Attorney General v. Lake States Wood Preserving, Inc.

• Decision Date: 05 April 1993
• Docket Number: Docket No. 140652
• Citation: 199 Mich.App. 149,501 N.W.2d 213
• Parties: ATTORNEY GENERAL, Attorney General ex rel. Michigan Natural Resources Commission and Michigan Water Resources Commission, and Director of the Michigan Department of Natural Resources, Plaintiffs-Appellants, v. LAKE STATES WOOD PRESERVING, INC., a Michigan corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 213

501 N.W.2d 213

199 Mich.App. 149

ATTORNEY GENERAL, Attorney General ex rel. Michigan Natural Resources Commission and Michigan Water Resources Commission, and Director of the Michigan Department of Natural Resources, Plaintiffs-Appellants, v. LAKE STATES WOOD PRESERVING, INC., a Michigan corporation Defendant-Appellee.

Docket No. 140652.

Court of Appeals of Michigan.

Submitted Oct. 6, 1992, at Marquette.

Decided April 5, 1993, at 10:00 a.m.

Released for Publication June 24, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and A. Michael Leffler and John C. Scherbarth, for plaintiffs-appellants.

Kendricks, Bordeau, Adamini, Keefe, Smith & Girard, P.C. by William R. Smith, Marquette, for defendant-appellee.

Before CONNOR, P.J., and BRENNAN and MARILYN J. KELLY, JJ.

MARILYN J. KELLY, Judge.

This case is concerned with the extent of environmental cleanup or remediation that defendant must perform as a result of its violation of the Water Resources Commission Act (WRCA). M.C.L. § 323.1 et seq.; M.S.A. § 3.521 et seq. Plaintiffs appeal from an Alger Circuit Court order which recited the parameters of defendant's remedial action plan.

Plaintiffs argue on appeal that the trial court erred in concluding that the hazardous substance within the aquifer ¹ was being removed by naturally occurring biological or chemical processes. They assert, also, that the trial court erred in concluding that the substance in the aquifer and soil was not a carcinogen. We reverse.

I

Defendant owns a wood treatment plant. It pressure-treats wood using, over the years, various preservative compounds including pentachlorophenol (PCP). Defendant stopped using PCP in 1980. In 1981, plaintiffs Michigan Water Resources Commission and Michigan Department of Natural Resources (DNR) entered into a consent order with defendant.

The order prohibited defendant from using PCP as a wood treating agent. It mandated defendant to develop and complete a hydrogeological study of the area where defendant had allowed chemicals to enter the ground. It required a remedial action plan. The plan had to include alternative remedial actions for removal, containment and treatment of all contaminated soils and groundwater identified by the hydrogeological study.

In 1986, plaintiffs filed a complaint against defendant for injunctive relief alleging that defendant failed to comply with the consent order. Plaintiffs complained that defendant's discharge of hazardous substances into the groundwater violated the WRCA, the Hazardous Waste Management Act and the Michigan Environmental Protection Act. M.C.L. § 323.1 et seq.; M.S.A. § 3.521 et seq.; M.C.L. § 299.501 et seq.; M.S.A. § 13.30(1) et seq.; M.C.L. § 691.1201 et seq.; M.S.A. § 14.528(201) et seq.

Defendant agreed that it had violated § 6(1) of the WRCA and that remediation was necessary under § 6(4). M.C.L. § 323.6; M.S.A. § 3.526. In exchange for defendant's admissions, plaintiffs dismissed their other charges. The only issue left for the trial court's determination was the extent of remediation needed from defendant.

IIa

The trial court found that defendant had satisfied the remedial requirements of the Environmental Contamination Response Activity rules. 1990 AACS, R 299.5101 et seq. On appeal, plaintiffs argue that the finding was erroneous.

The rules, which were promulgated under the Emergency Response Act, ² are relevant to violations of the WRCA; they apply to all known sites of environmental contamination. See M.C.L. § 323.6(4); M.S.A. § 3.526(4). Rule 705 ³ establishes the general characteristics of remedial action needed at a contaminated site.

Plaintiffs assert that defendant failed to document that PCP was decreasing as a result of naturally occurring biological or chemical processes. Plaintiffs' witness Nadine Romero, a DNR hydrogeologist, testified that she had been involved in the comprehensive monitoring of defendant's facility. Seventeen monitoring wells were drilled, and data from the wells were used to map the PCP concentrations in the groundwater. A contaminated PCP plume ⁴ was identified. The point of most serious PCP contamination contained concentrations of 6000 parts per billion. The further south the well, the less the PCP concentration. Groundwater in the area flowed southerly to southwesterly.

Romero testified that PCP could be biologically degraded into various components including trichlorophenols, dichlorophenols and phenols. None of these components was detected during sampling. Romero did not believe that PCP could biodegrade naturally. Instead, some type of bacteria needs to be introduced into the groundwater to begin the breakdown process.

