Defendant, Wolverine Environmental Production, Inc., appeals by leave granted the trial court's partial grants of summary disposition in favor of plaintiffs Alcona County (Alcona) in Docket No. 196934 and Alpena County (Alpena) in Docket No. 199408. In each of these cases, consolidated on appeal, defendant failed to obtain soil erosion and sedimentation permits as required by plaintiff counties in connection with earth changes relating to defendant's natural gas well sites. In Docket No. 196934, the trial court determined that Alcona was not preempted by the Legislature from enforcing or implementing soil erosion programs, including a permit process; in Docket No. 199408, the trial court adopted the decision in Docket No. 196934 through collateral estoppel. We reverse and remand.
These cases involve a dispute over the authority granted by the Legislature to a county to manage soil erosion and sedimentation control under the Natural Resources and Environmental Protection Act (NREPA), M.C.L. § 324.101 et seq.; MSA 13A. 101 et seq. Defendant is involved in extensive natural gas drilling operations, including numerous gas wells, access roads, processing plants, and pipelines in Alcona and Alpena counties. For each of defendant's wells, defendant claims that it obtained a permit from the supervisor of wells,
Defendant failed to obtain permits from plaintiff counties in which its wells and ancillary activities were located. Thereafter, Alcona
During the pendency of its suit for permanent injunctive relief, Alcona filed a motion for a preliminary injunction, then withdrew its motion when defendant agreed to file permit applications in accordance with Alcona's ordinance and deposit permit fees into an escrow account. At this time, Alcona also filed a motion for summary disposition pursuant to MCR 2.116(C)(9) and (C)(10), regarding the issue of its authority to administer and enforce the statute. Defendant filed a motion to dismiss for failure to join the MDEQ and the supervisor of wells as necessary parties. On June 24, 1996, the trial court heard oral arguments regarding the parties' motions. The trial court stated that it would consider only the issue of jurisdiction between the county and the supervisor of wells, further stating that the question was whether the NREPA "grants jurisdiction [to counties] for the enforcement of ... access roads and pipelines." On July 17, 1996, the court issued its opinion and order, characterizing the case as a jurisdictional dispute between Alcona and the MDEQ/supervisor of wells regarding whether the supervisor of wells, under part 615, had essentially preempted Alcona's jurisdiction under part 91. The court found that the Legislature did not intend to vest power over ancillary well activities exclusively with the supervisor of wells or preempt counties from implementing their own soil erosion programs. Thus, the trial court granted Alcona's motion for partial summary disposition and struck defendant's affirmative defenses regarding jurisdiction.
Alpena also filed a motion for a preliminary injunction, which the trial court granted in June 1996.
This Court reviews decisions on motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Stehlik v. Johnson (On Rehearing), 206 Mich.App. 83, 85, 520 N.W.2d 633 (1994). A motion for summary disposition pursuant to MCR 2.116(C)(9) seeks a determination whether the opposing party has failed to state a valid defense to the claim asserted against it. In re Smith Estate, 226 Mich.App. 285, 288, 574 N.W.2d 388 (1997). It is tested by the pleadings alone, with the court taking all wellpleaded allegations as true and determining whether the defenses are so clearly untenable as a matter of law that no factual development could possibly deny the plaintiff's right to recovery. Id.
MCR 2.116(C)(10) permits summary disposition when, except for the amount of damages, there is no genuine issue concerning any material fact and the moving party is entitled to [judgment] as a matter
Summary disposition on the basis of collateral estoppel, as in the Alpena case here, is pursuant to MCR 2.116(C)(7), Lichon v. American Universal Ins. Co., 435 Mich. 408, 427, n. 14, 459 N.W.2d 288 (1990), and in considering a motion under that subrule, the court may consider all affidavits, pleadings, and other documentary evidence, construing them in the light most favorable to the nonmoving party. McFadden v. Imus, 192 Mich.App. 629, 632, 481 N.W.2d 812 (1992).'
