Delta County v. Michigan Dept. of Natural Resources, Docket No. 58029

• Decision Date: 16 November 1982
• Docket Number: Docket No. 58029
• Citation: 118 Mich.App. 458,325 N.W.2d 455
• Parties: COUNTY OF DELTA, Cities of Gladstone and Escanaba, Townships of Baldwin, Bark River, Bay De Noc, Brampton, Cornell, Escanaba, Ensign, Fairbanks, Ford River, Garden, Maple Ridge, Masonville, and Wells, Plaintiffs-Appellees, v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 455

325 N.W.2d 455

118 Mich.App. 458

COUNTY OF DELTA, Cities of Gladstone and Escanaba, Townships of Baldwin, Bark River, Bay De Noc, Brampton, Cornell Escanaba, Ensign, Fairbanks, Ford River, Garden, Maple Ridge, Masonville, and Wells, Plaintiffs-Appellees, v. MICHIGAN DEPARTMENT OF NATURAL RESOURCES, Defendant-Appellant.

Docket No. 58029.

Court of Appeals of Michigan.

Submitted, May 4, 1982.

Decided July 21, 1982.

Released for Publication Nov. 9, 1982.

Leave to Appeal Denied Nov. 16, 1982.

Butch, Quinn, Rosemurgy, Jardis & Valkanoff, P.C. by Thomas L. Butch and Terry F. Burkhart, Escanaba, for plaintiffs-appellees.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Francis J. Pipp and Terrence P. Grady, Asst. Attys. Gen., for defendant-appellant.

Before BURNS, P.J., and J.H. GILLIS and V.J. BRENNAN, JJ.

R.B. BURNS, Presiding Judge.

Defendant appeals from a judgment which enjoined the implementation of the Solid Waste Management Act, M.C.L. Sec. 299.401 et seq.; M.S.A. Sec. 13.29(1) et seq., against plaintiffs until the state Legislature, as required by the Headlee Amendment, Const.1963, art. 9, Secs. 25 and 29, appropriated funds to pay for the increased activities necessary to comply with the statute. The Headlee Amendment, in essence, provides that the state may not pass laws which require local governments to incur any additional financial burdens beyond those imposed by existing law. Pursuant to the Headlee Amendment, the state is required to provide funds for any new or increased activities or services the localities by law must offer.

This case presents a matter of first impression, namely, how the Solid Waste Management Act and the Headlee Amendment interact.

The Solid Waste Management Act was adopted after the electorate passed the Headlee Amendment. The Act, in part, provides:

"A municipality or county shall assure that all solid waste is removed from the site of generation, frequently enough to protect the public health, and are delivered to licensed solid waste disposal areas, * * *." M.C.L. Sec. 299.424; M.S.A. Sec. 13.29(24). (Emphasis added.)

The sections of the Headlee Amendment pertinent to this appeal provided in part:

"The state is prohibited from requiring any new or expanded activities by local governments without full state financing, from reducing the proportion of state spending in the form of aid to local governments, or from shifting the tax burden to local government." Const.1963, art. 9, Sec. 26.

"The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of Local Government by state law. A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs." Const.1963, art. 9, Sec. 29.

Our analysis begins with determining whether the Solid Waste Management Act requires "new or increased" activities or services which are within the ambit of the Headlee Amendment. The defendant argues that the term "shall assure", as used in the statute, does not constitute a mandate that the municipality is required to follow. Therefore, a new duty to dispose of solid waste materials is not placed on the municipalities. Although the plaintiffs concede that the Act grants them the option of engaging in contracts with private enterprises to dispose of the solid waste, they maintain that the duties of assuring solid waste disposal are nonetheless mandatory and impose the ultimate legal responsibility for waste disposal on the localities.

The general rule when interpreting the language of a statute is to construe it according to its plain meaning. Uniformly, this Court has held that the word "shall" is mandatory. See State Highway Comm. v. Vanderkloot, 392 Mich. 159, 220 N.W.2d 416 (1974). More over, a statute must be read in its entirety. The meaning given one section must be arrived at after due consideration of other sections so as to produce, if possible, a harmonious and consistent enactment as a whole. King v. Director of Midland County Dep't of Social Services, 73 Mich.App. 253, 251 N.W.2d 270 (1977). Upon review of the entire Act, we are convinced that the words "shall assure" are the equivalent to a command to localities to dispose of solid waste products. The overall purpose of the Act is to require localities to develop a solid waste management plan. See M.C.L. Secs. 299.425-229.430; M.S.A. Secs. 13.29(25)-13.29(30).

The next inquiry becomes: Did units of local government have mandatory duties with respect to solid waste management prior to the adoption of the Solid Waste Management Act?

