IN RE: Septage Waste Servicers Act
Appeal of Ronald Kilner,
d/b/a Marv Lang Sanitation
and Patten's Septic Service

I have reviewed the record in the above-referenced case and I hereby adopt and incorporate the findings of fact and conclusions of law of the Administrative Law Judge.

I hereby adopt and incorporate the Proposal for Decision as the Final Decision and order of the Department of Natural Resources.

It is further ordered that all disposal activities at 54101 Nine Mile Road, Oakland County, Lyons Township, NW¼ , Sec 35, T1N, R7E, cease upon receipt of this Order.

David F. Hales, Director
Department of Natural Resources

IN RE: Septage Waste Servicers Act Appeal
of Ronald Kilner, d/b/a Marv Lang
Sanitation and Patten's Septic Service

This case involves the denial of a request for a permit to dispose of septage on land, including. a request for variances of certain distance and mixing requirements. A hearing was held in this case on July 21,1988, following a pre-hearing on June 10, 1988.

At the hearing the Applicant, Mr. Ronald Kilner, was represented by Mr. Emery E. Jacques, Jr., Attorney-at-law, and the Department of Natural Resources was represented by Ms. Kathleen L. Cavanaugh, Assistant Attorney General. Prior to the hearing a stipulated statement of facts was agreed to by the parties, which included a set of eight exhibits. The statement was accepted into evidence and is included in the record as Appendix A. During the hearing one correction was made in the stipulated facts, a figure in paragraph 13 was changed from 29 to 39 feet. I have noted the change in the Appendix. The exhibits were accepted as Joint Exhibits A-H.

The Applicant introduced evidence through one witness and one exhibit. The Department relied on the stipulated matters in its case in chief, then introduced rebuttal evidence through three witnesses and three exhibits.

Before the hearing began the Department moved for summary disposition based upon the stipulations. That motion was not granted. I have now reviewed the entire record and my decision will rely on information received in evidence during the hearing.

At the close of the Applicant's proofs the Department moved for a summary disposition, which I denied subject to review after the hearing. I choose not to overturn that decision now.

This case falls under sections 11, 12, and 13 of the Septage Waste Services Act, No. 181, P.A. of 1986, which is MCLA 325.281-287. Language found in the earlier statutes regulating septage services is also relevant to the disposition of this case.

Mr. Kilner is a licensed septage waste servicer under the provisions of Act 181, having been granted that license by the Department on April 14, 1987 and was apparently licensed for some time prior to that under the earlier versions of the law (since most of the facts are stipulated, I will refer to the record only where I wish to emphasize a fact or decide a matter in controversy).

On September 19, 1985 Mr. Kilner received approval from Oakland County to use a 20 acre parcel of land for the disposition of septage (then septic tank waste). This approval was on the appropriate form provided by the Department of Natural Resources. According to Mr. Kilner, he made a timely application for renewal of this permit in 1986. He testified that he had made application and that the local custom was that a renewal was considered granted unless the applicant heard to the contrary from the county. Neither party produced any evidence regarding this aspect beyond the testimony of Mr. Kilner. The Department did introduce three exhibits (Department Exhibits 1, 2, 3) which show that as late as August, 1986 Oakland County still approved the use of this property under the then applicable law, albeit with conditions and with a disclaimer regarding the site's use under the, impending effect of Act 181. I doubt that Oakland County would have turned down a renewal, when a reconciliation of the issues had occurred only six weeks before. If some new concerns had arisen, the Department would have had them available as it did the other exhibits. I find that this was an approved site on October 1, 1986, when Act 181 took effect.

Shortly after he applied for the license as a hauler, Mr. Kilner applied to Oakland County for a permit to use the site for septic tank waste disposal. This request was made on February 16, 1987 on the form provided by the Department, and it was denied by Oakland County on March 31, 1987.

Prior to that denial, Mr. Kilner wrote to the Department of Natural Resources requesting variances on both the mixing and distance requirements of the new act. I find that Mr. Kilner's letter of February 22, 1987 was a request for a variance (Joint Exhibit C). Further, 'Oakland County's letter to the Department which recommends denial of approval of the site mentions both variance requests (Joint Exhibit D), lending support to this finding. The stipulation agrees that a variance was requested.

On May 19, 1987 the Department denied the request. Although the letter of denial does not mention the variance request, the terms of the letter make it clear that the Department did not agree to grant any variance. While the request for a contested case hearing in this case was not made an exhibit, it does reflect Mr. Kilner's recognition that the denial incorporated the denial of the variance requests.

The site is approximately 20 acres of slightly rolling farmland, which Mr. Kilner purchased on land contract late in 1985 to use as a disposal site because of changes in public facility accessibility. Mr. Kilner does not live on the property, but does rent the house on it to someone.

Although no evidence establishes the slope of the property, the testimony of Mr. Kilner, Mr. Johnson and Mr. Young makes clear that sufficient slope exists to permit waste to run downhill on the property and to escape onto the surrounding property. Still, it is flat enough in several locations used for dumping that the effluent does not spread sufficiently to prevent pooling.

