Advocacy News – Feb. 23, 2023
The MI Chamber recently filed a joint amicus curiae brief questioning whether the Michigan Department of Environment, Great Lakes and Energy (EGLE) exceeded its authority in an air permitting matter. The outcome of this litigation could have far reaching consequences for businesses throughout the state.
The brief supports Ajax Materials Corporation and the Michigan-based road construction company’s pending litigation against EGLE. The litigation concerns a small source air permit to install (PTI) process by which legal experts attest is well beyond the bounds of the Department’s authority.
While EGLE ultimately did approve the permit, it did so after rescinding an initial approval and placing new, excessive contingencies that were not necessary for the company to comply with air permit rules and emissions standards. The caveats were added later in the process and after EGLE took public comments and held several public hearings with community stakeholders, despite Ajax stating the restrictions were unworkable and cost prohibitive. Of particular focus was EGLE deciding to disallow the use of recycled used oil (ROU), a common practice for industrial operations that utilizes a cost-effective fuel that would otherwise end up in landfills.
The Michigan Chamber is deeply concerned about EGLE’s ongoing, egregious ad hoc approach to the air permitting process, particularly for small source air permits which are typically more routine in nature. If allowed to continue unabated, this precedent will likely cause employers to think twice before investing capital into Michigan facilities, choosing instead to put those resources elsewhere and where there are clear, fair and consistent standards. This EGLE practice also could erode economic development efforts focused on bringing manufacturing jobs to the state.
The brief, drafted by the Honigman law firm, summarizes the issue like this: “Moreover, Mich. Admin. Code r. 336.1201(3) restricts EGLE to imposing in a PTI only those conditions that are ‘reasonably necessary to assure compliance with all applicable requirements.” … “EGLE has… exceeded its authority by substituting its own judgment for that of the permit applicant, Ajax, as to what fuels and modes of operation are ‘fundamental’ to the project.”
For more information, or to share a permitting issue, please contact Mike Alaimo at malaimo@michamber.com