The Natural Resources & Environmental Protection Act (NREPA); Enforcement; The offer-to-meet provision in MCL 324.1511(1)(b); Whether failing to meet MCL 324.1511’s requirements necessitates dismissal; Leave to amend the complaint; Department of Environment, Great Lakes, & Energy (EGLE); Concentrated animal feeding operation (CAFO); National Pollutant Discharge Elimination System (NPDES)

Noting that it had not yet addressed MCL 324.1511, the court held that before initiating “an action under MCL 324.1511(1), [defendant-]EGLE must provide notice and the opportunity to meet, based on the factual allegations set forth in the complaint.” It further concluded the trial court abused its discretion in denying “EGLE’s request to amend its complaint to excise the portions that did not comply with” the statute. Thus, while the trial court did not err in granting defendant (a CAFO) summary disposition, it abused its discretion as to leave to amend. The case arose from defendant’s alleged noncompliance with the general NPDES permit. On appeal, EGLE argued the trial court erred in determining “the offer-to-meet provision in MCL 324.1511(1)(b) required EGLE to continue to extend offers to meet after each violation notice issued despite extending previous offers to meet.” The court disagreed. It found that the “plain language of Subsection 1511(1) sets out two mandatory conditions precedent to initiating a civil enforcement action . . . . Subdivisions (a) and (b) respectively contain a notice provision and an offer-to-meet provision.” The court concluded “the statute directs EGLE to discuss the possibility of litigation and all of the issues that would comprise the contemplated litigation with the permitee. This necessarily requires that EGLE extend an offer to meet each time it issues a new violation notice if it wants to include those facts in future litigation.” EGLE asserted this interpretation created “a continuous violation or ‘repeat offender’ loophole because it requires EGLE to provide notice and an offer to meet for each new alleged violation it observes.” But the court saw “no such loophole in the statutory language.” It also rejected EGLE’s argument that failing to meet MCL 324.1511’s requirements “does not require dismissal of the case because the statute does not list any consequence for noncompliance.” It found that this argument ignored the statute’s plain language. As to leave to amend, because “the trial court did not specify its reasons for denying leave to amend, reversal is required unless the amendment would be futile.” The court found that allowing amendment to excise the portions of the complaint that did not comply with the statute would not have been futile here. Affirmed in part, reversed in part, and remanded.