810.513.3044 PH
Specializing in Environmental Law and Real Property Law

Kevin Lavalle

Henry v Dow Revisited

In Henry v Dow Chemical 2017 WL 239069, the Michigan Court of Appeals addressed the application of the statute of limitations to claims arising from the presence of dioxin contaminationalong the Tittabawassee River in Saginaw County. The plaintiffs claimed they sustained injuries in 2002 when the MDEQ released a series of bulletins advising residents of proposed cleanup activities. The defendant claimed information about the dioxin contamination was known to the public in the early 1980sand the cause of action accrued in 1984 at the latest. The Court of Appeals held the bulletins issued by the MDEQ in 2002marked the creation of the damageelement necessary to support the plaintiffs’ claims for nuisance and negligence.

The holding of the Court of Appeals was reversed by the Michigan Supreme Court in Henry v Dow Chemical Co., 501 Mich 965 (2018). The Court stated a claim accrues at the time the wrong upon which the claim was based was done regardless of the time when the damage occurred. The claimed “wrong” was the presence of dioxin in the soil of Plaintiffs’ property. Thus, the plaintiffs’ claims accrued the date that dioxin was first present on their property.

In Robinson v MT Clark, Inc. 2018 WL 6252544, in reliance on Dow, the Michigan Court of Appeals dismissed the plaintiff’s claim for ingestion of water contaminated with gasoline constituents. The plaintiff claimed the statute of limitations began to run when she was notified that her well water was contaminated. The Court held the statute of limitations began to run seven years earlier when she moved into her house. At that time, she began to ingest the water that admittedly tasted bad due to contaminants already present in the well. The Court of Appeals agreed that the plaintiff’s claims were time barred.

Similarly, in Burton v Michigan Sugar Company, 2019 WL 1211455, the plaintiffs sued the defendant in 2016 on account of odors emanating from its sugar beet processing plant. While the severity of the odors increased in 2013 [three years before the suit was filed], the evidence showed that noxious odors were being released over a decade before. As such, the Court of Appeals held that plaintiffs’ claims were time barred and ordered that they be dismissed.

It appears that the door opened by the Court of Appeals in Dow is now officially shut.

Michigan Zoning of Short-Term Rentals

Whether deserved or not, many believe that the negative aspects of short-term rentals such as Airbnb, VRBO and Booking.com outweigh their benefits. They get blamed for a variety of problems including increased noise, litter, traffic and parking, to name a few. Some municipalities have taken steps to regulate short-term rentals by using  their zoning ordinances. Michigan courts have generally treated these attempts favorably. See Concerned Property Owners of Garfield Township, Inc. v Charter Township of Garfield, 2018 WL 5305235.

Michigan House Bill 4046 seeks to amend the Michigan Zoning Enabling Act to prohibit a local zoning ordinance from being used to regulate vacation and short-term rentals. The proposed amendment defines short term rental to mean the rental of a single-family residence, a family house or dwelling up to four units, or any unit or group of units in a condominium, for less than 28 days at a time. An identical bill to HB 4046 was introduced in 2017 but did not make it out of committee.

HB 4046 attempts to place short-term rentals on equal footing with traditional single family owner occupied dwellings by providing that a short term rental: 1) constitutes a residential use of the property and is a permitted use in all residential zones, 2) is not subject to a special use or conditional use permit or procedure different from those required for other dwellings in the same zone, and 3) is not a commercial use of property.

HB 4046 explicitly states that it does not prohibit regulation of short-term rentals for such things as noise, advertising, traffic or other conditions if the regulation is applied on a consistent basis to both rental and owner-occupied properties. While the prospects for HB 4046 to become law may not be favorable based on past history, the increase in popularity of short-term rentals ensures that this battle is far from over.

Bills seek to change way cleanups are conducted

Two recent bills simultaneously introduced into the Michigan House of Representatives and Senate seek to change the way that remedial action is selected. By way of background, remedial action includes such things as cleanup, removal, containment, isolation, destruction, or treatment of a hazardous substance released into the environment. Pursuant to MCL 324.20120a, the MDEQ may approve remedial action in certain enumerated categories:

a. Residential

b. Nonresidential

c. Limited Residential

d. Limited Nonresidential

The MDEQ has developed cleanup criteria for the residential and nonresidential categories. Remedial actions that fall into a limited category generally involve the use of land use restrictions and/or site-specific cleanup criteria. Under MCL 324.20120a, the person conducting the remedial action has the option of choosing the category of it.

House Bill 4212 and Senate Bill 116 would modify the way remedial action is chosen. If enacted, they would require that all remedial action meet the cleanup criteria for unrestricted residential use if technically feasible. If use of the residential cleanup category is technically infeasible, the proposed legislation would require that the category of remedial action that is implemented be the one with the most stringent cleanup criteria that is technically feasible. That standard would appear to take away all or almost all of the discretion to choose the category of remedial action. If passed, this legislation would represent a major shift in the way remedial action is currently being implemented.