In these cases, we are faced with a question of statutory interpretation, which is a question of law that this Court also reviews de novo. People v. Denio, 454 Mich. 691, 698, 564 N.W.2d 13 (1997). Construction of administrative rules is also governed by the principles of statutory construction. Attorney General v. Lake States Wood Preserving, Inc., 199 Mich.App. 149, 155, 501 N.W.2d 213 (1993). The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature. Shallal v. Catholic Social Services of Wayne Co., 455 Mich. 604, 611, 566 N.W.2d 571 (1997). The first step in determining intent is to look to the specific language of the statute. Barr v. Mt. Brighton, Inc., 215 Mich.App. 512, 516-517, 546 N.W.2d 273 (1996). When statutory language is clear and unambiguous, judicial interpretation to vary the plain meaning of the statute is precluded. United States Fidelity & Guaranty Co. v. Amerisure Ins. Co., 195 Mich.App. 1, 5, 489 N.W.2d 115 (1992). "Statutory language should be construed reasonably and the purpose of the statute should be kept in mind." Barr, supra at 516, 546 N.W.2d 273. Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, taking into account the context in which the words are used. People v. Lee, 447 Mich. 552, 557-558, 526 N.W.2d 882 (1994). Provisions of a statute are not construed in isolation, but, rather, in the context of other provisions of the same statute to give effect to the purpose of the whole enactment. Guitar v. Bieniek, 402 Mich. 152, 158, 262 N.W.2d 9 (1978). In examining the plain language of a statute, the maxim "expressio unius est exclusio alterius, "the expression of one thing is the exclusion of another, means that the express mention of one thing in a statute implies the exclusion of other similar things. Amerisure, supra at 5-6, 489 N.W.2d 115. Similarly, "where powers are specifically conferred they cannot be extended by inference"; indeed, the inference is that it was intended that no other or greater power was given than that specified. Eikhoff v. Charter Comm. of the City of Detroit, 176 Mich. 535, 540, 142 N.W. 746 (1913). Where an agency is charged to administer an act, as here, that agency's construction of the statute must be given deference, although it cannot be used to overcome the statute's plain meaning. Western Michigan Univ. Bd. of Control v. Michigan, 455 Mich. 531, 544, 565 N.W.2d 828 (1997).
In these cases, we must look to the NREPA to determine whether plaintiff counties had the authority to require defendant to obtain a county permit pursuant to part 91 for "earth changes" to well access roads, pipelines, and processing facilities. Specifically, we must look to the interactions of part 91, the administrative rules enacted pursuant to part 91, 1979 A.C., R. 323.1701-323.1714, and part 615. The stated purpose of part 91 is to provide and implement "a unified statewide soil erosion and sedimentation control program." MCL 324.9103; MSA 13A.9103, M.C.L. § 324.9104; MSA 13A.9104. To accomplish this purpose, M.C.L. § 324.9105; MSA 13A.9105 provides:
(2) The county board of commissioners, by resolution, shall designate a county agency, or a soil conservation district upon the concurrence of the soil conservation district, as the county enforcing agency
MCL 324.9101(10); MSA 13A.9101(10) defines "rules" as "the rules promulgated pursuant to section 9104." MCL 324.9104; MSA 13A.9104 states:
In accordance with these provisions in part 91, the Department of Natural Resources (now the MDEQ) promulgated administrative rules establishing, in part, permit requirements for certain "earth changes."
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In part 615, the supervisor of wells is granted broad powers over all matters related to the regulation of oil and gas wells, including the prevention of waste and the conservation of gas and oil. MCL 324.61505, M.S.A.§ 13A.61505 states:
"Waste" is defined in the statute to include, in part, "unreasonable damage to underground fresh or mineral waters," M.C.L. § 324.61501(p)(i)(B); MSA 13A.61501(p)(i)(B), and "unnecessary damage to or destruction of the surface; soils; animal, fish, or aquatic life; property; or other environmental values from or by oil and gas operations," M.C.L. § 324.61501(p)(ii)(B); MSA 13A.61501(p)(ii)(B). The supervisor of wells is specifically empowered to "do whatever may be necessary with respect to the subject matter stated in this part to implement this part, whether or not indicated, specified, or enumerated." MCL 324.61506(a); MSA 13A.61506(a). In addition, a person must apply for and receive a permit from the supervisor of wells before beginning to drill any well for oil or gas. MCL 324.61525; MSA 13A.61525. "A permit shall not be issued to an owner or his or her authorized representative who has not complied with or is in violation of this part or any of the rules, requirements, or orders issued
In the Alcona case below, and thus the Alpena case by the application of collateral estoppel, the trial court characterized the case as a jurisdictional dispute between Alcona and the supervisor of wells. The exact issue addressed by the trial court is not completely clear. The court seemed to believe that the issue was one of preemption, although the court mentioned preemption with regard to both enforcement of part 91 and implementation of a county's own system. However, in our judgment, we must answer two questions to determine whether defendant was required to obtain permits from the plaintiff counties in these cases. First, we must determine whether counties are granted the authority under part 91 either to enforce the act or to implement their own rules regarding soil and sedimentation. Second, if counties cannot implement their own independent rules, we must determine whether part 91 limits a county's authority to require permits for well access roads, pipelines, and processing facilities, in addition to wellheads.
