City of Romulus v. DEPT. OF ENVIR. QUALITY

• Decision Date: 05 March 2004
• Docket Number: Docket No. 236673.
• Citation: 260 Mich. App. 54,678 N.W.2d 444
• Parties: CITY OF ROMULUS and City of Taylor, Petitioners-Appellants, and County of Wayne, Petitioner, v. MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondent-Appellee, and Environmental Disposal Systems, Inc., Intervening Respondent-Appellee.
• Court: Court of Appeal of Michigan — District of US

678 N.W.2d 444

260 Mich. App. 54

CITY OF ROMULUS and City of Taylor, Petitioners-Appellants, and County of Wayne, Petitioner, v. MICHIGAN DEPARTMENT OF ENVIRONMENTAL QUALITY, Respondent-Appellee, and Environmental Disposal Systems, Inc., Intervening Respondent-Appellee.

Docket No. 236673.

Court of Appeals of Michigan.

Submitted August 19, 2003, at Detroit.

Decided December 16, 2003, at 9:05 a.m.

Released for Publication March 5, 2004.

Dykema Gossett, P.L.L.C. (by Marilyn A. Peters, Laura C. Baucus, and Mark D. Jacobs), Bloomfield Hills, for city of Romulus.

Dykema Gossett, P.L.L.C. (by Marilyn A. Peters and Laura C. Baucus) and Strobl, Cunningham, Caretti & Sharp, P.C. (by Neil S. Silver), Bloomfield Hills, for city of Taylor.

Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and James L. Stropkai, Assistant Attorney General, for Department of Environmental Quality.

Bill Colovos, Southgate, Warner Norcross & Judd, L.L.P. (by William Fulkerson, Robert J. Jonker, and Michael G. Brady), Grand Rapids, and Beier Howlett, P.C. (by Lawrence R. Ternan), Bloomfield Hills, for Environmental Disposal Systems, Inc.

Before: ZAHRA, P.J., and TALBOT and OWENS, JJ.

ZAHRA, P.J.

Appellee Environmental Disposal Systems, Inc. (EDS), submitted an application to respondent, the Michigan Department of Environmental Quality (DEQ), for a permit under Part 111 of the Natural Resources and Environmental Protection Act (NREPA), M.C.L. § 324.11101 et seq., authorizing the construction of a hazardous waste underground deep injection well facility on an undeveloped site that contained wetlands located in the city of Romulus. 1999 AC, R 299.9603 (Rule 603) provides that new hazardous waste facilities shall not be located in a wetland. After becoming aware that the site contained wetlands, EDS applied for and was granted a permit under Part 303 of the NREPA, M.C.L. § 324.30301 et seq., authorizing it to fill the wetlands. Thereafter, the DEQ issued a Part 111 permit to EDS, authorizing it to build the hazardous waste facility. Petitioners initiated proceedings to challenge the DEQ's decision to issue the Part 111 permit to EDS. The circuit court affirmed the issuance of the Part 111 permit, and this Court granted the application for leave to appeal filed by petitioners city of Romulus and city of Taylor. The most significant issue on appeal is whether the DEQ erred in issuing a Part 111 permit to EDS to build the hazardous waste facility on land designated as a wetland where the DEQ had also issued a Part 303 permit authorizing EDS to fill the wetlands on the site proposed for the facility. We conclude that the DEQ did not err in issuing the Part 111 permit to EDS. Rule 603 provides that a hazardous waste facility shall not be located in a wetland. Here, EDS obtained a Part 303 permit to fill and eliminate the wetlands on the site. The wetlands have been lawfully filled.¹ Thus, EDS would not be building the hazardous waste facility in a wetland. We affirm.

I. Facts and Procedure

EDS, a company in the business of disposing of hazardous waste, sought to build and operate a hazardous waste underground deep injection well facility on an undeveloped site (the Citrin Drive site) located in the city of Romulus. The city of Romulus opposed construction of the hazardous waste facility, and several lawsuits were initiated regarding this issue.² EDS obtained many of the federal, state, and municipal permits required for the construction of the facility and then applied to the DEQ for a Part 111 hazardous waste management construction permit. The DEQ determined that EDS's application was complete and technically adequate, and then, in conformity with M.C.L. § 324.11119, referred the matter to a site review board (SRB). Between October 1999 and March 2000, the SRB held a public hearing and several informal hearings, where it received oral and written statements from local community officials, the public, EDS, and the DEQ regarding the construction of the facility. At one of these hearings, EDS learned that several areas constituting wetlands existed on the Citrin Drive site.³ At the January 26, 2000, SRB hearing, the DEQ confirmed the existence of the wetlands and informed the SRB that EDS would be required to obtain a Part 303 permit authorizing it to fill the wetlands before it would be allowed to build the facility. EDS subsequently applied for a Part 303 permit.

