STATE ENVIRONMENTAL LAW HANDBOOK SERIES
WISCONSIN ENVIRONMENTAL LAW HANDBOOK Fourth Edition
The Land and Resources Practice Group of Michael Best & Friedrich LLP Edited by Lauren L. Azar and Linda H. Bochert
WISCONSIN by the Land and Resources Practice Group o f
I MICHAEL BEST I & FRIEDRICH LLP
Editors Lauren L. Azar and Linda H. Bochert
Contributors Lauren L. Azar Angela Black Linda H. Bochert David A. Crass Pamela L. Gergens
Milwaukee: 100 East Wisconsin Avenue, Suite 3300 Milwaukee, WI 53202 Phone: (414) 271-6560 Fax: (414) 277-0656 Manitowoc: 1000 Maritime Drive Manitowoc, WI 54220 Phone: (920) 686-2800 Fax: (920) 686-2810 Chicago: Two Prudential Plaza 180 North Stetson Avenue, Suite 2000 Chicago, IL 60601 Phone: (3 12) 222-0800 Fax: (3 12) 222-0818
Brian H. Potts Cynthia E. Smith Anna C. Stem Chad R. Taylor Mark I?. Trocinski
Madison: One South Pinckney Street, Suite 700 P.O. Box 1806 Madison, WI 53701 Phone: (608) 257-3501 Fax: (608) 283-2275 Waukesha: Two Rivenvood Place, Suite 200 N 19 W24 133 Rivenvood Drive Waukesha, WI 53 188 Phone: (262) 956-6560 Fax: (262) 956-6565
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Government Institutes Published in the United States of America by Government Institutes, an imprint of The Scarecrow Press, Inc. A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc. 4501 Forbes Boulevard, Suite 200 Lanham, Maryland 20706 http://www.govinstpress.com/ Estover Road Plymouth PL6 7PY United Kingdom Copyright O 2007 by Government Institutes
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TABLE OF CHAPTERS
Page CHAPTER 1
ENVIRONMENTAL LAW IN WISCONSIN: AN OVERVIEW OF THE GOVERNMENT ROLES ..........................................................................1
CHAPTER 2
WISCONSIN ADMINISTRATIVE PROCEDURES ACT ............................. 15
CHAPTER 3
WISCONSIN ENVIRONMENTAL POLICY ACT ........................................ 33
CHAPTER 4
AIR POLLUTION CONTROL ........................................................................ 47
CHAPTER 5
SURFACE WATER .........................................................................................86
CHAPTER 6
WETLANDS ................................................................................................... 122
CHAPTER 7
GROUNDWATER AND DRINKING WATER ............................................ 140
CHAPTER 8
WISCONSIN POLLUTANT DISCHARGE ELIMINATION SYSTEM (WPDES) PERMIT PROGRAM ....................................................................
CHAPTER 9
150
SOLID WASTE MANAGEMENT ................................................................ 174
CHAPTER 10 HAZARDOUS WASTES AND HAZARDOUS SUBSTANCES ................. 188 CHAPTER 11 CONTAMINATION CLEANUP: REGULATING REMOVAL AND REMEDIATION OF HAZARDOUS SUBSTANCES IN SOIL AND GROUNDWATER .........................................................................................230 CHAPTER 12 NATURAL RESOURCES LAW ...................................................................284 CHAPTER 13 NON-METALLIC AND METALLIC MINING ............................................ 304 CHAPTER 14 UTILITY INFRASTRUCTURE SITING ......................................................330 CHAPTER 15 INSURANCE COVERAGE FOR ENVIRONMENTAL LIABILITIES ....... 340 CHAPTER 16 COMMON LAW LIABILITY .......................................................................346 CHAPTER 17 ENVIRONMENTAL INNOVATION: GREEN TIER .................................. 378 CHAPTER 18 ENVIRONMENTAL ENFORCEMENT .......................................................384
TABLE OF CONTENTS
Pace CHAPTER 1 ENVIRONMENTAL LAW IN WISCONSIN: AN OVERVIEW OF THE GOVERNMENT ROLES ................................................................................... 1 Overview ................................................................................................................ 1 Overview of Wisconsin State Government............................................................ 1 A.
State Legislature (Legislative Branch)....................................................... 2
B.
Governor and Administrative Agencies (Executive Branch) ....................2
C.
Courts (Judicial Branch) ............................................................................3
State Agencies with Environmental Responsibilities........................................3 A.
Wisconsin Department of Natural Resources ........................................ 3
B.
Wisconsin Department of Justice...............................................................5
C.
Other Wisconsin Agencies ......................................................................... 5
Local Government Role in Environmental Regulation .........................................7 A.
Local Government Powers ......................................................................... 7
B.
Smart Growth ............................................................................................. 9
C.
Nuisance Regulation ..................................................................................9
D.
Livestock Facility Siting Process ............................................................. 10
CHAPTER 2 WISCONSIN ADMINISTRATIVE PROCEDURES ACT ................................. 15 Overview ..............................................................................................................15 Applicable Statutes .............................................................................................. 15 Promulgation of Administrative Agency Rules ................................................... 15 A.
Agency Rules ........................................................................................... 15 1.
Definitions of "Rule" ................................................................... 15
2.
Limitations on Administrative Rules ........................................... 16
3.
Formal Rulemaking Process ........................................................ 17
4.
Judicial Review of Rules ............................................................. 21
5.
Informal Guidance by an Agency ................................................ 22
Administrative Hearings ......................................................................................23 A.
Public Informational Hearings ................................................................. 23
B.
Contested Case Hearings .........................................................................24
Judicial Review of Administrative Actions .........................................................26 A.
Procedures ................................................................................................26
TABLE OF CONTENTS (continued) Page B.
Standing ...................................................................................................28
C.
Applicability of Rules of Civil Procedure ............................................... 28
D.
Scope of Review and Deference to Agency Decision .............................29
CHAPTER 3 WISCONSIN ENVIRONMENTAL POLICY ACT ........................................ 33 Overview .............................................................................................................. 33 Applicable Statutes and Administrative Rules ....................................................34 Statutory and Regulatory Framework ..................................................................34 A.
B.
Agency Rules and Type Lists ..................................................................35 1.
Type I Actions..............................................................................35
2.
Type I1 Actions ............................................................................36
3.
Type I11 Actions ...........................................................................37
4.
Type IV Actions........................................................................... 37
................................................................... 38 Contents of an EIS ...............................................................................................39 Challenging WEPA Compliance .........................................................................40 WEPA Case Law .................................................................................................40 A. Early WEPA Cases ..................................................................................41 1. WED1:Standing .......................................................................... 41 WED 11: Alternatives Analysis ....................................................42 2. WED 111: Decision Not to Prepare an EIS ...................................42 3. 4. WED V: Standard of Review .......................................................43 B. More Recent Case Law ............................................................................44 CHAPTER 4 AIR POLLUTION CONTROL ............................................................................47 I. Overview ..............................................................................................................47 Applicable Statutes and Administrative Rules .................................................... 48 I1. I11. NAAQS: The Six Criteria Pollutants................................................................... 49 The Six Criteria Pollutants.......................................................................51 A. 1. Sulfur Dioxide.............................................................................. 51 2. Nitrogen Oxides ...........................................................................52 Particulate Matter......................................................................... 53 3. 4. Ozone ...........................................................................................53 WEPA Purpose-Disclosure
TABLE OF CONTENTS (continued)
Page
IV .
V.
5.
Carbon Monoxide ........................................................................ 54
6.
Lead.............................................................................................. 54
B.
The Current NAAQS Standards (2006) ...................................................55
C.
State and Federal Implementation Plans .................................................. 56
Stationary Source Regulation ..............................................................................60 1.
Major and Minor Sources ............................................................63
2.
Attainment and Non-Attainment Areas .......................................63
3.
Permit Exemptions .......................................................................
4.
Hazardous Air Pollutant Limits ...................................................65
64
B.
New Source Performance Standards (NSPS) .......................................... 65
C.
Prevention of Significant Deterioration and Nonattainment New Source Review (NSR) .............................................................................. 67
D.
NSR and NSPS Modification Rules ........................................................68
1.
A Physical Change: The Routine Maintenance Exclusion ..........69
2.
How to Measure a "Net Emissions Increase" .............................. 74
E.
Determining Non-HAP Operating Permit Limits: BACT. LAER and RACT ................................................................................................76
F. G. H.
PSD Visibility Requirements: BART ......................................................78 Emissions Trading (SO2.NOx and Mercury) ........................................ 79 Hazardous Air Pollutants ......................................................................... 81
Motor Vehicle Regulation....................................................................................84 A.
Control of New Motor Vehicles .............................................................. 84
B.
California Standards................................................................................. 85
CHAPTER 5 SURFACE WATER .............................................................................................86 I.
Overview .............................................................................................................. 86
I1.
Applicable Statutes and Administrative Rules .................................................... 86 A.
International Law .....................................................................................86
B.
Federal Law .............................................................................................87
C.
State Law .................................................................................................87
D.
LocalLaw ................................................................................................ 88
TABLE OF CONTENTS (continued)
I11.
Rights in Surface Water .......................................................................................88 A.
B.
IV .
Key Definitions ........................................................................................88 1.
Public Trust Doctrine ...................................................................88
2.
Navigability..................................................................................89
3.
Ordinary High Water Mark (and Bulkhead Lines) ......................90
. . .
Ownership and Use ..................................................................................91 1.
Lakes and Ponds .......................................................................... 91
2.
Rivers, Streams. Creeks and Ditches ........................................... 95
3.
Flowages ......................................................................................96
4.
RiparianRights ............................................................................ 97
Restrictions Over Surface Waters ........................................................................ 98 A.
Restrictions on Activities In and Near Surface Waters ........................... 99 1.
State Regulation Through Chapter 30..........................................99
2.
Federal Regulation ..................................................................... 104
B.
Dams ...................................................................................................... 109
C.
Surface Water Quantity.......................................................................... 112
D.
1.
Water Withdrawals from Lakes and Streams ............................ 112
2.
Diverting Away Diffuse Surface Water ..................................... 115
3.
Drainage ..................................................................................... 116
4.
Obstructions in Water Flow ..................................................... 118
Shoreland and Floodplain Zoning .......................................................... 119 1.
Shoreland Zoning....................................................................... 119
2.
Floodplain Zoning...................................................................... 120
CHAPTER 6 WETLANDS ......................................................................................................122 I.
Overview ...........................................................................................................122
I1.
Applicable Statutes and Administrative Rules .................................................. 122
I11.
Rights to Wetlands ............................................................................................. 122
IV.
Restrictions Over Wetlands ............................................................................... 124 A.
Federal Regulation of Wetlands ............................................................. 124 1.
Clean Water Act ......................................................................... 124
2.
Federal Regulation of Agricultural Wetlands ............................127
(continued)
Paire B.
C.
State Regulations Over Wetlands .......................................................... 129 1.
CWA 8 401 Water Quality Certification for Wetlands ............. 129
2.
Water Quality Certification for Non-Federal Wetlands............. 133
3.
Applicability of Other Wisconsin Statutes to Wetlands ............ 134
4.
Wetland Mitigation .................................................................... 134
Local Zoning Regulations...................................................................... 135 1.
Wetlands within Cities and Villages.......................................... 136
2.
Wetlands Outside of Cities and Villages ................................... 136
3.
Permitted Uses in Shoreland-Wetlands ..................................... 137
CHAPTER 7 GROUNDWATER AND DRINKING WATER ........................................ 140 I.
Overview............................................................................................................140
I1.
Applicable Statutes and Administrative Rules .................................................. 140
I11.
Rights in Groundwater....................................................................................... 141
IV .
Groundwater Regulations .................................................................................. 141 A.
B.
V.
Groundwater Quality ............................................................................. 142 1.
Groundwater Quality Standards................................................. 142
2.
Wisconsin Pollutant Discharge Elimination System (WPDES) ................................................................................... 143
Groundwater Quantity ...........................................................................144 1.
Groundwater Wells .................................................................... 144
2.
High Capacity Wells .................................................................. 145
3.
Groundwater Quantity in the Great Lakes Basin ....................... 145
Drinking Water Regulations .............................................................................. 146 A.
Federal Safe Drinking Water Act .......................................................... 146
B.
State Drinking Water Standards............................................................. 147
C.
Individual Drinking Water Wells and Larger Drinking Water Systems ..................................................................................................147
D.
Aquifer Storage and Recovery Wells .................................................... 148
E.
Drilling and Abandonment of Drinking Water Wells............................148
CHAPTER 8 WISCONSIN POLLUTANT DISCHARGE ELIMINATION SYSTEM (WPDES) PERMIT PROGRAM .................................................................... 150 I.
Overview ............................................................................................................ 150
TABLE OF CONTENTS (continued)
Page I1.
Applicable Statutes and Administrative Rules .................................................. 150
I11.
Discharge of Pollutants in Surface Waters ........................................................ 151 A.
B.
C.
Point Source Discharges ........................................................................ 152 1.
Establishing Discharge Limits for an Individual Permit............ 153
2.
Permit Application Process........................................................ 159
3.
Monitoring and Ongoing Compliance of Point Source Discharges Under WPDES ........................................................ 160
Non-Point Source Discharges ................................................................ 160 1.
MunicipalPennits ...................................................................... 161
2.
Industrial Permits ....................................................................... 162
3.
Construction Permits.................................................................. 165
4.
Agricultural Permits................................................................... 168
Discharge of Pollutants to Sanitary Sewers ........................................... 171
CHAPTER 9 SOLID WASTE MANAGEMENT .................................................................... 174 Overview ............................................................................................................ 174 Applicable Statutes and Administrative Rules .................................................. 175 Siting and Operation of Landfills: Wisconsin's Unique Two-Track Landfill Siting Process ....................................................................................... 175 A.
NegotiationIArbitrationProcess............................................................. 175
B.
DNR's Technical Review and Approval Process .................................. 178 1.
Initial Site Report ....................................................................... 178
...
2. Feasibility Report ....................................................................... 179 3. Plan of Operation ....................................................................... 181 4. Operating License ...................................................................... 181 C. Solid Waste Management Fees .............................................................. 182 Siting and Operation of Other Solid Waste Facilities........................................ 182
...
A.
Regulated Facilities................................................................................ 182
B.
Waivers and Exemptions ....................................................................... 183
Management of Special Wastes ......................................................................... 184 Recycling ........................................................................................................... 184 A.
Solid Waste Management Policy Hierarchy .......................................... 184
TABLE OF CONTENTS (continued)
Pace
B.
Landfill and Incineration Bans............................................................... 185 1.
Landfill Bans .............................................................................. 185
2.
Incineration Bans ....................................................................... 186
C.
Responsible Units Obligations............................................................... 186
D.
Financial and Technical Assistance ....................................................... 187
CHAPTER 10 HAZARDOUS WASTES AND HAZARDOUS SUBSTANCES................... 188 I.
Overview ............................................................................................................188
I1.
Applicable Statutes. Regulations and Case Law................................................189 A.
B.
I11.
Hazardous Waste Management.............................................................. 189 1.
Federal ........................................................................................ 189
2.
State............................................................................................ 189
Hazardous Substance Management ....................................................... 189 1.
Federal........................................................................................ 189
2.
State............................................................................................ 190
Hazardous Waste Management.......................................................................... 190 A.
Definition of Hazardous Waste..............................................................192 1.
Listed Hazardous Wastes ........................................................... 193
2.
Characteristic Hazardous Wastes ............................................... 194
3.
Mixture Rule ..............................................................................196
4.
Derived-From Rule .................................................................... 197
B.
Hazardous Waste Generators ................................................................. 197
C.
Hazardous Waste Transporters ..............................................................200
D.
Hazardous Waste Treatment. Storage and Disposal Facility Standards................................................................................................201 1.
Hazardous Waste Facility Licenses ...........................................202
2.
Exempt Facilities .......................................................................203
3.
General Facility Standards.........................................................203
4.
Preparedness and Prevention .....................................................205
5.
Contingency Plan and Emergency Procedures ..........................205
6.
Hazardous Waste Facility Closure.............................................207
7.
Long-Term Care........................................................................2 0 8
TABLE OF CONTENTS (continued)
Page 8.
IV .
Closure and Long-Term Care Financial Responsibility ............ 209
E.
Land Disposal Restrictions ....................................................................210
F.
Enforcement ...........................................................................................212 1.
Inspections .................................................................................212
2.
License Revocations ..................................................................213
3.
Enforcement ..............................................................................2 1 4
4.
Civil and Criminal Penalties ......................................................214
5.
Citizen Suits ...............................................................................215
Hazardous Substance Regulation....................................................................... 215 A.
Hazardous Substance Definitions .......................................................... 216 .. 1. Federal Definitions.....................................................................216 2.
B.
C.
D.
E.
..
Wisconsin's Definitions............................................................. 217
Emergency Planning and Community Right to Know Act (EPCRA) ................................................................................................218 1.
Federal Program.........................................................................218
2.
Wisconsin Emergency Management.......................................... 221
Toxic Substances Control Act (TSCA)..................................................221 1.
Federal Program .........................................................................221
2.
Wisconsin's Regulation of PCBs ...............................................222
Federal Insecticide. Fungicide and Rodenticide Act (FIFRA) ..............223
1.
Federal Program .........................................................................223
2.
Wisconsin's Regulation of Pesticides ........................................ 223
Underground Storage Tank (UST) Program ..........................................225 1.
Federal Program ......................................................................... 225
2.
Wisconsin's UST Program ........................................................ 226
CHAPTER 11 CONTAMINATION CLEANUP: REGULATING REMOVAL AND REMEDIATION OF HAZARDOUS SUBSTANCES IN SOIL AND GROUNDWATER .........................................................................................230 I.
Introduction ....................................................................................................... 2 3 0
I1.
Applicable Statutes and Administrative Codes.................................................. 231
I11.
Applicability of Wisconsin and Federal Remediation Laws .............................232 A.
Overview of Wisconsin Law Governing Remediation.......................... 233
TABLE OF CONTENTS (continued)
IV.
B.
Overview of Federal Law Governing Remediation ............................... 234
C.
The Remediation Process in Wisconsin; Interaction of State and Federal Remediation Programs..............................................................234 1.
To Whom Do The Laws Apply? ................................................237
2.
To What Do The Laws Apply? .................................................. 240
3.
When Do the Laws Apply? ........................................................242
4.
What Type of Liability Do Remediation Laws Impose? ........... 243
The Process of Cleaning Up a Contaminated Site .............................................258 A.
Reporting Spills of Hazardous Substances ............................................258
B.
State and Federal Agency Authority Over Contaminated Sites: Investigation and Cleanup of Contaminated Sites .................................260
C.
Cleanups Under the Spill Law ............................................................... 261
D.
E.
1.
Immediate and Interim Actions Under the Spill Law ................261
2.
Site Investigation and Remedial Actions Under the Spill Law ............................................................................................262
3.
Case Closure Under the Spill Law ............................................. 267
4.
Voluntary Party Liability Exemption Under the Spill Law .......268
Cleanups Under CERCLA .....................................................................269 1.
CERCLA Removal Actions .......................................................270
2.
CERCLA Remedial Actions ......................................................270
3.
Completion of Remediation and No Further Action Letters Under CERCLA .........................................................................273
4.
Voluntary Cleanups Under CERCLA .................................. 274
Funding Cleanups ..................................................................................275 1.
66
2.
Grant and Reimbursement Programs ........................................ 277
Revolving Funds" ..................................................................... 275
CHAPTER 12 NATURAL RESOURCES LAW ..................................................................... 284 I.
Overview ............................................................................................................284
I1.
Applicable Statutes. Administrative Rules and Case Law.................................284 A.
Public Lands...........................................................................................284
B.
Endangered Species ...............................................................................284
C.
Wildlife Management ...........................................................................2 8 5
TABLE OF CONTENTS (continued)
Page I11.
Discussion of Applicable Statutes and Case Law .............................................. 285 A.
Public Lands.........................................................................................2 8 5
B.
Endangered and Threatened Species .....................................................289
C. IV .
1.
Federal Endangered Species Act ........................................289
2.
Wisconsin Endangered and Threatened Species Act ................. 294
Wildlife Management ............................................................................ 300
Conclusion .........................................................................................................301
CHAPTER 13 NON-METALLIC AND METALLIC MINING ........................................ 304 Overview ............................................................................................................ 304 Applicable Statutes and Administrative Rules ..................................................305 Non-Metallic Mining Regulation .......................................................................305 A.
Statewide Reclamation Standards........................................................306
B.
County Regulation of Non-Metallic Mining..........................................308
C.
Permit for Non-Metallic Mining ............................................................309
D.
Exemptions ............................................................................................310
E.
Registering a Non-Metallic Mineral Deposit .........................................312
F.
Enforcement and Administration ...........................................................313
Metallic Mining Regulation in Wisconsin ......................................................... 314 Three Sets of Regulations ...................................................................... 314 1.
Exploration.................................................................................314
2.
Prospecting.................................................................................315
3.
Mining ........................................................................................ 316
Metallic Mining Permitting Procedures ................................................. 318 1.
Notice of Intent ..........................................................................318
2.
Permit Applications and Hearing ...............................................319
Mining Moratorium Law .......................................................................322 Annual Review.......................................................................................323 Metallic Mining Enforcement ................................................................324 1.
Enforcement by the DNR ...........................................................324
2.
Citizen Suit Provision ................................................................325
3.
Dewatering Damage Claims ...................................................... 325
TABLE OF CONTENTS (continued)
V.
. .
..
Current Topics in Mining...................................................................................326 A.
The Law of Non-Conforming Uses and Non-Metallic Mining .............326
B.
Diminishing Asset Rule .........................................................................328
C.
Proposed Rule Changes ......................................................................... 329
CHAPTER 14 UTILITY INFRASTRUCTURE SITING ........................................................330 Overview............................................................................................................330 Applicable Statutes. Administrative Rules and Legislative Acts ...................... 330 Different Types of Utility Entities .....................................................................331 Overview of PSC Procedures for Public Utility Infrastructure Review and Approval ............................................................................................................331 A.
Certificate of Public Convenience and Necessity ..................................332
B.
Certificate of Authority.......................................................................... 334
Recent Legislative Acts Affecting PSC and DNR Utility Project . . Pernutting...........................................................................................................334 A.
2003 Wis. Act 89 ...................................................................................335
B.
2005 Wis. Act 29 ................................................................................... 337
C.
2005 Wis. Act 24 ...................................................................................338
CHAPTER 15 INSURANCE COVERAGE FOR ENVIRONMENTAL LIABILITIES ........340 I.
Overview............................................................................................................340
I1.
Applicable Case Law .........................................................................................340
I11.
Discussion of Issues and Applicable Case law .................................................. 341
Iv.
A.
Comprehensive General Liability Policies and Excess Policies............ 341
B.
Are Cleanup Costs "Damages"?
C.
............................................................342 Has a "Suit" Been Filed Requiring a Defense? .....................................342
D.
Did Property Damage Occur During the Policy Period? .......................343
E.
Does the Pollution Exclusion Preclude Coverage?............................... 344
F.
Pollution Legal Liability and Other Specialty Insurance Policies .........345
Conclusion .........................................................................................................345
CHAPTER 16 COMMON LAW LIABILITY .........................................................................346
I.
Overview............................................................................................................ 346
I1.
Applicable Case Law ......................................................................................... 348
TABLE OF CONTENTS (continued)
I11.
IV .
V.
Discussion of Applicable Case Law ...............................................................348 A.
Negligence .............................................................................................348
B.
Nuisance.................................................................................................350
C.
PrivateNuisance ....................................................................................351
D.
Public Nuisance .....................................................................................353
E.
Trespass..................................................................................................354
F.
Strict Liability for Ultrahazardous Activity ........................................354
G.
Misrepresentation...................................................................................356
H.
Torts of Non-Disclosure ........................................................................357
I.
Statutory and Regulatory Disclosure Requirements .............................. 358
Remedies Under Common Law ......................................................................... 359 A.
Compensatory Damages ........................................................................359
B.
Punitive Damages ..................................................................................361
C.
Injunctive Relief.....................................................................................362
Potential Defenses to Common Law Liability................................................... 362 Statute of Limitations............................................................................. 362 Lack of Foreseeability of Harm .............................................................363 Lack of Actual Damage or Injury ..........................................................365 Economic Loss Doctrine........................................................................ 367 CausatiodIntervening Superseding Causes ...........................................369 Contribution ...........................................................................................370 Contributory Negligence........................................................................371 Coming to the Nuisance .........................................................................371 Contractual Provisions and Due Diligence in Property Transactions.... 372 Public Policy .......................................................................................... 373
VI.
Conclusion ......................................................................................................... 374
CHAPTER 17 ENVIRONMENTAL INNOVATION: GREEN TIER .................................... 378 I.
Overview ............................................................................................................378
I1.
Applicable Statutes ............................................................................................378
I11.
Statutory Framework .........................................................................................378
TABLE OF CONTENTS (continued)
B.
IV .
1.
Tier I...........................................................................................379
2.
Tier I1 ......................................................................................... 380
3.
Charters ......................................................................................381
4.
Federal Recognition of Green Tier ........................................381
Limited Audit Liability ...................................................................382
Conclusion ......................................................................................................... 383
CHAPTER 18 ENVIRONMENTAL ENFORCEMENT ......................................................... 384 I.
Overview............................................................................................................384
I1.
Applicable Statutes ............................................................................................ 385
I11.
Statutory and Regulatory Framework ................................................................386
IV .
Agency Procedures ............................................................................................ 388 A.
DNR Enforcement Procedures ............................................................... 388
B.
DOJ Enforcement Procedures ................................................................ 390
C.
Civil Penalties and Supplemental Environmental Projects (SEPs)........391
D.
EPA Enforcement and Coordination with DNR .................................... 392
V.
Environmental Limited Liability Policy ............................................................ 393
VI.
Citizen Enforcement ..........................................................................................394
VII.
Environmental Enforcement Case Law .............................................................396 A.
Forfeiture Considerations....................................................................... 396
B.
Corporate Officer Liability ....................................................................397
C.
Definition of "Discharge" and Scope of Liability Under Spill Law......397
D.
Statute of Limitations.............................................................................398
E.
Estoppel..................................................................................................398
F.
Authority Conveyed by Wis. Stat. ยง 30.03 ........................................398
TABLE OF CASES ................................................................................................................... 400 TABLE OF ACRONYMS .........................................................................................................414 INDEX OF WORDS AND PHRASES .....................................................................................418
FOREWORD TO THE FOURTH EDITION
The Fourth Edition of the Wisconsin Environmental Law Handbook is the combined product of attorneys in the Land and Resources Practice Group at Michael Best & Friedrich LLP. With offices in Milwaukee, Madison, Manitowoc, Waukesha and Chicago, Michael Best is a fullservice business firm serving clients in Wisconsin, the Midwest region and nationwide. The attorneys in the Land and Resources Practice Group provide comprehensive environmental, real estate, public utilities and agribusiness legal services. Much has changed in environmental law in the 12 years since the Third Edition (1995) was published. Over time, so many environmental regulatory programs were added to Wisconsin Statutes chapter 144 that the chapter outgrew itself. It has been divided into separate program chapters and, along with former chapter 147, moved and renumbered to chapters 281 through 299. Metallic mining issues have faded from the spotlight, and non-metallic mining regulation has taken its place. Streamlining legislation focused on navigable waterway and air permit programs of the Wisconsin Department of Natural Resources (DNR) resulted in adoption of a comprehensive set of administrative rules for activities affecting navigable waterways and additional substantive and procedural constraints on DNR's implementation of the air program. Controversies over and changes in the U.S. Environmental Protection Agency's (EPA) administration of the Federal Clean Air Act continue to significantly impact how DNR administers this program. The U.S. Supreme Court decision in a key federal wetland jurisdiction case led to Wisconsin legislation confirming state authority to regulate non-federal wetlands. DNR mirrors EPA's emphasis on stormwater management. The WPDES Permit program remains mature and stable, with recent attention directed at listing additional exceptional and
outstanding resource waters. The science of soil and groundwater remediation continues to advance and cleanup requirements are more predictable. Management of solid and hazardous waste is better understood and more routine. The pendulum on environmental insurance recovery has swung closer to the middle between the interests of insureds and insurers. Inter-agency coordination on issues involving overlapping jurisdiction is back on the agenda. In the early 1980s, Wisconsin addressed groundwater quality protection by assigning specific roles to different state agencies. In the 1990s7soil and groundwater cleanup responsibilities were split between DNR and the Department of Commerce. In the early 2000s, in the context of renewed investment in utility infrastructure construction projects, the Wisconsin Legislature directed DNR and the Public Service Commission to coordinate project reviews. Wisconsin's agricultural operations are receiving increased environmental regulatory attention for air, waste and water management. Two decades after adopting its unique landfill siting law, Wisconsin enacted legislation that creates a state framework for local siting of livestock facilities. Wisconsin's reputation for innovation is in the spotlight again for its nationally recognized Green Tier program. Designed to encourage and reward regulated entities for delivering superior environmental performance, this program signals a culture shift away from traditional command and control regulation to a more collaborative approach between regulator and regulated. In addition to updating the procedural and substantive areas covered in the Third Edition (1995), the Fourth Edition includes new chapters on public utility infrastructure siting and environmental innovation. Website and internet resources have also been added. Each chapter begins with a list of the applicable statutes, administrative rules and key cases, followed by a discussion of how the laws work in practice. To aid the reader, the Handbook now contains a
Table of Chapters, Table of Contents, Table of Cases, Table of Acronyms, and Index of Words and Phrases. As the primary environmental agency in Wisconsin, the DNR is discussed throughout the Handbook. Other agencies with some environmental responsibilities are noted as appropriate in various Chapters. This Handbook is designed to provide a basic overview of environmental law and regulation in Wisconsin for Wisconsin lawyers who do not regularly practice in the area, environmental lawyers in other states who want to understand how things work in Wisconsin, business owners, plant managers and compliance officers who deal with environmental regulatory requirements among their many other duties, and others who are looking for a resource to help them understand the environmental regulatory framework. It is not a comprehensive treatise and should not be used as a substitute for independent legal advice to address specific fact situations. If you need legal advice, you must consult an attorney.
