IN RE:    SOLID WASTE MANAGEMENT ACT
               ACT 641, PETITION OF DETROIT
               EDISON COMPANY - SIBLEY QUARRY
               LICENSE NOS. 7819 and 7802

At a session of the Natural Resources Commission held in the City of Traverse City on the 10^th day of November, 1994.

                        Chairman Larry DeVuyst, Presiding

WHEREAS the above-entitled matter has been the subject of a contested case hearing resulting in a Proposal for Decision and is now before the Commission for review, and

WHEREAS the Commission has duly considered the Proposal for Decision as well as appropriate exhibits, submissions and arguments of the parties, and

WHEREAS the Commission has, by a majority of the commissioners eligible and voting, decided to ACCEPT the Proposal for Decision.

THEREFORE, the Proposal for Decision dated April 22, 1994, shall be and hereby is ACCEPTED for the reasons set out therein and during the Commission Discussion and Deliberation of the above matter.

IT IS SO ORDERED.
 

Larry DeVuyst
Commission Chairman
Dated:

IN RE:    Solid Waste Management Act [641] Petition of Detroit Edison Company, Sibley Quarry
License Nos. 7819 and 7802

This matter comes before the Natural Resources Commission following rulings concerning the interpretation and application of the Solid Waste Management Act and the administrative rules.  MCL 299.401 et seq.  These rulings address the sole issues between the Parties, thus a ruling on the issues will be dispositive of the case.  The Parties briefed the issues and a Intermediate Ruling was issued.  A motion to reconsider was then filed by the Department, that motion was denied.

To obtain a Final Order it is necessary for the Natural Resources Commission to review the Intermediate Ruling.  The attached Intermediate Ruling dated April 22, 1994, is now being forwarded to the Natural Resources Commission as a Proposal For Decision to be decided after an opportunity for the filing of exceptions and oral argument, if permitted.  The complete file is being forwarded to the Natural Resources Commission together with the Proposal For Decision.
 
 

Date:    June 23, 1994

                                                                        Richard G. Lacasse
                                                                        Administrative Law Judge

c:          Thomas P. Beagen, Detroit Edison Company, 2000 Second Avenue, 688 W C B, Detroit, Michigan 48226

            Sharon H. Whitmer, AAG, Department of Attorney General, Environmental Protection Div., P.O. Box 30212, Lansing, Michigan 48909

            JoAnn Merrick, Compliance & Enforcement Section, Waste Management Division, MDNR, P.O. Box 30241, Lansing, MI 48909
 

                                                               )

IN THE MATTER OF:                           )
                                                              )

Solid Waste Management Act      )
Appeal of Detroit Edison, Co.,     )                                            License Nos. 7819 and 7802
Sibley Quarry License                  )
                                                  )
________________________________/

This Opinion and Order is an intermediate ruling which is not immediately reviewable by the Natural Resources Commission, who is the final decisionmaker in this matter.  However, the Natural Resources Commission may grant leave to review such rulings.  Executive Order 1991-31, IV B, 2, a and b.  When this matter reaches the Natural Resources Commission for final disposition, the entirety of the record is subject to its review and it may exercise discretion and authority to issue a final order.

This matter is before the Department pursuant to the Solid Waste Management Act, 1978 PA 641, as amended, MCL 299.401 et seq; MSA 13.29(1) et seq.  Both parties filed briefs and reply briefs on four stipulated issues.  Petitioner's exhibits are labeled Exhibits A through D and the Respondent's exhibits are labeled Exhibits 1 through 13.

The Detroit Edison Company ("Edison") operates the Sibley Quarry landfill ("Sibley Quarry") which is classified as Type III.  The Sibley Quarry is an active limestone mine, which has been quarried since the mid-nineteenth century.  Edison uses the mined portion of the Sibley Quarry as a landfill for disposing of coal and incinerator ash.  The quarry is continually de-watered by mechanical pumps.  The pumped groundwater is discharged to, and treated by, McLouth Steel.  There is a State issued National Pollution Discharge Elimination System permit which regulates this discharge.

