ATTORNEY GENERAL V BULK PETROLEUM CORP
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STATE OF MICHIGAN
COURT OF APPEALS
ATTORNEY GENERAL ex rel the
DEPARTMENT OF ENVIRONMENTAL
QUALITY,
FOR PUBLICATION
September 18, 2007
9:05 a.m.
Plaintiff-Appellee,
v
No. 264207
Ingham Circuit Court
LC No. 01-094742-CE
BULK PETROLEUM CORPORATION,
DARSHAN'S MICHIGAN STATIONS ONE,
INC., and DARSHAN S. DHALIWAL,
Defendants-Appellants.
Official Reported Version
Before: Whitbeck, C.J., and Bandstra and Schuette, JJ.
PER CURIAM.
Defendants appeal as of right from the trial court's order denying their motion for the
reduction of a $1,090,000 penalty and granting plaintiff 's motion for additional penalties of
$1,418,900. We affirm.
I. FACTS
In 1986, defendants acquired the former Bulk Station 3612, a retail gas station, located at
2020 North US-23 in Hartland, Michigan, from Chevron, Inc. The property had five
underground storage tanks that leaked petroleum from approximately 1986 to 1999. The
problem was not corrected, and in 1993 the Department of Natural Resources (DNR), the
predecessor of the Department of Environment Quality (DEQ),1 issued a unilateral
administrative order (UAO). The UAO required defendants to implement free product removal,
install a groundwater treatment system, provide monthly reports to the DEQ, and provide the
DEQ with copies of their contracts with qualified consultants. Defendants failed to comply with
the requirements of the UAO, and they also failed to submit a final assessment report (FAR)
1
The DNR's environmental functions were transferred to the DEQ by Executive Reorganization
Order 1995-18, effective October 1, 1995. MCL 324.99903.
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detailing their progress in remediating the site as required by § 21311a, MCL 324.21311a, of
part 213 of the Natural Resources and Environmental Protection Act (NREPA), MCL
324.21301a et seq.
On August 10, 2000, the DEQ imposed a $29,400 penalty on defendants for failing to
submit a statutorily complete FAR, but defendants did not pay the penalty. In October 2000,
defendants began excavating the contaminated soil from the site. On December 17, 2001, the
Attorney General, on the relation of the DEQ, filed a complaint against defendants in the circuit
court requesting that the court order defendants to comply with the UAO and the NREPA.
Plaintiff moved for summary disposition, and on July 8, 2003, defendants stipulated that they
were liable for violations of the UAO and the NREPA. Plaintiff then sought penalties in the
amount of $3,364,400.
Defendants' consultant had submitted a FAR in October 2002; however, the DEQ
determined that the FAR was statutorily incomplete and instructed defendants to correct the
deficiencies in a timely manner. Defendants hired a new consultant, Northern Environmental
Technologies, Inc., to prepare a new FAR.
At a hearing on August 5, 2003, the trial court imposed a $1,090,000 penalty on
defendants for their failure to submit a statutorily complete FAR. The trial court also stated that
it would monitor defendants' actions and make "any adjustments to penalties for the violations as
alleged in the Motion for Summary Disposition." On October 30, 2003, defendants submitted a
statutorily complete FAR to the DEQ. The DEQ then submitted a letter to defendants
commenting on the FAR and requesting modifications. Defendants paid the $1,090,000 penalty
on December 9, 2003.
On January 21, 2005, the DEQ moved for additional penalties, seeking the remainder of
the $3,364,400 originally asked for, and defendants brought a motion to reduce the original
$1,090,000 penalty. At a March 8, 2005, hearing, the trial court denied defendants' motion and
granted plaintiff 's motion for additional penalties in the amount of $1,418,900, taking into
account the seriousness of defendants' violations and defendants' noncompliance. The trial court
also ruled that defendants waived a statute of limitations defense to the penalties by stipulating
the entry of an order of summary disposition on the issue of liability on July 8, 2003.
