Ada-Cascade Watch Co., Inc. v. Cascade Resource Recovery, Inc.

• Decision Date: 03 November 1983
• Docket Number: 81-1327,ADA-CASCADE,Nos. 81-1253,s. 81-1253
• Citation: 720 F.2d 897
• Parties: , 14 Envtl. L. Rep. 20,016 WATCH CO., INC., a Michigan non-profit corporation, Foremost Insurance Company, a Michigan insurance corporation, Thornapple Association, Inc., a Michigan non-profit corporation, Cascade Thornapple Association, Inc., a Michigan non-profit corporation, John D. Barfuss, Gary Shoup, Tom Brower and Rosa Brower, husband and wife, Max Smith, William Foreman and Mary Foreman, husband and wife, and Neil Oosterhouse and Levina Oosterhouse, husband and wife, Plaintiffs-Appellants, Cross-Appellees, v. CASCADE RESOURCE RECOVERY, INC., a Michigan corporation, Louis Vander Stel and Douglas Fenske, Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 897

720 F.2d 897

19 ERC 2105, 14 Envtl. L. Rep. 20,016

ADA-CASCADE WATCH CO., INC., a Michigan non-profit

corporation, Foremost Insurance Company, a Michigan

insurance corporation, Thornapple Association, Inc., a

Michigan non-profit corporation, Cascade Thornapple

Association, Inc., a Michigan non-profit corporation, John

D. Barfuss, Gary Shoup, Tom Brower and Rosa Brower, husband

and wife, Max Smith, William Foreman and Mary Foreman,

husband and wife, and Neil Oosterhouse and Levina

Oosterhouse, husband and wife, Plaintiffs-Appellants, Cross-Appellees, v. CASCADE RESOURCE RECOVERY, INC., a Michigan corporation, Louis Vander Stel and Douglas Fenske,

Defendants-Appellees, Cross-Appellants.

Nos. 81-1253, 81-1327.

United States Court of Appeals, Sixth Circuit.

Argued May 6, 1982.

Decided Nov. 3, 1983.

Richard J. Quist (argued), Grand Rapids, Mich., for defendants-appellees, cross-appellants.

Peter W. Steketee (argued), Grand Rapids, Mich., for plaintiffs-appellants, cross-appellees.

Peter R. Steenland, Jr., Chief, Appellate Section, U.S. Dept. of Justice, Washington, D.C., Lisa Friedman, Michael Murchison, Water and Solid Waste Division A-131, E.P.A., Washington, D.C., amicus curiae.

Before KEITH and MERRITT, Circuit Judges, and TIMBERS, ^* Senior Circuit Judge.

KEITH, Circuit Judge.

Petitioner, Ada-Cascade Watch Co., Inc., appeals from a decision by the district court granting summary judgment to the defendants-appellees, Cascade Resource Recovery, Inc., Louis VanderStel, and Douglas Fenske. Ada-Cascade Watch Co., Inc. is a non-profit corporation consisting of an insurance company and private citizens who oppose the construction of the Cascade toxic waste facility. Cascade Resource Recovery, Inc., (Resource Recovery), a Michigan corporation controlled by Douglas Fenske and Louis VanderStel, is to build the toxic waste facility. The purpose of this facility is to dispose of hazardous waste products generated by companies in the area.

The appellants assert that the construction of the facility violates the federal Resource Conservation and Recovery Act ("RCRA"). 42 U.S.C. Sec. 6901 et seq. The facility allegedly failed to obtain all the necessary state environmental permits prior to November 19, 1980, as required by the Act. It therefore was not an "existing facility" under Michigan's Hazardous Waste Management Act (Act 64). 1979 Mich.Pub. Acts 64, Mich.Comp.Laws Ann. Sec. 299.501 et seq., and did not qualify for "interim status" under the RCRA. The appellees, however, assert that they had obtained all the necessary permits prior to January 1, 1980.

In particular, the appellees maintain that the permit they were issued under the Solid Waste Management Act (Act 641), 1978 Mich.Pub.Acts 641, Mich.Comp.Laws Ann. Sec. 299.401 et seq., was sufficient to enable them to construct the facility. On March 26, 1981, the district court granted summary judgment to Resource Recovery, Fenske, and VanderStel. The court determined that the toxic waste facility had obtained all the necessary state permits, and thus was an existing facility under Act 64. Accordingly, it was entitled to interim status under the RCRA. This appeal followed. For the reasons set forth below, we remand to the district court to dismiss on the grounds of abstention.

I.

In 1977, Cascade Resource Recovery, Inc. announced that it planned to construct a balefill and metallic hydroxide sludge plant in Kent County, Michigan. The proposed development was to be located in rural Cascade Township on a 160 acre parcel within three feet of an unnamed surface stream. This stream flows into the Thornapple River, which runs through a residential community. The river in this area is used for recreational purposes, including swimming, fishing and boating.