The Sibley Quarry was first licensed as a landfill by the Michigan Department of Natural Resources ("DNR") on July 19, 1966, under the Garbage and Refuse Act, 1965 PA 87, as amended.  Act 87 is the predecessor of the Solid Waste Management Act, 1978 PA 641.  On January 11, 1982, the Initial Act 641 license was issued to Edison to operate the Sibley Quarry ("1982 License").  The permit allowed Edison to operate the Sibley Quarry as a Type III sanitary landfill.

As a condition of the 1982 License, Edison performed a demonstration of the leachate characteristics of the coal ash disposed of at Sibley Quarry ("1983 Demonstration").  The 1983 Demonstration was required to substantiate the safety of the landfill once the de-watering process had ceased.  See Exhibits P-A and R-1.  The 1984 License contained the following language regarding acceptable wastes:

5.         The Detroit Edison Company shall dispose of only the following wastes at the Sibley Quarry.

(a)        Coal ashes approved by Groundwater Quality Division of the Department of Natural Resources as not causing any adverse change in the fill's leachate characteristics. The leachate characteristics are described in the company's March 29, 1984, (sic) demonstration.

(b)        Inert material

(c)        Other materials as may be approved from time to time upon written approval by the Department of Natural Resources.  Exhibit R-3.

Edison's 1986 License contained essentially the identical language as did the 1983 License.  Exhibits R-4 and R-5, respectively.  On January 3l, 1991, the DNR issued Edison's 1991 Sibley Quarry Solid Waste Disposal Area License, No. 7802, ("1991 License").  This License, without reference to the 1983 Demonstration, authorized the disposal of coal ash and incinerator ash from specified sources only, 1991 License at C.l.  The 1991 License "ACCEPTABLE WASTE TYPES" provision, is as follows:

Per R 299.4309(3), the licensee may only accept Monroe Paper Company ash, Michigan South Central Litchfield Power Plant coal ash, Michigan South Central Litchfield Power Plant waste gypsum, and Marble Head Lime Company kiln dust, Detroit Edison Trenton Channel Plant coal ash, Detroit Edison River Rouge Plant coal ash, General Motors Hamtramck Assembly Plant coal ash, General Motors Pontiac Plant coal ash, U.S. Gypsum Detroit Plant waste gypsum, Guardian Industries Carleton Plant glass cullet, City of Wyandotte Power Plant coal ash, and City of Trenton sewage sludge incinerator ash . . . . [1991 License, §C.l., at 2.]  Exhibit R-6.

Edison filed a petition for a contested case hearing challenging the above-referenced language on February 28, 1991.

On April 1, 1993, the DNR issued Edison's 1993 Sibley Quarry Solid Waste Disposal Area License, No. 8055, ("1993 License").  The 1993 License limits acceptable waste to specified sources, as did the 1991 License.  This License eliminated wastes listed in the 1991 License that were not landfilled and tested in the previous year.  Edison filed a petition for a contested case hearing regarding the 1993 License on May 3, 1993.  Both the 1991 License and the 1993 License were issued pursuant to the 1982 administrative rules, 1982 AACS, R 299.4101, et seq.  Both contested cases were consolidated by stipulation of the Parties.

Section 91 of the Administrative Procedures Act, MCL 24.291(2), provides in part:

When a licensee makes timely and sufficient application for renewal of a license . . . the existing license does not expire until a decision on the application is finally made by the agency. . ..

I conclude, as a Matter of Law, Edison made a timely and sufficient application for renewal of its 1988 License in 1991 and 1993.  I conclude, as a Matter of Law, Edison's 1988 License is the license it is currently operating under.  MCL 24.291(2).

To assist in understanding this case, it is helpful to consider the context of how the controversy arose.  In its Brief, the Department restates the first stipulated issue as:

The question is whether a waste stream loses its "grandfathering rights" when it takes a hiatus from being continuously landfilled and annual (sic) reconfirmed and thus must meet the stricter criteria in the current approval process if that waste stream is once again to be landfilled at the facility. Respondent's Brief, p 19, 20.  (Emphasis added.)

