MOTION TO AMEND ANSWER & TO ADD PARTY WITH COVER …

STATE OF MICHIGANDEPARTMENT OF ATTORNEY GENERAL

STANLEY D. STEINBORNChief Altaian Attorney Central

fcoooooeo

FRANK J. KELLEYATTORNEY GENERAL

LANSING48913

June 2, 1989

Clerk of the CourtKalamazoo Circuit Court227 W. Michigan AvenueKalamazoo, MI 49007

Re: Michigan Disposal Service Corp v MDNR and David HalesKalamazoo Circuit Court No. E-88-3159-AZ

Dear Clerk:

A Motion to Amend Answer and to Add Party, Brief in Supportof Motion, First Amended Answer and Counterclaim, and Proof ofService are enclosed for filing.

Very truly yours,

FRANK J. KELLEYAttorney Genera],

GLH/rscEnc.4/mdsc-cl

cc: Hon. GoodwillieGary A. TrepodFrederick M. Baker, JrDeb Mulcahey ^^

EPA Region 5 Records Ctr.

V \ i\ ij)«AAy J- n *̂*Gary L. HicksAssistant Attorney GeneralNatural Resources Division530 West Allegan, 8th FloorLansing, Michigan 48913Telephone (517) 373-7540

RECEIVEDMl 051289

Waste ManagementDivision

238156

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF KALAMAZOO

MICHIGAN DISPOSAL SERVICECORPORATION,

Plaintiff,

MICHIGAN DEPARTMENT OFNATURAL RESOURCES andDAVID F. HALES, Director,

Defendants.

Gary A. Trepod (P21561)Frederick M. Baker, Jr. (P25415)Attorneys for Plaintiff

Gary L. Hicks (P31645)Assistant Attorney GeneralAttorney for Defendants

File No. E 88-3159-AZ

HON. DONALD M. GOODWILLIE

MOTION TO AMENDANSWER AND TO ADD PARTY

NOW COME Defendants, Michigan Department of Natural

Resources and David F. Hales, its Director, by their counsel,

Frank J. Kelley, Attorney General for the State of Michigan, and

Thomas J. Emery and Gary L. Hicks, Assistant Attorneys General,

and request leave to amend their answer pursuant to MCR 2.118(A)

for the following reasons:

1. This action was commenced December 1, 1988, and

process was served on December 9, 1988.

2. Defendants filed an Answer to the Complaint on or

about December 30/ 1988.

3. Defendants seek leave of the Court to amend their

answer to assert a counterclaim against Plaintiff and its presi-

dent/ James J. DeKruyter/ for violations of state environmental

law. A copy of Defendants' First Amended Answer is attached.

4. MCR 2.118(A)(2) provides in relevant part that "a

party may amend a pleading only by leave of the court or by writ-

ten consent of the adverse party. Leave shall be freely given

when justice so requires." (Emphasis added).

5. MCR 2.207 provides, in relevant part/ that:

"Parties may be added or dropped by orderof the court on motion of a party or on thecourt's own initiative at any stage of theaction and on terms that are just. When thepresence of persons other than the originalparties to the action is required to grantcomplete relief in the determination of a_counterclaim or cross-claim/ the court shallorder those persons to be brought in asdefendant(s) if jurisdiction upon them can beobtained .7 . ." (Emphasis added).

6. The presence of James J. DeKruyter/ President and

Chief Executive Officer of Michigan Disposal Service Corporation,

as a counterdefendant in this action is required to afford

Defendants/Counterplaintiffs complete relief in the determination

of their counterclaim.

- 2 -

WHEREFORE, Defendants, Michigan Department of Natural

Resources and David Hales, its Director, pray that this Court

grant this motion to amend their Answer to assert a counterclaim

against Plaintiff Michigan Disposal Service Corporation and its

President, James J. DeKruyter.

Respectfully submitted,

FRANK J. KELLEYAttorney General

Thomas J. Emery (P22876)Assistant Attorney General

Dated: June 2, 1989GLH/3/MDSCMAA

Gafy L. Hicks (P31645)Assistant Attorney General530 West Allegan, 8th FloorLansing, Michigan 48913Telephone (517) 373-7540

- 3 -

STATE OF MICHIGAN



Plaintiff,


Defendants.




HON. DONALD M. GOODWILL IE

BRIEF IN SUPPORT OFMOTION TO AMEND ANSWER AND ADD PARTY

MCR 2.118(A)(2) provides, in relevant part, that:

"a party may amend a pleading only by leave ofthe court or by written consent of the adverseparty. Leave shall be freely given whenjustice so requires. " (Emphasis added)

In discussing GCR 1963, 118, the predecessor rule to

MCR 2.118, the Michigan Supreme Court has stated that the rule is

designed to facilitate the amendment of pleadings except where

prejudice to the opposing party would result. Ben P. Fyke & Sons

v Gunter Company/ 390 Mich 649, 656 (1973) (citing United States

v Hougham, 364 US 310 (1960). "The allowance of an amendment is

not an act of grace, but a right of the litigant who can show

that an amendment will not work an injustice on the opposing

party." Midura v Lincoln Consolidated Schools, 111 Mich App 558,

563 (1981).

The possible impact of allowing an amendment on the out-

come of a case is not the kind of prejudice contemplated by the

court rule on amendments. Id., 657. Instead, prejudice refers

to a matter that would prevent a party from having a fair trial

or a matter that could not be properly contested, e.g., when

surprised. Id. Prejudice does not refer to the effect on the

result of the trial. Id.