ABOUT THE AUTHORS MICHAEL BEST & FRIEDRICH LLP LAND AND RESOURCES PRACTICE GROUP Michael Best & Friedrich LLP's Land and Resources attorneys provide legal services counsel in all areas of real estate, project development, land use, agribusiness, construction, environmental and utility law. Our breadth of experience in the following land-related fields enables us to address highly complex, multi-faceted issues. Agribusiness, Food and Fiber Construction and Infrastructure Energy and Utility Environmental Land Use Condemnation Real Estate Tax Assisted Development Retail Development Residential Development Telecommunications With nearly 50 professionals at the cutting edge of our fields, it is our priority to know and fully understand our clients' business by keeping abreast of industry trends and practices. We are regular presenters and panelists at industry and legal seminars and conferences. We actively participate in environmental public policy development by serving on advisory committees appointed by the Governor, the Secretaries of DATCP, DNR and DOR, and the Legislature.
Lauren L. Azar
Lauren joined the Madison office of Michael Best in 1992, practicing in the areas of environmental, public utilities, land use, government relations and administrative law. Lauren has been involved with a fully array of environmental projects, including the following: environmental cleanups including petroleum, VOC and PCB contaminated sites, transactions involving insurance coverage and/or Brownfields grants for contaminated properties, wastewater permits, stormwater permits, permits for developments involving wetlands, multiparty cleanup sites, and business transactions with contaminated properties. Her Master's Degree in Water Resources Management provides her with a sound technical background with which she approaches all environmental problems. In 2007, Lauren was named in The Best Lawyers in America in the area of energy law. Lauren has also been recognized by Madison Magazine as a leading lawyer in environmental law. At this writing, Lauren is leaving Michael Best to serve a 6-year term as a Commissioner on the Public Service Commission of Wisconsin. Angela Black ablack@,michaelbest.com Michael Best, Madison: 6081257-3501
Angela Black, an associate in the firm's Madison office, represents both individuals and businesses in all aspects of land development, including in the areas of real estate, land use, environmental and construction law. Her practice includes all aspects of land development projects from negotiating and drafting purchase and development agreements to obtaining land use and regulatory approvals. Ms. Black's development work includes projects involving Brownfields redevelopment including securing required state and federal environmental agency approvals, obtaining alternative governmental funding related to remediation of contamination and negotiating and drafting environmental indemnification and remediation contracts. She is a frequent seminar presenter and author regarding topics related to her various practice areas and is 2002 graduate of the University of Wisconsin Law School. Linda H. Bochert lhbochert@,michaeIbest.com Michael Best, Madison: 6081257-3501
A partner in the firm's Madison office, Linda Bochert joined Michael Best in 1991, after 17 years with the State of Wisconsin Departments of Natural Resources and Justice. At the Department of Justice, she headed the Environmental Protection Unit that represents DNR in court. During her 15 years at DNR, her roles included enforcement attorney in the WPDES Permit program, advisor to the Secretary and Natural Resources Board on environmental regulation and policy development, and DNR representative on Legislative Council Committees that developed air, landfill siting, and groundwater legislation. Her practice is focused on environmental law and includes wastewater permitting, stormwater management, air permitting, wetlands regulation, navigable waters (Chapter 30 and Section 404) and Public Trust Doctrine issues, conservation easements, Green Tier certifications, and large facility, landfill, pipeline and power plant siting. Linda has been listed in The Best Lawyers in America since 1997. Since
2001, her peers have voted her among the best in environmental law in Madison Magazine's survey of Madison's best lawyers. In 2005 and 2006, she was selected as one of the 25 Top Female Wisconsin Super Lawyers by Super Lawyers magazine; and in 2006 she was listed by Super Lawyers as one of the top 50 lawyers in the state. Linda is a 1974 graduate of the University of Wisconsin Law School. David A. Crass dacrass@,michaelbest.com Michael Best, Madison: 6081257-3501
Dave Crass, a partner in the firm's Madison office, joined Michael Best in 1991, currently serves as the Managing Partner of the Madison office, and from 2003-2005 was the Chair of the firm's Land and Resources Practice Group. Dave is a cum laude graduate of the University of Wisconsin Law School and is a member of the Order of the Coif. Dave is the coordinator of the firm's Agribusiness, Food and Fiber Practice Group and is the current chair of Lex Mundi's Agribusiness Practice Group, an international association of law firms. Dave focuses his law practice primarily in the area of environmental/regulatory law, land use and agricultural law and in that role has secured and negotiated federal, state and local approvals for a number of projects, including industrial facilities, renewable energy projects and livestock operations. Dave has represented clients in a number of multi-party remediation sites including state and federal-lead Superfund sites, manufactured gas plant waste sites, impacted sediment cleanups, emergency spill response and removal actions. He has assisted both buyers and sellers in assessing environmental issues in real estate and corporate transactions, Brownfields redevelopments, and has also counseled lenders on various environmental issues. Dave is listed as one of The Best Lawyers in America for environmental law published by WoodwardNhite, Inc. (2003-2007), selected from 2001-2006 by Madison Magazine as one of Madison's best lawyers for environmental law and listed in Corporate Counsel's Best Lawyers in environmental law (20032005). In 2006, Dave was named a Super Lawyer by Super Lawyers magazine. Dave is listed in Madison's Who's Who of Professionals, (2005-2006 edition) and in 2005 was listed as one of Greater Madison's most civic-minded business leaders by In Business magazine's 14th Annual Executive Register. Pamela L. Gergens
Pamela Gergens, previously a partner in the firm's Land and Resources practice group, focused her practice on environmental law, including Brownfields redevelopment and assisting clients in all aspects of environmental investigation and remediation projects, including obtaining purchaser protection under Wisconsin's Voluntary Party Program; defending clients in CERCLA cost recovery and contribution actions and related state law actions; assisting clients in permitting and other regulatory matters under RCRA, the Clean Air Act, the Clean Water Act, and state counterparts; performing due diligence and negotiating environmental representation and warranties for business transactions; and advising clients on general real estate matters. Ms. Gergens is a 1995 graduate of the University of Wisconsin Law School.
Brian H. Potts bhvotts@,michaelbest.com Michael Best, Madison: 6081257-3501
Brian Potts is an associate at Michael Best, having joined the firm in the Madison office in June 2006. Brian practiced with a large law firm in Kentucky before obtaining a masters degree in Energy Law from the University of California, Berkeley School of Law (Boalt Hall). During his time at Berkeley, Brian took engineering, physics, business and law classes from three of Berkeley's graduate schools. He has authored numerous articles that have been published in law journals at Harvard, Berkeley, and N.Y.U. Brian provides permitting, compliance and litigation legal services under the Clean Air Act, the Clean Water Act, RCRA, EPCRA and CERCLA. He is a 2004 cum laude graduate of Vermont Law School. Cynthia E. Smith cesmith~michaelbest.com Michael Best, Milwaukee: 414/27 1-6560
A partner in the firm's Milwaukee office, Cindy joined Michael Best in 1993 and is a member of the firm's Land and Resources Practice Group. Cindy concentrates her practice in environmental litigation with particular emphasis in cost recovery efforts and defense of clients from whom third parties seek damages for environmental claims. Her cost recovery litigation experience includes litigation and mediation of multi-party cost recovery and contribution actions under the Comprehensive Environmental Response, Compensation and Liability and state law equivalents and common law contribution actions. Cindy has extensive litigation experience in the issues surrounding recovery from insurers for environmental claims. Her toxic tort experience includes defense of lawsuits involving drinking water, lead paint ingestion and mold exposure. In addition to her litigation work, Cindy assists clients with corporate and real estate transactions, environmental compliance auditing, remediation of contaminated sites, and municipal law issues involved in site remediations. She received her bachelor of arts degree with honors fiom Kenyon College in 1990, where she was a member of Phi Beta Kappa. Cindy earned her law degree, cum laude, at Marquette University Law School, where she served as an editor of the Marquette Law Review. Anna C. Stem acstern~michaelbest.com Michael Best, Madison: 6081257-3501
Anna Stern is an associate in the firm's Madison office. She represents individuals and businesses in the areas of real estate, construction and environmental law. She is a 2006 graduate of the University of Wisconsin Law School. Chad R. Taylor
Chad Taylor, previously a partner and member of the firm's Land and Resources Practice Group, concentrated his practice in the areas of land use and statellocal permitting, regulatory approval
and compliance, government relations and lobbying, providing strategic counseling on legal, legislative, administrative and regulatory matters to corporate, municipal and trade association clients. He also practiced in the areas of administrative, public contract, election, ethics and campaign finance law. Mr. Taylor formerly served as Chief Legal Counsel to the Office of the Governor, Chief Legal Counsel and Senior Policy Advisor to the Office of the Assembly Speaker and as an intern for the Wisconsin Supreme Court. He has also served as Chairperson of the Wisconsin Pardon Advisory Board and as a member of the Wisconsin Claims Board and the Governor's Taskforce on Terrorism Preparedness. Mr. Taylor has been recognized by Madison Magazine (2003, 2005) as a leading lawyer in election/campaign financelpolitical law. He is a 1996 graduate of the University of Wisconsin Law School. Mark F. Trocinski
Mark Trocinski is a former associate in the Madison Office of Michael Best & Friedrich LLP. In 2005, Mark obtained a J.D. with distinction from the University of Iowa College of Law and a masters of business administration from the Tippie School of Management at the University of Iowa. Mark has a B.A. in Political Science and Economics from Grinnell College.
ACKNOWLEDGMENTS
The authors thank our librarian Louise Jellings for her invaluable research assistance and thorough cite-checking; Julie Bretl, Pauline Clevenger, Jackie Groom, Lee Gurrath, Michele Leighton, Tanisha LeMire, Karyn Running and Sally Stengel for their tireless typing, formatting and production work; and Lauren Azar and Linda Bochert for overall coordination, review and editing. The members of the Land and Resources Practice Group at Michael Best & Friedrich LLP also acknowledge the fine work on the Third Edition of the members of the environmental law group at DeWitt Ross & Stevens S.C., whose format and content have aided us in producing the Fourth Edition. If any of our text is reminiscent of theirs, we hereby give credit where credit is due.
CHAPTER 1 ENVIRONMENTAL LAW IN WISCONSIN: AN OVERVIEW OF THE GOVERNMENT ROLES Linda H. Bochert Chad R. Taylor I. OVERVIEW Government regulation of the environment is a continually evolving area of the law that affects almost every aspect of individual, private and public sector activity. This evolution occurs as government and citizens balance the dual goals of protecting our natural resources and meeting the economic demands of modern society This chapter identifies the key portions of Wisconsin government involved in establishing, implementing and enforcing environmental laws and regulations, and explains their respective roles and authorities, to provide context for the chapters that follow. Subsequent chapters cover the Wisconsin Administrative Procedures Act provisions as they affect the development and practice of environmental law in Wisconsin, the Wisconsin Environmental Policy Act, substantive (federal and state) environmental regulatory programs, common law provisions applicable to environmental law issues, and environmental enforcement mechanisms. Environmental law in Wisconsin is a product of federal and state legislative acts, implemented by federal and state administrative agencies, with some local regulation by counties, cities, towns and villages. This overview begins with a brief description of Wisconsin's three branches of government, followed by a description of the key environmental state regulatory agencies and their respective responsibilities, and closes with a brief description of the local governmental role in environmental regulation.
11. OVERVIEW OF WISCONSIN STATE GOVERNMENT Wisconsin's three branches of state government are briefly described below.
Chapter 1 Environmental Law in Wisconsin: An Overview of the Government Roles
A. State Legislature (Legislative Branch)
The Wisconsin Legislature is divided into two houses: the Senate and Assembly. The Senate consists of 33 Senators, the Assembly of 99 Representatives. The Senate and Assembly divide themselves into committees. While the names and scope of the committees change from time to time, at this writing the committees that deal with environmental matters are as follows: 1. Senate committees with environmental jurisdiction: Natural Transportation; Energy, Utilities and Information Technology.
Resources
and
2. Assembly committees with environmental jurisdiction: Forestry; Natural Resources; Energy and Utilities. The Legislature has two basic roles with respect to environmental law: first, to enact the environmental statutes and, second, to review and approve administrative agency rules written to implement the environmental statutes. B. Governor and Administrative Agencies (Executive Branch)
In Wisconsin, the Governor is the chief of the executive branch. The Governor appoints the members of the Cabinet, usually called Secretaries, to manage the administrative agencies. State administrative agencies have authority to: (1) promulgate rules to implement statutes enacted by the Legislature; and (2) render decisions applying the statutes and their rules to factual situations before them.' Wisconsin state agencies possess only those powers expressly provided to them by state ~ t a t u t e . ~
' Wis. Stat. ch. 227. See Wisconsin Citizens Concernedfor Cranes & Doves v. DNR, 2004 WI 40,114,270 Wis. 2d 318,677 N.W.2d 612; Wisconsin Builders Ass'n v. DOT, 2005 WI App 160,19,285 Wis. 2d 472,702 N.W.2d 433.
Chapter 1 Envil*onmentaILaw in Wisconsin: An Overview of the Government Roles
C. Courts (Judicial Branch)
Wisconsin has a three level court system: the trial or circuit court; the court of appeals; and the supreme court. Appeal to the court of appeals is of right; appeal to the supreme court is dis~retionar~.~ Early Wisconsin court decisions actively developed the environmental common law with respect to water rights and related matters involving navigable waterways. Much of that law has now been incorporated into Wis. Stat. chs. 30 and 31, dealing with navigable waterways and dams, and the administrative rules the Wisconsin Department of Natural Resources (DNR) has adopted to implement those statutes. Common law is also a factor in imposing liability for pollution under tort doctrines. A person who causes damage by polluting activities may be liable under the theories of trespass, negligence, nuisance (public or private) and strict liability. Those theories are frequently pursued in the area of toxic tort litigation, which is discussed in greater detail in Chapter 16. More recently, with the dominance of statutory and administrative rule provisions in the area of environmental law, the Wisconsin courts' role has focused more on the scope and exercise of agency authority in the implementation and enforcement of environmental law. 111. STATE AGENCIES WITH ENVIRONMENTAL RESPONSIBILITIES A. Wisconsin Department of Natural Resources
The DNR is the primary environmental regulatory agency in Wisconsin. Unlike many states that divide environmental regulatory responsibilities among several different state agencies, Wisconsin has vested nearly all such jurisdiction in DNR. DNR's program responsibilities
Wis. Stat. 9 809.62(1). "Supreme Court review is a matter of judicial discretion, not of right, and will be granted only when special and important reasons are presented."
Chapter 1 Envirwnmental Law in Wisconsin: An Overview of the Government Roles
include all the traditional environmental pollution abatement and control programs as well as fisheries, wildlife, parks, forestry and related natural resources programs. DNR was created in 1967 as part of a major restructuring of Wisconsin's administrative agencies. This reorganization moved into the newly created DNR the traditional conservation programs (fish, game, forestry, public lands) of the Conservation Department, the nascent environmental regulatory programs of the Department of Resource Development, the navigable waterway regulatory program of the Public Service Commission, and various resources and public health programs assigned to other state agencies.4 The chief executive officer of DNR is called the Secretary. The Secretary is appointed by the
c over nor,^
with the advice and consent of the state Senate, and serves as a member of the
Governor's cabinet. A 7-member, part-time citizen advisory board, called the Natural Resources Board (NRB or the Board), oversees the agency. NRB members are appointed by the Governor to staggered 6-year terms, also with the advice and consent of the state
en ate.^ The Board meets
monthly in public session, provides policy direction for the programs administered by the DNR, approves agency land acquisitions, and authorizes the enactment of agency rules. DNR is organized along both geographic and programmatic lines. In addition to field offices located throughout the state, DNR has a headquarters (sometimes called the Central Office) located in Madison, Wisconsin. In general, policy and budgets are established by the six principal Divisions and subordinate Bureaus and Sections located in the Central Office; program 1967 Wis. Laws ch. 75. Wis. Stat. jj 15.05(2)(c). The NRB was originally empowered to appoint the Secretary; however, that authority was eliminated in 1995 Wis. Act 27. This same legislation eliminated a unique office in the Department of Justice called the Public Intervenor, created at the time of DNR's creation, to represent public rights in environmental issues. Elimination of the NRB appointment authority and the Office of the Public Intervenor remain controversial in Wisconsin. Legislation to undue these changes is periodically introduced, but to date has not passed. Wis. Stat. jj 15.34. This statute provides in part that three of the members must be from the northern part of the state and that no member of the Board may hold a permit from the DNR.
Chapter 1 Envirotzmetztal Law in Wiscotzsin: An Overview o f the Government Roles
responsibilities are implemented on the ground in the five Regional offices and subordinate Service Centers located around the state. A DNR organizational chart is shown as Table 1. DNR Regional offices are located as shown on Figure 1. DNR Service Center locations can be found on the DNR website at http://www.dnr.state.wi.us/or~caer/cs/ServiceCenter/locations.htm.
B. Wisconsin Department of Justice The Wisconsin Department of Justice (DOJ), also known as the Office of the Attorney General or AG's Office, includes an Environmental Protection Unit that represents the state by prosecuting civil and criminal violations referred to it by DNR. DNR in-house staff attorneys provide internal program legal advice, oversee the rulemaking process and conduct administrative hearings. DOJ attorneys, called assistant attorneys general (AAGs), handle all judicial proceedings including civil and criminal prosecutions, declaratory judgment actions, challenges to agency rules, and judicial review of agency decisions. See Chapter 18 for a more detailed discussion of DNR and DOJ enforcement authority and procedures.
C. Other Wisconsin Agencies The Wisconsin Department of Commerce (Commerce) administers regulatory programs related to the transportation and storage of all flammable and combustible liquids.7 Commerce regulates underground and above-ground storage tanks,' provides cost sharing through the Petroleum Environmental Cleanup Fund (PECFA),~and cooperates with DNR in the remediation of low and medium risk petroleum-contaminated sites.''
Wis. Stat. 8 101.09(3); Wis. Admin. Code ch. Comm 10. Wis. Admin. Code ch. Comm 10. wis. Stat. $9 101.143 and 101.144; Wis. Admin. Code ch. Comm 47. 'O Wis. Stat. ji 101.144(3m); Wis. Admin. Code ch. Comm 46.
Chapter 1 Environmental Law in Wisconsin: An Overview of the Government Roles
The Department of Health and Family Services (DHFS), as the state's lead agency for public health," administers various programs related to environmental health. DHFS regulates the handling of radioactive materials12 and tests for radiation emissions within 20 miles of any nuclear power plant.'3 DHFS also regulates all asbestosI4 and lead-based paint'5 activities and is involved in the process of setting groundwater quality standards.16 The Department of Agriculture, Trade and Consumer Protection (DATCP) administers several conservation programs to protect Wisconsin's land, water and plant resources. DATCP works with county conservation officials and farmers to minimize the impact farming practices have on the soil and water.I7 DATCP also prepares an Agricultural Impact Statement (AIS) whenever a public utility construction project involves the potential for condemnation of more than five acres of farm land18 and assists in the proper disposal of hazardous chemicals by providing grant funding for local Clean Sweep programs across the state.19 Wisconsin Emergency Management, a division of the Department of Military Affairs, coordinates the state's response to disasters and hazardous chemical ~ ~ i land l sworks ~ ~ with local emergency planning committees in each of the state's 72 counties and coordinates the state's 8 regional Level A hazardous materials response teams.
Wis. Stat. 9 250.03(1)@). Wis. Stat. ch. 254; Wis. Admin. Code ch. HFS 157. l3 Wis. Stat. 9 254.41; Wis. Admin. Code ch. HFS 158. l4 Wis. Stat. ch. 254; Wis. Admin. Code ch. HFS 159. IS Wis. Stat. ch. 254; Wis. Admin. Code chs. HFS 163, 181 and 182. l6 Wis. Stat. $$ 160.07-160.13. l7 Wis. Stat. ch. 92; Wis. Admin. Code ch. ATCP 50. IS Wis. Stat. 9 32.035. l9 wis. Stat. $9 93.55 and 93.57; Wis. Admin. Code ch. ATCP 34. 20 Wis. Stat. ch. 166. 'I
l2
Chapter 1 Environmental Law in Wisconsin: An Overview of the Government Roles IV. LOCAL GOVERNMENT ROLE IN ENVIRONMENTAL REGULATION
While the primary environmental regulatory enforcement occurs at the state level in Wisconsin, regulation of the environment can be conducted by each level of governmentfederal, state and local. Local government's role with respect to land use and related decisions is increasing, but local regulation will always have to be consistent with federal and state regulati~n.~' It is a fundamental tenet of our legal system that federal and state law preempt local laws if the two conflict. A. Local Government Powers Wisconsin recognizes four types of local government: the county, the city, the village and the town. Each type of local government is created by state statute, and each has powers and responsibilities distinct from the powers and responsibilities of the others. Counties derive their authority from Wis. Stat. ch. 59. The state has 72 counties, each of which is treated as an administrative body of the state for purposes of governmental affairs.22 This means that a county cannot refuse to obey a state directive and must serve the purposes of the state. However, in addition to state objectives, counties are able to pursue their own objectives as well. Although they do not have any authority under the Wisconsin Constitution's "Home Rule" Amendment, counties have been given certain powers via statute.23Among the most important of the statutory powers held by counties is the authority to pass county zoning ordinances. Counties have the option of zoning any area within the county except land inside cities or villages or land within towns if the town board has not accepted the county zoning For example, in Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (1991), the United States Supreme Court held that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), did not preempt local ordinances that regulated the use of pesticides. In response, the Wisconsin Legislature enacted legislation barring local governments from regulating pesticides unless certain stringent prerequisites are met. See Wis. Stat. ยง 94.701. 22 O'Donnellv. Reivitz, 144 Wis. 2d 717,424 N.W.2d 733 (Ct. App. 1988). 23 See generally Wis. Stat. ch. 59.
2'
Chapter 1 Environnrental Law in Wisconsirz: An Overview of the Government Roles
o r d i n a n ~ eIn . ~ addition ~ to this discretionary zoning authority, counties are required to zone all shoreland areas in their respective
jurisdiction^.^^
Cities have much broader authority to enact zoning ordinances within their limits than do counties.26Cities have the authority to appoint a plan commission, which has the authority to regulate and restrict the size and dimensions of buildings, population density of areas, and the location and uses of land and improvements in a city?' Additionally, cities have the authority to institute zoning ordinances beyond their own borders in some cases, in a process called extraterritorial zoning.28 Villages, like cities, are incorporated municipalities. This means that their power to regulate matters of local concern is based on the "Home Rule" provision of the Wisconsin ~ o n s t i t u t i o n . ~ ~ The courts have held that this power applies so long as "no legislative enactment of state concern and uniform application exists."30 In this way, cities and villages are similar. Additionally, villages are similar to cities in that they have all of the same zoning powers that cities have.31 The final form of local government in the state is town government. This form is found in unincorporated areas of the state. Towns do not wield as much power as cities, villages or even counties. However, a town does have the ability to adopt its own zoning ordinance after it has taken the necessary steps to exercise village powers.32 In such case, the town has the ability to zone its territory as if it were a village.33
Wis. Stat. (j 59.69. Wis. Stat. (j 59.692 (lm). 26 See Wis. Stat. 8 62.23. 27 Wis. Stat. (j 62.23 (7). 28 Wis. Stat. (j 62.23 (7a). 29 Wis. Const. art. XI, (j 3(1). 30 See C ity ofMadison v. Schultz, 98 Wis. 2d 188,196,295 N.W.2d 798 (Ct. App. 1980). 31 Wis. Stat. 8 61.35. 32 Wis. Stat. $9 60.10(2)(c) and 60.22(3). 33 Wis. Stat. (j 60.62. 24 25
Chapter 1 En vir-onmentul Lu w in Wisconsin: An Overview of the Government Roles
B. Smart Growth Local government bodies should structure their zoning regulations according to a comprehensive plan.34A comprehensive plan is a general plan for land use extending years into the future. Wisconsin has long advocated the use of comprehensive plans by local government units, but in 1999 the Legislature made the comprehensive plan more than just an option with the enactment of 1999 Wis. Act 9, commonly referred to as the "Smart Growth" law. The Smart Growth statute requires that every local government authority have a comprehensive plan approved by January 1, 2010.35 If a local government authority does not ratify a plan by that point, it loses the authority to regulate land use, including the ability to enact zoning ordinances, engage in subdivision regulation, and regulate official mapping. Each Smart Growth plan must contain nine planning elements: Issues and Opportunities, Housing, Transportation, Utilities and Common Facilities, Agricultural Natural and Cultural Resources, Economic Development, Intergovernmental Cooperation, Land
Use
and
~ m ~ l e m e n t a t i o Any n . ~ ~land use decision made after the implementation of the Smart Growth plan must be consistent with the plan. Zoning and land use decisions made by local units of government are an important consideration in environmental law. So too, then are the Smart Growth plans that these governmental units ratify and which guide future land use decisions. C. Nuisance Regulation
Many local governmental authorities have some type of general ordinance prohibiting nuisances. Many types of environmental pollution activities can fall under the broad definition of "nuisance". Prior to the enactment of many of the state and federal environmental protection
Bell v. City ofElkhom, 122 Wis. 2d 558,364 N.W.2d 144 (1985). Stat. $ 66.1001. 36 Wis. Stat. $ 66.1001(2). 34
35 Wis.
Chapter 1 Environntental Law in Wisconsin: An Overview of the Government Roles
statutes and regulations in the last half of the twentieth century, actions based on the common law principles of trespass and nuisance were the most effective way for property owners to address damages they suffered due to environmental pollution. This option is now available to any "person, county, city, village or
D. Livestock Facility Siting Process Much attention has been focused in recent years on the role of local government in decisions to site new or expand existing livestock facilities, as statewide environmental advocacy groups have combined forces with local residents to challenge town zoning decisions for these facilities. In April 2004, the Livestock Facility Siting ~ a w put ~ ' into place a unique relationship between local government decision-making and statewide standards and oversight. The Siting Law has three key components. First, to provide consistency in siting decisions across the state, the law provides that if the local municipality chooses to regulate livestock facilities it must apply a set of statewide standards promulgated as administrative rules by DATCP in its local approval process.39 Second, to provide greater certainty as to the timing and outcome of the local decision, the local government must meet expedited timelines for action. The law allows the local government almost no room for discretion, requiring approval of the application if it is complete and authorizing denial of the application only if there is "clear and convincing evidence" that it does not comply with the requirements.40 The third component of the law is based on Wisconsin's pioneering approach to landfill siting which utilizes a statewide Waste Facility Siting Board to resolve siting disputes between
Wis. Stat. ch. 823. 2003 Wis. Act 235, codified at Wis. Stat. $ 93.90. 39 Wis. Admin. Code ch. ATCP 5 1. 40 Wis. Stat. Ej 93.90(4)(d); Wis. Admin. Code $8 ATCP 51.30 and 51.34. 37
38
Chapter 1 Environnzental Law in Wisconsin: An Overview of the Governnzent Roles
landfill owners/operators and local m~nici~alities.~' The Livestock Siting Review Board conducts a de novo review of the decision of the local government. The right of appeal to the Siting Review Board is limited to the livestock operator and any person who lives or owns property within two miles of the livestock operation, and the grounds for appeal are limited to allegations that the local government either applied the state standards incorrectly or violated the local procedural requirements.42 At this writing, because actual operation of the Siting Review Board is very new, it is too early to tell how well the process will work. Three meetings were held in 2006, and several were cancelled due to lack of business to conduct. Monthly meetings scheduled for 2007 will provide more insight into the effectiveness of this approach to balancing the concerns of citizens and local governments with the goal of protecting and promoting Wisconsin's livestock industry.