It is the emphasized portion of the restated issue which is the root of controversy between the Parties.  Apparently, sometime after the issuance of Edison's 1988 License and before the 1991 License was issued, the Department decided to impose different standards on certain waste streams being landfilled.  According to Edison's Reply Brief, p 4:

There was no dispute between the parties until the DNR, in keeping with its Waste Management Division's "new procedure", changed the ground rules for acceptable Type III wastes with the 1991 license.  In fact, there was no dispute with the draft version of the 1991 license which incorporated the language of condition #5 . . ..  (That language apparently being the same as that in the 1988 License.)  (Emphasis added.)

The new standards being imposed by the Department are those found in the administrative rules to the Environmental Response Act, being; 1982 PA 307, as amended, MCL 299.601 et seq.; MSA 13.32(l) et seq. 1990 AACS, R 299.5101 et seq.

To accomplish the goal of applying the new Act 307 standards to certain landfill waste streams, the Department decided to classify waste streams into two categories: 1) wastes which were previously and continuously landfilled and tested would remain subject to the old standards, being the Safe Drinking Water Act (SDWA) standards as found in 40 CFR part 257.3-4 and appendix I of 40 CFR part 257 and, 2) all other waste streams not falling into category number 1 above being subject to the new standards, being the Act 307 standards:

Thereafter, if Detroit Edison sought to have any of these streams "reapproved", each would have to meet the standards currently in place at the time of "reapproval."  Those standards are the . . . groundwater criteria of Act 307.  Respondent's Brief, p 20, 21.  (Emphasis added.)

Under this scenario, over time all waste streams would be subject to the Act 307 standards because, at one time or another, they would probably not be annually landfilled and tested.  One may assume then, the Department has essentially changed the standard against which all waste streams will be measured.

To provide a method of pigeon-holing waste streams into one category or the other, it was necessary to identify the source of a particular waste stream.  Thus, in 1991, the Department changed the "ACCEPTABLE WASTE TYPES" provision from that of Edison's 1988 License to one specifically listing each waste stream by source; as opposed to classifying the waste streams by their characteristics, as in the previous licenses.

The last step in the Department's new procedure, as regarding the Sibley Quarry operation, was to eliminate Edison's use of the 1983 Demonstration from the "ACCEPTABLE WASTE TYPES" provision.  The 1983 Demonstration is not based on Act 307 standards and if the language remained in the license, it would permit new waste streams to enter the landfill which do not meet the new standards.

To implement the new standards, the Department is using the biannual operating license renewal provision of Act 641 and Rule 311(4), 1982 AACS, R 299.4311(4).

The reason for the deletions (of 5 waste streams from the 1991 License to the 1993 License) was that Detroit Edison failed to provide to the MDNR the leaching test results from representative samples for each of the omitted waste streams in accordance with license condition C.I.e., of the 1991 license and Rule 311(4) . . ..  Respondent's Brief, p 19.  (Emphasis added.)

Therefore, when a solid waste stream is not landfilled in a particular year and Edison does not provide leachate test results, the Department deletes that licensed waste stream from the subsequent license.  If Edison wants to restore the deleted waste stream to its landfill, the Department is requiring a leach test conducted pursuant to the Act 307 standards.

As is evident from considering the above scenario of the licensing activity, the root question to be answered does not correspond to the issues stipulated to by the Parties.  The root question is whether or not the Department has the authority, pursuant to Act 641, to create two classifications of solid waste streams; one classification based upon the Safe Drinking Water Act standards and one based upon the Act 307 standards?  This issue is not squarely addressed by the Parties.  The second stipulated issue, whether the Act 307 standards or Safe Drinking Water Act standards apply to the operation of a Type III landfill, answers the question of whether the Department's solid waste classification system is authorized.  This issue will be addressed first.