MCR 2.207, relating to joinder of parties, provides in

part that:

"Parties may be added or dropped by order ofthe court on motion of a party or on thecourt's own initiative at any stage of theaction and as terras that are just. When thepresence of persons other than the originalparties to the action is required to grantcomplete relief in the determination of a*counterclaim or cross-claim, the court shallorder those persona to be brought in as defen-dants if jurisdiction over them can ~beobtained." (Emphasis added).

The joinder provision in the court rules "are intended to

authorize and provide for the joinder of whatever parties are

- 2 -

necessary to effecting complete disposition of the claim and the

conversent administration of justice." Wayne Co Jail Inmates v

VJayne Co Sheriff, 391 Mich 359, 368 (1974).

In exercising its discretion on a motion to amend, a

trial court should ignore the substantive merit of a claim unless

it is legally insufficient on its face so that it would be futile

to allow the amendment. Ben P. Fyke & Sons, supra, 660.

In the present case, the claims asserted in the counter-

claim are not legally insufficient on their face. At common law,

if the business of a corporation results in the creation of a

nuisance, each of its officers who have the direction and control

of its business, as well as its agents or servants who contribute

to the nuisance, are personally liable in damages. 58 Am Jur 2d,

Nuisances, §53, pp 621-622; People v Detroit White Lead Works, 82

Mich 471 (1890).

For these reasons, this Court should grant Defendants' Motion

to Amend Answer and to Add a Party.

- 3 -

WHEREFORE, Defendants pray that this Court grant their

Motion to Amend Answer and Add Party.




Ga*ry Ltf Hicks (P31645)Assistant Attorney General530 West Allegan, 8th FloorLansing, Michigan 48913Telephone (517) 373-7540

Dated: June 2, 1989GLH/3/MDSCBAA

- 4 -

STATE OF MICHIGAN


MICHIGAN DISPOSAL SERVICECORPORATION/

Plaintiffs-Counterdefendants,


Defendants-Count erplaint if fs.




HON. DONALD M. GOODWILL IE

FIRST AMENDED ANSWER AND COUNTERCLAIM

NOW COME Defendants, Michigan Department of Natural

Resources and David F. Hales, its Director, by their counsel,

Frank J. Kelley, Attorney General for the State of Michigan, and

Thomas J. Emery and Gary L. Hicks, Assistant Attorneys General,

and submit the following Amended Answer:

ANSWER

General Allegations

1. Answering paragraph 1, defendants admit the allega-

tions contained therein as being true.





4. Answering paragraph 4, defendants neither admit nor

deny the allegations contained therein for the reasons that they

lack knowledge or information sufficient to form a belief as to

the truth of the allegations.





6. The allegations in the first and third sentences of

paragraph 6 are admitted. As to the second sentence, defendants

deny the allegations contained therein for the reason that they

are untrue.

7. As to the first sentence of paragraph 7, defendants

neither admit nor deny the allegations contained therein for the

- 2 -

reasons that they lack knowledge or information sufficient to

form a belief as to the truth of the allegations. The allega-

tions contained in the second sentence is admitted.

8. Answering the first sentence of paragraph 8, it is

admitted that the DNR on July 13, 1982 issued Dispos-0-Waste,

Inc., a construction permit for a 68-acre Type III landfill. The

allegations in the second sentence of paragraph 8 are denied

because they are untrue.

9. It is admitted that development of a Type III land-

fill over the abandoned city dump was considered environmentally

advantageous by some persons.

10. It is admitted that the DNR issued a Type III solid

waste disposal area operating license to Cork Street Development

Company on June 13, 1983 for a 5-acre cell at the landfill.

11. Answering paragraph 11, it is admitted that the DNR

issued Cork Street Development Company a Type III solid waste

disposal area operating license for 10 acres at the landfill.

12. It is admitted that Dean J. Holub made the state-

ments contained in Complaint Exhibit 4.

13. Answering paragraph 13, it is admitted that

Complaint Exhibits 5, 6, and 7 speak for themselves.



- 3 -

15. It is admitted that Plaintiff, the City of

Kalamazoo, and the EPA entered into a Consent Order in November,

1987 requiring Plaintiff and the City of Kalamazoo to investigate

contamination at the Cork Street Landfill and, if deemed

necessary by the EPA, to perform a feasibility study to identify

and evaluate alternatives for the appropriate extent of remedial

action.

16. It is admitted that Cork Street Development Company

applied for an operating license for 16 additional acres of the

site (Cells 3 and 4).



18. It is admitted that the application for an operating

license was withdrawn due to several deficiencies in the applica-

tion, including the application's failure to meet stipulations in

the construction permit. The other allegations are denied

because they are untrue.

19. It is admitted that in January, 1988 Plaintiff pro-

vided the DNR with an Addendum to the Hydrogeologic Investigation

For The Cork Street Sanitary Landfill.

20. It is admitted that Complaint Exhibit 10 speaks for

itself.

- 4 -

21. It is admitted that Complaint Exhibit 10 speaks for

itself.

22. It is admitted that on March 8, 1988, Cork Street

Development Company resubmitted its application for a Type III

operating license for Cells 3 and 4.

23. The allegations contained in paragraph 23 are denied

because they are untrue. Complaint Exhibit 11 speaks for itself.



25. Paragraph 25 is admitted that Complaint Exhibit 12

speaks for itself.



27. The allegations contained in the first sentence of

paragraph 27 are admitted. With respect to the allegations con-

tained in the second sentence of paragraph 27, defendants neither

admit nor deny the allegations contained therein for the reasons

that they lack knowledge or information sufficient to form a

belief as to the truth of the allegations.



- 5 -


because they are untrue. DNR officials advised Plaintiff that

any activity at site would need to be approved by the Environ-

mental Protection Agency.







33. It is admitted-that Plaintiff submitted an applica-

tion for an operating license for Cells 3 and 4 on August 17,

1988.

