This is а suit for injunction, brought under the aegis of the Michigan Environmental Protection Act, MCLA 691.1201 et seq.; MSA 14.528(201) et seq. Following a nine-day trial that began on November 23, 1976, plaintiff Wayne County Health Department, Air Pollution Control Division, (hereafter, "the Division”), secured a decree from the lower court directing defendant Olsonite Corporation to adopt within a stated period "a specific supplemental odor control system” capable of achieving emission limits set by the court.
The Division, empowered to investigate, prevent and abate causes of air pollution within Wayne County and to enforce the Wayne County Air Pollution Control Regulation, (hereafter, "the Regulation”),
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filed the present suit on October 12, 1973. Its complaint alleged that Olsonite, a domestic corporation located at 8801 Conant Avenue,
Olsonite, situated amid other industrial facilities and bordering residential areas to the east, north and south, manufactures molded plastic toilet seats, steering wheel inserts and various flexible plastic parts used by the аutomotive industry. Of these items, only the flexible plastic parts require painting at Olsonite’s plant on Conant. The parties do not dispute that, as an incident of the painting process, certain pungent odors are produced which, if unrestrained, are then emitted into the atmosphere and carried off by prevailing winds. The crux of the controversy, however, centers on the effectiveness of Olsonite’s present method of restraining its paint fumes from entering the atmosphere.
The painting operation, conducted weekdays on a single shift from 7 a.m. to 3:30 p.m., employs an overhead conveyor system by which parts to be painted are passed through a series of four paint spray booths, a flash-off chamber and a bake oven. In addition, Olsonite uses a chain-on-edge conveyor which carries parts through an enclosed painting machine. Necessary finishing is then performed in two separate paint spray booths. In all, according to defendant, there are ten potential sources from which odor may emanate.
Paint is electrostatically applied by automatic spray equipment located in front of the booths. The paint, specified by Olsonite’s customers, is a proprietary urethane enamel рroduced by PPG, Inc. In addition to certain known solvents that are
Each of the paint spray booths is equipped with devices which form a curtain of water designed, primarily, to trap wayward particles of paint and, secondarily, to prevent the emission of odors into the atmosphere. The water curtain is maintained by a system drawing recirculated water from a tank at the base of each spray booth through a pipe to a manifold at the top of the booth. The manifold contains a number of uplifted nozzles which discharge water against and over a series of baffles controlling the flow and splash of water to form, when fully functional, a continuous сurtain of water. Owing to the use of recirculated water, the nozzles at times become clogged by accumulations of paint, causing breaks in the curtain. Through these breaks, paint particles, solvents and exhaust materials escape into the stacks and thence into the ambient air. Olsonite has from time to time modified its operation in an effort to improve the water curtains by adding more baffles, using additional weirs in the water tanks, purchasing extra manifolds to replace those that become clogged and installing (four to five weeks prior to
At the trial, the Division presented the following evidence to establish its prima facie case: 1. Five field inspectors, employed by the Division, testified regarding inspections and surveillance they conducted at or near the Olsonite facility from 1972 to the time of trial. According to their testimony, the inspectors, although not formally enrolled in odor-detection courses, did receive instruction and training on the subject. One of the inspectors, witness Zabick, described the nature of the orientation available to the Division’s inspectors:
"Q. [Mr. Donald A. Campbell, Assistant Prosecuting Attorney] I would like you to tell the Court specifically, if you can, the type of material which is contained, for instance, in the EPA [i.e., the United States Environmental Protection Agency] manuals? For instance, do they talk about technique? I mean, you said you have read manuals which deal with odor, is that correct?
"A. That is right.
"A. Sources of different types - of odors right from rendering plants to paint making operations to odors in steel making, types of control devices, methods of detecting it, various type charts to use to detect levels of odors, numerical system of evaluating them, methods of positioning yourself, making a complete around-the-source surveillance, up wind, down wind, the complainant’s role in determining the severity of an odor.
"THE COURT: I think that is fine, Mr. Zabik [sic]. Are these manuals available to all the inspection staff of the agency?
"THE WITNESS: Yes.”
The testimony of the inspectors essentially revealed that on frequent instances from 1973 to the date of trial they had been summoned, often by radio run and almost invariably at the behest of complaining citizens, to verify alleged odors issuing from Olsonite’s plant. The voluminоus inspection reports and violation notices, entered at trial to show defendant’s knowledge that complaints had arisen, describe the alleged odors either in narrative fashion
(e.g.,
"very high”, "very pronounced”, "pungent”, "slight odor”) or by means of a Division-adopted Odor Detection Chart,
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a variant of the US EPA Odor Detection Chart.
4
The inspectors’ testimony, backed by their reports, discloses many instances where odors specifically attributable to Olsonite’s painting process were assigned a numerical value of "2” or "2+” and, on fewer occasions, "3”. Although these odors abated at times, especially after February, 1975, when Olsonite returned to use of the Toluol-Xylol blend, the reports indicate that inspectors Gribbs, Krawiec and Zabick frequently noted in 1975 and 1976 detectable paint odors emitted by Olsonite.
2. The lower court admitted office records of the Division which indicate that the Division received 59 citizen complaints against Olsonite in 1973, 38 in 1974, 24 in 1975, and 13 as of August 31, 1976.