Accordingly, to answer the first question and determine the authority of the counties here, we must look first to the language of part 91. "It is elementary that a county has only such powers as have been granted to it by the Constitution or the state Legislature." Alan v. Wayne Co. 388 Mich. 210, 245, 200 N.W.2d 628 (1972). MCL 324.9105(1); MSA 13A.9105(1) states that "[a] county is responsible for the administration and enforcement of the rules." (Emphasis added.) Pursuant to this responsibility, a county shall implement a resolution, which "may set forth a schedule of fees for inspections, plan reviews, and permits and may set forth other matters relating to the administration and enforcement of this part and the rules. "MCL 324.9105(2); MSA 13A.9105(2) (emphasis added). "The rules" are defined by the statute to mean "the rules promulgated pursuant to section 9104." MCL 324.9101(10); MSA 13A.9101(10). A plain reading of these provisions seems to evidence a clear legislative intent to vest counties with limited authority to enforce only the rules promulgated by the MDEQ. The provisions do not contain language allowing counties to implement their own rules. Because the power to enforce the state rules was specifically conferred by the Legislature, a reasonable inference is that it was intended that no other or greater power be given. Eikhoff, supra at 540, 142 N.W. 746. Thus, we will not infer a greater power, such as the power to implement separate county rules, unless such power is manifest within the statute in some way.
Second, looking to the context in which the language specific to county authority is found, we note that M.C.L. § 324.9106; MSA 13A.9106 provides: "A city, village, or charter township by ordinance may provide for soil erosion and sedimentation control on public and private land uses within its boundaries.... An ordinance may be more restrictive than ... this part and the rules." "(Emphasis added.) See Guitar, supra at 158, 262 N.W.2d 9. Thus, while the statutory language states that counties are to enact a resolution to "enforce" the MDEQ rules, cities, villages, and townships are expressly authorized to enact ordinances that are more restrictive than the rules. Under the maxim, "expressio unius est exclusio alterius," which means that the express mention of one thing in a statute implies the exclusion of another, Amerisure, supra at 5-6, 489 N.W.2d 115, the grant of authority to cities, villages, and township to provide for ordinances more restrictive than the state rules necessarily implies a restriction on county authority. While the Legislature could have similarly provided authority for counties to adopt ordinances more restrictive than the state rules if it wanted, the absence of such a provision implies that the Legislature intended that counties only adopt resolutions that are not more restrictive than the state rules. Counties are to merely "enforce" the state rules as given. In this case the maxim of interpretation supports the plain language analysis regarding county authority. See Amerisure, supra at 5-6, 489 N.W.2d 115.
Third, we recognize that the purpose of part 91 is to protect Michigan waters and soil from the pollution of soil erosion and sedimentation through the implementation of a
In our judgment, based on these factors, the trial court, improperly determined that counties were allowed to implement their own soil erosion programs in the Alcona case and thus improperly applied that determination in the Alpena case by collateral estoppel. Instead, counties are only granted the authority by the Legislature to enforce the rules promulgated by the MDEQ. Indeed, Alcona and Alpena do not seem to argue that they are granted any authority to implement their own rules. Rather, they argue that their actions were merely enforcement of part 91 and the administrative rules as they interpreted them. Defendant, however, asserts that even if the counties did have the power to enforce the rules, the permits issued under part 615 exempted it from the permit requirements for well pads, flow lines, surface facilities, and access roads. Accordingly, we must now address the second question at issue in these cases to determine whether plaintiffs were allowed to "enforce" part 91 permit requirements for ancillary well functions.
