The Kent County Circuit Court has affirmed the Michigan Department of Environmental Quality's (MDEQ) issuance of an air quality permit to Woodland Paving Company (Woodland) located in Grand Rapids, Michigan, for the expansion of its asphalt paving operations. In doing so, the Court rejected the long-standing complaints by neighboring residents of the plant that odors emitted from the plant violate MDEQ's Air Pollution Control Rule 901 (Rule 901), which prohibits any emission of air contaminants that "unreasonably interferes with the comfortable enjoyment of life and property."
Residents near the Woodland plant had complained to MDEQ for years about noxious odors emanating from the plant. In 1995, Woodland applied to MDEQ for an air permit to expand its asphalt manufacturing plant and to use recycled oil in its manufacturing process. After studying the matter, conducting "odor modeling," and holding a public hearing, MDEQ concluded that the odors from the Woodland plant were not of an intensity or duration sufficient to violate Rule 901 and that the expansion would result in only a negligible difference in odor intensity.
After MDEQ granted Woodland's permit request, in 1996, the residents filed a claim in state court to appeal MDEQ's decision, arguing that MDEQ's grant of air permit would violate of Rule 901. Specifically, the residents contended that the long history of complaints against the plant proved that it had violated Rule 901 for years, and therefore, the permit would perpetuate these violations. Furthermore, the residents argued that the increased production and the use of recycled oil would make the odor problem even worse, resulting in a new violation of Rule 901.
The court found that the primary issue raised by the residents' complaint was whether MDEQ's decision to permit Woodland to expand production was not supported by "substantial evidence," which is requirement for a complaint under the Administrative Procedures Act. The court first noted that "substantial evidence means evidence which a reasonable mind would accept as sufficient to support a conclusion." To support this standard, the court stated that not much evidence is needed; rather, there must only be more than a scintilla supporting the administrative decision, but less than a preponderance of evidence. The court held that in relying on qualified experts, MDEQ's administrative decision satisfied the substantial evidence standard.
The court rejected plaintiffs' argument that their complaints about fumes from the plant necessarily meant that the plant "unreasonably" impaired their comfort and enjoyment. The court stated that reasonableness is a subjective standard and "just because [plaintiffs] and their neighbors do not like what they smell coming from the plant does not mean that those odors 'unreasonably interfere with the comfortable enjoyment of life and property," which is necessary for a violation of Rule 901. The court stated that it was required to defer to MDEQ's assessment of reasonableness, even if it did not agree with that decision. Therefore, the court affirmed MDEQ's issuance of the air quality permit to Woodland.
Appelt v. Department of Environmental Quality, No. 96-08067-AA (Kent County Cir. Ct. Mar.28, 1997).
This article was prepared by Daniella D. Landers, an associate in our Environmental Department, and previously appeared in the October 1997 edition of Michigan Environmental Compliance, a monthly newsletter written by Honigman Miller Schwartz and Cohn on environmental regulatory developments in Michigan and published by M. Lee Smith Publishers. To subscribe, contact the publisher by either phone at 1-800-274-6675; email at custserv@mleesmith.com; the internet at http://www.mleesmith.com; or by mail at M. Lee Smith Publishers LLC, 5201 Virginia Way, P.O. Box 5094, Brentwood, TN 37024-5094.