3. Thirteen citizens, living north, east and south of the Olsonite complex, testified at trial. These witnesses relayed to the court complaints they registered with the Division and with Olsonite concеrning odors, generally characterized as paint-like, very distinctive, unpleasant and offensive, emanating from the Olsonite complex. According to the largely unrebutted testimony of the citizens, the odors caused nausea, burning eyes, headaches, loss of sleep and a reduction in appetite; in addition, the fumes penetrated their homes and were particularly obnoxious during periods of warm weather.
In instances when inspectors and citizens had been asked whether they could distinguish between odors attributable to Olsonite and those of
4. Dr. Peter Warner, the Division’s laboratory supervisor and an expert on odors and odor measurement, testified regarding various field samplings and laboratory analyses of gases emitted from Olsonite’s stacks; these tests began in November, 1972, and continued sporadically up to March, 1976.
During his testimony, Dr. Warner explained the method utilized to retrieve a sample of Olsonite’s stack effluent
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and then described the manner in which the relative concentration of an odor is determined in the laboratory. This latter task employs a five-member odor panel consisting of odor-sensitive individuals capable of distinguishing between three odors at successively lower concentrations. Once selected, each odor panelist is subjected to varying concentrations of stack effluent diluted with clean air and a determination is made regarding the lowest concentration at which over 50 percent of the panel can detect any odor from
In analyzing the results of this testing, the Division has established certain recommended guidelines similar to those employed by "a number of agencies and states”; 6 the Division’s guidelines describe odor emission levels which, if not exceeded, are "acceptable” 7 to the Division: 150 оdor units per cubic foot or one million odor units per minute (i.e., odor units per cubic foot times cubic feet of exhaust gas per minute).
The November, 1972, stack tests conducted at Olsonite by the Division showed that of the two potential emission sources tested,
viz.,
the drying
Stack tests conducted in October, 1973, measuring emissions from seven sources (five paint spray booths, the flash-off chamber and drying oven) disclosed levels far exceeding the Division’s guidelines for both odor concentration and odor emission rate. 8 These results coincided with the change in solvents necessitated by the energy crisis.
Stack testing performed in August, 1974, found odor levels in excess of the Division’s guidelines in the three spray booths tested, while the flash-off chamber and drying oven emission levels fell below the guidelines. 9
No testing occurred in 1975.
In March, Í976, stack tests conducted at Olsonite’s request, measuring emissions from spray booth number two, revealed odor levels
(i.e.,
in odor units per cubic foot) below the Division’s
"1. Redistribution of the total paint sprayed per day to relieve the loading on the booth No. 2 stack and to more equally distribute the rate of spray to other booths which were formerly used to apply lighter coats to parts.
"2. Cleaning and improvement of the water curtain plumbing and pumping system.
"3. Installation of a baffle to reduce the water travel distance at the throat of the water curtain.” Trial Exhibit 12, p 16.
In his report on the March tests, Dr. Warner discounted the effectiveness of permanganate as an additive and noted an "apparent measured improvement” in the utility of the tested water curtain as an odor suppressant; however, he reserved judgment on the system as a whole:
"[I]t is necessary to determine any change in the odor output of the other adjacent booths and stacks, as odor sources, as a result of changes in the operation of booth No. 2, before any claim is made to an overall condition of odor abatement.” Trial Exhibit 12, p 18.
Moreover, Dr. Warner observed a deterioration in water-curtain efficiency from the first March test to the second attributable to plugged nozzles which thus "allowed an estimated 15 to 35% of the solvent mist to enter the booth No. 2 stack untreated”. Id. at 19. Nonetheless, he concluded:
Dr. Warner amplified the point in his testimony by stating that an improved water curtain "would certainly be an excellent approach to a solution” but the reliability of the curtain "is the only unknown factor. Our experience with reliability has been very poor”. The court then asked Dr. Warner to indicate other odor abatement techniques potentially available to Olsonite. With the qualification that he was not an engineer, Dr. Warner listed the following: fume incineration (afterburners); a scrubbing system combined with a packed tower containing fragments of absorptive material; and carbon adsorption.
Following Dr. Warner’s testimony, plaintiff rested. Olsonite then moved for a directed verdict but the court denied the motion.
The first defense witness, Mr. Gerald Eggers, Olsonite’s manager of industrial engineering, described his duties, the painting process at Olsonite, the various modifications undertaken to improve the water curtain, and efforts made to obtain a positive pollution-control system for the company. According to Mr. Eggers, each of these systems— (a) odor masking agents, (b) odor counteractants, (c) scrubbers and chemical absorption systems, (d) catalytic converters, (e) afterburners, (f) tall stacks, (g) recuperative combustion devices, (h) refrigeration and, (i) activated carbon adsorption — has drawbacks that make its use unacceptable for the company.
