|
12 ELR 20515 | Environmental Law Reporter | copyright © 1982 | All rights reserved Kelley v. John A. Biewer Co.No. D 803 00 318 CE (Mich. Cir. Ct. November 25, 1981)The court levies $85,500 in civil penalties against the owner of a lumber treatment plant for violating the Michigan Environmental Protection Act (PEA), the Water Resources Commission Act (WRCA), and the common law of nuisance. Between 1970 and 1979, defendant spilled and pumped chemicals, including chromium nd arsenic, onto the ground at the plant site, resulting in pollution of the groundwater under and around the site. Initially, the court rules that plaintiffs were not required to exhaust their administrative remedies under the EPA and the WRCA and that plaintiffs have pleaded a cause of action in nuisance. Next, the court finds that the groundwater of the State of Michigan is a natural resource and rules that defendant's activities violated the EPA, the WRCA, and the common law of nuisance. The court proceeds to impose civil penalties against defendant and orders defendant to remove the soil beneath the site's unpaved areas, purge the plume of pollution, and pay for extension of the village water supply. Counsel for Plaintiffs Counsel for Defendant BORSOS, J.: The plaintiffs, officers of the State of Michigan, bring this case on three counts; under the Environmental Protection Act of this state, MSA 14.528(201); MCLA 691.1201 et seq., hereinafter called EPA, under the Water Resources Commission Act of this state, MSA 3.521; MCLA 323.1 et seq., hereinafter called WRCA, and under common law nuisance. Administrative Remedies Under EPA and WRCA Defendant claims that the plaintiffs have not exhausted their administrative remedies. The EPA is so general that it seems to me that it is up to the trial courts to develop a common law, and the Supreme Court of Michigan has said so in at least one case. I believe the count under EPA could justify the decision that I'm going to give. Under § 4 of the EPA provision is made for temporary and permanent relief. Furthermore, said section also permits the court to remit for administrative proceedings and yet retain jurisdiction to grant temporary equitable relief and to review the adequacy of the temporary relief given while awaiting the completion of the administrative proceedings. The Water Resources Commission Act provides many different remedies, including criminal proceedings. It sets forth administrative remedies, but it seeks to cover a wide variety of things, such as a license for a discharge, which I believe certainly ought to be administrative. I don't know how you could get a license for a proper discharge under the act by going to a court unless you were bringing a mandamus action when the proper official turned it down without cause. So certainly you have to go through administrative remedies for the Water Resources Act for many purposes, and in some cases I would expect that administrative remedies ought to be sought before seeking court remedies even in a case of suspected pollution. But in this case it seems that there was an urgency. It appeared at the time the suit was started that perhaps the village water supply for Schoolcraft was either in jeopardy or close to it. Already it was known that individual residential wells near the plant site and the well of the plant itself were in trouble. One of the employees of the defendant company had gotten sick. A test was made, and it was found that there was substantial pollution with chromium in the plant water. The court finds and reaffirms its previous decision that it was not necessary under the facts of this case to pursue or exhaust administrative remedies under EPA or WRCA and that the plaintiffs could properly come directly to circuit court, as they did here. The court finds that neither the Statute of Limitations nor laches should impair to any extent the remedies sought by the plaintiffs, except to the extent that the court takes into consideration any delay or lack of diligence on the part of the plaintiffs in determining the amount of civil damages to impose. The court finds that the common law nuisance applies. The [12 ELR 20516] court finds that there was a serious polluting of the groundwater off the premises of the defendant company which brings it within the category of common law nuisance and a cause of action under nuisance is properly plead. Findings of Fact and Conclusions of Law There are three strings, then, to the plaintiffs' bow, but there should, of course, not be triple recovery. The court finds that the groundwater in the State of Michigan is a natural resource. The case law is not clear on that, but I believe that it's been proceeding in that direction and that we are at the point now when we consider the legislation, when we consider the problems that we face, where the underground water is a natural resource; and to this extent we have passed the point where a land owner can do anything he wants to below the land that he owns. The earlier cases holding to the contrary I believe are modified or should be modified to that