Wayne County Department of Health v. Olsonite Corp.

No. 77-114 (Mich. Ct. App. November 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

[8 ELR 20097]

This is a 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 state 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),¹ filed the present suit on October 12, 1973. Its complaint alleged that Olsonite, a domestic corporation located at 8801 Conant Avenue, Hamtramck, Michigan, "has discharged and continues to discharge" into the ambient air "obnoxious and foul odors" which threaten to pollute, impair, or destroy the atmosphere and which endanger the health, welfare, and safety of residents in the vicinity.

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 automotive 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 portion of the opinion describing the painting operation, and the evidence and testimony presented at the trial is omitted — Ed.]

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(203)(1). Next, concluding that defendant had failed to rebut plaintiff's prima facie case, id., the court ruled:

the tests [conducted] by company employees . . . are of the most self serving nature and in no way rebut the convincing testimony of the inspectors, the residents of the neighborhood, and the scientific tests of Dr. Warner. Furthermore, it is significant that not one of the company employees who conducted the tests was called to testify, subject to cross examination.

[8 ELR 20098]

Wayne County Department of Health, Air Pollution Control Division v. Olsonite Corporation, Wayne County Circuit Court File No. 73-252680-CE, issued December 15, 1976, pp. 7-8.

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.

Defendant contends that it has taken affirmative action in planning a new system that will reduce the amount of paint used and involving the water curtain device. The fact remains, however, that there is no showing that these plans will solve the continuing pollution problem.

Id. at 9-10.

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 face 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 which has polluted the air. It has established that there are feasible methods to control the pollution. And defendant has failed to rebut plaintiff's case. It therefore follows that the plaintiff is entitled to relief.

V. Relief Ordered

It is obvious that an order must be entered enjoining the defendant from continuing to pollute the air. At the same time defendant must be given a reasonable time to reach full compliance (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 odorunits 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 supplemental injunctive relief.

The Court will retain jurisdiction of the case. Costs to plaintiff.

Id. 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 Act supplants prior doctrines of common law nuisance to the extent these doctrines conflict with the Act.

Two Michigan Supreme Court cases offer insight on the issue. In Ray v. Mason County Drain Commissioner, 393 Mich. 294, 224 N.W.2d 883 [5 ELR 20176] (1975), Justice Williams, writing for a nearly unanimous court, recognized the EPA as the legislature's response to the mandate of Const. 1963, art. 4, § 52;¹³

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 consideration changes in technology which the Legislature at the time of the act's passage could not hope to foresee.

393 Mich. at 306-07. (Footnotes omitted; emphasis supplied.)

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 "destruction" are taken directly from the constitutional provision which sets forth this state's commitment to preserve the quality of our environment. In addition these and other terms used in establishing the standard have acquired meaning in Michigan jurisprudence. The development of a common law of environmental quality under the EPA is no different [8 ELR 20099] from the development of the common law in other areas such as nuisance or torts in general, and we see no valid reason to block the evolution of this new area of common law.

Id. at 307, n.10.

Similarly, see State Highway Commission v. Vanderkloot, 392 Mich. 159, 184, 220 N.W.2d 416 (1974), (Opinion of Williams, J.):

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, 1054-64 (1972).

(Emphasis in Vanderkoot.)

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, 3 ERC 1827 [2 ELR 20238] (Mich. Cir. Ct. Clinton Cty. Feb. 14, 1972), and an analysis of that case co-authored by Professor Sax, the initial draftsman of the EPA. See Sax and Conner, supra at 1066-67.

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 control products or devices as are from time to time available and developed and are economically feasible. In short, it is the opinion of the Court that on balance the equities are in favor of defendants and that they are not maintaining a nuisance.

3 ERC 1830 [2 ELR 20239].

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),¹⁴ 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." 3 ERC at 1831 [2 ELR at 20240]. The court then indicated that if defendants hold "the odor entering the atmosphere . . . to a practical minimum" they will have established an affirmative defense under the EPA, id.; see MCLA 691.1203(1); MSA 14.528(203)(1). The court cautioned, however, that a balancing of interests on a case by case basis would be appropriate "[u]nless there are definite standards set." 3 ERC 1831-32 [2 ELR 20240].

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 standards by finding that the defendants had complied with the policy of the EPA, a policy that is largely co-extensive with the law of nuisance as he applied it in this case.