4'
Discussed in Chapter 9. Stat. $ 93.90(5).
42 Wis.
State of Wisconsin DEPARTMENT OF NATURAL RESOURCES
GOVERNOR
OFFICE OF THE SECRETARY
4 I
NATURAL RESOURCES BOARD
****
Legislative Liaisons
Secretary Deputy Secretary Executive Assistant
Bureau of Management and Budget Office of Diversity Affairs
I
I DIVISION O F AIR AND WASTE Air Management Remediation and Redevelopment Waste Management Cooperative Environmental Assistance
DIVISION OF LAND Endangered Resources ~acilitiesand Lands Parks and Recreation Wildlife Management
NORTHERN REGION
I
DIVISION O F FORESTRY Forest Management Forest Protection Forestry Services Forest Science Office
WEST CENTRAL REGION
Bureau of Legal Services
NORTHEAST REGION
1 1
I
DIVISION O F CUSTOMER AND EMPLOYEE SERVICES
DIVISION OF ENFORCEMENT AND SCIENCE
Technology Services Finance Human Resources Co~mnunicationand Education Customer Service and Licensing Community Financial Assistance
Integrated Science Services Law Enforcement Office of Energy
DIVISION O F WATER
Groundwater Fisheries Management and Habitat Protection Watershed Management
I
SOUTHCENTRAL REGION
11
SOUTHEAST REGION
Figure 1
State of Wisconsin Department of Natural Resoi~rces
NORTHERN
-
Regional Boundaries
I) Region Offices
WAnfER
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WEST CENTRAL RU=RE
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CHAPTER 2 WISCONSIN ADMINISTRATIVE PROCEDURES ACT Linda H. Bochert Chad R. Taylor I. OVERVIEW This chapter discusses the Wisconsin Administrative Procedures Act, Wis. Stat. ch. 227, as it affects three key areas of environmental law: promulgation of administrative agency rules, administrative decisions and hearings, and judicial review of agency decisions. Practitioners familiar with the rules of civil procedure will do well to learn the provisions of the administrative procedures act as well. While there are similarities, the unique requirements of Wis. Stat. ch. 227 can be a trap for the unwary and lead to an inadequate administrative record or the inability to challenge a final agency action for failure to meet applicable procedural requirements. 11. APPLICABLE STATUTES Wis. Stat. ch. 227: Administrative Procedure and Review 111. PROMULGATION OF ADMINISTRATIVE AGENCY RULES A. Agency Rules Administrative rules are promulgated at both the federal and state levels. Although state and federal rules bear some similarities, there are also significant differences between them. This chapter focuses primarily on Wisconsin agency rules. 1. Definitions of "Rule" Wisconsin law dictates that an agency must promulgate as a rule "each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement
Chapter 2 Wisconsin A dnzitzistrative Procedrires Act
or administration of that statute."" Wisconsin statutes define the term "rule as": "[A] regulation, standard, statement of policy or general order of general application which has the effect of law and which is issued by an agency to implement, interpret or make specific legislation enforced or administered by the agency or to govern the organization or procedure of the agency ....,944 However, certain "actions or inactions of an agency" are excluded from the definition of "rule", including any which:45 Is a decision or order in a contested case Prescribes measures to minimize the adverse environmental impact of bridge and highway construction and maintenance Establishes a technical standard for abating nonpoint source water pollution Is a definition or list of areas of non-attainment Establishes a list of substances in groundwater and their categories Establishes an inventory Establishes a hazard ranking Establishes water quality objectives for priority watersheds or priority lakes
Limitations on Administrative Rules State agencies are subject to several limitations on the rules that they can create. For example, Wisconsin agencies are prohibited from promulgating any rule which conflicts with state law.46 This seemingly straight-forward statutory directive is not always followed and has been cited by state legislators in situations in which they believe an agency has exceeded its
43 W ~ SStat. . $
227.10. See Dane County v. H&SS Dep't, 79 Wis. 2d 323,255 N.W.2d 539(1977); Citizensfor Sensible Zoning, Inc. v. DNR, 90 Wis. 2d 804,814,280 N.W.2d 702 (1979); Milwaukee Area Joint Plumbing Apprenticeship Comm. v. DILHR, 172 Wis. 2d 299,493 N.W.2d 744 (Ct. App. 1992); Heritage Credit Union v. O f J e of Credit Unions, 2001 WI A p p 213,247 Wis. 2d 589,634 N.W.2d 593. 44 Wis. Stat. $ 227.01(13). 45 Wis. Stat. $8 227.01(13)(a)-(zu). 46 Wis. Stat. $ 227.10(2).
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authority as well as by individual parties subject to agency decision-making and enforcement proceedings. A second limitation is that no administrative agency can regulate the activities of another agency or promulgate a rule that binds another agency, unless the promulgating agency has express statutory authority to do so. Such a rule, promulgated without specific statutory authority, would be unenforceable. In George v. ~ c h w a r z ? ~ a recent case that stated this principle, the question was whether the internal documents written for the probation and parole division of the Department of Corrections bound an Administrative Law Judge from the Division of Hearings and Appeals to a particular course of action. The court held that since the Legislature delegated some authority to the Department of Corrections and some to the Division of Hearings and Appeals, but did not grant either entity the authority to bind the other, the rules promulgated by the Department of Corrections could not bind the Administrative Law Judge from the Division of Hearings and ~ ~ ~ e a l s . ~ *
3. Formal Rulemaking Process State agencies have the authority, pursuant to Wis. Stat. ch. 227, to initiate the promulgation of a rule (assuming the rule does not violate the restrictions stated above). Often this process begins with a directive from the Legislature, but requests for the promulgation of rules also come from courts and members of the general
TO adopt a rule, state agencies have for many
years been directed to accomplish these prerequisite steps: 1. Prepare a draft of the rule, as proposed, along with a summary of it and a fiscal estimate of the costs of the rule.50 2. Issue public notice and conduct a public hearing on the rule.51 George v. Schwan, 2001 WI App 72,242 Wis. 2d 450,626 N.W.2d 57. Id. 49 Wis. Stat. jj 227.12. 50 Wis. Stat. jj 227.14.
47 48
Chapter 2 Wisconsin Administrative Procedures Act 3. Issue a small business impact statement along with the public notice (if the proposed rule, was likely to impact Wisconsin's small b u s i n e ~ s e s ) . ~ ~
4. Submit the proposed rule for review staff of the Legislative 5. Submit the rule for review by legislative
committee^.'^
6. File the rule with the Office of the Secretary of State and the Office of the Revisor for publication.55 ~ ~substantial ~ procedural additions to the rulemaking In 2004 the Jobs Creation A C made
requirements of Wis. Stat. ch. 227. This legislation grew out of an effort to streamline administrative agency processes, particularly those of DNR, to address a perceived imbalance between the dual goals of appropriate regulation and business and economic development. The new provisions impose on the agencies an obligation to provide more explanatory and comparative information about the proposed rule than had been required in the past so the rule's impacts are more clearly articulated before adoption. Under this legislation certain agencies, including DNR, must also do the following when proposing a new rule or a revision to an existing rule: 1. Include in the statement of the scope the rule a summary and preliminary comparison of existing or proposed federal regulations on the same subject.57
2. Prepare an economic impact report if petitioned to do so by certain interested parties.58 3. Submit the proposed rule to the Department of Administration (DOA) for review when an economic impact report has been prepared.59
4. Prepare more detailed information for inclusion in the required rule analysis and fiscal e~timate.~'
'' Wis. Stat. $8 227.16-227.18. Wis. Stat. 9 227.1 14. Wis. Stat. 9 227.15. 54 Wis. Stat. jj 227.19. Wis. Stat. $9 227.20-227.21. 56 2003 Wis. Act 118. 57 Wis. Stat. 9 227.135(1)(f). 58 Wis. Stat. 9 227.137. 59 Wis. Stat. 9 227.138. 52
53
''
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5. Include additional information in the final draft rule report submitted to the Legislature (as required by 227.19) such as: economic impact report, DOA review of economic impact report, detailed information on rule's purpose, summary of public comments to rule, and changes to analysis or fiscal e~tirnate.~' Rules proposed by DNR are first reviewed in public session by the agency's citizen advisory board, the Natural Resources Board, before they are scheduled for public hearing. Following the statutorily required public notice and public hearing, the Natural Resources Board reviews the public comments received before approving adoption of the proposed rule. The Natural Resources Board may direct DNR staff to revise the proposed rule to address public concerns. Once the Natural Resources Board approves adoption, like all proposed administrative rules, DNR rules are then subject to legislative review. The agency submits the rule, as proposed, to the presiding officers of the Senate and Assembly. These officers then refer the proposed rule to the committee of their respective house that has jurisdiction over the proposed rule.62The standing committees review the rule for a period of up to 30 days; they may hold a public hearing on it or not. Parties who object to proposed rules will typically seek such a legislative hearing in order to bring additional pressure on the agency to make requested changes. The standing committees have the options of objecting to, approving or proposing modifications to the proposed rule. These modifications and objections are usually based on the lack of statutory authority of the agency to enact the rule or the failure of the rule to track the intent of the Legislature when it passed the
The standing committees may use their authority to informally pressure the
agency to make desired changes. If that occurs with DNR rules, the rule and requested revisions are then considered by the Natural Resources Board. If agreement can be reached, the standing committee will approve the rule. However, if agreement cannot be reached, and the standing Wis. Stat. (jยง 227.14(2)(a)3.-6. and 227.14(4)@)3. Wis. Stat. $5 227.19(3)(intro.), (3)(a)-(b) and (3)(cm). 62 Wis. Stat. (j 227.19(2). 63 Wis. Stat. 9 227.19(4). 60
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committee officially objects to a proposed rule or part of a proposed rule, the proposed rule is 30 submitted to the Joint Committee for Review of Administrative Rules ( J C R A R ) . Within ~~
days, if JCRAR disagrees with the standing committee's objection, it has the authority to overrule that decision (nonconcur); JCRAR may also propose other amendments to the proposed rule or sustain an ~bjection.~' If JCRAR objects to the proposed rule and the agency still declines to make requested revisions, JCRAR is required to submit a bill supporting its objection to both the Senate and Assembly. If either the Senate or Assembly does not pass the bill supporting JCRAR's objection, the rule as proposed by the agency goes into effect.(" Wisconsin also has a system to allow for the Legislature (as represented by JCRAR) to review existing rules regardless of how long they have been in effect, and suspend an existing rule for any reason that a legislative committee could have used to object to it prior to its promulgation.67If JCRAR does this, it must introduce a bill to repeal the rule in both the Senate and Assembly and both houses must pass it or the rule stays in effect.68Challenged as a violation of the constitutional separation of powers, this after-the-fact review procedure was upheld by the Wisconsin Supreme If the need for an administrative rule is necessary and immediate, agencies can promulgate an "emergency rule." Emergency rules are exempt from the notice, hearing and publication requirements "if preservation of the public peace, health, safety or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the
Wis. Stat. 9 227.19(5)(a). Wis. Stat. $ 227.19(5). 66 Wis. Stat. $9 227.19(5)(d)-(0. 67 Wis. Stat. 9 227.26 68 Wis. Stat. 9 227.26(2). 69 ~ a r t i n e v. z DILHR, 165 Wis. 2d 687,699,478 N.W.2d 582 (1992). 65
Chapter 2 Wisconsin A dnzinistrative Procedures A ct
procedures" applicable to non-emergency rules." The agency must still hold a public hearing within 45 days of promulgating the emergency rule.71Emergency rules may only be in effect for
~ emergency 150 days, subject to a maximum 120-day renewal authorized by J C R A R . ~While rules are not encouraged, DNR frequently uses the emergency rule authority to adopt hunting and fishing regulations because of their seasonal nature. In 2003-2005, the agency used emergency rule making authority extensively to enact new administrative rules to put navigable waterway protections into effect in time for the summer construction and boating season. Additionally, Wis. Stat.
5 227.24(3m1~~ requires review by
the Small Business Regulatory
Review ~ o a r of d ~any ~ rule with significant impact on small businesses. The Review Board is authorized to see that administrative rules imposed by state agencies comply with the federal Regulatory Flexibility Act of 1980 requirements.75The Review Board reviews new rules which may adversely affect small businesses and may suggest less restrictive alternatives and/or creative, flexible means for businesses to comply with the agency requirements whenever possible. The Review Board may also review existing rules and can prepare a report to the JCRAR if the rules are found to be unnecessarily burdensome to small business.
4. Judicial Review of Rules Administrative rules promulgated at both the state and federal agency levels are subject to review by the courts.76 In Wisconsin, the exclusive77 means of challenging the rule and its
Wis. Stat. Ij 227.24(1)(a). Wis. Stat. Ij 227.24(4). 72 Wis. Stat. Ij 227.24 (l)(c). 73 Created by 2003 Wis. Act 145. 74 The Board consists of six representatives of small business, eight state agency representatives and one representative each from the State Senate and Assembly. A small business is defined as a business entity, including its affiliates, that is independently owned and operated and employs 25 or fewer full-time employees or has gross annual sales of less than $5,000,000. 75 Regulatory Flexibility Act of 1980,5 U.S.C. Ij 601, et seq. 76 Wis. Stat. Ij 227.40(4); 5 U.S.C. Ij 704. 70
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validity is an action for declaratory judgment in circuit c0u1-t.'~A rule can be challenged on three
1. The rule violates a constitutional guarantee;" 2. The rule goes beyond the authority granted to the agency by statute;'' or
3. Statutory rulemaking procedures were not followed when the rule was promulgated. One of the Constitutional guarantees that parties have suggested is violated by certain agency rules is the guarantee of due process. In a challenge to a state agency rule, the Wisconsin Supreme Court held that a trial court had the authority to look outside of the rulemaking record created by the agency and consider other evidence when determining whether the requirements of due process were satisfied.82 Wisconsin agency rules may also be challenged in the context of agency enforcement proceedings, but only if the party bringing the challenge had no prior administrative or judicial right to challenge the rule and did not, in fact, do so.83 5. Informal Guidance by an Agency The process for promulgating a rule can be rather lengthy. Additionally, not everything an agency may want to communicate needs to be in the form of a rule. For these and other reasons,
Stat. # 227.40(2) lists several exceptions wherein particular courts are granted jurisdiction to rule on the validity of an administrative rule if such ruling is material to the subject matter of the case at hand. 78 Wis. Stat. 3 227.40(1). 79 Wis. Stat. ยง 227.40(4). A rule was challenged on due process grounds but upheld in Liberty Homes, Inc. v. DILHR, 136 Wis. 2d 368,401 N.W.2d 805 (1987); see also WisconsinHosp. Ass'n v. Natural Resources Bd., 156 Wis. 2d 688,457 N.W.2d 879 (Ct. App. 1990). For example, agencies were held to have exceeded their statutory authority in State v. Outagamie County Bd. of Adjustment, 2001 WI 78, 60-61,244 Wis. 2d 613,628 N.W.2d 376; Seider v. O'Connell, 2000 WI 76,236 Wis. 2d 21 1, T[ 28,612 N.W.2d 659; Oneida County v. Converse, 180 Wis. 2d 120,127,508 N.W.2d 416 (1993); Aetna Life Ins. Co. v. Mitchell, 101 Wis. 2d 90, 113-14,303 N.W.2d 639 (1981); State v. DILHR, 77 Wis. 2d 126, 136,252 N.W.2d 353 (1977); Department ofRevenue v. Howick, 100 Wis. 2d 274,283-84,303 N.W.2d 381 (1981); DeBeck v. DNR, 172 Wis. 2d 382,493 N.W.2d 234 (Ct. App. 1992) (rules challenged on basis that agency exceeded its statutory authority partially vacated). 82 Liberty Homes, Inc. v. DILHR, 136 Wis. 2d 368, 379,401 N.W.2d 805 (1987). 83 Wis. Stat. 5 227.40(2)(a). 77 Wis.
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agencies publish statements of policy and general applicability in several forms besides as rules. It is not uncommon for an administrative agency to create some form of document to provide informal guidance on how to comply with the policy of that agency. For example, DNR uses internal guidance memoranda to direct DNR staff in order to achieve statewide consistency in implementing statutory and administrative rule provisions, as well as to inform the public of how the rules and statutes are being implemented. While DNR puts a great deal of time and energy into the creation of these documents, they are not subject to the breadth or depth of scrutiny of formal rules. DNR increasingly provides explanations of regulatory programs, guidance documents, and other reference material on its website at http://dnr.wi.gov. However, if an agency issues informal guidance and attempts to enforce it as if it carried the force of law, the agency will fail. Wisconsin courts have sustained challenges to agency actions taken pursuant to informal guidance. Agencies are required to promulgate rules that clearly state agency policy and dictate potential agency action before they are able to enforce such rules.84
IV. ADMINISTRATIVE HEARINGS Issues before the DNR may be subject to one of two different hearing procedures: (1) an informal public hearing; or (2) a formal contested case hearing. A. Public Informational Hearings
Public informational hearings are held by DNR to take public comments from interested persons on a decision DNR is considering making. For example, a public informational hearing
State ex rel. Clifton v. Young, 133 Wis. 2d 193,200,394 N.W.2d 769 (Ct. App. 1986) (memorandum announcing general policies and specific criteria was a "rule" and was invalid for lack of proper adoption and promulgation); Schoolway Transp. Co. v. Division ofMotor Vehicles, 72 Wis. 2d 223,237-38,240 N.W.2d 403 (1976). See aIso Mack v. DHFS, 231 Wis. 2d 644,648,605 N.W.2d 651 (Ct. App. 1999) (DHFS Overpayment Policy declared rule); and Heritage Credit Union v. Ofice of Credit Unions, 2001 WI App 213,n 24,247 Wis. 2d 589,634 N.W.2d 593 ("Since promulgation without compliance with statutory rulemaking procedures is one ground for declaring a rule invalid under $ 227.40,$ 227.40 logically encompass[es] policies or other statements, standards or orders that meet the definition of rule under Wis. Stat. $227.01(13) but have not been promulgated as required by Wis. Stat. $ 227.10"). s4
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may be held as part of the public comment period to gather comment on a proposal to issue a Wisconsin Pollutant Discharge Elimination System (WPDES) Permit for a wastewater discharge, to gather public comment on a proposal to issue a permit under Wis. Stat. ch. 30 involving a project that may impact a navigable waterway, or to scope the issues to be considered in an Environmental Impact Statement to be prepared on a proposed project. Informational hearings are conducted by a DNR employee, often an attorney in the DNR Bureau of Legal Services. Interested persons may appear in person or in writing to ask questions about or to present their position on the matter under consideration; those who appear are not under oath and are not subject to cross-examination. DNR will summarize the written and oral comments received at the informational hearing, but does not typically prepare a transcript or other formal record.
B. Contested Case Hearings Contested case hearings are much more formal than public informational hearings. These hearings are like a civil court trial. Witnesses appearing at a contested case hearing are under oath and subject to cross-examination. Contested case hearings on DNR matters are presided over by an Administrative Law Judge (ALJ) employed by the Department of Administration Division of Hearings and Appeals, an independent agency charged to conduct such hearings for DNR and other state agencies." DNR has adopted administrative rules that specify procedures that must be performed in DNR contested case hearings.86 These rules are in addition to the statutory procedures governing all contested case hearings in
is cons in.^^
Whether a party has a right to request a contested case hearing may be mandated or limited by statute. Challenges to DNR decisions to issue permits or approvals in many of the environmental regulatory programs are identified as contested case hearings in those specific Wis. Stat. (j 227.43. Wis. Admin. Code ch. NR 2. 87 Wis. Stat. Ej$ 227.44-227.46.
85
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statutes. For example, a challenge to DNR's decision to issue a WPDES Permit is required to be conducted as a contested case hearingR8as is a challenge to DNR's decision to issue an air construction or operation permit89 or to an individual permit affecting navigable waterways under Wis. Stat. ch. 30.~' In some cases, the Legislature has restricted the right to a contested case hearing before the agency. For example, a DNR decision to approve a solid waste landfill plan of operation or operating license is specifically exempted from the right to a hearing9' However, in both cases, DNR has the discretion to hold a hearing under the provisions of Wis. Stat. 5 289.07(1).
A person has the right to a contested hearing in Wisconsin under the provisions of Wis. Stat. ยง 227.42.92They must petition the agency and meet the following standing requirements:
1. A substantial interest o f the person is injured in fact or threatened with injury by agency action or inaction;93 2. There is no evidence of legislative intent that the interest is not to be protected;94 3. The injury to the person requesting a hearing is different in kind or degree from the injury to the general public caused by the agency action or inaction;95and 4. There is a dispute of material fact.96 In conducting the hearing, the ALJ is authorized to use, but not required to strictly apply, the rules of evidence.97 The degree of forgiveness or rigor with which the evidentiary rules are applied will depend on the sophistication of the parties and whether all parties are represented by Wis. Stat. 9 283.63. 9 285.8 1. Wis. Stat. $ 30.209(2). " Wis. Stat. $9 289.3O(ll) and 289.31(6). 92 Milwaukee Metro. Sewerage Dist. v. DNR, 126 Wis. 2d 63,375 N.W.2d 649 (1985). Wis. Stat. 9 227.51 provides a separate and distinct ground for a contested case hearing. See Metropolitan Greyhound Mgmt. Cop. v. Wisconsin Racing Bd., 157 Wis. 2d 678,460 N.W.2d 802 (Ct. App 1990); LeCIair v. Natural Resources Bd., 168 Wis. 2d 227, 483 N.W.2d 278 (Ct. App. 1992); WasteMgmt. of Wis., Inc. v. DNR, 128 Wis. 2d 59,381 N.W.2d 318 (1986). 93 Wis. Stat. 9 227.42(1)(a). 94 Wis. Stat. 9 227.42(1)(b). 95 Wis. Stat. $ 227.42(1)(c). 96 Wis. Stat. 9 227.42(1)(d). 97 Wis. Stat. $ 227.45. 89 W ~ SStat. .
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counsel. ALJs have subpoena power, and for DNR hearings of any complexity the ALJ will hold a prehearing conference to identify the parties and the issues and establish a prehearing discovery schedule. A formal administrative record is created, consisting of the testimony, exhibits, and briefs submitted by the parties. The statutes authorize DNR to designate the ALJ as the final decision-maker, which is what the agency does in the vast majority of cases.98 If the ALJ is so designated, the ALJ will prepare a formal decision consisting of findings of fact, conclusions of law and an order.99However, DNR may also direct the ALJ to conduct the hearing and either prepare a proposed decision to be returned to DNR for final approval and issuance, or to conduct the hearing and return the record to the agency for final determination without an intervening proposed decision.Io0 V. JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS A. Procedures Final agency actions which adversely affect the substantial interests of any person, whether by action or inaction, are subject to judicial review in the circuit court except in a few limited
circumstance^.'^'
The party seeking the judicial review must file a petition for judicial review
with the court and serve the agency and all parties to the agency proceeding within 30 days after the date of the decision.lo2 The petition served on the agency must be served on an agency
Wis. Stat. 5 227.46. Stat. 5 227.47. '%any Public Service Commission adjudicatory hearings are conducted by an ALJ who creates a record and provides it, without a proposed decision, to the Commissioners for review and determination of their decision. lo' Wis. Stat. 9 227.52. 102 Before filing a petition for review, parties in contested cases may also file petitions for rehearing at the agency under the procedure provided in Wis. Stat. 5 227.49. The purpose of rehearing is to give the agency an opportunity to correct an error of law or a defect in the factual record without the need for judicial intervention. If a rehearing petition is filed, the time for filing a petition for judicial review is delayed until after the agency has finally disposed of the rehearing petition. Wis. Stat. ยง 227.53(1)(a)2. Parties who file petitions for review prior to the agency's final disposition of a petition for rehearing risk dismissal of their petition on grounds that it was prematurely filed. 98
" Wis.
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official.lo3Failure to file and serve the petition within the 30-day period deprives the court of jurisdi~tion.'~~ Within 20 days of the filing of a petition, the agency must file a responsive pleading. Within 30 days of the filing, the agency must provide the administrative record on which the agency action was based to the court that will be hearing the case.lo5The judicial review of the agency decision is similar to an appellate review in that it is confined to the certified record, with no opportunity for testimony or submission of additional evidence. Institution of a proceeding for judicial review does not stay enforcement of the decision being reviewed, although the circuit court may grant a stay on grounds it deems proper (except as prohibited by statute).lo6 Because judicial review is limited to the record created before the agency, parties often consider the benefits of requesting a contested case hearing in order to create a more extensive record. Doing so is not a prerequisite to judicial review and the value of doing so may depend on whether the issue at hand is largely factual or legal. Importantly, filing a petition for a contested case hearing does not suspend the 30-day period during which the petition for judicial review must be filed, and many parties chose to file for both in order to preserve both options. All agencies, including the DNR, are required to include in decisions arising out of a contested case a notice of the right of parties to the proceeding to seek an appeal.'07 This notice must include the number of days that the parties are allowed to file their appeals and who the responsive parties should be on appeal. DNR7s historic practice has been to include notice of
'03 Wis. Stat. $ 227.53(1)(a)l. See Weisensel v. DHSS, 179 Wis. 2d 637,508 N.W.2d 33 (Ct. App. 1993) (handdelivery of petition to the agency's attorney failed to satisfy $ 227.53(1)(a)l). '04 Cudahy v. Department ofRevenue, 66 Wis. 2d 253,224 N.W.2d 570 (1974). Failure to properly serve all parties of record also deprives the court of jurisdiction. 'OS See Wis. Stat. $9 227.53(2) and 227.55. '06 Wis. Stat. $ 227.54. '07 Wis. Stat. $ 227.48(2); Collins v. Policano, 231 Wis. 2d 420, 605 N.W.2d 260 (Ct. App. 1999).
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appeal rights in all agency decisions it considers final, whether or not they are the result of a contested case hearing.
B. Standing Wisconsin applies a two-part test in determining whether a party has standing sufficient to petition for judicial review: (1) the agency decision must cause injury to the petitioner; and (2) the interest alleged must be protected by law.'08 Wisconsin courts generally take a liberal approach to legal standing to challenge agency decisions; although the court will require that the injury alleged be direct and sub~tantial,'~~ and the type of interests the statute was intended to
C. Applicability of Rules of Civil Procedure Where they do not conflict with an express provision of Wis. Stat. ch. 227, the Rules of Civil Procedure are applicable in ch. 227 reviews."' Summary judgment is not authorized in judicial review cases.l12 The reviewing court is limited to the administrative record and may take testimony only in extraordinary circumstances, e.g., in cases of alleged irregularities in procedure before the agency, the court may take testimony prior to the date set for hearing.'13 If before the
log State Public Intervenor v. DNR, 184 Wis. 2d 407,4 15-16, 5 15 N.W.2d 897 (1994); Waste Mgmt. of Wis., Inc. v. DNR, 144 Wis. 2d 499,505,424 N.W.2d 685 (1988); Wisconsin'sEnvtl. Decade, Inc. v. PSC, 69 Wis. 2d 1, 10,230 N.W.2d 243 (1975); Eller Media, Inc. v. Division ofHearings &Appeals, 2001 WI App 269, fl7,249 Wis. 2d 198, 637 N.W.2d 96. Io9 For example, in Fox v. DHSS, 112 Wis. 2d 514,527,334 N.W.2d 532 (1983), the court held that the presumed psychological effects on inmates if a prison were built outside of Milwaukee County were "too remote" to confer standing on the Milwaukee County district attorney. Similarly, Town ofDelavan v. City ofDelavan, 160 Wis. 2d 403,466 N.W.2d 227 (Ct. App. 1991), the court rejected the town's standing because its injuries were based on "hypothetical and conjectural" events; see also Eller Media, 249 Wis. 2d 198,fl7 (citing Town ofDelavan but finding "injury in fact"). ' l o In Waste Mgmt. of Wis., Inc. v. DNR, 144 Wis. 2d 499,424 N.W.2d 685 (1988), the Wisconsin Supreme Court declined to hear a challenge by a landfill operator to a DNR decision granting a solid waste approval to a competitor on the grounds that the solid waste statutes protect the environment not economic interests. See also Fox v. DHSS, 112 Wis. 2d at 527. Wagner v. State Med. Examining Bd., 181 Wis. 2d 633,639-41,511 N.W.2d 874 (1994); State ex rel. Town of Delavan v. Circuit Court, 167 Wis. 2d 719,73 1,482 N.W.2d 899 (1992). "2 Wisconsin3 Envtl. Decade, Inc. v. PSC, 79 Wis. 2d 161, 169,255 N.W.2d 917 (1977). 'I3 Wis. Stat. 5 227.57(1).