Defendants now appeal.
II. IMPOSITION OF THE PENALTIES
Defendants argue that the trial court erred in imposing $1,090,000 in penalties at the
August 5, 2003, hearing and $1,418,900 in penalties at the March 8, 2005, hearing. We disagree.
A. Standard of Review
The interpretation and application of a statute constitutes a question of law that this Court
reviews de novo. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658
NW2d 139 (2003).
B. Analysis
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1. The August 5, 2003, Penalties
On August 5, 2003, the trial court assessed $1,090,000 in penalties against defendants for
their failure to submit a statutorily complete FAR. Defendants challenge the trial court's
imposition of those penalties on three grounds. First, defendants assert that they should have
been required to pay only the $29,400 in penalties imposed by the DEQ for their failure to
submit a FAR because the trial court had no authority under MCL 324.21313a(1) to impose a
higher penalty. Second, defendants contend that plaintiff failed to meet his evidentiary burden to
support the imposition of the penalties. Finally, defendants argue that the trial court erred in
failing to consider the seriousness of defendants' violations and any good-faith effort by
defendants to comply with the NREPA when imposing the penalties. We disagree.
a. The Trial Court's Authority to Impose the Penalties
Section 21311a of part 213 of the NREPA provides that "[w]ithin 365 days after a release
has been discovered, a consultant retained by an owner or operator shall complete a final
assessment report [FAR] that includes a corrective action plan developed under section 21309a
and submit the report to the [DEQ]." MCL 324.21311a(1).
Further, if a FAR is not completed within the statutory time frame, then the DEQ may
impose graduated penalties according to the following schedule:
(a) Not more than $100.00 per day for the first 7 days that the report is
late.
(b) Not more than $500.00 per day for days 8 through 14 that the report is
late.
(c) Not more than $1,000.00 per day for each day beyond day 14 that the
report is late. [MCL 324.21313a(1).]
Additionally, § 21323(1)(d) of part 213 authorizes the Attorney General to commence a
civil action on behalf of the DEQ and to seek several remedies for noncompliance, including
[a] civil fine of not more than $10,000.00 for each underground storage tank
system for each day of noncompliance with a requirement of [part 213] or a rule
promulgated under [part 213]. A fine imposed under this subdivision shall be
based upon the seriousness of the violation and any good faith efforts by the
violator to comply with the part or rule. [MCL 324.21323(1)(d).]
Defendants contend that because the plain language of MCL 324.21313a(1) only
authorizes the DEQ to impose penalties for an untimely FAR, the trial court was without
authority to assess the $1,090,000 penalties against defendants. We disagree.
As an initial matter, we note that defendants failed to raise this argument below.
Therefore, it is not properly preserved for appellate review. Brown v Loveman, 260 Mich App
576, 599; 680 NW2d 432 (2004) (noting that, as a general rule, this Court does not review issues
that are not raised and decided by the trial court). Nonetheless, we will address this unpreserved
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issue because it presents a question of law and the necessary facts are before us, and because
addressing it is necessary for a proper determination of this case. Heydon v MediaOne of
Southeast Michigan, Inc, 275 Mich App 267, 278; 739 NW2d 373 (2007).
Turning now to the merits of defendants' argument, while defendants technically are
correct that under the plain language of MCL 324.21313a(1) the trial court did not have the
authority to impose penalties for defendants' untimely FAR, the trial court had the authority
under MCL 324.21323(1)(d) to impose penalties of up to "$10,000.00 for each underground
storage tank system for each day of noncompliance with a requirement of [part 213] or a rule
promulgated under [part 213]." It is undisputed that defendants were required to submit a FAR
no later than October 1, 1996, and that a statutorily complete FAR was not submitted until
October 30, 2003. An untimely FAR is a violation of "a rule promulgated under [part 213]."