STORMWATER UTILITY ACT REBORN

In 2017, I wrote a blog post on Michigan House Bill HB 4100, which sought to create the “Stormwater Utility Act.” The proposed Act was intended to confer legal authority upon local units of government to regulate stormwater runoff. HB 4100 was referred to committee, where it presumably died a peaceful death.

HB 4100 has been resurrected and was recently reintroduced as Senate Bill No. 756. SB 756 has been referred to the Senate Committee on local government. With local units of government asking legislators to provide them with greater protection from liability for flooding, providing them  with tools to address stormwater would appear to be an idea whose time has come.

Scaling Back Relief for Flooded Property

The Governmental Immunity Act grants governmental agencies broad immunity for tort liability. The Act contains an exception for liability arising from overflows or backups from sewage disposal systems however. The “sewage disposal event exception” to governmental immunity is the sole remedy for obtaining damages resulting from overflows or backups of sewage regardless of the legal theory. More often than not, this exception is invoked after one’s basement floods. The Michigan House of Representatives is considering House Bill 4290, which would expand governmental immunity for flooding claims.

There currently is no limitation on the amount of rain that must fall to invoke the sewage disposal event exception. House Bill 4290 would change that. It would impose a precipitation threshold on recovery. If enacted, House Bill 4290 would limit recovery for flooding damages to weather events where: 1) 1.7 inches or more of precipitation falls with one hour or 2) 3.3 or more inches of precipitation falls within a continuous 24-hour period. If it rains an inch and the creek begins to flow through your basement, you’re out of luck regardless of whether you have a paddle or not.

House Bill 4290 is intended to protect municipalities from paying damages for an increasing frequency of deluges. Not surprising, the bill has enthusiastic support from municipalities. However, if a person’s basement floods every time it rains, why punish an innocent homeowner who has no control over the situation. In those instances, extending immunity isn’t going to provide any incentive to fix the problem.

Flint Water Lawsuits Partially Revived

A prior blog post addressed the dismissal of Boler et al.v Early et al. and Mays et al. v Snyder et al. on the basis that the Safe Drinking Water Act (“SDWA”) provides a comprehensive enforcement mechanism demonstrating congressional intent to preclude suits for depravations of constitutional rights. The U.S. Court of Appeals for the Sixth Circuit has partially reinstated both cases. After review of the specific language and remedial scheme created by the SDWA, coupled with the rights and protections afforded persons under the Act, the Court of Appeals concluded that Congress did not intend to foreclose suits enforcing constitutional rights.

The Court of Appeals did find however that Eleventh Amendment sovereign immunity precluded suits against the State of Michigan and its agencies, the MDEQ and MDHHS. As a result, it reaffirmed the dismissal of the claims in both suits against those defendants. The Court made it clear that its holding related to jurisdictional matters only and remanded the case back to the district court to determine the merits of the claims.

A New Twist on the Statute of Limitations in Environmental Claims?

Statute of limitations require a person with a cause of action to bring suit within a specific period of time. Determining when that time period begins and ends is often hard to nail down. A recent case decided by the Michigan Court of Appeals illuminates this uncertainty in the context of environmental claims.

The matter of Henry v Dow Chemical Co. 2017 WL 239069 involved application of the statute of limitations to claims arising from the presence of dioxin contamination along the Tittabawassee River in Saginaw County. Dioxins can be created as a byproduct in the production of certain chlorinated organic compounds. The World Health Organization considers dioxins to be highly toxic.

The Henry Plaintiffs alleged injuries as a result of dioxin contamination of their property. While the parties agreed the applicable statute of limitation was three years, they could not agree on when it began to run.

Statute of limitations begin to run at the time a claim accrues. Claims accrue when the plaintiff is harmed rather than when the defendant acted.

The Plaintiffs claimed they sustained injuries in 2002 when the MDEQ released a series of bulletins advising residents of proposed cleanup activities. Those bulletins warned local residents about the possibility of dioxin in their soil. Defendant claimed that information about the dioxin contamination was known to the public in the early 1980s and the cause of action accrued in 1984 at the latest. The Plaintiffs had originally filed suit in 2003. The case is still ongoing after multiple appeals to the Michigan Supreme Court and Court of Appeals.

