The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


COUNTIES:

ENVIRONMENTAL PROTECTION:

PREEMPTION:

Local government's authority to adopt air pollution control ordinances



A township, city, village or charter county when authorized by its charter may adopt air pollution control ordinances, provided that such ordinances are reasonably related to public health, safety and welfare and are no less stringent than corresponding requirements of federal and state air pollution control laws. Noncharter counties may not adopt air pollution control ordinances.

A township, city, village or charter county air pollution control ordinance (a) may regulate the construction or operation of a municipal solid waste incinerator if the local ordinance is part of or consistent with an approved county solid waste management plan; and (b) may prohibit the construction or operation of any other combustion source, including a wood-fired power plant, provided that the ordinance is reasonably related to public health, safety, or welfare and does not contravene state or federal law.

The Department of Environmental Quality may not deny a permit to install an air emission source pursuant to Part 55 of the Natural Resources and Environmental Protection Act, on the ground that the proposed activity fails to comply with local zoning ordinances.


Opinion No. 6992

August 13, 1998


Honorable Allen Lowe
State Representative
The Capitol
Lansing, MI

Honorable John F. Freeman
State Representative
The Capitol
Lansing, MI

You have asked several related questions regarding local and state regulation of air pollution.

Your first question asks whether a township, city, village, or county may adopt an air pollution control ordinance and, if so, what are the limits on such local government authority.

The Legislature has authorized various local units of government to adopt ordinances protecting the public health, safety, and welfare. OAG, 1995-1996, No 6898, p 158, (May 1, 1996), summarized the grant of such authority to townships, cities, and villages as follows:

Municipalities are granted authority by the Legislature to adopt ordinances for health, safety, and general welfare. For townships, the authority is set forth in MCL 41.181; MSA 5.45(1), which authorizes ordinances "regulating the public health, safety, and general welfare of persons and property." For cities, the authority is set forth in the city's charter which includes provisions for the "public peace and health and for the safety of persons and property" and for "adopting . . . city ordinances" as required by section 3(j) and (k) of the Home Rule City Act, MCL 117.3(j) and (k); MSA 5.2073(j) and (k). In general law villages, the village council may "adopt . . . ordinances . . . for the safety . . . and the general welfare of its inhabitants." MCL 67.1(z); MSA 5.1285(z). For villages with their own charters, known as home rule villages, the authority of the village governing body to adopt ordinances is set forth in the charter which is to have provisions for "public peace and health, and for the safety of persons and property." MCL 78.23(f) and (i); MSA 5.1533(f) and (i).

The referenced statutes authorize townships, cities, and villages to adopt ordinances regulating air pollution to the extent such ordinances are reasonably related to the protection of public health, safety, or general welfare and are not contrary to state or federal law and applicable constitutional requirements. See generally, Natural Aggregates Corp v Brighton Twp, 213 Mich App 287, 294-298; 539 NW2d 761 (1995), lv den 452 Mich 879; 552 NW2d 178 (1996), and OAG, 1969-1970, No 4696, pp 197, 198-199 (November 25, 1970).

Counties and other local units of government have only such powers as are granted them by law. Mosier v Wayne County Bd of Auditors, 295 Mich 27, 29; 294 NW 85 (1940); Hanslovsky v Leland Twp, 281 Mich 652; 275 NW 720 (1937). The Legislature has specifically authorized charter counties to perform, when authorized by charter, the "abatement of air and water pollution," MCL 45.515(c); MSA 5.302(15)(c), and the adoption of ordinances necessary to carry out that function. MCL 45.514(1)(i); MSA 5.302(14)(1)(i). There is no similar enabling provision, however, for noncharter counties. Noncharter counties possess only the authority to adopt ordinances pursuant to MCL 46.11; MSA 5.331, which provides, in relevant part, as follows:

A county board of commissioners, at a lawfully held meeting, may do 1 or more of the following:

***


(m) By majority vote of the members of the county board of commissioners elected and serving, pass ordinances that relate to county affairs and do not contravene the general laws of this state or interfere with the local affairs of a township, city, or village within the limits of the county. . . .

MCL 46.11(m); MSA 5.331(m) (emphasis added).

A county's power to pass ordinances under this provision is restricted to purely county affairs. OAG, 1928-1930, p 477 (July 13, 1929); 1 OAG 1957, No 2973, p 168 (April 12, 1957). Charter counties are expressly authorized to adopt ordinances to abate air and water pollution. MCL 45.514 and 45.515; MSA 5.302(14) and 5.302(15). The Legislature, however, has not seen fit to grant this power to noncharter counties. A noncharter county is thus not authorized to adopt an air pollution ordinance. OAG, 1969-1970, No 4696, p 197, 200 (November 25, 1970).

