Oscoda Chapter of PBB Action Committee, Inc. v. Department of Natural Resources, 61403

• Decision Date: 01 August 1978
• Docket Number: No. 61403,61403
• Parties: OSCODA CHAPTER OF PBB ACTION COMMITTEE, INC., a Michigan non-profit Corporation and Nelson Yoder, President of said Oscoda Chapter, Individually and in his official capacity, Plaintiffs- Appellants, v. DEPARTMENT OF NATURAL RESOURCES, a Department of the State of Michigan, and Howard A. Tanner, Director, Defendants-Appellees. 403 Mich. 215, 268 N.W.2d 240
• Court: Michigan Supreme Court

Page 240

268 N.W.2d 240

OSCODA CHAPTER OF PBB ACTION COMMITTEE, INC., a Michigan

non-profit Corporation and Nelson Yoder, President

of said Oscoda Chapter, Individually and in his official capacity, Plaintiffs- Appellants, v. DEPARTMENT OF NATURAL RESOURCES, a Department of the State

of Michigan, and Howard A. Tanner, Director,

Defendants-Appellees.

No. 61403.

403 Mich. 215, 268 N.W.2d 240

Supreme Court of Michigan.

Aug. 1, 1978.

James M. Olson, Traverse City, William Rastetter, Cedar, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Stewart H. Freeman, Don L. Keskey, Asst. Attys. Gen., Lansing, for defendants-appellees.

LEVIN, Justice.

The issue before the Court is whether to grant plaintiffs' application for leave to appeal the denial of a temporary restraining order by the Oscoda County circuit judge. Specifically, plaintiffs sought to block the burial, in a pit lined with 20 feet of clay, of animals whose level of polybrominated biphenyl (hereafter PBB) exceeded the 20 parts per billion standard provided in 1977 P.A. 77, the PBB act. ¹

The PBB act, in providing that the director of the Department of Natural Resources "shall * * * bury or dispose" of PBB-contaminated cattle, empowers him to decide whether to dispose of the cattle by burial, incineration or any other means.

The circuit judge found that the possibility of liquid escaping the clay-lined pit "is almost non-existent" and that even if it were to escape "it would be innocuous", and that the clay-lined pit provides "absolute protection".

Those findings preclude a determination under the environmental protection act ² that it is "likely" that burial of PBB-contaminated cattle in the clay-lined pit will "pollute, impair or destroy the air, water or other natural resources or the public trust therein." Absent a likelihood of environmental pollution or impairment, the circuit court is without power to consider whether incineration is a "feasible and prudent alternative."

The temporary restraining order is dissolved and the cause is remanded to the circuit court for appropriate further proceedings on plaintiffs' complaint.

I

In his findings of fact, opinion and recommendation of June 21, 1978, the circuit judge said that the "originally proposed burial pits for the PBB-contaminated cattle in the former action (commenced by the County of Oscoda against the Department of Natural Resources) were found as an ultimate fact to likely impair and pollute the water table of Oscoda County in violation of § 3(1)" of the environmental protection act.

On November 8, 1977 the director of the DNR announced his decision to proceed with the burial of PBB-contaminated cattle by modifying the design of the originally proposed burial pit to include a 20-foot clay lining.

In April, 1978 this action was commenced to block the burial of contaminated animals in the clay-lined pit. On plaintiffs' application A factual basis for the judge's finding that "incineration is a preferred method of disposal whenever available" is not stated. The stated basis is that a guideline issued by the federal Environmental Protection Agency indicates that, in the order of options, incineration is less desirable than recycling and more desirable than landfill and long-term storage. That generalization is followed by a statement of reasons why incineration is not practicable at this time. ³

for leave to appeal from the circuit judge's refusal to grant a temporary restraining order, this Court granted a stay and subsequently, in lieu of leave to appeal, remanded the cause to the Oscoda County Circuit Court "for an evidentiary hearing and detailed factual findings on the issues raised by plaintiffs' complaint," but did not in terms seek recommendations.

The circuit judge then stated that landfill disposition is, in the language of the environmental protection act, a "feasible and prudent alternative at the current proposed site":

"a) The amount of contamination found in each of the cows proposed for burial by the State is extremely small, averaging approximately 65.3 parts per billion and equaling approximately 3/10 of one ounce for all of the cows condemned during the period October 3, 1977 through June 6, 1978. Further, the level of contamination is expected to decrease during each succeeding year.

"b) PBB is found almost exclusively in the body fat of the contaminated animals and is not expected to be released onto the clay liner during the burial operations.