1.         WHETHER THE GROUNDWATER PERFORMANCE STANDARDS FOR TYPE III SANITARY LANDFILLS SHOULD BE THE SAFE DRINKING WATER ACT STANDARDS AS FOUND IN 40 CFR PART 257.3-4 AND APPENDIX I OF 40 CFR PART 257, RATHER THAN THE CLEANUP CRITERIA SET OUT BY THE MICHIGAN ENVIRONMENTAL RESPONSE ACT, 1982 P.A. 307 AND ASSOCIATED RULES.

The DNR is an administrative agency and derives its "authority to act only from identifiable sources, primarily statutes," and has "very little inherent power."  LeDuc, Michigan Administrative Law, §1:02, p 2.  In this case, the DNR derives its authority from Act 641 and its administrative rules.  The Department's Type III landfill waste stream classification system, or "new procedure," must be authorized somewhere in Act 641 or its administrative rules.  See Coffman v State Bd. of Examiners, 331 Mich 582 (1951).

Is There An Act 641 Or Rule Provision Authorizing The DNR To Create The Classification System Or Impose Act 307 Standards?
 

1.         Is there express or implied statutory authority?

There is no Act 641 provision authorizing or providing for a duel classification system for Type III solid waste streams.  Likewise, there is no express statutory provision making reference to a classification standard to be applied to solid waste streams.  After carefully considering Act 641, I find no provision that implies such powers exist.  Therefore, I conclude, as a Matter of Law, there is no express or implied authority in Act 641 authorizing the Department to create a solid waste source classification system.  I conclude, as a Matter of Law, there are no standards referenced in Act 641 to be applied to solid waste streams.

2.         Is there express rule authority?

Both Parties recognize the 1982 and 1993 administrative rules to Act 641 specifically incorporate the Safe Drinking Water Act standards for groundwater performance characteristics. 1982 AACS, R 299.4306(l); 1993 AACS, R 299.4306(1).

MDNR agrees with Detroit Edison's assertion that both the 1982 rules which were in effect at the time the contested licenses were issued as well as the 1993 rules effective on October 8, 1993, incorporate in Rule 306 the safe drinking water standards from 40 C.F.R. Part 257.3-4.  Respondent's Reply Brief, p 3-4.

The Rules' reference to the Safe Drinking Water Act standards is clear and unambiguous.  In Michigan, administrative rules promulgated pursuant to statutory authority have the force and effect of law. Mehrer v Dept. of Social Services, 24 Mich App 453, 459 (1970).  I conclude, as a Matter of Law, under Rule 306 of both the 1982 and 1993 administrative rules, the standards for groundwater performance required to be used for Type III landfills are the Safe Drinking Water Act standards specifically adopted in those Rules.  I conclude, there is no express authority in the Act 641 rules authorizing the Department to classify Type III landfill waste stream sources or apply Act 307 standards to these sources.

3.         Is there implied authority found in the rules?

The Department continues its argument for the application of Act 307 standards to landfill waste streams as follows:

However, Detroit Edison continually fails to acknowledge that Rule 306(2) incorporates a nondegradation standard from Act 245 to wit; "The design, siting, and operation of a Type III landfill shall insure (sic) that all of the requirements for the protection of surface and groundwater that are contained in Act 245 and rules promulgated pursuant to Act 245 shall be met.  Respondent's Reply Brief, p 4.

Rule 306(2) referenced by the Department is the 1993 version.  The 1982 version makes a similar reference to Act 245 and its administrative rules.  Act 245 referred to above is the Water Resources Commission Act, 1929 PA 245, as amended; MCL 323.1 et seq., MSA 3.521 et seq.  The groundwater performance standards for Act 245 are found in its administrative rules.  1980 AACS, R 323.2201 et seq.  The groundwater performance standards promulgated pursuant to Act 245 set forth a general policy of non-degradation.  There is no question the Act 245 Rules are adopted by reference in the 641 Rules.  This has been the case since the promulgation of the Act 641 rules in 1982.  The Act 245 Part 22 rules do not reference Act 307 or its administrative rules for any standards.  The non-degradation language of the Act 245 rules cannot adopt the Act. 307 standards, or any other standards, by implication.  The Administrative Procedures Act requires standards to be specifically incorporated if they are to be used.  Neither the Act 641 or Act 245 rules incorporated the Act 307 standards by reference.  The promulgation of the 1990 Act 307 rules has nothing to do with either Act 641 or Act 245.  The Department must follow the rules it promulgates.  Mehrer, supra.