The next question is whether the powers granted these local units of government have been preempted by state or federal law. Congress or the Legislature may by statute preempt a field of regulation by express provision, by implication, by the pervasiveness of the legislative action taken, or by the nature of the regulated subject to achieve uniformity to the exclusion of local ordinances in the same field of legislation. People v Llewellyn, 401 Mich 314, 322-324; 257 NW2d 902 (1977), cert den 435 US 1008; 98 S Ct 1879; 56 L Ed 2d 390 (1978). Both the federal government, in the Clean Air Act, 42 USC 7401 et seq, and the State of Michigan, in Part 55 of the National Resources and Environmental Protection Act (NREPA), 1994 PA 451, MCL 324.5501 et seq; MSA 13A.5501 et seq, have enacted comprehensive air pollution control statutes. Accordingly, it is necessary to consider the possible preemptive effect of those statutes on local air pollution control ordinances.

Section 116 of the Clean Air Act, 42 USC 7416, provides:

Except as otherwise provided in sections 1857c-10(c), (e), and (f) (as in effect before August 7, 1977), 7543, 7545(c)(4), and 7573 of this title (preempting certain State regulation of moving sources) nothing in this Act shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitation respecting emissions of air pollutants or (2) any requirement respecting control or abatement of air pollution; except that if an emission standard or limitation is in effect under an applicable implementation plan or under section 7411 or section 7412 of this title, such State or political subdivision may not adopt or enforce any emission standard or limitation which is less stringent than the standard or limitation under such plan or section.

(emphasis added).

This statute generally preserves the right of the state and of local governmental units to adopt air pollution control regulations. It preempts local air pollution regulation only if it is less stringent than emission standards or limitations established under the Clean Air Act.

Similarly, section 5542(1) of the NREPA, supra, provides:

(1) Nothing in this part or in any rule promulgated under this part invalidates any existing ordinance or regulation having requirements equal to or greater than the minimum applicable requirements of this part or prevents any political subdivision from adopting similar provisions if their requirements are equal to or greater than the minimum applicable requirements of this part.

MCL 324.5542(1); MSA 13A.5542(1) (emphasis added).

Thus, federal and state air pollution control laws preempt local air pollution ordinances only to the extent that such ordinances are less stringent than corresponding federal and state requirements.

It is my opinion, therefore, in answer to your first question, that a township, city, village, or charter county, when authorized by its charter, may adopt air pollution control ordinances, provided that such ordinances are reasonably related to public health, safety, and welfare and are no less stringent than corresponding requirements of federal and state air pollution control laws. It is my further opinion that noncharter counties may not adopt air pollution control ordinances.

Your second question asks whether a township, city, village, or charter county air pollution control ordinance may regulate the construction or operation of a municipal solid waste incinerator, wood-fired power plant, or other combustion source.

At the outset, it must be noted that the NREPA was enacted to recodify, inter alia, certain environment and natural resources acts to "put existing laws into a more usable and logical form, while making no substantive change to them." Senate Legislative Analysis, SB 257, July 19, 1994. Included in these recodifications were the Air Pollution Act, 1965 PA 348, and the Solid Waste Management Act, 1978 PA 641. In responding to your second question, it is necessary to consider at least two parts of the NREPA: Part 55, supra, which regulates air pollution, and Part 115, MCL 324.11501 et seq; MSA 13A.11501 et seq, which regulates solid waste management. In each instance, the relevant inquiry is whether state law, through the NREPA, either preempts local regulation or establishes minimum standards for local regulation.

First, as is noted above, although Part 55 of the NREPA does not preempt local air pollution control ordinances generally, the requirements of such local ordinances must be equal to or greater than the minimum applicable requirements of Part 55. Section 5542(1).

With respect to municipal solid waste incinerators, Part 55 establishes minimum siting requirements for certain facilities. Specifically, section 5502 of the NREPA prohibits the Michigan Department of Environmental Quality from issuing a permit to install or operate a municipal solid waste incinerator unless the incinerator is located at least 1,000 feet from residences, schools, preschool facilities, hospitals, and nursing homes. These state restrictions, however, do not apply to municipal solid waste incinerators that existed prior to June 15, 1993, or to the modification of incinerators that existed on that date. Section 5502(2).

Part 115 of the NREPA comprehensively regulates the management of solid waste. Among other things, it regulates the operation of solid waste disposal areas, which include solid waste incinerators. Section 11503(4)(b). In addition, Part 115 requires the development and state approval of solid waste management plans for each county. Sections 11533-11539a. Such plans must identify specific sites for solid waste disposal areas. Section 11538(2).

