DEPARTMENT OF ENVIRONMENTAL QUALITY V TOWNSHIP OF WORTH
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STATE OF MICHIGAN
COURT OF APPEALS
DEPARTMENT OF ENVIRONMENTAL
QUALITY and DIRECTOR OF THE
DEPARTMENT OF ENVIRONMENTAL
QUALITY,
FOR PUBLICATION
August 17, 2010
9:00 a.m.
Plaintiffs-Appellees,
v
No. 289724
Ingham Circuit Court
LC No. 07-000970-CE
TOWNSHIP OF WORTH,
Defendant-Appellee.
Before: OWENS, P.J., and SAWYER and O’CONNELL, JJ.
SAWYER, J.
In this case, we are asked to determine whether Michigan’s Natural Resources and
Environmental Protection Act (NREPA)1 empowers the Department of Environmental Quality to
require a township to install a sanitary sewer system where there is a widespread failure of
private septic systems resulting in contamination of lake waters. We hold that it does not.
Defendant is a common law township in Sanilac County along the shores of Lake Huron.
It does not operate a public sanitary sewer system. All of the residences and businesses within
the township rely on private septic systems for waste disposal. A problem has developed with a
number of those private septic systems located on a strip of land approximately five miles long
located between highway M-25 and Lake Huron. Some of these septic systems are failing,
resulting in effluent being discharged into Lake Huron and its tributaries. For the past several
years, plaintiff DEQ, as well as the county health department, has been pushing for defendant to
install a public sanitary sewer system. Defendant has declined to do so, concluding that such a
project was not financially feasible.
Defendant’s refusal to pursue a sanitary sewer project has resulted in the instant litigation
to force it to do so. The parties pursued cross-motions for summary disposition, resulting in an
order of the circuit court granting summary disposition to plaintiffs, establishing a time frame for
1
MCL 324.101 et seq.
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defendant to design, begin construction on and begin operating a sewer project intended to
remedy the failing septic systems and resulting discharges.2 The order also imposed a $60,000
fine and awarded attorney fees. Defendant appeals from this order and we reverse.
The resolution of this case rests upon the proper interpretation and application of MCL
324.3109(2) and MCL 324.3115. Like a motion for summary disposition, we review a question
of statutory interpretation de novo. Bush v Shabahang, 484 Mich 156, 164; ___ NW2d ___
(2009). Plaintiffs look to the first statute to establish defendant’s responsibility for the discharge
from the private septic systems into the waters of Lake Huron and then look to MCL 324.3115
for the remedy of requiring defendant to install and operate a public sanitary sewer system. We
are not persuaded that MCL 324.3109(2) imposed the responsibility on defendant that plaintiffs
suggest that it does.
MCL 324.3109 provides in pertinent part as follows:
(2) The discharge of any raw sewage of human origin, directly or
indirectly, into any of the waters of the state shall be considered prima facie
evidence of a violation of this part by the municipality in which the discharge
originated unless the discharge is permitted by an order or rule of the department.
If the discharge is not the subject of a valid permit issued by the department, a
municipality responsible for the discharge may be subject to the remedies
provided in section 3115. If the discharge is the subject of a valid permit issued
by the department pursuant to section 3112, and is in violation of that permit, a
municipality responsible for the discharge is subject to the penalties prescribed in
section 3115.
(3) Notwithstanding subsection (2), a municipality is not responsible or
subject to the remedies provided in section 3115 for an unauthorized discharge
from a sewerage system as defined in section 4101 that is permitted under this
part and owned by a party other than the municipality, unless the municipality has
accepted responsibility in writing for the sewerage system and, with respect to the
civil fine and penalty under section 3115, the municipality has been notified in
writing by the department of its responsibility for the sewerage system.
2
Technically speaking, the trial court’s order does not specifically compel the construction of a
sanitary sewer project. Rather, it refers to defendant’s obligation “to take necessary corrective
action” and then establishes a time frame for that action. The time frame refers to a deadline for
defendant to submit for the DEQ’s approval a “proposed service area” as well as deadlines for
the design, approval by the DEQ, construction, and beginning of operations of “the project.”
But, in light of plaintiffs’ explicit statement that it views as the only practical option the
construction of a municipal sewer system, it seems rather apparent that “the project” is a sanitary
sewer system constructed and operated by defendant. In any event, as discussed later in this
opinion, we conclude that there is no statutory authority to grant plaintiffs the power to
determine the appropriate remedy.
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Defendant argues that MCL 324.3109 does not impose responsibility upon a municipality for any
discharge that occurs within its jurisdiction, but merely creates a rebuttable presumption that the
municipality was the source of the discharge. We agree.
First, we must look to the meaning of “prima facie evidence.” Because this is a legal
term not defined by the statute, we may consult a legal dictionary.3 Black’s Law Dictionary (5th
ed), p 1071, defines “prima facie evidence” as follows:
Evidence good and sufficient on its face; such evidence as, in the
judgment of the law, is sufficient to establish a given fact, or the group or chain of
facts constituting the party’s claim or defense, and which if not rebutted or
contradicted, will remain sufficient. Prima facie evidence is evidence which, if
unexplained or uncontradicted, is sufficient to sustain a judgment in favor of the
issue which it supports, but which may be contradicted by other evidence.