For example, he testified that masking agents, which merely camouflage the odor, are unacceptable to the Division; that odor counteractants tested
Three additional defense witnesses followed Mr. Eggers to the stand. Mr. Edmund Szajna, defendant’s director of manufacturing, explained maintenance procedures covering Olsonite’s painting operation. Mr. Arthur W. Sempliner, Olsonite’s first vice-president, described Olsonite’s products, gave financial and employment data on Olsonite,
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explained an odor sampling technique conducted by Olsonite’s employees in 1976, noted the possibility that expensive odor abatement methods might entail a shutdown of the entire plant and stated that on his way to work he occasionally smells a paint odor, indistinguishable from Olsonite’s, emanating from a nearby Chrysler plant. Mr. Sempliner also offered the view that no prudent or feasible alternative to the water curtain exists which could solve Olsonite’s problem of odorous
Following closing arguments, the lower court requested and received proposed findings of fact and conclusions of law from the parties. On December 15, 1976, the court issued an opinion finding, inter alia, that:
1) the "complaints [of the citizen witnesses] were justified”;
2) "the odors came from defendant’s plant”;
3) "[t]he inspection reports established the existence of a number two odor on repeated occasions throughout the period in question, and on some occasions a number three odor”;
4) "an acceptable level of odor strength is an emission of less than 150 odor units per cubic foot or a total of one million odor units per minute”;
5) "[t]he [October] 1973 tests conclusively established that defendant polluted the air contrary to the Act”;
6) the March, 1976 tests revealed "two samples out of four that exceeded acceptable levels and polluted the air”; and
7) "the use of water curtains, baffles and filters, no matter how well cleaned and maintained, is not sufficient to prevent air odor pollution.”
From the foregoing, the trial court concluded that plaintiff had "established its prima facie case”. See MCLA 691.1203(1); MSA 14.528(203X1). Next, concluding that defendant had failed to rebut plaintiff’s prima facie case, the court ruled:
The court then surveyed existing methods of pollution control available to defendant, along with their attendant costs, and cited Olsonite’s employment and revenue figures, noted supra, in concluding that any one "of the suggested methods is economically feasible and prudent”.
Thus the court found:
"There are a variety of odor control techniques available, some of which have been listed. Defendant has failed to establish that there is no feasible or prudent alternative to the continued pollution. In fact, except for some work with the water curtain system and some minor tests with counteractants, defendant has failed to try any method and has failed in its affirmative defense to show that there is no feasible and prudent alternative.
"It is also clear that the conduct of defendant is not consistent with the promotion of the public health, safety and welfare in light of the state’s paramount concern for the protection of its natural resources from pollution. In fact, defendant throughout, although appearing to cooperate and treat complaints with sympathy and seriousness, has failed to take any effective means to control or attempt to control the air pollution it has created. The defendant has been well aware of the pollution problem for many years, and although many solutions were potentially available, defendant failed to employ any of them except to attempt to clean up the water curtains.
Lastly, the trial court ended its opinion by making conclusions of law and ordering injunctive relief:
"IV CONCLUSIONS OF LAW
"The Court having found that plaintiff has established its prima facie case affirmatively, that defendant has failed to rebut plaintiff’s prima facie case, and that the defendant has failed to establish as an affirmative defense that there is no feasible and prudent alternative to his conduct and that the conduct is consistent with the promotion of the public health, safety and welfare, it must follow as a matter of law that plaintiff is entitled to relief.
"Defendant argues, however, that even in the fаce of the statute, the Court must consider the character, quality and nature of the locality where defendant operates.
"The arguments of defendant state many propositions of general nuisance law, all of which were enunciated prior to the enactment of the Environmental Protection Act of 1970. By this statute, the Legislature defined the standards to be used and the method to be determined by the Court in deciding cases where there is a claim of environmental pollution. The standards set out in the statute are clear and unequivocable, and to the extent that the prior law relating to nuisance varies from the statute, the statute must control. Plaintiff has established its prima facie case, which has not been rebutted, and defendant has failed in its affirmative defense.
"But even if general nuisance law were to be applied, plaintiff still would have to prevail. It has established by both objective and subjective standards, conduct
"V RELIEF ORDERED
"It is obvious that an order must be entered enjoining the defendant from continuing to pollute the air. At thе same time defendant must be given a reasonable time to reach full complaince [sic].
"To accomplish this, it is ordered that defendant forthwith at its own expense conduct pilot testing of prototype odor control systems to compile operating and odor control data. Such tests shall be monitored by representatives of plaintiff and be completed by March 1, 1977. The results shall be made available to the Court at that time.
"On or before April 1, 1977, defendant shall select a specific supplemental odor control system and timetable for its installation and completion. This system shall achieve odor emission limits of no more than 150 odor units per cubic foot and no more than one million odor units per minute under odor evaluation tests to be approved by plaintiff. Defendant shall submit to the Court its timetable for installation and completion, which shall be approved by the Court after hearing.
"If after installation of the equipment on or before a date approved by the Court, defendant at any time emits more than 150 odor units per cubic foot or one million odor units per minute under odor evaluation tests run in accordance with procedure outlined by plaintiff, plaintiff may move this Court for supplementаl injunctive relief.
"The Court will retain jurisdiction of the case. Costs to plaintiff.” Wayne County, supra at 11-14.
On defendant’s motion, a panel of this Court stayed enforcement of the injunction by an order dated February 7, 1977.
In its appellate brief, defendant seeks review of four issues. The first is whether the trial court correctly ruled that the Environmental Protection
Two Michigan Supreme Court cases offer insight on the issue. In
Ray v Mason County Drain Commissioner,
"The Legislature in establishing environmental rights set the parameters for the standard of environmental quality but did not attempt to set forth an elaborate scheme of detailed provisions designed to cover every conceivable type of environmental pollution or impairment. Rather
the Legislature spoke as precisely as the subject matter permits and in its wisdom left to the courts the important task of giving substance to the standard by developing a common law of environmental quality. The act allows the courts to fashion standards in the context of actual problems as they arise in individual cases and to take into cоnsideration changes in technology which the Legislature at the time of the act’s passage could not hope to foresee.”