In order to ensure the integrity and effectiveness of the solid waste management planning process, Part 115 expressly preempts any local ordinance which prohibits or regulates the location of a solid waste disposal area and which is not part of, or consistent with, the approved county solid waste management plan:

Following approval by the director of a county solid waste management plan and after July 1, 1981, an ordinance, law, rule, regulation, policy, or practice of a municipality, county, or governmental authority created by statute, which prohibits or regulates the location or development of a solid waste disposal area, and which is not part of or not consistent with the approved solid waste management plan for the county, shall be considered in conflict with this part and shall not be enforceable.

MCL 324.11538(8); MSA 13A.11538(8).

In Southeastern Oakland County Resource Recovery Authority v City of Madison Heights, 5 F3d 166 (CA 6, 1993), the court held that section 11538(8)1 preempted a local ordinance regulating the location of air pollution emission sources and solid waste incinerators because the ordinance was not consistent with the approved county solid waste management plan. Noting that state air pollution control laws, now codified as section 5542(1) of the NREPA, did not preempt local air pollution control ordinances, the court held that the more specific solid waste management provisions, now codified as section 11538(8) of the NREPA, controlled and preempted the local regulation. Id. at 170. Thus, a local unit of government may not adopt an air pollution control ordinance prohibiting the construction or operation of a municipal solid waste incinerator unless the ordinance is part of, or consistent with, the approved county solid waste management plan.

Part 115 of the NREPA does not, however, expressly preempt local regulation of facilities burning waste materials that are excluded from the Part 115 definition of solid waste, because such wastes are separately regulated by other statutes. As defined in the NREPA, the term "solid waste" does not include "other wastes regulated by statute." MCL 324.11506(1)(l); MSA 13A.11506(1)(l).

The administrative rules implementing the above definition specify that, among other things, certain wastes that are regulated pursuant to the provisions of the former Air Pollution Act, 1965 PA 348, now recodified as Part 55 of the NREPA, are exempt from regulation as solid wastes under Part 115. 1993 AACS, R 299.4110 states in relevant part:

As provided by section 7 of the act [now MCL 324.11506(1)(e) and (l); MSA 13A.11506(1)(e) and (l)], the following wastes are "other wastes regulated by statute" and are exempt from regulation as solid wastes under the act [Part 115 of the NREPA]:

***


(j) The following waste that is regulated pursuant to the provisions of act 348 [now Part 55 of the NREPA]:

***


(iv) Waste that is burned as fuel in a boiler, industrial furnace, or power plant which is permitted pursuant to the provisions of act 348, to burn the waste as fuel.

Similarly, the administrative rules implementing Part 115 of the NREPA exclude "[b]oilers, industrial furnaces, or power plants that burn waste as fuel" from the definition of "incinerator." 1993 AACS, R 299.4103(m)(ii).2

Consequently, a boiler, industrial furnace, or power plant which is permitted under Part 55 of the NREPA to burn waste as fuel is not subject to regulation under Part 115 of the NREPA. Thus, section 11538(8) does not preempt local air pollution control ordinances prohibiting the construction or operation of such combustion sources on locations not part of or consistent with the approved county solid waste management plan.

It is my opinion, therefore, in answer to your second question, that a township, city, village, or charter county air pollution control ordinance: (a) may regulate the construction or operation of a municipal solid waste incinerator if the local ordinance is part of or consistent with an approved county solid waste management plan; and (b) may prohibit the construction or operation of any other combustion source, including a wood-fired power plant, provided that the ordinance is reasonably related to public health, safety, or welfare and does not otherwise contravene state or federal law.

Your third question asks whether the Department of Environmental Quality (DEQ) may deny a permit to install an air emission source pursuant to Part 55 of the NREPA on the ground that the proposed activity fails to comply with local zoning ordinances.

Subject to certain exceptions, a person seeking to install or modify a process or process equipment that emits or may emit an air contaminant regulated under Part 55 of the NREPA must obtain an installation permit from the DEQ. Section 5505. Section 5510, which specifies the grounds upon which the DEQ may deny or revoke such a permit, provides as follows:

In accordance with this part and rules promulgated under this part, the department may, after notice and opportunity for public hearing, deny or revoke a permit issued under this part if any of the following circumstances exist:

(a) Installation, modification, or operation of the source will violate this part, rules promulgated under this part, or the clean air act, unless the source is in compliance with a legally enforceable schedule of compliance contained in a permit or order.