The Henry Court stated the statute of limitations began to run when the plaintiffs first suffered the harm from the dioxin in their soil. According to the Court, that occurred in 2002, not the early 1980’s. Knowledge of an existing claim is not the same as the presence of a necessary element. The bulletins issued by the MDEQ in 2002, while meant to be informative in nature, marked the creation of the damage element necessary to support the plaintiffs’ claims for nuisance and negligence. Prior to those bulletins, there were no restrictions on the use of plaintiffs’property. They could sell it without any loss in value and did not have to disclose the contamination. Because the Court believed the plaintiffs’ claim of depreciation in property value did not exist in any tangible form until the MDEQ published its advisories, it held the plaintiffs’ claims accrued in 2002.

More Flint Water Lawsuits Dismissed

The Federal District Court recently dismissed two more cases involving contamination of drinking water in Flint, Michigan. Similar to Boler et al. v Early et al., the plaintiffs in Mays et al. v Snyder et al. filed suit under §1983 of the Civil Rights Act claiming their constitutional rights were violated by the contaminated drinking water. Judge O’Meara, who also presided over the Boler case, dismissed the plaintiffs’ claims finding the Safe Drinking Water Act (“SDWA”) provides a comprehensive enforcement mechanism that demonstrates a congressional intent to preclude suits for depravations of constitutional rights.

Judge O’Meara also dismissed Myia et al. v Snyder et al., another Flint water case. While the Myia plaintiffs asserted a SDWA claim, they ran afoul of its jurisdictional requirements. Before any civil action can be commenced under the SDWA, the plaintiffs must provide notice to the proposed defendants 60 days prior to filing suit. A notice provision is common in many environmental statutes including Michigan’s environmental remediation statute. The notice provision is mandatory and when not provided, the matter must be dismissed.

Not a good start for some City of Flint water plaintiffs.

Rain Dance = Rain Tax?

Some Michigan municipalities currently collect fees for stormwater drainage. Those fees are often criticized. Are they user fees or taxes subject to the Headlee Amendment? What about the benefits conferred on the property owner by these programs, are they proportional to the amount of the fees?

A bill introduced last week in the Michigan House of Representatives seeks to address some of the complaints. House Bill No: 4100, the proposed “Stormwater Utility Act,” would provide the legal authority to local units of government to create stormwater management utilities. The proposed act would allow local units of governments to manage stormwater on a quantitative basis [volume and rate] as well as a qualitative basis [reduction, elimination or treatment of pollutants].

The proposed act provides procedures to set up such a utility and grants such utilities the authority to collect “stormwater utility fees.” On its face, the proposed fee provisions appear to grant flexibility in setting and making future adjustments to these fees. Utilities would be required to reduce the fee amount when a property owner makes improvements to reduce or eliminate stormwater discharges. The proposed Act also requires such utilities to establish an appeals board to hear grievances on the extent a property uses a stormwater system or challenge the amount of the fee.

It remains to be seen whether House Bill No: 4100 becomes law and whether it fosters the creation of Stormwater Utilities. Until then, in most areas of our State, the rain is still free.

Is there a Constitutional Right to Safe Drinking Water?

Fresh out of graduate school with a Masters degree in water and wastewater engineering, I went to work for the City of Flint. On rare occasions, I was asked to perform water quality testing at the City’s Water Plant. Yep, that one. Back then, the water plant served as an emergency backup and any treated water was returned back to the Flint River. I enjoyed my visits to the water plant. They were educational and left me with a true appreciation of what it takes to produce safe drinking water.

Unfortunately, missteps by those responsible for operating the water plant caused the delivery of unsafe drinking water to the citizens of Flint. Those missteps have opened the floodgates for legal actions. The court in Concerned Pastors et al. v Khouri commented that as of May of this year, 52 separate actions arising from the Flint water crisis were pending in federal district court. While appearing straight forward, the legal process of assigning blame for this crisis will be full of twists and sharp turns.

In Boler et al. v Early et al., the plaintiffs filed suit under §1983 of the Civil Rights Act claiming the City violated their constitutional rights by providing contaminated drinking water. Several courts had previously held that certain environmental statutes preclude such suits. The court in Mattoon v City of Pittsfield extended those holdings to the Safe Drinking Water Act (“SDWA”). In the eyes of the Mattoon court, the provisions of the SDWA evinced a clear congressional intent to regulate public drinking water to the degree that no relief was available for alleged depravations of constitutional rights under §1983.

While the Boler plaintiffs asserted claims arising from the delivery of tainted drinking water, they did not assert any claim under the SDWA. The Plaintiffs claimed they did not need to as their claims were based solely on the violation of their constitutional rights. The court disagreed. In its eyes, the plaintiffs’ case arose solely from the delivery of tainted drinking water. Labeling as a violation of constitutional rights doesn’t change the substance of those claims [i.e. if it looks like a duck…]. The court concluded that plaintiffs had no independent right to claim depravation of a constitutional right to safe drinking water. The court believed the SDWA was the plaintiffs’ sole remedy, and because they had not asserted any claim under the SDWA, the court dismissed the plaintiffs’ action.