Therefore, we conclude that the trial court had the authority under MCL 324.21323(1) to impose
the $1,090,000 in penalties for defendants' untimely FAR. And although the trial court erred in
assessing penalties under MCL 324.21313a(1), because it was authorized to assess those same
penalties under MCL 324.21323(1), we must affirm the trial court's order. Hess v Cannon Twp,
265 Mich App 582, 596; 696 NW2d 742 (2005) ("'A trial court's ruling may be upheld on appeal
where the right result issued, albeit for the wrong reason.'" [Citation omitted.]).
b. Plaintiff 's Evidentiary Burden
Defendants also argue that plaintiff failed to meet his evidentiary burden to justify the
trial court's imposition of the $1,090,000 penalty at the August 5, 2003, hearing because plaintiff
failed to present any evidence or testimony at the penalty hearing. Plaintiff counters that he did
not need to produce evidence at the hearings because defendants had already stipulated the
violations underlying the penalty when plaintiff moved for summary disposition on the issue of
defendants' liability. We agree with plaintiff.
MCL 324.21323(1)(d) does not impose a burden of proof on plaintiff to support the
imposition of penalties. Instead, it provides for the imposition of penalties when there is
"noncompliance with a requirement of [part 213] or a rule promulgated under [part 213]."
Again, MCL 324.21311a (a rule promulgated under part 213) requires submission of a FAR
"[w]ithin 365 days after a release has been discovered . . . ." Here, defendants stipulated in
response to the motion for summary disposition that they failed to submit a statutorily complete
FAR within the time required, and at the penalty hearing plaintiff provided the trial court with a
penalty summary that outlined the penalty sought for the FAR violation. Therefore, because
there was sufficient evidence of defendants' violation and the penalty sought by plaintiff for the
violation, we conclude that defendants' argument is without merit.
c. The Trial Court's Consideration of the Statutory Criteria
Defendants further argue that the penalties imposed on August 5, 2003, must be reversed
because the trial court failed to consider "the seriousness of the violation and any good faith
efforts by the violator to comply," as required under MCL 324.21323(1)(d). Again, we disagree.
It is undisputed that from 1986 through 1993 there were a series of releases of petroleum
from the underground storage tanks on defendants' property. And, again, defendants did not
dispute that they failed to submit a statutorily complete FAR. Indeed, defendants' environmental
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consultant testified that defendants had still not submitted a statutorily complete FAR at the time
of the penalty hearing. Thus, evidence of the seriousness of defendants' ongoing violations was
before the trial court. Further, the record shows that the trial court specifically noted defendants'
continued noncompliance before reaching its decision to impose penalties for the untimely FAR.
Therefore, we are satisfied that the trial court considered the appropriate factors when it imposed
the August 5, 2003, penalties.
2. The March 8, 2005, Penalties
Next, defendants challenge the trial court's imposition of additional penalties of
$1,418,900 at the March 8, 2005, hearing. Again, defendants assert that plaintiff failed to meet
the evidentiary burden and that the trial court failed to consider the seriousness of defendants'
violations and defendants' efforts to comply before imposing the penalties. We disagree.
a. The Trial Court's Consideration of the Statutory Criteria
In imposing additional penalties, the trial explicitly stated that it was "taking into account
the seriousness of the violations, the defendants['] noncompliance up to October 30th, 2003, and
the defendants['] compliance since that time." However, despite this explicit statement,
defendants argue that the trial court was required to articulate the specific evidence it relied on to
support its imposition of penalties. We disagree.
MCL 324.21323(1)(d) requires the following: "A fine imposed under this subdivision
shall be based upon the seriousness of the violation and any good faith efforts by the violator to
comply with the part or rule." The statute does not explicitly require the court to elaborate on its
reasoning for imposing a penalty; rather, it requires the trial court to consider the seriousness of
the violation and any good-faith efforts. The record shows that the trial court took the
appropriate factors into consideration at the hearing when imposing additional penalties. The
trial court identified defendants' violations as both serious and ongoing. Therefore, the trial
court did not err in imposing the additional penalties under MCL 324.21323(1)(d) for violations
of the UAO.