In a note accompanying the foregoing passage, the Court observed:
"While the language of the statute paints the standard for environmental quality with a rather broad stroke of the brush, the language used is neither illusive nor vague. 'Pollution’, 'impairment’ and 'destruc
Similarly, see
State Highway Commission v Vanderkloot,
"It is most important to note that EPA does not, as both parties imply, merely provide a separate procedural route for protection of environmental quality, it also is a source of supplementary substantive environmental law. See Sax and Conner, Michigan’s Environmental Protection Act of 1970: A Progress Report, 70 Mich L Rev 1004, 1054-1064 (1972).” (Emphasis in Vanderkloot.)
Defendant gleans from the cited cases a requirement that the EPA be interpreted in harmony with existing Michigan law. In further support of its argument, defendant cites
Crandall v Biergans,
Clinton County Circuit Court No. 844,
In Crandall, a two-count odor-pollution suit alleging nuisance and an EPA violation, the court refused to enjoin defendant’s operation of a hog farm or to order relocation of defendant’s barn,
"so long as defendants continue their operation in a careful and husbandlike manner and use such odor
Turning to the EPA, the court in
Crandall
recognized that no standards regulating porcine odors had yet been established, see MCLA 691.1202(2); MSA 14.528(202)(2),
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and, disclaiming an ability to set standards on its own, interpreted § 3 of the act as "in effect saying that some balance has to be maintained between absolutely no pollution and the carrying on of activities necessary to human existence”.
In commenting on the Crandall decision, Professors Sax and Conner remarked that the court apparently adopted common law standards on odor control,
"where none previously existed in legislation or administrative rules; and * * * the judge enforced those
We need not disagree with either Crandall or the Sax-Conner analysis of that case in order to reject defendant’s contention that traditional principles of nuisance law must always control in an EPA action. Crandall, unlike the present case, resorted to nuisance law because no definitive standards had been established. Here, however, the lower court, presumably on the authority of MCLA 691.1202(2); MSA 14.528(202)(2), adopted odor emission standards set by the Division.
In our view, MCLA 691.1202(2); MSA 14.528(202)(2) serves as a legislative recognition that unforeseen "changes in technology”, Ray, supra at 307, may permit the judicial adoption of standards more precise, and perhaps more exacting, than those previously required under the generalized language of the common law of nuisance. Surely, it is not unreasonable for the Legislature to have concluded that plaintiffs and defendants alike would prefer explicit but attainable standards of conduct in place of the uncertainties attending a balancing-of-the-equities analysis under the law of nuisance.
Moreover, to hold, as defendant urges, that the standards of conduct required by the EPA are coterminous with those imposed by the common law of nuisance would eviscerate the substantive facets of the act,
Ray, supra
at 306, and condemn as mere surplusage all but its procedural remedies. Given our state’s
"paramount
concern for the protection of its natural resources from pollution,
Defendant also assails as erroneous and unsupported by the evidence various factual findings of the trial court. Although an appellate court reviews chancery suits
de novo,
we apply the "clearly erroneous” standard of GCR 1963, 517.1. See 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 596. Compare
Causley v LaFreniere,
Prima Facie Case of Pollution
Initially it should be noted that probable as well
Defendant cites four trial court findings as clearly erroneous:
"1. The Trial Court found that there have been innumerable complaints by citizens of the area as to odors of an unpleasant nature coming from the Olsonite Plant.” (Appellant’s Brief at 38.)
"2. The Trial Court found that the [Division’s] inspection reports established the existence of a No. 2 odor on repeated occasions, and on some occasions a No. 3 odor and that repeated violation notices have been served on defendants.” (Id. at 39.)
"3. The Trial Court found the 1976 [Division] laboratory tests based upon stack samples exceeded acceptable levels and polluted the air.” (Id. at 41.)
"4. The Trial Court found that the effectiveness of the water curtain to control odorous solvent emissions is very doubtful and that it is clear that the use of water curtains, baffles and filters, no matter how well cleaned and maintained, is not sufficient to prevent odor pollution.” (Id. at 42.)
Regarding the first finding, defendant asserts that the record demonstrated "serious problems of [odor] attribution and identification”; defendant notes 1) the similarity of Olsonite’s alleged odor to that of other industrial concerns, 2) the failure to detect any number 4 odors and only a single number 3 odor in the two years prior to trial, 3) the absence of violation notices since April, 1975, and 4) the absence of scientific or medical evidence showing the harmfulness of Olsonite’s odors.
Nor is the second finding clearly erroneous. Although the judge characterized a number 2 odor as "distinctly unpleasant” whereas the Division’s
Turning to the third finding, i.e., stack samples exceeding acceptable levels and polluting the air, again we do not discern clear error in the judge’s finding that stack samples tested by Dr. Warner had exceeded and continued to еxceed odor emission levels denominated "acceptable” by the Division. We are disturbed, however, by what appears to be a premature adoption of standards governing odor emissions, viz., 150 odor units per cubic foot or one million odor units per minute.
