ALLEN, J.
Once again plaintiff township returns to this Court in its longstanding effort to preclude the operation of a solid waste landfill within plaintiff's boundaries in Chippewa County. On this occasion, plaintiff appeals from a November 15, 1985, order of the Chippewa Circuit Court denying plaintiff's motions for preliminary injunctions and dismissing plaintiff's complaint alleging violations of the Solid Waste Management Act, MCL 299.401 et seq.; MSA 13.29(1) et seq., and rules promulgated under that act. Plaintiff's prior attempt to set aside a construction permit issued to defendants Reid and to enjoin the operation of the landfill on grounds that it would be likely to pollute, impair or destroy the single source aquifer in the Dafter Township area was rejected by this Court in Dafter Twp v Reid, 131 Mich.App. 283; 345 N.W.2d 689 (1983), lv den 419 Mich. 903 (1984).
In August, 1980, the Eastern Upper Peninsula Regional Planning and Development Commission commenced drafting a twenty-year waste management plan for Mackinac, Chippewa and Luce Counties. In September, 1983, prior to the final approval of the tri-county plan, defendants Reid, owners of 43.6 acres of land in Dafter Township, were issued a license by defendant Department of Natural Resources to operate a Type II landfill. About the same time, the City of Marquette, which from 1940 to the early 1980's had operated a
In February, 1985, when Marquette first commenced sending its garbage to the Reids' landfill, plaintiff filed a complaint to enjoin the importation of the city's waste. On March 22, 1985, plaintiff filed a first amended complaint. Count I alleged that the City of Marquette was importing solid waste into Chippewa County for disposal at the Reids' landfill in violation of the solid waste management plan for Chippewa, Mackinac and Luce Counties (the tri-county area). Count I further alleged that no provision was made for Marquette in the solid waste management plans of either Marquette County, where the City of Marquette is located, or the tri-county area, thus entitling plaintiff to injunctive relief pursuant to MCL 299.433; MSA 13.29(33). Count II alleged that hazardous waste was dumped in the Reids' landfill in violation of both the Solid Waste Management Act, MCL 13.29(1); MSA 299.401, and the Hazardous Waste Management Act, MCL 299.501 et seq., MSA 13.30(1) et seq. Count III alleged that the Reids had violated various operating rules promulgated pursuant to the Solid Waste Management Act. Plaintiff also filed a petition for a preliminary
At a hearing held in Munising on March 28, 1985, acting Chippewa Circuit Judge Charles H. Stark elected to make findings of fact as to Count I which pertained to the importation issues raised in plaintiff's complaint. The court assumed the truth of all factual allegations in the first amended complaint and determined that disposal of solid waste without prior inclusion of the waste generator in the solid waste management plan would violate 1982 AACS, R 299.4711(e)(iii)(C). However, the court concluded that, since the Reids and Marquette executed their contract and the Reids received their license from the DNR prior to the DNR's approval of the tri-county area plan, the plan could not operate to exclude Marquette's waste disposal. Summary judgment in favor of defendants was granted on Count I. A hearing on Counts II and III was adjourned, and the parties were ordered to submit briefs addressing the issue of whether state regulation preempted plaintiff's suit.
On April 18, 1985, and April 24, 1985, respectively, plaintiff filed a notice of taking deposition and an amended notice of taking deposition. On April 24, 1985, the Reids filed a motion to arrest discovery pursuant to MCR 2.119, requesting that discovery be stayed since the court's decision on the preemption issue could resolve the case without the need for further discovery. On May 9, 1985, the court entered an order granting the Reids' motion until the court resolved the legal issues pertaining to Counts II and III. On June 23, 1985, plaintiff filed a motion for entry into the Reids' landfill for an inspection, a petition to
On July 12, 1985, plaintiff filed its second amended complaint against the Reids, Marquette, and the DNR. Count I alleged importation of solid wastes for disposal in the Reids' landfill from sources other than Marquette in violation of 1982 AACS, R 299.4711(e)(iii)(C), i.e., for failure to obtain inclusion in the tri-county area solid waste management plan. Count II alleged violations of MCL 299.407; MSA 13.29(7) and regulations promulgated pursuant to the Solid Waste Management Act by the disposal of hazardous waste in the Reids' landfill. Count III alleged various operational violations of Solid Waste Management Act rules. Injunctive relief was requested.