The proposed facility would dispose of the liquid metallic hydroxide waste generated by the metal plating firms in the area. The plating waste would be treated in two steps. First, the liquid waste would be dewatered in a series of inground sand filteration cells. The liquid portion of the waste would filter through the sand and drain into a holding pond. The waters from the holding pond would be trucked to the Grand Rapids sewer treatment plant, provided it met certain pre-treatment standards. Second, the metallic hydroxide sludge trapped in the sand filters would be periodically collected and placed in burial pits on the site. The pits would be located in clay soil of low permeability. Once they had been filled with the toxic sludge, the pits would be sealed with a clay cap. The sludge may contain chemical deposits of zinc, chromium, cadmium, copper, cyanide, nickel, phenols, and other hazardous substances.

During December of 1977, Resource Recovery initially sought licensing for the site under Michigan's sole refuse disposal act, the Garbage and Refuse Disposal Act, 1965 Mich.Pub. Acts 87, Mich.Comp.Laws Ann. Sec. 325.291 et seq. While Resource Recovery's application was being processed, the state legislature enacted a new solid waste and hazardous waste disposal statute, the Solid Waste Management Act (Act 641). This Act became effective January 11, 1979, and was applied to Resource Recovery's license application.

The Director of the Department for Natural Resources (DNR), pursuant to Sec. 12 of Act 641, ordered that Resource Recovery's application be submitted and reviewed by the "Interdepartmental Environmental Review Committee", (INTERCOM) and the "Michigan Environmental Review Board", (MERB). ¹ Both of these reviewing committees were established by the governor of Michigan pursuant to Executive Order 1974-4 to review major state activities dealing with environmental consequences. Both Resource Recovery and the State of Michigan prepared impact statements as required under the executive order. After two public hearings and two reviews by each committee, both INTERCOM and MERB approved the impact statements as satisfactory.

When Resource Recovery initially applied for site approval, Act 87 stated that local control by ordinance was applicable. They subsequently sought a zoning change of the site from Agricultural to Planned Unit Development. The zoning application was repeatedly tabled by Cascade Township pending the outcome of the licensing by the state. After the INTERCOM and MERB reviews, a license to construct the facility was issued on September 20, 1979 under the provisions of Act 641. This permit originally covered only the disposal trenches and not the sand filters and holding pond. However, the permit was later amended in December of 1979 by the DNR to include the entire facility.

Construction of the facility began in March of 1980. However, on March 10, the building inspector for Cascade Township issued a stop construction notice to Resource Recovery. Subsequently, the township commenced a lawsuit against the developers which was based on non-compliance with local zoning ordinances, Township of Cascade v. Cascade County Circuit Court, No. 80-30077CE. The suit was dismissed on October 21, 1980, by the trial judge ruling that Act 641 preempted the local township zoning ordinance, building code provisions and waste management ordinance. The case was appealed, and Michigan's Court of Appeals affirmed the decision of the trial court, Township of Cascade v. Cascade Resource Recovery, Inc., 118 Mich.App. 580, 325 N.W.2d 500 (1982).

On January 1, 1980, the Michigan legislature enacted the Hazardous Waste Management Act. 1979 Mich.Pub.Acts 64, Mich.Comp.Laws Ann. Sec. 299.501 et seq. This Act was promulgated to "protect the public health and natural resources of the state and to license and regulate persons in removing and disposing of hazardous waste ...."

The appellants assert that under this Act, Resource Recovery did not have all the necessary state preconstruction approvals or permits by November 19, 1980, and therefore was not an existing facility under federal law. The appellees, however, contend that they can construct the facility under the Act 641 construction permit regardless of Act 64, because Sections 14 and 16, as amended, of Act 64, state:

Sec. 14: The director may issue permits and licenses under this act for existing or proposed disposal facilities and other authorized operations included in this act before adoption of the plan by the commission of natural resources.

Sec. 16: A disposal facility in existence on January 1, 1980, or a facility in existence on November 19, 1980, for which approval of construction has been received from the air pollution control commission, shall not be subject to a review of the board or require a construction permit under this act except for an expansion, enlargement, or alteration of the disposal facility beyond its original authorized design capacity or beyond the area specified in the operating license, original construction permit, or other authorization. This subsection does not abridge or alter the effect of a local ordinance, permit requirement, or other requirement on the construction of a disposal facility described in this subsection (emphasis supplied).

In addition, Rule 299.6102(m) under Act 64 which defines "existing facility" states:

"Existing Facility" means a disposal facility that received all necessary state-issued environmental construction or operating permits before January 1, 1980. Existing facilities also include those disposal facilities which are operating before January 1, 1980, under existing authority and which do not require state-issued environmental construction or operating permits.

After Resource Recovery began construction again in October of 1980, the United States Environmental Protection Agency promulgated its rules and regulations under its authority in RCRA, 42 U.S.C. Sec. 6901, et seq. On May 19, 1980, plating waste, pursuant to these rules and regulations was classified as a hazardous waste within the control and regulations of RCRA.

Appellants maintain that Resource Recovery was required to get...