It is unnecessary to reach the fundamental question of how far incorporation by reference may reach.  Is the reach of incorporation endless?  For example, is it proper if the Act 245 rules incorporate standards from another set of rules which in turn incorporate standards from a national testing agency?  To suggest incorporation of any applicable standard, with or without promulgation, would circumvent the rulemaking requirement of the Administrative Procedures Act by allowing the application of standards not subjected to the rulemaking process.  The non-degradation language of Act 245 and its rules cannot adopt, by implication, a phantom standard that incorporates the newest and presumably most comprehensive standards available.

I conclude, as a Matter of Law, there is no implied reference in Act 245 or its administrative rules to Act 307 or its administrative rules.  I conclude, as a Matter of Law, the Act 307 rules are not a proper standard for determining "non-degradation" pursuant to the Act 245 Part 22 rules.

4.         Are Act 641 and Act 307 in pari materia?

The Department argues that Act 641 and Act 307 are to be "read in pari materia" because the purpose of both "acts is to protect the public health and the environment."  Respondent's Brief, p 24.  The Department's use of this rule of statutory construction is strained.

The Michigan Supreme Court in Detroit v Michigan Bell Telephone Co, 374 Mich 543, 558 (1965) , described "in pari material" as:

Statutes in pari materia are those which relate to the same person or thing, or the same class of persons or things, or which have a common purpose.  It is the rule that in construction of a particular statute, or in the interpretation of its provisions all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law although enacted at different times, and containing no reference one to the other.

For statutes to be construed "in pari materia," they must relate to the same object or person.  Act 641 is a regulatory statute which specifically applies to the planning, construction and operation of landfills.  Act 307 is a general remedial statute that provides for clean-up of areas or sites which are contaminated with pollutants.  Certainly a landfill may be a source of pollution to which Act 307 would apply.  However, it would apply to remediation of the pollution and not to the operation of the landfill.  Protecting the public health and environment is a basic police power standard enabling state government to regulate.  Most statutes administered by the DNR are to protect the public health and environment, but few are to be construed "in para materia."

I conclude, as a Matter of Law, Act 641 and Act 307 do not apply to the same person or thing, or the same class of persons or things, or have a common purpose.  I conclude, as a Matter of Law, neither Act 307 nor its administrative rules apply to the operation of landfills.

The cardinal rule of statutory construction is when a statute is unambiguous, then it cannot be construed and it must be given it's plain and ordinary meaning.  Van Dam v Civil Service Bd., 162 Mich App 135, 138 (1987).  When a statute is plain and unambiguous, then it must be applied, and not interpreted, since it speaks for itself.  City of Lansing v Lansing Township, 356 Mich 641, 648-649 (1959).  The same rules of Construction apply to rules promulgated pursuant to the Administrative Procedures Act.  MCL 24.232 (1); MSA 3.560 (132)(1).  The Act 641 and Act 245 administrative rules plainly and unambiguously do not adopt Act 307 or its rules for standards.  There is no room to, and a court may not, construe administrative rule language which clearly and unambiguously adopts the standards to be applied to landfills regulated pursuant to Act 641.  Therefore, applying the rule of construction that statutes are to be read "in para materia," has no legal basis.  State Bar of Michigan v Galloway, 422 Mich 188 (1985).

5.         The Department's rationale for imposing Act 307 standards.

The Department furthers its argument, with reference to the language of Rule 306(2) quoted above, and asserts:

Hence, when the 1990 rules were promulgated for Act 307, they are clearly the most technically appropriate standards relative to what is protective of human health and the environment, and, consequently, it would be improper to accept that anything in excess of these amounts could be deposited into the landfill and find its way into the groundwater.  Respondent's Reply Brief, p 4. (Emphasis added.)