Under MCLA 691.1202(2)(a); MSA 14.528(202)(2)(a), a court may adopt an agency-approved standard after having assessed "the validity, applicability and reasonableness of the standard”. As noted,
supra,
Dr. Warner’s testimony relative to the Division’s standards did not clearly disclose whether other states had adopted the identical standards employed by the agency; rather, he indicated, without adequate citation, that "quite a number of agencies and states have adopted regulations which specify the emission limits of sources to a given number of odor units per cubic foot * * * [and that] [o]ther states have
This holding does not, however, suggest either that the Division’s standards are indeed "deficient”, MCLA 691.1202(2)(b); MSA 14.528(202)(2)(b), or that plaintiff has failed to establish a prima facie case of pollution. The former must await further inquiry by the trial court and the latter is to be decided, infra, by this panel.
Defendant’s fourth allegation of a clearly erroneous factual finding involves the effectiveness of the water curtain as a pollution-control device. Despite the improvements in water filtration and paint spray application, the maintenance procedures employed, and the reports by Dr. Warner suggesting some improvement in water-curtain efficiency, we do not believe the lower court clearly erred in finding that the water curtains are not sufficient to prevent odor pollution. Adequate evidence supported the court’s finding: 1) many of the solvents employed are
not
water soluble; 2) the second test in March, 1976, conducted at Olsonite’s request under optimal maintenance procedures, revealed a detеrioration of the water curtain from 15 to 35 percent since the previous test three days
Accordingly, we hold that plaintiff satisfactorily established by preponderating evidence a prima facie case of actual and probable environmental degradation.
Rebuttal By Defendant of Plaintiff’s Prima Facie Case
Defendant challenges two trial court findings: 1) that the trial court improperly discounted the odor tests conducted by Olsonite in 1976; and 2) that "defendant has failed to rebut the existence of community odor problems in the past or present, or demonstrate that such problems will not continue into the future”. (Opinion, p 8.)
We agree with the trial court’s assessment of the weight he attached to Olsonite’s employee-conducted odor tests. The reports were prepared after institution of the present suit by employees untrained in odor detection. These self serving tests in no way measure up to the kind of "empirical studies” which are "necessary when the impact upon the environment resulting from defendant’s conduct cannot bе ascertained with any degree of reasonable certainty”.
Ray v Mason County Drain Commissioner,
To counter the court’s second finding defendant argues principally that the judge failed to note that the number of citizen complaints appeared to wane in direct relation to Olsonite’s reinstitution
As the present suit illustrates, then, in the absence of properly approved standards, MCLA 691.1202(2); MSA 14.528(202)(2), a case of actual and probable environmental degradation is nonetheless established where 1) numerous citizens complain over a lengthy period that foul odors, recurrently emitted from defendant’s plant, penetrate their homes and cause such adverse physical reactions as nausea, burning eyes, headaches, loss of sleep and reduction of appetite; 2) inspectors of the local health agency verify the citizen complaints; 3) defendant fаils to produce the necessary empirical evidence in rebuttal; and 4) the trial court gives credence to the plaintiffs evidence while disbelieving that of defendant. In that event, unless defendant asserts and wins success on the statutory affirmative defense, the trial court, in the exercise of discretion, may order injunctive relief.
Feasible, Prudent Alternatives and Conduct Consistent With the Promotion of Public Health, Safety and Welfare
In relevant part, § 3(1) of the EPA states:
"The defendant may also show, by way of an affirmative defense, that there is no feasible and prudent alternative to defendant’s conduct and that such con
We interpret the language italicized above to say that the normally applicable rules on burden of proof and weight of the evidence, requiring plaintiff to carry the burden of proving its case by preponderating evidence, Ray, supra at 309-311, shall not apply where an affirmative defense is asserted. See Haynes, Michigan’s Environmental Protection Act in its Sixth Year: Substantive Environmental Law from Citizen Suits, 53 Journal of Urban Law 589, 599 (1976) ("[0]nce a plaintiff in a MEPA lawsuit demonstrates that a defendant’s actions harm, or are likely to harm, the environment, the defendant carries a heavy burden of environmental justiffcation. This burden requires a defendant to prove that no feasible and prudent alternatives to his actions exist and that he is acting in the public interest.” [Emphasis added; footnote omitted.])
If "the private citizen [is to have] a sizable share of the initiative for environmental law enforcement”,
Eyde v Michigan,
In the present case, defendant alleges the trial court mistakenly concluded that defendant had failed to establish its affirmative defense. On reflection, we side with the trial judge.
The testimony of Dr. Warner described three examples of "known technology” which offer "solutions to odor abatement”. Moreover, defense witness Eggers acknowledged that certain companies offered to reduce Olsonite’s odorous emissions by 95 to 97 percent; indeed one company, contrary to Eggers’ testimony, offered Olsonite a thermal oxidation system backed by "an odor free guarantee [that] can be made * * * without any extensive tests”.
But defendant wants more. It asks the Division to recommend a system guaranteed to eliminate all citizen complaints. This position expects more than reality can offer and it forgets that one sense of the word feasible comprehends an approach which "is likely to work out or be put into effect successfully”. 21
With respect to the economic feasibility of alternative pollution controls, we adopt the test employed in an analogous setting under the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (OSHA). See Industrial Union Department, AFL-CIO v Hodgson, 162 US App DC 331; 499 F2d 467 (1974).
