The application and review process for a permit from the Michigan Department of Environment, Great Lakes, and Energy (“EGLE”) can be very time consuming and burdensome. As discussed in a previous blog, if a permit is initially denied the applicant can seek review of that decision through EGLE’s contested case process. If, after the contested case hearing, the denial is upheld the applicant is entitled to petition for review of the final decision.
This process begins on the day the contested case final decision is entered. The party seeking review has twenty-one (21) days to seek review of the decision by submitting a “Petition for Review of a Final Decision of a Contested Case.” This petition is submitted to the EGLE Director and the party must also file a notice to the hearings officer. Failure to file the petition within the 21-day window results in the final decision from the contested case proceeding becoming the final agency action. It therefore can no longer be reviewed by EGLE.
If the petition is filed within the 21-day window, the Director has 45 days to convene a Contested Case Review Panel. Each panel consists of three members of the Environmental Permit Review Commission. They are selected based on how relevant their individual expertise and experience is to the issues presented in the permit. Additionally, no individual will be appointed to the panel if they were previously involved with any dispute regarding the permit under review.
After their appointment to the panel, the members select a chairperson. Then they review the record developed in the contested case process. Their review is limited to the official record established by the Administrative Law Judge (“ALJ”) in the contested case proceeding. This typically includes the original petition, supporting documents, and the final decision. After the panel members are appointed, they are forbidden from communicating with any person or party concerning the factual or legal issues of the appeal.
Upon the completion of their review the panel may adopt, remand, modify or reverse, in whole or in part, the final decision of the ALJ. This means the panel may choose to keep some of the ALJ’s findings intact and reverse other parts; adopt the findings of the ALJ in full; or find the exact opposite of the ALJ on all issues. The panel will issue its findings in a final decision and this decision becomes the final decision and order of EGLE concerning the permit. The final decision must be in writing and clearly define the legal and technical principles being applied to resolve the appeal. As a final order the panel’s final decision is appealable in court under the Administrative Procedures Act, this will be discussed next week.
The attorneys at Dalton & Tomich, PLC are highly experienced in all aspects of land use, riparian rights and administrative law, and are here to help guide you through any and all legal complexities to help achieve your goals.
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