under the Romulus
Environmental Ordinance, EDS failed to comply with the site plan and special use approval
requirements of the Romulus zoning ordinance, and the proposed facility did not comply with
other zoning ordinance requirements. Fifth, the SRB stated that there were additional factors
that led it to recommend denial of the Part 111 permit, such as the facility's negative effect on
property values, future quality development, and community image, and the fact that the
community was already overburdened by undesirable land uses. Sixth, the SRB noted that it had
several concerns regarding EDS: (a) there were a number of inconsistencies in statements,
representations, and information provided by EDS, and those inconsistencies caused the SRB to
question whether EDS should be entrusted with the responsibility of operating the proposed
facility, and (b) EDS employees lacked the experience and expertise to operate a liquid
hazardous waste management facility. Seventh, although EDS represented to the SRB that the
waste it would accept at the facility would consist of ninety to ninety-five percent water, there
was nothing in its application or elsewhere that would limit the waste EDS accepted to ninety to
ninety-five percent water. Without this limitation, the SRB believed that the proposed facility
might present unacceptable risks to public health and the environment.
5
The DEQ's five reasons for proposing to issue the permit to EDS were as follows:
I. The application submitted by EDS is sufficiently detailed for the DEQ
to evaluate the facility and its impact on human health and the environment.
(continued…)
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the SRB's reasons for recommending denial of the permit. The DEQ stated that the existence of
wetlands on the site was not a reason to deny the Part 111 permit because EDS had obtained a
Part 303 permit to fill the wetlands. The DEQ also stated that need for a facility is market-driven
and is determined by private industry, so lack of need was not a legitimate reason to deny the
Part 111 permit. The DEQ added that the hazardous waste facility proposed by EDS offered a
disposal method that varied from those available at the existing facilities in Southeast Michigan.6
(…continued)
II. The facility satisfies all of the technical design, construction, and
operating standards under Part 111, Hazardous Waste Management, of the
Natural Resources and Environmental Protection Act, 1994 PA 451, as amended
(Act 451).
III. EDS has obtained all other necessary federal and state environmental
permits necessary for construction of the facility.
IV. The disclosure statement does not contain any listings that could be a
reason to deny the construction permit.
V. Conditions in the construction permit will address the legitimate
reasons for denial that were enumerated by the Site Review Board (SRB).
6
The DEQ also found that the SRB's other reasons for recommending to deny the permit were
either illegitimate or could be mitigated by a special condition in the permit. First, the DEQ
addressed the SRB's finding that the Citrin Drive site was an unsuitable and inappropriate
location for the proposed hazardous waste storage and treatment facility. The DEQ found that
the lack of more than one access road to the site was a legitimate issue, but could be remedied by
adding a condition to the permit requiring EDS to provide an alternate emergency access road to
the site. The DEQ stated that the lack of adequate water to the site was also a legitimate issue,
but could be remedied by adding a condition to the permit requiring EDS to install a looped
water supply. The DEQ agreed that the facility could cause transportation congestion, but that
this situation could be remedied by adding conditions to the permit limiting the number of trucks
EDS used each day on the proposed route and requiring EDS to make roadway improvements.
The DEQ found that the proposed facility would not increase the risk of accidents involving
tanker trucks and that this was not a legitimate reason to deny the permit. Second, the DEQ
concluded that the community surrounding the site did not lack adequate emergency response
resources and the facility did not have the potential to overburden those resources, so this was
not a legitimate reason to deny the permit. Third, the DEQ stated that the risk of the pollution of
surface waters caused by the proposed facility could be remedied by adding a condition to the
permit prohibiting EDS from staging trucks on Citrin Drive. Fourth, the DEQ stated that the
SRB failed in its responsibility to justify and integrate specific local ordinances and requirements
into the EDS project, so the DEQ refused to integrate all of them into the Part 111 permit.
However, the DEQ stated that it would require as a condition of the permit EDS's compliance
with certain local requirements that would not alter the approved plans and specifications. Fifth,
the DEQ did not find any convincing evidence that the facility would negatively affect property
(continued…)
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On February 22, 2001, the DEQ issued the Part 111 permit to EDS, authorizing it to build the
facility. The DEQ also released a "Responsiveness Summary," in which the DEQ responded to
issues raised during a public comment period.
Petitioners appealed the DEQ's decision to issue the Part 111 permit to the circuit court,
and EDS intervened as a respondent. On August 24, 2001, the circuit court issued an opinion
and order affirming the DEQ's decision to issue the Part 111 permit.7 In September 2001,
Romulus and Taylor applied for leave to appeal the circuit court's decision that the DEQ
properly issued the Part 111 permit. Also in September 2001, EDS began the process of filling
the wetlands on the Citrin Drive site. By October 2001, the wetlands were filled and eliminated.
This Court subsequently granted Romulus and Taylor's application for leave to appeal.
II. Analysis
A. Standard of Review
This Court applies multiple standards of review in an appeal from a circuit court's review
of an administrative agency's decision. Great deference is accorded to the circuit court's review
(…continued)
values or have other adverse effects identified by the SRB, so these were not legitimate reasons
to deny the permit. Sixth, the DEQ stated that the SRB's perceived inconsistencies in EDS's
representations involved information that was not relevant to the potential effect the facility
would have on the environment or public health, safety, or welfare. Therefore, the DEQ
concluded that concerns regarding EDS's integrity was not a legitimate reason to deny the
permit. Seventh, the DEQ stated that the SRB erred in its understanding of the types of waste
that would be managed at the facility and that the proposed facility was capable of safely
managing the wastes authorized in the Part 111 permit and the wastes would not present an
unacceptable risk during transportation. The DEQ concluded that this was not a legitimate
reason to deny the permit.
7
The circuit court concluded that the DEQ did not violate Part 111 by issuing EDS a permit to
construct the facility on a location that contained wetlands, because EDS had previously
obtained a Part 303 permit to eliminate the wetlands. The circuit court further determined that
there was no statutory requirement that the DEQ consider need when deciding whether to issue a
Part 111 permit. The circuit court was satisfied that the DEQ discussed the SRB's determination
that there was no need for the facility, but the court stated that the DEQ was not required to
follow the SRB recommendations or consider need. The circuit court also determined that the
DEQ was not required to promulgate a rule regarding its "market-driven" approach to need,
because the DEQ's decision to exercise or not exercise a permissive power by statute is not
considered a rule under the Administrative Procedures Act (APA), MCL 24.201 et seq. The
court noted that the DEQ considered and rejected all the reasons given by the SRB for denying
the Part 111 permit and concluded that the DEQ's decision to issue the permit was lawful, was
supported by competent, material, and substantial evidence, and was not arbitrary or capricious.
