Whether defendant had jurisdiction to order plaintiffs to perform corrective action at their hazardous waste facility under Part 111 of the Michigan Natural Resources & Environmental Protection Act (NREPA); MCL 324.11115a; Declaratory relief under MCR 2.605; Whether an actual controversy existed; MCR 2.605(A)(1); Distinguishing Flanders Indus, Inc v Michigan

Holding that the Court of Claims abused its discretion by finding there was no actual controversy between the parties, and improperly dismissed plaintiffs’ complaint for declaratory relief and granted defendant summary disposition, the court vacated and remanded. Defendant believed a release of hazardous materials occurred at plaintiffs’ facility, triggering corrective action under NREPA Part 111. Plaintiffs asserted there was no evidence of a release, and the contaminants found in the soil were naturally occurring. Defendant suggested corrective action in the form of a restrictive covenant limiting the use of the property to nonresidential, and to maintain a concrete slab foundation to act as an infiltration barrier. Plaintiffs contested these recommendations, and no order or consent agreement was ever entered requiring corrective action. Plaintiffs then sought a declaration that defendant lacked authority under Part 111 to impose corrective action on plaintiffs where there was no evidence of release. On appeal, the court agreed with plaintiffs that an actual controversy did exist. “There is no dispute that defendant never entered an order or consent order requiring plaintiffs to perform corrective action under MCL 324.11115a(2). Plaintiffs concede this point on appeal.” However, the “actual controversy that exists between the parties is whether defendant has jurisdiction to order plaintiffs to perform corrective action where, as alleged by plaintiffs, there is no evidence of a release of contaminants at the facility.” Plaintiffs sufficiently pled and proved facts indicating “‘an adverse interest necessitating a sharpening of the issues raised.’” Although the Court of Claims “deemed this issue hypothetical, and ‘there [] must be a present legal controversy, not one that is merely hypothetical or anticipated in the future,’ a controversy exists here because the parties have disputed corrective action for years, and a declaratory judgment is necessary for a resolution.” Flanders was distinguishable “because defendant has initiated corrective action proceedings. Defendant has directed plaintiffs to produce studies of the property and has attempted to enter a consent agreement for corrective action for years. Defendant requested that plaintiffs submit a work plan for corrective action in 2016. For unknown reasons, defendant has not entered a formal order. Plaintiffs, therefore, are in need of declaratory relief and a determination of this case on the merits.”