In Re Approximately Forty Acres

Murphy, J.

Aрpellant appeals as of right the trial court’s order imposing a lien on the property in question in favor of the state. We affirm.

This case involves interpretation of the Natural Resources and Environmental Protection Act (nrepa), MCL 324.101 et seq.; MSA 13A.101 et seq. Particularly MCL 324.20138; MSA 13A.20138, which provides in relevant part:

(1) All unpaid cоsts and damages for which a person is liable under [MCL 324.20126; MSA 13A.20126] constitute a lien in favor of the state upon a facility that has been the subject of response activity by the state and is owned by that person. A lien under this subsection has priority over all other liens and encumbrances except liens and encumbrances recorded before the date the lien under this subsection is recorded. A lien under this subsection arises when the state first incurs costs for response activity at the facility for which the person is responsible[ 1 ]

(2) If the attorney general determines that the lien provided in subsection (1) is insufficient to protеct the interest of the state in recovering response costs at a facility, the attorney general may file a petition in the circuit court of the county in which the facility is located seeking either or both of the following:

(a) A lien upon the facility subject to response activity that takes рriority over all other liens and encumbrances that are or have been recorded on the facility. [ 2 ]

The property at issue in this case is one of four adjoining parcels of land, used previously as a landfill, owned by Howard and Leona Fenske. The three other parcels are locаted in Kent County and are not at issue in the instant matter. Appellant, Jack Dykstra Excavating, Inc., has a construction lien, in excess of $300,000, on the parcel at issue for excavating work performed on the site. As a result of the landfill operation, the parcel is contaminated. The Department оf Natural Resources petitioned the trial court, seeking a superpriority lien in favor of the state for all past and future costs associated with response activity on the parcel. At the time of the petition, costs amounted to $33,000, and testimony at the hearing regarding the petition indicatеd that total costs may exceed $1,000,000. Following a hearing, the trial court granted the lien.

i

First, appellant claims that the trial court improperly inteipreted the nrepa as leaving the decision whether to impose a superpriority lien solely to the discretion of the Attorney General. Appellant argues that in cases such as this it is improper for a trial court not to exercise ‍‌‌​‌‌‌‌‌​​​‌‌‌‌‌​​‌‌​‌‌​‌‌‌​‌‌​​‌​‌​​​​‌‌‌‌‌‌​‌‌‍discretion and to simply accede to the will of the Attorney General. We agree that the trial court must arrive at its own conclusion and not simply accede to the will of the Attorney General, but disagree with appellant’s characterization of the trial court’s actions in this case.

We interpret MCL 324.20138(2); MSA 13A.20138(2) to mean that if, in the Attorney General’s opinion, a lien pursuant to subsection 1 is insufficient, the Attorney General may seek a superpriority lien pursuant to subsection 2 by petitioning the circuit court to render its opinion regarding the necessity of the superpriority lien. We consider the fact that the statute provides that a superpriority lien can be obtained only following a hearing regarding the petition, MCL 324.20138(3); MSA 13A.20138(3), to implicitly bestow discretion upon the trial court regarding the propriety of the superpriority hen. A lien pursuant to subsection 1 does not rеquire a petition to be filed or a hearing to be held, and because the Legislature placed such requirements on obtaining a superpriority lien pursuant to subsection 2, we must construe them to have some meaning. See Frank v William A Kibbe & Associates, Inc, 208 Mich App 346, 350-351; 527 NW2d 82 (1995). In our opinion, if the trial court had no discretion, the petition and hearing rеquirement would become superfluous. We therefore conclude that the Legislature intended the petition and hearing require- merit to act as a check on the authority and discretion of the Attorney General by allowing the circuit court to make an independent determination regarding whethеr a lien under subsection 1 would indeed be “insufficient to protect the interest of the state in recovering response costs at a facility . . .

In this case, our review of the record does not lead us to the conclusion that the trial court simply acceded to the will of the Attorney General and did nоt exercise its own discretion. A hearing was held with regard to the petition, and testimony concerning the condition of the property and the projected cost to the state was presented. During the hearing, the trial court asked the petitioner precisely why the Attorney General was of the оpinion that a standard lien would be insufficient. Thereafter, the trial court concluded, on the basis of the evidence presented, that a superpriority lien was, in its words, “appropriate and necessary.” We find no error requiring reversal.

n

Next, appellant claims that the trial court erred in allowing the superpriority lien to secure future response costs. We disagree.