extent. We've made great scientific advances in being able to find out what water does below the surface of the ground, but it's still not an exact science. We're still not much beyond the blind men who are trying to describe an elephant by feeling it with their hands, but we're certainly a lot further down the road towards being able to describe it accurately than we were in 1917. We know more how it acts. We have computers now to predict what might be happening and what will happen in the future after we gather facts. And we have equipment, drilling equipment, test equipment and other types of equipment that makes it much easier to draw points of information to determine whether the pollution is, the size of the pollution, the form or shape that it takes and the direction and speed of its movement, if any. This court finds that the plaintiffs have proven a prima facie case, under all three counts, that defendant has failed to rebut plaintiffs' case, that there are feasible and prudent alternatives to defendant's conduct and that defendant's conduct has not been consistent with the promotion of the public health, safety and welfare. This court finds that the defendant, over the past ten years of its chemical treatment of lumber southeast of the Village of Schoolcraft in this county, has permitted the chemicals to drip from the treated lumber onto the ground, has spilled these chemicals onto the ground and has pumped these chemicals onto the ground and has channelled surface water carrying these chemicals into the ditch along the public road to the east and into the ditch on railroad property to the south of defendant's property, that said chemicals have soaked down into the ground and seriously polluted the groundwater of an almost unlimited equifer not restricted by clay, rock or other barriers in any direction. The court finds that the area of pollution is not confined to groundwater under the defendant's property but has and continues to travel at a rate of 225 feet per year in a southeasterly direction, presently extending as far as 3,000 feet off defendant's property to a depth of 60 feet and about 600 feet wide. This court finds that the pollution does not and is not likely in the future to endanger the Schoolcraft municipal water wells. The court imposes civil penalties against the defendant of increasing size, orders the defendant to remove soil and purge the plume of pollution and pay for extension of the village water supply as set forth below. The court adopts by reference the findings of fact in the plaintiffs' proposed findings of fact with the following exceptions: Twenty-eight is omitted entirely. Thirty-five is amended to add the rate of travel. To thirty-five at the end of the second line following the word groundwater, the court will add "to the southeast at an annual rate of about 225 feet." Thirty-eight. The court finds that the state is entitled to costs, but the court finds that the state has not fully proven its costs, at least to the extent that it requests. The court will incorporate here plaintiffs' exhibit 81 and allow or deny requested costs as follows: The first page, that is, the second page following the cover page, the first page of attachments to the cover page signed by Rich Powers, is denied. The second page will have deleted from it equipment in the sum of $1,118.08, and the rest of that page will be allowed as costs. The third page, signed by Elmore Eltzroth, is denied for failure to sufficiently describe the costs desired. The fourth page, also by Elmore Eltzroth, totalling $531.38 is denied. The fifth and sixth pages constituting one bill in the sum of $1,835.62 the court finds is sufficiently documented and is allowed. The next page from Roger Przybysz totalling $1,082.65 is denied as not being sufficiently documented. The next page from William Iversen in the sum of $8,587.04 is allowed as costs. The next page, William Busdy, totalling $300.33 is allowed as sufficient documentation. The next one from William Busby in the sum of $124.72 is allowed. And the last page from Cheryl Farhat totalling $4,719.47 is allowed. With those amendments, the findings of fact proposed by the plaintiffs are adopted by the court. The court will adopt the conclusions of law proposed by the plaintiff. The court believes that the civil penalties are proper, and the court will assess civil penalties as follows: In the civil penalties I've taken into consideration a great many things shown by the testimony. One thing is not clearly shown, but of which the court takes judicial knowledge, and that is that we have had an increasing awareness in the last ten or twelve years, during the life of this company, of the needs to protect our environment. I think it is since this company was formed in Schoolcraft that we had the moon landing. The moon walkers took pictures, and these pictures were shown on television to show what was then referred to as "Spacecraft Earth." These pictures reminded us all that our earth itself is not much more than a spacecraft where they have to even reprocess their own urine in order to