(Source: MIRS.news, Published 06/27/2024) The state's Department of Environment, Great Lakes and Energy (EGLE) would have more rule-making authority over regulating pollution in Michigan's surface and underground waters, under legislation approved by Senate Democrats on Wednesday, revoking a piece of statute dating back to the early 2000’s. 

"Michigan is the heart of the most extraordinary and valuable freshwater system in the world, a magnificent natural blessing that defines and informs the state's character, values and geography," said Sen. Sue Shink (D-Ann Arbor) about her SB 663 on Wednesday. "With passage of SB 663, EGLE will be able to update its rules on contaminant chemicals, spill mitigation plans and make rules about safe storage of potential contaminants to our waterways." 

In 2005, Michigan's Natural Resources and Environmental Protection Act was changed to bar the state's environmental department from promulgating certain new rules after 2006 that dealt with controlling pollution in surface and underground waters. 

However, the statute did provide some exemptions for rules created to comply with the federal water pollution control act, concerning how the biological and physical integrity of water can be maintained and restored, like through outlawing the discharge of various pollutants and toxic materials.

SB 663 was one of more than 30 bills the Senate voted on during third reading on Wednesday, which was a lengthy session period beginning at 10 a.m. and finally ending around 4:58 a.m. the next day. 

The chamber voted on a $59 billion state government budget for Fiscal Year (FY) 2025 and an $18.5 billion PreK-12 spending plan, which reduced the state, traditional school districts and school employees' contribution obligations to the public school employees' retirement system and its unpaid liabilities by an estimated $775 million altogether. 

The Senate made voting on Shink's SB 663 one of its priorities before adjourning until July 30, which is 33 days away. Similar legislation in the House, HB 5205 by Rep. Emily E. Dievendorf (D-Lansing), continues to sit in the House Natural Resources, Environment, Tourism and Outdoor Recreation Committee. 

In particular, the statute language that SB 663 would remove deals with Part 31 of the Natural Resources and Environmental Protection Act. Part 31 itself involves dissolved toxic chemicals – or Bioaccumulative Chemicals of Concern (BCCs) – that aquatic organisms can absorb, as well as algae blooms. 

Part 31 additionally addresses the storage of oil, salts and other flammable or corrosive materials in order to prevent them from being released into water. It sets up mandates for reporting accidental releases, and for the surveillance of such storage operations.

However, due to EGLE not being allowed to promulgate new Part 31 rules, department officials claim that they cannot update the list of pollutants or risky materials that should fall under Part 31's oversight. 

For example, in February, EGLE Director Phil Roos said for spill prevention and notification requirements for salt, oil and other polluting materials, a table became effective in August 2001 affiliated with what falls under Part 31 regulation. 

But Roos said the table has not been updated since, meaning that liquid materials with potentially high-strength concentrations of emerging pollutants – like PFAS synthetic chemicals that have been linked to liver and immune system damage – cannot make their way onto the table.

"Therefore, (they) do not trigger the need to develop pollution incident prevention plans, and therefore do not trigger the need to develop these plans, provide secondary containment, surveillance or report the notification of release of these materials," Roos said. "We'd like the opportunity to work with a stakeholder group, like Michigan manufacturing associations and others, to update these rules in a transparent manner." 

He said the department just wants to be able to do "what we do with all our other statutes" to establish Part 31 rule-making authority. 

"And it would be done with a stakeholder group, in a transparent way, and through the (Legislature's Joint Committee on Administrative Rules process), you would know (each) of these when the draft rules are established. You could always interject at those points too," Roos said, explaining how EGLE won't have unchallenged power under SB 663. "I think the statues are typically done by the Legislature. Administrative rules are typically implemented by the departments." 

Roos spoke to the Senate Energy and Environment Committee in February. 

However, SB 663 was opposed by the National Federation of Independent Business in Michigan, which submitted a letter to the Senate panel stating it was opposed to any legislation further eroding the Legislature's rightful power. 

"(SB 663) would allow unelected civil servants, who have no accountability to voters, to have the unfettered ability to promulgate rules, which essentially serve as statute," said NFIB's Michigan Assistant State Director Tim Langholz. "Our small businesses are already struggling due to government pandemic restrictions, inflation, supply chain issues, energy costs, labor availability, and constantly changing labor and tax policies. Adding further regulatory burdens that have little oversight from the Legislature only adds to those hardships." 

During Wednesday's Senate session, Sen. Ed McBroom (R-Waucedah Twp.) asked who in the chamber seriously believed that the department is lacking in power. 

"Who here went door-to-door and said in their district, 'I can't wait to get to Lansing and give the departments and the bureaucracy of this state more power over your daily life?' What farmer has come out to the lobby or stopped into your office and said 'could you please ask (the department of environmental quality) to do more regulations?'" McBroom said. "This is one of the biggest problems that we've created with the administrative state, is the unlimited license within a law to create new rules." 

He said he would strongly recommend legislators consider creating mandatory sunsets on departments' rule-making authority, because while legislators are present for a time being to supervise the law changes they approved, "but what ends up happening is 40 to 50 years go by, and suddenly we're still producing rules based on a law from long ago."