70 MICH. L. REV. at 1067. (Emphasis supplied.)

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, unlikethe 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, impairment or destruction,"¹⁵ we believe the legislature intended the EPA to supersede the common law of nuisance to the extent these respective bodies of law conflict.¹⁶

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, __ Mich. App. __; __ N.W.2d __ (No. 28866, released 9/8/77) and Miller v. Magline, Inc., 76 Mich. App. 284, 293-94; __ N.W.2d __ (1977).¹⁷ Under this test, a finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been made. Tuttle v. Department of State Highways, 397 Mich. 44; 243 N.W.2d 244 (1976). For convenience, our examination of the trial court's assertedly erroneous findings will track the statute.

Prima Facie Case of Pollution

Initially it should be noted that probable as well as actual degradation of the environment may be considered in deciding whether plaintiff has made a prima facie showing of pllution. Ray, supra at 309. Moreover, the evidence necessary to establish a prima facie case "will vary with the nature of the alleged environmental degradation involved." Id.

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 [8 ELR 20100] 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.

We do not find the judge's initial finding to be clearly erroneous. The great majority of citizens and inspectors who testified remained firm in attributing the recurrent odors as emanating from Olsonite's factory. That the intensity of the odors may have diminished in the two years preceding trial does not refute the probable environmental degradation established at trial by citizen witnesses who complained of serious physical symptoms caused by Olsonite's odors in 1975 and 1976. Plaintiff was not obliged to offer scientific or medical evidence of health impairment, for the judge believed the "convincing testimony" of the citizens. Moreover, the absence of violation notices is explained by the inspectors' testimony that the Division had directed them to cease issuing such notices because of Olsonite's failure to respond affirmatively to previous notices.¹⁸

Nor is the second finding clearly erroneous. Although the judge characterized a number 2 odor as "distinctly unpleasant" whereas the Division's odor intensity schedule characterizes a number 2 odor as distinct, definite and clearly detectable, the testimony of two inspectors discloses that the Division staff did not limit the number 2 intensity to the recognition threshold as defendant asserts, but gave it a range starting at the clearly detectable level up to an odor level just short of a number 3 intensity. Since defendant does not suggest that the distinct, clearly detectable odor of its paint and solvents is by any means fragrant and since the inspectors' reports were entered merely to show the existence of citizen complaints, we do not find the lower court's slight misdescription to constitute clear error.

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 exceed 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 adopted various responses to odor problems.

Moreover, we note that the Division's laboratory guidelines are neither officially compiled nor mentioned in the regulation; that the guidelines do not gauge the cumulative effect of multiple emission sources from a single plant;¹⁹ and that no showing has been made explaining why a pattern of citizen complaints is unlikely to appear at a given emission level. Without an examination of the above factors, the lower court could not have determined "the validity, applicability and reasonableness of the standard." Thus, the judge acted prematurely in adopting the Division's guidelines.

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), orthat 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 soluable; (2) the second test in March 1976, conducted at Olsonite's request under optimal maintenance procedures, revealed a deterioration of the water curtain from 15 to 35 percent since the previous test three days earlier; and (3) the March tests measured emissions from a single spray booth rather than from the system under normal operations. Thus, we do not share defendant's definite and firm conviction that the court erred in finding the water curtain to be unreliable.

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 be ascertained with any degree of reasonable certainty." Ray, supra at 311.

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 in February 1975, of its Toluol-Xylol blend of solvents. This argument disregards the presence of continuing complaints in 1975 and 1976 and it presumes, somewhat myopically, that the energy shortages which necessitated the switch to higher odor-producing solvents will not recur. Given defendant's misconceptions, we hold the trial court did not err in [8 ELR 20101] concluding that defendant had failed to rebut plaintiff's prima facie case.

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 fails to produce the necessary empirical evidence in rebuttal; and (4) the trial court gives credence to the plaintiff's 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 conduct is 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, impairment or destruction. Except as to the affirmative defense, the principles of burden of proof and weight of the evidence generally applicable in civil actions in the circuit courts shall apply to actions brought under this act.

MCLA 691.1203(1); MSA 14.528(203)(1). (Emphasis added.)

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 309-11, 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):

[O]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 justification. 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, 393 Mich. 453, 454, 225 N.W.2d 1 (1975), then the only reasonable construction²⁰ of the statute is to place the burden of proof not on a citizenry largely unschooled in the intricacies of environmental technology, but on a defendant who "has the underlying data and documentation upon which his choice of a given course of action is based." Pierce, Sax and Irwin, Responses to "Thoughts on H.B. 3055," at 4 (Mar. 20, 1970) (unpublished manuscript in the files of Professor Sax, University of Michigan Law School), quoted in Note, Michigan's Environmental Protection Act: Political Background, 4 U. MICH. J.L. REF. 358, 367 n.36 (1970). Thus we hold that a defendant asserting the statutory affirmative defense of § 3(1) of the EPA has the burden of proving same by a preponderance of the evidence.

