Cascade Tp. v. Cascade Resource Recovery, Inc., Docket No. 54605
| Citation | 118 Mich.App. 580,325 N.W.2d 500 |
| Decision Date | 09 November 1982 |
| Docket Number | Docket No. 54605 |
| Parties | TOWNSHIP OF CASCADE, a Michigan Charter Township, Plaintiff-Appellant, v. CASCADE RESOURCE RECOVERY, INC., a Michigan corporation, Defendant-Appellee. 118 Mich.App. 580, 325 N.W.2d 500 |
| Court | Court of Appeal of Michigan (US) |
[118 MICHAPP 582] Freihofer, Oosterhouse, DeBoer & Barnhart, P.C., Grand Rapids, for plaintiff-appellant.
Richard J. Quist, Grand Rapids, for defendant-appellee.
Peter W. Steketee, Grand Rapids, for amicus curiae, Ada-Cascade Watch, Inc., Foremost Insurance Company, Thornapple Association, Inc., Cascade-Thornapple Association, John Barfuss, Gary Shoup, Tom Brower, Rosa Brower, Max Smith, William Foreman, Mary Foreman, Neil Oosterhouse, and Lavinia Oosterhouse.
Cooper & Fink, Lansing, for National Solid Wastes Management Ass'n.
[118 MICHAPP 583] Before MAHER, P.J., and HOLBROOK and ROBINSON, * JJ.
Plaintiff appeals as of right the trial court's grant of defendant's motion for summary judgment. The court declared that the State has so pre-empted the regulation of solid and hazardous waste disposal pursuant to 1978 P.A. 641 and 1979 P.A. 64, respectively, that plaintiff cannot require defendant to adhere to the ordinances involved. The trial court further ruled that plaintiff cannot prevent defendant from completing the already commenced construction of a hazardous waste disposal facility, since defendant has been issued a construction permit by the Department of Natural Resources (DNR).
Defendant is the lessee of a parcel of land in Cascade Township, Kent County. It intends to construct a metal-hydroxide sludge disposal facility thereon. In order to obtain necessary licensing for said facility, defendant originally initiated proceedings in 1977 under 1965 P.A. 87, the Garbage and Refuse Disposal Act, M.C.L. Sec. 325.291 et seq.; M.S.A. Sec. 14.435(1) et seq. (hereinafter Act 87). Thereafter it shifted its theory so as to proceed under 1978 P.A. 641, the Solid Waste Management Act, M.C.L. Sec. 299.401 et seq.; M.S.A. Sec. 13.29(1) et seq. (hereinafter Act 641). Defendant currently proceeds under the provisions of 1979 P.A. 64, the Hazardous Waste Management Act M.C.L. Sec. 299.501 et seq.; M.S.A. Sec. 13.30(1) et seq. (hereinafter Act 64). On September 20, 1979, the Department of Natural Resources issued defendant a "solid waste disposal area construction permit" pursuant to Act 641. All parties agree that defendant would be required to obtain [118 MICHAPP 584] an operating license and be guided in its operation pursuant to the provisions of Act 64. 1
Defendant commenced constructing the disposal facility in the spring of 1980, but stopped when issued a cease and desist order by the township for failure to comply with the township's zoning ordinance, waste management ordinance and building code. Plaintiff commenced this action seeking injunctive relief to prevent defendant from constructing and operating its facility until it had complied with the township's applicable ordinances. On appeal, plaintiff raises issues related to Act 641 and Act 64, but only issues related to Act 64 merit extensive discussion since it is dispositive of this appeal. Plaintiff argues that the court erred in ruling that Act 64 has pre-empted local ordinances regulating construction of hazardous waste facilities. We disagree and affirm.
In equity cases we review the record de novo with due deference given to the findings of the trial court. We must sustain those findings unless convinced that, had we heard the evidence in the first instance, we would have been compelled to rule to the contrary. Groveland Twp. v. Jennings, 106 Mich.App. 504, 509-510, 308 N.W.2d 259 (1981).