b. Plaintiff 's Evidentiary Burden
Again, defendants argue that plaintiff failed to meet the evidentiary burden to justify the
trial court's imposition of the $1,418,900 at the March 8, 2005, hearing because plaintiff failed to
present any evidence or testimony at the penalty hearing. However, as previously discussed,
MCL 324.21323(1)(d) does not impose a burden of proof on plaintiff to support the imposition
of penalties. Further, as was the case at the August 5, 2003, hearing, defendants stipulated that
they had violated the UAO, and the DEQ provided the trial court with a penalty summary that
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outlined the violations and the corresponding penalties sought. Accordingly, plaintiff presented
sufficient evidence to support the imposition of the penalties in this case.2
III. STATUTE OF LIMITATIONS
Defendants also argue that at least some of the additional penalties imposed at the March
8, 2005, hearing were barred by the two-year limitations period set forth in MCL 600.5809(2).
Plaintiff counters that defendants waived the statute of limitations defense by not raising it at the
hearing on the motion for summary disposition or at the first penalty hearing. But even if the
defense was not waived, under MCL 600.5813, a six-year limitations period applies to this case.
We agree in part with plaintiff.
A. Standard of Review
"'"[A]bsent disputed questions of fact, whether a cause of action is barred by a statute of
limitations is a question of law that this Court . . . reviews de novo."'" Citizens Ins Co v Scholz,
268 Mich App 659, 662; 709 NW2d 164 (2005) (citations omitted).
B. Analysis
Plaintiff contends that defendants' failure to raise their statute of limitations defense in
response to plaintiff 's motion for summary disposition constituted a waiver of that defense. We
agree.
Affirmative defenses, such as a statute of limitations defense, must be raised in a party's
first responsive pleading or by motion filed not later than this responsive pleading. MCR
2.111(F)(2) and (3); see also VandenBerg v VandenBerg, 253 Mich App 658, 660; 660 NW2d
341 (2002). Additionally, under MCR 2.111(F)(3), affirmative defenses are to be listed under a
separate heading and must include the facts constituting such a defense. The party asserting an
affirmative defense has the burden of presenting evidence to support it. Palenkas v Beaumont
Hosp, 432 Mich 527, 548, 550; 443 NW2d 354 (1989). Here, in response to plaintiff 's
complaint, defendants filed an answer in which they simply asserted "Statute of Limitations" as
an affirmative defense. Defendants failed to provide any facts supporting such an affirmative
defense, or cite a specific, applicable statute of limitations. MCR 2.111(F)(2) states that, with
exceptions not relevant to this case, all defenses not properly asserted in a responsive pleading
are waived. Therefore, the adequacy of defendants' statement of their affirmative defense is
questionable.
Further, a statute of limitations defense is an affirmative defense that may be waived.
People v Everard, 225 Mich App 455, 461; 571 NW2d 536 (1997), citing Palenkas, supra at
551. Such a waiver may "'"be shown by a course of acts and conduct, and in some cases will be
implied therefrom."'" Burton v Reed City Hosp Corp, 471 Mich 745, 754 n 4; 691 NW2d 424
2
We note that at both hearings, defendants had the opportunity and, in fact, did present evidence
and testimony regarding the seriousness of their violations and their efforts toward compliance.
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(2005) (citations omitted). In Palenkas, our Supreme Court concluded that the defendant
hospital had waived a statute of limitations defense because "after neglecting to include factual
allegations in its answer, [the defendant] continued to ignore its burden of production" by not
submitting "any evidence on the statute of limitations issue in its case in chief." Palenkas, supra
at 550-551.
We conclude that defendants' failure to raise their statute of limitations defense in
response to plaintiff 's motion for summary disposition constituted a waiver of that defense.