On July 23, 1985, the court entered an order granting plaintiff leave to amend its complaint, permitting plaintiff to have an inspection of the Reids' landfill, and barring all discovery except by way of interrogatories. Plaintiff's inspection took place on August 15 and 16, 1985.
On August 2, 1985, the DNR filed a motion for summary disposition pursuant to MCR 2.116(C)(8).
On August 27, 1985, plaintiff township filed (1) a motion for a preliminary injunction prohibiting importation of solid waste to the Reids' landfill from beyond the tri-county area, (2) a motion to open discovery, (3) a motion for a preliminary injunction to prevent the DNR from reviewing the Reids' operating license, and (4) a motion for a preliminary injunction to close the Reids' landfill until the Reids secured a disposal source for leachate generated by their landfill.
A two-day hearing and taking of testimony on plaintiff's four motions were held in September, 1985. On November 15, 1985, the trial court issued its opinion and order enjoining the Reids from
From the judgment of the trial court plaintiff appeals raising five issues as grounds for reversal of the judgment dismissing plaintiff's second amended complaint and denying an injunction on the importation of waste from localties outside the tri-county area. Defendants Reid cross-appeal the trial court's finding that their operating license had expired. We address the issues in a sequence different from that raised by plaintiff.
I. RESTRICTIONS ON DISCOVERY
Plaintiff argues that the trial court unreasonably restricted plaintiff's ability to obtain discovery under MCR 2.302. Plaintiff took the depositions of three the DNR officials on March 25, 1985, and was in the process of taking the depositions of three other DNR officials when the Reids' attorney filed a motion to arrest discovery on April 23, 1985, with a hearing set for April 29, 1985. The court signed an order arresting discovery on May 9, and on June 27, 1985, plaintiff moved to open discovery. Following a telephone conference call with Judge
It is plaintiff's contention that its ability to properly prepare its case for the crucial hearings on September 20 and 21, 1985, was severely limited due to the restrictions on discovery. Briefs of the DNR and the City of Marquette do not respond to this issue. Defendants Reid argue that in April, 1985, when it appeared that Dafter's complaint might be dismissed on the preemption issue, the court had good reason to arrest discovery until the court could resolve that issue and, after discovery was allowed, that plaintiff had approximately two months in which interrogatories could have been taken from any DNR official. We agree with defendants Reid.
MCR 2.302(C) permits the circuit court to limit discovery under the following circumstances:
(1) that the discovery not be had;
The test for review of orders of a circuit court regarding the scope of discovery is set forth in Masters v City of Highland Park, 97 Mich.App. 56, 60; 294 N.W.2d 246 (1980), lv den 409 Mich. 937 (1980):
Application of this test to the situation in the instant case discloses no unreasonable restriction on plaintiff's opportunity to discover. This is not a case where the township was unfamiliar with the disposal site or the operations being conducted thereon or the possibilities of pollution or harm to the environment. In 1981 the plaintiff had filed a complaint seeking to set aside a permit issued to the Reids to construct a Type II solid waste disposal area and to enjoin the operation thereof on grounds that it would be likely to pollute, impair, or destroy the natural resources in the township area. Dafter Twp v Reid, supra. Between February 26, when plaintiff filed suit, and April 23, 1985, when the motion to arrest discovery was filed, plaintiff had two months to take discovery. After the court's July 23, 1985, order allowing limited discovery, plaintiff had two months to subpoena
II. INVALID OPERATING LICENSE — REFUSAL TO ENJOIN
The two-year license to operate the landfill was first issued on September 9, 1983. A renewal application with the required $100 fee was received by the DNR on September 9, 1985. Plaintiff contends that the two-year period expired on September 8, 1985. The trial court found that the renewal was timely but, because the Reids had failed to comply with certain rules,
MCL 299.415(2); MSA 13.29(15)(2) provides:
The plain wording of the statute that the license expires after two years from the date of issuance refutes plaintiff's claim that the application was submitted to the DNR one day too late. A year means a calendar year. MCL 8.3j; MSA 2.212(10). Two calendar years after the date of issuance is September 10, 1985. Accordingly, we approve the trial court's refusal to find the renewal untimely.