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of the agency's factual findings. By contrast, substantially less deference, if any, is accorded to
the circuit court's determinations on matters of law.
1. Factual Findings
This Court's review is limited to determining whether the circuit court "misapprehended
or grossly misapplied" its review of the agency's factual findings. Boyd v Civil Service Comm,
220 Mich App 226, 234; 559 NW2d 342 (1996). The circuit court's review of the DEQ's factual
findings is limited to determining whether the decision was supported by competent, material,
and substantial evidence on the whole record, was arbitrary or capricious, or was clearly an
abuse of discretion. Const 1963, art 6, § 28; Dignan v Michigan Pub School Employees
Retirement Bd, 253 Mich App 571, 576; 659 NW2d 629 (2002).8 Evidence is competent,
material, and substantial if a reasoning mind would accept it as sufficient to support a
conclusion. Id. "Courts should accord due deference to administrative expertise and not invade
administrative fact finding by displacing an agency's choice between two reasonably differing
views." Id. To determine whether an agency's decision is "arbitrary," the circuit court must
determine if it is "'"[w]ithout adequate determining principle[,] . . . [f]ixed or arrived at through
an exercise of will or by caprice, without consideration or adjustment with reference to
principles, circumstances, or significance, . . . decisive but unreasoned."'" St Louis v Michigan
Underground Storage Tank Financial Assurance Policy Bd, 215 Mich App 69, 75; 544 NW2d
705 (1996), quoting Bundo v Walled Lake, 395 Mich 679, 703 n 17; 238 NW2d 154 (1976),
quoting United States v Carmack, 329 US 230, 243; 67 S Ct 252; 91 L Ed 209 (1946).
"Capricious" has been defined as: "'"[A]pt to change suddenly; freakish; whimsical;
humorsome."'" St Louis, supra at 75, quoting Bundo, supra at 703 n 17, quoting Carmack, supra
at 243.
2. Matters of Law
8
The DEQ and EDS argue that, because a formal evidentiary hearing with witnesses testifying
under oath is not required before the DEQ grants or denies a Part 111 permit application, review
of the DEQ's decision is limited to whether it was authorized by law. We agree that where the
administrative agency was not required to conduct an evidentiary hearing, review is limited to
determining whether the agency's actions were authorized by law. Northwestern Nat'l Cas Co v
Comm'r of Ins, 231 Mich App 483, 488; 586 NW2d 563 (1998). Here, however, the DEQ was
required to conduct an evidentiary hearing. Part 111 requires the SRB to "conduct formal or
informal hearings to receive evidence on disputed issues . . . ." MCL 324.11120(8) (emphasis
added). It is evident from this statutory language that the purpose of SRB hearings, whether
formal or informal, is to "receive evidence on disputed issues." Neither the DEQ nor EDS
provides any authority supporting the position that a formal hearing must be held to constitute an
"evidentiary hearing" under Const 1963, art 6, § 28. We conclude that both the SRB's formal
and informal hearings constitute an "evidentiary hearing" under Const 1963, art 6, § 28. Thus, in
this case the decision of the DEQ must be reviewed to determine whether it was supported by
competent, material, and substantial evidence.
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We must also determine "whether the lower court applied correct legal principles . . . ."
Boyd, supra at 234. The circuit court's review of an administrative agency's decision on a matter
of law is limited to determining whether the decision was authorized by law. Const 1963, art 6,
§ 28; Boyd, supra at 232. "[A]n agency's decision that 'is in violation of statute [or constitution],
in excess of the statutory authority or jurisdiction of the agency, made upon unlawful procedures
resulting in material prejudice, or is arbitrary and capricious,' is a decision that is not authorized
by law" and must be set aside. Northwestern Nat'l Cas Co v Comm'r of Ins, 231 Mich App 483,
488; 586 NW2d 563 (1998) (emphasis in original), quoting Brandon School Dist v Michigan Ed
Special Services Ass'n, 191 Mich App 257, 263; 477 NW2d 138 (1991).
Here, we are called upon to interpret statutes and administrative rules.9 As a general rule,
we review de novo the interpretation and application of unambiguous statutes and administrative
rules. Michigan Ed Ass'n Political Action Committee (MEAPAC) v Secretary of State, 241 Mich
App 432, 437; 616 NW2d 234 (2000). Principles of statutory interpretation apply to the
construction of administrative rules. Detroit Base Coalition for Human Rights of the
Handicapped v Dep't of Social Services, 431 Mich 172, 185; 428 NW2d 335 (1988). Thus, we
must ascertain and give effect to the intent of the drafter of the statute or administrative rule
under review. Collucci v McMillin, 256 Mich App 88, 94; 662 NW2d 87 (2003). We start by
reviewing the language of the administrative rule or statute. Id. If the language is unambiguous
on its face, the drafter is presumed to have intended the meaning plainly expressed and further
judicial interpretation is not permitted. Id.
Only where the language under review is ambiguous may a court properly go beyond the
words of the statute or administrative rule to ascertain the drafter's intent. Id. In this regard,
[a]n ambiguity of . . . language does not exist merely because a reviewing court
questions whether the [drafter] intended the consequences of the language under
review. An ambiguity can be found only where the language . . . as used in its
particular context has more than one common and accepted meaning. Thus,
where common words used in their ordinary fashion lead to one reasonable
interpretation, [the language] cannot be found ambiguous. [Id.]
