Ramsey v. Michigan Underground Storage Tank Financial Assur. Policy Bd., Docket No. 167618

• Decision Date: 27 April 1995
• Docket Number: Docket No. 167618
• Citation: 533 N.W.2d 4,210 Mich.App. 267
• Parties: George E. RAMSEY, III, Petitioner-Appellant, v. MICHIGAN UNDERGROUND STORAGE TANK FINANCIAL ASSURANCE POLICY BOARD, Respondent-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 4

533 N.W.2d 4

210 Mich.App. 267

George E. RAMSEY, III, Petitioner-Appellant, v. MICHIGAN UNDERGROUND STORAGE TANK FINANCIAL ASSURANCE POLICY BOARD, Respondent-Appellee.

Docket No. 167618.

Court of Appeals of Michigan.

Submitted Feb. 9, 1995, at Lansing.

Decided March 27, 1995.

Approved for Publication

April 27, 1995, at 9:00 a.m.

Released for Publication June 19, 1995.

Clark, Klein & Beaumont by Thomas S. Nowinski and Sherwin E. Zamler, Detroit, for petitioner.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., and A. Michael Leffler and Diane L. Galbraith, Asst. Attys. Gen., for respondent.

Before FITZGERALD, P.J., and TAYLOR and MARKMAN, JJ.

PER CURIAM.

Petitioner appeals as of right from a decision of the Michigan Underground Storage Tank Financial Assurance Policy Board that denied petitioner's application for funds under the Michigan Underground Storage Tank Financial Assurance Act (MUSTFA), M.C.L. § 299.801 et seq.; M.S.A. § 13.29(201) et seq. We affirm.

Petitioner owned land that was leased by Clark Oil and operated as a gas station until January 14, 1989. During an attempt to properly close the underground storage tanks located on the property, it was discovered that the tanks had leaked. A report was made on January 25, 1989. On June 26, 1990, petitioner filed a claim under the MUSTFA that was denied by the MUSTFA administrator on January 4, 1991. While the administrator cited several reasons for the denial of the claim, at issue in this appeal is the administrator's finding that, because petitioner's discovery and report of the leakage occurred before the July 18, 1989, effective date of an amendment of the MUSTFA, petitioner's claim was not covered by the act.

Petitioner requested a review of the administrator's decision, which was upheld after a February 22, 1991, public meeting. Petitioner then requested a contested-case hearing, which was held before a hearing referee on September 4, 1991. On January 14, 1992, the referee submitted his proposal for decision with a recommendation that petitioner's claim be honored. The MUSTFA administrator filed exceptions and proposed conclusions of law and petitioner filed a response.

The MUSTFA board entered its final order on September 22, 1992. In this order, the board adopted the referee's findings of fact and the MUSTFA administrator's proposed conclusions of law and denied funds to petitioner. The circuit court affirmed the board's decision.

Petitioner first asserts that although the circuit court agreed with the board's position that the amendment was being applied prospectively, the application of the amendment has a retroactive effect. This argument rests on the premise that the amendment affected petitioner's eligibility for funds by adding a new requirement for eligibility: that the release be discovered and reported on or after July 18, 1989.

In support of this position, petitioner argues that the 1989 amendment was neither remedial nor procedural, but rather affected a substantive right, i.e., eligibility for MUSTFA funds. However, the Michigan Supreme Court has held that

it is presumed that provisions added by the amendment affecting substantive rights are intended to operate prospectively. Provisions added by the amendment that affect substantive rights will not be construed to apply to transactions and events completed prior to its enactment unless the legislature has expressed its intent to that effect or such intent is clearly implied by the language of the amendment or by the circumstances surrounding its enactment. [Hurd v. Ford Motor Co., 423 Mich. 531, 535, 377 N.W.2d 300 (1985).]

Here, the Legislature had made its intent absolutely clear: an owner or operator of an underground storage tank will be eligible for funds only if the release "was discovered and reported on or after July 18, 1989." M.C.L. § 299.809(1)(a); M.S.A. § 13.29(209)(1)(a). ¹ Hence, the asserted retroactive effect is permissible. Consequently, petitioner must meet all eligibility requirements of the act as amended to qualify for funds. Lahti v. Fosterling, 357 Mich. 578, 587-588, 99 N.W.2d 490 (1959). The trial court properly affirmed the board's denial of funds on the basis that petitioner discovered and reported the leak before July 18, 1989.

Petitioner also asserts that his right to MUSTFA funds had vested and that the amendment therefore cannot be applied retroactively. However, this Court has stated:

The question of determining what is a vested right has always been a source of much difficulty to all courts. The right which [plaintiff] claim[s] sprang from the kindness and grace of the legislature. It is the general rule that that which the legislature gives, it may take away. A statutory defense, or a statutory right, though a valuable right, is not a vested right, and a holder thereof may be deprived of it. [Riza v. Delray...