This statement is the Department's basis for its authority to create the classification of new and old waste streams, and its authority for applying Act 307 standards to the operation of Type III landfills.  The triggering event appears to be the promulgation of the 1990 Act 307 rules.  However, neither Act 307 nor its 1990 rules contain the word "landfill" or make reference to Act 641.  Assuming the 1990 Act 307 rules are "clearly the most technically appropriate standards relative to what is protective of the human environment . . .," this assumed fact does not provide the Department with express or implied authority to apply them to landfill operations.  The Department points to no authority, either express or implied, for imposing Act 307 standards to landfill operations pursuant to Act 641 or Act 245.  Pursuant to Act 641 and Act 245, there is one set of standards to be used.  Those standards are the Safe Drinking Water Act standards specifically adopted in the respective administrative rules.

2.         WHETHER THE DNR HAS THE AUTHORITY TO LIMIT THE WASTE ACCEPTABLE UNDER THIS LICENSE TO WASTE WHICH IS CURRENTLY BEING LANDFILLED AT THE SITE AND WHICH HAS BEEN RETESTED ANNUALLY, THUS ELIMINATING SOME WASTES THAT HAD BEEN PREVIOUSLY APPROVED, TESTED AND LANDFILLED AT THE SITE?

Edison asserts that pursuant to the Act 641 rules, a waste need not be continually landfilled at the site to retain its Type III status.  The Department asserts that it must.

The Department's authority to regulate waste disposed of at a Type III landfill is found in 1982 AACS, R 299.430.9(3).  This Rule states:

(3)        In order to be disposed of in a type III sanitary landfill, all wastes, except demolition wastes, trees, and stumps, shall have been subjected to the leaching test protocol specified in R 299.4311 and shall be classified as a type III waste.  (Emphasis added.)

This Rule regulates which wastes may be disposed of in a Type III landfill, such as Sibley Quarry.  The key phrase of this Rule is: "In order to be disposed of . . .."  In other words, this phrase means no waste may be disposed of unless . . .. The conditions that must be met before a waste can be disposed of are contained in the last phrase of the sentence.  Those conditions, with exceptions not applicable here, are: 1) the waste was subjected to the leaching test protocol of Rule 299.4311 and, 2) the waste shall be classified as a Type III waste.  Therefore, when these two conditions are met, then a waste may be disposed of in the Type III landfill.  I find, the language of Rule 299.4309 to be clear and unambiguous.

The Department bases its authority for requiring the testing of wastes annually, whether landfilled or not, on subsection (4) of 1982 AACS, R 299.4311.  Respondent's Brief, p 19.  Rule 299.4311(4) states:

(4)        Waste classified as Type III waste shall be retested to confirm the classification annually or on a more frequent schedule as may be specified by the solid waste control agency.  Tests results shall be submitted to the solid waste control agency.

Rule 299.4311 is concerned with the classification of waste streams and the leaching tests required to determine the classification.  Subsection (4) simply provides the required frequency of leaching tests and where the test results are to be submitted.  As referenced in Rule 299.4309 (3), Rule 299.4311 provides for leaching test protocol and waste classification.  Rule 299.4311 is not the substantive provision authorizing the disposal of wastes in a Type III landfill.  This standard or authority is contained in Rule 299.4309(3) discussed above.  Again, the key language of that Rule is:  "In order to be disposed of . . .. "  The Rule then provides the two conditions which must be met before the waste can be disposed of in a Type III landfill, with exceptions.  This language is the standard which must be met to dispose of wastes in a Type III landfill, not the classification or leach testing protocol found in Rule 299.4311.  The phrase "In order to be disposed of . . ." clearly contemplates that a waste stream is being or will be landfilled.  If the waste is being or will be landfilled, then Rule 299.4309 requires that it be subjected to leach tests and classified.  Reading Rule 299.4309 in conjunction with Rule 299.4311, it is clear the standard set forth in Rule 299.4309 applies only to a waste stream that will be landfilled.  It is a violation of the Rule to dispose of a waste that has not been tested and classified.  The converse is not true.  There is no actual or threatened harm or likely violation of Act 641 or its administrative rules to not test and classify a waste which is not being landfilled.

