Michigan Waste Systems, Inc. v. Department of Natural Resources

• Decision Date: 29 May 1987
• Docket Number: Docket No. 85999
• Citation: 403 N.W.2d 608,157 Mich.App. 746
• Parties: MICHIGAN WASTE SYSTEMS, INC., a Michigan corporation, Plaintiff-Appellee, v. DEPARTMENT OF NATURAL RESOURCES and Director and Acting Director of the Michigan Department of Natural Resources, Defendants, and County of Ottawa, a Michigan municipal corporation, Intervening Defendant- Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 608

403 N.W.2d 608

157 Mich.App. 746

MICHIGAN WASTE SYSTEMS, INC., a Michigan corporationPlaintiff-Appellee, v.DEPARTMENT OF NATURAL RESOURCES and Director and Acting Director of the Michigan Department of Natural Resources, Defendants and County of Ottawa, a Michigan municipal corporationIntervening Defendant- Appellant.

Docket No. 85999.

Court of Appeals of Michigan.

Submitted Jan. 8, 1987.

Decided Feb. 17, 1987.

Released for Publication April 16, 1987.

Leave to Appeal Denied May 29, 1987.

Cooper & Fink by Daniel S. Cooper and David H. Fink, Lansing, Birmingham, for plaintiff.

Scholten, Fant & Marquis, P.C. by Larry Sanders and Douglas R. McDonald, and Wesley J. Nykamp, Holland, Grand Haven, for intervening defendant.

Before HOOD, P.J., and BEASLEY and TOWNSEND, ^* JJ.

BEASLEY, Judge.

Intervening defendant, County of Ottawa, appeals from certain orders entered in the Ingham Circuit Court, the effect of which orders is to refuse to stop plaintiff, Michigan Waste Systems, Inc.(hereafter Waste Systems), from the construction and operation of a landfill in Robinson Township in Ottawa County.It should be noted that, technically, defendant DNR has withdrawn its appeal because it felt defendant county would adequately develop the legal issues presented in this Court.

The facts are as follows.On February 23, 1981, pursuant to the provisions of the Solid Waste Management Act¹(Act 641), plaintiff applied to the DNR for a construction permit for a proposed landfill in Robinson Township, Ottawa County.Besides completing its own environmental and technical assessments of the site, the DNR conducted a public hearing on the proposed landfill on May 29, 1981.On October 16, 1981, defendant DNR determined that the proposed landfill would have "significant potential environmental impacts" and referred the application to the Michigan Environmental Review Board(MERB) for a recommendation regarding the issuance of a construction permit under Act 641.

On December 21, 1981, MERB recommended that plaintiff's application for a construction permit be rejected.In a report critical of the proposed site, MERB recommended that an alternative site be chosen or that, if the proposed site were pursued, significant design changes be made and the new design returned to MERB for further review.On May 18, 1982, contrary to the MERB recommendation, defendant DNR issued an Act 641 construction permit, which authorized defendant to construct its landfill in accordance with the submitted plans, but included a number of additional stipulations intended to address the concerns that the landfill posed a serious threat to surrounding wetlands and rivers.

Following the issuance of the construction permit, Robinson Township contacted plaintiff and advised it that its proposed project would require rezoning, a township earth change permit and a township landfill permit.On July 13 and 14, 1982, plaintiff submitted applications for these permits to the township, with the reservation that it did so despite the counsel of its attorneys that Act 641 had "preempted the field, and that township ordinances have no validity."Efforts to process these permit applications continued until December 14, 1982, when the township learned that plaintiff had already begun construction of the landfill.The township responded on December 16, 1982, by filing suit in Ottawa Circuit Court, seeking to enjoin the construction of the landfill.²The township claimed that defendant DNR had granted the construction permit in violation of the Michigan Environmental Protection Act (MEPA), ³ and various township ordinances.

In February, 1983, upon completion of one of the cells of the landfill, plaintiff applied to the DNR for an operating license under Act 641.⁴On March 23, 1983, the proposed operating license was again referred to MERB.Review of the license application by MERB culminated in June, 1983, with a clear recommendation in favor of issuing the license.The operating license contained a comprehensive set of environmental stipulations, including supplemental ground water and surface water monitoring, notice to the community of monitoring results, and a program for the provision of alternative water supplies in the event of any threat to the public health or safety.The MERB recommended the operating license to the DNR "as a model to be used on all future operating licenses."