MCL 324.20138(2); MSA 13A.20138(2) allows a superpriority lien to be ordered to protect the state’s interest in recovering “response costs” at a facility. MCL 324.20101(l)(ff); MSA 13A.20101(l)(ff) defines such costs as “all costs incurred in taking or conducting a response activity, including enforcement costs.” (Emphasis added). Appellant argues that ‍‌‌​‌‌‌‌‌​​​‌‌‌‌‌​​‌‌​‌‌​‌‌‌​‌‌​​‌​‌​​​​‌‌‌‌‌‌​‌‌‍the Legislature’s use of the past tense indicates an intent to refer to only those costs that have already been incurred and does not include potential future costs. We disagree.

The primary goal of judicial inteipretation оf statutes is to ascertain and give effect to the intent of the Legislature. Rowell v Security Steel Processing Co, 445 Mich 347, 353; 518 NW2d 409 (1994). The first step in determining intent is the language of the statute. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992). However, if a literal construction of a statutе would produce unreasonable and unjust results that are inconsistent with the purpose of the statute, the court may depart from a literal construction. Rowell, supra at 354. In addition, statutory language should be construed reasonably, keeping in mind the purpose of the act. Dep’t of Social Services v Brewer, 180 Mich App 82, 84; 446 NW2d 593 (1989).

In this case, appellant advocates an interpretation of the definition of “response costs” equivalent to “all costs [that have been] incurred [by the dnr].” However, we are of the opinion that a more appropriate inteipretation of the definition is the equivalent of “all costs [that will be] incurred [by the dnr].”

A standard lien undеr MCL 324.20138(1); MSA 13A.20138(1) arises when the state “first incurs costs for response activity,” and covers “[a] 11 unpaid costs and damages” of that response activity. Because “evaluation” is a “response activity,” a standard lien is likely to arise early in the remediation process. In addition, because “response аctivity” also includes “interim response activity” and “remedial action,” and there is no requirement that a standard lien be for a stated amount, see MCL 324.20138(1); MSA 13A.20138(1), we are of the opinion that a standard lien was intended to attach early in the remediation process and to remain attached to cover all costs incurred throughout the process. Therefore, because it is clear from the statutory ‍‌‌​‌‌‌‌‌​​​‌‌‌‌‌​​‌‌​‌‌​‌‌‌​‌‌​​‌​‌​​​​‌‌‌‌‌‌​‌‌‍scheme that the Legislature intended the superpriority lien to provide greater protection of the state’s interest, we consider it to be inconsistent with the Legislative intent to hold that a supеrpriority lien does not cover future response costs, or costs that will be incurred by the state throughout the process.

Also, the superpriority lien provision was originally enacted as part of the Environmental Response Act (era), former MCL 299.601 et seq.; MSA 13.32(1) el seq. 3 , which was enacted, in part, in response to the рroblems facing the state in regard to the exorbitant cost of cleaning up polluted facilities, the trouble encountered getting those responsible for the contamination to pay for the cleanup, and the resulting financial burden that was being placed on the taxpayers to covеr for those responsible. See House Legislative Analysis, HB 5878, October 17, 1990, pp 1-2. We consider our interpretation to further this response by allowing the state to undertake the necessary remediation activities, secure in its knowledge that its financial interest will be protected.

in

Next, appellant claims that the trial court erred in applying an overly broad definition of the term “facility.” Appellant argues that placing a lien on the entire forty-acre parcel was improper because not all forty acres were contaminated. We disagree.

MCL 324.20101(l)(o); MSA 13A.20101(l)(o) defines “facility” as “any аrea, place, or property where a hazardous substance . . . has been released, deposited, disposed of, or otherwise comes to be located.” The plain language of this definition and the terms used evidences an intent to broadly define “facility” to encompass virtually аny location that contains hazardous substances. The issue raised by appellant is whether a lien should be placed on an entire parcel of property where hazardous substances are located when not all that property is contaminated. As a result of the intent displayed by the Legislature broadly defining “facility,” we are of the opinion that, when speaking in terms of “property” as real property, as a general rule, if hazardous substances are located on a part of the property, a lien may be placed on the entire, legally described, parcel of land. However, because we are also of the opinion that such a broad interpretation of the term may, in some instances, lead to inequitable and absurd results, courts must analyze each situation case by case.

In the case at bar, the parcel of land defined by the trial сourt as the facility was approximately forty acres. The hearing testimony indicated that the soil that had been contaminated had been moved to only one comer of the parcel. However, the testimony also indicated that there was no way to know if the subsurface soil was contaminated because the area is under landfill. Also, the ground water under twenty to thirty acres of the parcel was contaminated. On the basis of the evidence presented, we find no error in the trial court’s granting of a lien on the entire forty-acre parcel.