All parties agreed that the septage has not been mixed into the soil (paragraph 11 of Appendix A). The testimony of Mr. Kilner and Mr. Johnson confirmed the language of the stipulation. Mr. Kilner point is that the trees located in the major dump site prevent mixing. He argues that the trees apparently aid in the dissipation of the waste into the soil, effectively accomplishing the same result as mixing. Further, he asserts that Oakland county health officials knew that the mixing was not occurring and did not find any threat to the environment in their earlier approvals. The language of the letters introduced as Department Exhibits 1-3 is somewhat vague, but suggests that the practices were not entirely satisfactory. Finally, Mr. Kilner argues that mixing occurs through the natural dissipation of the waste into the soil.

The stipulated facts state that pooling has occurred. Mr. Kilner's testimony was that the only pooling occurred immediately upon discharge and that within 6-7 hours the majority dissipates. According to him, only frozen ground and the improper practice of dumping more than one load in a given area led to pooling.

Department Exhibits make clear that the former areas used for dumping were not preventing ponding, which is the same as pooling for purposes of this decision. Mr. Johnson's testimony and Joint Exhibit H persuade me that pooling does occur with regularity and that the pools do not dissipate completely within 24 hours. He testified to finding pooling of standing waste of toothpaste consistency to a depth of 5" which was present more than 24 hours before. His testimony and the exhibits show that he found effluent on the ground on all of his visits. The testimony of neighbors Mr. Young and Mrs. Lute also establishes the presence of waste on the ground. Even Mr. Kilner says that a "majority" is gone, not all of it.

Even though the testimony of the neighbors and some of the testimony of Mr. Johnson cannot establish that the effluent was present for 24 hours, a reasonable inference can be drawn that pooling does occur with significant regularity.

I find that no human agency is used to mix the septage into the ground. The only action which occurs is the natural sinking of the waste into the ground to the degree that it takes place. No disking or tilling of the soil has ever been attempted due to the trees located on the site.

The exhibits establish that this property extends 439 feet from east to west. Application of the 200' property line restriction of Act 181 reduces the useable application area to 39' on the east-west axis. By agreement, the north-south area available is 250'. Mr. Kilner seeks the variance because the isolation distances in that statute make the use of the property impracticable. I find that to be the case.

The testimony of all. three Department witnesses and Mr. Kilner himself establish that waste has been disposed of less than 200' from property lines. This occurred both by direct action of the haulers and by run-off. On more than one occasion the waste flowed onto the adjoining property of Mr. Young.

I find that disposal has occurred within the 200' limits and that use of the site without the variance would lead to further incidents of such disposals. I find that if a variance were granted, the adjoining property would likely be subjected to further intrusions.

I note that both neighbors testified that odors emanated from the property when the winds were prevailing in their direction. Mr. Kilner testified that odors were present only as disposal took place. Since pooling does occur, odor is bound to be a periodic problem.

The law which applies in this case is the Septage Waste Servicers Act, Act No. 181, P.A. of 1986. It is the successor to Act No. 243, P.A. of 1951. In between these acts was a third which affects this case -- Act No. 67, P.A. of 1977.

Section 11 of the 1986 act provides:

Subject to the limitations contained in sections 12 and 13, septage waste that is picked up at a location that is further than 15 road miles from a public septic waste treatment facility, or where a public waste treatment facility is not available, may be disposed of on land if the person holding licenses issued pursuant to sections 4 and 5 applies to the director for a permit authorizing the disposal of septage waste on land, supplies any additional information pertinent to this act as required by the director, and sends notice to property owners as provided in subsection (2).

Mr. Kilner is such a licensee and his claim to fit the terms of this section is not challenged.

Section 12 provides that a permit issued under section is subject to several requirements. Two of those are relevant in this case.

Section 12(c) provides: "Septage waste shall be mixed into the soil, within 48 hours of any surface application unless the soil is frozen and the requirements of section 13 are met." Section 12(d) sets forth horizontal distances between the applied sepatage waste and homes, at 800 feet and property lines at 200 feet. These are called isolation distances. The applicant seeks a variance from both these sections. I conclude as a matter of law that the permit cannot be granted without the variances, since the applicant has admitted that mixing cannot take place and argued that the property cannot be used without reducing the isolation distances.

Section 13(4) permits the director to grant a variance to the requirements of section 12(c) under seven conditions, including the following: (c) the slope of any lands on which septage waste is applied is less than 2%; (d) the septage waste is applied in a manner that prevents the accumulation and ponding of septage waste; (e) the soil shall shall be properly tilled at least once every two years to prevent an accumulation of solids forming at the soil surface; (f) the application area shall be no closer than 1,000 feet to homes or commercial buildings; and (g) all other isolation distances stated in section 12(d) are complied with.