Even if defendants had properly asserted a statute of limitations defense in their responsive
pleading, they failed to reiterate such a defense in response to plaintiff 's motion for summary
disposition. In the motion for summary disposition, plaintiff asserted that no genuine issue of
material fact existed with regard to defendants' liability for the alleged statutory violations. In
responding to the motion, defendants made no reference to any statute of limitations as an
affirmative defense to plaintiff 's claims. Instead, defendants merely stipulated with regard to
plaintiff 's claims and the entry of a subsequent order of judgment against them.
Subsequently, at the hearing to determine what, if any, penalties the trial court should
assess against defendants as a result of their admitted liability, defendants continued to remain
silent about a statute of limitations defense. Defendants also made no mention of a statute of
limitations defense when they filed a motion to stay the penalty payment date or when they
sought immediate appellate review of the order assessing the penalty and denying the stay of
payment of the penalty. Instead, defendants waited to assert their statute of limitations defense
until plaintiff moved for additional penalties at a subsequent hearing. Thus, under Palenkas, by
failing to raise a statute of limitations defense in response to plaintiff 's motion for summary
disposition and at the first hearing regarding penalties, defendants waived the defense. Clearly,
the purpose of plaintiff 's suit was to obtain penalties for defendants' violations and defendants'
stipulation with regard to liability was merely a threshold requirement to averring such penalties.
Defendants contend that it would have been inappropriate to assert a statute of limitations
defense at any earlier proceeding because the trial court had only imposed penalties for
defendants' failure to timely submit required reports during a period within the applicable period
of limitations. Instead, defendants argue that they raised the statute of limitations defense in
response to plaintiff 's motion for additional penalties because the amount of the penalties was
subject to the defense as a result of the timing of the violations to which they corresponded. We
disagree.
Defendants cite Horvath v Delida, 213 Mich App 620; 540 NW2d 760 (1995), for the
proposition that their own continuing wrongs prevent plaintiff from asserting that defendants
waived the statute of limitations defense by not raising it at the hearing on plaintiff 's motion for
summary disposition. In Horvath, this Court explained that, in certain cases, the doctrine of
continuing wrongs recognizes that "[w]here a defendant's wrongful acts are of a continuing
nature, the period of limitation will not run until the wrong is abated; therefore, a separate cause
of action can accrue each day that the defendant's tortious conduct continues." Id. at 626.
Defendants rely on the proposition that "[w]here the continuing-wrongful-acts doctrine applies,
the damages recoverable are limited to those occurring within the applicable limitation period
and, where appropriate, after the filing of the complaint." Id. at 627. Defendants' reliance on the
doctrine of continuing wrongs, however, is misplaced because this doctrine has thus far been
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given only limited application. Blazer Foods, Inc v Restaurant Properties, Inc, 259 Mich App
241, 247; 673 NW2d 805 (2003) (noting that the doctrine only applies in the limited cases of
trespass, nuisance, and civil rights violations).3
Finally, defendants assert that the two-year limitations period set forth in MCL
600.5809(2) of the Revised Judicature Act for actions "for the recovery of a penalty or forfeiture
based on a penal statute" is applicable to plaintiff 's original action for the imposition of civil
penalties under part 213 of the NREPA. In contrast, plaintiff contends that the general, six-year
limitations period under MCL 600.5813 applies. However, because defendants waived their
statute of limitations defense, we need not determine which limitations period applies to the
imposition of penalties under the NREPA.
IV. CONCLUSION
In sum, the trial court had the authority to impose the penalties sought by plaintiff under
MCL 324.21323(1). Further, because they failed to timely assert it, defendants waived their
statute of limitations defense. We affirm.
/s/ William C. Whitbeck
/s/ Richard A. Bandstra
/s/ Bill Schuette
3
We note that in Garg v Macomb Co Community Mental Health Services, 472 Mich 263, 284285; 696 NW2d 646 (2005), amended 473 Mich 1205 (2005), our Supreme Court rejected
application of the doctrine of continuing wrongs to claims filed under the Civil Rights Act, MCL
37.2101 et seq., and the Persons With Disabilities Civil Rights Act, MCL 37.1101 et seq.
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