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Wayne County Dep't of Health v. Olsonite Corp.

Citation: 8 ELR 20097
No. No. 77-114, 263 N.W.2d 778/79 Mich. App. 668, (Mich. Ct. App., 11/22/1977)

In a suit brought under the Michigan Environmental Protection Act, the state court of appeals affirms a lower court's injunctive decree requiring defendant to adopt a supplemental odor control system capable of achieving within a specified period emission limits set by the court. The trial court correctly ruled that the Act supplants prior doctrines of common law nuisance to the extent those doctrines conflict with the Act. To hold that the standards of conduct required by the Act are coextensive with those imposed by the common law of nuisance would eviscerate the substantive aspects of the statute. Nor was the trial court's determination that plaintiff had made a prima facie showing of pollution under the Act clearly erroneous. Plaintiff satisfactorily established by a preponderance of the evidence that defendant's emissions will actually or probably result in environmental degradation. The lower court also properly concluded that defendant failed to rebut plaintiff's prima facie case with any credible empirical evidence. In addition, the trial court did not err in holding that defendant was not entitled to invoke the affirmative defense provided in the Act. Defendant failed to show by a preponderance of the evidence that there was no feasible and prudent alternative to its conduct and that its action was consistent with the promotion of the public health, safety, and welfare.

Counsel for Plaintiff-Appellee
Donald Campbell, Joseph Klein
Wayne County Prosecutor's Office
1311 E. Jefferson Ave., Detroit MI 48207
(313) 224-5777

Counsel for Defendant-Appellant
Robert A. Fineman
Honigman, Miller, Schwartz & Cohn
2290 1st National Bank Bldg., Detroit MI 48226
(313) 962-6700