IV

Next, appellant asks if it has any defеnses if the state chooses to enforce its superpriority lien. This question arises out of a statement in the trial court’s opinion on reconsideration that “[a]ny inequity that would otherwise result from the Court’s imposition of a subsection (2) (a) lien is more than offset by the numerous defenses available to Dykstra pursuant to sections 20126 and 20127 of nrepa [MCL 324.20126; MSA 13A.20126 and MCL 324.20127; MSA 13A.20127].” Appellant argues that those sections, and consequently the defenses listed therein, do not apply to appellant. We consider an answer to appellant’s question to be premature.

Our review of the record indicates that the statements made by the trial court were dicta, and not essential to its decision to grant appellee’s hen. Therefore, even assuming the trial court was incorrect, reversal is not warranted. The issue before the trial court was whether a superpriority lien was proper, not whether appellant has any defenses available if the state chooses to enforce such a lien. As previously discussed, the trial court applied the correct standard in making its decision to grant the lien. While an arguably relevant consideration to the trial court’s decision was the existence of liens currently on the property, under the statute, the effect of a superpriority lien on those prior liens is not a relevant consideration. The statute does not require the trial court to “balance the equities” as appellant suggests, but simply to determine whether a standard lien is “insufficient to proteсt the interest of the state in recovering response costs at the facility . . . .” While we realize the harshness of the ‍‌‌​‌‌‌‌‌​​​‌‌‌‌‌​​‌‌​‌‌​‌‌‌​‌‌​​‌​‌​​​​‌‌‌‌‌‌​‌‌‍superpiiority lien provision on prior lienholders, we are constrained by the clear language of the statute to apply it as written. When enacting new laws, the Legislature is chargеd with knowledge of existing laws and is presumed to have considered the effect of the new laws on all existing statutes. Walen v Dep’t of Corrections, 443 Mich 240, 248; 505 NW2d 519 (1993). Therefore, we must presume that when enacting the nrepa, the Legislature was aware of the Construction Lien Act, MCL 570.1101 et seq.-, MSA 26.316(101) et seq., and the effect the superpriority lien provision would have on cоnstruction liens, and chose to give priority to super-priority liens. The effect of enforcement of the super-priority lien and the defenses available to appellant is irrelevant to the instant matter.

v

Last, appellant claims that the imposition of the superpriority lien was an “actiоn” to recover response costs and was therefore barred by the statute of limitations, which appellant argued below is set forth in what is now MCL 324.20140(2); MSA 13A.20140(2), which provides “the limitation period for filing actions . . . .” The trial court ruled that this was not an “action” to recover response activity costs, but simply a pеtition seeking the imposition of a lien; therefore, the statute of limitations pertaining to actions to recover response activity costs did not apply. We agree with the trial court.

A lien is a security interest for money owed by one party to another, see Walworth v Wimmer, 200 Mich App 562, 564; 504 NW2d 708 (1993), and is separate from an undеrlying cause of action, see, e.g., Vorrath v Garrelts, 49 Mich App 142, 147; 211 NW2d 536 (1973). In this case, a lien was imposed on the property to secure payment of the cost of response activity. Although a court imposing a lien impliedly grants money to the lienholder, see Walworth, supra, we do not consider the petition seeking a superpriority lien to be an action to recover response activity costs. The petition was simply an attempt to secure payment of such costs until the state files the underlying action seeking to recover the actual cost of the response activity. The statute of limitations will become an issue whеn that cause of action is filed, and if that cause of action is not timely filed, the superpriority lien will be unenforceable, see MCL 324.20138(6); MSA 13A.20138(6). In other words, the petition seeking a superpriority lien and an action to recover response costs are two different things, and if imposed, the superpriority liеn may continue until the underlying action to recover response costs is barred by the statute of limitations.

Affirmed.

Notes

1

A lien pursuant to subsection 1 will be referred ‍‌‌​‌‌‌‌‌​​​‌‌‌‌‌​​‌‌​‌‌​‌‌‌​‌‌​​‌​‌​​​​‌‌‌‌‌‌​‌‌‍to as such, or as a “standard lien.”

2

A lien pursuant to subsection 2(a) will be referred to as such, or as a “superpriority lien.”

3

The specific provision was MCL 299.616a; MSA 13.32(16a). In 1995, the Legislature amended the era and recodified it within the nrepa. See Cipri v Bellingham Frozen Foods , Inc, 213 Mich App 32, 36; 539 NW2d 526 (1995).

Case Details

Case Name: In Re Approximately Forty Acres

Court Name: Michigan Court of Appeals

Date Published: Aug 6, 1997

Citation: 566 N.W.2d 652

Docket Number: Docket 188886

Court Abbreviation: Mich. Ct. App.