Further, the purpose of Act 641 is to provide for the planning, construction and operation of landfills in a sound manner.  If a waste is not landfilled in any particular year, then why would the Department be concerned with its leachate characteristics?  The Department's reason is not based on the suitability of the waste for disposal, but a mechanism to disqualify wastes from being disposed of at landfills.  This purpose is unauthorized and is contrary to the intent of Act 641, which is to regulate waste being landfilled.

I conclude, as a Matter of Law, Rule 299.4311 does not provide the Department with authority to require leaching tests on a waste stream which is not being or will not be landfilled.  I conclude, as a Matter of Law, only wastes which are "to be disposed of . . . " require a leach test and classification pursuant to Rule 299.4311. 1982 AACS, R 299.4309.

The second part of this issue involves the propriety of the Department eliminating waste streams from an Act 641 operating license on the biannual renewal.  Persons engaged in and licensed to operate a solid waste management business have a substantial investment in the enterprise.  They are required to prepare and submit numerous studies and plans with an application for a construction license.  These initial investments cannot be expected to be recouped over a period of one operating license.  Generally, the "life" of a landfill is long term.  Once a license is issued to an operator and expenditures have been made in reliance upon it, the licensee has acquired a property interest in the license.  Bisco's, Inc v Liquor Control Commission, 395 Mich 706 (1976).  I conclude, as a Matter of Law, licensees holding an Act 641 operating license have a property interest in that license.

Act 641, section 15(2) states:

An operating license shall expire 2 years after the date of issuance.  An operating license may be renewed before expiration upon payment of a renewal application fee of $100.00 if the licensee is in compliance with this act and the rules promulgated under this act.  (Emphasis added.)

This provision authorizes the renewal of an operating license if: 1) the licensee pays an application fee of $100.00, and 2) the licensee is in compliance with Act 641 and the administrative rules.  Although this provision appears to be permissive because of the use of the word "may," renewal may not be denied without sufficient reason.  An Act 641 licensee necessarily relies on the understanding implicit in the statute that it can expect its license to be renewed upon compliance and a timely renewal application is made.

I conclude, as a Matter of Law, Act 641 licensees have a reasonable expectancy of renewal upon compliance with Act 641, its administrative rules and any lawful conditions placed on a particular license.  I conclude, as a Matter of Law, the elimination of waste streams from an Act 641 biannual operating license is an amendment to the license.  I conclude, as a Matter of Law, amendments to an Act 641 operating license must have a lawful basis.

3.         WHETHER THE DNR HAS THE AUTHORITY TO DETERMINE WHETHER THE CRITERIA TO BE MET ARE THE TYPE A, TYPE B OR TYPE C CRITERIA OUTLINED IN THE ACT 307 RULES, SHOULD THOSE RULES BE FOUND TO BE THE APPROPRIATE STANDARD FOR GROUNDWATER PERFORMANCE.

This issue is moot, since the appropriate Type III landfill standards for groundwater Performance are the SDWA standards as found in 40 CFR part 257.3-4 and appendix I of 40 CFR part 257, not the cleanup criteria set out in the Act 307 administrative rules.

4.         WHETHER THE IMPLEMENTATION OF THE NEW SOLID WASTE MANAGEMENT RULES INCORPORATE THE ACT 307 RULES INTO THE PROCESS OF ISSUING A TYPE III SOLID WASTE DISPOSAL AREA LICENSE SO THAT THE SAFE WATER DRINKING STANDARDS ARE NO LONGER APPLICABLE IN DETERMINING GROUNDWATER PERFORMANCE STANDARDS FOR A SANITARY LANDFILL.