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date set for hearing the court is requested to take additional evidence and is satisfied that the additional evidence is material and that there were good reasons it was not presented to the agency, the court may not take the testimony itself but may order that the agency take the additional testimony and determine whether or not to modify its decision.l14
D. Scope of Review and Deference to Agency Decision The statutory presumptions favor the agency decision, and the court is to set aside, remand or modify the agency decision only if it finds a ground for doing so under one of the specified provisions of Wis. Stat.
$8
227.57(1)-(10). The courts will confer various levels of judicial
deference depending on the nature of the agency decision at issue. The court does not "substitute its judgment for that of an administrative agency determining a legislative matter within its province."115Findings of fact based on an adjudicatory proceeding are to be accepted by the court unless the court finds they are not supported by substantial evidence in the record.l16 "An agency's findings are supported by substantial evidence if a reasonable person could arrive at the same conclusion as the agency, taking into account all the evidence in the record."l17 A thorough discussion of the standards and how they are applied to an agency's interpretation and application of a statute is included in the Wisconsin Supreme Court's 2005 decision in Clean Wisconsin, Inc. v. Public Sewice ~ornrnission,~'~ in which the Court upheld the issuance of a certificate of public convenience and necessity by the Public Service Commission
Wis. Stat. 9 227.56(1); State Public Intervenor v. DNR, 171 Wis. 2d 243,490 N.W.2d 770 (Ct. App. 1992). City ofBeloit v. Town ofBeloit, 37 Wis. 2d 637,647, 155 N.W.2d 633 (1968). 'I6 Wis. Stat. 5 227.57(6); Omernick v. DNR, 100 Wis. 2d 234,301 N.W.2d 437 (1981);see also Gehin v. Wisconsin Group Ins. Bd., 2005 Wl 16,278 Wis. 2d 11 1,692 N.W.2d 572; Krahenbuhl v. Wisconsin Dentistry Examining Bd., 2004 WI App 147,275 Wis. 2d 626,685 N.W.2d 591; CrystalLuke Cheese Factory v. LIRC, 2003 WI 106,264 Wis. 2d 200,664 N.W.2d 651. 'I7 Clean Wisconsin, Znc. v. PSC,, 2005 WI 93, 1 46,282 Wis. 2d 250,700 N.W.2d 768 (citing Responsible Use of Rural andAgricultura1Land (RURAL) v. PSC, 2000 Wl 129,120,239 Wis. 2d 660,619 N.W.2d 888). ' I 8 Id., fl34-46. 'I4 'I5
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authorizing a major expansion of an existing coal-fired electric power plant in southeast Wisconsin. The three levels of deference to the agency's statutory interpretation are described as (1) "great weight deference," (2) "due weight deference" or "great bearing," and (3) "de novo review" or "no deferen~e.""~ "Great weight" deference is the highest level of deference, and appropriate where: "(1) the agency was charged by the legislature with the duty of administering the statute; (2) the interpretation of the statute is one of long-standing; (3) the agency employed its expertise or specialized knowledge in forming the interpretation; and (4) the agency's interpretation will provide uniformity and consistency in the application of the ~tatute."'~'Under the great weight standard, the court will uphold the agency's interpretation of a statute if it is reasonable, even if a more reasonable interpretation
exist^.'^'
Similarly, the court will defer to the agency
interpretation when the "legal question is intertwined with factual determinations or with value or policy determinations" and the agency involved "has primary responsibility for determination of fact and Due weight deference is an intermediate standard of review and appropriate where "the agency has some experience in an area, but has not developed the expertise which necessarily places it in a better position to make judgments regarding the interpretation of the statute than a COUT~.,'~~~
~ d .~, 3 7 - 4 3 . Id., 139 (citing Hutson v. Wisconsin Pers. Comm 'n,2003 WI 97,1 32,263 Wis. 2d 612,665 N.W.2d 212) (quoting UFE, Inc. v. LIRC, 201 Wis. 2d 274,284,548 N.W.2d 47 (1996)) (in turn quoting Harnischfeger Cop. v. LIRC, 196 Wis. 2d 650,660,539 N.W.2d 98 (1995)). 12' Id., 7 41 (citing Hutson, 263 Wis. 2d 612,132). See also Sea View Estates Beach Club, Inc. v. DNR, 223 Wis. 2d 138,588 N.W.2d 667 (Ct. App. 1998). '22 Clean Wisconsin,282 Wis. 2d 250,T 41 (citing Hutson, 263 Wis. 2d 612, 132). '23 Id., 142 (citing Hutson, 263 Wis. 2d 612,133). See also American Manufacturer's Mut. Ins. Co. v. Hernandez, 2002 WI App 76,117,252 Wis. 2d 155,642 N.W.2d 584 ("The issue presented is one of first impression. Although LIRC has experience interpreting the statutes in question, the legal question presented is nevertheless novel and LIRC has not developed an expertise as to the "second injury" issue presented in this case. Applying due deference, "9
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De novo review or no deference is appropriate when an agency's interpretation of a statute is "'clearly one of first impression' for the agency or 'when an agency's position on an issue has been so inconsistent [such that it] provide[s] no real guidance.'"124 Appeal of the trial court's decision to the Wisconsin Court of Appeals is an appeal by right.12' Subsequent appeal to the Wisconsin Supreme Court is available, but such review is at the discretion of the court. When a judicial review reaches either the Court of Appeals or the Supreme Court, the court will ultimately affirm or reverse the circuit court decision, but reviews the decision of the agency not the decision of the circuit court.'26
we will not overturn LIRC's decision if it is reasonable and comports with the purpose of the statute unless we determine that there is a more reasonable interpretation available"). 124 Clean Wisconsin,282 Wis. 2d 250,y 43 (citing Hutson, 263 Wis. 2d 612, 34) (quoting UFE, Inc. v. LIRC, 201 Wis. 2d 274,285,548 N.W.2d 57 (1996)). See also West Bend Educ. Ass'n v. WERC, 121 Wis. 2d 1,357 N.W.2d 534 (1984)). Even where the agency's interpretation concerns recently enacted legislation (and thus is not longstanding), courts accord the agency's interpretation "great weight7'where the agency has developed specialized knowledge, experience and expertise from administering similar statutes;Jicha v. DILHR, 169 Wis. 2d 284,292-93, 485 N.W.2d 256 (1992). 12' Wis. Stat. $ 227.58. 126 Responsible Use ofRural andAgricultura1 Land (RURAL) v. PSC, 2000 WI 129,q 20,239 Wis. 2d 660,619 N.W.2d 888.
CHAPTER 3 WISCONSIN ENVIRONMENTAL POLICY ACT Linda H. Bochert I. OVERVIEW This chapter discusses the Wisconsin Environmental Policy Act (WEPA),'" how it is implemented by Wisconsin state agencies, and how it has been interpreted by the Wisconsin courts. Wisconsin state agencies are directed to take a "hard l o o k at the environmental consequences of proposed actions'28and in considering the adequacy of an EIS, the courts will evaluate whether the document evidences that "hard look." An EIS is only required for a "major action significantly affecting the quality of the human environment" and the courts give deference to the agency's decision as to whether the action in question is a "major action," looking for a reviewable record that reflects a decision representing reasonableness and good faith.'29 In the years since WEPA's enactment in 1972, many comprehensive substantive environmental statutes and rules have been enacted, supplanting the need to rely on WEPA as the primary way to focus an agency's attention on environmental concerns. WEPA compliance is now an expected and understood part of each state agency's responsibilities and each agency has formalized and routinized its procedures, building WEPA compliance into the timeline for decision-making. Nonetheless, WEPA challenges can still significantly slow down, if not defeat, an agency's decision, making WEPA compliance a continuing, important agency obligation.
127 Wis.
Stat. 1.11. Wisconsin'sEnvtl.Decade, Inc. v. DNR, 115 Wis. 2d 381,340 N.W.2d 722 (1983). 129 Wisconsin'sEnvtl. Decade, Inc. v. DILHR, 104 Wis. 2d 640,3 12 N.W.2d 749 (1981); State ex rel. Boehm v. DNR, 174 Wis. 2d 657,665,497 N.W.2d 445 (1993); City ofNew Richmond v. DNR, 145 Wis. 2d 535,428 N.W.2d 279 (Ct. App.), rev. denied, 145 Wis. 2d 918,430 N.W.2d 352 (1988).
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11. APPLICABLE STATUTES AND ADMINISTRATIVE RULES
Wis. Stat. 1.11 Wis. Admin. Code ch. NR 150 (Department of Natural Resources) Wis. Admin. Code ch. PSC 4 (Public Service Commission) Wis. Admin. Code ch. ATCP 3 (Department of Agriculture, Trade and Consumer Protection) Wis. Admin. Code ch. Adm 60 (Department of Administration) Wis. Admin. Code ch. Comm 1 (Department of Commerce) Wis. Admin. Code ch. DOC 335 (Department of Corrections) Wis. Admin. Code ch. HFS 18 (Department of Health and Family Services) Wis. Admin. Code ch. Trans 400 (Department of Transportation) 111. STATUTORY AND REGULATORY FRAMEWORK
The Wisconsin Environmental Policy Act
WE PA)'^' is patterned after the National
Environmental Policy Act (NEPA).'~'It became effective in 1972, with the following declaration of legislative purpose: "The purposes of this act are to declare a policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; and to enrich the understanding of the important ecological systems and natural
Like NEPA, WEPA directs state agencies to evaluate the impact of their actions on the human environment, and for "major actions significantly affecting the quality of the human environment," requires preparation of a detailed Environmental Impact Statement (EIS), substantially following guidelines issued by the Council on Environmental Quality (CEQ) guidelines under 42 U.S.C.
5 4331.'~~
The determination of what constitutes a "major action" has been the subject of much NEPA and WEPA litigation. Ultimately, it is a discretionary evaluation by the agency based on the Wis. Stat. (j 1.11. 42 U.S.C. (j(j 4321-4375. '32 1971 Wis. Laws ch. 274, (j 1. '33 Wis. Stat. (j 1.1 l(2). I3O 13'
Chapter 3 Wisconsin Environnzental Policy Act perceived nature and magnitude of the anticipated environmental impacts and the degree of public controversy. To make that determination somewhat more objective and predictable Wisconsin state agencies have developed "type" lists, in which they categorize types of actions they typically take according to their level of expected environmental impacts and the type of WEPA compliance required. A. Agency Rules and Type Lists WEPA applies to all agencies of the state.'34 To carry out their obligations under WEPA, Wisconsin state agencies have adopted administrative rules establishing WEPA procedures. The agency rules are more or less detailed, depending on the authority of the individual agency and the frequency with which it takes actions with the potential to impact the environment. In general, each agency's rules classify agency actions into categories, articulate the public notice, comment and hearing procedures that apply, and describe the type of environmental review the agency will conduct. Because agencies perform actions on a repetitive basis, e.g., issuance of WPDES permits by
DNR, or issuance of a certificate of public convenience and necessity for an electric generating station by PSC, to avoid facing the question of the appropriate level of environmental review afresh each time, most agencies have classified their actions into the following four "types":
I. Type IActions Type I actions always require preparation of an EIS. A limited number of agency actions are characterized as Type I. For example, of nearly 200 actions on DNR's Type list, only four are Type I actions: land acquisition projects over 1000 acres and involving a change in existing land use; regulatory actions involving any new metallic ore refinery intended for commercial
'34 Wis. Stat. 1.1l(2). Counties are not agencies of the state and have no WEPA compliance obligations. Robinson v. Kunach, 76 Wis. 2d 436,251 N.W.2d 449 (1977).
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production; regulatory actions relating to new waste disposal metallic mines or expansion of existing mines meeting certain criteria; regulatory actions for new facilities involving 80 acres or more or over one million cubic yards for solid and hazardous waste disposal.13' Of the nearly 60 actions classified by PSC, eight are identified as Type I actions, including construction of a hydroelectric generating facility at a new dam site, construction of an electric generating facility fueled by coal, and upgrading or rebuilding an electric transmission line to a nominal voltage greater than 345 k ~ . ' ~ ~ 2. Type 1 1Actions Type I1 actions may or may not require an EIS, but require at least the preparation of an Environmental Assessment (EA). An EA will address most of the same issues that would be considered in an EIS, albeit in less detail. An EA is shorter in length than an EIS and the public notice and comment processes are less extensive. Based on the EA, the agency will determine whether the environmental impacts have been sufficiently evaluated or whether the impacts are significant enough to require preparation of an EIS. Alternatively, the agency may decide at the outset that the nature and extent of potential environmental impacts and public controversy make preparation of an EIS appropriate and prepare the EIS without an intervening EA. Type I1 DNR regulatory actions include plan approval for a solid waste transfer facility with a design capacity of 50,000 cubic yards or 100 tons per day, approval to change the course of a navigable stream involving over 500 feet of stream length, a permit to construct a large dam in a navigable or nonnavigable waterway, and approval of a wastewater collection system that passes through a wetland area greater than 5 acres or uses a pipe diameter greater than 18 inches.'37 Type I1 PSC actions include construction of a biomass or waste-to-energy electric generation Wis. Admin. Code 9 NR 150.03. Table 1. '37 Wis. Admin. Code 5 NR 150.03. 13'
136 Wis. Admin. Code ch. PSC 4,
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facility, construction of a steam production facility by a steam utility, and construction of a 345 kV electric transmission line if all related construction is confined to an existing
transmission line r i g h t - o f - ~ a y . ' ~ ~
3. Type III Actions Type I11 actions usually will not require an EIS or an EA, because these actions do not typically have impacts on the environment. However, the agency may decide to prepare one of these documents because of the specific nature of the action involved. For Type I11 actions, DNR will issue a news release or other public notification to provide public notice of the action.'39 Examples of Type I11 DNR regulatory actions include approval for sludge storage facilities constructed away fiom the wastewater treatment plant site, issuance of a WPDES permit for relocation of an existing discharge to a new receiving water, approval of a temporary drawdown to conduct safety inspections, and approval of a barge fleeting area that has been established and used for the past 10 years.'40 Type I11 PSC actions include review of applications to construct an electric transmission line designed for operation at a nominal voltage of less than 100 kV, to construct an electric distribution line, or to establish a utility rate, and issuance of an order concerning the adequacy of utility service.I4' 4. Type IVActions Type IV actions are exempt from WEPA and no EIS, EA or news release is required. Type IV actions include actions exempt from WEPA by statute,'42 enforcement actions, and
Wis. Admin. Code ch. PSC 4, Table 2. Admin. Code (j NR 150.20(l)(b). 140 Wis. Admin. Code (j NR 150.03. 14' Wis. Admin. Code ch. PSC 4, Table 3. 142 See, e.g., Wis. Stat. (j 283.93, exempts from WEPA actions to eliminate or control environmentalpollution, with noted limited exceptions; see also, e.g., Wis. Amin. Code $5 NR 150.03(8)(b)9, (e)19, (f)19 and (i)8. 13'
139 Wis.
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emergency actions. WEPA also applies to "proposals for legislation."'43As a result, most agency rules also classify legislative proposals into one of the four types.
B. WEPA Purpose-Disclosure Described as an "environmental full disclosure law,"144 WEPA's primary purpose is to inform two key groups-the
public and the decision-makers--of the environmental impacts of
the agency action under ~0nsideration.l~~ To meet the purpose of informing the public, the agency rules include requirements for public notice, public comment, and the opportunity for public hearing. The most comprehensive procedures apply to Type I EIS actions. The agency begins with a scoping process, involving public notice and opportunity for public hearing, to identify the issues to be addressed in the EIS. Following that, the agency prepares a draft EIS (DEIS), and offers it for public review, comment and hearing. After considering the public comments on the DEIS, the agency prepares a final EIS (FEIS). The FEIS will include the public comments received on the DEIS and an explanation of how the DEIS was or was not revised in response to each comment received. Once the FEIS has been issued, the agency has complied with WEPA and is legally authorized to take the action that was the subject of the WEPA analysis. In certain circumstances, a revised or supplemental EIS may be required, for instance, if significant environmental impact information becomes available after the FEIS is published.146
Wis. Stat. 9 1.11(2)(c). WisconsinS Envtl. Decade, Inc. v. DNR, 94 Wis. 2d 263,271,288 N.W.2d 168 (Ct. App. 1979). '45 Agency actions include regulatory actions, such as issuance of permits and approvals, as well as actions the agency itself takes such land acquisition, habitat management, financial assistance. See, e.g., DNR's definition of "Action" in Wis. Admin. Code $ NR 150.02(1): '"Action' means any final decision by the department to commence, engage in, fund, approve, disapprove, or conditionally approve or otherwise carry out any activity, pursuit or procedure, including proposals for legislation, which may affect the quality of the human environment." See also, e.g., DNR's type list and the range of actions covered therein. Wis. Admin. Code 9 NR 150.03. '46 Wis. Admin. Code $9 NR 150.22(4) and PSC 4.35(2). '43
Clzapter 3 Wisconsin Environmental Policy Act
Each of these steps in the process has an established time period associated with it including minimum time periods for public review and comment. Generally, these time periods may be lengthened to provide more time for agency consideration or drafting, or more time for public review and comment. In limited circumstances the time periods for public review and comment may be ~h0rtened.I~~ WEPA is also intended to inform the agency decision-makers of the environmental impacts of the action under consideration. However, like NEPA, WEPA is a procedural, not a substantive or decision-making, statute. "The scheme of WEPA is not proposed to control agency direction, but to require that agencies consider and evaluate the environmental consequences of alternatives available to them in exercise of that consideration in the framework provided by sec. 1.11, ~tats."'~'Thus the identification of negative environmental impacts does not, in itself, prohibit the agency from taking the contemplated action so long as the substantive legal requirements applicable to the action, e.g., the statutory criteria for issuance of a permit or other regulatory authorization, can be satisfied.
IV. CONTENTS OF AN EIS The specific information required in an EIS is a function of the action or project under consideration. However, the general contents must include: 1. the environmental impact of the proposed action; 2. any adverse environmental effects which cannot be avoided should the proposal be implemented;
3. alternatives to the proposed action; 4. the relationship between local short-term uses of the human environment and the maintenance and enhancement of long-term productivity;
147
14'
See, e.g., Wis. Admin. Code 9 PSC 4.30(5)(d)2. Wisconsin S Envtl. Decade, Inc., 115 Wis. 2d at 389; State ex rel. Boehm, 174 Wis. 2d at 665.
Chapter 3 Wisconsin Environnzerztal Policy Act
5. any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented; and 6. the beneficial aspects of the proposed project, both short term and long term, and the economic advantages and disadvantages of the pr0posa1.l~~
V. CHALLENGING WEPA COMPLIANCE The WEPA analysis is part of the information considered by the agency in making its decision on the action under consideration. The EIS or EA does not represent a separate, independent agency action. As a consequence, a challenge to an agency's WEPA compliance must be brought as part of the challenge to the final agency action, e.g., the permit or approval issued or denied, under Wis. Stat. ch. 227.l5' Wisconsin courts are generally quite liberal in granting citizens the right to bring such challenges,15' but have held that the injuries claimed must show a direct causal relationship to the proposed change in the environment.15*Claimed injury from proposed construction of a prison facility based on the need for prisoners' families to travel and alleged psychological impact on inmates and resulting rise in crime were deemed too speculative and unrelated to the proposed physical change in the environment to confer standing.Is3
VI. WEPA CASE LAW WEPA challenges typically fall into two categories: failure to comply with WEPA for failure to prepare an EIS or an EA; and failure to comply with WEPA because of an inadequate EIS or EA.
Wis. Stat. (j 1.11(2)(c); see also, e.g., Wis. Admin. Code (j NR 150.22. Final agency actions may be challenged in circuit court by a petition for judicial review under Wis. Stat. (j 227.52, or in an administrative contested case hearing as provided in Wis. Stat. 9 227.42. However, the courts have held that there is no right to a contested case hearing on a decision by DNR not to prepare an EIS. North Lake Mgmt. Dist. v. DNR, 182 Wis. 2d 500,506,513 N.W.2d 703 (Ct. App. 1994). l S 1 Larsen v. Munz Colp., 167 Wis. 2d 583,482 N.W.2d 332 (1992). lS2 FOXV. DHSS, 112 Wis. 2d 514,334 N.W.2d 532 (1983). Id. '49
Chapter 3 Wisconsin Environmental Policy A ct A. Early WEPA Cases
The body of published WEPA case law has developed in two waves. WEPA litigation in the 1970s and early 1980s primarily involved challenges to actions of the two state agencies-DNR and PSC-whose
responsibilities are most directly connected with environmental regulation.
This early WEPA litigation produced the foundation-six
published decisions that provide the
essential guidance on the scope of the agencies' responsibilities under WEPA, the determination of what constitutes a "major action," standing, and the scope and standard of the court's review. These decisions were all the result of actions brought by an environmental advocacy group called Wisconsin's Environmental Decade (WED or D e ~ a d e ) . ' ~ ~ The courts refer to four cases brought against PSC as WED I, WED II, WED III and
WED v:'~' 1. WED I: Standing
WED I addressed standing.'56 WED challenged an order of the PSC limiting the sale of natural gas by a Wisconsin utility. Rejecting the challenge to WED'S standing, the court concluded that "WEPA, while not creating a public trust analogous to the public trust in the navigable waters of the state, does, similar to NEPA, recognize an interest sufficient to give a person standing to question compliance with its conditions where it is alleged that the agency's actions will harm the environment in the area where the person resides."'57
Wisconsin's Environmental Decade is now known as Clean Wisconsin. WED IV did not deal with application of WEPA. WisconsinS Envtl. Decade, Inc. v. PSC, 8 1 Wis. 2d 344,260 N.W.2d 712 (1978).See also Wisconsin's Envtl. Decade, Inc. v. PSC, 105 Wis. 2d 457,313 N.W.2d 863 (Ct. App. 198I), for a discussion of various holdings in WEDI-W in a challenge to a PSC rate order establishing depreciation rates for a nuclear facility. Wisconsin 3 Envtl. Decade, Znc. v. PSC, 69 Wis. 2d 1,230 N.W.2d 243 (1975). 157 ~ dat. 19.
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2. WED 11: Alternatives Analysis WED 11dealt with the agency's obligation to evaluate alternatives to the proposed action, and
held that "[tlo assure that the obligation to study and develop alternatives is performed and to provide a record for subsequent reviewers, written performance of the obligation in sec. 1.11(2)(e) [to evaluate alternatives] is absolutely critical."158WED II established that because WEPA is patterned after NEPA, NEPA case law is persuasive authority with respect to interpretation of WEPA.159
3. WED 111: Decision Not to Prepare an EIS WED 111 involved a challenge to PSC's decision not to prepare an EIS as part of an order
authorizing an increase in electric rates for a Wisconsin ~ t i 1 i t y . l WED ~ ~ III provides a comprehensive discussion of state agencies' obligations under WEPA, the threshold determination of whether an action is "major" and requires preparation of an EIS, and the standard of review the court will apply to an administrative agency's determination not to prepare an EIS. [Tlhe threshold decision whether to prepare an EIS occupies a critical position within the context of WEPA's operation. A negative determination at the initial stage may eliminate to a significant degree environmental consideration by the agency and may curtail much of the input, which an EIS is designed to foster, of other governmental agencies and the public in the agency's decision process .... We are of the opinion that the test of reasonableness should be applied to review a negative threshold decision under WEPA. Complete de novo review would be akin to treating the entire question of significant environmental effect as one of law .... [Tlhe question whether there is present in a given case a major action significantly affecting the environment will in general be a matter of both law and fact .... [Tlhe questions by which the agency decision was to be tested in the case at bar were these: First, has the agency developed a reviewable record, reflecting a preliminary factual investigation covering the relevant areas of environmental concern in sufficient Wisconsin'sEnvtl. Decade, Inc. v. PSC, 79 Wis. 2d 161, 176,255 N.W.2d 917 (1977). ~ dat. 174. '60 Wisconsin'sEnvtl. Decade, Inc. v. PSC, 79 Wis. 2d 409,256 N.W.2d 149 (1977).
lSs
Chapter 3 Wisconsin Environmental Policy Act
depth to permit a reasonably informed preliminary judgment of the environmental consequences of the action proposed; second, giving due regard to the agency's expertise where it appears actually to have been applied, does the agency's determination that the action is not a major action significantly affecting the quality of the human environment follow from the results of the agency's investigation in a manner consistent with the exercise of reasonable judgment by an agency committed to compliance with WEPA's obligations?16'
4. WED V= Standard of Review In WED V, the challenge was to the adequacy of the EIS prepared by PSC to assess the environmental impact of a change in rate design and an increase in authorized electric utility rates.162The Court embraced the principles established in NEPA case law that the purpose of an EIS is to enable an agency to take a "hard look" at the environmental consequences of its proposed action,163an agency's duty to prepare an EIS does not require it to engage in "remote and speculative analysis,"164and the "statute must be construed in the light of reason."165Noting that on appeal from an administrative agency action, the reviewing court is bound to accept the findings of the administrative agency if they can be supported by substantial evidence, the Court found that standard of review to be consistent with the "test of reasonableness" set forth in
WED 111,'~~ and applying it to the EIS prepared by PSC, found the EIS met the test. In addition to FED I, II, III and V, two WED cases against DNR are also important to the development of early WEPA law. The first considered the question of segmentation.'67 Like NEPA, WEPA forbids segmenting a project in a way that renders an otherwise "major" action no longer "major." At issue in the first case was a decision by DNR not to prepare an EIS on a proposed sewer interceptor project. The court rejected a challenge that the proposed sewer 'I
Id. at 419,423,424-25.
'" Wisconsin's Envtl. Decade, Inc. v. PSC, 98 Wis. 2d 682,298 N.W.2d 205 (Ct. App. 1980). Id. at 690 (citing New York Natural Resources Defense Council, Inc. v. Kleppe, 429 U.S. 1307 (1976)). Id. (citing Vermont Yankee Nuclear Power C o p v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978)). Id. (citing Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 817 (D.C. Cir. 1972)). Id. at 692-94 (citing Wis. Stat. $227.20, now renumbered as Wis. Stat. 227.57). Wisconsin's Envtl. Decade, Inc. v. DNR, 94 Wis. 2d 263,288 N.W.2d 168 (Ct. App. 1979). '63
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extension from one connection point to another was an "impermissible segment" of a larger, integrated project, after considering whether the proposed project was useful as a stand-alone project regardless of other segments; whether the scope of the project allowed evaluation of alternatives; whether the project fblfilled important state or local needs; whether construction of the project would make construction of related projects more likely; and whether the project could stand on its own, or was too intertwined with other p r 0 j e ~ t s . l ~ ~ In the second of these two DNR cases, the Supreme Court confirmed that it is impacts on the physical environment that trigger WE PA.'^^ In a challenge to DNR's decision not to prepare an EIS on construction of a suburban retail mall, where the direct environmental impacts were of a minor nature, WED alleged the mall would negatively impact the economy of the adjacent municipality. The court concluded that indirect or cumulative effects must be evaluated in an EIS if one is prepared, but their presence is not sufficient to make the action "major" and thus require preparation of an EIS.'~' Similarly, socioeconomic impacts must be evaluated if an EIS is prepared, but in the absence of environmental impacts, socioeconomic impacts are insufficient to require preparation of an EIS.'~'
B. More Recent Case Law A second wave of published cases arose in the late 1980s and early 1990s and included
challenges to DNR decisions involving landfill and solid waste incinerator projects'72 and a
Id. Wisconsin'sEnvtl. Decade, Inc. v. DNR, 115 Wis. 2d 381,340 N.W.2d 722 (1983). I7O Id. at 394. DNR has incorporated this holding into its definition of "major action," which "means an action of such magnitude and complexity that the action will have significant effects upon the quality of the human environment. It does not include actions whose significance is based only on economic or social effects." Wis. Admin. Code 9 NR 150.03(16). 17' 115 Wis. 2d at 414. L72State ex rel. Boehm v. DNR, 174 Wis. 2d 657,497 N.W.2d 445 (1993); City ofNew Richmond v. DNR, 145 Wis. 2d 535,428 N.W.2d 279 (Ct. App.), rev. denied, 145 Wis. 2d 918,430 N.W.2d 352 (1988).