We summarily reject defendant's argument that plaintiffs had a preexisting constitutional duty to dispose of solid waste. Const.1963, art. 4, Sec. 52 provides that conservation of the natural resources of the state is of paramount concern. However, a constitutional provision is not self-executing. The public policy of a state becomes conclusive when the Legislature enacts a law within the limits of the constitution. Lieberthal v. Glens Falls Indemnity Co. of Glens Falls, New York, 316 Mich. 37, 24 N.W.2d 547 (1946).

The Solid Waste Management Act repealed the Garbage & Refuse Disposal Act ¹, M.C.L. Sec. 325.291 et seq.; M.S.A. Sec. 14.435(1) et seq. The prior Act did provide for the licensing and regulation of garbage and refuse disposal facilities. However, as defendant conceded, ² the prior Act imposed no mandatory duties upon the local units of government with respect to solid waste management.

Under M.C.L. Sec. 325.296; M.S.A. Sec. 14.435(6) of the prior Act the commissioner was authorized to promulgate rules containing "sanitary standards" for refuse disposal. 1980 AC, R 325.2721(4), promulgated pursuant to the authority accorded by that section, required that landfill operations be conducted so that conditions of "unlawful pollution" not be created. Plaintiffs argue that the sanitary standards in the statute which permitted rule making provided inadequate guidance and therefore constituted an invalid delegation of legislative authority. Also, they challenge the validity of the standard contained in the rule on the same ground.

Generally, the courts have adopted a lenient and expansive test to measure the constitutionality of the standards which delegate legislative authority. Dept. of Natural Resources v. Seaman, 396 Mich. 299, 240 N.W.2d 206 (1976); State Highway Comm. v. Vanderkloot, supra. The test was set forth in Westervelt v. Natural Resources Comm., 402 Mich. 412, 444-445, 263 N.W.2d 564 (1978):

"As we ruled supra, a delegation of legislative power to an administrative agency is constitutionally valid when:

"(1) for purposes of satisfying the constitutional principle of the 'separation of powers', the legislation in which power is delegated to an administrative agency expressly or by reference includes 'standards * * * as reasonably precise as the subject matter' of the legislation 'requires or permits'; and

"(2) for purposes of satisfying the Due Process Clause of our Constitution, safeguards, including 'standards,' exist, thereby assuring that the public will be protected against potential abuse of discretion at the hands of administrative officials; and, if the 'standards' afforded provide little or no actual due process protection a court should, in balance, determine whether a sufficient totality of safeguards exists."

In the past the Supreme Court scrutinized the use of "necessity" as the standard and held that the use of that standard in a statute was constitutionally sufficient. State Highway Comm. v. Vanderkloot, supra.

The guidelines "sanitary standards" and "unlawful pollution" contained in the Garbage & Refuse statute and rule, respectively, are more precise than the standard "necessity" which has passed constitutional muster. State Highway Comm. v. Vanderkloot, supra.

Here, the standards set forth in the Garbage & Refuse Act and the standards in the rules promulgated pursuant to its statutory authority were as reasonably precise as the subject regulated permitted. As the Court noted in Dept. of Natural Resources v. Seaman, supra, natural resources management is illsuited for specific regulation.

Nonetheless, the defendant's claim that the rule imposed a preexisting mandatory duty on municipalities to dispose of solid waste must be rejected. The repealed act, M.C.L. Sec. 325.296; M.S.A. Sec. 14.435(6), specifically required that all rules promulgated under the statute be adopted pursuant to the Michigan Administrative Procedures Act (APA), M.C.L. Sec. 24.201 et seq.; M.S.A. Sec. 3.560(101) et seq. Therefore, due process requirements must be satisfied. See Westervelt v. Natural Resources Comm., supra. The standards under the rule did not establish any specific duties. The only sweeping requirement of the rule was to avoid "unlawful pollution". This standard merely echoes the standards in the statute to promulgate "sanitary standards". In contrast, the Solid Waste Management Act imposed the duties, and expenditures, now complained of, namely, the requirement of 30 mil PVC liners or 2-foot clay backups on disposal sites and a mandatory duty to dispose of waste. There was no indication that these specific requirements were imposed by 1980 AC, R 325.2721(4).

Therefore, 1980 AC, R 325.2721(4) cannot be viewed as imposing a valid preexisting duty on municipalities equivalent to the regulations now sought to be enforced. The reliance on the rule to avoid the purview of the Headlee Amendment is misplaced. The duties under the Solid Waste Management Act clearly are "new or increased".

Given that the Solid Waste Management Act does impose new and increased duties on municipalities, the next...