get by. We haven't reached that point yet as far as the earth is concerned, but we are not far from it. I once heard the story that the way the Russians treat industrial and commercial pollutants is to require the workers and the management people to take the water that they use for their drinking and bathing from the river below the point where they pour their effluent into the river. I am not sure that's true, but I think for our own survival we have to start thinking in those terms. I also take into consideration that there have been people talking about protecting our environment for a hundred years. "Walden Pond" is an indication of people who are concerned, butthese people until recent years were a small minority. Back in those days most people, particularly industrialists, thought that our natural resources, including clean air and water, were unlimited. The oil problem has shown us that our resources are running out; our demands in this country far exceed what we have available to us now. And to a person my age that sort of comes as a shock because I became an adult prior to World War II when it seemed to everyone that our resources were unlimited, but we are seeing now in the 1980s that our resources are not unlimited. But this court lives in the real world, and its decision must be realistic, not idealistic. Forty years ago I saw in rural China a perfect system of recycling with zero pollution where even human wastes were used on the farm fields, and the few motor vehicles ran on gas from a charcoal burner mounted on the front fender. But Americans are not going to return voluntarily to such a primitive life, and this court recognizes that Mother Nature, within limits, has the ability to reduce, destroy or digest a certain amount of pollution. We need automobiles, airplanes and even treated lumber, such as the defendant in this case produces. This court must steer a reasonable course between penalizing the defendant sufficiently to discourage future careless handling and to set an example to other polluters and yet not to be so harsh as to put the company out of business. Computation of Civil Penalties Now, as to the amount of the civil penalties; I am not going to give the state $10,000 a day for each day of operation, even though I think that probably there were drippings there almost every day they operated. There must have been drippings at least 200 days out of the year, after taking away holidays, weekends and days the plant may have been down. But I think it would be a fair statement to say 200 days a year for ten years that there were drippings and that this pollution was added to, but I'm not going to make that finding because the carelessness there was insignificant when compared to other acts and omissions I will describe later and because the plaintiffs really made no effort to stop the dripping or to require the drippings to be recovered in a closed system. I am going to use the figure of 15 spills per year, to start with, which the defendant's representative admitted on the stand. There may have been a lot more than that, but at least I'm going to use what the defendant admits. I do not believe Mr. Biewer is quite as naive about pollution as he indicated on the stand. When a tank truck drives up or when demijohns come in packed in crates with skull and crossbones prominently displayed, I do not believe that anyone who deals with that — I'm not talking about a passer-by who just happens to drive by and sees this on a loading dock, I'm talking about somebody who orders this and uses this in their business — I find it hard to believe that they think it would be proper and permissible, regardless of any law, to simply spill or pump it out on the ground. I can understand an occasional spill and thinking, "Well, what do we do with it, throw a little sand on it or shovel it in the back corner or something like that?" But as part of your manufacturing process to convey this out onto the ground day after day or to permit it to drip off lumber even back in the early '70s before we saw Spacecraft Earth from the moon, I think it indicates to me that this was not a realistic position to have. There are people who feel guilty when they wash out a paintbrush in gasoline and dump in the sandy area in the back or their yard or along the driveway, even though most of that is a solid after the gasoline evaporates. But people generally are today more aware of pollution, and well they should be. On the other hand, the climate of public concern was not as strong in 1970. I'm going to start under the common law nuisance to assess for the year 1970 for 15 spills the sum of $100, for a total that year of $1,500. I will do the same in '71, '72, '73 and '74; $1,500 for each year. Now, in March of 1975, Koppers produced a manual and sent it out to their customers and licensees, including the defendant. The defendant received its copy about the end of the first third of the year, probably by the end of April in 1975. So I'm going to charge a third of the year, up through the end of April 1975, at the previous rate, or $500. After receiving that manual, it seems to me that if a person were unsophisticated about chemical pollutants beforehand, that they certainly shouldn't be with that manual in their hands. I'm going to then charge the sum of $500 per spill for 15 spills per year, and in 1975 for two-thirds of a year I'm going to assess a civil penalty of $5,000 for the balance of that year (10 spills). For '76, '77 and '78, three years at $500 per spill for 15 spills each year, I'll assess a civil penalty of $7,500 for each of those years. About the first of May 1979, a representative of Koppers Company came to the plant and looked over the situation, discussed the defendant's operation, pointed out things that he felt had to be changed and then followed up with a letter. The letter was dated the 14th of May, 1979, Exhibit 75. I do think that that letter points out as clearly as anybody could point out — and it's not from the State of Michigan, not from an adverse party; it is from the party from whom they got their license to use this process and the company from whom they buy their chemical products — that letter lays it out as clear as possible what the defendant had to do; what I feel as a layman they probably should have known ahead of time, essentially that you're got to have a closed circuit here; that you've to recover everything that you spill, have it flow back in and don't let it get into the environment. If my arithmetic is correct, for the first third of 1979, continuing at $500 per spill, that would be $2,500. But after receiving that letter, for the next six months after receiving the Koppers' letter, it seems to me I ought to give close to the maximum. I'm not going to give the naximum because they were not hiding their activity. Serious as this was from that time on (and I don't know how much more warning you can give a company than the defendant had by the time they received the Koppers' letter), at least they weren't hiding their activity. They weren't, as Mr. Reed indicates, doing what some companies might be doing, right today, secretly dumping their pollution into a drain field or septic tank or some other hidden means of disposal that would be very difficult to detect. Instead of $10,000 a day, I'm going to assess $5,000 per spill for the next six months because of Mr. Hutton's testimony that when Mr. Przybysz from the DNR came to the plant Mr. Hutton did stop the polluting operation, that after October there were no more spills or pumping of the chemicals onto the ground until December first. Assuming seven and one-half spills for this six-month period after the first of May through October at $5,000 per spill I add $37,500. On December first we have a photograph taken by an angry neighbor who was driving by and saw the hose spilling the chemical and water from the door pits out onto the ground. That to me is a brazen and flagrant violation. That should not have happened. After Mr. Przybysz was there in October, its seems to me the hose should have been disconnected, the sump pump should have been removed. I'm willing to give the defendant the benefit of the doubt that there were no more spills after Mr. Przybysz was there until December first. There have been none proven, and I will not extend defendant's statement of 15 spills per year past the date in October when Mr. Hutton promised Mr. Przybysz that there would be no more spills or pumping onto the ground. But the hose was left in place, and the sump pump was still connected up. The "accident" on December first was very easy to happen. An employee simply turned on the pump and was pumping the chemicals right back onto the ground. Because I think that the December first pumping was so flagrant and that things should have been done after Mr. Przybysz was on site in October to disconnect the pipe and take away the sump pump, I will charge that spill at the maximum, $10,000. The total and penalty for 1979 is $50,000. I believe these civil penalties are proper. There should be some penalty for doing something that an average person would have known should not be done, even if that person were not a chemist and not familiar with the state laws protecting the environment. I think also there has to be an example set to other industries. These amounts are not larger because I think that the company, with the help of their own attorney (once the state got their attention), did start to do something about a serious problem. I can understand some of Attorney Reed's dissatisfaction in trying to deal with the bureaucracy of state government. But, on the other hand, Mr. Reed by his own letter knew that the PIPP report required by the state was not complete. These civil penalties, I think, and I will so find, could be applied even without these acts. Some sort of punishment could be brought for common law nuisance. That's why I go back to 1970, because the Water Resources Act was not amended to include groundwater until April 15th, 1973. But I go prior to that date because I think it's justified under common law nuisance. As to remedies, I will adopt Dr. Cherry's recommendation