CIzupter 3 Wiscorzsin Environmental Policy Act
DOA decision involving a proposed leaselpurchase arrangement for a state office building."3 These decisions provided guidance on the role of permit conditions in evaluating whether an agency action is "major" and the procedures an agency may use to evaluate an action not included in its type list. The Wisconsin Supreme Court upheld DNR's decision not to prepare an EIS on a proposed landfill based on a record showing that DNR applied its expertise in designing conditions for approval that would address and mitigate potential environmental impacts.'74 Thus, when deciding whether an EIS is required, the agency may take into account conditions it would impose on the approval being requested, such that those conditions could render an otherwise potentially "major" agency action no longer "major .175 79
When DOA considered a leaselpurchase arrangement for construction of a new state office building, an action not listed in its type list, no evidentiary hearing was required to support a decision that the action was not "major" in light of the opportunity provided for public comment and the reviewable record assembled by D O A . ' ~ ~ Some DNR permit evaluations may be considered the functional equivalent of a WEPA analysis. In a WEPA challenge to DNR's order to submit a plan for abandonment of a landfill, the Supreme Court held the extensive administrative hearing conducted by DNR-involving eight days of hearings, and 20 witnesses ranging from hydrogeologists and engineers to a concerned citizen-"satisfied
the functional equivalent of literal compliance with WEPA ....9,177
WEPA compliance was one of many issues raised in a 2005 challenge to PSC's decision to issue a certificate of public convenience and necessity for expansion of a coal-fired electric 173 Larsen 174
v. Munz Corp., 167 Wis. 2d 583,482 N.W.2d 332 (1992). Boehm, 174 Wis. 2d at 673. '75 Id. at 676. 176 Larsen, 167 Wis. 2d at 605. 177 Holtz & Krause, Inc. v. DNR, 85 Wis. 2d 198,217-18,270 N.W.2d 409 (1978).
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generating facility. The Supreme Court upheld PSC's EIS against a challenge of inadequacy, citing, inter alia, earlier holdings in WED 111and WED V that "[tlhe purpose of the EIS is to enable agencies to take a 'hard look' at the environmental consequences of a proposed action,"'78
and "[wlhile reasonable alternatives are to be considered, every potentiality need not be evaluated, as '[tlhe duty of an agency to prepare an EIS does not require it to engage in remote and speculative analysis. 79,179 Noting the challengers carry the burden to demonstrate the agency conclusion that the EIS was adequate was "without a rational basis,"'80 the Supreme Court "again emphasize[d] that the EIS is an informational tool that does not compel a particular decision by the agency or prevent the agency from concluding that other values outweigh the environmental consequences of a proposed action."18'
17' Clean Wisconsin, Inc. v. PSC, 2005 WI 93,lI 189, 282 Wis. 2d 250, 700 N.W.2d 768 (citing Milwaukee Brewers Baseball Club v. DHSS, 130 Wis. 2d 56, 72, 387 N.W.2d 245 (1986); WED at 690). vote: the Court's citation to WED IV as the case at 98 Wis. 2d at 690 is incorrect; that citation is to the case referred to as WED V.] 179 Id., 7 191 (citations omitted). ~ d .7, 190. "' Id., 7 203.
CHAPTER 4 AIR POLLUTION CONTROL Brian H. P ~ t t s " ~ I. OVERVIEW The close relationship between federal and state law may be most evident in air pollution regulation: the federal Environmental Protection Agency (EPA) plays a critical and influential role in Wisconsin's air program. Therefore, to understand Wisconsin's air law regime, one must understand both the federal and state regimes. Under both regimes, air pollution law is primarily statutory and regulatory; because it is a relatively new field, there is a dearth of case law in many areas. Nonetheless, the Clean Air Act (CAA) alone comprises over 300 pages of detailed and difficult text, EPA has thousands of pages of regulations and guidance documents interpreting and expanding upon this text, and Wisconsin has thousands of pages of its own regulations, which sometimes differ from EPA's regulations. This chapter's aim i s to provide a good understanding of how air pollution regulation works, and probably more importantly, where to look to find the answers to your air pollution regulation needs. Common-law torts were the original and only means of air pollution control for much of the twentieth century. However, from the late 1800s until the early 1960s, when federal regulation began, the court system almost always favored the polluters. Because the tort-systems failed to protect public health and the environment, local governments began adopting ordinances in the early 1960s to help foster some control. Though Congress passed some air pollution legislation in the late 1950s and throughout the 1960s, consequential air pollution control in the United
Much of the research and inspiration for this chapter came from my writing of the following three articles: Trading Grandfathered Air-A New, Simpler Approach, 3 1 Harvard Envtl. L.R. -(forthcoming 2007); The U S . Supreme Court's New Dukedom, the Hour and Year, or a Proposal Quite Near, 33 Ecology L.Q. (forthcoming 2006); and A Clearer Skies Proposal: The Multi-Category Ratio Approach, 12 N.Y.U. Envtl. L.J. 286 (2003).
Chapter 4 Air Pollution Control
States began when Congress passed the Clean Air Act of 1970 (CAA).183Today, common law nuisance still plays a role in controlling air emissions; however, the CAA and its state-mandated counterparts provide the bulk of air pollution controls.'84 This chapter focuses on Wisconsin's air pollution regulatory program. Like most states, EPA has delegated authority over many air programs to the state's environmental agency, the Wisconsin Department of Natural Resources (DNR), pursuant to various sections of the federal Clean Air Act. The chapter begins in Part I1 with a statutory and regulatory reference section. In Part 111, the chapter will address the CAA's main focus-the
six criteria pollutants-and
detail
how and why these pollutants are regulated. Then, in Part IV, the chapter will discuss stationary source regulation (e.g., manufacturing facility regulation), and in Part V, the chapter will discuss mobile source regulation (e.g., automobile regulation). Elsewhere in the Handbook is an acronym and definition section. It may be useful to read that section over before starting . . the chapter, or at a minimum, to refer back to it during your reading.
11. APPLICABLE STATUTES AND ADMINISTRATIVE RULES Clean Air Act Provisions (42 U.S.C. $9 7401-7671q): Title I $ 7409 (109): NAAQS $7410 (1 10): SIPSand FIPs $ 741 1 (1 11): New Source Performance Standards $ 7412 (1 12): Hazardous Air Pollutants $ 7413 (1 13): Federal Enforcement $ 8 7470-7479 (160- 169): Prevention of Significant Deterioration $8 749 1-7492 (169A- 169B): PSD Visibility Requirements 88 7501-7515 (17 1- 193): Nonattainment Provisions Title I1 $9 752 1-7590 (202-250): Moving Source Provisions
42 U.S.C. $0 7401-76714 (2005). LLT~day, nuisance laws are primarily used to regulate air pollutants not covered by the comprehensive Clean Air Act." Arnold W. Reitze Jr., Air Pollution Control Law: Compliance and Enforcement 33 (2001). I"
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Title 111 $9 7601-7627 (301-328): General Provisions Title IV 88 7641-7651o (402-416): Noise Pollution Title V $9 7661-7661f (501-507): Permits Title VI $8 7671- 7 6 7 1 ~(601-617): Stratospheric Ozone Protection Notable Code of Federal Regulations Sections 40 C.F.R. part 50: NAAQS 40 C.F.R. parts 5 1-52: SIP Requirements 40 C.F.R. part 60: New Source Performance Standards 40 C.F.R. part 60: Appendix A-Test Methods 40 C.F.R. part 61: Hazardous Air Pollutant Provisions 40 C.F.R. part 63: National Emissions Standards for Hazardous Air Pollutants 40 C.F.R. part 70: State Operating Permit Requirements 40 C.F.R. part 71 : Federal Operating Permit Requirements 40 C.F.R. part 73: SO2Allowance System 40 C.F.R. part 75: Continuous Emissions Monitoring (CEMs) 40 C.F.R. parts 96-97: NOx Budget Trading Wisconsin Statutes $8 285.01-285.87 Wisconsin Administrative Code Chs. NR 400-499 111. NAAQS: THE SIX CRITERIA POLLUTANTS
The CAA essentially has two broad mechanisms for controlling air pollution: the ambient air approach and the end-of-pipe approach. The ambient air approach sets specific goals for overall air quality and then regulates sources in an attempt to meet these goals. The end-of-pipe approach mandates strict emissions limitations on specific sources, usually based on the emissions control technology available for the specific source. In some parts of the CAA, only the end-of-pipe approach is used, but in many sections, the end-of-pipe approach is used in conjunction with the ambient air approach. This is how the most important section of the CAA
Chapter 4 Air Pollution Contrd
regulates emissions: it establishes what are known as National Ambient Air Quality Standards (NAAQS) and from these standards regulates individual source's end-of-pipe emissions. These end-of-pipe standards are ratcheted down over time until the NAAQS are met. CAA sections 108 and 109 direct EPA to establish NAAQS, or numerical air quality limits, for priority pollutants, which are applicable uniformly across the United States. The sections direct EPA to set both primary and secondary NAAQS; primary standards are based on protecting public health "allowing an adequate margin of safety,"' 85 and secondary standards are based on protecting the "public welfare" from any known or anticipated adverse air pollution effects.'" There are currently six NAAQS pollutants, which are often called the "criteria pollutants" because EPA must compile air quality criteria showing these pollutants "cause or contribute to air pollution" and "endanger public health of welfare." The six criteria pollutants are:187 Sulfur dioxide (SO2); Particulate matter (PM10 and PM2.5); Carbon monoxide (CO); Ozone (03); Nitrogen oxides (NOx); and Lead (Pb). NAAQS set upper limits on the mass per unit volume of a particular pollutant in the outdoor air, averaged over differing time periods.188EPA classifies areas that fail to meet either the
42 U.S.C. $ 7409; CAA 109. Id., Ej 7408(a)(1); CAA 108(a)(l). 40 C.F.R. $5 50.1-50.12. IR8 42 U.S.C. $9 7408-7409.
Chapter 4 Air Pollution Control
primary or the secondary standards as nonattainment areas; all other areas are called attainment areas. I89 A. The Six Criteria Pollutants CAA section 109(d), which was added in the 1977 CAA Amendments, requires the EPA Administrator to review the NAAQS standards every five years. This requirement does not mean that EPA must revise the standards every five years; rather, it only requires EPA to review the
standard^.'^' In addition, the Administrator always has the option of performing more frequent revisions or re~iews.'~'A scientific review committee, known as the Clean Air Scientific Advisory Committee, reviews the standards and makes recommendations to EPA for r e ~ i s i 0 n s . lOf ~ ~course, any time revisions are made EPA must follow the CAA's rulemaking
procedure^.'^^ The reference methods and other measurement information used to determine the actual ambient air levels at specific sites are found in the various appendices to 40 C.F.R. part 50. The following sections introduce all six criteria pollutants and give some background regarding the health and scientific issues associated with each. This will all become important later in the chapter in understanding how these six pollutants are regulated.
I. Sulfur Dioxide Burning sulfur-laden fuel forms sulfur dioxide (SO2), as do many industrial practices such as metal smelting.'94 Among other things, SO2 can negatively affect breathing, cause respiratory illnesses, alter pulmonary defenses, and aggravate existing cardiovascular disease.'95 When SO2
ls9 See id., (i 7407(d)(1); CAA 107(d)(l) (defining a nonattainment area as "any area that does not meet ... the national primary or secondary ambient air quality standard for the pollutant."). 190 Environmental Defense Fund v. Thomas, 870 F.2d 892 (2d Cir. 1989). 19' 42 U.S.C. 9 7409(d)(l); CAA 109(d)(l). '92 Id., (i 7409(d)(2)(A). '93 The rulemaking procedures are located in 42 U.S.C. (i7607(d). '" EPA, 1995National Air Quality: Status and Trends: Sulfur Dioxide (SOz), at h~://www.epa.p;ov/air/ aqtrnd95/so2.html (last updated Apr. 9,2002). 19* Id.
Chapter 4 Air Poll~tionControl
and nitrogen oxides (NOx) are combined in the atmosphere, sulfuric and nitric acids are created, which causes downwind acid rain.'" Among other things, acid rain negatively affects aquatic life in water bodies that absorb much of the acid rain. Importantly, acid rain can arise hundreds of miles from the SO2 emissions source and is generally a significant problem in the Northeastern states where granite surfaces cause additional runoff.197 2. Nitrogen Oxides Nitrogen dioxide, or NO2, is a member of a highly reactive gas family known as nitrogen oxides, or ~ 0 x . l ~ Most ' he1 contains nitrogen, and when it is burned, the nitrogen combines with oxygen to create many NOx forms (NO, N02, NO3, etc.). NOx mainly arises from motor vehicle exhaust, electric utilities, and industrial boilers,199and is the primary cause of groundlevel ozone, which is Wisconsin's biggest criteria pollutant problem.200NOx exposure causes lung irritation and "lower[s] resistance to respiratory infections such as influenza."201There is a direct relationship between volatile organic compounds (VOCs) and NOx in the creation of ozone. However, because of the way the two react with each other, decreasing NOx or VOC concentrations unfortunately may lead to an increase in ground-level ozone in some circumstances.
Paul L. Joskow & Richard Schrnalensee, The Political Economy ofMarket-Based Environmental Policy: The US. Acid Rain Program, 41 J.L. & Econ. 37,40 (1998). 197 Id. 19' EPA, 1995 National Air Quality: Status and Trends: Nitrogen Dioxide (NO2), at httu://www.e~a.gov/air/ aatmd95/no2.html. 199Id. 200 Id. NOx also contributes to acid rain and nitrogen loading in water bodies. 201 Id. '96
Chapter 4 Air Pollution Control 3. Particulate Matter
Particulate matter, or PM, is simply solid or liquid particles in the air regardless of the particle's chemical makeup.202The particulates, which are regularly referred to as soot or flyash, are the oldest and generally the most perceptible emissions.203PM particles vary in mass; visibility from large particles can be seen as smoke, while smaller particles cannot be seen without a microscope.204Particles of concern are measured in microns.205Particles bigger than 10 microns are considered large or coarse, and particles smaller than one micron are considered
small or fine.206 EPA regulates both PMIO, or particles 10 microns or less, and PM2.5, which are particles that are 2.5 microns or less.207PM exposure can cause breathing issues, lung tissue deterioration, cancer, and premature death.208PM is emitted from many sources such as woodstoves, power plants, and diesel
In fact, PM originates from both stationary and mobile s0urces,2'~
and is also produced when SO2 and NOx react in the a t r n ~ s ~ h e r e . ~ " 4. Ozone
Ozone is primarily made up of ground-level 03,212 which affects the lungs and often causes chest pain, coughing, nausea, or pulmonary congestion-especially in the
Ozone is
EPA, 1995 National Air Quality: Status and Trends: Particulate Matter (PM-lo), at http://www.eva.gov/air/ ac1tmd95/vmlO.html. 203 On cold days, however, steam is ofien the most visible emission at a plant. Edward S. Rubin et al., Introduction to ~ n ~ i n e e r i nand g the Environment 204 (2001). 204 Id. 205 A micron is 1 x 10L6m. Karl B. Schnelle & Charles A. Brown, Air Pollution Control Technology Handbook (j 19 (2002). 206 Id., (j 19. 207 40 C.F.R. $0 50.6-50.7. 208 Schnelle & Brown, supra, note 200 at (j 19. 202
209
Td.
210Id. 211 Id. 212 EPA,
1995 National Air Quality: Status and Trends: Ozone (03), at http://www.eva.gov/air/aqtrnd95/03.htrnl (last updated Apr. 9,2002). 213 Id.
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"the most complex, difficult to control, and pervasive of the six principal air pollutants ... [because] ozone is not emitted directly into the air by specific
source^."^'^
The reaction from
sunlight on NOx and VOCs in the atmosphere creates ozone, and therefore controlling these pollutants generally helps in controlling 0 3 , although reductions in one pollutant do not always lead to reductions in ozone levels.215Ozone is typically a problem during the warm summer months. Therefore, many NOx controls are more stringent during the summer.
5. Carbon Monoxide Carbon monoxide, or CO, is colorless, odorless, and poisonous.216Exposure to CO at elevated levels can lead to "visual impairment, reduced work capacity, reduced manual dexterity, poor learning ability, and difficulty in performing complex tasks."217CO is formed when carbon fuel is burned incompletely, and about 60% of CO comes from vehicle e~haust.~" However, CO is not a large nonattainment issue in the United States as there are only ten counties in the entire country that are classified as nonattainment (most near Los Angeles).
6. Lead Arguably the CAA's best success story is in curbing lead emissions. When the CAA was adopted in 1970, lead was a major issue, but now there are only two counties in the entire U.S. that are in nonattainment for lead. In fact, "[b]ecause lead levels near roads have decreased 97% between 1978 and 1997, EPA no longer requires lead ambient concentrations near highways to be m~nitored."~'~ Originally, the primary source of lead emissions was automobiles and trucks;
214 ~
d . Id. 216 EPA, 1995 National Air Quality: Status and Trends: Carbon Monoxide (CO), at http://www.eva.rrov/oar/ a~trnd95/co.html. 2'7 Brian H. Potts, A Clearer Skies Proposal: The Multi-Category Ratio Approach, 12 N.Y.U. Envtl. L.J. 286, 305-06 (2003). 218 EPA, 1995 National Air Quality: Status and Trends: Carbon Monoxide (CO), at http://www.epa.gov/oarl aatrnd95/co.html. 2'9 Reitze, supra, note 184, at 46. 215
Chapter 4 Air Pollution Control
however, since lead was removed from gasoline, only metals processing remains as a significant source of emissions.220
B. The Current NAAQS Standards (2006) The following chart lists the current NAAQS standards as of 2006, and the number of counties in Wisconsin that are in nonattainment for each. These data change quite often, so be sure to check the applicable regulations for updates.
Sulfur Oxides
Primary NAAQS 0.030 ppm 0.14 pprn - rnax 24h$23
Ozone
Number of WI Counties in Nonattainment zero
Secondary NAAQS 0.5 pprn - rnax 3h324 same as primary
I
zero
same as primary 35 pprn - rnax
I Nitrogen Dioxide 1 0.053 ppm - annual
II
PM2s230
Lead
I same as primary
50 uglm3 - annual 150 ug/m3 - rnax 24hr
same as primary
15 ug/m3 - annual 65 ug/m3 - 24hr
same as primary
1 1.5 ug/m3
- quarter yea?3'
I same as primary
l o (8hr)227
I
zero
II
zero zero
EPA, Lead: What Is It? Where Does It Come From?, at httv://www.e~a.~ov/air/urbanair/lead~what.html. table taken from Wis. Admin. Code $ NR 404.04. 222 This is the annual arithmetic mean. 223 This is the maximum 24-hour average concentration, which is not to be exceeded more than once per year. 224 This is the maximum 3-hour average contamination, which is not to be exceeded more than once per year. 225 This is the maximum 1-hour average contamination. 226 "The 8-hour ozone standards are attained when the arithmetic mean of the fourth highest daily maximum 8-hour concentration at an ambient air quality monitoring site is less than or equal to 0.08 pprn ...." Wis. Admin. Code 5 NR 404.04. 227 The 10 counties are Door, Kenosha, Kewaunee, Manitowoc, Milwaukee, Ozaukee, Racine, Sheboygan, Washington and Waukesha. 228 This is the maximum 8-hour average contamination, which is not to be exceeded more than once per year. 229 This is the maximum 1-hour average concentration, which is not to be exceeded more than once per year. 230 40 C.F.R. 6 50.7. 23' This is the maximum arithmetic mean averaged over a calender quarter, as a constituent of suspended particulate matter. 220
221 Values for this
Chapter 4 Air Pollution Control
According to the U.S. Department of Transportation, 2.08 million Wisconsin citizens currently reside in an ozone nonattainment area (March 2 0 0 6 ) . ~The ~ ~following is a map from EPA's website showing these nonattainment areas:233 Wisconsin
%hour Ozone Nonattainment k m s i n b l w border
r'-f-rx
-
K e m u n e Co., WI Subpart I (Basic)
Manitarrro Co., WI Subpart I (Basic) Subpart 2 Moderate Subpart2 Moderate Subpart2 Marginal Milmuhe-Racine, WI Subpart 2 Moderate
Subpart1 (Basic) Subpartl (Basic)- EAC
0
50
100
Illinois
Chicago-GaryLakeCo., IL-IN(partia1) Subpart 2 Modeate
Houmbx200+
Given the location of the nonattainment counties, much of the ozone pollution in these counties comes from sources outside of Wisconsin. In fact, some estimate that over 50% of the ozone comes from Illinois and Indiana. Thus, DNR's regulations will only have a limited impact;
U.S. Department of TransportationFederal Highway Administration, Nonattainment Populations by State, at http://www.fhwa.dot.gov/environment/cma~~g~/napo~O3/wi.htm. 233 EPA, Greenbook, at http://www.epa.gov/air/oaqDs/~reenbWwi8.html.
232
Chapter 4 Air Pollution Control
without action by neighboring states, many of these counties will remain in nonattainment. The following discussion examines many of the CAA's recent programs, which are aimed at helping to solve this exact problem. C. State and Federal Implementation Plans
The CAA endeavors to create a "partnership" between state and federal agencies.234Each state that wishes to administer its own air pollution regulatory program under the NAAQS CAA provisions must prepare a State Implementation Plan (SIP), where the state adopts legislation or regulations and provides them to EPA in an attempt to show that it intends to implement, maintain, and enforce the primary and secondary NAAQS.'~~ In the alternative, states can opt to allow EPA to regulate under all or a portion of the federal program, which is called a federal implementation plan ( F I P ) . ~If~EPA ~ determines that the SIP is as stringent as the federal program, the state receives implementation and enforcement authority, while EPA retains secondary, or oversight enforcement authority. Most SIPS do not include all the federal regulations; in fact, many states only run portions of the federal programs. States that do not have delegated authority-i.e.,
those that are regulated pursuant to a FIP-
do have a time advantage under certain circumstances. When EPA adopts new rules, these rules are immediately effective in non-delegated FIP states, whereas SIP states have to wait until the rules have gone through state-level adoption. In delegated states like Wisconsin, this often causes confusion for regulated entities as they must decide whether to follow the new federal rules or DNR's old rules. Even aRer DNR adopts the new rules, EPA must still approve them; thus, there is also often a time period where regulated entities are not sure whether EPA will adopt DNR's
i~ollution r Control Dist. v. EPA, 739 F.2d 1071 (6th Cir. 1984). 42 U.S.C. 6 7410(a)(l); CAA 110(a)(l). 236 Id., 7410; CAA 110.
234 ~
235
Chapter 4 Air Pollution Control
new rules. All of this confusion can put entities in SIP states at a competitive disadvantage with entities in non-delegated FIP states. States also can designate intrastate and interstate regions, called Air Quality Control Regions (AQCRs), which are subject to EPA
Wisconsin currently has four intrastate AQCRs:
around Lake Michigan, in Southeastern Wisconsin, in Southern Wisconsin, and in North Central Wisconsin; and four interstate AQCRs: the Duluth (Minnesota)-Superior (Wisconsin) AQCR, the Southeast Minnesota-La Crosse (Wisconsin) AQCR, the Metropolitan Dubuque AQCR, and the Rockford (Illinois)-Janesville-Beloit (Wisconsin) AQCR.~~' The SIP Process from the Beginning239 Steps to Developing a SIP EPA Lists Regulated Criteria Air Pollutants
EPA Issues Numerical Air Quality Standards State Designates Air Quality Control Regions (AQCRs) State Adopts a SIP State Submits a SIP to EPA EPA Rejects or Accepts SIP
State Implements SIP; or
I
7407. Wis. Admin. Code $9 NR 404.03(1)-(2). See Reitze, supra, note 184, at 58 (outlining the SIP process).
237 Id., 238 239
I
Description EPA lists a criteria pollutant, issues a "Criteria Document," and issues a "Control Techniques Document'' for each pollutant EPA issues the primary and secondary standards States separate state into intra or inter-state areas, grouping nonattainment counties to~iether State proposes and adopts its SIP, generally after public comments State submits SIP to EPA, which applies to each AQCR EPA is required to review a SIP every five years; if EPA does not approve, SIP is returned to state for changes After approval, the state must implement the SIP rules and bring AQCRs into compliance
58
CAA Section
110, 160-169 (attainment area requirements), 171193 (nonattainrnent area requirements)
Chapter 4 Air Pollution Control Steps to Developing a SIP EPA Creates and Implements a FIP
Description If the state does not create an adequate SIP, EPA must prepare a Federal Implementation Plan (FIP)
CAA Section 110
Wisconsin's first SIP was submitted on January 14, 1972, but it has been revised over 100 times since then.240As the federal regulations change and expand, DNR develops and submits additional state rules to EPA as part of a SIP revision; if approved, these rules also become part of the federally approved SIP. DNR's accepted provisions are located in 40 C.F.R. part 52 subpart YY (52.2569 through 52.2586); however, they are continually changing, so be sure to check for updates in the Federal Register. In addition, 40 C.F.R. part 52 subpart A (52.01 through 52.35) contains general requirements applicable to all 50 states. Again, either DNR or EPA can enforce rules that are approved as part of the SIP; rules either not submitted to EPA for approval, or not approved by EPA as part of the SIP, are only enforceable by DNR. Recently, DNR did a thorough review of which rules are included in the federally approved SIP. Interestingly, they learned that some rules thought to be only state enforceable had been submitted to and approved by EPA as part of the SIP. At this writing, DNR is developing a plan to clarify which rules will remain part of the SIP and which will be only state enforceable. CAA Section 110 generally requires that the state SIP:
(A) "include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance ...";
(B) "provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to ... monitor, compile, and analyze data on ambient air quality 9,.
(C) include a program to provide for enforcement; (D) create adequate provisions addressing interstate or international air pollution; 240
40 C.F.R. $0 52570(b)-(c).
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(E) "provide ... necessary assurances that the State ... will have adequate personnel, funding, and authority under State (and, as appropriate, local) law to carry out such implementation plan ..."; (F) require acceptable monitoring of emissions; (G) provide for emergency response; (H) provide for rules for the revision of the plan; (I)
create extra provisions to deal with nonattainment areas;
(J) ensure that the state meets the consultation, public notice, and certain attainment area and visibility protection requirements;
(K) provide for air modeling and data acquisition; (L) "require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this chapter, a fee sufficient to cover [reasonable costs] ..."; and (M) "provide for consultation and participation by local political subdivisions affected by the plan."
As part of the SIP, the state generally designates areas as either attainment or nonattainment. As explained below, permitting requirements are more stringent in nonattainment areas because the state establishes limitations on emission sources that are designed to return the area to NAAQS attainment.
IV. STATIONARY SOURCE REGULATION Knowing where to find the applicable laws and regulations for a particular stationary source is probably the hardest aspect of air pollution law. But before one can even find such laws, a few background questions need to be answered. Rather than sifting randomly through thousands of pages of regulations, use the following collected information to guide and refine your search:241
1. Determine the state, AQCR, and area status (attainment or nonattainment) of the specific source location. The list of Wisconsin's AQCRs is at NR 404.03, and the list of nonattainment areas can be found on EPA's website at http://www.epa.~ov/air/oaqps/greenbM. 24'
Some of the ideas for this list came from Reitze, supra, note 184, at 62.
Chapter 4 Air Pollution Control
2. Determine or ascertain the types and maximum amounts of all pollutants the source could potentially emit given its current pollution control measures and technology. Generally, the plant operator or environmental specialist will have this information. If not, a consultant might need to be hired to determine these amounts.
3. Determine the source's industrial subcategories (SIC codes). A list of all SIC codes is available in the SIC manual at http://www.osha.~ov/pls/imis/sic manual.htm1. 4. Determine if the source is considered a "major source" for any of the emitted pollutants. The definition of major source is dependent on the actual pollutant in question and the attainment status of the area. In an attainment area, most sources are considered "major" if they emit more than 100 tons per year (TPY) of a pollutant. To find the specific "major source" threshold for a specific pollutant look in the relevant definitional section of the CAA, the definitional section in the applicable C.F.R., or the definitional section of the applicable NR section. See, e.g., 42 U.S.C. 5 7479; Wis. Admin. Code $5 NR 405.02(22) (PSD), NR 407.02(4) (Operating Permits), NR 408.02(21) (Construction Permits for Direct Major Sources in Nonattainment Areas), NR 411.02(5) (Construction and Operating Permits for Indirect Sources), NR 446.02(6e) (Control of Mercury Emissions), and NR 460.02(24) (General NESHAPs).