Where a statute or administrative rule is ambiguous, this Court will generally defer to the
construction of the statute or administrative rule given by the agency charged with administering
it. Dignan, supra at 576. However, this deference does not mean that a reviewing court
abandons its ultimate responsibility to give meaning to statutes and administrative rules. LCI
Int'l Telecommunications Corp v Dep't of Commerce, 227 Mich App 196, 205; 574 NW2d 710
(1997). We will not defer to the administrative agency's interpretation of a rule where the
language of the rule is unambiguous, Koontz v Ameritech Services, Inc, 466 Mich 304, 323-324;
9
"A rule adopted by an agency in accordance with the Administrative Procedures Act, MCL
24.201 et seq., is a legislative rule that has the force and effect of law." Morley v General
Motors Corp, 252 Mich App 287, 290; 651 NW2d 808 (2002).
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645 NW2d 34 (2002), or we are convinced that agency's interpretation is "clearly wrong,"
MEAPAC, supra at 437.
B. The DEQ Did Not Violate Rule 603 By Issuing a Part 111 Permit to EDS
Petitioners argue that the circuit court improperly engaged in unauthorized rule-making
and effectively rewrote the language of Rule 603 when it affirmed the issuance to EDS of a Part
111 permit to construct a hazardous waste treatment facility in a wetland.10 Rule 603 provides,
in pertinent part, "(1) Active portions of new treatment, storage, or disposal facilities or
expansions, enlargements, or alterations of existing facilities shall not be located in any of the
following areas: . . . (f) In a wetland." Petitioners argue that, by issuing the Part 111 permit to
EDS on the basis of the fact that EDS had obtained a Part 303 permit to fill the wetlands, the
DEQ created an exception to Rule 603(1)(f) that did not exist. We disagree.
The Part 303 permit the DEQ issued to EDS gave EDS permission to "[p]lace fill
material in approximately 3.5 acres of wetland for the purpose of constructing buildings, roads,
truck marshalling areas, and a stormwater pond for a deep injection well facility." Petitioners do
not dispute that the Part 303 permit issued to EDS was valid and that EDS legally filled the
wetlands on the Citrin Drive site for the purpose of building the facility. That the Citrin Drive
site contained wetlands at the time the DEQ considered EDS's Part 111 application did not
preclude the DEQ under Rule 603(1)(f) from granting the Part 111 permit. Nothing in Rule 603
provides that a Part 111 permit cannot be granted when a wetland exists on the site—Rule 603
only provides that active portions of the facility may not be located in a wetland. Therefore, the
DEQ can issue a Part 111 permit when the wetlands on the site will be legally eliminated before
construction of the facility. The Part 111 permit was issued with the expectation that EDS would
10
Preliminarily, we address two issues. First, petitioners argue that the circuit court erred in
giving deference to the DEQ's interpretation of Part 111 and Rule 603. However, the circuit
court specifically stated in its opinion and order that it did not give any deference to the DEQ's
interpretation of Part 111. Therefore, petitioners' argument fails.
Second, EDS argues that this issue is moot because the wetlands on the Citrin Drive site
have been eliminated. An issue becomes moot where a subsequent event renders it impossible
for this Court to fashion a remedy. In re Contempt of Dudzinski, 257 Mich App 96, 112; 667
NW2d 68 (2003). The issue on appeal is not whether the DEQ properly granted EDS a Part 303
permit to fill the wetlands, but instead, whether the DEQ properly granted the Part 111
construction permit. Petitioners do not dispute that the DEQ properly granted the Part 303
permit or that EDS legally filled the wetlands. Instead, petitioners argue that the DEQ
improperly granted EDS a Part 111 permit because wetlands existed on the site at the time the
DEQ issued the Part 111 permit. EDS has not yet built the hazardous waste facility authorized
by the Part 111 permit. Thus, the issue whether the DEQ properly granted the Part 111
construction permit to EDS is not moot, despite the fact that EDS has eliminated the wetlands.
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first fill the wetlands as it was legally permitted to do pursuant to the Part 303 permit that it had
obtained for the sole purpose of constructing a hazardous waste facility.
Rule 603 must be read in conjunction with Part 303, which forbids filling, dredging,
draining, or constructing, operating, or maintaining any use or development in a wetland
"[e]xcept as otherwise provided by this part or by a permit obtained from the department under
sections 30306 to 30314 . . . ." MCL 324.30304. Where, as here, a Part 303 permit to lawfully
fill a wetland has issued, the plain language of Rule 603(1)(f) is not violated by the issuance of a
Part 111 permit. Once wetlands are filled, they no longer exist.11 Rule 603(1)(f) simply is not
violated where a Part 111 permit is issued for construction on land formerly designated as a
wetland.
Petitioners point to the fact that Rule 603 expressly enumerates certain exceptions, but
subsection 1(f) does not contain any exceptions.12 Petitioners argue that we ought not create an
exception to subsection 1(f) by judicial fiat. Rule 603(1)(f) unambiguously provides that a
treatment, storage, or disposal facility shall not be located in a wetland. Part 303 of the NREPA
allows the elimination of a wetland with a permit, MCL 324.30306. Because Part 111 and Part
303 are both statutes included within the NREPA, we assume that, when the rule-makers enacted
Rule 603, they were aware that a builder could obtain a permit to eliminate a wetland under Part
303. C.f. Walen v Dep't of Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993) ("It is a wellknown principle that the Legislature is presumed to be aware of, and thus to have considered the
effect on, all existing statutes when enacting new laws."). A Part 303 permit may authorize the
draining, dredging, and filling of a wetland for the purpose of constructing, operating, or
maintaining any use or development. There is nothing in Rule 603 that prohibits a treatment,
storage, or disposal facility from being located in an area that was formerly a wetland but is no
longer a wetland due to action taken in compliance with a Part 303 permit. In order to construe
the rule the way petitioners propose, Rule 603(1)(f) would have to read, "(1) Active portions of
new treatment, storage, or disposal facilities or expansions, enlargements, or alterations of
11
A wetland that has been filled or eliminated is no longer considered a "wetland" under the
Michigan Administrative Code. The rules implementing Part 111 define a wetland for hazardous
waste purposes as "the areas defined as wetlands in part 303 of the act [NREPA]." 1999 AC, R
299.9109(kk). Part 303 defines "wetland" as "land characterized by the presence of water at a
frequency and duration sufficient to support, and that under normal circumstances does support,
wetland vegetation or aquatic life, and is commonly referred to as a bog, swamp, or marsh . . . ."