34. It is admitted that Plaintiff's application was the

same as that previously submitted and withdrawn.

35. It is admitted that the DNR sent Plaintiff a

Director's Order To Cease and Desist dated November 10, 1988 and

attached to the Complaint as Exhibit 20.

36. It is admitted that the DNR sent Plaintiff a letter

dated November 10, 1988 denying Plaintiff's application for an

operating license for Cells 3 and 4.

- 6 -

37. It is admitted that the Director's Order and the

denial letter attribute the contamination and leachate discharges

to the property on which the old dump and the present Type III

landfill are situated.





Count I

39. Defendants incorporate by reference paragraphs 1

through 38.

40. Admitted that MCL 691.1201(1) speaks for itself.

41. The allegations in paragraph 41 and all of its sub-

parts are denied because they are false. The DNR's conduct in

seeking to prevent the operation of an unlicensed landfill is

consistent with Michigan law and not a proximate cause of the

pollution, impairment or destruction of any natural resource.

42. The allegations in paragraph 42 are denied because

they are false. The operation of an unlicensed landfill and the

contamination presently eminating from the site are causing

irreparable harm to the people of this state and the environment.



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the truth of the allegations. In further response, it is denied

that economic injury constitutes irreparable harm.


because they are false.



46. Answering paragraph 46/ defendant admits the allega-


47. Answering paragraph 47, defendant admits the allega-


WHEREFORE, Defendants respectfully request this Court to

deny the relief requested in the Complaint and to enter Judgment

in favor of Defendants.

Count II - Mandamus


through 47.

49. The allegations in paragraph 49 are denied because

they are false. Plaintiff has not installed an adequate moni-

toring system that complies with 1982 AACS R 299.4305 and stipu-

lation in the construction permit.

- 8 -




deny the relief requested in the Complaint and enter Judgment in

favor of Defendants.

Count III - Wrongful Denial


through 50.


because they are false. The denial was clearly authorized by Act

641.

WHEREFORE/ Defendants respectfully request this Court to

deny the relief requested in the Complaint and enter Judgment in


Count IV - Unconstitutional Taking


through 52.





- 9 -


because they are false and constitute an improper conclusion of

law.


deny the relief requested in the Complaint and enter Judgment In


Count V - Estoppel


through 55.












deny the relief requested in the Complaint and to enter Judgment

in favor of Defendants.

- 10 -

AFFIRMATIVE DEFENSES

1. Defendants' regulatory activities are not the proxi-

mate cause of the pollution, impairment, or destruction of

natural resources occurring at Plaintiff's landfill property.

2. The evaluation of applications for solid waste

disposal area operating licenses requires the exercise of tech-

nical judgment and discretion and is not ministerial in nature.

Therefore, Plaintiff is not entitled to mandamus relief.

3. Plaintiff is not entitled to equitable relief

because there is an adequate remedy at law, viz judicial review

of the license denial pursuant to section 631 of the Revised

Judicature Act, MCL 600.631; MSA 27A.631.

4. This Court lacks subject matter jurisdiction to

award money damages against the State of Michigan. Such juris-

diction is vested exclusively in the Michigan Court of Claims.

COUNTERCLAIM

NOW COME Defendants-Counterplaintiffs, Michigan

Department of Natural Resources and David F. Hales, its Director,

by their counsel, Frank J. Kelley, Attorney General for the State

of Michigan, and Thomas J. Emery and Gary L. Hicks, Assistant

Attorneys General, and submit the following Counterclaim:

- 11 -

Factual Allegations

1. Michigan Disposal Service Corporation (hereafter

MDSC) is a Michigan corporation that operates, manages, maintains

and conducts a Type III solid waste disposal area known as the

Cork Street Landfill on the parcel of land located in the City

of Kalamazoo, Kalamazoo County, Michigan described in Exhibit A.

2. MDSC owns the real property described on Exhibit A.

3. James J. DeKruyter is the president and chief execu-

tive officer of MDSC and, as such, controls the overall manage-

ment of MDSC and its Cork Street Landfill.

4. The real property on which the Cork Street Landfill

is located has discharged and is discharging landfill leachate

into the groundwater and surface waters of the State of Michigan

and has thereby contaminated those waters with both organic and

inorganic chemicals.

Count I

Violation of Solid Waste Management Actand Administrative Rules

5. Defendant-Counterplaintiffs reallege and incorporate

by reference paragraphs 1 through 4 as though fully stated

herein.

6. At various times between June, 1988 and the present,

MDSC and its president, James DeKruyter, have operated, managed,

- 12 -

maintained, and/or conducted a Type III solid waste disposal area

in Cells 3 and 4 of the Cork Street Landfill even though Cells 3

and 4 have never had an operating license under the Solid Waste

Management Act.

7. The conduct of MDSC and DeKruyter in operating,

managing/ maintaining, and/or conducting an unlicensed solid

waste disposal area violates Section 13(2) of the Solid Waste

Management Act, MCL 299.413(2); MSA 13.29(13)(2) and 1982 AACS,

R 299.4301(1).

8. In operating and managing the Cork Street Landfill,

MDSC and DeKruyter have failed to meet all requirements for the

protection of surface and groundwater contained in 1929 PA 245,

as amended, and the administrative rules promulgated thereunder,

in violation of 1982 AACS, R 299.4306(2).


MDSC and DeKruyter have failed to dispose of the collected

leachate in a manner that does not damage the environment, in

violation of 1982 AACS, R 299.4315(17).


MDSC and DeKruyter have failed to install a monitor system

specifically designed to adequately assess the impact of the

landfill on the groundwater, in violation of 1982 AACS R,$,7.4305(3).

