South Haven Tp. v. Department of Natural Resources

• Citation: 346 N.W.2d 923,132 Mich.App. 222
• Decision Date: 16 March 1984
• Docket Number: Docket No. 69547
• Parties: SOUTH HAVEN TOWNSHIP, a Michigan General Law Township, Petitioner-Appellee Cross-Appellant, v. DEPARTMENT OF NATURAL RESOURCES and Director, Michigan Department of Natural Resources, Respondents-Appellants Cross-Appellees. 132 Mich.App. 222, 346 N.W.2d 923
• Court: Court of Appeal of Michigan (US)

Page 923

346 N.W.2d 923

SOUTH HAVEN TOWNSHIP, a Michigan General Law Township, Petitioner-Appellee Cross-Appellant, v. DEPARTMENT OF NATURAL RESOURCES and Director, Michigan

Department of Natural Resources,

Respondents-Appellants Cross-Appellees.

Docket No. 69547.

132 Mich.App. 222, 346 N.W.2d 923

Court of Appeals of Michigan.

Submitted Nov. 4, 1983.

Decided Feb. 8, 1984.

Released for Publication March 16, 1984.

[132 MICHAPP 224] Hartwig, Crow, Jones & Portelli by John L. Crow, St. Joseph, for petitioner-appellee cross-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Terrance P. Grady, Asst. Atty. Gen., for respondents-appellants cross-appellees.

Before MacKENZIE, P.J., and GILLIS and MEGARGLE ^*, JJ.

PER CURIAM.

Respondents appeal as of right an order of the circuit court reversing the final decision of respondent director of the Department of Natural Resources affirming the denial by the Department of Natural Resources (DNR) of petitioner's application for renewal of a license to [132 MICHAPP 225] operate its landfill. We affirm the court's order as clarified in this opinion.

The landfill involved in the instant case had been operated by plaintiff for approximately 20 years. In 1981, respondent DNR denied petitioner's application for a renewed license based on petitioner's failure to institute a hydrogeological monitoring program as required under Sec. 14(2) of the Solid Waste Management Act, M.C.L. Sec. 299.401 et seq.; M.S.A. Sec. 13.29(1) et seq. Respondent DNR also based its denial of the license on petitioner's failure to comply with certain DNR rules promulgated under the predecessor statute to the Solid Waste Management Act which set forth restrictions relative to burning of refuse, cover, compaction, salvaging, grading, and drainage of surface water.

The circuit court reversed, concluding that respondent DNR had impermissibly demanded compliance with provisions of the Solid Waste Management Act in violation of the Headlee Amendment, Const.1963, art. 9, Sec. 29. However, the court found substantial evidence supporting respondents' conclusion that petitioner had violated the aforementioned rules promulgated under the predecessor statute which were in effect prior to adoption of the Headlee Amendment. The court ordered that, if petitioner submitted to respondent DNR a written promise to comply with those rules, respondent DNR could not deny petitioner's reapplication for a license on the basis of these past deficiencies. The court's order also stated that those provisions of the Solid Waste Management Act which did not offend the Headlee Amendment could be enforced by respondent DNR.

The Headlee Amendment became effective December 22, 1978, prior to the January 11, 1979, [132 MICHAPP 226] effective date of the Solid Waste Management Act, M.C.L. Sec. 299.401 et seq.; M.S.A. Sec. 13.29(1) et seq. As pertinent to the instant case, the Headlee Amendment provides that the "state is prohibited from requiring any new or expanded activities by local governments without full state financing", Const.1963, art. 9, Sec. 25, and similarly provides:

"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.

The circuit court concluded that, even though petitioner was not required to operate a landfill under the Solid Waste Management Act or its predecessor, any new requirements for licensure imposed under the Solid Waste Management Act which were not imposed under the predecessor statute came within the scope of the above-quoted portions of the Headlee Amendment. In short, the circuit court reasoned that where a local government was engaged in an activity prior to adoption of the Headlee Amendment, regardless of whether that activity itself is required by the state or not, any new requirements imposed by the state to lawfully continue that activity fall within the scope of the Headlee Amendment. We find it unnecessary to so expansively interpret the scope of the Headlee Amendment in order to resolve the dispute in the present case.

Section 24 of the Solid Waste Management Act provides:

"A municipality or county shall assure that all solid [132 MICHAPP 227] waste is removed from the site of generation, frequently enough to protect the public health, and are [sic ] delivered to licensed solid waste disposal areas * * *." M.C.L. Sec. 299.424; M.S.A. Sec. 13.29(24).

The predecessor statute, while providing for licensing and regulation of refuse disposal facilities, contained no such provision. We agree with the holding in Delta County v. Dep't of Natural Resources, 118 Mich.App. 458, 325 N.W.2d 455 (1982), lv. den. 414 Mich. 954 (1982), that Sec. 24 imposes upon municipalities a new duty to take steps necessary to assure the proper disposal of solid waste. We reject as contrary to the plain language of the statute respondents' contention that Sec. 24 does not impose any such duty.

The record in the present case reflects that petitioner's operation of its landfill, while initially voluntarily undertaken under the predecessor statute, is now required to satisfy its duty under Sec. 24 of the Solid Waste Management Act. Consequently, any new, post-Headlee requirements for licensure imposed under the Solid Waste Management Act, i.e., requirements which did not exist under the pre-Headlee predecessor statute or rules promulgated thereunder, constitute state laws requiring an increased level of activity by petitioner, and thus may not be enforced by defendant unless petitioner is provided with state funds to cover any necessary increased costs. Delta County, supra; Const.1963, art. 9, Secs. 25, 29. We are unpersuaded by respondents' argument that, because licensure requirements were imposed prior to Headlee, the state may now change or add to those requirements without the Headlee Amendment's applying to those new requirements.

The circuit court found that two particular provisions of the Solid Waste Management Act represented[132 MICHAPP 228] new post-Headlee requirements for licensure, compliance with which would occasion increased expenditures by petitioner: the hydrogeological monitoring system required by Sec. 14(2) of the act and the amount of bond required under Sec. 19 of the act. Our comparison of the Solid Waste Management Act with the predecessor statute and rules promulgated thereunder confirms the court's determination that these are new licensure requirements which did not exist prior to the Headlee Amendment.

Section 14(2) of the Solid Waste Management Act provides as follows:

"(2) The department shall not license a landfill facility operating without an approved hydrogeologic monitoring program until the department receives a hydrogeologic monitoring program and the results of the program." M.C.L. Sec. 299.414(2); M.S.A. Sec. 13.29(14)(2).

1982 AACS, R 299.4305(2)-(3), promulgated pursuant to the Solid Waste Management Act, provides as follows:

"(2) The hydrogeological characteristics of the site shall be determined by a study including onsite testing or from earlier reliable survey data to indicate soil conditions, groundwater level, and subsurface characteristics. * * *

"(3)...