In Hodgson, the Court of Appeals for the District of Columbia Circuit, interpreting the term "feasible” as used in § 655(b)(5) 22 of OSHA, observed:
"There can be no question that OSHA represents a decision to require safeguards for the health of em
"[Practical considerations can temper protective requirements. Congress does not appear to have intended to protect employees by putting their employers out of business — either by requiring protective devices unavailable under existing technology or by making financial viability generally impossible.
"This qualification is not intended to provide a route by which recalcitrant employers or industries may avoid the reforms contemplated by the Act. Standards may be economically feasible even though, from the standpoint of employers, they are ñnancially burdensome and affect proñt margins adversely. Nor does the concept of economic feasibility necessarily guarantee the continued existence of individual employers. It would appear to be consistent with the purposes of the Act to envisage the economic demise of an employer who has lagged behind the rest of the industry in protecting the health and safety of employees and is consequently ñnancially unable to comply with new standards as quickly as other employers.” 499 F2d at 477-478. (Footnotes omitted. Emphasis added.)
Accord:
United States v Reserve Mining Company,
Concerning the requirement that the alternative to a polluter’s conduct be "prudent”, we approve of the interpretation advanced in
Citizens to Preserve Overton Park, Inc v Volpe,
"[N]o such wide-ranging endeavor was intended. It is obvious that in most cases considerations of cost, directness of route, and community disruption will indicate that parkland should be used for highway construction whenever possible.
"Congress clearly did not intend that cost and disruption of the community were to be ignored by the Secretary. But the very existence of the statutes indicates that protection of parkland was to be given
paramount importance.
The few green havens that are public parks were not to be lost unless there were
truly unusual factors
present in a partiсular case or the cost of community disruption resulting from alternative routes reached
extraordinary magnitudes.
If the statutes are to have any meaning, the Secretary cannot approve the destruction of parkland unless he finds that alternative routes present unique problems.”
Similarly, see
County of Freeborn v Bryson,
— Minn —;
This interpretation of "prudent alternative” is bolstered by recognition that the Legislature rejected an amendment which would have inserted the phrase, "considering all relevant surrounding circumstances and factors” before the "feasible and prudent” language of § 3(1). See, Note,
Michi
Applying the cited cases to the facts at hand, we conclude that the defendant has failed to show the technical, economic infeasibility and the imprudence of alternatives to defendant’s conduct. Although the adoption of additional pollution controls may financially burden Olsonite and adversely affect its profit margin, Hodgson, supra, we believe, in light of the revenue data noted, supra, that the company is fully able to finance the added cost of restraining odorous emissions. The costs involved do not approach "extraordinary magnitude” and no "truly unusual factors”, Overton Park, supra, refute the demonstrated prudence of alternative systems. Wе believe that a reasonable, cost-effective solution to Olsonite’s odor problem can be achieved if an earnest examination of other abatement methods is made. Defendant’s conduct, then, will no longer be inconsistent with the promotion of public health, safety and welfare in light of Michigan’s paramount concern for the natural resources of the state.
In its final claim of error, Olsonite decries as too drastic the injunctive relief ordered by the trial court and asserts that the judge erred in failing to recognize and exercise his discretion before issuing an injunction.
We disagree.
The trial court’s decree has been narrowly drafted. It awards relief to plaintiff while permitting defendant a reasonable time to comply and affording it an opportunity for further hearing. Although the court expressed the need for injunction in mandatory terms, we are certain the
Accordingly, the trial court is directed to conduct, as soon as practicable, a new hearing consistent with the requirements of MCLA 691.1202(2); MSA 14.528(202)(2), as outlined previously. In its discretion, the court may then 1) specify an appropriate standard (which may be the same, more strict or possibly, but improbаbly, less strict than that previously approved) governing odor emissions, 2) incorporate the chosen standard into its decree, and 3) set new compliance dates for the selection, installation and completion of a specific supplemental odor control system ultimately selected by defendant.
In the meantime, defendant is ordered to begin forthwith at its own expense the comprehensive examination of alternative odor restraints that should have occurred months and years ago. This effort shall be monitored by knowledgeable representatives of plaintiff and both parties shall prepare reports for submission to the trial court on a date set by that court. This date may be the same or different than the hearing date above. GCR 1963, 820.1(7).
Nothing in the foregoing order shall prevent defendant from seeking to further improve the efficiency of its water curtain or to investigate paint spray applicators which reduce the amount of paint or solvents utilized in its painting process. 23
Affirmed in part and remanded for proceedings consistent with this opinion.
No costs, a public question being involved.
Notes
The Regulation, in pertinent part, provides:
"Section 6.5 General Prohibition:
"a. It shall be unlawful for any person to permit or cause the emission of such quantities of air contaminants from whatever source in such place or manner as to be detrimental to any person or to the public or to endanger the health, comfort, or safety of any person or the public, or in such manner as to cause injury or damage to property or business.”
"Section 1.3 Definition of Terms. * * *
"Air Contaminant: Any gaseous, liquid, or solid matter, which when present in the outdoor atmosphere contributes to a condition of air pollution, including, but not limited to dust, soot, mist, smoke, fumes, flyash, cinders, gases, vapors, aerosols, and odors. (Emphasis added.)