that at the present time there is no need to dig up the tarred and blacktopped areas. I don't believe there is much chance that the water table is going to fluctuate a great deal, maybe a foot and a half. If this happens, this may put more chromium into the groundwater, but what has already been done by the company so far has cut off the principle [sic] source of pollution. This is not like a plating factory that continues to pour more chromium into the environment. I'm satisfied from what I've seen down at the plant and the testimony here in court that the company, with the help of Koppers Company, their attorney and their own experts, has effectively made this into a closed circuit whereby the chemicals are completely recycled so that, barring a break in a pipe or a tornado lifting the roof off the place or something of this nature, [12 ELR 20518] there is no possibility of the chemical, particularly arsenic and chromium, getting into the environment now. But we still have a problem that I now consider a sub-source of pollution and that is the ground under the plant that is so heavily impregnated that it continues to be a source to feed the plume of contamination that has moved off the property. Under the paving I will require no remedy at the present time. The paying, whether it be concrete or asphalt, I believe is a satisfactory cover for the present time. I will require a bond in the sum of $30,000 made payable to the clerk of this court for reference to this case to be invested in any certificate or other means to accumulate interest chosen by the defendant and approved by the court to be left with the court but which will be the property of the defendant at such time as the court feels that the bond ought to be released. If defendant would rather post a surety bond in the place of a certificate of investment, the defendant may do that. The condition of this bond is that the soil beneath the paved area not become a source of further danger to the groundwater. There will be a time that the court will feel that it is no longer necessary to hold that bond, but I will presume that will be a number of years down the road. Now, I, or my successor, will cross that bridge at a later time. The court will continue jurisdiction on this case. The court will require defendant at its expense to extend the city water lines down to the plant site on 14th Street, if the municipality will do so, including access and hookup to both Weslock and the trucking company on the other side of the street. Now, for the plant site other than the paved-over areas, the court will adopt Dr. Cherry's recommendations both as to soil borings, removal and observation wells. The court will adopt the less restrictive or less burdensome measure, which I believe was .5 milliliters per kilogram, rather than the more restrictive test sought by the state. The reason for this is that the test that Dr. Cherry suggested is a laboratory test. The soil would be agitated or stirred up. In such a test you're going to drag out as much of the chromium as you possibly can; far more than you would in a normal percolation of rainwater down through undisturbed soil. At least at the present time it seems to me that the .5 measure ought to be sufficient. Now, by continuing jurisdiction, if I see that this is a mistake, I can change this, and I reserve the right to do so. Soil, then, will be removed down to levels that indicate .5 or less at the various sites. The place where the drums have been smashed and buried, should be excavated, and the soil there ought to be .5 or less. The same for the buried lumber site and the ditches, both along the railroad track and along 14th Street. Now I want to move off the plant site and discuss the plume. The present test wells indicate two primary sources of chromium contamination, that is, on the plant site, and then to the southeast, observation wells 24-A and 24-B appear to be near the center of what has been referred to as a "hot spot" of far more concentrated pollution. But that is where our observations ended. I believe further observation wells should be sunk further to the southeast. What I am going to propose now are benchmarks, and they will not be concrete. I'll ask the parties to consult with their experts and see if they can agree. If my benchmarks are not adequate, if they can agree on something different, I want them to do so. The plume of pollution is primarily chromium because the arsenic does not seem to have moved off the plant site. According to the testimony, I find that arsenic is not nearly as mobile as the chromium. Approximately 2,200 feet from the plant site in a southeasterly direction there ought to be a series of at least three wells and at least at two different depths to try to pick up the leading edge of the plume, or to find clean water. If these show clean water, then I think we ought to move back a reasonable distance to the northwest to see if we can find the edge of the plume to see the extent of the hot spot that is shown in part by observation wells 24-A and 24-B and to see if there might