Defendant's expert Dr. Neil Hutzler testified that PCP is biodegradable, meaning that micro-organisms could break its chemical structure. He stated that the concentration of PCP in the groundwater decreased as it moved southward. This decrease "probably" had two causes. One was dilution through infiltration of water coming from the surface. The other was dispersion into existing groundwater.

Hutzler detected no PCP contamination near the southern end of defendant's property. One explanation for this was that there were no wells drilled along the center line of the contaminated PCP plume. Another was that the PCP concentration had been diluted to a point where it was no longer detectable. Although he tested for biodegradation of PCP in the soil, he did not test for it in the groundwater.

Defense witness David Williams testified that the concentration of PCP in the groundwater was declining due to dilution and possibly biodegradation. Williams had done no studies to determine whether PCP was being biodegraded in the aquifer. He assumed that biodegradation was taking place in the groundwater. This assumption was based on the fact that the concentration of PCP in the soil was being biodegraded, and the source of the PCP in the groundwater was the leaching of PCP from the soil. Williams never found any breakdown products of PCP in the groundwater.

The trial court made the following findings:

Clearly, some process is taking place which significantly reduces the groundwater Penta [PCP] over a fairly short distance. At DNR 13 the 1990 concentration was 6,000 parts per billion; some 250' southwest along the downward gradient of the groundwater, the concentration of Penta at DNR 9 and 12 was 1,000 parts per billion; approximately 200' further southwest at DNR 1, 2, 3, the level was 530 parts per billion; approximately 125' further southwest at OW 11, Dr. Hutzler found 260 parts per billion. The next test well is some 500' further southwest along the gradient (DNR 4) and of course no Penta was found there or at any of the wells south of OW 11; OW 11 is more than 1,000' northeast of the south boundary of the site. The 6,000 parts per billion to 260 parts per billion over 600', and the absence of any detectable Penta in the 1,000' south of OW 11, could be explained at least in part by dilution; rainwater and melted snow can wash down through soil uncontaminated with Penta, thus diluting the contaminated plume coming from the northeast; further, the parties hypothesize that some Penta has leached out of the soil since 1980, such that the plume is probably not being renewed to the same level as might have been true 10 years ago. Although Ms. Romero tends to discount an additional possibility, both Dr. Hutzler and Mr. Williams are of the opinion that natural biodegradation, at least in the soils, might also be contributing to the sharp decrease in concentration of Penta in the groundwater. The requirements of R 299.5705(6) are being satisfied, albeit marginally.

IIb

We must determine whether it was erroneous to conclude that there was documented evidence establishing that the concentration of PCP was decreasing due to naturally occurring biological or chemical processes. Rule 705(6). The trial court's findings of fact in an equity action can be set aside only if they are clearly erroneous. Beason v. Beason, 435 Mich. 791, 803, 460 N.W.2d 207 (1990). However, where a finding is derived from an erroneous application of law to fact, we are not limited to review for clear error. Id., at 805, 460 N.W.2d 207.

In construing administrative rules, courts apply principles of statutory construction. Coalition for Human Rights of the Handicapped v. Dep't of Social Services, 431 Mich. 172, 185, 428 N.W.2d 335 (1988), citing General Motors Corp. v. Bureau of Safety & Regulation, 133 Mich.App. 284, 349 N.W.2d 157 (1984). However, if the agency's rule is clear and unambiguous, judicial interpretation is neither required nor permitted, and the court should not look beyond the ordinary meaning of the unambiguous language. Jordan v. Dep't of Corrections, 165 Mich.App. 20, 28, 418 N.W.2d 914 (1987); Michigan Mutual Ins. Co. v. Allstate Ins. Co., 146 Mich.App. 475, 382 N.W.2d 169 (1985), aff'd 426 Mich. 346, 395 N.W.2d 192 (1986). If construction is warranted, we must construe the rule according to the common and approved usage of the language, resorting to dictionary definitions where appropriate. See In re Forfeiture of One Front-End Loader, 192 Mich.App. 617, 481 N.W.2d 791 (1992).

The crucial question in this case is whether defendant properly documented that PCP was being removed through naturally occurring biological or chemical processes. We find that the term "documented" is clear and unambiguous. It requires more than conjecture and speculation. A conjecture is simply an explanation, consistent with known facts or conditions, but not deducible from them as a reasonable inference. Kaminski v. Grand Trunk W.R. Co., 347 Mich. 417, 422, 79 N.W.2d 899 (1956).

In this case, both Hutzler and Williams opined that PCP was diluting in the aquifer. Williams also believed the level of PCP was decreasing due to biodegradation. Hutzler insinuated that PCP could not naturally biodegrade in the aquifer. Both failed to provide ...