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

The Division clearly does not expect perfection; rather, it requires defendant to keep its emitted fumes to a "practical minimum." Crandall, supra. As we have found, defendant has not succeeded in minimizing its odors. Relying almost exclusively on an undependable water curtain, Olsonite has done little more than make preliminary inquiries which ceased as soon as it encountered obstacles seemingly preventing adoption of an alternative odor-abatement program. As noted, Olsonite never sought a reduction in the quoted cost of these systems, never ascertained whether less expensive abatement techniques might be used on its less egregious emission sources and never instituted pilot studies or commissioned engineering drawings. Thus, we are convinced that the lower court did not clearly err — indeed did not err at all — in finding the technical feasibility of alternative controls on odor.

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 (OSHA), 29 U.S.C. § 651 et seq. See Industrial Union Department, AFL-CIO v. Hodgson, 499 F.2d 467 [4 ELR 20415] (D.C. Cir. 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 employees even if such measures substantially increase production costs. This not, however, the same thing as saying that Congress intended to require immediate implementation of all protective measures technologically achievable without regard for their economic impact. To the contrary, it would comport with common usage to say that a standard that is prohibitively expensive is not "feasible."

[P]ractical 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 financially burdensome and affect profit 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 financially unable to comply with new standards as quickly as other employers.

[8 ELR 20102]

499 F.2d at 477-78. (Footnotes omitted. Emphasis added.) Accord: United States v. Reserve Mining Company, 380 F. Supp. 11 [4 ELR 20573] (D. Minn. 1974), applying the above interpretation to the Minnesota Environmental Rights Act, a statute modeled generally after Michigan's EPA.

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, 401 U.S. 411, 91 S. Ct. 814, 28 L. Ed. 2d 136 [1 ELR 20110] (1971). There the Supreme Court examined the term "prudent alternative" in § 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f), and in § 18(a) of the Federal Aid Highway Act of 1968, 23 U.S.C. § 138, which prohibit the Secretary of Transportation from authorizing the use of federal funds to finance highway construction through public parks if a "feasible and prudent alternative" route exists. In unequivocal language, the Court rejected the contention that the phrase "prudent alternative" requires a comprehensive balancing of competing interests:

[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 particular 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.

401 U.S. at 411, 92 S. Ct. at 821, 28 L. Ed. 2d at 151. (Emphasis supplied.) Similarly, see County of Freeborn v. Bryson, Minn. , 243 N.W.2d 316, 318 (1976).

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, Michigan's Environmental Protection Act: Political Background, 4 U. MICH. J.L. REF. 358, 363 (1970) and Thibodeau, Michigan's Environmental Protection Act of 1970: Panacea or Pandora's Box, 48 JOURNAL OF URBAN LAW 579, 586 (1971).

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. We 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 its 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 learned judge, having studiously followed the commands of Ray, supra, clearly understood that the granting of equitable relief is a discretionary decision under MCLA 691.1204(1); MSA 14.528(204)(1). Ray, supra at 305.

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 above. In its discretion, the court may then (1) specify an appropriate standard (which may be the same, more strict or possibly, but improbably, 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.

1. 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, acrosols, 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.

13. 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.

14. (2) in granting relief provided by subsection (1) where there is involved a standard for pollution or for an antipollution 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(202)(2).

15. Emphasis supplied.

See also the similarly phrased provision in Const. 1963, art. 4, § 52.

16. 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, 31 Mich. 289, 293 (1975).

17. 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.

18. 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] Right, 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 have 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.

19. This factor suggests that the Division's guidelines may be too lax.

20. [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 note 16 (1971).

21. Webster's Third International Dictionary, p. 1771 (1965), distinguishing "feasible" from "possible" and "practicable." (Emphasis added.) See also id. at 831 "feasible," definition 3.

22. 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 suffer material impairment of health or functional capacity. . . .

(Emphasis added.)

23. We suspect that improvements in water-curtain efficiency and paint-spray application may well reduce the total volume of odor to be restrained by supplemental controls. This should appreciably lower the cost of such controls.

Moreover, we anticipate (without so holding given the inexact financial data, Fn.12, [omitted-Ed.]) that a good faith effort will uncover other cost savings which should obviate the need for employee dismissals.