be other hot spots in there. We could have up to 20 well sites, such as Mr. Minning recommended. I'm not ordering 20 well sites at this time, but we're feeling the elephant, and when we know enough about the elephant, we'll stop. Description of Plume of Contamination I find that the plume of pollution is not to exceed 3,000 feet long moving in a southeasterly direction from the plant site. It is 500 to 600 feet wide and 50 to 60 feet deep, up and down. It moves at a rate approximately 225 feet per year in a southeasterly direction. I find that the plume should be purged or pumped out. At this time, I order two purge wells and a third well outside the plume (for clean water), or, if the experts feel, perhaps below the plume. But I don't want to risk sucking the plume downward or spreading the plume farther than necessary. I want it farther away from the plume so it is not going to distort the plume in order to bring in fresh water and to have these wells brought together so that the fresh water can dilute the purge water to a level of twice drinking water standards, which I think would be safe even on crops. At this time I will not require any chemical reduction, either of the Minning type or the more expensive type which requires retention. I find that the Schoolcraft municipal wells are not endangered by defendant's operation and are not likely to be because the movement of the plume is to the southeast — away from the Schoolcraft wells. I further find that adjoining property owners have been furnished deep wells producing clean water and that growing crops in the area of pollution are not endangered by the plume of pollution. I see no need for chemical reduction at the present time as requested by the plaintiffs and find that the remedies I am ordering should make a significant reduction in the plume of pollution in the next six months. I find no urgent reason to require faster or more expensive means of reducing the plume. I find that the reduction process suggested by Mr. Minning is almost instantaneous, a matter of two or three seconds, and I do not believe that the other process requiring large retention tanks would be necessary. It is my hope that we won't have to get into either one of those types of processes if the mixing and dilution I am ordering is satisfactory. There are growing crops on the farms over the plume of contamination at the present time. If defendant can work out something with the property owners not only for these wells but to irrigate his crops — from the testimony it seems to me that the level that I've put on of .1 would not be harmful to the crops. Mr. Minning describes an operation that would in his opinion clean out the plume in as little as 65 days. I am not going to require that speedy an action, but I do want prompt action. I want a report within 30 days as to what can be worked out, is the farmer cooperative, has the defendant been able to — and this should be at defendant's expense — have they been able to work out something to irrigate his crops as long as the irrigation water is not more than .1. If so, I will postpone indefinitely any reduction machinery or equipment. If these wells could be put in within the next six weeks, we could still do quite a bit of pumping yet this fall before the ground freezes. I recognize the farmers have to get in there to harvest their crops, and we should work around that. I find that this plume is not a highly dangerous plume at the present time. If it were moving in the opposite direction so that it was going to soon invade the Schoolcraft municipal wells, I would feel differently. But the worst that we have here is a couple of farms on either side which apparently have not been touched at all. There are lakes further down, but it would be a matter of years before the plume would reach those lakes at the present rate of travel. Before it would reach any of the residential houses we would still have a number of years. So, we have perhaps six months both this fall and in the early spring months after the frost is out of the ground and before the farmers are ready to plant their crops. A slower purging would not require quite as expensive equipment and would interfere less with the farmers' use of their land. Perhaps by May first or May 15th, when they are ready to plant, we might have a significant reduction in the levels shown in the monitor wells. Further Conference I will ask Mrs. Valentine to set a hearing date some morning at 8:30 a.m., at least thirty days from now that would be convenient with Mr. Reed, and at that time I wish to have a report as to whether or not the irrigation that I've proposed is feasible with the farmers and if arrangements have been made. I would like to have a report as to whether or not the experts agree, both as to the locations and the number of wells. I am suggesting two purge wells because of the length of the plume. I would like to know where they would agree to put the fresh water well, and I would like to know that there has been some agreement as to the proper mixing devices so that there should be some