On April 12, 1983, while the application for an operating license was pending, the Ottawa Circuit Court issued a preliminary injunction ordering a halt to further construction of the landfill.Relying on M.C.L. Sec. 299.430(4);M.S.A. Sec. 13.29(30)(4), the court held that, absent the adoption and approval of an Ottawa County Solid Waste Management Plan, ⁵ the Robinson Township ordinances applied to the construction of the landfill and that the township could proceed with its claim that the construction permit was granted in violation of the MEPA.

On July 26, 1983, the deputy director of defendant DNR recommended to the acting director that he issue plaintiff the license to operate the landfill.The deputy director acknowledged that the review of the Ottawa County Solid Waste Management Plan was pending, but stated that, in the absence of an improved plan, it was permissible to issue the license.Again on September 6, 1983, the acting director received a formal recommendation that the license be issued, this time from the acting chief of the ground water quality division of the DNR.

One day later, on September 7, 1983, the acting director approved the Ottawa County Solid Waste Management Plan, which specifically excluded plaintiff's landfill on the basis that it was located on a site which was inappropriate for such a waste disposal facility.On September 8, 1983, the acting director denied plaintiff's application for an operating license solely on the basis that he was forbidden to grant the license in light of M.C.L. Sec. 299.430(3);M.S.A. Sec. 13.29(30)(3), which provides:

"(3) The director shall not issue a license for the development or operation of a new solid waste disposal area or resource recovery facility in a plan area unless the facility complies with and is consistent with an approved solid waste management plan."

On October 6, 1983, plaintiff requested a contested case hearing before the DNR, pursuant to the Michigan Administrative Procedures Act, ⁶ to challenge the denial of the license.Shortly thereafter, on October 16, 1983, plaintiff received notice from the DNR hearings examiner that, because of a substantial backlog of pending cases, a prehearing conference would probably be set "sometime in the next several months."Before a hearing was scheduled, plaintiff started the instant action in Ingham Circuit Court to compel defendant DNR by preliminary injunction or writ of mandamus to issue plaintiff an operating license and to withdraw approval of the Ottawa County Solid Waste Management Plan until plaintiff's landfill was included in it.

On November 3, 1983, the Ingham Circuit Court issued an order to show cause why the DNR should not grant plaintiff an operating license and, further, why the DNR should not withdraw approval of the Ottawa County Solid Waste Management Plan until the inclusion of the landfill in the plan or, in the alternative, why the DNR should not be ordered to grant an immediate contested case hearing.Defendant county then filed a motion to intervene, which was granted on December 20, 1983.

Among other motions filed with its initial pleadings, defendant filed a motion to consolidate the within case with the related case still pending in the Ottawa Circuit Court.That motion was denied on January 11, 1984.On January 12, 1984, a hearing was held on the order to show cause and defendant's motion for accelerated judgment based on plaintiff's alleged failure to exhaust administrative remedies.

On April 19, 1985, in a written opinion, Ingham Circuit Judge Giddings denied defendant's motion for accelerated judgment on the grounds that exhaustion of administrative remedies was not required where a dispositive legal issue was present but no significant factual question.Judge Giddings held further that the acting director of the DNR had abused his discretion in refusing to grant plaintiff an operating license before the Ottawa County Solid Waste Management Plan was approved, because the director had no legal basis upon which to refuse to grant the license at that time.He ordered defendant DNR to issue plaintiff an operating license.

On May 14, 1985, plaintiff filed a motion for further equitable and declaratory relief, seeking a declaration that its landfill be declared to be included in the Ottawa County Solid Waste Management Plan as a matter of law.After two hearings on the motion, Judge Giddings ordered that plaintiff's landfill be included in the Ottawa County plan.On July 17, 1985, defendant's motion to stay enforcement of the writ of mandamus and the declaratory judgment was entered.Defendant county now appeals the trial court's decisions as of right, raising four issues.

First, defendant county claims that the trial court erred in refusing to consolidate the instant case with the Ottawa County case concerning the same landfill.A trial court's decision denying a motion to consolidate is reversible only in case of an abuse of discretion.⁷In its opinion in support of granting a writ of mandamus, the Ingham trial court in the instant case summarized the issues before the two respective courts:

"[T]he questions before the Ottawa Court are:

"1) whether issuance of the construction permit violates the Michigan Environmental Protection Act; and,

"2) whether operation of the Pine Valley facility is subject to certain township ordinances.

"The issues here are entirely different and are:

"1) whether the DNR Director properly approved the Ottawa County Solid Waste Disposal Plan; and,

"2) whether the DNR...