5. Determine whether the facility has any DNR issued air permits and review these permits for applicable conditions and/or requirements. 6. Determine whether there are any outstanding DNR or EPA orders or settlement agreements that must be complied with, including outstanding notices of violation that might need to be remedied. 7. Determine the year the facility was originally constructed and any and all potentially significant modifications that have occurred at the plant since beginning operation. All of this information could be critical in determining which regulations apply to a specific source. With this information in hand and an understanding of the following material, it will be much easier to find and interpret the regulations you need. A. Permit Types
The air pollution regulatory program is implemented primarily through the issuance and enforcement of three permit types: construction permits, operating permits, and general operating permits (GOPs). Wisconsin requires construction permits for new sources and certain modified sources, as detailed in NR 406, and operating permits for new, modified and existing sources, as detailed in NR 407. GOP permits are substantially simplified permits that are available for only
Chapter 4 Air Pollution Contid
certain smaller sources (e.g., crushing operations, ethylene oxide sterilization systems and small heating systems). Anyone wishing to construct a new air emission source, or modify an existing air emission source, must first apply for and receive an air construction permit. The construction permit will specify the terms under which the source is authorized to be built and initially operated. Construction permits are typically issued for a period of 18 months, although that term can be extended to 24 or 36 months if DNR is presented with information justifying a longer construction period. A separate operating permit, which is commonly called a "Title V permit" because the permit program was created in Title V of the CAA, is issued to authorize the operation of a new, modified, or existing air emission source. The operating permit is typically issued for a five-year term. It will identify all the emission units at the facility--e.g., stacks, process lines, and boilers-and
specify the amount of each pollutant that may be emitted from each unit. Operating
permits also contain recordkeeping requirements, reporting requirements, and compliance demonstration methods. For a new facility that needs both a construction and an operating permit, DNR will often issue a combined construction/operating (ConOp) permit. This permit will provide that once the construction and initial operating period have been completed, the operating permit requirements become the effective and enforceable permit conditions. This process enables the utilization of only a single public notice and comment period. However, at the end of construction, DNR will often require stack testing to ensure compliance with operating limitations.
Chapter 4 Air Pollution Control
In 2003, the Wisconsin Legislature passed Act 118, which directs DNR to streamline its permitting process.242More specifically, Act 118 changed chapter 285's (Wisconsin's Air Statutes) air program in three ways: 1. The Act created a new permit category and broadened other categories for air quality sources. The four categories are: exemptions, registration for small sources (new), general permits, and individual permits (construction and operation). 2. The Act requires that DNR conform Wisconsin's air regulations for new sources and hazardous air contaminants to federal requirements. DNR still is allowed to establish stricter requirements than those imposed under the federal regulations, but Act 118 tightened and clarified the procedures for doing so.
3. The Act replaced informal procedures with formal procedures for making changes to the SIP and recommendations for nonattainment status designations. The formal procedures now include submission to the public and the Legislature. As of this chapter's writing, DNR is in the process of meeting these streamlining requirements for certain smaller sources. Under DNR's current view, the streamlined permits, called registration operation permits (ROPs), will be available to most facilities that have emissions below 25% of the applicable major source threshold (typically less than 25 TPY). DNR believes it can issue the ROPs quickly (within 15 days) because the language will be standard. Facilities operating under ROPs can make modifications or add equipment without needing a construction permit as long as their emissions stay below the 25% threshold.
Information
about
DNR's
streamlining
initiative
can
be
found
at
html. http://dnr.wisconsin.~ov/orn/aw/air/apii/re~ermits.
1. Major and Minor Sources Facilities are characterized as "major" or "minor" sources based on the quantity of pollutants they can potentially emit. Generally speaking, major sources are those that have the potential to emit (PTE) 250 tons per year (TPY) of any NAAQS pollutant; or for some 28 specific sources, Memo, 2003 Wisconsin Act 1 1 8 [2003Assembly Bill 6551,at httu://www.legis.state.wi.us/lclact memo/2003/actl18-ab655.vdf. 242 Wisconsin Legislative Act
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the PTE 100 TPY. However, the major source threshold differs between source categories, types of pollutants (hazardous versus criteria), and area designations (nonattainment versus attainment). Facilities that would otherwise qualify as "major" sources may elect to take enforceable permit requirements, such as limitations on operating hours or throughput, which will keep the actual emissions below the major source threshold. These permits are called "synthetic minor permits" and provide the facility with the opportunity to avoid the additional reporting and recordkeeping requirements that are inherent in a major source permit. 2. AttainmentandNon-AttainmentAreas
As previously mentioned, DNR designates counties of the state as "attainment" or "nonattainment" for specific criteria pollutants, based on the area's existing ambient air quality. Counties designated as nonattainment may be further sub-classified; for example, counties designated as nonattainment for ozone (resulting from the interaction of volatile organic compounds (VOCs) and nitrogen oxides (NOx)), may be sub-classified into one of the following five categories: extreme, severe, serious, moderate, and
The CAA mandates that
state SIPS ensure compliance with the NAAQS in nonattainment areas by certain dates, ranging from three to 20 years depending on the level of nonattainment. Generally speaking, the worse the nonattainment area classification (extreme is the worst), the stricter the permit provisions will likely be, the more sources will have to obtain a permit, and the more likely the sources will draw DNR's enforcement attention.
243
42 U.S.C. 6 751 1; CAA 181.
64
Chapter 4 Air Pollution Control 3. Permit Exemptions
The first question to ask in deciding if an air permit is required is whether the anticipated emissions will fall within any of the several exemptions. NR 406.04 (construction permits) and NR 407.03 (operating permits) include the following types of exemptions: Statutory exemptions Specific categorical exemptions, i.e., those that are based on the type of emission unit General exemptions Exempt modifications, relocations and replacements In general, a facility for which the Maximum Theoretical Emissions (MTE) are less than those listed in the table below are exempt from the obligation to obtain a construction or operating permit. The MTE is a calculation of the greatest possible amount of pollution the source can emit if operated at maximum production capacity for either an entire hour or year (depending on the threshold) assuming no pollution control equipment.
Volatile Organic Compounds (VOCs), PM, or NOx
I Maximum Theoretical Emissions 1 5.7 lbs/hr
Any Federal HAP
1
Pollutant Type
A Combination of Federal HAPS State HAPS
1
10 tonslyr
25 tonslyr
Check NR 445 table values
In enforcement actions brought for failure to obtain a construction or operating permit, it is extremely helpful to be able to show the Wisconsin Department of Justice that the facility conducted an analysis and reached a good faith conclusion that no permit was required. While there is no obligation to submit an exemption determination to DNR to confirm this conclusion,
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many sources choose to do exactly that in order to obtain written confirmation of DNR's agreement.
4. Hazardous Air Pollutant Limits DNR imposes emission limitations in the operating permit on the six criteria pollutants and on any hazardous air pollutants (HAPs) present in the facility's emissions. The list of pollutants considered HAPs in Wisconsin is found in Wis. Admin. Code ch. NR 445. Most recently updated in 2004, NR 445 lists 535 pollutants, which is substantially more than EPA's 188 listed
H A P S . This ~ ~ ~chapter will address HAP regulation later after discussing how DNR sets criteria pollutant permit standards.
B. New Source Performance Standards (NSPS) As part of the original CAA provisions, Congress directed EPA to break stationary sources into categories and to promulgate New Source Performance Standards (NSPS) for each category.245In the main, NSPS impose emission limits and other requirements on a certain category of new or modified sources based on the available technology for that type of source.246 EPA has adopted various NSPS over the years, often imposing different restrictions based on when the source was constructed or modified.247Thus, the year the plant was modified or constructed is often relevant to which standards apply. The NSPS standards are located in 40 C.F.R. part 60 and DNR's NR 440.
Wis. Admin. Code ch. NR 445; DNR, Wisconsin Air Toxic Rules Revision Fact Sheet, at httu://dnr.wi.gov/org/ awlairlhealtWairtoxics/documents/overvie 245 42 U.S.C. $ 741 l(b). 246 Id., $ 741 1(a)(2). 247 Compare, e.g., Standards of Performance for Fossil-Fuel Steam Generators for Which Construction is Commenced After August 17, 1971,40 C.F.R. $9 60.40-60.46 (2005), with Standards of Performance for FossilFuel Steam Generators for Which Construction is Commenced After September 18, 1978,40 C.F.R. $$ 60.40a60.52a (2005). 244
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When shaping the operating permit's emissions limitations for criteria air pollutants, DNR first consults the NSPS regulations, which provide a sort of baseline.248Although some older, as-yet-unmodified sources are not subject to NSPS, most large sources built or modified after 1971 will have to comply with some specific NSPS. As of 2005, there were 75 NSPS standards, each imposing uniform nationwide emission limitations and requirements for their respective source category.249For example, there are NSPS for manufacturers of glass, cement, rubber tires, wool fiberglass, and even for the graphic arts industry.250Importantly, though, NSPS do not apply to facilities in existence when the regulations were finalized and adopted.25' The NSPS are set based on the best demonstrated technology ( B D T ) . ~When ~ ~ adopting an NSPS, EPA considers costs, energy requirements, and non-air quality health and environmental impacts to determine the BDT and corresponding N S P S . ~For ~ ~the most part, NSPS standards are outdated because they are rarely updated. In fact, many interested parties believe that EPA or Congress should drastically overhaul or eliminate the entire NSPS system because it is often duplicative and unnecessary for sources faced with New Source Review requirements, which will be discussed in the next section.
C. Prevention of Significant Deterioration and Nonattainment New Source Review (NSR) Congress created the Prevention of Significant Deterioration (PSD) and nonattainment New Source Review (NSR) programs in 1977 because the NSPS program was not working on its own. PSD, as its name suggests, is a program that attempts to balance the need for economic growth in attainment areas with the need to keep these areas in attainment. As such, Congress created three
42 U.S.C. $ 7411. C.F.R. part 60, subpart C. 250 40 C.F.R. $0 60.430-60.435. 251 42 U.S.C. $ 741l(a). 252 Id., $ 7411(a)(2). 253 Id., 5 741 1. 248
249 See 40
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attainment area classifications: Class I, Class 11, and Class 111. The Class designations are located in CAA section 162, but generally speaking Class I comprises the most pristine areas, like national parks, wilderness areas, and monuments. The CAA, in section 163, provides for increments, which are the "maximum allowable increase in concentrations" of certain NAAQS in such areas. Each time a source undergoes PSD permitting, then it must perform modeling to prove that its emissions will not cause an increment to be exceeded. PSD or nonattainment NSR will only apply if a source (1) is new or undergoing construction or modification; and (2) is considered a "major emitting source" under 42 U.S.C.
5 7479(1).
Nonattainment NSR applies in nonattainment areas, and PSD applies in attainment and unclassifiable areas. Unlike the NSPS, NSR requirements can differ for each individual sourceeven for sources in the same category. This is because, if a source must go through NSR, DNR determines at the time the permit is issued what constitutes either the best available control technology (BACT) or the lowest achievable emissions rate (LAER), which are the NSR required technology standards. The choice between using BACT or LAER comes down to where the facility is located and thus with program (PSD or nonattainrnent NSR) applies. In attainment254or u n ~ l a s s i f i a b l e ~ ~ ~ areas, PSD regulations apply and BACT is required; LAER, on the other hand, is required in nonattainment areas for major sources undergoing nonattainment N S R . BACT ~ ~ ~ and LAER are technology standards but they are expressed as emissions limitations in the permit. Thus, DNR does not actually require the facility to install the BACT or LAER technology: the company can meet the permit's emission's limitations in any way it sees fit.
254 Id.,
255 Id.,
256 Id.,
4 7407(d)(l)(A)(ii). 4 7407(d)(l)(A)(iii).
$4 7479(3) and 7501(3).
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Because LAER is required in nonattainment areas, it is not surprising that it is generally more stringent than BACT; in addition, both BACT and LAER must be either equivalent to, or more stringent than, the applicable NSPS emissions limitation.257During nonattainment NSR, sources must also obtain emissions reductions, known as offsets, from existing
Sources get
these offsets fiom facilities within their own nonattainment area or from sources in other nonattainment areas, assuming, of course, that the other area has an equivalent or more severe nonattainment clas~ification.~~' D. NSR and NSPS Modification Rules
Again, both NSR and the NSPS apply only to new or modiJied sources. The CAA defines "modification" as "any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted."260Given this language, then, a source's modification will trigger NSR or NSPS if (I) a physical or operational change has occurred at the facility; and (2) this change will cause a "significant net emissions in~rease."~~' Unfortunately, this is not an easy determination under EPA's regulations because so many issues are currently in litigatory flux. While the term "physical change" is interpreted broadly:62
EPA3s regulations exclude
routine maintenance, repair and replacement (RMRR) fiom the term, and thus RMRR does not qualify as a modification. This is the decisive and oft-litigated segment of the "physical change"
See id., $ 7479(3). Id., $ 7503(c). 259 Id. 260 Id., 5 74 11(a)(4) (emphasis added). See id., $9 74 11(a)(4) and 7479(C). 262 See, e.g., Wisconsin Elec. Power Co. v. Reilly, 893 F.2d 901,905 (7th Cir. 1990) ("[Tlhe most trivial activitiesthe replacement of leaky pipes, for example-may trigger the modification provisions if the change results in an increase in the emissions of a facility."). 257 258
Chapter 4 Air Pollution Control portion of the rule.263To determine what constitutes RMRR, or said more succinctly, what is routine, EPA uses a four part test-looking of each proposed
at the nature and extent, purpose, frequency, and cost
AS to the second component of the modification test, determining
whether a "significant net emissions increase" will occur, EPA uses two separate tests. For NSPS, EPA uses an hourly emissions rate test where the facility must show that the project will not cause the unit's hourly emissions to increase; on the other hand, EPA uses an annual emissions test for NSR, looking to whether the project will cause the unit's total emissions to increase over a year.265 1. A Physical Change: The Routine Maintenance Exclusion Although EPA has made multiple rulings on its routine maintenance exclusion, a decision of a Wisconsin court, the Wisconsin Electric Power Co. v. Reilly (WEPCO) decision, is the primary federal appellate court decision dealing with EPA's RMRR rule.266 WEPCO is well known primarily because it allowed electric steam generating units to use the "actual-to-future-actual" test to determine whether a significant increase in emissions will occur from a project (discussed in the next section). Regrettably, WEPCO is of limited use in determining what actually constitutes routine maintenance; WEPCO lost the routine maintenance issue because the facts were weighted heavily against the work being routine.267The decision in WEPCO, however, is 40 C.F.R. 9 60.14(e)(l). EPA Memorandum of Don Clay, Applicability of Prevention of SigniJicantDeterioration (PSD) and New Source Pei$ormance Standards (NSPS) Requirements to the WisconsinElectric Power Company (WEPCO) Port /v4 37.html WashingtonLife Extension Project, at *3-7 (September 9, 1988), at httv://www.eva.~ov/ttn~nsr/vsdl [hereinafter Clay Memorandum]. In a 2002 rulemaking, EPA attempted to broaden the RMRR exclusion to exclude replacements constituting less than 20% of the value of the process unit, but the D.C. Circuit overturned EPA's rule. New York v. United States E.P.A., 443 F.3d 880 (D.C. Cir. 2006) (invalidating Equipment Replacement Provision of the Routine Maintenance, Repair, and Replacement Exclusion, 68 Fed. Reg. 61248 (Oct. 27,2003) (final rule)). 265 40 C.F.R. 960.14fb). 266 WisconsinElec. Power Co. v. Reilly, 893 F.2d at 9 10-13. WEPCO is well known primarily because of its decision on the significant increase in emissions issue, not the routine maintenance issue. 267 Id.; see also United States v. Southern Indiana Gas & Elec. Co., 245 F. Supp. 2d 994, 1017 (S.D. Ind. 2003) ("KEPCO was an easy case on routine maintenance-the EPA and the Seventh Circuit quickly disposed of the defendant's arguments that it qualified for routine maintenance."). 263 264
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important for determining the process EPA has historically used in deciding what constitutes routine maintenance. Located north of Milwaukee on Lake Michigan, WEPCO's Port Washington power plant has five coal-fired steam generating units that were placed in operation between 1935 and 1 9 5 0 . ~ ~ ~ As a result of a consultant's study, WEPCO concluded in 1983 "that extensive renovation of the five units and the plant common facilities [wals needed if operation of the plant [was] to be continued."269 WEPCO was proposing, among other things, to repair and replace the turbinegenerators, boilers, mechanical and electric auxiliaries, and the common plant support facilities.270The total cost of the project was $71 million, and the project required four successive nine-month outages.271 EPA found that WEPCO's changes would constitute a "physical change" under the statute and that they would not fit within EPA's routine maintenance exemption.272The Seventh Circuit Court of Appeals upheld EPA's determination on this
AS the Court of Appeals pointed
out, EPA "makes a case-by-case determination by weighing the nature, extent, purpose, frequency, and cost of the work, as well as other relevant factors, to arrive at a common-sense finding."274First, EPA looked at the nature and extent of the project and found that its magnitude was more than routine.275 Regarding frequency, EPA noted that WEPCO's project was unprecedented at both the plant itself and in the purpose of the work-the
268
plant's "life extension'-and
XEPCO, 893 F.2d at 905.
269 Id.
at 906. Id. at 910-12. 272 Id. at 906; Clay Memorandum, supra, note 264. 273 WEPCO, 893 F.2d at 907-08,910-12. 274 Id. at 910. 275 ~ dat. 91 1. 276 Id. 270 Id. 27'
Finally, EPA found that the stated the considerable cost of the project-
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$71 million-indicated
that the proposed project was not routine. After evaluating EPA's
analysis, the Court of Appeals found that EPA's use of these factors "was not arbitrary or capricious." The Clay Memorandum, EPA's initial guidance to WEPCO on the project, is also helpful in identifying what EPA considers routine. In the Memorandum, Clay states: [WEPCO's] purpose is to completely rehabilitate aging power generating units whose capacity has significantly deteriorated over a period of years, thereby restoring their original capacity and substantially extending the period of their utilization .... WEPCO took care to distinguish the proposed renovation work from routine maintenance that did not require [the Public Service Commission's] approval. ... Thus, WEPCO's own earlier characterization of this project supports a finding that the planned renovations are not routine .... The work called for under the project is costly ... [for example,] the renovation project will cost $7.8 million, as compared to $51.6 million for a new 400 megawatt plant. Thus, renovation costs represent approximately 15 percent of replacement costs.277 Clay found that the project was "far from being a regular, customary, or standard undertaking," and as such, would not be exempt as routine.278 Another important RMRR decision is the EPA Environmental Appeals Board's (EAB)
~ ~ ~ be noted, however, that the decision is decision titled In re Tennessee Valley ~ u t h o r i t yIt. must "of no effect in light of the Eleventh Circuit's holding that [EPA] was without jurisdiction to consider the matter."280 As such, the W A decision has been virtually ignored by the recent federal court decisions discussing the routine maintenance issue.281Nonetheless, since it is EPA's most detailed pronouncement on the issue, it is relevant in understanding EPA's interpretation of the RMRR exemption.
Clay Memorandum, supra, note 259, at 4-6. at 3. 279 In re Tennessee Valley Authority, Docket No. CAA-2000-04-008,2000 WL 1358648 (EAB Sept. 15,2000) (Tw. 280 See Tennessee ValleyAuthority v. Whitman, 336 F.3d 1236 (1 lth Cir. 2003) (finding the EAB's determination to be "legally inconsequential"). 28 1 See, e.g., United States v. Ohio Edison Comp., 276 F. Supp. 2d 829, 859 n.10 (S.D. Ohio 2003). 277
278 Id.
Chapter 4 Air Pollution Control TVA is an agency of the federal government with delegated authority to generate, transmit, Most of TVA's eleven coal-fired electric power plants were built
and sell electric
between the early 1950s and the early 1 9 7 0 s . ~ 'At ~ issue in the case were fourteen projects at nine of TVA's plants.284The EAB found that TVA had not met its burden of establishing that the fourteen projects qualified for the RMRR exemption.285Again applying the four-factor test-the nature and extent, purpose, frequency, and cost-the
EAB stated:
1. Nature and Extent
The construction activities involved in these projects affected significant boiler components and typically w[ere] massive, including in some cases the construction of onsite railroads and monorails and the replacement of miles (in one instance 67 miles) of tubing. TVA's central office, including staff from its construction and (after 1988) modification group developed and carried out the projects, rather than the maintenance department located at each plant. The projects took many years to plan, in most cases well beyond the time associated with planning TVA's scheduled maintenance outages which took place approximately every eighteen months. Moreover, these projects required TVA's Board of Director's approval, whereas plant managers approved the projects handled by the maintenance departments at WA's plants. Implementation of the projects required plant shutdowns of many months (ranging from two to thirteen months), substantially in excess of the time period typically associated with forced outages which lasted a few hours to five days. Significantly, these projects also required substantially more time to complete than was typically required for W A ' s scheduled maintenance outages which occurred every eighteen months and usually required the shutdown of a unit for approximately four weeks. 2. Purpose
The purpose of the projects generally was to significantly extend the life of the unit in question by as much as twenty years.
All projects were classified as "capital" rather than as "maintenance" projects. TVA's Capitalization Policy provides such classification for projects that add tangible new assets or leave existing assets in "better condition" than when the original asset was installed for profitable service, but defines as maintenance projects those projects that merely restore tangible assets to serviceability.
282 TV;q, 2000 WL at 283
*17.
Id.
284 There is a complete list 285 Id.
at *39.
of which plants were included in the W A decision. Id.
Chapter 4 Air Pollution Control 3. Frequency
As in the WEPCO case, these replacements had generally never before been performed on these units and were considered to be rare replacements for such units. Although TVA introduced evidence that it and others in the industry had made similar replacements at other facilities, the evidence did not show that these replacements were other than uncommon in the lifetime of a unit. 4. Cost
All projects cost in excess of $2.5 million (ranging from $2.6 million to $57.1 million) and required approval of TVA's Board of Directors. The cost of implementing these projects would have consumed most of each plant's O&M budget and in some cases would have exceeded the plant's O&M budget.286
Although TVA disputed many of these considerations, its principal defense was that these types of replacements were "common practice at TVA and generally within the
TVA
based this argument on many documents, including a citation to the 1992 NSR rule's preamble.288The EAB, however, rejected this argument stating, "TVA's construction of the exception would, carried to its logical conclusion, allow TVA to rebuild the entire facility without triggering New Source Review so long as it did so in increments that can be identified elsewhere in the industry."289 TVA also argued that it did not have fair notice of the interpretation of the rule and that EPA needed to formally change its rule through the rulemaking process. The EAB rejected both contentions. 2. How to Measure a "Net Emissions Increase" Again, under DNR's rules, to trigger NSR or NSPS there must be both a physical non-routine change and a projected net emissions increase. In 2002, EPA totally revamped many of the NSR rules. Wisconsin, which had three years to implement these changes, has yet to finalize the
286 Id.
at *36-37 (emphasis added) (citations and footnotes omitted). at *37. 288 Id. at *41; 57 Fed. Reg. 32314,32325 (1992) (referencing the need to evaluate "whether a given type of equipment has been repaired or replaced by sources within the relevant industrial category"). 289 Id. at *28. 287 Id.
Chapter 4 Air. Pollution Control
corresponding administrative rule changes, which as proposed, mirror the federal changes exactly. Thus, the following NSR analysis will discuss the federal rules, but the analysis applies equally to DNR's upcoming rules. As discussed earlier, EPA's rules provide for a different emissions increase test for NSR and N S P S . ~ ~For ' NSPS there is an hourly test (kg/hr), and for NSR an annual test (kg/yr).291 Importantly, it is much harder to measure projected annual emissions than projected hourly emissions. To perform the yearly approach, which is NSR's approach, the facility begins from a baseline constituting "the average rate, in tons per year, at which the unit actually emitted" for any two successive years292of the ten previous years.293In calculating its baseline, the company can account for the "unit's operating hours, production rates, and types of materials processed, stored, or combusted during the selected time period."294 With this baseline in hand, the company then compares it to the projected actual post-project emissions to see if the modification will cause a "significant net emissions increase." The following levels are considered significant increases: Significant Emissions Increases (PSD and Nonattainment N S R ) ~ ~ ~ Pollutant Type
Carbon Monoxide Nitrogen Oxides
290 The
Increase Amount
100 ~ P Y 40 tpY
fact that EPA had two different tests for these two rules was recently held unconstitutional in the Fourth Circuit Court of Appeals; however, it is still the rule in all other circuits and the Supreme Court is reviewing the Fourth Circuit's determination. United States v. Duke Energy Corp., 41 1 F.3d 539 (4th Cir. 2005). 291 40 C.F.R. 8 60.14@). 2* Before EPA's 2002 NSR reform, the rule was different. At that time, the baseline was measured over the immediately preceding two years, rather than any combination of two years over the last ten years. See New York v. United States E.P.A., 413 F.3d 3, 10 @.C. Cir. 2005) (upholding EPA's new NSR baseline calculation rule). 293 40 C.F.R. 8 52.21@)(48)(ii). There is a five-year period for electric facilities. Id., $ 52.21(b)(48)(i). 294 Id., 8 5 1.166(b)(2 l)(ii). 295 Wis. Admin. Code $3 NR 405.02(27)(a) and 408.02(32)(a).
1
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I I
Pollutant Type
Sulhr Dioxide
I
Particulate Matter
I I
I
PMlO
Lead
I I
40 tPY 25 tPY 15 ~ P Y
Ozone
I
I
Increase Amount
40 tpy of VOCs
I
I
0.60 tpy
To see if a modification will trigger a New Source Performance Standard, the company measures a unit's emissions increases based on an hourly rate instead of an annual rate. Measuring projected hourly emissions is much easier to do than projected annual emissions because the calculation does not involve estimates of a unit's potential to be used more
frequently after the project.296This hourlylyearly difference is significant. "If EPA requires an annual rate, both an increase in hourly emissions or a corresponding increase in the total hours a
unit could be operated could trigger a 'significant net emissions increase'; however, if EPA uses an hourly rate, only an increase in the hourly emissions can constitute a 'significant net emissions increase. 33297 3
E. Determining Non-HAP Operating Permit Limits: BACT, LAER and RACT While NSPS is often the starting point for determining permit limitations, if NSR applies, DNR will invariably set stricter standards. This is because NSR has to be as stringent as, or more stringent than, NSPS, and NSR is generally a more current standard.298In addition, as mentioned earlier, LAER is generally more stringent than BACT because LAER is required in nonattainment areas. DNR defines BACT as: United States v. Duke Energy Colp., 278 F . Supp. 2d 619,630 (M.D.N.C. 2003). Potts, Trading Grandfathered Air-A New, Simpler Approach, 3 1 Harv. Envtl. L.R. 2007). 298 Wis. Admin. Code $9 NR 405.02(7) and 408.02(19). 296
297 Brian H.
(forthcoming
Chapter 4 Air Pollution Control an emissions limitation, including a visible emissions standard, based on the maximum degree of [pollutant] reduction ... which the department, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such facility through application of production processes or available methods, systems and techniques, including clean fuels, fuel cleaning or treatment or innovative fuel combination techniques for control of the air contaminant.299
If an emissions limitation is not feasible, DNR can impose equipment, work practice, and operational standards (or any combination there~f).~" Obtaining an NSR construction permit in a nonattainment area is significantly more complicated. DNR requires a facility to meet the following six conditions: (I) it must meet all applicable emissions limitations (including NSPS standards); (2) comply with LAER; (3) it must obtain sufficient offsets to cause a net air quality benefit in the area; (4) it must show that the source's owner is in compliance with all standards at every other source owned in the state; (5) the SIP'S adequacy regarding that specific nonattainment area must not have been questioned by EPA; and (6) the source must prove that the benefits of the proposed project "significantly outweigh the environmental and social costs imposed as a result of its location, construction or modifi~ation."~~' Unlike the BACT analysis, DNR cannot consider costs when making a LAER determination. Rather, LAER mandates that sources use the most stringent of either: (1) the SIP'S lowest emission limitation for its source category, "unless the owner or operator of the proposed source demonstrates that such limitations are not achievable," or (2) "the most stringent emission limitation which is achieved in practice by such class or category of source."302The following is a list of ozone nonattainment offset requirements: Rural Transport or Marginal Areas: at least 1.1 to 1; Moderate Area: at least 1.15 to 1; 299 Id., 300 r J
9 NR 408.02(4).
1u.