MCL 324.30301(d). Once a wetland is filled or eliminated in compliance with a Part 303 permit,
it loses the characteristics of a wetland and is no longer a wetland.
12
For example, Rule 603(1)(d) provides that active portions of new treatment, storage, or
disposal facilities shall not be located over a sole-source aquifer "unless the director grants an
exemption to this provision based upon a demonstration by the applicant that the treatment,
storage, or disposal facility will be located, designed, constructed, and operated in a manner that
will prevent contamination of the aquifer." Similarly, Rule 603(4) provides that treatment,
storage, and disposal facilities shall not be located in a floodplain unless one of two delineated
exceptions is met.
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existing facilities shall not be located in any of the following areas: . . . (f) In a wetland, even if
the wetland is eliminated pursuant to a Part 303 permit." (Emphasis added.) Therefore, our
interpretation of Rule 603 does not judicially create an exception to subrule 1(f). Rather, our
interpretation of Rule 603(1)(f) is dictated by the unambiguous language of that subsection. The
fact that Rule 603(1)(f) does not contain any express exceptions simply does not preclude the
DEQ from issuing a Part 111 permit to build a hazardous waste facility in an area that was once a
wetland.
We also find unpersuasive petitioners' argument that, by interpreting Rule 603 to allow
the DEQ to issue a Part 111 permit in this case, the circuit court violated the doctrine of
expressio unius est exclusio alterius. Under that doctrine, an express mention of one thing in a
statute generally implies the exclusion of similar things that were not mentioned in the statute.
Houghton Lake Area Tourism & Convention Bureau v Wood, 255 Mich App 127, 151; 662
NW2d 758 (2003). "The omission of a provision in one part of a statute, which is included
elsewhere in the statute, should be construed as intentional." Cherry Growers, Inc v Michigan
Processing Apple Growers, Inc, 240 Mich App 153, 170; 610 NW2d 613 (2000). Petitioners
compare and contrast Rule 603 with 1999 AC, R 299.4416 (Rule 416), which governs the DEQ's
issuance of permits to construct type II landfills under the NREPA. Rule 416 provides, in
pertinent part, "A new type II landfill unit and a lateral extension of an existing unit shall not be
located in wetlands, unless the owner and operator can demonstrate all of the following to the
director: (a) The owner or operator has obtained a permit under part 303 of the act . . . ."
Petitioners argue that, because Rule 416 expressly lists a wetland permit as part of an exception
to when a type II landfill may be located in a wetland, but Rule 603(1)(f) does not list any
exceptions to when a treatment, storage, or disposal facility may be located in a wetland, the
acquisition of a Part 303 permit does not excuse a builder from the prohibition in Rule 603(1)(f)
against locating a treatment, storage, or disposal facility in a wetland.
Because Rule 416 lists a Part 303 permit as part of an exception to when a person may
locate a type II landfill unit in a wetland, and Part 603(1)(f) lists no such exception, we must
assume that the rule-makers intended to omit such an exception in Rule 603(1)(f). Stated
differently, Rule 416 provides the DEQ with discretion to allow construction of a type II landfill
unit in a wetland. By contrast, Rule 603 does not provide the DEQ with discretion to allow
construction of a hazardous waste treatment, storage, or disposal facility in a wetland. We
nonetheless conclude that Rule 603 does not prohibit construction on land formerly classified as
a wetland.
Part 303 grants the DEQ the authority to permit a myriad of different activities, some of
which authorize construction that would not alter the wetland. The fact that the DEQ issues a
Part 303 permit does not necessarily mean that the wetland will be filled and will no longer exist.
If, for instance, the DEQ had issued a Part 303 permit to EDS to build a facility at the site, but
the permit did not authorize EDS to fill the wetlands, the DEQ would be precluded from issuing
EDS a Part 111 permit to build the hazardous waste treatment facility because the proposed
facility would still be in a wetland. A builder with a similar Part 303 permit would not be
precluded from building a type II landfill unit in a wetland under Rule 416.
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In this case, the Part 303 permit the DEQ issued to EDS allowed it to place fill material
in the wetlands for the purpose of building the facility. Where the DEQ issues a Part 303 permit
to fill and eliminate wetlands, the DEQ may also issue a Part 111 permit or allow an owner or
operator to build a facility on land previously designated a wetland without violating Rule
603(1)(f). Simply put, the area that was once a wetland is no longer considered a wetland and,
consequently, Rule 603(1)(f) does not apply. So, construing Rule 603(1)(f) to allow the DEQ to
issue a Part 111 permit where EDS obtained a Part 303 permit to fill the wetlands does not, in
light of the language of Rule 416, violate the doctrine of expressio unius est exclusio alterius.
The circuit court correctly concluded that Rule 603(1)(f) did not prohibit the DEQ from issuing a
Part 111 permit in this case.
C. The DEQ Was Not Required to Consider Need for the Facility
1. Part 111 Did Not Require the DEQ to Consider Need Before
Issuing a Part 111 Permit
Petitioners maintain that Part 111 required the DEQ to consider Michigan's need for a
hazardous waste facility before issuing the Part 111 permit. Petitioners cite several sections of
Part 111 in support of their argument. Addressing each of these sections in turn, we conclude
that Part 111 did not require the DEQ to consider need for a facility before issuing a Part 111
permit.13
a. MCL 324.11107
MCL 324.11107 sets forth the purpose and methods of hazardous waste management
under Part 111:
The department[14] and the board[15], in the conduct of their duties as
prescribed under this part, shall assist in encouraging, developing, and
13
Petitioners argue that the Legislature's intent to require the DEQ to consider whether Michigan
had an overcapacity of hazardous waste facilities in issuing a Part 111 permit is apparent from
the legislative history (specifically, the Senate Fiscal Agency Bill Analysis, SB 403-405, 413,
November 17, 1987) of Part 111. However, because the language of Part 111 is unambiguous
and clearly establishes that the DEQ is not required to consider need, we cannot resort to
legislative history. In re Certified Question from the United States Court of Appeals for the Sixth
Circuit, 468 Mich 109, 116; 659 NW2d 597 (2003).
14
Under the NREPA, the "department" is defined as "the director of the department of natural
resources or his or her designee to whom the director delegates a power or duty by written
instrument."