However, we must also rule upon the validity of the trial court's decision that the operating license was no longer valid because of the violation of various rules issued under the Solid Waste Management Act. In reaching this decision, the trial judge rejected the application of § 91(2) of the Administrative Procedures Act, MCL 24.291(2); MSA 3.560(191)(2), to extend the operating license. MCL 24.291(2); MSA 3.560(191)(2) provides:
The operation of a landfill is clearly and indisputably an "activity of a continuing nature" as that term is used in § 91(2) of the Administrative Procedures Act. Clearly, therefore, the otherwise expired license in the instant case retained its effect until the DNR took action reviewing the license prior to September 9, 1985, as ordered by the trial court. Thus, the trial court's decision that defendants Reid were operating the landfill without a license in violation of MCL 299.413(1); MSA 13.29(13)(1) was error. However, the court's refusal to grant a temporary injunction was proper, although for the wrong reason. Warren v Howlett, 148 Mich.App. 417, 426; 383 N.W.2d 636 (1986).
III. TRIAL COURT'S REFUSAL TO RETAIN JURISDICTION
Plaintiff contends that because the Reids have continuously failed to comply with rules promulgated under the Solid Waste Management Act, and because the DNR has demonstrated an unwillingness to enforce those rules, the circuit court should have fashioned an oversight mechanism to insure that any license renewal granted by the DNR comported with the statute. Specifically, plaintiff asks that the Reids comport with the certification procedures set forth in 1982 AACS, R 299.4313, and that for this purpose the trial court should have retained jurisdiction.
Plaintiff cites no authority for this position in its brief on appeal. Therefore, the issue is not preserved. Three Lakes Ass'n v Whiting, 75 Mich.App. 564, 578-579; 255 N.W.2d 686 (1977). Further, we agree with the DNR that the issue is moot, it being conceded at oral argument that the DNR did renew the license.
IV. IMPORTATION — CITY OF MARQUETTE
V. IMPORTATION — OTHER SOURCES OUTSIDE THE TRI-COUNTY AREA
The key issues raised by plaintiff concern the trial court's refusal to grant injunctive relief, either temporary or permanent, against the importation of waste from outside the tricounty area. The primary purpose of plaintiff's complaint was to cut off the flow of waste, particularly the approximately fifty tons per day of garbage from the City of Marquette.
In equity cases, this Court must defer to the trial court's findings of fact unless it is convinced that it would have reached a contrary result. Kern v City of Flint, 125 Mich.App. 24, 27; 335 N.W.2d 708 (1983). See also MCR 2.613(C). The grant or denial of an injunction is committed to the sound discretion of the circuit court. Campau v National Film Co, 159 Mich. 169, 172-173; 123 NW 606 (1909); Hayes-Albion Corp v Kuberski, 108 Mich.App. 642, 657; 311 N.W.2d 122 (1981), modified 421 Mich. 170; 364 N.W.2d 609 (1984), reh den 421 Mich. 1202 (1985). In Wexford Co Prosecutor v Pranger, 83 Mich.App. 197, 205; 268 N.W.2d 344 (1978), this Court noted:
Application of the balancing test does not disclose that the trial court abused its discretion. On the one hand, imminent and irreparable injury will befall the City of Marquette if it is prevented from transporting its Type II refuse to the Reids' landfill. Within a few days, fifty tons of garbage per day piling up at the city's licensed compacting and transfer site will create a hazard to public health. Except for a licensed site at Menominee, there is no other available licensed site in the Upper Peninsula, and it is highly unlikely Menominee could or would accept Marquette's refuse. Further, Marquette was using the Reids' site only because its own landfill was ordered closed because of leakage.
On the other hand, the testimony at trial showed little, if any, harm to plaintiff township if an injunction were not granted. Irreparable harm could result to Dafter Township or the tri-county area in two ways: (1) if the dumping operations caused pollution or if hazardous waste were deposited in the landfill area; and (2) if the planned twenty-year capacity of the tri-county's landfill sites was compromised.