- 13 -

11. Section 33 of the Solid Waste Management Act, MCL

299.433; MSA 13.29(33), authorizes the Attorney General to bring

an action for any appropriate relief/ including injunctive

relief, for a violation of this act or rules promulgated pursuant

to this act.

Count II

Violation of Water Resources Commission Actand Administrative Rules TnereundeF

12. Defendants-Counterplaintiffs reallege and incor-

porate by reference paragraphs 1-11 as though fully restated

herein.

13. Section 6(a) of the Water Resources Commission Act,

MCL 323.6(a); MSA 3.526{a), states:

"It shall be unlawful for any persons directlyor indirectly to discharge into the waters ofthe state any substance which is or may becomeinjurious to the public health, safety orwelfare; or which is or may become injuriousto domestic, commercial, industrial, agri-cultural, recreational, or other uses whichare being or may be made of such waters; orwhich is or may become injurious to the valueor utility of riparian lands; or which is ormay become injurious to livestock, wild ani-mals, birds, fish, aquatic life, or plants orthe growth or propagation thereof be preventedor injuriously affected; or whereby the valueof fish and game is or may be destroyed orimpaired." MCL 323.6(a); MSA 325.6(a)

14. As used in the Water Resources Commission Act, the

waters of the State "means ground waters, lakes, rivers and

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streams and all other water courses and waters within the con-

fines of the State . . ." MCL 323.11{b); MSA 3.531(b).

15. In operating and/or managing the Cork Street

Landfill, Plaintiffs-Counterdefendants have discharged and con-

tinued to discharge leachate from the landfill into the waters of

this state without possessing a valid permit issued by the

Michigan Water Resources Commission, in violation of section 7 of

the Water Resources Commission Act, MCL 323.7; MSA 3.527.


Landfill, Plaintiffs-Counterdefendants have directly or

indirectly discharged into the waters of this state a substance,

viz., leachate that is or may become injurious to domestic, com-

mercial, industrial, agricultural, recreational, or other uses

which are being or may be made of such waters, in violation of

section 6(a) of the Water Resources Commission Act, MCL 323.6a;

MSA 3.526(1).



indirectly discharged into the waters of this state a substance,

viz., leachate that is or may become injurious to the public

health, safety, and welfare, in violation of section 6(a) of the

Water Resources Commission Act, MCL 323.6a; MSA 3.526(1).



- 15 -

indirectly discharged into the waters of this state a substance/

viz., leachate that is or may become injurious to livestock, wild

animals, birds, fish, aquatic life, or plants or the growth or

propagation thereof, in violation of section 6(a) of the Water

Resources Commission Act, MCL 323.6a; MSA 3.526(1).


Landfill, Plaintiffs-Counterdefendants have failed to protect the

ground waters of this state in a condition suitable for use as

individual, public, industrial, or agricultural water supplies,

in violation of 1980 AACS, R 32-3.2204.


Landfill, Plaintiffs-Counterdefendants have caused the ground

waters of this state to become degraded as the result of

discharges of leachate from the landfill, in violation of 1980

AACS R 323.2205(1).


Landfill, Plaintiffs-Counterdefendants have discharged into the

ground waters of this state a substance, viz., leachate that is

or may become injurious to the public health, safety, or welfare,

or to the domestic, commercial, industrial, agricultural,

recreational, or other uses that are being or may be made of the

ground waters, in violation of 1980 AACS, R 323.2206.

22. Section 10 of the Water Resources Commission Act,

MCL 323.10; MSA 3.530, authorizes the Attorney General to bring

- 16 -

actions to restrain violations of said Act or the rules pro-

mulgated under said Act.

Count III

Violation of Michigan Environmental Protection Act


porate by reference paragraphs 1-22 as though fully set forth

herein.


Landfill in violation of the Solid Waste Management Act and the

Water Resources Commission Act and the administrative rules pro-

mulgated under those acts, as described in Counts I and II,

supra, Plaintiff-Counterdefendants have engaged in conduct that

has or is likely to pollute, impair or destroy the air, water, or

other natural resources of this state or the public trust

therein.

25. This Complaint is authorized by Section 2 of the

Michigan Environmental Protection Act, MCL 691.1201; MSA

14.528(201), which authorizes the Attorney General to bring

actions for declaratory and equitable relief for the protection

of the water and other natural resources, and the public trust

therein, from pollution, impairment, or destruction.

- 17 -

Count IV

Negligence

26. Defendants-Counterplaintiffs reallege and incorporate by

reference paragraphs 1-25 as though fully set forth herein.

27. Plaintiffs-Counterdefendants are charged with a

legal duty to the people of the State of Michigan to exercise

reasonable care in the operation and management of the Cork

Street Landfill so as to avoid injury to the waters and other

natural resources of this state.

28. Plaintiffs-Counterdefendants have negligently

breached said duty by operating and/or managing the Cork Street

Landfill in violation of the Solid Waste Management Act, the

Water Resources Commission Act, and the Michigan Environmental

Protection Act/ as described in Counts I, II and IIIf supra.

29. The breach of duty described in paragraph 23 has

proximately caused damage to the surface water and ground water

underlying and in the vicinity of the Cork Street Landfill.

Count V

Public Nuisance

30. Defendants-Counterplaintiffs reallege and incorporate by

reference paragraphs 1-29 as though fully set forth herein.

31. The operation and/or management of the Cork Street

Landfill by Plaintiffs-Counterdefendants in violation of the

- 18 -

Solid Waste Management Act and the administrative rules pro-

mulgated thereunder/ as described in Count I, constitutes a

public nuisance.



