Cipri v. BELLINGHAM FOODS, INC., Docket No. 197678.

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: PER CURIAM.
• Citation: 235 Mich. App. 1,596 N.W.2d 620
• Decision Date: 06 April 1999
• Docket Number: Docket No. 197678.
• Parties: Richard J. CIPRI, Plaintiff-Appellant/Cross-Appellee, v. BELLINGHAM FROZEN FOODS, INC., Defendant-Appellee/Cross-Appellant, and Decaturland Investments, Inc., Defendant-Appellee/Cross-Appellee, and Decaturland Elevator Co., Inc., DVD Enterprises, Bernard C. Sherburn, Jr., Valleyview Farms, Inc., Vegco, Inc., Southern Michigan Beef Co. and Iris Swift, Defendants-Appellees.

596 N.W.2d 620
235 Mich. App. 1

Richard J. CIPRI, Plaintiff-Appellant/Cross-Appellee,
v.
BELLINGHAM FROZEN FOODS, INC., Defendant-Appellee/Cross-Appellant, and
Decaturland Investments, Inc., Defendant-Appellee/Cross-Appellee, and
Decaturland Elevator Co., Inc., DVD Enterprises, Bernard C. Sherburn, Jr., Valleyview Farms, Inc., Vegco, Inc., Southern Michigan Beef Co. and Iris Swift, Defendants-Appellees

Docket No. 197678.

Court of Appeals of Michigan.

Submitted January 12, 1999, at Grand Rapids.

Decided April 6, 1999, at 9:00 a.m.

Released for Publication July 14, 1999.

596 N.W.2d 622

Reed, Stover & O'Connor, P.C. (by Michael B. Ortega and Patricia R. Mason), Kalamazoo, for Richard J. Cipri

Howard & Howard Attorneys, P.C. (by Steven C. Kohl and Charles E. Dunn), Bloomfield Hills, for Bellingham Frozen Foods, Inc.

Varnum, Riddering, Schmidt & Howlett, LLP (by Michael S. McElwee), Kalamazoo, for Decaturland Investments, Inc.

Before: HOOD, P.J., and NEFF and MARKEY, JJ.

596 N.W.2d 621

PER CURIAM

This is an environmental law case arising from injuries to a lake that resulted from the discharge of sweet corn silage leachate.¹ The pertinent facts are set out

596 N.W.2d 623

in Cipri v. Bellingham Frozen Foods, Inc., 213 Mich.App. 32, 539 N.W.2d 526 (1995), and will not be repeated here. In Cipri, we reversed the trial court's grant of partial summary disposition to defendants. A jury trial was held on remand and plaintiff was awarded $90,000 in compensatory damages with regard to his negligence, trespass, and nuisance claims. However, the trial court granted judgment to defendants with regard to plaintiff's statutory claims. Plaintiff appeals as of right; defendant Bellingham cross appeals. We affirm in part and reverse in part

We first provide a brief overview of the now-superseded² environmental statutes under which plaintiff is proceeding.

In pertinent part, the former Michigan Environmental Protection Act (MEPA) provided for "declaratory and equitable relief against ... any person ... for the protection of the air, water and other natural resources and the public trust therein from pollution, impairment or destruction." MCL 691.1202(1); MSA 14.528(202)(1). "To determine whether the plaintiff has established a prima facie claim under the MEPA, the court must determine whether the challenged action by the defendant rises to the level of an impairment or destruction of a natural resource so as to constitute an environmental risk and justify judicial intervention." Wortelboer v. Benzie Co., 212 Mich.App. 208, 220, 537 N.W.2d 603 (1995). Plaintiff must show "that the conduct of the defendant has, or is likely to pollute, impair or destroy the air, water or other natural resources or the public trust therein...." MCL 691.1203(1); MSA 14.528(203)(1). "The court may [then] grant temporary and permanent equitable relief, or may impose conditions on the defendant that are required to protect the air, water and other natural resources or the public trust therein from pollution, impairment or destruction." MCL 691.1204(1); MSA 14.528(204) (emphasis added). Thus, where impairment or destruction of a natural resource is found, "[r]estoration of the natural habitat is a proper remedy under the [M]EPA." Stevens v. Creek, 121 Mich. App. 503, 508, 328 N.W.2d 672 (1982); see also Eyde v. Michigan, 82 Mich.App. 531, 538-540, 267 N.W.2d 442 (1978).

On the other hand, the former Michigan Environmental Response Act (MERA) provides a cause of action for compensatory damages. See M.C.L. § 299.612(2); MSA 13.32(12)(2). Like its federal counterpart,³ the MERA imposes liability where there has been (1) a release of a hazardous substance, (2) at a facility, (3) causing plaintiff to incur response costs, and (4) defendant is a responsible party. MCL 299.612(1), (2)(b); MSA 13.32(12)(1), (2)(b); Farm Bureau Mut. Ins. Co. v. Porter & Heckman, Inc., 220

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Mich.App. 627, 637, 639-641, 560 N.W.2d 367 (1996); see also Pitsch v. ESE Michigan, Inc., 233 Mich.App. 578, 593 N.W.2d 565 (1999) (squarely holding that subsection (2)(b) creates a private cause of action for damages). Responsible parties include the owner of the facility, its operator, a person who arranged for disposal or treatment of a hazardous substance, and a person who accepts such a substance for transportation to a facility. MCL 299.612(1); MSA 13.32(12)(1); see also Farm Bureau, supra at 641-642, 560 N.W.2d 367.