Similarly, plaintiff failed to show that the tri-county's capacity to handle anticipated waste over the next twenty years would be compromised if waste were imported from Marquette and from other communities both within and without Michigan. Proofs disclosed that the Reids' landfill, though mentioned in the tricounty plan, was not relied upon when the Planning Commission established the twenty-year capacity requirements for the tri-county area. Although the Planning Commission knew about the Reids' landfill, it chose not to rely upon it to meet the anticipated landfill requirements of the tri-county area. Consequently, disposal of waste from Marquette and from other communities outside the tri-county area will have no impact on the tri-county plan.
Furthermore, although the testimony disclosed that the Reids were accepting Type II waste from such distant points as East Jordan, Muskegon, and Menominee, the proofs did not indicate whether
Undaunted by any failure to obtain injunctive relief under the balancing or imminent danger test, counsel for plaintiff argues that injunctive relief is nevertheless mandated by reason of the violation of rules promulgated by the director of the DNR. Pursuant to MCL 299.430(1); MSA 13,29(30)(1), the director of the DNR promulgated 1982 AACS, R 299.4701 et seq. These rules, effective January 6, 1982, explain and amplify the statutory procedure for the development and implementation of a solid waste management plan. Specifically, plaintiff claims a violation of the Solid Waste Management Act because of Marquette's failure to comply with Rule 299.4711 which states:
Rule 299.4711(e)(iii)(C) was specifically relied upon in two recent decisions of this Court affirming a trial court's injunction which prevented a landfill operator in county A from receiving waste imported from county B until the amendment of the two counties' solid waste management plans. Saginaw Co v Sexton Corp of Michigan, 150 Mich.App. 677; 389 N.W.2d 144 (1986), lv pending (Docket No. 78575); Fort Gratiot Charter Twp v Kettlewell, 150 Mich.App. 648; 389 N.W.2d 468 (1986), lv pending (Docket No. 78573). Plaintiff asserts these cases are controlling. We respectfully disagree.
While the Reids' disposal site is not identified in the Marquette County plan (no plan having yet been finalized in Marquette County), at no place in the record has plaintiff established that the Reids' landfill was not identified in the importing municipalities' (other than Marquette) county plans. Thus, as to importation from East Jordan, Muskegon, Menominee and sources outside the tri-county area other than Marquette (Issue v, supra), Rule 299.4711(e)(iii)(C) provides no basis for enjoining importation.
Because plaintiff established that the Reids' landfill was not identified in a Marquette plan, a closer question is involved as to the waste imported from Marquette County (Issue IV, supra). Nevertheless, we find Sexton Corp and Kettlewell
Similarly, the Kettlewell Court reasoned that the purpose of the rule was to insure that a plan adopted by one county will not be disrupted by disposal of waste from another county.
Plaintiff township, located in St. Clair County, sought an injunction to stop defendants from disposing solid waste from Macomb County. At a four-day trial, testimony disclosed that the Macomb County plan listed five landfill sites outside Macomb County for disposal but did not include plaintiff township site and the St. Clair County plan provided for receipt of St. Clair County waste only. Based on this, the trial court concluded that the clear implication of the plans was that the Kettlewell site was not intended as a location for the depositing of Macomb County waste. Unlike the case before us, no testimony disclosed that disposal of Macomb waste in St. Clair County would not reduce the planned capacity or otherwise prejudice the St. Clair twenty-year plan.
We refuse to extend the rule in Sexton and Kettlewell to situations where the evidence at trial affirmatively disclosed that importation of waste from another county would not prejudice or compromise the receiving county's twenty-year plan. Nothing in the Solid Waste Management Act specifically precludes the importation of waste from one county to another as long as the waste is deposited in a licensed landfill. While violation of Rule 299.4711(e)(iii)(C) may constitute grounds for an injunction in certain instances, it is not grounds for an injunction where the proofs disclose that the incoming waste (1) does not constitute a
Affirmed. No costs, a question of public importance being involved.
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