Water Resources Commission Act and the administrative rules pro-

mulgated thereunder, as described in Count II, supra, constitutes

a public nuisance, MCL 323.6c; MSA 3.536(3).



Michigan Environmental Protection Act, as described in Count III,

supra, constitutes a public nuisance.

34. Plaintiffs-Counterdefendants have unreasonably

interfered with the right of the people of the State of Michigan

to use and enjoy the ground water underlying and in the vicinity

of the Disposal Area by discharging leachate into, and thereby

polluting, degrading, and impairing the quality of, said ground

water.

Count VI

Damages


porate by reference paragraphs 1-34 as though fully stated

herein.

- 19 -


Landfill by Plaintiffs-Counterdefendants, as above-described/ has

proximately caused and continues to proximately cause the intro-

duction of various contaminating substances into the underlying

and nearby soils and waters of the state.


Landfill by Plaintiffs-Counterdefendants, as above-described, has

proximately caused and continues to proximately cause the pollu-

tion, degradation, contamination, impairment and destruction of

the soils and the waters of this state.

38. As a further and proximate result of the unlawful

conduct of Plaintiffs-Counterdefendants, as above-described, the

people of the State of Michigan have suffered serious, substan-

tial and irreparable damage to the soils and the waters of this

state and to the values thereof.

39. The damage to the people of the State of Michigan,

as above-described, is irreparable and will continue to remain

irreparable unless and until this Court exercises its equitable

powers as hereinafter requested.

40. Defendants-Counterplaintiffs have no adequate remedy

at law and must therefore rely upon the equitable powers of this

Court.

- 20 -

Relief Requested

WHEREFORE, Defendants-Counterplaintiffs respectfully

request that this Court grant the following relief:

(A) Declare the rights of the parties hereto, shorten

the discovery period, and advance this case on its docket for

early trial on the merits as the damage to Defendants-

Counterplaintiffs is continuing and will continue and increase

unless relief is obtained at an early date;

(B) Immediately, preliminarily, and permanently restrain

and enjoin Plaintiffs-Counterdefendants and their agents,

employees and officers and all those acting in concert therewith,

from operating the Cork Street Landfill and from further

accepting garbage, rubbish, refuse and any other waste materials

at the Cork Street Landfill;

(C) Immediately, preliminarily, and permanently enjoin

Plaintiffs-Counterdefendants and their agents, employees, and

officers, and all those acting in concert with them, from

discharging any leachate, contaminants, or other foreign substan-

ces into the soil and the waters at or in the vicinity of the

Cork Street Landfill;

(D) Order Plaintiffs-Counterdefendants to immediately

define the extent of ground water degradation in terms of size,

contour, chemical composition and direction of movement;

- 21 -

(E) Order Plaintiffs-Counterdefendants to immediately

abate the contamination and degradation of the groundwaters at or

in the vicinity of the Cork Street Landfill and to restore those

groundwaters in accordance with a plan of abatement and restora-

tion approved by the DNR;

(F) Order Plaintiffs-Counterdefendants to quarterly

monitor ground waters beneath and in the vicinity of the Cork

Street Landfill to determine the presence of contaminants, and

the effectiveness of remedial activity, and to report such moni-

toring results to the DNR;

(G) Order Plaintiffs-Counterdefendants to immediately

complete the closure of the Cork Street Landfill and to provide

compacting of refuse, cover of refuse, final grading, seeding and

mulching, and to otherwise fully and strictly comply with the

closure requirements of the Solid Waste Management Act and the

administrative rules promulgated under said Act;

(H) Impose a civil penalty of $10,000 per day each

against each Plaintiff-Counterdefendant for each day they are

found to be in violation of the Solid Waste Management Act, such

penalty being authorized by Section 33 of said Act;

(I) Impose a civil penalty of $10,000 per day each

against each Plaintiff-Counterdefendant for each day they are

found to be in violation of the Water Resources Commission Act,

such penalty being authorized by Section 10(1) of said Act;

- 22 -

(J) Order Plaintiffs-Counterdefendants to pay damages in

whatever amount Defendants-Counterplaintiffs are found to be

entitled so as to compensate the people of the State of Michigan

for Plaintiffs-Counterdefendants1 past, continuing and future

impairment and destruction of the natural resources caused by the

seepage of contaminants from the Cork Street Landfill into the

soils and the waters of this state;

(K) Award Defendants-Counterplaintiffs their costs of

prosecuting this action, the same being authorized by Section 33

of the Solid Waste Management Act;

(L) Award Defendants-Counterplaintiffs costs and fees

necessitated by the bringing of this action, the same being

authorized by Section 3(3) of the Environmental Protection Act;

(M) Award Defendants-Counterplaintiffs costs of sur-

veillance and enforcement by the State resulting from the viola-

tions of the Water Resources Commission Act committed by

Plaintiffs-Counterdefendants, as authorized by Section 10(2) of

said Act;

(N) Grant such other and further relief as may be

necessary under the circumstances so as to afford complete and

equitable relief to the Defendants-Counterplaintiffs.

- 23 -

STATE OF MICHIGAN )) SS

COUNTY OF INGHAM )

I, Deborah A. Mulcahey, being first duly sworn, statethat I have reviewed the foregoing First Amended Answer andCounterclaim have determined that the allegations containedtherein are true to the best of my knowledge, information andbelief.

/tfSbbrah tf. MulcaJEnforcement UnitWaste Management DivisionDepartment of Natural Resources

Subscribed and sworn to before methis 2nd day of June, 1989.