30' 302
Id., $9 NR 408.04-408.08. 42 U.S.C. 0 7501(3).
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Serious Areas: at least 1.2 to 1; Severe Areas: at least 1.3 to 1 ; and Extreme Areas: at least 1.5 to 1.303 These ratios apply to both NOx and VOCs because both contribute to ozone formation. For existing sources in nonattainment areas, there is also a technology standard, known as the reasonably available control technology (RACT) standard.304Like BACT and LAER, RACT is actually an emissions standard based on a technology determination. Stemming from a change in the 1990 Amendments, in an attempt to bring nonattainment areas into attainment, EPA recently mandated that states "consider all potentially available measures to determine whether they [alre reasonably available for implementation in the area, and whether they would advance the [area's] attainment date."305 This is EPA's interpretation of Congress' requirement that states use reasonably available control measures (RACM) to bring their nonattainment areas into attainment. At a minimum, DNR must require existing sources to meet RACT in the ozone nonattainment areas. Although the CAA does not define RACT, EPA defines it as: means, devices, systems process modifications, or other apparatus or techniques that are reasonably available taking into account: (1) the necessity of imposing such controls in order to attain and maintain a W Q S ] ; (2) the social, environmental and economic impact of such controls; and (3) alternative means of providing for attainment and maintenance of such standards.306 Wisconsin is still in the process of adopting its RACT ozone standards and meeting its RACM requirements for its ozone nonattainment areas. Although Wisconsin can adopt its own standards, EPA issues control technique guidelines (CTGs) for industries and individual processes that it considers equivalent to RAcT.~'~If the state uses the CTGs, EPA will almost Wis. Admin. Code 9 NR 408.06(4). 42 U.S.C. 6 7502(c)(l). 305 Approval and Promulgation of Air Quality Implementation Plans, 66 Fed. Reg. 586,607 (Jan. 3,2001). 306 40 C.F.R. $ 5 1 .loo. 307 44 Fed. Reg. at 53,762. 303 See 304
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certainly agree to its SIP revisions, but anything less stringent than the CTGs will require explanation and additional EPA scrutiny. Once implemented, sources in nonattainment areas will be required to meet the RACT emissions limitation, which will be incorporated into their operating permits.
F. PSD Visibility Requirements: BART The PSD program also includes visibility provisions, which aim to protect and enhance the visibility in Class I areas (e.g., national parks). EPA just passed a rule relating to these provisions, called the Regional Haze Rule. Under the rule, DNR must establish goals and reduction strategies for improving visibility in Class I areas, and provide EPA with a list of sources that it determines have emissions "reasonably attributable" to visibility degradation in these areas. These listed sources will be required to install the best available retrofit technology (BART); however, the program only applies to 26 source categories and to sources built between 1962 and 1977.~'~ The BART determination is made on a case-by-case basis as set out in 40 C.F.R.
5 51.308(e). Nonattainment SIPS must be revised first (by 2008). The goal is to try to
achieve natural visibility conditions in Class I areas within 60 years. Interestingly, of the approximately 220 Class I areas in the United States, only one is located in Wisconsin. This Class I area, known as Rainbow Lake Wilderness area, is located in the north-west corner of Wisconsin. According to DNR7swebsite, Rainbow Lake and Bradwell Bay Wildlife Area in Florida are different than all other Class I areas in that both areas are specified as areas where visibility is not recommended as an important value. Thus, visibility modeling
308
42 U.S.C. 9 7491(b)(2)(A).
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does not have to include Rainbow ~ a k e . ~Nonetheless, '~ DNR will still have to assure that Wisconsin sources do not degrade visibility in other state's Class I areas.
G. Emissions Trading (SOz, NOx and Mercury) Before 1990, the CAA only used command-and-control type approaches, which essentially set caps on the levels each source can pollute. After the 1990 CAA Amendments, however, emission trading was allowed for SOz, which has since been considered a huge success.310As such, emission trading has become more popular. In fact, in the past two years, EPA has finalized rules instituting allowance trading for NOx and mercury emissions. The following example will explain how emissions trading works as compared to the typical command-andcontrol approach: For example, if industry A and industry B both have to meet the same standard of ten units, and both emit twenty units, each industry would have to abate ten units under the command and control approach. If it costs A two dollars for every abated unit and B one dollar for every abated unit, then A would have to pay twenty dollars to abate the ten units and B would have to pay ten dollars to abate the ten units. Therefore, the total cost to both A and B to abate twenty units would be thirty dollars. A trading system allows B to abate below the standard and sell the difference to A. Thus, assuming the same figures, B could abate all twenty of the units of pollution for a cost of twenty dollars, and subsequently sell the extra ten units to A for fifteen dollars. So A's total cost to meet
the standard is fifteen dollars, and B's total cost to meet the standard is five dollars (twenty dollars minus the fifteen dollars received for the credits) with a total cost of twenty dollars to both industries to abate the same amount of pollution as with the command and control approach.31
'
In the 1990 Amendments, Congress expressly set a cap on the total annual tons of SO2 to be emitted nationally. From this cap, EPA delegates allowances annually in one-ton increments according to an average of each facility's emissions levels fiom 1985-1987. Every year, the allowances are divvied out to the source for fi-ee. The sources can then choose to keep, transfer,
of SigniJicantDeterioration, available at httv://vrodwbin99.dnr.state.wi.us/org/aw/air/ modeling/psd.htm. 310 42 U.S.C. $8 7651a-76510. Brian H. Potts, A Clearer Skies Proposal: The Multi-Category Ratio Approach, 12 N.Y.U. Envtl. L.J. 286,289 309 WDNR, Prevention
(2003).
Chapter 4 Air Polluticln Control
.and or bank the allowances for future
EPA checks every three rnonths3I3to ensure that
facilities have enough allowances based on monitoring data collected by continuous emissions monitoring systems (cEMs).~'~ Almost immediately afier taking office, President George W. Bush proposed a bill, titled the Clear Skies Act, which attempted to create trading regimes for NOx and mercury.315However, when this bill failed to garner support, EPA instead proposed two rules aimed at achieving the same goal as the Clear Skies Act: the Clean Air Interstate Rule (CAIR) and the Clean Air Mercury Rule (cAMR).~'~ These rules were recently finalized and Wisconsin is currently in the process of attempting to change its SIP accordingly. CAIR and CAMR are very similar to the SO2trading program that was created in 1990 under Title I V . ~ Under '~ CAIR, EPA allocates NOx and SO2 allowances to each state; however, the states can decide whether to participate in the cap-and-trade program or create their own program to meet the budget. DNR is currently proposing to adopt the cap-and-trade program, with a few significant modifications-primarily
regarding how the allowance are allocated to sources, and
in what amount.318As was the case with the SO2 program, the CAIR cap has two phases. The first phase begins in 200912010 and the second phase, which lowers the cap significantly, begins in 2 0 1 5 . ~ ' ~
U.S.C. $ 7651b(b). C.F.R. (i 75.64. 314 42 U.S.C. $5 7414(a)(3) and 7651k(a); 40 C.F.R. $ 51.165(a)(xxxi). 315 H.R. 999,108th Cong. $$ 2,411(21)(C) (2003) (amending 42 U.S.C. $$ 7651-76510 (2000)). 3'6 Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units, 70 Fed. Reg. 28606 (May 18,2005) (CAMR Rule); Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule), Revisions to Acid Rain Program, Revisions to the NOx SIP Call, 70 Fed. Reg. 25162 (May 12,2005). 3'7 See U.S. Environmental Protection Agency Fact Sheet, Clean Air Interstate Rule Basic Information, at 312 42
313 40
httv://www.eva.gov/CAIR!basic.html. 318 -Id. ...
U.S. Environmental Protection Agency Fact Sheet, Clean Air Interstate Rule Basic Information, at http://www.eva.gov/CAIR!basic.html. 3'9
Chapter 4 Air Pollution Control
CAMR imposes a similar system for mercury.320The CAMR rule, however, is subject to significant legal hurdles before being implemented as many states, including Wisconsin, have sued EPA over its decision to de-list mercury as a HAP (discussed in the next section). Currently, mercury is regulated in Wisconsin pursuant to NR 446 (Control of Mercury Emissions).
H. Hazardous Air Pollutants The CAA regulates 188 listed hazardous air pollutants (HAPs) pursuant to section 112.'~' Non-federally listed hazardous or toxic air pollutants are regulated in Wisconsin under NR 445, which includes a much more detailed list and much broader requirements than the federal program. In fact, some of the CAA listed HAPs are regulated under NR 445. HAPs are regulated both for their acute (short-tern) and chronic (long-term) effects. "People exposed to toxic air pollutants at sufficient concentrations and durations may have an increased chance of getting cancer or experiencing other serious health effects. These health effects can include damage to the immune system, or neurological, reproductive (e.g., reduced fertility), developmental, respiratory and other health problems."322
The federal regulation of HAPs is two-tiered. First, EPA must establish a technology based standard called the maximum achievable control technology (MACT) standard for various source categories.323Second, EPA uses a risk-based approach that assesses this MACT standard after being implemented.324It is important to note that many CAA definitions are different for HAP regulation, such as the definition of "major source."
320 U.S. Environmental Protection Agency, Clean Air Mercury Rule Basic Information, at http://www.eva.gov/air/ mercurvrule/basic.htm. 32' 42 U.S.C. 5 7412. The list of federal hazardous air pollutants is located at 42 U.S.C. Ej 7412(b). 322 WDNR, Wisconsin 's Air Toxics Program, available at htt~://www.dnr.wi.gov/ordaw/air/health/. 323 42 U.S.C. 6 7612(d). 324 42 U.S.C. 6 7612(f).
Chapter 4 Air Pollution Control
The EPA-issued MACT generally sets strict emissions limitations for all facilities in a specific category. For existing sources, MACT must be stricter than the average emission limitation of the best performing 12% of existing
For mercury emissions from power
plants, which are now regulated by CAMR, the MACT would have been around a 90% reduction. For new sources, on the other hand, MACT must be as stringent as the average emissions of the best controlled sources in the same EPA-created category. EPA's adopted MACT standards are known as national emissions standards for hazardous air pollutants (NESHAPs). EPA's post-1990 NESHAPs are located in 40 C.F.R. part 63.326NESHAPs which predate the 1990 Amendments are still used and can be found in 40 C.F.R. part 61. DNR's adoption of EPA's NESHAPs are located in chs. NR 460-469. The following is a list of DNR's NESHAP adopted standards: NR 460: General Federal HAP Provisions NR 463: NESHAP for Metals Treating and Processing NR 464: NESHAP for the Pulp and Paper Industry NR 465: NESHAP for General Surface Coating Processes NR 466: NESHAP for the Printing and Publishing Industry NR 468: NESHAP for Miscellaneous Processes (Dry Cleaning, Sterilization Facilities,
and Industrial Process Cooling Towers) NR 469: Emission Standard for Halogenated Solvent Cleaning Operations DNR also has a separate HAP program, which goes beyond EPA's NESHAP approach. These regulations are found in NR 445, and apply to all HAPs not regulated under CAA section 112 (or the NR 4 6 0 s ) . ~NR ~ ~445 is a complex regulatory scheme. DNR separates the HAPs into
9 7412(d)(3)(a). Also be sure to consult 40 C.F.R. part 61 for pre-1990 HAP requirements (known as NESHAPs). 327 Wis. Admin. Code 9 NR 445.01(b). 325 Id., 326
Chapter 4 Air Pollution Control
five tables, which list the emissions rates. In addition, the regulations separate sources based on when they were constructed or modified. NR 445.05 applies to sources constructed or last modified between October 1, 1988 and July 1, 2004, and NR445.05 applies to sources constructed or last modified before October 1, 1988. Each group has different requirements for each different HAP table. In 2004, DNR adopted even more detailed regulations, which are now found in parts NR445.07 (Emission thresholds, standards, control requirements and exemptions) and NR 445.08 (Compliance requirements). Essentially, NR 445.07 eventually will replace NR 445.05 andsNR445.06 and apply to all sources. Currently, it applies to all sources built after July 1, 2004. NR 445.08(6) contains the compliance deadlines for pre-2004 existing sources, which generally require these sources to comply with NR 445.07 and NR 445.08 by June 30, 2007. Although extremely detailed, NR 445.07 applies only to sources whose potential to emit is above the thresholds listed in Table A of the regulation. Similar requirements are set for the manufacture or treatment of pesticides, rodenticides, insecticides, herbicides or fungicides (in Table B), and for pharmaceuticals (in Table C). V. MOTOR VEHICLE REGULATION Motor vehicle regulation, which arises from CAA subchapter 11, is much different than stationary source regulation in that there are virtually no state run programs. With only a few limited exceptions, the CAA preempts states from regulating new motor vehicle emissions.328 There are primarily four CAA methods of motor vehicle control through regulating: new engines and vehicles, fuels and fuel additives, in-use vehicles, and transportation planning.329Although motor vehicles produce hazardous air pollutants, which are regulated under CAA section 112,
328
42 U.S.C. Q 7521.
329
Reitze, supra, note 184, at 269.
Chapter 4 Air Pollution Control
the primary motor vehicle pollutants are carbon monoxide, nitrogen oxides, hydrocarbons or VOCs, and particulate matter. A. Control of New Motor Vehicles
The federal new motor vehicle program comprises two separate sections: certification and mobile source enforcement. Certification is simply a program which requires the manufacturer of new motor vehicles (including many non-road vehicles and small engines) to obtain a certificate of conformity which ensures that the product meets various emission standards.330The rules dealing with the new car certification procedures are found in 40 C.F.R. part 86, which is over 1,000 pages in length. All car companies that sell cars in the U.S. are subject to the regulations; details for all types of vehicle testing are available in the regulations. First, EPA tests a prototype of the vehicle, and then it randomly "audits" the production line, taking random cars from the production line to ensure that the emissions haven't changed. This latter testing is called "assembly line testing."331 There are also in-use regulations, or enforcement provisions, which include recall, warranty, and tampering related regulations to ensure that the car's performance does not deteriorate throughout its useful life.
B. California Standards Because California had stringent new motor vehicle regulations before Congress adopted the CAA of 1970, the CAA did not preempt California's program. Thus, car companies were required to make two types of cars: one meeting the federal requirements and one meeting the California requirements. In the CAA Amendments of 1977, Congress went even further, allowing other states to adopt California's program if the state has nonattainment areas.332The 1990 Amendments further limited this allowance by: (1) not allowing opt-in states to limit sales U.S.C. 5 7525(a). 5 7525(c). 332 Id., 5 7507.
330 42
331 Id.,
Chapter 4 Air Pollution Control
of California-certified vehicles; and (2) not allowing the states to change the standards making the car companies produce a "third car."333Wisconsin has not adopted the California standards; however, many of the south-eastem nonattainment counties do require vehicle emissions testing before renewing the license plate of any vehicle built after 1968.334These Wisconsin vehicle emissions testing standards are located in NR 485.
333
Id.
334 See
the Wisconsin Vehicle Inspection Program's website at htt~://www.wiviv.com/index.html.
CHAPTER 5 SURFACE WATER Lauren L. Azar I. OVERVIEW Wisconsin is a water-rich state. Since before statehood, the governing authority over this territory created laws protecting Wisconsin's waters. Today, the protections over Wisconsin's water resources are expansive, and this book addresses them in four separate chapters: (1) Surface Water, (2) Wisconsin Pollutant Discharge Elimination System Permit Program, (3) Wetlands, and (4) Groundwater and Drinking Water. With over 150 years of water law, it is
impossible to capture all of the cases, compacts, statutes, ordinances and regulations pertaining to Wisconsin waters, but these four chapters discuss the primary regulations. The regulations over surface waters, the topic of this chapter, are a combination of treaty, statute (federal and state) and common law. This chapter first discusses rights in surface waters, which are primarily defined through case law. Restrictions over surface waters are then discussed, which are primarily imposed through treaty and statute and are grouped into four sections: activities on and near surface waters, dams, surface water quantity and, lastly, shoreland and floodplain zoning. 11. APPLICABLE STATUTES AND ADMINISTRATIVE RULES The following are some of the more fundamental statutes and rules regulating activities on or near surface waters: A. International Law 1909 Boundary Waters Treaty 1985 Great Lakes Charter Annex2001 Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement (2005)
Chapter 5 Surface Water
B. Federal Law Northwest Ordinance of 1787 Rivers and Harbors Act of 1899 = 33 U.S.C. 5 401,et seq. 33 C.F.R. parts 321,322,329,330 Water Pollution Control Act = Clean Water Act = 33 U.S.C. $5 1341,1342,1344, 1362 40 C.F.R. parts 225,229 to 233 33 C.F.R. parts 323,325,327,328,330 Fish and Wildlife Coordination Act = 16 U.S.C. 5 662 Wild and Scenic Rivers Act = 16 U.S.C. $9 1271-1287 Compacts Among States Great Lakes-St. Lawrence River Basin Water Resources Compact (2005)
C. State Law Wis. Const. art. IX, 5 1 Wis. Stat. 8 13.097= Lakebed Grant Wis. Stat. 5 23.24 = Aquatic Plants Wis. Admin. Code ch. NR 109 Wis. Stat. 5 23.31 = Wetland Mapping Wis. Stat. ch. 30 = Navigable Waterways Wis. Admin. Code ch. NR 142 Wis. Admin. Code chs. NR 320,322,324,325,326,340,346 Wis. Stat. ch. 31 = Dams Wis. Admin. Code chs. NR 333,335 Wis. Stat. 5 87.30 = Floodplain Zoning Wis. Admin. Code ch. NR 116 Wis. Stat. 5 59.692,61.35,62.231= Shoreland and Wetland Zoning Wis. Admin. Code chs. NR 1 15,117 Wis. Stat. chs. 60 and 66 = Sewage Districts, Sanitary Districts, Municipal Water Utilities Wis. Admin. Code chs. PSC 183-187 Wis. Stat. $8 94.26-94.27= Cranberry dams Wis. Stat. ch. 88 = Drainage Wis. Admin. Code ch. ATCP 48 Wis. Stat. ch. 196 = Water Utilities Wis. Admin. Code chs. PSC 183-187 Wis. Stat. 5 236.16(3) = Public Lake Access Wis. Admin. Code $9 NR 1.90-1.91 Wis. Stat. ch. 281 =Water and Sewage
Wis.Admin.Codechs.NR108,110,113,114,204,210
Chapter 5 Surface Water D. Local Law
Stormwater Ordinances Zoning Ordinances for Shorelands, Shoreland-wetlands, and Floodplains 111. RIGHTS IN SURFACE WATER The State of Wisconsin's regulation of activities in and near surface waters stems both from the state's ownership rights in certain waters as well as its obligations to preserve and protect the waters of the state for the public use. A. Key Definitions There are three key concepts in distinguishing between public and private rights over waters located in Wisconsin: the public trust doctrine, navigability, and the ordinary high water mark (OHWM).
I. Public Trust Doctrine The public trust doctrine requires the state to hold natural navigable waters in trust for the public, namely protecting the rights of the public to use these waters. The trust doctrine applies up to the ordinary high water mark of all natural navigable waters. It also applies to artificial navigable waters if they are "directly and inseparably connected with natural, navigable waters."335 Hence, in determining whether any waterbody is subject to the public trust doctrine, the initial line of inquiry should be "Is the waterbody navigable?" followed quickly by "Is it natural or connected to a natural water?" The public trust doctrine stems from English common law, the Northwest Ordinance of 1787~ and ~ ~the Wisconsin ~ o n s t i t u t i o n .The ~ ~ Wisconsin Constitution states: "[Tlhe river
v. DNR, 163 Wis. 2d 921,929,472 N.W.2d 603 (Ct. App. 1991). The Northwest Ordinance of 1787 applied to, among others, the territorial land that ultimately became Wisconsin in 1848. See Northwest Ordinance of 1787, art. IV. 337 Diana Shooting Club v. Lamoreux, 114 Wis. 44,54,89 N.W. 880 (1902); Diana Shooting Club v. Husting, 156 Wis. 261,269-72,145 N.W. 816 (1914); Muench v. PSC, 261 Wis. 492,515,53 N.W.2d 514 (1952). 335 Klingeisen 336
Chapter 5 Swface Water
Mississippi and the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the state as to the citizens of the United States, without any tax, impost or duty therefor."338 Initially, the trust doctrine focused on protecting the public's use of navigable waters for commercial purposes, i.e., as "common highways."339 Later, the Wisconsin Supreme Court expanded the doctrine to protect fishing, hunting, and other public rights in the recreational of Wisconsin's navigable waters and even later to protect scenic beauty.341 u ~ h ~ Legislature has the primary authority to administer the public trust for the protection of the public's rights, and to effectuate the purposes of the
The doctrine is dynamic,
continuing to change to this day. 2. Navigability The definition of "navigability" has also changed over time with earlier definitions hinging on commercial uses but later broadening to include recreational
In early case law,
navigability was defined by the saw-log test, i.e., whether logs could be floated to the nearest sawmill. Currently, navigability is defined by "navigability in fact." "Navigable-in-fact" means a waterbody is navigable by a boat, skiff or a canoe of the shallowest draft on a recurring basis, which includes the annual spring
If a waterbody historically has beaver dams,
navigability must be determined with the beaver dams in place.345The Wisconsin Department of
Wis. Const. art. IX, 8 1. 01son v. Mewill, 42 Wis. 203, 212 (1877). 340 ~ u e n c h261 , Wis. at 515. 341 Id. at 511-12. 342 Hilton v. DNR, 2006 WI 84,119,717 N.W.2d 166. 343 Id. at 500-06. 344 Id. at 506; DeGayner & Co. v. DNR, 70 Wis. 2d 936,949,236 N.W.2d 217 (1975). 345 DeGayner, 70 Wis. 2d at 947. 338
339
Chapter 5 Surface Water Natural Resources (DNR) has the jurisdiction to designate the navigability of waters in
isc cons in.^^^ 3. Ordinary High Water Mark (and Bulkhead Lines)
In 1914, the Wisconsin Supreme Court defined the OHWM as "the point on the bank or shore up to which the presence and action of the water is so continuous as to leave a distinct mark either by erosion, destruction of terrestrial vegetation, or other easily recognized
character is ti^."^^' This same definition is used today. The OHWM extends to the point where the lake water would naturally flow in the absence of any artificial barriers.348Over time, the OHWM on any waterbody may change with fluctuating water levels.349Changing OHWMs are fodder for litigation. With two exceptions, the DNR designates the OHWM and, in doing so, looks for such things as mosses, lichen, trees, algae stains, water stains, ice scars, and erosion.350If there are no distinct markings on a specific parcel for which an OHWM designation is sought, the DNR may locate the OHWM on a nearby parcel located on the same body of water and extrapolate that OHWM to the desired location.
The OHWM for a lake laying wholly within a town sanitary district may be designated by that sanitary
Additionally, with approval from the DNR, municipalities may designate
bulkhead lines, which essentially act as the OHWM.~'~Once approved, the bulkhead line replaces the OHWM for purposes of defining ownership and regulating access to waterbodies.
Turkow v. DNR, 216 Wis. 2d 273,279,576 N.W.2d 288 (Ct. App. 1998). Shooting Club v. Husting, 156 Wis. at 272. 348 State v. Trudeau, 139 Wis. 2d 91, 109,408 N.W.2d 337 (1987). 349 ~ a n s v. k ~City of Two Rivers, 227 Wis. 228,236,278 N.W. 527 (1938). 350 Wisconsin DNR, Waterway & Wetland Handbook ch. 40, at 5-7 (2003), available at http.//dnr.wi.gov/org/ water/fhp/handbooMindex.html. 35' Wis. Stat. ji 30.103. 352 Wis. Stat. ji 30.1 1. 346
347 Diana
Chapter 5 Surfbce Water B. Ownership and Use
The ownership of and right to use waterbodies in the State of Wisconsin usually hinge on three inquiries: 1. Is the waterbody (i) navigable, (ii) non-navigable and isolated, or (iii) non-navigable but close to a navigable waterbody? 2. Is the waterbody natural, artificial, or a combination of the two?
3. Is the waterbody located entirely on private lands and, if so, is it near a navigable waterbody? Below, each of these inquires are applied to lakes, ponds, rivers, streams, ditches and flowages to explain who owns and who may use the waterbody. 1. Lakes and Ponds
a. Natural Lakes and Ponds Lakes or ponds are bodies of water in which the current is more or less stagnant or which lack an unidirectional current.353(Because Wisconsin law does not distinguish between lakes and ponds, hereafter we will refer to both as "lakes".) Lakes without inlets and outlets are relatively easy to identify. Lakes created by the widening of a river or stream are less easy to identify. At what point does the widening of a river with diminishing flow become a lake? Wisconsin law is not clear. (i) Ownership of Natural Lakes The state owns the beds of all natural lakes.354The bed is defined as the land located below the OHWM.~'~ The OHWM on a navigable lake may extend into non-navigable areas with the state owning up to the OHWM in the non-navigable areas.356Indeed, an artificial barrier erected
This definition is provided in Wis. Admin. Code 9 NR 104.02(l)(a) but may not be applicable to Wisconsin law generally. Wisconsin statutes and rules do not include a generic definition for lakes or ponds. 354 Illinois Steel Co., v. Bilot, 109 Wis. 418,425,84 N.W. 855 (1901). 355 ~ a ~v.eGrueber, r 29 Wis. 2d 168,173,138 N.W.2d 197 (1965). 356 Trudeau, 139 Wis. 2d at 103. 353
Chapter 5 Surface Water
in a navigable lake does not extinguish the state's rights to the entire lakebed. "As long as lake water would naturally flow to and from the site in the absence of an artificial barrier, it is a part
of [the lake]."357The state also owns the water, aquatic plants and aquatic life in natural lakes.358 The state may convey some of its ownership rights in a lakebed through a "legislative lakebed grant."359Pursuant to state statute, the Wisconsin Legislature may grant ownership rights in a lakebed to a third party (usually a municipality) providing that the grant does not violate the public trust doctrine. Lakebeds may be conveyed to private parties if the conveyance is in the public interest and aids in navigation.360The legislation must specify the purpose of the proposed conveyance, i.e., specify the intended uses of the lakebed area that would be subject to the proposed conveyance. Only those purposes specified within the legislation are conveyed to the grantee with all residual rights remaining with the state. The grantee may only use the lakebed for the purposes specified within the legi~lation.~~' When the Legislature grants Lake Michigan lakebed to a municipality, certain provisions of Wis. Stat. ch. 30-including
ยง$ 30.12 and 30.20-are
rendered inapplicable within the area of
the grant.362In grants of Lake Michigan lakebed to a municipality, the municipality has the jurisdiction to approve or reject another party's use of the lakebed-grant area.363 The state may also lose ownership of lakebeds through the processes of accretion and reli~tion.~@ Overtime, soil may be deposited on the shores of a lake causing the bed to rise above the OHWM. This is called "accretion." The upland created through accretion is owned by the Id. at 109. Wis. Stat. $3 1.O35(3), 29.001(90) and 29.0 11. 359 Wis. Stat. 9 13.097. 360 City ofMilwaukee v. State, 193 Wis. 423,456,214 N.W. 820 (1927); State v. PSC, 275 Wis. 112, 119, 81 N.W.2d 71 (1957); Wis. Stat. 9 13.097(4)(03. Though the Legislature may legally convey lakebed grants to private arties, it is unlikely given the current climate surrounding the state's waters. "I City ofMadison v State, 1 Wis. 2d 252,259,83 N.W.2d 674 (1957). 362 Wis. Stat. 9 30.05. 363 Gillen v. City ofNeenah, 219 Wis. 2d 806,580 N.W.2d 628 (1998). 364 Doemel v. Jantz, 180 Wis. 225,235, 193 N.W. 393 (1923). 357
358
Chapter 5 Surface Water
riparian.365Moreover, if someone other than the riparian places fill on the lake thereby raising the bed above the OHWM, the riparian takes title to the upland.366Reliction occurs when the water level falls permanently on a lake essentially creating a new OHWM. The riparian gains ownership of the exposed land down to the new O H W M . ~ ~ ~ The state may gain ownership of lakebeds through gradual erosion of the lakeshore. If, however, a sudden change occurs along a lakeshore, such as a flood removing a portion of a shoreline which moves the OHWM landward, ownership between the riparian and the state does not change.368This type of event is called "avulsion". (ii) Use and Enjoyment of Natural Navigable Lakes The public trust doctrine applies to all navigable lakes that are natural, i.e., the state must protect the public's right to use these waters. Wisconsin statutes specify that lakes that are "navigable in fact are declared to be navigable and public waters."369 The general public has a right to use navigable lakes providing they can access the lake without trespassing on private property. Hence, if a navigable lake is completely surrounded by private property, the general public cannot use that waterbody unless they can access it with permission from one of the riparians.370 Because they serve as the public's portals to navigable waters, properties providing public access to navigable lakes are protected. Any party wishing to discontinue a public lake access
365 Boorman v. Sunnuchs, 42
Wis. 233,242 (1877); Doemel, 180 Wis. at 23 1. Simone v. Kramer, 77 Wis. 2d 188,201,252 N.W.2d 653 (1977); KH. Pugh Coal Co. v. State, 105 Wis. 2d 123,127,312 N.W.2d 856 (Ct. App. 1981). 367 Heise v. Village ofPewaukee, 92 Wis. 2d 333,343-44,285 N.W.2d 859 (1979). 368 Attorney General ex rel. Becker v. Bay Boom Wild Rice & Fur Co., 172 Wis. 363,373,178 N.W. 569 (1920). 369 Wis. Stat. $ 30.10(1). 370 Zinn v. State, 112 Wis. 2d 417,426, 334 N.W.2d 67 (1983); Delaplaine v. Chicago &Northwestern Ry. Co., 42 Wis. 214,220 (1877).