The standards for determining whether a local ordinance is pre-empted by a state statutory scheme are found in People v. Llewellyn, 401 Mich. 314, 257 N.W.2d 902 (1977), cert. den. 435 U.S. 1008, 98 S.Ct. 1879, 56 L.Ed.2d 390 (1978). The Supreme Court distinguished those situations in which municipal ordinances would be preempted:
"A municipality is precluded from enacting an ordinance if 1) the ordinance is in direct conflict with the state statutory scheme, or 2) if the state statutory [118 MICHAPP 585] scheme pre-empts the ordinance by occupying the field of regulation which the municipality seeks to enter, to the exclusion of the ordinance, even where there is no direct conflict between the two schemes of regulation." Id., 322, 257 N.W.2d 902. (Footnotes omitted.)
A direct conflict exists when the ordinance permits what the statute prohibits or the ordinance prohibits what the statute permits. In determining whether a statutory scheme is "occupying the field of regulation", the Llewellyn Court offered four independent guidelines:
Id., 323-324, 257 N.W.2d 902. (Citations and footnotes omitted.)
As to the fourth guideline, if the nature of the regulated subject matter calls for regulation adapted to local conditions and the local regulation does not interfere with the state regulatory scheme, supplementary local ordinances are generally allowed. However, if the court finds that the nature of the subject matter regulated calls for a uniform state regulatory scheme, supplementary local ordinances are pre-empted. Id., 324-325, 257 N.W.2d 902.
The four guidelines outlined above lead us to conclude that Act 64 occupies the field of hazardous[118 MICHAPP 586] waste management, which defendant township seeks to enter, so as to pre-empt the field. We reach this conclusion because (1) the expressed statutory language indicates that Act 64 pre-empts local ordinances; (2) the comprehensiveness of the statutory scheme shows a pre-emptive intent; and (3) the nature of the regulated subject matter demands uniform, statewide treatment.
The following sections of Act 64 expressly provide that the state's authority to regulate hazardous waste management is to be exclusive:
M.C.L. Sec. 299.521(1); M.S.A. Sec. 13.30(21)(1).
M.C.L. Sec. 299.524; M.S.A. Sec. 13.30(24).
M.C.L. Sec. 299.532; M.S.A. Sec. 13.30(32).
Despite this unambiguous language, plaintiff argues that these sections really mean that no municipality can completely exclude landfills. We reject this construction. Act 64 requires the state [118 MICHAPP 587] to establish a statewide hazardous waste management plan. The statute also sets up a two-stage process for establishing a hazardous waste disposal area. First, a construction permit must be obtained; second, an operating license must be obtained. The three above-quoted sections prevent a municipality from independently vetoing what the state has established in its statewide plan and through the two-stage process for establishing a disposal area. Therefore, this statute expressly provides the state's authority to exclusively regulate the placement, construction and operation of hazardous waste disposal facilities, to the exclusion of supplementary local ordinances.
As to the comprehensiveness issue, an examination of the state statutory scheme reveals a detailed plan which provides for the safe management and disposal of hazardous wastes.
In enacting Act 64, the Legislature replaced the ten sections of its much simpler predecessor, Act 87, with a comprehensive 51-section statutory framework designed to regulate all aspects of hazardous waste disposal. 2
M.C.L. Sec. 299.509; M.S.A. Sec. 13.30(9) provides that a state hazardous waste management planning committee shall prepare a state hazardous waste management plan. The plan must provide for a reasonable geographic distribution of disposal facilities based upon location of generators, health and safety, [118 MICHAPP 588] economics of transporting, type of waste and existing disposal facilities.
M.C.L. Sec. 299.518; M.S.A. Sec. 13.30(18) provides that a person shall not establish a disposal facility without a construction permit.
M.C.L. Sec. 299.522; M.S.A. Sec. 13.30(22) provides that a person shall not conduct, manage, maintain or operate a disposal facility without an operating license.
M.C.L. Sec. 299.529; M.S.A. Sec. 13.30(29) provides that a person shall not engage in the business of transporting hazardous waste within the state without a hazardous waste hauler's license. Subsequent sections require solid waste generators to provide a separate manifest to the hauler for each load...
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