MCL 324.301(b).
However, Executive Order No. 1995-18 transferred
environmental regulatory programs from the Department of Natural Resources to the newly
created DEQ.
15
Part 111 defines the "board" as a site review board. MCL 324.11102(1).
-11-
implementing methods of hazardous waste management that are environmentally
sound, that maximize the utilization of valuable resources, and that encourage
resource conservation, including source separation, recycling, and waste
reduction, and that are consistent with the plan to be provided by the department
of public health pursuant to section 12103(d) of the public health code, Act No.
368 of the Public Acts of 1978, being section 333.12103 of the Michigan
Compiled Laws. In addition, the director, the department, and the board, in the
conduct of their duties as prescribed by this part, shall assist in implementing the
policy of this state to minimize the placement of untreated hazardous waste in
disposal facilities.
This section of Part 111 merely outlines in general terms the DEQ's goals in fulfilling its duties.
We therefore reject petitioners' claim that this statute imposes on the DEQ an obligation to
consider whether a hazardous waste facility is needed before issuing a Part 111 permit.
b. MCL 324.11110
MCL 324.11110 required the DEQ to update the Hazardous Waste Management Plan for
Michigan (the original plan), which was adopted by the Natural Resources Commission in 1982.
MCL 324.11110(1), MCL 324.11110(2)(a). Petitioners cite MCL 324.11110(2),16 MCL
324.11110(3)(c),17 and MCL 324.11110(4)18 in support of their argument that the DEQ must
16
MCL 324.11110 provides, in pertinent part:
(2) The updated plan shall:
* * *
(b) Be based upon location of generators, health and safety, economics of
transporting, type of waste, and existing treatment, storage, or disposal facilities.
(c) Include information generated by the department of commerce and the
department on hazardous waste capacity needs in the state.
* * *
(f) Plan for a reasonable geographic distribution of treatment, storage, and
disposal facilities to meet existing and future needs, including proposing criteria
for determining acceptable locations for these facilities. The criteria shall include
a consideration of a location's geology, geography, demography, waste generation
patterns, along with environmental factors, public health factors, and other
relevant characteristics as determined by the department.
17
MCL 324.11110(3) provides, in pertinent part:
(continued…)
-12-
consider need in making its decision whether to issue a Part 111 permit to build a hazardous
waste facility. However, nothing in MCL 324.11110 requires the DEQ to consider need as a
prerequisite to the issuance of a Part 111 permit. MCL 324.11110 simply requires the DEQ to
consider need in terms of undercapacity in preparing the updated plan. MCL 324.11110 relates
only to the preparation of the updated plan, and not to the DEQ's permitting decisions.
Petitioners' reliance on MCL 324.11110 is therefore misplaced.
c. MCL 324.11115
MCL 324.11115 provides, in pertinent part, "After the updated plan is adopted, the
department shall not issue a permit or license under this part for a treatment, storage, or disposal
facility until the department has made a determination that the action is consistent with the
updated plan." Petitioners argue that the updated plan required the DEQ to consider need in
determining whether to allow another hazardous waste facility and that the DEQ's failure to
consider need in issuing the Part 111 permit to EDS was inconsistent with the goal of the
updated plan. We disagree.19
The updated plan sets forth its overriding policy recommendations as follows:
(…continued)
The department shall instruct the office of waste reduction created in part
143 to complete studies as considered necessary for the completion of the updated
plan. These studies may include:
* * *
(c) A projection or determination of future hazardous waste management
needs based on an evaluation of existing capacities, treatment or disposal
capabilities, manufacturing activity, limitations, and constraints. Projection of
needs shall consider the types and sizes of treatment, storage, or disposal
facilities, general locations within the state, management control systems, and an
identified need for a state owned treatment, storage, or disposal facility.
18
MCL 324.11110(4) provides:
If the department finds in preparing the updated plan that there is a need
for additional treatment or disposal facilities in the state, then the department shall
identify incentives the state could offer that would encourage the construction and
operation of additional treatment or disposal facilities in the state that are
consistent with the updated plan. The department shall propose criteria which
could be used in evaluating applicants for the incentives.
19
As stated above, statutory mandates to consider need relate only to the preparation of the
updated plan and do not apply to permitting decisions.
-13-
The major overriding policy recommendation in the Plan is to support the
existing designated hierarchy for waste management practices, which is intended
to best reduce risks to human health and the environment. Source reduction of
hazardous waste should remain the preferred alternative, followed in descending
order by: reuse, closed-loop, on-site, and off-site recycling; treatment, including
incineration; and land disposal.
A second overriding policy recommendation in the Plan is the
recommendation that the Department of Natural Resources (DNR) adopt a
statewide policy goal of 50 percent reduction in hazardous wastes released to all
media within five years of adoption of this Plan. This goal is not to be applied to
individual companies or industry sectors.
The Plan supports the current state policy position that Michigan should
rely upon private enterprise, rather than state government, to develop necessary
hazardous waste management facilities and to propose environmentally and
economically sound sites, as regulated by the DNR.
Nothing in the updated plan's expressed overriding policy recommendations supports petitioners'
claim that the DEQ must consider whether there exists a need for a hazardous waste facility
before issuing a Part 111 permit.
Instead, the updated plan establishes a policy of ensuring that there will be adequate
hazardous waste management capacity to meet the needs of Michigan. Under the section entitled
"Policies to Assure Adequate Hazardous Waste Management Capacity," the updated plan states:
Michigan policy should support the general goal of achieving and
maintaining sufficient hazardous waste management capacity (at a variety of
types of facilities) within the state to meet the needs of Michigan generators,
without precluding the interstate transport of imports and exports. When feasible,
this capacity should be located at multiple sites to provide stability in site
availability.
The drafters of the updated plan clearly wanted to ensure that Michigan would not lack
necessary hazardous waste facilities. Nothing in the updated plan implies that one of its goals is
to avoid an overcapacity of facilities. In fact, the updated plan specifically reaffirms the original
policy position that Michigan should rely on private enterprise to develop necessary hazardous
waste management facilities and to propose environmentally and economically sound sites.20
20
The original plan provided that "the determination of facility location should remain the
responsibility of the facility proposer" because, among other reasons, "[e]conomic conditions,
based upon the location of generators and existing disposal facilities, and economic outlook for
the particular industry to be served, will determine where facilities are needed and will create a
reasonable distribution of sites."
