CITY OF ROMULUS V ENVIRONMENTAL DISPOSAL SYSTEMS
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STATE OF MICHIGAN
COURT OF APPEALS
CITY OF ROMULUS,
UNPUBLISHED
October 15, 1999
Plaintiff-Counter-Defendant Appellee,
v
No. 207850
Wayne Circuit Court
LC No. 93-330171 CE
ENVIRONMENTAL DISPOSAL SYSTEMS,
INC.,
Defendant-Counter-PlaintiffAppellant.
Before: Bandstra, C.J., and Markey and Talbot, JJ.
PER CURIAM.
Defendant appeals as of right from an order granting plaintiff’s request for permanent injunctive
relief. Defendant also challenges two prior orders granting partial summary disposition to plaintiff. We
reverse and remand.
Defendant is a company in the business of disposing of hazardous waste. In 1990, it acquired
an interest in some land in the city of Romulus on which it intended to build and operate a deep injection
hazardous waste well. By the summer of 1993, defendant had obtained outside financing in the amount
of five million dollars from the Detroit Policemen and Firemen Retirement System and permission to drill
the well from state and federal agencies. Defendant also received informal support for the well project
from the mayor of Romulus and various other city officials. In July and August of 1993, defendant
drilled the well at a cost of over two million dollars. During the entire period of time during which
defendant was preparing for the project, both defendant and Romulus city officials operated under the
assumption that the city’s zoning ordinances were not applicable to the project. All parties involved
apparently believed that the local zoning ordinances were preempted by state and federal law.
Accordingly, defendant made no effort to comply with the city’s zoning ordinances when it began
construction on the well.
Municipal elections were scheduled for November 1993. In September 1993, a candidate
challenging for a position on the city counsel voiced her opposition to defendant’s well project at a
council meeting. Over the following weeks, other city residents began to make similar protestations. In
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October 1993, at the urging of the mayor, the Romulus City Council voted to file a lawsuit against
defendant to stop the project. This action sought to enjoin defendant’s planned use of the well site to
dispose of hazardous wastes. Plaintiff alleged that it was entitled to such relief because a deep injection
hazardous waste well was not a permitted use in the area zoned M-1 light industrial. Plaintiff also
alleged that defendant violated various local ordinances when it commenced drilling the well without
submitting a site plan to the planning commission or securing the proper permits.
In response, defendant filed an answer and a counterclaim seeking a declaration that plaintiff
could not regulate the proposed well site. Defendant alleged that local regulation of the well project was
preempted by state and federal law. Defendant also alleged, in the alternative, that plaintiff should be
estopped from enforcing its local regulations and that its claim was barred by laches. In January 1994,
the trial court issued a preliminary injunction preventing defendant from operating the well. The parties
brought cross motions for summary disposition on the preemption issue. In an opinion and order dated
July 5, 1994, the trial court reasoned that plaintiff’s local control over the construction of hazardous
waste facilities was not preempted. Accordingly, the trial court granted plaintiff’s motion for summary
disposition and denied defendant’s motion for summary disposition. This put an end to the preemption
issue in the trial court.
The remaining issues (defendant’s compliance with plaintiff’s zoning regulations and plaintiff’s
right to enforce its zoning ordinances) were litigated over the following three years. In May of 1996, the
trial court affirmed the decision of the Romulus Zoning Board of Appeals that a deep injection
hazardous waste well was not a permitted use in the M-1 zoning district and that defendant was not
entitled to a use variance. In August 1996, plaintiff moved for summary disposition on defendant’s
affirmative defenses and the remaining counts in defendant’s counterclaim. In an opinion and order
dated February 18, 1997, the trial court granted plaintiff’s motion in its entirety. Finally, in November
1997, the trial court entered a judgment providing that, for the reasons stated in its February 18, 1997,
order, defendant was permanently enjoined from using the property at issue as an underground injection
well for the disposal of waste.
On appeal, defendant argues that the trial court erred in denying its motion for summary
disposition and granting plaintiff’s motion for summary disposition on the issue of preemption by state
law. This Court reviews de novo a trial court’s decision on a motion for summary disposition to
determine if the moving party was entitled to judgment as a matter of law. Guerra v Garratt, 222
Mich App 285, 288; 564 NW2d 121 (1997).