control over the water in case we want to change the ratio. If there has not been a significant reduction by the time the ground freezes, it may well be that first thing in the spring the ratio could be higher than the .1, at least until the crops are put in without material damage to the topsoil. These purge wells would do several things. They will lift the chromium from the groundwater, where the evidence indicates that it will not reduce from valent 6 to valent 3, to the surface, that is, to the top 18 or 21 inches of soil where natural processes in the topsoil will reduce the chrome valent 6 to chrome valent 3; a slower process than if we would install chemical reduction machinery but at much less expense. It will have an additional benefit. Defendant pointed out that this groundwater is polluted with nutrients from fertilizer; farmers are putting on more fertilizer than they really need. Some of it is percolating down below their topsoil. It is not doing them any good. It is a loss to them. And there might be some significant recovery by this purging of theplume. At least the groundwater would be made less polluted to the extent that that water is brought back up to the surface, and again those nutrients will be broken down by the organisms and the plant life in the topsoil. At the conference about a month from now that Mrs. Valentine will arrange the court will also want a timetable as to when the wells would be in operation if they are feasible as I have outlined. I would like to know how the mixing of the fresh water and the polluted water, the purge water, is to be monitored. And I would like to know who would be operating the irrigation system so that we know that there is some control over the output that is being put on the farmer's field to make sure that it does not go over the .1 until such time as a heavier concentrate is authorized. Who is going to pay for it? It might be that this would be a job that somebody who already works for Biewer Lumber Company could go over perhaps twice a day, start it up, maybe go over at noon to monitor it and shut it off at 5 o'clock. Or maybe it ought to run around the clock in warm weather. These are the things I want to discuss at our first conference. I want to talk now about the monitor wells. I would like to get started on the series of monitor wells as soon as possible at about 2,200 feet southeast of the Biewer property. And I don't think we need wait until the conference a month from now unless there is a serious dispute between the plaintiffs' experts and defendant's experts, and I don't want to wait for a month to resolve any such dispute. If they cannot agree, I will ask Mrs. Valentine to set a conference at the first possible date at 8:30 a.m., ad let's bring these experts in, and I'll make a decision, because I want to get at least the first few monitor wells in to try to probe for the edge of the plume, the southeasterly edge, the leading edge, as soon as possible. How many more we have after that would depend on the experts. We will be feeling our way depending on what we find in the first ones. The monitor wells I want monitored at least every three months. Who would monitor them would depend on who can do it the easiest.By assessing the costs so far against the Defendant Biewer Lumber Company, I am not saying that all expense ought to be on them. I think the State of Michigan has to do some monitoring just because they are a governmental agency. I am well aware of the financial handicaps of the state, but I think the state probably could do the monitoring and the testing cheaper. So I want those first new test wells at the front edge, at the leading edge, as soon as possible. And I want them monitored and reported on every three months. The balance of the costs of the court's expert I'll ask the parties to each submit forthwith, and I hope within ten days, one-half of the amount that has not already been paid so we can take care of that. I'm not sure that the actual costs of the action as we usually consider attorney fees and depositions and so forth have been taken care of, and I will make no ruling on that at the present time because I don't think that is in front of me. If the state wants to file a tax bill of costs, I would consider that Dr. Cherry's bill would be a tax cost that also ought to be considered. I'll ask Mrs. Valentine if she wishes to pursue this to set it in the usual form and file the tax bill of costs and give Mr. Reed a copy of it. Another thing that I would like to have at the conference one month from now would be a report on extending the city water, which I presume will require a conference with the city officials. I would like to get an idea of when it could be done and how soon it could be done. As I understand it, there is no sanitary sewer system available in Schoolcraft, so no provision is made for any water — for disposing of any water other than as I have already said. The plaintiff shall submit a judgment in accordance with this Opinion. 12 ELR 20515 | Environmental Law Reporter | copyright © 1982 | All rights reserved |