"c) PBB is characteristically an organic substance which is highly insoluble in water, but extremely soluble in body fat and organic matter.

"d) The amount of PBB found in the contaminated animals proposed for burial is generally far less than the amount of PBB permitted under federal standards for sale to the public as meat for human "e) PBB because it attracts strongly toward organic matter, will in all probability attract to and bind to the organic matter found in the cow carcasses, and will remain with the organic matter through various levels of organic decomposition and regeneration, resulting in the PBB molecules remaining with an organic layer of material left by the degeneration of the cow carcasses.

consumption, which federal standard is 300 parts per billion.

"f) In the event that any PBB molecule did not disintegrate or remain with the organic layer represented by the degenerated cow carcasses, it would in all probability travel in association with other organic molecules and thereby bind with the sand located around the carcasses or at the clay liner at the bottom of the pit and at those points where the organic molecules adsorb to the soil and become bound thereto.

"g) The clay utilized in the liner at the Oscoda burial site is highly impermeable with the greatest permeability being 3 X 10 -7 centimeters per second, with most samples being far less permeable. Thus, any liquid flowing from the carcasses will settle atop the clay liner for lengthy periods of time equaling many decades in the least, during which time any PBB molecule would become attached to organic matter and bound to the clay particles.

"h) The burial pit is engineered, designed, and constructed to prevent entrance of water from rain, snow melt, or other sources and to provide the water a path of least resistance around the clay burial vault.

"i) With the lack of water entering the burial vault, the maximum liquid located in the vault is represented by the liquid found in the cow carcasses themselves. Thus, due to the nature of clay to retain its moisture and because of capillary action, any animal liquid could travel no further than 9.39 feet into the clay liner where it would remain suspended indefinitely without exiting the bottom of the clay liner. The seepage of any such liquid into the clay liner would also reduce the unit head in the vault area to 0, thus eliminating any pressure to push the liquid along through the clay.

"j) The clay liner has been properly constructed to comply fully with the option provided in the court's opinion of September 29, 1977 and its order dated November 1, 1977. The source clay was obtained from the marsh pit comprising clay of the CH/CL type and was found to be highly impermeable with a maximum permeability coefficient of 3 X 10 -7.

"(i) X 10 -7 means 1 foot per year.

"(ii) X 10 -7 equals 200 years for the 20 foot clay liner.

"(iii) Some of the clay tested at 2.2 X 10 -9 (0.0000000022) or 10,000 years to move through the liner.

"k) The clay liner was constructed under supervision of state officials, with compaction tests establishing 95% or better compaction of each clay layer. In addition, the clay utilized consisted of highly desirable fine grains comprising 75-90% five microns or less, far exceeding the engineering specifications.

"l) Being placed in the ground, the burial vault is designed so as to retain the clay's moisture and to eliminate any stress or stability problems that could lead to cracking of the clay.

"m) Slight cracking of the clay liner in surface areas exposed to drying is a minor problem which is not indicative of the interior bulk of the clay liner on both the sides and bottom, in view of the state supervisors' continuing diligence in insuring the quality of compaction, lack of cracking, removal of drying fluff, and removal of rain-caused slop, prior to compacting a suceeding layer. Further, surface cracking can readily be repaired by removal of the cracked surface followed by recompaction of the top 6 inches.

"n) The cows will be buried with burial sand starting from one end of the pit to the other in a manner that will reduce the chance of rainfall increasing the amount of liquid found in the pit. Further, the burial of the first pit will be "o) The clay utilized to construct the burial pit is suited for such purpose because of its high impermeability, due to its uniform small particle size and due to moderate plasticity and liquidity parameters along with its ease of compaction.

speedily completed in view of the inventory of cows presently held by the state and should not comprise more than several days.

"p) Decomposition of the carcasses will be primarily of anerobic nature due to the lack of oxygen in the burial vault, the constant temperatures, and the lower temperatures expected in the vault located below the frost line. Decomposition of the carcasses will be slow and will not result in the buildup of gas to an amount likely to exit the clay liner.

"q) To the extent that any gas is produced over a long period of time, it will absorb into porous areas of the burial sand and into the clay liner itself.

"r) The floor of the burial pit is located approximately 45 feet above the groundwater table which is itself immersed in sandy and silty material.

"s) The chance that liquid in the burial vault will exit the 20 foot clay liner is almost non-existent, but even if any liquid exited the clay liner, it would be innocuous due to the...