Prima facie evidence is evidence that, until its effect is overcome by other
evidence, will suffice as proof of fact in issue; “prima facie case” is one that will
entitle party to recover if no evidence to contrary is offered by opposite party.
Evidence which suffices for the proof of a particular fact until contradicted and
overcome by other evidence. Evidence which, standing alone and unexplained,
would maintain the proposition and warrant the conclusion to support which it is
introduced. An inference or presumption of law, affirmative or negative of a fact,
in the absence of proof, or until proof can be obtained or produced to overcome
the inference. [Citations omitted.]
This definition makes it abundantly clear that prima facie evidence is rebuttable. Thus, MCL
324.3109(2) clearly does not make a municipality automatically and conclusively responsible for
a discharge of raw sewage. Rather, it merely creates the presumption that the municipality is
responsible until and unless the municipality is able to establish that it did not violate Part 31 of
NREPA, which deals with the protection of water resources. Defendant advances a particularly
compelling argument that it is not the source of the violation: it does not operate any sanitary
sewer system that could be the source of the discharge.
Second, we look to the meaning of the phrase “by the municipality.” This phrase is key
because it answers plaintiffs’ contention that MCL 324.3109(2) imposes responsibility for a
discharge upon a municipality without regard to the source of the discharge. That is, plaintiffs
argue that any discharge of raw sewage within a municipality constitutes prima facie evidence of
a violation by the municipality even if the municipality is not the source of the discharge. We
disagree. The word “by” has many meanings. As a nonlegal term, we look to a layman’s
dictionary rather than a legal one. Horace v City of Pontiac, 456 Mich 744, 756; 575 NW2d 762
(1998). We find these from the Random House Webster’s College Dictionary (2d ed) to be
particularly helpful: “10. through the agency of” and “12. as a result or on the basis of.” Thus,
3
Nuculovic v Hill, 287 Mich App ___; ___ NW2d ____ (No. 280216, issued 1/5/2010), slip op
at 5.
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MCL 324.3109(2) imposes responsibility on the municipality not merely because the violation
occurs within the boundaries of the municipality, but when the violation occurs “through the
agency of” the municipality or “as a result” of the municipality. That is to say, where it is the
actions of the municipality that leads to the discharge.
The argument that the municipality must actually cause the discharge is further buttressed
by a third factor. MCL 324.3109(3) explicitly states that a municipality is not responsible for a
discharge from a sewerage system that is not operated by the municipality unless the
municipality has accepted responsibility in writing for the sewerage system. If the purpose of
subsection (2) was to impose liability upon a municipality merely because a discharge occurred
within its boundaries, then subsection (3) becomes contradictory.
Indeed, an argument advanced by plaintiffs in an issue that we need not reach, whether
the state is obligated to fund the sewer system under the Headlee Amendment4 if defendant is
compelled to construct one, further reinforces this argument. Plaintiffs argue that the obligation
of a township to install a sanitary sewer system predates the Headlee Amendment and, therefore,
does not constitute a new local obligation that the Headlee Amendment compels the state to
fund. In making this argument, plaintiffs look to the former statute, MCL 323.6, which states in
pertinent part that any “city, village or township which permits, allows or suffers the discharge of
such raw sewage of human origin into any of the waters of the state by any of its inhabitants or
persons occupying lands from which said raw sewage originates, shall be subject only to the
remedies provided for in section 7 of this act.”
Assuming for the sake of argument that such a remedy included a compulsory installation
of a sanitary sewer system,5 while perhaps saving the state from being obligated to fund a sewer
system in Worth Township if the current statute would continue to impose such an obligation, it
only serves to underscore that no such obligation exists. While Part 31 of NREPA parallels the
former act in many respects, there are some very noticeable differences. First, while the old
section 6 specifically refers to a “city, village or township,” the modern section 3109 refers more
generally to “municipality,” a word that, as will be discussed below, carries a much broader
definition. But even more importantly, while the old section 6 specifically addresses the issue of
a city, village or township that allows a discharge to occur by any of its inhabitants, there is no
such language in the current statute which links responsibility for actions of an inhabitant to a
particular governmental body. It is a basic rule of statutory construction that a change in the use
of words by the Legislature is intentional and reflects a similar change in meaning.6 So if, as
4
See Const 1963, art IX, §§ 25 and 29.
5
Given the lack of any clear mandate in the former MCL 323.7 of such a remedy, this would
seem to be a great assumption indeed, particularly in light of the failure of past panels of this
Court to find any such obligation. See, e.g., McSwain v Redford Twp, 173 Mich App 492, 499500; 434 NW2d 171 (1988) (“we do not believe defendant was required by statute to install a
sanitary sewer system under the instant circumstances”); Ahearn v Bloomfield Charter Twp, 235
Mich App 486, 494-495; 597 NW2d 858 (1999) (just because a township has provided sanitary
sewer service does not mean that it is under a continuing duty to do so).
