The Michigan Court of Appeals has upheld the ruling of a lower court in a case involving the Michigan Department of Environmental Quality and the owner of a waste hauling business.

The MDEQ initiated action against Patrick Conely on behalf of Superior Sanitation in July 2012, alleging several violations under the Natural Resources and Environmental Protection Act and public nuisance. The lawsuit maintained he engaged in illegal, unpermitted and unlicensed operations at multiple locations in Livingston County during the last 25 years through his operation of Superior Sanitation.

After two and a half years of litigation, the trial court granted partial summary disposition in favor of the DEQ in a series of orders that required Conely to cease all unpermitted waste operations, apply for and obtain permits, implement several response activities and pay the DEQ’s incurred response activity costs and attorney fees. Follow up inspections were conducted at waste sites and revealed that Conely continue to engage in active operations, which amounted to new and previous violations. The DEQ alleged Conely failed to comply with any of the trial court’s orders and initiated civil contempt proceedings in 2016. A hearing was later held and Conely was ordered to complete various actions by January 9th, 2017. Additionally, the court ordered him held in civil contempt, fined $500 per day up to the maximum of $7,500, until he complied with the courts orders and receive 30 days in jail in the event of non-compliance. He failed to comply, violating the order of contempt.

The court denied a motion from Conely for reconsideration. After a hearing to determine fines, fees and damages, the court entered a final judgment awarding the MDEQ $3.6 (m) million toward incurred response activity costs, various civil fines and attorney fees. Conely appealed but challenged only the propriety of civil contempt proceedings. He argued his right to due process was violated because he did not have adequate time to prepare a defense before the hearing was held. The appeals court panel disagreed, saying the argument he didn’t have enough time “is belied by the fact he spent most of his time preparing for his in-depth notice of removal.” The panel stated Conely had almost two weeks to prepare before the hearing and it appears that rather than defend against the contempt proceedings in circuit court, the defendant elected to pursue what he should have reasonably known to be a frivolous removal to federal district court.

The panel rejected further arguments in the appeal, including that it was an error for a visiting judge to preside over the show cause hearing. (JM)