The record and findings of fact justify denial of the variance request to the requirements of section 12(c). There were several instances of accumulation and ponding of septage waste in the past, including instances attributed to poor management practices and employee behavior . The soil cannot be tilled every two years in the primary application area due to the presence of trees. Many portions of the property are within 1,000 feet of the residence to the east. The isolation distances in section 12(d) cannot be complied with. While it is not necessary to this decision, I conclude that a variance under 13(4) cannot be granted if a variance to 12(d) is also required, because the language in section 13(4)(g) mandates compliance with the isolation distances in 12(d). I also believe that the testimony raises sufficient questions about the slope of this land that no variance should be granted without a determination that the slope does not exceed 2%.

I conclude that the variance from the 48 hour mix requirement of section 12(c) was correctly denied.

Under section 13(2) a variance from section 12(d) can be granted "if the director finds that the conditions of the variance provide the same or a higher degree of protection to the environment and the public health." The Applicant seeks to apply septage closer than the 200 foot isolation from property lines. Since the record establishes that septage has already flowed off the property to the east, I conclude that the variance will not provide the same degree of protection as the 200 foot limit," since the frequency of applications inside the 200 foot limit will increase. The record also establishes that the employees have not always displayed the degree of care necessary to protect against harm. The admonitions against Mr. Kilner in the previous use of this site persuade me that the discretion imposed in the Department was properly exercised.

I conclude that the variance from the isolation distance requirement of section 12(d) was correctly denied.

Mr. Kilner argued that the mix requirement of the act was met by the natural dissipation of the waste into the soil. The word mix implies the action of an outside force. The American Heritage Dictionary defines "mixed" as combined or blended into one mass. More importantly, this requirement has a legislative history. Act 243 of 1951 required the burial of these wastes. In the 1977 version the need for burial was left to the decision making authorities. In the 1986 version the mix requirement is included in the same context as the former burial requirement. I conclude that the legislature intended that the septage waste was to be physically combined with the soil by some force applied by the hauler, such as tilling.

I conclude that the argument that the mix provision is satisfied by natural dissipation is without merit.

The Applicant's major argument is that the Department should grant the permit without the variances because he had been using this property for a period of time prior to the passage of the 1986 act. His argument is that he bought the property under the provisions of the old act, that he received a permit to use the site in precisely the same manner as he proposes to use it under the new act, that his old permit remained in effect until he applied for a permit under the new act and remains in effect until this case is finally decided, and that he is entitled to a permit under the new act no more restrictive than under the old. If he is not granted that, he should at least be granted a permit with variances to the mix and isolation requirements introduced after he received permission to use the site and actually put the site into use.

I accept Mr. Kilner's argument that his old permit remained in effect at the time he applied for the new license and permit under the new act. I also conclude that he was entitled to use the property in a less restricted manner under the old act. I agree that his application was timely and conclude that the old permit remains in effect until this matter is final unless the Department finds some violation of the old or new act justifying summary suspension, as set forth in the Administrative Procedures Act.

As a matter of law, I conclude that the argument fails as a justification for either the unrestricted permit or the variances requested by the Applicant. Neither side presented any law on this issue. In the absence of such authority, I am unpersuaded that either law or equity support the Applicant's position. Mr. Kilner's former use of the property is no longer authorized by the laws of Michigan. His use was justified only by the terms of the 1951 Act, as amended in 1977. When the law changed, Mr. Kilner's right to use the property changed with it.

The disposition of human waste and other septage is a substantial public health issue, well within the power of the Legislature to regulate. In reviewing the exercise of the police power it has, the Legislature is free to increase the restraints it imposes on the use of land, even if affects the ability of landowners to use their property in a previously authorized manner. Landowners do not retain an unrestricted right to use their property in perpetuity when a regulatory scheme is set up, as was the case in 1951 when the first law was enacted. The Legislature was acting to protect the public health when it enhanced the protections contained in the Septage Waste Servicers Act.

I conclude that the prior use of the property gave the. applicant no special right or entitlement to be exempted from the provisions of Act 181.

The Department of Natural Resources properly denied the Applicant's request for A permit and properly decided to deny the variances sought.

Date
Administrative Law Judge

Exhibit A - Applicant's License to remove and transport septic tank waste - April 4, 1987
Exhibit B - Application for permit to dispose of septage on land - denied March 31, 1987
Exhibit C - Variance request from Applicant - February 22, 1987
Exhibit D - Letter from Oakland County to DNR recommending denial of permit to dispose of septage on land - March 30, 1987
Exhibit E - Letter from Applicant to DNR requesting site inspection - April 28, 1987
Exhibit F - Letter from DNR to Applicant denying permit to use site for disposal - May 19, 1987
Exhibit G - Land survey map of proposed disposal site.
Exhibit H - Photographs of proposed disposal site (see Appendix A for details of photographs)
Exhibit I - Land survey map of proposed disposal site '(with markings made during hearing for reference with testimony

Exhibit l - Letter from Oakland County to Applicant regarding site - June 25, 1986
Exhibit 2 - Letter from Oakland County to Applicant regarding site - July 25, 1986
Exhibit 3 - Letter from Oakland County to Applicant regarding site - August 7, 1986

Exhibit 1 - Permit to dispose of septage on land - September 19, 1985