SUBJECT: Part 55, Air Pollution Control of the Natural Resources and Environmental Protection Act (NREPA), 1994 PA 451, as amended.

Petition of Joseph E. and Mary M. Appelt, et al., on the permit issued to Woodland Paving

File No. 990-90

at a session of the Department of Environmental Quality held at Lansing, Michigan, on August 14, 1996, Richard G. Lacasse, Administrative Law Judge, Presiding

On May 15, 1996, a Petition for Contested Case Hearing was filed in the above-captioned matter by Joseph E. and Mary M. Appelt, et al. The Petitioners then filed an Emergency Motion for Summary Disposition, Summary Suspension of Permit, or, in the alternative, a Stay of Permit Conditions Pending the Outcome of a Contested Case with this Office on June 3, 1996. Petitioners assert the Permittee, Woodland Paving Company, is in violation of Rule 901 of the Michigan Air Pollution Control Commission Rules. 1980 AACS, R 336.1901.

The Department of Environmental Quality (Department) filed a Motion to Dismiss the Petition for a Contested Case Hearing with this Office on June 19, 1996. In its motion the Department raises the issue of standing. The Department contends 1) the Petitioners do not have standing to request a contested case, 2) only the Department may initiate proceedings to summarily suspend a permit, and 3) the allegations concerning Woodland's violation of Rule 901 of NREPA have no basis. The Department requests this Tribunal deny the Petitioners' Motion for license suspension and dismiss their Petition For a Contested Case Hearing.

The Petitioners filed a Response to the Department's motion with this Office on July 1, 1996. In their Response they assert they do have standing under the "General Appellate Rights and Public Access to Government" provisions of NREPA, MCL 324.1101; MSA 13A.1101, and request this Tribunal deny the Department's Motion to Dismiss and grant their motion for suspension of the permit.

The Permittee, Woodland Paving Company, filed a Motion for Intervention and a Reply to the Petitioners' Motion for Emergency Suspension, inter alia. The Permittee states a right to intervene is manifest, because of its interest in the outcome of the proceedings and the fact that it is its permit which is the focus of this matter. In its Reply to Petitioners' Motion, the Permittee adopts and essentially reiterates the Department's arguments presented in its Response to Petitioners' Motion.

This Tribunal, sua sponte, first considers the issue of its subject-matter jurisdiction to hear this case.

WHETHER THIS TRIBUNAL HAS SUBJECT-MATTER JURISDICTION UNDER PART 11 OR PART 55 OF THE NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION ACT, WHEN A THIRD PARTY PETITIONS THE DEPARTMENT FOR A CONTESTED CASE HEARING.

This Tribunal, sua sponte, raises the issue of subject-matter jurisdiction. Subject-matter jurisdiction is a threshold question and is relevant in this case. The issue of standing has been raised by the Parties, however, the issues of subject-matter jurisdiction and standing are not the same. AFSCME v Mental Health Dept, 206 Mich App 382, 386; 522 NW2d 657 (1994). In Michigan, it is clear agencies have only those powers given to them by statute. In Re Quality of Service Standard, 204 Mich App 607; 516 NW2d 142 (1994). This Tribunal must find express authority in the relevant statute in order to lawfully proceed "because doubtful power does not exist". Id @ 611. (Citation omitted).

Part 55, §5506(14) is the relevant statutory language to be examined. MCL 324.5506(14); MSA 13A.5506(14). The primary focus to be used in finding the meaning of a statutory provision is determining legislative intent. Witherspoon v Guilford, 203 Mich App 240; 511 NW2d 720 (1994). Where a statute is clear and unambiguous, there is no room for judicial interpretation and the plain meaning of the language expresses legislative intent. Regents of the University of Michigan v Washtenaw County Coalition against Apartheid, 97 Mich App 532; 296 NW2d 94 (1980). When reading §5506(14), it plainly states the contested case procedure is available to an owner or operator of an existing source.

A person who owns or operates an existing source that is required to obtain an operating permit under this section, a general permit, or a permit to operate authorized under rules promulgated under section 5505(6) may file a petition with the department for review of the denial of his or her application for such a permit, the revision of any emissions limitation, standard, or condition, or a proposed revocation of his or her permit. This review shall be conducted pursuant to the contested case and judicial review procedures of the administrative procedures act . . . .

(Emphasis added).

The section goes on to clearly address the rights of any person, other than the owner or operator, who wishes to appeal the issuance or denial of an operating permit.