G&ry L<J Hicks (P31645)Assistant Attorney General530 West Allegan, 8th FloorLansing, Michigan 48913Telephone (517) 373-7540

Dated: June 2, 1989

GLH/3/MDSC2ANS

-24-

fEXHIBIT A

622

DESCRIPTION OF SANITARY FILL SITEFOR THE CITY OF KALArtAZGO

•A parcel of land in Section 36, T. 2 S., R. 11 U., City of Kalamazoo, »

/

County of Kalamazoo, Michigan being more particularly described a* follows:

Commencing at the Northwest corner of Section 36, T. 2 S., R. 11 W.;

thence N. 8<,°-47'-23" E. 1533.03 f«et along the North line of said Section 36

to its intersection with the West line of the Grand Trunk Western Railroad

ft thence 3*1.23 feet along said Vest tine to the South line of Cork St. and

the Place of Beginning; thence Southeasterly 718.24 feet along the arc of a

curve to the left with a radius of 1563*49 feet, said curve being the Vest

line of the Grand Trunk Western Railroad having a chord bearing S. 2fl°-4l'-37"• .

E. 7̂ 5.23 feet; thence S. l»2°-28'-52" E, 1569.88 feet along the West line ofthe Grand Trunk Western Rail road;thence S. 3 "57'-37" V. 23.46 feetalong the West line of the Grand Trunk Western Railroad; thence S. 42°-28'-50"

E. 25̂ .03 feet more or less along the West line of the Grand Trunk Western

Railroad to the Korth line of Highway 1-94; thence S. 45°-36'-38" W. along

said North line 240.39 feet DOre or less to the point of curvature of *

5579.58 foot radius curve to the right; thence Southwesterly along the arc

of said curve 974 feet norw or less* said curve being the North line of

Highway 1-94* to a point directly opposite and perpendicular to Station

642 + 00 of Highway I-91*; thencu Southeasterly along said perpendicular 50 feet*

along the North line of said Highway; thence Southwesterly along the arc of a•

5629.58 foot radius curve lu iiw right, said curve being concentric with the

previously described curve and Ihe North line of said Highway 720.13 feet;

thence S. 64°-l9'-38M W..42.42 feet along the North line of Htgbway 1-94 to Its

intersection with the East line of the Pennsylvania Railroad; thence N. 0°-17'«52"

W. 1399.12 feet alony th« Ea»t line of the Pennsylvania Railroad; thence Northerly

719.58 feet along a curve to the left with a radius of 3869.77 feet, said curve

• EXHIBIT A

ft 623

DESCRIPTION Cr SANITARY FILL SlU FOR THE CITY OF KALAHAZOO (Continued)

being the Ease line of the Pennsylvania Railroad having a chord bearing

N. 5°-37'-29" U. 718.55 feet; incncn M. l00-57'-07" W. 497.SI feet alongi

East line of the Pennsylvania Railroad to a point 660.00 feet South of the

North line of said Section 36; thence N. 89°-47'-23" E. 330.00 feet parallel

with said North line; thence N. IC°-57'-07" W. 520.20 feet parallel with

the East tine of the Pennsylvania Railroad; thence Northwesterly, 1349.69

feet to a point on the South line of Cork St.; thence S. 89°-47'-23" W.

73.32 feet to the place of beginning;

STATE OF MICHIGAN




HON. DONALD M. GOODWILLIE

Plaintiffs-Count erdefendants,


Defendants-Counterplaintiffs.

PROOF OF SERVICE

STATE OF MICHIGAN)) S3

COUNTY OF INGHAM )

Robbin S. Clickner, being first duly sworn deposes andsays that on the 2nd day of June, 1989, she did serve a copy ofMotion to Amend Answer and to Add Party, Brief in Support ofMotion, First Amended Answer and Counterclaim, upon thefollowing:

Gary A. TrepodFrederick M. Baker, Jr.Honigman Miller Schwartz and Cohn1400 Michigan National TowerLansing, MI 48933

Subscribed and sworn to before methis 2nd day of June, 1989.

C aria S . Lee h 1 e r7 No t ary Pub 1 i cIngham County, MichiganMy Commission Expires 9/5/89

STATE OF MICHIGAN


MICHIGAN DISPOSAL SERVICECORPORATION, and JAMES DEKRUYTER,

Plaintiffs- File No. E 88-3159-AZCounterdefendants,

vHonorable Donald M. Goodwillie


Defendants-Counterplaintiffs.

Gary A. Trepod (P21561)Frederick M. Baker, Jr. (P25415)Attorneys for Plaintiffs

Gary L. Hicks (P31645)Assistant Attorney GeneralAttorney for Defendants-CounterplaintiffsDepartment of Attorney GeneralNatural Resources DivisionP.O. Box 30028Lansing, MI 48909

DEFENDANTS/COUNTERPLAINTIFFS'TRIAL BRIEF

I. Relevant Constitutional.Provisions

Const 1963, art 4, § 51 provides that:

"The public health and general welfare of thepeople of this state are hereby declared to bematters of primary public concern. Thelegislature shall pass suitable laws for theprotection and promotion of the publichealth."

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Const 1963, art 4, § 52 provides that:

"The conservation and development of thenatural resources of the state are herebydeclared to be of paramount public concern inthe interest of the health, safety and generalwelfare of the people. The legislature shallprovide for the protection of the air, waterand other natural resources of the state frompollution, impairment and destruction."

II. Solid Waste Management Act and Administrative Rules

The Solid Waste Management Act, 1978 PA 641, as amended,

MCL 299.401 et seq; MSA 13.29(1} et seq, was enacted, according

to its title, "to protect the public health and the environment;

[and] to provide for the regulation and management of solid

wastes ..."

Under section 13(2) of the Solid Haste Management Act,

MCL 299.413(2); MSA 13.29(13)(2), it is unlawful for any person

to "conduct, manage, maintain, or operate a disposal area within

this state without a license from the director, contrary to an

approved solid waste management plan, or contrary to a permit,

license, or final order issued under this act. . ."

