The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 5463 March 22, 1979 HEALTH AND SANITATION: Septic tank servicing SEPTIC TANK SERVICING: Mandatory municipal site dumping WORDS AND PHRASES: 'Public nuisance' Licensed septic tank waste haulers must deposit all septic tank wastes into an available municipal sewage treatment plant if the plant is located within 15 road miles via the nearest traveled route of any serviced septic tank. A septic tank waste hauler may not transport septic tank wastes to a private dumping site if wastes are collected within a county which has mandated disposal of all wastes at a municipal sewage treatment plant regardless of the distance from a treatment plant. If the county has not adopted such a local regulation or ordinance, then a waste hauler may dump the waste in a private dumping site as provided in section 5(c). A public nuisance is an activity which either is harmful to the public health, creates an interference in the way of travel, affects public morals or prevents the public from the peaceful use of their land and public streets. Honorable Larry E. Burkhalter State Representative The Capitol Lansing, MI 48909 You have requested my opinion on the following questions concerning 1951 PA 243, MCLA 325.281 et seq; MSA 14.434(1) et seq, which regulates persons engaged in servicing or maintaining septic tanks, seepage pits or cesspools: 'In MCLA 325.285, Sections 5(b) and 5(c), reference is made to mandatory municipal site dumping and a 15 road mile radius. 1) Please clarify how this radius should be interpreted by the Department of Natural Resources in reference to a septic tank cleaner. Must the bulk of the waste hauled be within 15 road miles of a municipal site to force dumping of the waste at a municipal site, or is the 15 mile radius to be considered in relation to each stop made by the hauler? 2) If one of the hauler's stops is not within 15 road miles of a municipal site, or a minority of his stops is not within 15 road miles of a municipal site, should a private dumping site be allowed pursuant to Section 5(c) of the Act? 3) If a hauler's route is entirely within a specific county that will not allow private site dumping, does the act justify the allowance of a private dumping site for that hauler in another county?' In particular, your questions concern 1951 PA 243, s 5(b) and (c), which provide: '(b) The licensee shall deposit all wastes removed from any septic tank, seepage pit or cesspool into a municipal sewage treatment plant or other designated location having adequate facilities as may be made available for receiving such wastes by the municipality when located within 15 road miles. The licensee shall make the proper arrangement with the municipality or agency having jurisdiction over the facilities for their use and may be required to pay a reasonable fee for treatment of the wastes. Nothing herein shall prevent a county or district board of health or the health committee of the board of supervisors (1) from adopting a local regulation or ordinance requiring the wastes removed from any septic tank, seepage pit or cesspool, located within the county, by a licensee, to be disposed of into a municipal sewage treatment plant which has been made available for receiving such wastes. (c) In the absence of such municipal disposal facilities, wastes shall be disposed of at locations over 200 yards from any residence, public or private place of business or public gathering place or state highways subject to written approval of the property owner and the local health department having jurisdiction. Said written approvals must be preserved and carried on the vehicle for inspection. All wastes must be so disposed of, as not to create a public nuisance or health hazard. Burial of wastes may be required by the local health department having jurisdiction and subject to their approval.' You first asked whether the bulk of the transported wastes must be within 15 road miles of a municipal treatment plant require the discharge of wastes at the municipal site, or whether the 15 mile distance is to be considered with regard to each stop made by the hauler. Intertwined with that is your second question, which asks '[i]f one of the hauler's stops is not within 15 road miles of a municipal site, or a minority of his stops is not within 15 road miles of a municipal site, should a private dumping site be allowed pursuant to Section 5(c) of the Act?' When a statute is examined, it is a cardinal rule that the legislature must be held to intend the meaning which it has plainly expressed and in such cases there is no room for construction, or attempted interpretation to vary such meaning. Dussia v Monroe County Employees' Retirement System, 386 Mich 244, 249; 119 NW2d 307, 310 (1971). As noted above, 1951 PA 243, s 5(b) states: 'The licensee shall deposit all wastes removed from any septic tank, seepage pit or cesspool into a municipal sewage treatment plant or other designated location having adequate facilities as may be made available for receiving such wastes by the municipality when located within 15 road miles. . . .' (Emphasis Added). The legislature's charge is clear. Licensed septic tank wastehaulers 'shall deposit all wastes removed from any septic tank . . . into a municipal sewage treatment plant,' when an available plant is within 15 road miles of the wastes. The words chosen by the legislature are unequivocal. The use of the word 'shall' means that the statutory command is mandatory. King v Director of Midland County Department of Social Services, 73 Mich App 253; 251 NW2d 270 (1977). The term 'any' in a statute means 'every.' Harrington v Interstate Business Men's Accident Association, 210 Mich 327; 178 NW 19 (1920). Accord, Sifers v Horen, 385 Mich 195, 199 n2; 188 NW2d 623, 624 n2 (1971). The mandatory nature of the 15 mile rule is also emphasized by the prior statutory language. When 1967 PA 77 inserted the 15 road mile language, it repealed the existing 1951 PA 243, s 5(c), which had read: 'Waste from any septic tank, seepage pit or cesspool may be dumped into municipal sewage treatment systems where available, but shall be subject to requirements of said municipality.' (Emphasis added) As is obvious, septic tank wastehaulers were, prior to the 15 road mile provision added by 1967 PA 77, under no compulsion to transport the wastes to municipal treatment plants. There will, of course, be times when a wastehauler services septic tanks both within and without 15 road miles of a municipal treatment plant during a single trip. Based upon the strong legislative command that all wastes from every septic tank shall be deposited in a municipal plant if within 15 miles of the plant, I conclude that the presence of any wastes in a licensed waste removal vehicle from a septic tank within 15 road miles by the nearest traveled route of a municipal treatment plant compels the wastehauler to deposit all wastes at the treatment plant. The 15 road mile provision of 1951 PA 243, s 5 is a triggering mechanism for septic waste treatment. Wastehaulers are not commanded to travel excessive distances to deposit septic wastes at a municipal treatment plant. If, however, the wastehauler comes within 15 miles of a treatment plant on his rounds, the legislature has decided that the trip to the municipal plant, in light of the benefits to the public gained from neutralization of the wastes, is not onerous. Since the wastehauler has made the trip to the municipal plant, it would disserve the public to allow the hauler to simply deposit 'inside 15 mile' wastes (assuming such a division could, in fact, be made) and to then drive away with wastes which will go essentially untreated. It is, therefore, my opinion that licensed septic tank wastehaulers must deposit all septic tank wastes into an available municipal sewage treatment plant, if the plant is located within 15 road miles by the nearest traveled route of any serviced septic tank. You next ask '[i]f a hauler's route is entirely within a specific county that will not allow private site dumping, does the Act justify the allowance of a private dumping site for that hauler in another county?' Your question refers to the final sentence of 1951 PA 243, s 5(b) which authorizes a county or district board of health or the health committee of a county board of commissioners to require the disposal of septic tank wastes from every septic tank 'located within the county' into an available municipal sewage treatment plant. A prime result of such a rule would be that the 15 mile provision would, for that county, be lifted. All septic tank wastes would have to be brought to an available municipal sewage treatment plant. I can see nothing in 1951 PA 243 which excuses that duty should the wastes be transported out of a mandatory municipal treatment county. It is, therefore, my opinion that a septic tank wastehauler may not transport septic tank wastes to a private dumping site if wastes are collected within a county which has mandated disposal of all wastes at a municipal sewage treatment plant regardless of the distance from a treatment plant. If the county has not adopted such a local regulation or ordinance, then a wastehauler may dump the wastes in a private dumping site as provided in Section 5(c). Lastly, you asked for a definition of the term 'public nuisance,' as employed in 1951 PA 243, s 5(c) which controls the placement and operation of private septic waste disposal sites in the absence of available municipal disposal facilities. Specifically, 1951 PA 245, s 5(c) provides: 'All wastes must be so disposed of, as not to create a public nuisance or health hazard. . . .' The term 'public nuisance' has been judicially considered many time. For example, in Kilts v Supervisors of Kent County, 162 Mich 646, 651; 127 NW 821 (1910), the Court stated: 'We are of the opinion that a nuisance involves, not only a defect, but threatening or impending danger to the public, or, if a private nuisance, to the property rights or health of persons sustaining peculiar relations to the same, and that the doctrine should be confined to such cases. While adjudicated cases have been so variable that courts generally regard a technical and comprehensive difinition difficult if not impracticable, the trend of opinion seems to be that the circumstances must be examined with a view to ascertaining whether the alleged condition is one so serious as to interfere with the comfort of life and enjoyment of property, or so threatening as to constitute an impending danger to persons in the enjoyment of their legitimate rights.' It was also held in Edwards v Allouez Mining Co, 38 Mich 46 (1878): '. . . If one man creates intolerable smells near his neighbor's homestead, or by excavations threatens to undermine his house, or cuts off his access to the street by buildings or ditches, or in any other way destroys the comfortable, peaceful and quiet occupation of his homestead, he injures him irrevocably. No man holds the comfort of his home for sale, and no man is willing to except in lieu of it an award of damages. If equity could not enjoin such a nuisance the writ ought to be dispensed with altogether. . . .' Thus, a public nuisance is an activity which either is harmful to the public health, creates an interference in a way of travel, affects public morals or prevents the public from the peaceful use of their land and public streets. Frank J. Kelley Attorney General (1)