Where state law expressly provides that the state’s authority to regulate in a specified area is
exclusive, municipal regulation in the same specified area is preempted. People v Llewellyn, 401 Mich
314, 323; 257 NW2d 902 (1977), citing Noey v Saginaw, 271 Mich 595; 261 NW 88 (1935). In
1993, when defendant drilled its deep injection well and plaintiff filed suit to enjoin defendant’s use of
the well, the disposal of hazardous waste in Michigan was governed by the Hazardous Waste
Management Act (HWMA), MCL 299.501 et seq.; MSA 13.30(1) et seq.1 Defendant contends that
the local zoning ordinances and permit requirements were expressly preempted by § 21 of the HWMA,
which provided as follows: “A local ordinance, permit requirement, or other requirement shall not
prohibit the construction of a treatment, storage, or disposal facility.”2 We agree that the language of §
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21 unambiguously stood for the proposition that the construction of a hazardous waste disposal facility,
including the siting of such a facility, was a matter outside the bounds of local control. See Cascade
Twp v Cascade Resource Recovery, Inc, 118 Mich App 580, 586-587; 325 NW2d 500 (1982),
remanded 422 Mich 882; 367 NW2d 68 (1985), modified after remand 428 Mich 894; 403 NW2d
811 (1987); see also Groveland Twp v Jennings, 419 Mich 719, 728; 358 NW2d 888 (1984)
(explaining that in the absence of certain particular circumstances, local ordinances are preempted by
the HWMA); Southeastern Oakland Co Incinerator Authority v Avon Twp, 144 Mich App 39, 47;
372 NW2d 678 (1985) (Shepherd, P.J., concurring).
Plaintiff does not dispute the proposition that § 21 provided for the exclusive state control of
hazardous waste disposal facilities regulated by the HWMA. Instead, plaintiff contends that there was
no preemption because defendant’s facility was exempted from regulation under the HWMA, including
§ 21. Section 26(3) of the HWMA provided, in part, as follows:
The director [of the Department of Natural Resources (DNR)] may promulgate rules
which exempt certain hazardous wastes and certain treatment, storage, or disposal
facilities from all or portions of the requirements of this act . . . upon a determination by
the director that a hazardous waste, or a treatment, storage, or disposal facility, is
adequately regulated under other state or federal law, and that scientific data supports a
conclusion that an exemption will not result in an impairment of the department’s ability
to protect the public health and the environment . . . [MCL 299.526(3); MSA
13.30(26)(3), repealed by 1994 PA 451, § 90101].
Presumably, the purpose of this provision was to avoid duplicative regulation.3 Pursuant to § 26(3), the
director of the DNR promulgated 1985 AACS, R 299.9503, which provided, in part, as follows:
(3) The following shall be deemed to have an operating license if the listed
conditions are met:
(a) The owner or operator of an injection well disposing of hazardous waste, if
the owner or operator meets the following requirements:
(i) Has a permit for underground injection issued under the provisions of 40
C.F.R. parts 124, 144, 145, 146, and 147, subpart X.
(ii) Complies with the conditions of that permit and the requirements of the
provisions of 40 C.F.R. § 144.14.
***
It is undisputed that defendant met the two requirements listed in Rule 299.9503(3)(a).
The rules of statutory construction apply to administrative rules. MCL 24.232(1); MSA
521.21. Under the clear language of Rule 299.9503(3)(a), defendant was made exempt from the
requirement of securing an “operating license.” An “operating license” was required before a person
could “conduct, manage, maintain, or operate a treatment, storage, or disposal facility.” See MCL
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299.522 – 524; MSA 13.30(22) – 30(24), repealed by 1994 PA 451, § 90101. Contrary to
plaintiff’s contention, however, the rule exempting defendant from the operating license requirement
does not amount to an exemption from the entire HWMA. For instance, in addition to the requirement
of an operating license, a person seeking to “establish” a disposal facility was also required to obtain a
“construction permit.” See MCL 299.518; MSA 13.30(18), repealed by 1994 PA 451, § 90101. A
construction permit could only be awarded after completion of a detailed site review process pursuant
to which local concerns related to siting were taken into consideration. See MCL 299.520; MSA
13.30(20). It is clear that Rule 299.9503 did not exempt defendant from the requirement of securing a
construction permit. Subsections (1) and (2) of that rule expressly provided that certain persons were
exempt from the requirement of obtaining an operating license as well as from the requirement of
obtaining a construction permit. Given the inclusion of the construction permit exemption in subsections
(1) and (2) of Rule 299.9503, its omission from subsection (3) should be construed as intentional. Cf.
Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501 NW2d 76 (1993) (“Courts cannot
assume that the Legislature inadvertently omitted from one statute the language that it placed in another
statute, and then, on the basis of that assumption, apply what is not there.”). Because Rule
299.9503(3)(a) expressly exempted defendant from the operating license requirement only, and not
from other applicable sections of the HWMA, we reject plaintiff’s contention that defendant’s facility
was wholly exempt from regulation under the HWMA.
In a related argument, plaintiff contends that a disposal facility made exempt from the
construction permit requirement should be made subject to local zoning ordinances and other local
regulation regarding site approval. Plaintiff relies on Groveland Twp, supra, for this proposition. In
Groveland Twp, supra at 729, our Supreme Court held that a facility made exempt from the
construction permit requirement by § 16 of the HWMA (a “grandfather clause”) was subject to local
ordinances governing land use and the construction of such facilities. Because defendant was not made
exempt from the construction permit requirement by Rule 299.9503(3)(a), or by any other statute or
regulation,4 plaintiff’s contention is without merit.
Accordingly, because (1) § 21 of the HWMA expressly provided that state’s authority to
regulate the construction of defendant’s facility was exclusive, and (2) defendant’s facility was not made
wholly exempt from regulation under the HWMA, we conclude that state law preempted the city’s local
control over the construction of defendant’s facility. Therefore, we hold that the trial court’s conclusion
on the issue of state law preemption was erroneous.
Given our resolution of the state preemption issue we need not address defendant’s arguments
regarding federal preemption or plaintiff’s right to enforce its zoning ordinances.
Reversed and remanded for entry of an order granting summary disposition in favor of
defendant. We do not retain jurisdiction.
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/s/ Jane E. Markey
/s/ Michael J. Talbot
1
The HWMA has since been repealed and recodified as Part 111 of the Natural Resources and
Environmental Protection Act (NREPA), MCL 324.101 et seq.; MSA 13A1.1 et seq. Part 111 of the
NREPA, which is substantially the same as the former HWMA, became effective on March 30, 1995.
Inexplicably, both parties refer to Part 111 of the NREPA rather than to the HWMA despite the fact
that the HWMA was the controlling authority during the relevant time period. Given the substantial
similarity between the two statutory schemes, we assume they have done so for the sake of
convenience. Accordingly, we will read their references to Part 111 of the NREPA as being references
to the corresponding statutes in the HWMA.
2
It is beyond dispute that defendant’s deep injection hazardous waste well fit the definition of a disposal
facility. Section 3(7) of the HWMA defined “disposal facility” as “a facility or part of a facility at which
managed hazardous waste, as defined by rule, is intentionally placed into or on any land or water and at
which hazardous waste will remain after closure.”
3
If defendant’s facility was made wholly exempt from regulation under the HWMA due to duplicative
federal regulation, the dispositive preemption issue in this case would be whether plaintiff’s local
ordinances were preempted by the duplicative federal regulation.
4
In making its argument that defendant was exempt from the construction permit requirement of the
HWMA, plaintiff relies in part on a private letter dated February 27, 1992, from James F. Cleary, then
director of the DNR, to State Senator Jim Berryman. In the letter, which discussed a deep injection
well other than the one involved in this case, Clearly states that “it is the Department’s position that [an
HWMA] construction permit is not required for underground injection wells [deemed to have an
operating license under 1985 AACS R 299.9503(3)].” Cleary’s letter suggests that, in February of
1992, the DNR had adopted a position contrary to the clear language of its own administrative rules.
Because the issue whether a local ordinance is preempted by state law depends on the nature of the
legal scheme in place rather than on a state agency’s enforcement of the legal scheme in place, Cleary’s
private articulation of the DNR’s “position” regarding the HWMA’s construction permit requirement is
irrelevant. Finally, whether defendant actually complied with the regulations imposed by the HWMA,
including the construction permit requirement, is not an issue before this Court.
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