(b) Installation, construction, reconstruction, relocation, alteration, or operation of the source presents or may present an imminent and substantial endangerment to human health, safety or welfare, or the environment.

(c) The person applying for the permit makes a false representation or provides false information during the permit review process.

(d) The source has not been installed, constructed, reconstructed, relocated, altered, or operated in a manner consistent with the application for a permit or as specified in a permit.

(e) The person owning or operating the source fails to pay an air quality fee assessed under this part.

(f) The person proposes a major offset source or the owner or operator of a proposed major offset modification that owns or operates another source in the state that has the potential to emit 100 tons or more per year of any air contaminant regulated under the clean air act and that source is in violation of this part, rules promulgated under this part, the clean air act, or a permit or order issued under this part, unless the source is in compliance with a legally enforceable schedule of compliance contained in a permit or order.

MCL 324.5510; MSA 13A.5510.

Rule 207 of the administrative rules promulgated under the former Air Pollution Act, 1965 PA 348, now recodified as Part 55 of the NREPA, further specifies the grounds for denial by the DEQ of permits to install as follows:

(1) The commission shall deny an application for a permit to install if, in the judgment of the commission, any of the following conditions exist:

(a) The equipment for which the permit is sought will not operate in compliance with the rules of the commission or state law.

(b) Operation of the equipment for which the permit is sought will interfere with the attainment or maintenance of the air quality standard for any air contaminant.

(c) The equipment for which the permit is sought will violate the provisions of the clean air act, as amended, 42 U.S.C. � 7401 et seq., and particularly the rules promulgated on and before September 1, 1978, in standards of performance for new stationary sources, 40 C.F.R. � 60.1 to � 60.275 (July 1, 1978), and national emission standards for hazardous air pollutants, 40 C.F.R. � 61.01 to � 61.55 (July 1, 1978).

(d) Sufficient information has not been submitted by the applicant to enable the commission to make reasonable judgments as required by subdivisions (a) to (c).

(e) Adequate requested information for preparation of an environmental impact statement is not submitted.

(f) A satisfactory plan for reduction of emissions during air pollution alerts, warnings, and emergencies, as required by R 336.1203, is not submitted.

1980 AACS, R 336.1207.3

Neither the last-quoted statute nor administrative rule provides for the DEQ's denial of a permit to install on the ground that the proposed activity fails to comply with local ordinances. Moreover, no other provision of Part 55 of the NREPA or the Part 55 administrative rules requires or authorizes the DEQ to deny such a permit based upon noncompliance with local zoning ordinances.

It is my opinion, therefore, in answer to your third question, that the Department of Environmental Quality may not deny a permit to install an air emission source pursuant to Part 55 of the Natural Resources and Environmental Protection Act on the ground that the proposed activity fails to comply with local zoning ordinances.

Your fourth and final question asks whether a change in the fuel burned in a wood-fired power plant from virgin wood products to hardboard and creosote-treated wood constitutes a change "'in a process or process equipment which [does] not . . . involve any meaningful change in the quality or nature, of any meaningful increase in the quantity of the emission of an air contaminant therefrom," and a "change in the supplier or formulation of similar raw materials, fuels, or paints and other coatings'" within the meaning of R 336.1285(b) of the Part 55 rules, 1995 AACS, R 336.1285(b), and, therefore, does not require an installation permit. While there are obvious differences between virgin wood products as compared to hardboard and creosote-treated wood, the answer to your fourth question requires evaluation of specific and technical fact issues. Such issues may include, for example, comparison of the types, quantities, and relative health risks of the specific air contaminants emitted by burning the various fuels in question at a particular facility. This question, therefore, involves the application of an administrative rule to specific facts and presents primarily factual rather than legal issues. The role of the Attorney General is to issue opinions on questions of law, not fact. MCL 14.32; MSA 3.185; Michigan Beer & Wine Wholesalers Ass'n v Attorney General, 142 Mich App 294, 300; 370 NW2d 328 (1985), cert den 479 US 939; 107 S Ct 420; 93 L Ed 2d 371 (1986). Accordingly, as to your fourth question, I must respectfully decline to provide the opinion you have requested.



FRANK J. KELLEY
Attorney General


1 Section 11538(8), MCL 324.11538(8); MSA 13A.11538(8), was formerly MCL 299.430(4); MSA 13.29(30)(4).

2 Although these rules were promulgated under 1978 PA 641 and recodified without change in the NREPA, the rules continue in effect until the department or agency determines it is advisable to change them. MCL 324.105; MSA 13A.105.

3 The commission referred to in this rule is the former Air Pollution Control Commission. All powers and duties of the former commission were transferred to the DEQ pursuant to Executive Order 1995-18.