-14-
Although the updated plan states that the private enterprises should be regulated by the DNR,
this does not imply that Michigan ought to preclude private enterprise from making its own
determination regarding need for a facility.
Allowing private enterprise to determine whether there is need for new hazardous waste
facilities is not contrary to the updated plan's goal of reducing risks to human health and the
environment. New facilities can bring new treatment, storage, and disposal technologies to the
state that are cheaper, more efficient, and better for the environment than older technologies.
Facilities with this new technology would compete with older facilities and could force older
facilities to update their methods or close down. Disallowing new facilities because there is a
perceived "overcapacity" of facilities could stifle competition and allow facilities with older, less
environmentally friendly technology to remain.
Petitioners also argue that the DEQ's policy of following the market-driven approach to
need is inconsistent with the updated plan's policy of waste reduction. However, there is nothing
in the updated plan stating that the policy of waste reduction is met by requiring private
enterprises to show undercapacity before obtaining a permit to build a new facility. We
conclude that the updated plan does not require the DEQ to determine whether Michigan has an
overcapacity of hazardous waste facilities.
d. MCL 324.11120
Next, petitioners argue that the DEQ was required to consider need in issuing a Part 111
permit to EDS, because MCL 324.11120(13)21 required the SRB to consider the concerns and
objections submitted by the public, which in this case included the claim that there was no need
for this facility.22 Here, because the public objected that the proposed facility was not needed
because Michigan has ample hazardous waste treatment facilities, the SRB was required to
consider the public's concern relating to whether the facility proposed by EDS was needed. The
21
MCL 324.11120(13) provides:
The board also shall consider the concerns and objections submitted by
the public. The board shall facilitate efforts to provide that the concerns and
objections are mitigated by establishing additional stipulations specifically
applicable to the treatment, storage, or disposal facility and operation at that site.
Through deliberations, the board may modify the construction permit application
in response to its findings. To the fullest extent practicable, the board also shall
integrate by stipulation the provisions of the local ordinances, permits, or
requirements.
22
MCL 324.11120(12) lists factors that the SRB must consider before making a
recommendation to the DEQ whether it should issue a Part 111 permit. Petitioners quote this
statute, but do not argue that any of the factors listed in this section of the statute require the
SRB to consider need.
-15-
SRB fulfilled this obligation and, in fact, found merit to this public concern. The SRB
recommended that the DEQ deny the Part 111 permit to EDS, in part because the facility was not
needed. Despite the fact that MCL 324.11120 required the SRB to consider need in this case, it
does not similarly require the DEQ to consider the concerns of the public in making its
permitting decisions.23 Thus, the DEQ's act of following the market-driven approach to need
was not inconsistent with the MCL 324.11120(13) requirement that the SRB consider the
concerns of the public, which included need in this case. Furthermore, although the SRB found
merit to the public's concern that there was not need for the facility, there is nothing in MCL
324.11120 requiring the DEQ to accept the SRB's recommendations regarding the public's
concerns.
2. Other NREPA Statutes Did Not Require the DEQ to Consider
Need in Issuing a Part 111 Permit
Petitioners also argue that the Legislature's intent to require the DEQ to consider whether
Michigan had an overcapacity of hazardous waste facilities in issuing a Part 111 permit is
apparent from other statutes concerning pollution and waste reduction. Petitioners first cite
MCL 324.14302 and MCL 324.14303 from Part 143 (waste minimization) of the Pollution
Prevention chapter of the NREPA. MCL 324.14302 requires the DEQ to incorporate pollution
prevention goals within its permit programs.24 MCL 324.14303 requires the DEQ to take several
delineated actions to encourage pollution prevention.25 These statutes do not mention need and
do not imply that the DEQ should consider need whenever granting any type of permit.
23
In fact, the DEQ did address the public's argument that the Part 111 permit should not be
issued to EDS because the facility was not needed. The DEQ explained in its Responsiveness
Summary that the evidence that the facility was not needed was faulty and that, in any event, the
DEQ was not required to consider need for the facility, but instead followed a market-based
approach to need.
24
MCL 324.14302 provides:
(1) The department shall incorporate pollution prevention goals within its
regulatory and permit programs, including data collection and analysis to advance
the concept and implementation of pollution prevention.
(2) The department shall employ personnel and provide support staff as
are necessary to implement this part.
25
MCL 324.14303 provides:
(1) The department shall do all of the following:
(a) Identify opportunities to encourage pollution prevention through the
department's regulatory programs.
(continued…)
-16-
Petitioners also cite MCL 324.14501 et seq., which is Part 145 (waste reduction
assistance) of the Pollution Prevention chapter of the NREPA. In general, this part of the
NREPA requires the department to "inform, assist, educate, and provide funding . . . to persons
to facilitate a reduction in the amount of environmental waste generated in the state." MCL
324.14502(1). Again, this part of the NREPA does not mention need and does not imply that the
DEQ should consider need whenever granting any type of permit.
D. The DEQ Was Not Required to Promulgate a Rule Adopting its Market
Driven Approach to Need
Petitioners initially argue that the DEQ's failure to promulgate any rules to implement the
updated plan requires reversal of the DEQ's decision to issue a Part 111 permit to EDS.26
(…continued)
(b) Identify opportunities to encourage pollution prevention through the
department's permit programs.
(c) Identify how pollution prevention efforts should be documented in
environmental impact statements.
(d) Analyze and make recommendations on the value of imposing
statewide goals or goals for particular environmental wastes, or both, for pollution
prevention, minimum recycling standards, and environmental waste treatment
standards.
(e) Publish an annual analysis of pollution prevention efforts and
potentials in the state.
(2) In performing its responsibilities under subsection (1), the department
shall place a particular emphasis on in-plant pollution prevention.
(3) Consistent with the congressional declaration in section 1003(b) of
subtitle A of the solid waste disposal act, title II of Public Law 89-272, 42 U.S.C.
6902, that it is the national policy of the United States that, wherever feasible,
hazardous waste is to be reduced or eliminated as expeditiously as possible, the
department shall place a particular emphasis on the prevention of an
environmental waste that is a hazardous waste as defined in section 11103.