6
Bush, 484 Mich at 167.
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plaintiffs argue, the old statute did impose an obligation on a township to install a sanitary sewer
system in response to an inhabitant discharging sewage, then it follows that the change in
wording of the statute reflects an intent by the Legislature to remove such an obligation.7
For these reasons, we agree with defendant’s interpretation of subsection (2). Where an
unauthorized discharge occurs, the presumption arises that the municipality within whose
boundaries the event occurs is responsible for the violation unless the municipality can establish
that the discharge did not occur as the result of actions by the municipality. Where, as here, the
municipality could not be the source of the discharge because it does not operate a sanitary sewer
system, it has overcome that presumption and is not subject to the statutory remedies for a
discharge.
In any event, even if we were to agree with plaintiffs that MCL 324.3109(2) creates a
responsibility by a municipality for an authorized discharge of raw sewage and the municipality
is thus subject to the remedies of section 3115, plaintiffs face another hurdle: the definition of
“municipality.” For purposes of Part 31 of NREPA, MCL 324.3101(m) supplies a particular
definition of “municipality: “this state, a county, city, village, or township, or an agency or
instrumentality of any of these entities.” Thus, the state is as much a municipality as is
defendant. And, by extension, the state bears as much responsibility for the unauthorized
discharges at issue in this case as does defendant. And the state is as liable to the remedies of
section 3115 as is defendant. Thus, even if we were to agree with plaintiffs that MCL
324.3109(2) imposes upon a “municipality” the responsibility of installing a sanitary sewer
system to abate a problem with the discharge of raw sewage, plaintiffs offer no compelling
reason why it should be permitted to shift its own responsibility to install a sanitary sewer onto
defendant. Or, to put it another way, if plaintiffs are entitled to prevail in this action, then we see
no reason why defendant could not counterclaim against plaintiffs and prevail in a claim seeking
to require plaintiffs to install the sewer system.
Indeed, if the purpose of section 3109(2) is to impose responsibility on a governmental
unit, it would seem that the legislative intent would be to make the DEQ the primary responsible
agency because the Legislature had available to it the use of a term that did not include the state,
namely “local unit.” MCL 324.3101(l), defines “local unit” to mean “a county, city, village, or
township or an agency or instrumentality of any of these entities.” The only difference between
the definition of “local unit” and “municipality” in section 3101 is the inclusion of “this state” in
the definition of “municipality” and not in the definition of “local unit.” The Legislature’s
7
Indeed, plaintiffs’ argument in this respect places them in a logical corner. If the prior statute
did impose a duty on a township to install a sanitary sewer in these circumstances, then the
change in statutory language of necessity did away with that duty. But if no such duty existed
under the previous statute and the current statute does, then the Headlee Amendment obligates
the state, of which the DEQ is an agency, to provide the funding in order for plaintiffs to compel
defendant to install such a system.
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choice of “municipality” rather than “local unit” in section 3109(2) must have been intentional8
and it must have been for the purpose of imposing liability on the state as well as a local unit.
But the more logical explanation is that section 3109(2) simply is not designed to
establish responsibility for a discharge without causation. If the Legislature intended to, as
plaintiffs suggest, impose responsibility upon a governmental unit where an inhabitant causes a
discharge, why would it use a term that would simultaneously impose such responsibility upon
three or four units of government9 and without any clear mandate as to which of those units were
responsible? But if we interpret the statute as suggested by defendant, then the statute creates the
presumption that each of those units of government are the cause of the discharge and each
avoids responsibility when it establishes that it was not the source of the discharge.
In sum, we hold that MCL 324.3109(2) does not impose blanket responsibility upon a
municipality for any sewage discharge that occurs within its jurisdiction without regard to cause
and a corresponding obligation to remedy such discharges. Rather, it merely creates the
presumption that such a discharge originated with the municipality. But where, as here, the
municipality, defendant in this case, cannot be the cause of the discharge, it holds no
responsibility for the discharge. And, therefore, there is no basis to impose upon defendant the
obligation to pursue a remedy desired by plaintiffs, the installation of a public sanitary sewer
system. The trial court should have granted summary disposition to defendant, not to plaintiffs.
In light of our resolution of this issue, we need not address the remaining issues raised by
defendant.
The order of the circuit court granting summary disposition to plaintiffs is reversed. The
matter is remanded to the circuit court with instructions to enter an order of summary disposition
in favor of defendant. We do not retain jurisdiction. Defendant may tax costs.
/s/ David H. Sawyer
/s/ Donald S. Owens
8
See Bush, 484 Mich at 167.
9
Under the term “municipality, the state and the county would always be responsible, as well as
the city or township. And, if not a city, then it would be possible for a village within a township
to also be responsible.
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