"Air Pollution: The presence in the outdoor atmosphere of one or more air contaminants or combinations thereof in such quantities and of such duration and characteristics which are or may tend to be injurious to human, plant, or animal life, or property, or which interfere with the comfortable enjoyment of life or property or the conduct of business.”
According to defense witness Edmund Szajna, Olsonite’s director of manufacturing, maintenance of the painting operation at the time of trial included:
a) daily scraping of excess paint from the spray booths; twice daily skimming of each booth’s water tank; and thrice daily replacement of the water filters on booths 2 and 3.
b) dismantling and cleaning of two spray booths and changing of manifolds on these booths each weekend.
c) weekly inspection, and cleaning (where necessary) of roof exhaust stacks.
d) unplugging of nozzles at the end of the shift, whenever the paint foreman observed water-curtain deterioration. On approximately six occasions in the three years prior to trial, the paint line had been shut down to permit such emergency repairs. Thus, if unobserved deterioration of the water curtains occurred, untreated exhaust fumes were released into the atmosphere.
“Schedule of Odor Intensity
"0 A concentration of an odorant which produces no sensation.
"1 Concentration which is just barely detectable.
"2 A distinct and definite odor whose characteristic is clearly detectable.
"3 An odor strong enough to cause a person to attempt to avoid it completely.
"4 An odor so strong as to be overpowering and intolerable for any length of time.” Plaintiffs Exhibit #2, p 36-E.
"Concentration
"0 — A concentration of an odorant which produces no sensation.
"1 — Concentration which is just detectable (the threshold dilution).
"2 — A distinct and definite odor whose unpleasant characteristics are revealed or foreshadowed (the recognition threshold).
"4 — An odor so strong as to be overpowering and intolerable for any length of time.” Defendant’s Exhibit #3.
The method is similarly, but more concisely, described in a November, 1975 report co-authored by Dr. Warner:
"Odor Sampling Procedure
"Samples for * * * evaluation are collected by withdrawing source effluent through a twelve inch long glass or stainless steel probe into a 300 ml gas pipet by means of a 75 ml rubber aspirating bulb attached to the exit end of the pipet. Connections are made with a one to one and one-half inch piece of tygon tubing. Sixty squeezes are considered adequate to overcome such effects as wall absorption. Glass gas sampling bottles have stopcocks at each end to insure the integrity of each collection.” Plaintiffs Exhibit #12, p 6.
The only trial testimony on the point is this:
"Q. [Mr. Campbell, Assistant Prosecuting Attorney] Dr. Warner, you have used a figure of 150 odor units per cubic feet [sic]. Are there any other agencies in the country that use these same guidelines?
"A. Yes, quite a number of agencies and states have adopted regulations which specify the emission limits of sources to a given number of odor units per cubic foot. For example, the State of Minnesota, Connecticut, Illinois—
"MR. FINEMAN: [Attorney For Defendant] (Interposing) I am going to object, your Honor. What has been done in other states at this point is irrelevant until it is shown that the State of Michigan or this County or anybody else that we are concerned with has done so. There is nothing in this record and in fact there is nothing in existence that indicates this State or this County or agency has adopted anything that has the binding force of law.
"THE COURT: Well, I am interested in what they are doing. I want to learn something about it. Go ahead.
"THE WITNESS: Other states have adopted various responses to odor problems.” Trial Transcript November 30, 1976, pp 50-51.
"The term 'acceptable’ is used to describe a condition in which no pattern of citizen odor complaints has developed to relate any odor source or odor relatable process to an odor nuisance in the community as confirmed by the appropriate district inspector.” Plaintiffs Exhibit #12, p 7.
TABLE I
U-100 PAINT LINE OCTOBER 1, 1973 ODOR SAMPLING SUMMARY
Odor Units/ft3 at 50% of Panel
Sampling Reporting Positive Emission Rate Sampling Designation Olfactory Response CFM 1 Odor Units/Minute Temp. °F
Spray Booth
No. 2 940 13,900 13,100,000 70
Spray Booth
No. 3 440 13,900 6,120,000 72
Spray Booth
No. 4 7000 13,900 97,300,000 72
Flash Off
Chamber 390 3,500 1,370,000 100
Drying Oven 2000 2,500 5,000,000 190
VINYL PAINT LINE OCTOBER 2, 1973 ODOR SAMPLING SUMMARY
Odor Units/ft3 at 50% of Panel
Sampling Reporting Positive Emission Rate Sampling Designation Olfactory Response CFM 1 Odor Units/Minute Temp. °F
Spray Booth No. 5
(Top Coat) 7 10,000 70,000 70
Spray Booth No. 7
(Chain-On-Edge) 1850 2,500 4,630,000 72
Flow rate from Olsonite Company
TABLE I
Sampling Site Odor Level ou/ft3
Booth #2 2800
Booth #3 370
Booth #4 171
Flash-Off Chamber 115
Oven 39
Plaintiffs Exhibit # 12, p 13.