To determine whether the Legislature and the MDEQ intended that a part 91 permit be required for "earth changes" connected with the access roads, pipelines, and processing facilities of wells for which a part 615 permit has already been issued, we must again look first to the language of the statute and rules at issue. MCL 324.9112; MSA 13A.9112 mandates:
A person shall not maintain or undertake a land use or earth change governed by this part or the rules or governed by an applicable local ordinance, except in accordance with this part and the rules or with the applicable local ordinance and pursuant to a permit approved by the appropriate county or local enforcing agency. [Emphasis added.]
Accordingly, we next examine the rules to determine what earth changes they govern. 1979 A.C., R. 323.1704 states:
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As a preliminary matter, we assume, without deciding, that defendant's earth changes fulfilled the conditions of subrule 1704(1) in order to address the exception to the permit requirement.
Second, we note that the "installation of those wells" language cannot be viewed in isolation, but instead must be viewed in context. The rule itself does not simply limit the exception to the installation of wells, but further states that the exception applies to "those wells under permit from the supervisor of wells." Thus, we must look to part 615, the supervisor of wells act, to determine whether part 615 permits apply to the additional parts of a well at issue here. The supervisor of wells is granted broad powers over the administration of oil and wells in part 615. An important part of those powers is the prevention of waste, which includes, in part, "unreasonable damage to underground fresh or mineral waters," M.C.L. § 324.61501(p)(i)(B); MSA 13A.61501(p)(i)(B), and "unnecessary damage to or destruction of the surface; soils; animal, fish, or aquatic life; property; or other environmental values from or by oil and gas operations," M.C.L. § 324.61501(p)(ii)(B); MSA 13A.61501(p)(ii)(B). It is the declared policy of part 615 that "this part is to be construed liberally to give effect to sound policies of conservation and the prevention of waste and exploitation." MCL 324.61502; MSA 13A.61502. We find no language here limiting the authority of the supervisor of wells only to the "well site," but instead the supervisor of wells is granted authority over waste to soil and water in all "oil and gas operations." Thus, in our judgment, this includes soil erosion and sedimentation problems in connection with all parts of a well, not just a wellhead. We believe that the supervisor of wells exercises control over the soil erosion and sedimentation questions involving access roads, pipelines, and processing facilities of oil and gas wells because they produce waste in connection with oil and gas wells. Additionally, "[a] permit shall not be issued to an owner or his or her authorized representative who has not complied with or is in violation of this part or any of the rules, requirements, or orders issued or promulgated by the supervisor or the department." MCL 324.61525; MSA 13A.61525. Similarly, the part 91 permit exception itself requires not only the part 615 permit, but a finding by the supervisor of wells that the owner/operator of the wells is in compliance with part 91. Therefore, a well owner will not receive a part 615 permit unless he complies with the waste requirements promulgated not just by the supervisor of wells, but also by the DNR/MDEQ. Considering the supervisor of well's authority over all aspects of waste in relation to wellheads as well as ancillary well facilities, it appears that any permit issued by the supervisor of wells would necessarily include
Third, we again look to the purpose of part 91 to determine whether our reading of the language of the exception is at odds with the stated intent of the Legislature here. The Executive Legislative Analysis, HB 4709, January 18, 1972, provides that "[t]he purpose of this bill is to provide for a statewide soil erosion and sedimentation control program with uniform rules and guidelines which may be used both statewide and by local entities to control soil erosion and sedimentation." See Nemeth, supra at 27, n. 4, 576 N.W.2d 641. With this purpose of uniformity in mind, it would not be logical for the Legislature to allow control over soil erosion and sedimentation to be placed with both the county enforcing agencies and the supervisor of wells. This dual control over access roads, pipelines, and processing facilities—which could come into conflict because the supervisor of wells has its own rules for the prevention of waste and broader authority to do whatever is necessary for such prevention of waste—would undermine the part 91 purpose of statewide uniformity in this regard. The logical reason for the permit exception, consistent with the purpose of uniformity, would be to avoid duplicate regulation by both the supervisor of wells and the counties. The supervisor of wells must already enforce pollution controls relating to soil erosion and sedimentation control and has special expertise with the problems of oil and gas well waste. Therefore, in our opinion, it is not surprising that the Legislature would provide for a regulatory framework whereby the supervisor of wells enforced all of the waste management policies in relation to oil and gas wells, including soil erosion and sedimentation control. Thus, in reading the exception to the county permit requirement logically with this purpose, we believe that earth changes in connection with wellheads, as well as access roads, pipelines, and processing facilities under permit from the supervisor of wells, are exempt from the additional permit requirements of the part 91 rules.