Under the MERA, a private plaintiff may recover response activity costs and compensatory damages. MCL 299.612(2)(a), (c); MSA 13.32(12)(2)(a), (c). At the time of the initial leakage in this case, the statute defined response activity as

an activity necessary to protect public health, safety, welfare, and the environment, and includes but is not limited to, evaluation, cleanup, removal, containment, isolation, treatment, monitoring, maintenance, replacement of water supplies, temporary relocation of people as determined to be necessary by the governor or the governor's designee, and reimbursement for certain expenses as provided for in section 11.

MCL 299.603(j); MSA 13.32(3)(j), as amended by 1984 PA 388 (emphasis added).⁴ Under the MERA, therefore, a private party may recover "those response activity costs that are `required' in remediating a contaminated site...." Port Huron v. Amoco Oil Co., Inc., 229 Mich.App. 616, 629, 583 N.W.2d 215 (1998).⁵ Compensatory damages may also be awarded "for the full value of injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing the injury, destruction, or loss resulting from the release." MCL 299.612(2)(c); MSA 13.32(12)(2)(c).

In Cipri, supra at 41-43, 539 N.W.2d 526, this Court determined that the sweet corn by-products were a "hazardous substance" under the MERA because they could and did become injurious to the environment.⁶ On remand, the jury found that

596 N.W.2d 625

the sweet corn leachate had polluted the lake and killed its fish, and awarded tort damages. The statutory MEPA and MERA claims were then decided by the court. After a hearing, the trial court declined to order equitable relief under the MEPA because it found that: (1) the need for restoring Baker Lake, beyond what time and nature would do, had not been established; (2) the effectiveness of the proposed restoration efforts were questionable in view of the experts' testimony; and (3) the jury's verdict, taken as advisory on the statutory claims, did not support a factual finding of long-term damage to the lake. With respect to the MERA claim for damages, the trial court decided that defendant Bellingham was not a responsible party under the statute.

We now turn to the specific issues raised on appeal. Initially, plaintiff argues that the trial court erred in refusing to order defendants to restore the lake. We disagree.

The interpretation of Michigan's environmental legislation is a question of law that we review de novo. Port Huron, supra at 624, 583 N.W.2d 215 (MERA); see also Trout Unlimited, Muskegon-White River Chapter v. White Cloud (After Remand), 209 Mich.App. 452, 456, 532 N.W.2d 192 (1995) (MEPA). On the other hand, this Court will not overturn a trial court's findings of fact unless they are clearly erroneous or unless we are convinced that we would have reached a different result. Port Huron, supra at 636, 583 N.W.2d 215; Trout Unlimited, supra at 456, 532 N.W.2d 192. A finding is clearly erroneous when, although there is evidence to support it, this Court is left with the definite and firm conviction that a mistake has been made. Port Huron, supra at 636, 583 N.W.2d 215; Trout Unlimited, supra at 456, 532 N.W.2d 192. Lastly, equitable issues are reviewed de novo, although the findings of fact supporting the decision are reviewed for clear error. Webb v. Smith (After Remand), 204 Mich. App. 564, 568, 516 N.W.2d 124 (1994). However, "[t]he granting of injunctive relief is within the sound discretion of the trial court, although the decision must not be arbitrary and must be based on the facts of the particular case." Holly Twp. v. Dep't of Natural Resources, 440 Mich. 891, 487 N.W.2d 753 (1992); see also Wayne Co. Dep't of Health v. Olsonite Corp., 79 Mich.App. 668, 699-700, 706-707, 263 N.W.2d 778 (1977).

We first decline to overturn the trial court's findings of fact under the MEPA because we cannot conclude that they are clearly erroneous or that we would have reached a different result. Trout Unlimited, supra at 456, 532 N.W.2d 192. Considerable evidence supported the conclusion that the lake was recovering naturally and therefore restoration was not "required" under the MEPA. Plaintiff's expert testified that the lake now supports fish life and poses no threat to safety. He further agreed that deposits of organic sedimentation that create high oxygen demands occur naturally in all lakes. Eventually, those organic materials decompose and oxygen levels rise. Most importantly, plaintiff's expert could not estimate the quantitative effects that his proposed $250,000 restoration program would have on the oxygen level or the fish population of the lake, and he admitted that the plan was still being tested. Thus, the testimony supported the trial court's conclusion that the effectiveness of plaintiff's proposed restoration efforts was questionable. We also agree with the trial court that, since all claimed items of damages were submitted to the jury, the jury's award of only $90,000—taken as advisory, MCR 2.509(D)—is not supportive of a factual

596 N.W.2d 626

finding of long-term damage to the lake.⁷ Accordingly, the trial court did not abuse its discretion in denying plaintiff's claim for equitable relief under the MEPA.

Next, plaintiff claims that the trial court erred in granting defendant Bellingham's motion for summary disposition of plaintiff's MERA claim for damages on the grounds that Bellingham was not liable as a responsible party because it did not "arrange"...