856 N.W.2d 394
Mich. Ct. App.2014Background
- Kennecott submitted in February 2006 for a nonferrous mining permit and a groundwater discharge permit; DEQ consolidated for hearings.
- December 2007, DEQ issued mining and groundwater permits to Kennecott.
- Appellants sought contested case hearings due to concerns about mine collapse and acid rock drainage effects on Salmon Trout River.
- ALJ proposal for decision adopted with minor adjustments by the final decision-maker; DEQ affirmed the permits.
- Circuit Court affirmed; this Court granted leave to appeal; issues center on scope of Part 31 permit and evidentiary procedures.
- This appeal concerns whether the contested case proceedings extend the initial permit decision and whether additional discharges within the mine require Part 31 permits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of contested case: extension vs appellate review | Appellants urge it is appellate review with limited new evidence | DEQ/Defendants treat contested case as extension of original application | Contested case is an extension of the application process; new evidence appropriate |
| Part 31 permit scope for in-mine discharges | Discharges inside the mine (utility water, backfill, reflood) require Part 31 consideration | Those activities are exempt or governed by other permits; not required under the Part 31 permit at issue | ALJ's reasoning adopted; in-mine discharges not required to be covered by this Part 31 permit |
| Burden of proof for exemptions to permit requirements | Appellants argue misallocation of burden; exemptions must be proven not apply | Kennecott bears burden to prove exemptions; appellants prove otherwise | Burden properly allocated; any error harmless as law issue |
| Adequacy of design and predictions for wastewater treatment | Design/state of completion and predicted influent/effluent uncertain | Record shows sufficient basis of design and BTPT adequacy; substantial evidence supports findings | Design and predictions satisfy Part 31 rules; BTPT demonstrated; evidence sufficient |
Key Cases Cited
- Northwestern Nat’l Cas Co v Comm’r of Ins, 231 Mich App 483 (1998) (standard of review for agency decisions; substantial evidence)
- Boyd v Civil Serv Comm, 220 Mich App 226 (1996) (substantial evidence vs clearly erroneous standard)
- In re Complaint of Rovas, 482 Mich 90 (2008) (de novo review for statutory interpretation by tribunal)
- Aaronson v Lindsay & Hauer Int’l Ltd, 235 Mich App 259 (1999) (review of administrative rule interpretations)
- In re Med Doctor Provider Class Plan, 203 Mich App 707 (1994) (contested case with unusual appellate process)
- Sierra Club Mackinac Chapter v Dep’t of Environmental Quality, 277 Mich App 531 (2008) (distinguishable from public participation concerns in permitting)