On March 21, 2000, the SRB recommended that the DEQ deny EDS's application for a Part 111 permit, listing nine reasons for its recommendation. One reason was that there was no need for the facility because there was a surplus of hazardous waste disposal capacity in the area. Another reason for the SRB's recommendation was that wetlands existed on the site and EDS had not obtained a permit to eliminate the wetlands.⁴ On June 9, 2000, the DEQ issued a Part 303 permit authorizing EDS to fill the wetlands on the Citrin Drive site for the purpose of constructing the hazardous waste facility.

On December 8, 2000, the DEQ issued a "Fact Sheet" listing five reasons why it was proposing to issue a Part 111 permit to EDS,⁵ and specifically addressing and rejecting each of the SRB's reasons for recommending denial of the permit. The DEQ stated that the existence of wetlands on the site was not a reason to deny the Part 111 permit because EDS had obtained a Part 303 permit to fill the wetlands. The DEQ also stated that need for a facility is market-driven and is determined by private industry, so lack of need was not a legitimate reason to deny the Part 111 permit. The DEQ added that the hazardous waste facility proposed by EDS offered a disposal method that varied from those available at the existing facilities in Southeast Michigan.⁶ On February 22, 2001, the DEQ issued the Part 111 permit to EDS, authorizing it to build the facility. The DEQ also released a "Responsiveness Summary," in which the DEQ responded to issues raised during a public comment period.

Petitioners appealed the DEQ's decision to issue the Part 111 permit to the circuit court, and EDS intervened as a respondent. On August 24, 2001, the circuit court issued an opinion and order affirming the DEQ's decision to issue the Part 111 permit.⁷ In September 2001, Romulus and Taylor applied for leave to appeal the circuit court's decision that the DEQ properly issued the Part 111 permit. Also in September 2001, EDS began the process of filling the wetlands on the Citrin Drive site. By October 2001, the wetlands were filled and eliminated. This Court subsequently granted Romulus and Taylor's application for leave to appeal.

II. Analysis

A. Standard of Review

This Court applies multiple standards of review in an appeal from a circuit court's review of an administrative agency's decision. Great deference is accorded to the circuit court's review of the agency's factual findings. By contrast, substantially less deference, if any, is accorded to the circuit court's determinations on matters of law.

1. Factual Findings

This Court's review is limited to determining whether the circuit court "misapprehended or grossly misapplied" its review of the agency's factual findings. Boyd v. Civil Service Comm., 220 Mich. App. 226, 234, 559 N.W.2d 342 (1996). The circuit court's review of the DEQ's factual findings is limited to determining whether the decision was supported by competent, material, and substantial evidence on the whole record, was arbitrary or capricious, or was clearly an abuse of discretion. Const. 1963, art. 6, § 28; Dignan v. Michigan Pub. School Employees Retirement Bd., 253 Mich.App. 571, 576, 659 N.W.2d 629 (2002).⁸ Evidence is competent, material, and substantial if a reasoning mind would accept it as sufficient to support a conclusion. Id. "Courts should accord due deference to administrative expertise and not invade administrative fact finding by displacing an agency's choice between two reasonably differing views." Id. To determine whether an agency's decision is "arbitrary," the circuit court must determine if it is "`"[w]ithout adequate determining principle[,] ... [f]ixed or arrived at through an exercise of will or by caprice, without consideration or adjustment with reference to principles, circumstances, or significance, ... decisive but unreasoned." "St. Louis v. Michigan Underground Storage Tank Financial Assurance Policy Bd., 215 Mich.App. 69, 75, 544 N.W.2d 705 (1996), quoting Bundo v. Walled Lake, 395 Mich. 679, 703 n. 17, 238 N.W.2d 154 (1976), quoting United States v. Carmack, 329 U.S. 230, 243, 67 S.Ct. 252, 91 L.Ed. 209 (1946). "Capricious" has been defined as: "`"[A]pt to change suddenly; freakish; whimsical; humorsome."'" St Louis, supra at 75, 544 N.W.2d 705, quoting Bundo, supra at 703 n. 17, 238 N.W.2d 154, quoting Carmack, supra at 243, 67 S.Ct. 252.

2. Matters of Law

We must also determine "whether the lower court applied correct legal principles...." Boyd, supra at 234, 559 N.W.2d 342. The circuit court's review of an administrative agency's decision on a matter of law is limited to determining whether the decision was authorized by law. Const 1963, art 6, § 28; Boyd, supra at 232, 559 N.W.2d 342. "[A]n agency's decision that `is in violation of statute [or constitution], in excess of the statutory authority or jurisdiction of the agency, made upon unlawful procedures resulting in material prejudice, or is arbitrary and capricious,' is a decision that is not authorized by law" and must be set aside. Northwestern Nat'l. Cas. Co. v. Comm'r. of Ins., 231 Mich.App. 483, 488, 586 N.W.2d 563 (1998) (emphasis in original), quoting Brandon School Dist. v. Michigan Ed. Special Services Ass'n., 191 Mich.App. 257, 263, 477 N.W.2d 138 (1991).

Here, we are called upon to interpret statutes and administrative rules.⁹ As a general rule, we review de novo the interpretation and application of unambiguous statutes and administrative rules. Michigan Ed. Ass'n. Political Action...