26
MCL 324.11114 provides: "Not more than 180 days after the final adoption of the updated
plan, the department shall submit to the legislature proposed rules to implement the updated plan
created in section 11110." Apart from a rule regarding the DEQ's market-driven approach to
need, petitioners do not specify any DEQ policy that was used in issuing the Part 111 permit to
EDS that should have been promulgated as a rule. We will not invalidate the DEQ's entire
permitting process and the permits the DEQ issued under that process, including EDS's Part 111
permit, on the basis of alleged unspecified unpromulgated policies the DEQ follows in deciding
whether to issue Part 111 permits.
-17-
Petitioners further argue that the DEQ's market-driven approach to need constitutes a "rule,"
because it is a fundamental policy that prescribes the DEQ's procedures and practice regarding
the permitting, location, number, and need for hazardous waste facilities in Michigan. Whether
an agency's policy is invalid because it was not promulgated pursuant to the procedures of the
APA is a question of law subject to de novo review. Faircloth v Family Independence Agency,
232 Mich App 391, 401; 591 NW2d 314 (1998).
"[A]n administrative agency cannot rely upon a guideline or unpromulgated policies in
lieu of rules promulgated under the APA." Dep't of Natural Resources v Bayshore Assoc, Inc,
210 Mich App 71, 85-86; 533 NW2d 593 (1995). The APA requires administrative agencies to
follow certain specified procedures for promulgating rules, including the requirements of notice
and a hearing. MCL 24.241.
"The APA requires an agency to give notice of proposed rules or rule
changes, to hold a public hearing, and to submit the proposed rule or rule changes
to the Legislature's Joint Committee on Administrative Rules for review and
approval." AFSCME v Dep't of Mental Health, 452 Mich 1, 9 n 8; 550 NW2d 190
(1996). An agency's failure to follow this process renders the rule invalid.
[Faircloth, supra at 402.]
In American Federation of State, Co & Municipal Employees (AFSCME) v Dep't of
Mental Health, 452 Mich 1, 8; 550 NW2d 190 (1996), the Supreme Court, quoting MCL 24.207,
set forth what constitutes a "rule" that must be promulgated pursuant to the APA:
[A] "rule" is: (1) "an agency regulation, statement, standard, policy,
ruling, or instruction of general applicability," (2) "that implements or applies law
enforced or administered by the agency, or that prescribes the organization,
procedure, or practice of the agency . . . ."
However, a "rule" does not include, inter alia, "[a] decision by an agency to exercise or not to
exercise a permissive statutory power, although private rights or interests are affected." MCL
24.207(j).
We conclude that the DEQ's market-driven approach to need does not constitute a "rule"
under MCL 24.207(j). As discussed previously in Section II(C) of this opinion, the DEQ is not
required to consider need for a hazardous waste facility before issuing a Part 111 permit to build
such a facility. Further, in issuing the Part 111 permit to EDS, the DEQ's action was consistent
with the updated plan's express policy that Michigan should rely on private enterprise to propose
and develop hazardous waste facilities. As stated by the DEQ, its market-driven approach to
need is merely a way of indicating that it will not affirmatively consider whether there is a need
for a hazardous waste facility in deciding whether to issue a Part 111 permit. We agree with the
circuit court that not every action or nonaction by the DEQ requires an administrative rule to be
promulgated before the DEQ can act. Logically, an agency cannot be required to promulgate a
rule regarding everything that it will not consider before issuing a permit. If this were the case,
an agency would never be able to take any action.
-18-
Under MCL 24.207(j), "[a] decision by an agency to exercise or not to exercise a
permissive statutory power, although private rights or interests are affected," is not considered a
"rule" that must be promulgated under the APA's procedural requirements. Because Part 111
does not require the DEQ to develop standards for its Part 111 permit decisions or to consider
need for a particular facility when making its Part 111 permitting decisions, the DEQ's decision
not to consider need is a decision not to exercise a permissive statutory power. Thus, the DEQ's
market-driven approach to need is not a "rule" under MCL 24.207(j).27 The circuit court
correctly determined that the DEQ properly issued the Part 111 permit to EDS, even though the
DEQ did not promulgate a rule that it would not consider need for a facility when making its Part
111 permitting decisions.
E. The DEQ's Decision to Issue the Part 111 Permit to EDS was Supported by
Competent, Material, and Substantial Evidence
Petitioners argue that the circuit court erred in failing to make its own review of the
record to determine whether the DEQ's decision to issue the Part 111 permit to EDS was
supported by competent, material, and substantial evidence. Petitioners argue that the circuit
court improperly relied on the DEQ's Fact Sheet and Responsiveness Summary instead of
reviewing the whole record in reaching its decision to issue the Part 111 permit to EDS. In
reviewing an administrative agency's decision for competent, material, and substantial evidence,
the circuit court must consider "the whole record—that is, both sides of the record—not just
those portions of the record supporting the findings of the administrative agency." Michigan
Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223
NW2d 283 (1974). Here, the circuit court concluded that it could not "disregard [the DEQ's] fact
sheet and summary, which is supported by material, substantial and competent evidence."
Petitioners argue, on the basis of this statement, that the circuit court failed to review both sides
of the record. We disagree.
There is nothing in the circuit court's statement implying that it only relied on the DEQ's
Fact Sheet and Responsiveness Summary in reaching its decision. Rather, the circuit court's
statement implies that it went beyond the DEQ's Fact Sheet and Responsiveness Summary and
reviewed all the other evidence before reaching a determination that the conclusions and
statements in the DEQ's Fact Sheet and Responsiveness Summary were supported by this other
evidence. Furthermore, the circuit court merely stated that it "cannot disregard" the DEQ's Fact
Sheet and Responsiveness Summary. The circuit court was correct that it could not disregard the
DEQ's Fact Sheet and Responsiveness Summary, just as it could not disregard the other
approximately 34,000 pages of documents, because these documents were part of the
administrative record. Petitioners offer no other support for their claim that the circuit court
ignored evidence supporting their position. There is no indication that the circuit court
27
As in Michigan Trucking Ass'n v Public Service Comm (On Remand), 225 Mich App 424, 430;
571 NW2d 734 (1997), this conclusion is buttressed by the fact that Part 111 does not expressly
require the DEQ to promulgate permit standards before implementation.