"Person" is defined under the Act to include individuals

as well as partnerships, associations, and corporations. MCL

299.405(8); MSA 13.29(5)(8).

Section 14(1) of the Act. MCL 299.414(1); MSA

13.29(14)(1), requires the Director of the DNR or the health

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officer of a certified health department, upon receipt of a

license application, to "inspect the site and determine if the

proposed operation complies with this act and the rules pro-

mulgated under this act."

In section 14(2) Of the Act, MCL 299.414(2); MSA

13.29(14)(2), the Legislature provided that the Dim "shall not

license a landfill facility operating without an approved hydro-

geologic monitoring program until the department receives a

hydrogeoligic monitoring program and the results of the program."

Section 14(2) further provides that:

"The director shall use this information inconjunction with other information required bythis act or the rules promulgated pursuant tothis act to determine a course of actionregarding licensing of the facility con-sistent with section 4005 of title 2 of thesolid waste disposal act, 42 U.S.C. 6945, andwith this act and the rules promulgated pur-suant to this act. In deciding a course ofaction, the director shall consider, at aminimum, the health hazards, environmentaldegradation, and other public or privatealternatives. The director may revoke alicense or issue a timetable or schedule toprovide for compliance for the facility oroperation which specifies a schedule of reme-dial measures, including a sequence of actionsor operations, which leads to compliancewith this act within a reasonable time periodbut not later than 2 years after the effectivedate of this amendatory act."

1982 AACS, R 299.4301(1) provides that "all locations in

the state where solid waste is disposed of on land shall have a

current license issued by the director . . . "

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Ofc

1982 AACS, R 299.4306(2) provides that "[a]11 require-

ments for the protection of surface and groundwater contained in

the Water Resources Commission Act, [1929 PA 245, MCL 323.1 et

seq; MSA 3.521 et seq] and rules promulgated thereunder shall be

met."

1982 AACS R 299.4305(3) requires an applicant for a

operating license to "Install a monitor system specifically

designed to adequately assess the impact of the sanitary landfill

on qroundwater." (Emphasis added). The rule further provides

that:

"A monitor system shall be provided to eva-luate groundwater quality at the solid wasteboundary as well as at other locations basedon the hydrogeological study, considering thelocal geology, surface water, and groundwaterconditions specific to each site. These fac-tors shall determine the number and locationof monitor stations..."

1982 AACS R 299.4315(17) provides that:

"collected leachate shall be disposed of in amanner which does not damage theenvironment..."

Section 33(1) of the Act, MCL 299.433(1), MSA

13.29(33)(1), authorizes the Attorney General to bring an action

"for any appropriate relief including injunctive relief, for a

violation of this act or rules promulgated pursuant to this act."

Section 33(2) of the Act, MCL 299.433(2); MSA

13.29(33)(2), provides that the Court, in addition to any other

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relief provided by this section, may impose on any person who

violates any provision of this act or rules promulgated under

this act or fails to comply with any permit, license, or final

order issued pursuant to this act a civil fine of not more than

$10,000.00 for each day of violation.

The Court is also authorized to order a person violating

the Act or administrative rules "either to restore or to pay to

the state an amount equal of the cost of restoring the natural

resources of this state affected by the violation to their ori-

ginal condition before the violation, and to pay to the state the

costs of surveillance and enforcement incurred by the state as a

result of the violation." MCL 299.433(3); MSA 13.29(33)(3).

II. Water Resources Commission Act and Administrative Rules

Section 6 (a) of the Water Resources Commission Act, MCL

323.6(a); MSA 3.526(a), states:

"It shall be unlawful for any persons directlyor indirectly to discharge into the waters ofthe state any substance which is or may becomeinjurious to the public health, safety orwelfare; or which is or may become injuriousto domestic, commercial, industrial, agri-cultural, recreational, or other uses whichare being or may be made of such waters; orwhich is or may become injurious to the valueof utility of riparian lands; or which is ormay become injurious to livestock, wild ani-mals, birds, fish, aquatic life, or plants orthe growth or propagation thereof be preventedor injuriously affected; or whereby the valueof fish and game is or may be destroyed orimpaired."

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As used in the Water Resources Commission Act, the

"waters of the state means ground waters, lakes, rivers and

streams and all other water courses and waters within the con-

fines of the state ..." MCL 323.11(b); MSA 3.531(b).

A violation of section 6 of the Act "shall be priraa

facie evidence of the existence of a public nuisance and . . .

may be abated according to law in an action brought by the attor-

ney general in a court of competent jurisdiction." MCL 323.6(c);

MSA 3.526(c).

Section 7(1) of the Act, MCL 323.7(1); MSA-3. 527 (1} ,

provides in part that:

"(1) After April 15, 1973, a person shall notdischarge any waste or waste effluent into thewaters of this state unless he is inpossession of a valid permit from the [WaterResources Commission] ..."

Section 10(1) of the Act, MCL 323.10(1); MSA 3.530(1),

provides that the Attorney General may:

"commence a civil action for appropriaterelief, including a permanent or temporaryinjunction, for a violation of this act orrules promulgated hereunder . . . The courthas jurisdiction to restrain the violation andto require compliance. In addition to anyother relief granted under this subsection,the court may Impose a civil penalty of notmore than $10,000 per day of violation."