On October 7, 1993, new administrative rules, 1993 AACS, R 299.4101, et seq., ("new Act 641 rules"), became effective.  The DNR asserts the new Act 641 rules promulgated in 1993 incorporate the Act 307 rules into the process of issuing a Type III sanitary landfill operating license.  Edison asserts the correct groundwater performance standards are, in fact, the SDWA standards of 40 CFR part 257.3-4, and appendix I of 40 CFR part 257.  Edison claims that the Act 307 rules are not incorporated into the new Act 641 rules.

In rule making, the Administrative Procedures Act allows an agency to adopt outside standards by reference.  See MCL 24. 232 (4); MSA 5.3194 (602) (4).  As asserted by Edison, the new Solid Waste Management Rules adopt by reference the federal asbestos regulations (Rule 299.4131), the Standard Industrial Classification Manual (Rule 299.4132), the United States Environmental Protection Agency test methods for evaluation of solid waste (Rule 299.4133), the federal list of hazardous inorganic and organic constituents (Rule 299.4134), the American Society for Testing and Materials standards (Rule 299.4135), the federal tank and surface impoundment standards (Rule 299.4136), and others.  It is obvious the Department knows it must adopt outside standards by reference, and it knows how to incorporate these standards by rule.  The Department has been applying Act 307 standards to Edison's landfill operation since 1991, yet it failed to incorporate these standards into its new 1993 Rules.  The Department knew adoption by reference is required by law and had the opportunity to adopt Act 307 standards in the 1993 Rules, yet the Department did not do so.  The failure to do so is more than a minor omission, it is evidence the standards were not meant to apply.

The new solid waste management rules for Act 641 incorporate the SDWA, 40 CFR part 257.3-4, appendix I of 40 CFR part 257 and Act 245 with its rules by reference.  See discussion, supra.  The new Act 641 rules do not incorporate the Act 307 rules into the process of issuing a Type III Solid Waste Disposal Area License.  If it was the intention of the Department to substitute Act 307 standards for the SDWA and Act 245 standards it should have done so; it did not.

Rule 319 is the only rule pertaining to Type III sanitary landfills that makes any reference to Act 307.  See 1993 AACS, R 291.4319.  Rule 319 applies strictly to remedial activities for a contaminated site.  A response action plan need not be prepared for every Type III sanitary landfill.  See 1993 AACS, R 299.4318(9) (c) and (10), R 299.4319(1).  This is not a blanket incorporation of the Act 307 rules into the Act 641 rules, so as to make the SDWA standards inapplicable in determining groundwater performance standards for landfill operations.

I conclude, as a Matter of Law, the Act 641 administrative rules incorporate by reference the SDWA and Act 245 standards for Type III landfill groundwater performance standards.  I conclude, as a Matter of Law, the 1993 Act 641 administrative rules do not incorporate Act 307 standards by reference or otherwise imply they are an appropriate standard for Type III landfill operations.

Based upon the foregoing Opinion, I conclude, as a Matter of Law, the following:

1.         The groundwater performance standards for the operation of Type III landfills are found in the Act 641 administrative rule references to the Safe Drinking Water Act and Act 245.

2.         Act 307 and its administrative rules are not applicable standards for the operation of Type III landfills.

3.         The Department does not have the authority to limit the wastes acceptable under a Type III landfill operating license to wastes which are currently being landfilled.

4.         The Department may not amend an operating license at the biannual renewal without cause.

5.         The issue of whether the Department has the authority to impose Type A, Type B or Type C criteria outlined in the Act 307 rules is moot because Act 307 standards are not applicable to the operation of a Type III landfill.

6.         The 1993 Act 641 administrative rules do not incorporate Act 307 or its rules as standards for operating Type III landfills.

7.         The 1993 Act 641 administrative rules specifically adopt the Safe Drinking Water Act rules and Act 245 and its rules as standards for operating Type III landfills.

Dated:  April 22, 1994                                      

                                                                                    Richard G. Lacasse
                                                                                    Administrative Law Judge