-19-
"'misapprehended or grossly misapplied the substantial evidence test to the agency's factual
findings.'" Dignan, supra at 575, quoting Boyd, supra at 234.
Next, petitioners argue that the circuit court clearly erred in determining that the DEQ's
decision to issue the Part 111 permit was supported by competent, material, and substantial
evidence on the whole record. Petitioners argue that the DEQ gave the SRB recommendation, at
most, a cursory and superficial review, and disregarded the SRB recommendation without any
support on the record. Petitioners contend that it was the SRB's recommendation to deny EDS's
application for the Part 111 permit that was supported by the evidence.
There is no indication that the circuit court grossly misapplied the substantial evidence
test in reviewing the DEQ's decision to issue the Part 111 permit to EDS. The circuit court
considered the evidence in the administrative record and concluded that the DEQ's findings in
the Fact Sheet and Responsiveness Summary were supported by the evidence. The circuit court
correctly concluded that the record evidence supported the DEQ's findings. Petitioners do not
explain which sections of the DEQ's Fact Sheet and Responsiveness Summary are not supported
by the evidence or are erroneous, and do not point to any evidence to refute the findings made by
the DEQ. In the absence of a more specific allegation of error, we conclude that the circuit court
did not clearly err in determining that the DEQ's decision to issue the Part 111 permit to EDS
was supported by competent, material, and substantial evidence.
Petitioners also argue that the circuit court erred in affirming the DEQ's decision to issue
a Part 111 permit to EDS because, even under the DEQ's market-driven approach to need, there
was not substantial, competent, and material evidence that the market would support another
hazardous waste facility. We disagree. As previously stated, it is up to private enterprise, not
the DEQ, to assess the market by looking at the locations of existing facilities, competition,
economic trends, available technology, and more, and then take the initiative to develop new
facilities. It is the permit applicant who takes the economic risk and assesses whether there is a
viable market for the proposed facility. A permit applicant simply does not need to show that the
market will support a new hazardous waste facility.
F. The DEQ's Decision to Issue the Part 111 Permit to EDS was Not Arbitrary or
Capricious
Petitioners argue that the DEQ acted arbitrarily and capriciously in issuing the Part 111
permit because it had previously concluded that Rule 603(1)(f) precluded it from issuing a Part
111 permit to EDS due to the existence of wetlands on the Citrin Drive site. We find no merit to
petitioners' claim. Several internal e-mails exchanged between DEQ employees discussed
whether Rule 603 precluded the issuance of a Part 111 permit to EDS to build a hazardous waste
facility on the Citrin Drive site due to the existence of wetlands. The authors of these e-mails
reach no definitive conclusion regarding the issue, but merely acknowledge the possibility that,
because wetlands exist on the site, it might be argued that Part 111 prohibits the DEQ from
issuing a construction permit to EDS even if EDS were to obtain a Part 303 permit to fill the
wetlands. These e-mails are merely part of informal discussions among DEQ employees and are
not official agency conclusions. These internal e-mails do not demonstrate that the DEQ
officially concluded that it lacked the authority to issue a Part 111 permit to EDS. There is no
-20-
support for petitioners' argument that the DEQ secretly concluded that it could not legally issue a
Part 111 permit to EDS, but did so in any event, in contravention of this conclusion.
Petitioners also argue that the DEQ's decision to issue the Part 111 permit to EDS was
arbitrary and capricious because, despite the fact that the DEQ internally recognized the validity
of the SRB's reasons for recommending to deny the permit, the DEQ later publicly denied the
legitimacy of those reasons when issuing the Part 111 permit to EDS. In support of their
argument, petitioners point to an internal DEQ briefing paper submitted by Steven R. Sliver, an
Environmental Engineer Specialist for the Waste Management Division of the DEQ, regarding
EDS's application for the Part 111 permit. In this briefing paper, Sliver stated, "Most of the
concerns raised by the SRB in its recommendation for denial are valid, and can be the basis for
the Department to either deny the permit or to issue the permit with special conditions that
mitigate the SRB's concerns." At the end of the paper, Sliver recommended that the DEQ take
the following action:
The draft decision for the construction permit should await the decision on
the wetland permit. If the wetlands permit is denied, then the construction permit
must be denied, too. Construction in a wetlands is prohibited by Part 111 of Act
451.
If the wetlands permit is issued, then the Department must decide whether
to issue or deny the construction permit for the Citrin Drive site. The permit can
be issued with special conditions that eliminate or minimize the legitimate
adverse impacts identified by the SRB.
This briefing paper does not demonstrate that the DEQ internally agreed with the SRB's
recommendation that EDS's Part 111 permit application should be denied. In fact, the DEQ
briefing paper only shows that Sliver found that some of the SRB's recommendations had merit,
but could be eliminated or mitigated through special permit conditions. When the DEQ later
issued the Part 111 permit to EDS, it followed Sliver's recommendations. The DEQ waited for
EDS to acquire a Part 303 permit and then issued a Part 111 permit to EDS, which contained
special conditions intended to eliminate or minimize the legitimate adverse effects identified by
the SRB. Therefore, we find no merit in petitioners' contention that the DEQ's issuance of the
permit was contrary to a finding that the SRB's reasons for recommending to deny the permit
were valid.
III. Conclusion
We conclude that the circuit court did not err in affirming the DEQ's decision to issue a
Part 111 permit to EDS because: (1) the DEQ did not violate Rule 603 by issuing the Part 111
permit to EDS; (2) the DEQ was not required to consider whether there was a need in Michigan
for an additional hazardous waste facility when issuing the Part 111 permit to EDS; (3) the DEQ
was not required under the APA to promulgate a rule establishing that it would not consider
whether Michigan needed an additional hazardous waste facility when issuing a Part 111 permit
to construct such a facility; and (4) the DEQ's decision to issue a Part 111 permit to EDS was
supported by competent, material, and substantial evidence and was not arbitrary or capricious.
-21-
Affirmed.
/s/ Brian K. Zahra
/s/ Michael J. Talbot
/s/ Donald S. Owens
-22-
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