1980 AACS, R 323.2205(1) provides that "[t]he quality of

groundwaters in all useable aguifers shall not be degraded from

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local background groundwater guallty as the result of a

discharge . . ." (Emphasis added)

1980 AACS, R 323.2206 provides that "[al person shall

not discharge into the groundwaters any substance that is, or may

become, injurious to the public health, safety, or welfare, or to

the domestic, commercial, industrial. agricultural. recreational.

or other uses which are being or may be made of the ground-

waters. . ." (Emphasis added)

1980 AACS, R 323.2207 provides in part that:

"(1) A determination of existing hydrogeolo-gical conditions or study, including existinggroundwater guallty, shall be made in thevicinity of proposed or existing discharges.

(2) The person responsible for the dischargeshall provide the hvdrogeological study."(Emphasis added).

III. Michigan Environmental Protection Act

Section 3 of the Michigan Environmental Protection Act,

MCL 691.1203; MSA 14.528(203), prohibits conduct that "has, or is

likely to pollute, impair or destroy the air, water or other

natural resource or the public trust therein. . ." (Emphasis

added).

Section 2(1) of the Act, MCL 691.1202(1); MSA

14.528(202), authorizes the attorney general to bring an action

for declaratory and equitable relief to protect the air, water

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and other natural resources and the public trust therein from

pollution, impairment or destruction.

IV. Public Nuisance

"At common law, acts in violation of law constitute a

public nuisance." Attorney General v Peterson, 381 Mich 445,

465; 164 NW2d 43 (1969). "Harm to the public is presumed to flow

from violation of a valid statute enacted to preserve public

health, safety and welfare." Id. In Peterson, the Supreme Court

enjoined the unlicensed practice of optometry. The Court has

also enjoined the unauthorized practice of law. Grand Rapids Bar

Ass'n v Denkema, 290 Mich 56; 287 NW 377 (1939), and the unli-

censed collection of garbage. Grand Rapids Health Bd v Vink, 184

Mich 688; 151 NW 672 (1915).

To be liable for damage caused by a nuisance, a person

must have (1) created the nuisance; (2) owned or controlled the

property from which the nuisance arose; or (3) employed another

to do work that he knows is likely to create a nuisance. Radioff

v Michigan. 116 Mich App 745, 758; 323 NW2d 541 (1982); Stemen v

Coffman, 92 Mich App 595, 597-598; 285 NW2d 305 (1979).

58 Am Jur 2d, Nuisances, § 53, p 622, states in part:

"If the business of a corporation results inthe creation of a nuisance whereby third per-sons are injured, it is generally recognizedthat such of its officers as have the direc-tion and control of its business, as well asits agents or servants who contribute to thenuisance, are personally liable in damages, as

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well as criminally liable. Thus, the presi-dent and general manager of a corporation arepersonally liable for damages caused to ariparian proprietor by the long-continueddischarge of muddy water into a stream fromore washers operated by the company with theirsanction and their knowledge of the damagecaused thereby. Upon like principle, the pre-sident of a corporation participating inmaking a display of fireworks in a publicstreet is personally liable for injuriescaused thereby." (Emphasis added).

In addition, the Court of Appeals has recently held that

"[l]t is beyond question that a corporate employee or official is

personally liable for all tortious or criminal acts in which he

participates regardless of whether he was acting on his own

behalf or on behalf of the corporation ..." Attorney General v

Ankersen. 148 Mich App 524, 557; 385 NW2d 658 (1986) (citations

omitted).

19 CJS, Corporations, § 845, pp 271-273, states:

"Broadly speaking a director, officer, oragent of a corporation is not, merely by vir-tue of his office, liable for the torts ofthe corporation or of other directors, offi-cers, or agents.

He is, however, as in the case of torts com-mitted by agents generally, discussed inAgency § 220, liable in damages for injuriessuffered by third persons because of his owntorts, regardless of whether he acted on hisown account or on behalf of the corporationand regardless of whether or not thecorporation is also liable. He cannot escapeliability on the ground that in committing thetort he acted as a director, officer, or agentof the corporation, or on the ground that thecorporation may also be liable. As in anycase, it is, of course, necessary that thefacts show the commission of a tort before theofficer may be held liable therefor.

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A director, officer, or agent is liable forthe torts of the corporation or of otherdirectors, officers, or agents when, and onlywhen, he has participated in the tortious act,or has authorized or directed it, or has actedin his own behalf, or has had any knowledgeof, or given any consent to, the act or tran-saction, or has acquiesced in it when heeither knew or by the exercise of reasonablecare should have known of it and should haveobjected and taken steps to prevent it."(Emphasis added).

A director or officer of a corporation may be held

liable for a nuisance created or maintained by the servants or

employees of the corporation if he had knowledge of the existence

or continuance of the nuisance or if he should have known of it

by exercising ordinary diligence. 19 CJS, Corporations, § 845, p

273, n 27 (citing Nunnelly v Southern Iron Co, 94 Term 397, 29 SW

361 (1895) and Cameron v Kenvon-Conne11 Commercial Co, 22 Mont

312, 56 P 358 (1899)) .

In People v Detroit White Lead Works, 82 Mich 471, 479;

46 NW 735 (1890), the Michigan Supreme Court held that officers

of a corporation, as well as the corporation itself, may be cri-

minally prosecuted for violating a city ordinance prohibiting the

creation and maintenance of a nuisance:

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"All the defendants were properly convicted.The officers of the company are jointlyresponsible for the business. It is notnecessary to conviction that they should havebeen actually engaged in work upon the premi-ses. The work is carried on by employees.The directors and officers are the personsprimarily responsible, and therefore theproper ones to be prosecuted . . . " (Emphasisadded).



Dated: July 23, 19907/mdsc-b3

Gary L. HicksAssistant Attorney GeneralDepartment of Attorney GeneralNatural Resources DivisionP.O. Box 30028Lansing, Michigan 48909Telephone (517) 373-7540

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