"Results
Odor Level Emission Rate
Sample Date and Description * • ou/ft3 (ou/min)
Sr S2 Si 3-9-76 3-9-76 3-12-76 Water curtain only Water curtain only Water curtain with 43 21 103 488.000 238.000 1,165,000
1-1/2 percent aqueous potassium permanganate
3-12-76 Water curtain with 97 1,098,000
1-1/2 percent aqueous
potassium permanganate
These budgetary figures, which may vary by 10 percent in either direction, are:
(a) Afterburner — capital investment: $816,000-$1,200,000; annual operating cost: $160,000 to $580,000, varying inversely with initial capital cost.
(b) Scrubber with chemical packed tower — capital investment: $814,000; annual operating cost: not ascertained.
(c) Catalytic converter — capital investment $514,000 to $939,000; annual operating cost: $150,000-$300,000, varying inversely with initial capital cost.
The reason the annual operating costs of afterburners or catalytic converters vary inversely with the initial capital cost is that the larger capital investment includes heat exchangers, devices which will recoup a portion of the energy spent on odor incineration for use in heating factories or firing ovens. Thus, as letters to Olsonite from manufacturers producing such equipment assert, heat exchangers may well provide "fuel economies” or "a substantial total energy cost reduction."(Emphasis in original.)
We also note that the figures quoted above presume that the same type of equipment will be used on Olsonite’s ten odor sources, irrespective of the amount of emissions emanating from any single source, and further, that structural changes in Olsonite’s plant will not be necessary.
Olsonite employs between 600 and 700 salaried and hourly employees at its Hamtramck facilities with an average weekly payroll of about $150,000. These facilities represent a current investment in plant and equipment of approximately $20,000,000.
The total annual sales generated by Olsonite from its Hamtramck operations roughly exceed $34,000,000. Of this amount, approximately $11,000,000 is attributable to the painted parts operation. The annual gross profit on only the painted parts operation is approximately $1,250,000.
The record does not disclose financial data on Olsonite’s operations nationally, the annual gross profit of Olsonite’s Hamtramck facility or the number of employees assigned to the painted parts operation.
In addition, it should be noted that Olsonite bids competitively with other suppliers for the opportunity to provide Detroit automakers with painted parts. At present, Olsonite is the sole, outside supplier of such parts.
Const 1963, art 4, § 52 provides:
"Sec. 52. The conservation and development of the natural resources of the state are hereby declared to be of paramount public concern in the interest of the health, safety and general welfare of the people. The legislature shall provide for the protection of the air, water and other natural resources of the state from pollution, impairment and destruction.”
"(2) In granting relief provided by subsection (1) where there is involved a standard for pollution or for an anti-pollution device or procedure, fixed by rule or otherwise, by an instrumentality or agency of the state or a political subdivision thereof, the court may:
"(a) Determine the validity, applicability and reasonableness of the standard.
"(b) When a court finds a standard to be deficient, direct the adoption of a standard approved and specified by the court.” MCLA 691.1202(2); MSA 14.528(202X2).
This holding obviates discussion of defendant’s second issue, namely, whether Olsonite’s operation constitutes a nuisance. We would note, however, a compelling factor militating against defendant’s victory on this issue: Defendant’s painting operation began
after
the establishment of adjacent residences. Thus, the citizens have not "come to the nuisance”.
See, e.g., Robinson v Baugh,
The Supreme Court would be well advised to reconcile the apparent conflict between the "clearly erroneous” test of GCR 1963, 517.1 and the de novo standard applied in equity actions. In a given case, the particular standard of review may well determine the victor on appeal.
Similarly, as reflected by the following citizen testimony, typical of at least two others, the diminution of citizen complaints may well have been attributed to futility rather than a reduction in odor:
"Q. [Attorney For The Defendant] [Y]ou have only made one complaint for all of 1976?
"A. [Witness] Eight, only one.
"Q. And that was on June 11th, 1976?
"A. I think so.
"Q. You haven’t had occasion to complain since then?
"A. The smell is there, but for personal reasons I would not state why I did not call.
"Q. You would not state why you didn’t call?
"A. Yes, because of frustration. The whole neighborhood is frustrated with this thing for being dragged out for such a length of time, so I did not call on every occasion.
"Q. Didn’t stop you in the past, did it?
"A. Well, from the beginning I was very much interested in the cause. After I retired, I thought I was going to havе some peace and quiet, and I face this now. And trying to get something done about it and having it just drag on and on * * * ” Tr. November 29, 1976, p 31.
This factor suggests that the Division’s guidelines may be too lax.
"[T]he 'exception’ for the 'affirmative defense’ is somewhat ambiguous. If in fact section 3(1) makes an exception from the common law rule that the burden of establishing such a defense is on its proponent, it fails to state what rule shall govern. Accordingly, an assumption must be made that no 'exception’ is in fact created.” Thibodeau, Michigan’s Environmental Protection Act of 1970: Panacea or Pandora’s Box, 48 Journal of Urban Law 579, 584, fn 16 (1971).
Webster’s Third International Dictionary, p 1771 (1965), distinguishing "feasible” from "possible” and "practicable”. (Emphasis added.) See also, id., at 831, "feasible”, definition 3.
"The Secretary * * * shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suifer material impairment of health or functional capacity * * * .” (Emphasis added.)
We suspect that improvements in water-curtain efficiency and paint-spray application may well reduce the total volume of odor to
Moreover, we anticipate (without so holding given the inexact financial data, fn 12, supra) that a good faith effort will uncover other cost savings which should obviate the need for employee dismissals.