In support of our analysis of the intent of the exception to the earth changes permit requirement in subrule 1704(1), we rely on an April 2, 1996, memorandum from the Director of the MDEQ, Russell J. Harding. This memorandum states that it is the position of the MDEQ that "a Part 615 permit to drill and operate shall exempt the following from the requirement to obtain a Part 91 permit: ... well pads[,] ... flow lines[,] ... surface facilities[, and] ... roads constructed solely for the purpose of access to well sites and surface facilities." In addition, the memorandum "revise[d] and clarif[ied]" a previous, 1993 memo from the DNR. The 1993 memorandum stated that counties were to have control over flow lines for Antrim gas projects because such projects were generally not in compliance with part 91 and, thus, they did not qualify under the well permit exception. However, Harding determined that this finding was too broad, including some projects that were in compliance with part 91 and that would have been excepted from the permit requirement. Thus, Harding found that the 1993 memorandum did not comply with the requirements of the permit exception and that pipelines should generally be included within the permit exception. Also, the 1993 memorandum stated that counties had authority over access roads, a position with which Harding disagreed because access roads were a necessary and integral part of drilling and production operations, part 615 extended to all phases of oil and gas operations, including roads, and part 615 should take precedence under the exception.
In contrast to this analysis, plaintiffs argue that two previous Attorney General opinions and the Supreme Court decision in Addison Twp. v. Gout (On Rehearing), 435 Mich. 809, 460 N.W.2d 215 (1990), mandate that we find that it is counties, and not the supervisor of wells, that are given control over soil erosion and sedimentation problems in the ancillary parts of wells. With regard to the two Attorney General opinions, plaintiffs argue that a finding that the general exceptions for mining and logging from part 91 did not extend to ancillary and support facilities, such as access roads, ore transport routes, and processing plants and mills, must be extended by analogy to the permit exception for wells here. See OAG, 1997-1998, No. 6937, p (April 7, 1997); O.A.G., 1993-1994, No. 6818, p. 192 (September 15, 1994). However, two things distinguish the mining and logging exceptions from the well exception in our case. First and foremost, mining and logging are exempted from all portions of part 91, and, thus, there is no soil erosion and sedimentation control over mining or logging. In contrast, wells are not contained within this general exception language and are not exempt from soil erosion and sedimentation control. Wells are exempt only from the specific requirement of obtaining a soil erosion permit from the county under part 91. Thus, we cannot merely apply the conclusions regarding the general exceptions to the more narrow permit exception. Second, following from the first factor, we note that the overall statutory purpose of protecting the environment is only furthered if the mining and logging language is narrowly construed. Because logging and mining are completely exempt from part 91, there is a gap in soil erosion legislation with respect to those activities. The Attorney General opinions were an attempt to limit the allegedly adverse effect the general exception would have on the purpose of the statute by applying the requirements of part 91 to the facilities that were ancillary to logging and mining operations, such as access roads. In contrast, wells not only are subject to the requirements of part 91, but also are subject to the requirements of part 615. There is certainly no gap in soil erosion legislation with regard to wells or their integral facilities. Our reading of the permit exception simply exempts well owners from the requirement to obtain a part 91 permit, because they must already obtain a part 615 permit that requires adherence to soil erosion legislation. Thus, we see no need to follow the conclusions of the Attorney General opinions because the reasoning does not apply to the cases before us. See also Michigan ex rel. Oakland Co. Prosecutor v. Dep't of Corrections, 199 Mich.App. 681, 691, 503 N.W.2d 465 (1993).