Any person may appear the issuance or denial of an operating permit in accordance with section 631 of the revised judicature act of 1961, Act No. 236 of the Public Acts of 1961, being sections 600.631 of the Michigan Compiled Laws. A petition for judicial review is the exclusive means of obtaining judicial review of a permit and shall be filed within 90 days after the final permit action . . . .

(Emphasis added).

It is clear that under Part 55 of NREPA, this Tribunal's subject-matter jurisdiction is limited to petitions filed by owners or operators. It is also clear that all other persons must seek redress in the Circuit Court pursuant to §631 of the Revised Judicature Act, PA 236 of 1961; MCL 600.631 et seq; MSA 27A.631 et seq.

The question presented is whether §1101(1) of NREPA confers additional or broader subject-matter jurisdiction on this Tribunal. MCL 324.1101(1); MSA 13A.1101(1). Part 11, §1101(1), states, in pertinent part:

If a person has legal standing to challenge a final decision of the department under this act regarding the issuance, denial, suspension, revocation, annulment, withdrawal, recall, cancellation, or amendment of a permit or operating license, the commission, upon request of that person, shall review the decision and make the final agency decision.

Part 11 of NREPA arguably introduces an ambiguity regarding this Tribunal's jurisdiction, in that if it is read broadly, Part 11 may confer broader subject-matter jurisdiction on this Tribunal than does the specific language of Part 55. When an ambiguity exists, a statue is to be read in its entirety and, if possible, all sections of the statue are to be harmonized to create a consistent whole. Michigan Audubon Society v Dept of Natural Resources, 206 Mich App 1; 520 NW2d 353(1994). When harmonizing ambiguities in a statute, all the words of the statute must be given meaning and none shall not be rendered nugatory. Syntex Labs v Treasury Dept, 188 Mich App 383; 470 NW2d 665 (1991). To read the general language of §1101(1) as conferring jurisdiction on this Tribunal to provide a contested case to any person with standing would render the specific language of §5506(14), regarding an owner or operator, nugatory. Section 5506(14) clearly limits this Tribunals' subject matter jurisdiction to a timely petition filed by an owner or operator. The specific jurisdictional language of Section 5506(14) would have no meaning, as would be the case with language in other Parts of the NREPA which specifically provide this Tribunal with subject matter jurisdiction, if §1101(1) was construed to confer broader jurisdiction on this Tribunal.

Another rule of statutory construction which is applicable when legislative intent may not be clear is that specific statutory language will control over general language. Capps v Michigan Department of Social Services, 115 Mich App 10; 320 NW2d 272 (1982). Part 55, §5506(14), specifically grants to an owner or operator of an existing source the right to an administrative appeal when challenging an agency decision. This section also specifically addresses the rights of other persons challenging a licensing decision. To read Part 11 as conferring jurisdiction on this Tribunal, in third party challenges to a permit, would be in contradiction to the specific language in Part 55 and any other part of NREPA which provides specifically for a contested case hearing. Therefore, reading §1101(1) broadly would allow a general provision to control the more specific language found in §5506(14), in contradiction of a well settled rule of statutory construction.

I conclude, as a Matter of Law, §5506(14) of NREPA is clear and unambiguous regarding the subject matter jurisdiction of this Tribunal. I conclude §1101(1) of NREPA does not confer subject matter jurisdiction upon this Tribunal in addition to that provided in Part 55. I conclude, as a Matter of Law, this Tribunal does not have subject-matter jurisdiction over this case. Furthermore, given the premise that agencies must have specific statutory authority to act, it is clear the Legislature did not intend the language of §1101(1) of NREPA to provide this Tribunal with such broad subject matter jurisdiction as argued by the Petitioners. Therefore, this Tribunal will not consider §1101(1) to imply a grant of jurisdiction. Because this Tribunal lacks subject-matter jurisdiction over this matter, the other issues raised by the Parties will not be addressed.

THEREFORE, IT IS ORDERED, this Tribunal, sua sponte, DISMISSES this case with prejudice for lack of subject matter jurisdiction.

Dated: August 20, 1996 __________________________________

Richard G. Lacasse

Acting Chief Administrative Law Judge

c: John V. Byl, Warner, Norcross & Judd, LLP, 900 Old Kent Bldg., 111 Lyon Street, N.W., Grand Rapids, MI 49503-2489

Thomas H. Keating, Jenkins & Keating, 2301 West Big Beaver Road, Suite 22, Troy, MI 48084-3325

Todd B. Adams, Assistant Attorney General, Natural Resources Division, P.O. Box 30028, Lansing, MI 48909