With regard to the Supreme Court decision in Addison, supra, the Court held in that case that pursuant to the language of § 1 of the Township Rural Zoning Act (TRZA), M.C.L. § 125.271; MSA 5.2963(1), the jurisdiction of the supervisor of wells preempted the TRZA only with respect to oil and gas well sites and did not extend to processing plants and pipelines. In our judgment, there are several important distinctions between Addison and the cases before us that make Addison inapplicable here. First, Addison dealt with statutory construction of the TRZA, and its connection to the supervisor of wells provisions of the nowrepealed oil, gas, and minerals act, M.C.L. § 319.1 et seq.; MSA 13.139(1) et seq. Addison, supra at 812, 460 N.W.2d 215. The Addison Court did not even mention part 91, part 615, or administrative rules promulgated pursuant to part 91. Therefore, Addison was concerned with the interrelationship of two statutes that are not at issue here and, thus, did not address the question of interrelationship of the parts of the NREPA, the question that is before us here. Second, Addison is a case about the preemption of powers that were already granted by the Legislature to townships through the TRZA. Addison, supra at 814-815, 460 N.W.2d 215. In contrast, in our cases, preemption is not the question, because there is no separate statute empowering counties to regulate soil erosion permits. Instead, we must determine whether the Legislature intended to grant any authority to counties to enforce such permit requirements for ancillary well functions. Third, the construction in Addison necessarily dealt with completely different
Fourth, the Addison Court determined that the purpose of the TRZA, to encourage or regulate the proper use of land and natural resources, did not conflict with that of the supervisor of wells to prevent waste and that uniformity was not necessary to effectuate the purposes. Addison, supra at 815, 460 N.W.2d 215. However, here, the logical reason for the permit exception, given the part 91 purpose of uniform rules, would be to avoid duplicate regulation by both the supervisor of wells and the counties. Thus, the different statutory purposes between part 91 and the TRZA also make Addison inapplicable to our cases. Fifth, in Addison, the DNR filed a brief in support of the township's right to zone, because the regulation of the location and duration of a gas-processing plant in that case did not regulate or control the operation of oil or gas wells or interfere with the authority vested in the supervisor of wells. Addison, supra at 818, n. 5, 460 N.W.2d 215; at 821, 460 N.W.2d 215 (Levin, J., concurring). However, the DNR further stated that certain zoning regulations of ancillary facilities that affected activities "critical to the operation of the wells" might be impermissible. Thus, as defendant argues, the DNR itself would not have simply limited the preemption of township zoning under the TRZA to well sites, but rather would instead have allowed preemption of township zoning where the zoning actually affected the supervisor of wells' exercise of jurisdiction relative to wells. This is consistent with our determination here, in part, that because the supervisor of wells has the authority to control soil erosion and sedimentation problems in ancillary well functions, the language of the permit exception applies to these ancillary well functions. Thus, although Addison appears in some respects to deal with an issue similar to that in the cases before us, we find the distinctions between these cases to be significant and, ultimately, dispositive that Addison does not compel a particular conclusion in the instant case.
On the basis of these factors, we conclude that the ancillary well facilities such as access roads, pipelines, and processing plants are included within the part 91 permit exception for "the installation of those wells under permit from the supervisor of wells...." 1979 A.C., R. 323.1714(1)(g). Counties cannot require well owners and operators to obtain permits pursuant to part 91 for wellheads, access roads, pipelines, or processing facilities where they have a permit from the supervisor of wells and are found by the supervisor of wells to be in compliance with the conditions of the sediment act.Id. Allowing counties to require part 91 permits with regard to these ancillary well facilities would ignore the plain language of the exception, view such language in isolation in spite of the fact that the language refers to part 615, the supervisor of wells act, and thwart the purpose of the soil erosion and sedimentation control statute by allowing dual regulation. In our judgment, therefore, the trial court improperly granted Alcona's and Alpena's motions for summary disposition.
Reversed and remanded. We do not retain jurisdiction.