366 De
Chapter 5 Su~faceWater
point must either show that the access point is unimportant or provide a substitute and equal access to the same ~ a t e r b o d ~ . ~ ~ ' While the OHWM is the demarcation line for public and private ownership rights on natural lakes, the water's edge is the demarcation line for public use on natural navigable lakes. In low water conditions, the courts have ruled that the riparian owner on a lake has a right to the land between the actual water level and the OHWM; the riparian may exclude the public therefrom providing they are not interfering with the rights of the public for navigational purposes.372 (Riparian rights are discussed in more detail below.) Since the state owns the lakebed up to the OHWM, being able to exclude the public from the water's edge up to the OHWM suggests that the public's use of natural navigable lakes stems from navigability and is completely independent of the state's ownership of the lakebed. Similarly, when the water's edge is higher than the OHWM, the public is entitled to use up to the water's edge. In short, when using natural lakes, members of the public must keep their feet wet to avoid trespassing.
b. Artificial Lakes and Ponds In contrast to natural lakes, whoever originally owned the land under an artificial lake continues to own that land after flooding it. The owner of the land under an artificial lake also has complete ownership and control over the water, aquatic plants and aquatic animals of artificial lakes.373There are two exceptions to these general rules: 1. If a natural waterbody existed prior to the creation of the artificial lake, then the state owns what would have been the original lakebed and the landowner owns the bed of the
Code $9 NR 1.90-1.91; Wis. Stat. $ 236.16(3). 180 Wis. at 234; State v. McFarren, 62 Wis. 2d 492,498-99,215 N.W.2d 459 (1974); Gianoli v. Pfleiderer, 209 Wis. 2d 509,535,563 N.W.2d 562 (Ct. App. 1997). There is some debate over the degree to which this line of cases qualifies riparian rights. 373 Mayer v. Grueber, 29 Wis. 2d 168,173,138 N.W.2d 197 (1965). 371 Wis. Admin. 372 Doemel,
Chapter 5 Su~faceWater
artificial portion of the lake. Historic aerial photographs are used to determine the original size of the natural ~ a t e r b o d ~ . ~ ~ ~ 2. If an existing or proposed artificial lake is "connected" to or located within 500 feet of a navigable waterbody, then a permit is required to construct, dredge or enlarge the ~ a t e r b o d ~The . ~ ~state ' also has the authority to permit public access to these artificial lakes or ponds.376 The Wisconsin Supreme Court has ruled conveyance of property "up to the water's edge" of an artificial lake conveyed no rights to use that lake since it did not convey any land underlying the lake.377 2. Rivers, Streams, Creeks and Ditches Wisconsin law does not distinguish between rivers, streams and creeks (hereafter we will refer to all as "streams"). Though there is not a uniform definition, "ditch" usually refers to an artificial ditch, channel, canal or other artificial stream of water.378 Accordingly, "artificial stream" includes ditches. As described below, the ownership of streambeds differs markedly from that of lakebeds, while the rules for using lakes and streams are similar. a. Ownership of Streams
In contrast to lakes, the state has no ownership rights to the beds of natural rivers, streams, and creeks. Riparians own the streambed up to the centerline (or "thread) of the stream.379 However, as with lakes, the state owns the water and aquatic life in natural navigable streams.380 The riparians own the water and aquatic life in artificial streams (both non-navigable and navigable) provided they are not connected to any natural navigable w a t e r b ~ d ~As . ~ in ~ ' lakes,
374 Paul G . Kent
& Tamara A. Dudiak, Wisconsin WaterLaw at 15,83 (2d ed. 2001). Wis. Stat. $9 30.19(lg)(a) and (am). 376 Wis. Stat. 9 30.19(5). 377 Mayer, 29 Wis. 2d at 177. 378 See, e.g., Wis. Stat. 9 30.134(1)(a). 379 Mayer, 29 Wis. 2d at 173. 380 Willow River Club v. Wade, 100 Wis. 86, 102-03,76 N.W. 273 (1898); Munninghoflv. Wisconsin Conservation Comm'n, 255 Wis. 252,259,38 N.W.2d 712 (1949). 38' Klingeisen, 163 Wis. 2d at 928-29. 375
Chapter 5 Swface Water
over time the course of a stream may change and the doctrines of accretion and avulsion are applicable to streams.382
b. Use and Enjoyment o f Streams The public trust doctrine applies to natural navigable streams and, therefore, as long as the public can access the stream without trespassing, the public has a right to use a natural navigable stream. Except for entirely artificial drainage ditches used for agricultural purposes, streams that "are navigable in fact for any purpose whatsoever" are declared navigable.383 Riparians have the exclusive right to use the bed of the stream provided that such use does not interfere with public navigation.384However, a riparian's right to use the water, aquatic life and plants in navigable natural streams is qualified by the public trust doctrine.385 As with natural lakes, the water's edge is generally the demarcation line for public use on natural navigable streams.386In 2001, the Legislature created an exception to this rule: the public may use the land between the OHWM of a natural stream and the water's edge "if it is necessary to exit the body of water to bypass an obstruction."387 The public has no rights to non-navigable streams, whether they are natural or artificial. 3. Flowages
"Flowages" are artificial lakes created by the damming of a stream or lake outlet. Ownership depends on what is being dammed. When streams are dammed, riparians own the beds of flowages up to what would be the center of the stream.388For lakes, the state owns the bed of
382 Baldwin
v. Anderson, 40 Wis. 2d 33,45-46, 161 N.W.2d 553 (1968). Wis. Stat. 9 30.10(2).The Wisconsin Legislature has declared that farm drainage ditches that were not navigable before ditching are not "navigable" under chapter 30 of the Wisconsin Statutes. Wis. Stat. 5 30.10(4)(c). 384 Munninghofl255 Wis. at 259-60. 385 Diana Shooting Club, 156 Wis. at 269. 386 Doemel, 180 Wis. at 234-37. 3s7 Wis. Stat. 9 30.134 (2), as amended by 2001 Wis. Act 16,930.134(2). 388 Haase v. Kingston Coop. Creameiy Ass'n, 212 Wis. 585,588-89,250 N.W. 444 (1933). 383
Chapter 5 Surface Water
what would have been below the OHWM for the natural lake and the riparians own the land flooded by the dam.389 Whether the public trust doctrine applies to the flowage depends on whether the doctrine applied to the waterbody before it was dammed. For instance, the public trust doctrine applies to flowages created by damming navigable natural lakes and navigable streams and, therefore, the public may access and use these flowages. But, the public trust doctrine may not apply to flowages created by damming non-navigable ~ a t e r b o d i e s . ~ ~ '
4. Riparian Rights Riparian rights are the bundle of rights that are obtained by owning the bank or shore of a ~ a t e r b o d ~Riparian . ~ ~ ' rights are subject to the public trust doctrine and are, therefore, subject to the paramount interest of the state.392Accordingly, the state may limit a riparian's use of a navigable waterbody without committing inverse condemnation.393 Riparian rights include the following: Qualified privileges to use the shore up to the water's edge; Right to install piers of "reasonable" size; Reasonable access to and use of the water; and Right to withdraw water for consumption.394 With two exceptions, riparian rights cannot be conveyed to another party: (i) riparians may convey the right to cross the riparian's property to have access to the navigable water (this does
Kent & Dudiak, supra, note 39 at 83. 212 Wis. at 586. 39' Doemel, 180 Wis. at 230. 392 Mayer, 29 Wis. 2d at 173; RWDocks & Sl@sv. State, 2001 WI 73,77 22-23,244 Wis. 2d 497,628 N.W.2d 781, cert. denied, 534 U.S. 1041 (2001). 393 R WDocks & Slips, 244 Wis. 2d 497,732. 394 Doemel, 180 Wis. at 231; State v. Bleck, 114 Wis. 2d 454,465-66,338 N.W.2d 492 (1983). 389
390 Haase,
Chapter 5 Surface Water
not include the right to place a str~cture),~"and (ii) piers that were placed by non-riparians before December 3 1, 1986 pursuant to an easement are grandfathered under the law.39h Parties have gone to great lengths to circumvent the prohibition of conveying riparian rights. One of the most well-known cases involved "dockominiums." A riparian sold condominiums consisting only of a small lock box located on the shores of lake. This lock box purportedly entitled the condominium owner to riparian rights including the right to own a boat slip on the dock. The Wisconsin Supreme Court ruled that the lock boxes did not qualify as condominiums and, therefore, only riparian rights were being sold, which is prohibited by statute.397 In a 2006 case, the Wisconsin Supreme Court upheld the DNR's limits on the number of boat slips to which a riparian is entitled.398The court noted the Legislature delegated to DNR the duty to regulate piers. In administering that duty, the Supreme Court specified "there are three policy factors identified by the legislature that the WDNR must balance in enforcing environmental laws related to navigable waters": preserve the natural beauty; obtain the fullest public use; and provide for the convenience of riparian owners.399 The court concluded the Administrative Law Judge properly weighed these factors in ruling the riparian had to reduce its boat slips from 22 to 11. IV. RESTRICTIONS OVER SURFACE WATERS
Both the United States and Wisconsin governments have enacted comprehensive legislation regulating impacts to surface waters. These restrictions generally can be placed in two categories: Wis. Stat. 9 30.133. Wis. Stat. 9 30.131; see also Wendt v. Blazek, 2001 WI App 91,242 Wis. 2d 722,626 N.W.2d 78. 397 ABKA Limited P'ship v. DNR, 2002 WI 106, fl51,53,56,255 Wis. 2d 486,648 N.W.2d 854. 398 Hilton v. DNR, 2006 WI 84,717 N.W.2d 616. 399 1 d . , ~ 2 0 - 2 1 . 395 396
Chapter 5 Surface Water
restrictions over releasing compounds into surface water and restrictions over activities that are conducted in and near surface waters. The former set of restrictions are discussed in Chapter 8 on the Wisconsin Pollutant Discharge Elimination System Permit Program. Restrictions on activities in and near surface waters are discussed below. (In addition to the restrictions discussed in this chapter, activities in and near wetlands have further restrictions that are discussed in Chapter 6.) A. Restrictions on Activities In and Near Surface Waters
Activities conducted in or near surface waters are regulated by both the federal and state governments. In Wisconsin, the state has a more comprehensive regulatory regime than the federal government and, therefore, the first step in evaluating the need for a permit should begin with the DNR. One, however, should not overlook the need for federal permits.
I. State Regulation Through Chapter 30 The public trust doctrine is one of the cornerstones protecting Wisconsin's navigable waters. Chapter 30 of the Wisconsin Statutes codifies much of the case law relating to the public trust doctrine, i.e., namely protecting the rights of the public to use the waters of the state. Chapter 30 requires permits for many activities in and near waterbodies, most applying only to navigable waters but a few applying to all waters of the state. The following are some of the more common activities regulated under chapter 30 along with the pertinent administrative code sections:400
I
Wis. Stat. Section 30.12
30.121 30.123(2)
I
Example of Activities Regulated ( Wisconsin Administrative Code under Wisconsin Statutes Chapter 30 Chapter NR "Deposit[ing] any material or place any 323 = Fish & Wildlife Habitat Structures structure upon the bed of any navigable 326 = Piers, boat shelters and swim rafts 328 = Shore erosion control structures water ...." 329 = Miscellaneous structures constructing boathouses 325 = Boat houses and houseboats constructing or maintaining a bridge or 320 = Bridges and culverts culvert in or over a navigable water
Chapter 30 was substantially revised in 2004 to streamline the DNR permitting process and to clarify applicable procedures. To implement these revisions, DNR promulgated new and revised existing administrative rules in Wis. Admin. Code ch. NR 300, et seq. See 2003 Wis. Act 118. 400
I
Chapter 5 Surface Water
I
Wis. Stat. Section
I
Example of Activities Regulated I under Wisconsin Statutes Chapter 30
30.1 3 and 30.131 30.18
constructing a wharf, pier or swimming raft diverting water from a navigable stream or lake in certain circumstances 3O.l9(l g)(a) constructing, dredging or enlarging any artificial waterbody that connects with a navigable waterway 30.19(lg)(am) constructing, dredging, or enlarging any part of an artificial waterbody located within 500 feet of the OHWM of a navigable waterway .... 3O.l9(l g)(c) grading or removing at least 10,000 sq. feet of topsoil from the bank4'' of any navigable water 30.195 I changing or straightening a navigable stream removing any material from the beds of 30.20 navigable waters4'*
Wisconsin Administrative Code Chapter NR 326 = Piers, boat shelters and swim rafts 142.06 = Water management and conservation 343 = Ponds and artificial waterways
343 = Ponds and artificial waterways
341 = Grading on the bank
u
345 = Dredging
a. Chapter 30 Permits, Exemptions and Exceptions
Chapter 30 permits are categorized into three types of activities:
1. activities qualifymg for an exemption, 2. activities qualifylng for a general permit, and 3. activities requiring an individual permit. Those qualifylng for exemptions require the least amount of attention from the DNR and those needing individual permits, the most amount of attention. Lastly, there are a few industries that receive special treatment under chapter 3 0 . ~ ' ~ (i) Exemptions Routine and innocuous activities may qualify for an exemption under chapter 30. Anyone about to conduct an activity qualifylng for a chapter 30 exemption need not contact the DNR at all. However, if confirmation of the exemption is desired, a request for an "exemption "Bank?' is clearly defined within Wis. Admin. Code 4 NR 341.035. In addition to permits, contracts are available for some activities regulated under Wis. Stat. 9 30.20. 403 A few industries have specialized requirements under chapter 30, such as public utilities and cranberry growers. Wis. Stat. jj$ 30.025 and 94.26. 40'
402
I
Chapter 5 Surface Water
determination" from the DNR may be submitted at least 20 days before commencing the activity. The DNR must respond to the exemption determination request within 15 days.404Exemptions are available for many activities under Wis. Stat. $5 30.12, 30.123, and 30.20, a few of which are as follows: Wis. Stat. 4 30.12(1n): Replacement of riprap 100 feet or less including replacing the base layer; Replacement of riprap 300 feet or less only adding or moving rock within the footprint; Deposit of 2 cubic yards of sand, gravel or stone associated with an exempt activity; Structure, other than a pier, placed on a seasonal basis; Boat shelter, hoist or lift placed on a seasonal basis; and Pier or wharf up to 6 feet wide and 3 feet in depth. Wis. Stat. 4 30.123(6): Replacement of culverts with an inside diameter of 24 inches or less. Wis. Stat. 6 30.20(ln): Dredging by hand or hand-held device without aid of external or auxiliary power unless the material contains hazardous substances. Exemptions are available in most navigable waters but not in specially designated areas called "areas of natural resource interest" (ASNRI). In spite of the apparent availability of an exemption, the DNR may require a permit if a project is anticipated to cause a significant adverse impact to public rights. (ii) General Permits Activities requiring a chapter 30 permit may qualify for a general permit. Those wishing to obtain a general permit under chapter 30 must submit a permit application at least 35 days before commencing the activity. Within 30 days, the DNR is to notify the applicant if the application is complete. Once an application is complete, within 30 days the DNR will notify the applicant in writing whether the activity qualifies for a general permit. If DNR fails to answer, the project is considered eligible for the general permit provided that the permittee complies with the general 404
Wis. Stat. $9 30.12(2r), 30.123(6r) and 30.20(lr); Wis. Admin. Code
NR 310.05-310.08.
Chapter 5 Surface Water
permit specifications. The DNR may refuse to issue a general permit and, instead, require an individual permit if the project would cause significant adverse impact to public rights.405 General permits are issued for certain activities regulated under Wis. Stat. $5 30.12, 30.19, 30.20, including the following: Wis. Stat. 4 30.12(3): Placing a layer of sand or similar material on lakebed to improve recreational use; Replacing riprap that is not exempt; and Placing riprap 100 feet or less on inland lakes of 300 acres or more. Wis. Stat. 4 30.19(3r): Constructing or dredging an artificial waterway within 500 feet of a navigable water if work is in accordance with best management practices of stormwater permits; and Grading on or removing topsoil from the bank when the area exposed will exceed 10,000 square feet. Wis. Stat. 6 30.20(lt): Dredging for maintenance purposes if materials have been previously removed. If a general permit is issued, the permittee must notify the DNR five days before beginning the project and within five days of completing the project. The permittee must also submit a series of photographs to the DNR within one week of completing the project.406 (iii) Individual Permits If an activity is regulated under chapter 30 and does not qualify for either an exemption or a general permit, then an individual permit is required. Each section of chapter 30 has its unique permit standards, with some of the more common standards being: Will not materially obstruct navigation; Will not be detrimental to the public interest; Will not be detrimental to riparians; and With not materially reduce the flow capacity of the stream.
405
Wis. Stat. $ 30.206(3r). Admin. Code $4 NR 310.09-310.12.
406 Wis.
Chapter 5 Surface Water
Within 30 days of submitting an application to the DNR for an individual permit, the DNR must issue a determination of completeness or
Within 15 days of deeming an
application complete, the DNR provides public notice of the determination and requests public comments within 30 days. Any interested party may request a public hearing and the applicant (in its application) may also request a public hearing. (Usually an applicant will request a hearing when it suspects that a public hearing will be held, thereby avoiding the 45 days of public notice and comment.) If requested, the DNR will hold a public informational hearing; this is not a contested case proceeding.
b. Challennit~gIssuance o f an Individual Chapter 30 Permit After public comment or, if applicable, after the public informational hearing, DNR may issue an individual permit. At that time, interested parties have two mechanisms for challenging a chapter 30 permit either: (1) a contested case hearing that allows for further fact finding or (2) a judicial review proceeding that is based solely on the evidence already contained within the DNR file. If the challenger requests a contested case, the hearing must be completed within 90 days but is subject to a 60-day extension if the parties agree or the Administrative Law Judge so orders.408 The contested case procedure allows for a stay of a permit during the hearing process in some cases. After the final decision from a contested case hearing is issued, an interested party may challenge that decision through judicial review. The process for judicial review is specified in Wis. Stat. ch. 227 and discussed in Chapter 2.
407 408
Wis. Stat. 9 30.208; Wis. Admin. Code $9 NR 310.13-310.17. Wis. Stat. li. 30.209(2)(c); see also Wis. Admin. Code 9 NR 3 10.18.
Chapter 5 Surface Water If a project requires a water quality certification in conjunction with a chapter 30 permit, the project will be subject to two differing time fi-ames (one under chapter 30 and the other under Wis. Admin. Code ch. NR 299) for permit issuance and appeal rights.
c. Violations o f Chapter 30 Anyone violating chapter 30 and anyone who is a party to that violation is subject to an enforcement action.409Rather than initiating an enforcement action, the DNR may also choose to issue an after-the-fact In addition to the state enforcing chapter 30, private citizens may also initiate action against an offender when the citizen believes the DNR has inadequately regulated the private party!11 (See Chapter 18.)
2. Federal Regulation In addition to a chapter 30 permit, activities conducted in and near surface waters may also require a federal permit under the Rivers and Harbors Act and/or the Clean Water Act (CWA). The Rivers and Harbors Act protects navigation while the CWA focuses on the discharge of pollutants into surface waters. The most frequently used provisions of the Rivers and Harbors Act are Sections 9 and 10, which pertain to the building of structures or placement of materials in navigable waters. In contrast, while generally prohibiting "the discharge of any pollutant" into surface waters;l2 CWA 8 404 allows the discharge of dredged or fill material with a permit!13 The Army Corps of Engineers (Corps) is the agency responsible for issuing permits under
$8 9 and 10 of the Rivers and Harbors Act as well as $ 404 of the CWA; however, the United
Wis. Stat. $9 30.292 and 30.298; Wis. Admin. Code ch. NR 301. Capoun Revocable Trust v. Ansari, 2000 WI App 83, 713,234 Wis. 2d 335,610 N.W.2d 129. 41' Wis. Stat. 5 30.294; State v. Deetz, 66 Wis. 2d 1, 13,224 N.W.2d 407 (1974); Gillen v. City ofNeenah, 219 Wis. 2d 806,821,833,508 N.W.2d 628 (1998). 4'2 33 U.S.C. 0 131 l(a). 4'3 33 U.S.C. 5 1344. 409 4'0
Chapter 5 Surface Water
States Environmental Protection Agency (EPA) has veto authority over 5 404
Though
the federal government has not formally delegated its authority to the State of Wisconsin to administer either
55 9 and 10 of the Rivers and Harbors Act nor CWA 5 404, the DNR and the
Corps coordinate their activities and often only a single permit application is required for both the federal and state laws.415 a. Rivers and Harbors A c t 4 . 6 9 and 10
The Rivers and Harbors Act, which was enacted to protect the free-flow of commerce on the nations waterways, applies to waters either that are tidal or that have been used to transport interstate or foreign commerce.416The Rivers and Harbors Act regulates such activities as excavating and dredging in, placing structures and materials on, and altering the course of these waterways.417It also regulates the construction of bridges and dams in these
A59
or 5 10 permit must be obtained from the Corps to conduct these activities. For instance, anyone building near a River and Harbors Act waterway that needs to place a temporary bridge across that waterway for construction purposes must obtain a permit from the Corps.
b. Clean Water A c t 4 4 0 4 CWA 5 404 prohibits the discharge of dredged and fill materials without a permit. The CWA extends to more waterbodies than the Rivers and Harbors Act, namely all waters of the United States, which includes not only navigable waters, but also interstate waters and wetlands, wetlands adjacent to waters of the United States and tributaries, to name just a few.419(Federal regulations over wetlands are discussed later in Chapter 6.)
4'4
33 U.S.C. $ 1344(c).
Corps has effectively delegated authority to the DNR through GP-001-WI. 33 U.S.C. Cj 401, et seq.; 33 C.F.R. $ 329.4. 417 Section 10 = 33 U.S.C. Cj 403; 33 C.F.R. parts 322 and 323. 4'8 Section 9 = 33 U.S.C. Cj 40 1; 33 C.F.R. part 32 1. 419 33 C.F.R. $ 320.l(d); 33 C.F.R. $328.3. 4'5 However, the district office of the 416
Chapter 5 Su$ace Water
Since the CWA's jurisdiction turns on the "discharge" of "dredged or fill materials," the scope of these phrases is both determinative and frequently challenged.420For instance, as a result of lawsuits, the rule specifying whether a "discharge" includes so called "incidental fallback" of materials has bounced back and forth between not requiring a permit for incidental fallback, then requiring a permit, then not requiring a permit, and lastly requiring a permit under certain
circumstance^.^^' The current version of the rule is embroiled in a (i) Applying for a CWA 6 404 Permit
The Corps issues general permits, letters of permission, and individual permits under CWA
(a) General ยง 404 Permits General permits are available for applicants that fit generic criterion. There are three types of general permits:
1. Permits issued regionally through the Corps' district 2. Permits issued on a statewide basis; and 3. Permits issued on a nationwide basis through the Code of Federal ~ e ~ u l a t i o n s . ~ ~ ~
At this time, the Corps is only issuing regional general permits in Wisconsin, not nationwide general permits. Specifically, GP-001-WI (issued 1/1/04) and GP-002-WI (issued 4117/06) specify the activities that are eligible for a general permit in Wisconsin. To obtain coverage under GP-001-WI, an application must be submitted to the Corps. GP-002-WI contains two
The CWA's regulation over the discharge of dredged or fill material comes through the Act's prohibition against discharging of pollutants into waters of the United States without a permit. 33 U.S.C. $ 1344. "Pollutant" includes dredged spoil. 33 U.S.C. $ 1362(6). 42' National ASS'n ofHome Builders v. U.S.Army Corps ofEngineers, 440 F.3d 459,464-65 (D.C. Cir. 2006). These definitions relating to incidental fallback are referred to as the ~ u l l o c hRules. 422 Id. 423 33 C.F.R. $ 325.2(e)(2). 424 33 U.S.C. 0 1344(e). 420
Chapter 5 Surface Water
types of permits: "non-reporting" for which no application is required, and "provisional" which requires submission of a permit application. (b) Letters of Permission The Corps also issues what are called letters of permission (LOPS) authorizing activities under CWA 5 404. In Wisconsin, the Corps issued LOP-06-WI on April 17,2006, which applies to discharges of dredged and/or fill material into waters of the United States located in Wisconsin but not within tribal reservations. If not excluded:25
the following activities are
eligible for an LOP-06-WI: Activities where the discharge does not cause the loss of more than two acres of waters of the United States (including wetlands); Wisconsin Department of Transportation highway projects with discharges not causing a loss of more than five acres of waters of the United States; and Governmental agency projects maintaining or upgrading existing roads with discharges not causing a loss greater than two acres of waters of the United States. (c) Individual 5 404 Permits If an applicant qualifies for neither a GP nor an LOP, then helshe must apply for an individual permit. Individual permits require a public notice and comment period and take significantly longer to obtain than general permits. When evaluating whether to issue an individual 5 404 permit, the Corps applies a "public interest review" that balances the favorable impacts of the proposed project against the detrimental impacts.426The following criteria are applied during the public interest review:
Projects that include the following activities cannot obtain an LOP authorization and must obtain an individual permit: 9 Diversions of 10,000 gallonslday of surface or groundwater into or out of the Great Lakes Basin; 9 Activities in the City of Superior subject to the Superior SAMP; and 9 Activities in and within 300 feet of calcareous fens. 426 33 C.F.R. Q l j 320.l(a)(l) and 320.4(a)
425
Chapter 5 Surface Water
The relative extent of the public and private need for the proposed work; Practicability of using reasonable alternative locations and methods to accomplish the objective of the proposed work; and The extent and permanence of the beneficial and/or detrimental effects that are likely to occur on public and private In evaluating whether there are any practicable alternatives to the proposed location, if the project does not require water (or a wetland), then the Corps will presume that a practicable alternative exists.428The EPA and Corps have created guidelines for the
5 404
permitting
process.429These guidelines put in plainer English the steps used in evaluating a permit application. The guidelines warn, however, "that a discharge complying with the requirements of these guidelines will not automatically receive a permit."430 (ii) Water Quality Certification Under CWA 5 401 In order to obtain a CWA
5 404 permit (both general and individual), CWA 5 401 requires
the state to issue or waive a water quality certification. Applicants qualifying for general permit under
5 404
may also qualify for what is essentially automatic granting of water quality
certification. DNR issues water quality certifications under Wis. Admin. Code ch. NR 299 while applying, among others, the water quality standards found in Wis. Admin. Code chs. NR 1021 0 5 . ~ If ~ 'DNR denies a water quality certification, then no CWA 5 404 permit may be If DNR denies water certification for a federally regulated project but the applicant proceeds with the project anyway, DNR may initiate its own enforcement action against the applicant for failing to obtain a water quality ~ e r t i f i c a t i o n . ~ ~ ~
33 C.F.R. (i 320.4(a)(2). 40 C.F.R. (i 230.10(a). 429 40 C.F.R. part 230. 430 40 C.F.R. (i 230.10 Note. 43' Wis. Admin. Code (i NR 299.04. 432 33 U.S.C. (i 1341(a)(l). 433 Wis. Stat. $9 281 .l'i'(lO)(a) and 281 .%(I). 427 428
Chapter 5 Surface Water c. Exemptions fiom $ 4 0 4 Permits
Specified activities are exempt from the
9 404 permit requirements, including discharges of
dredged and fill material caused by certain agricultural activities and construction of temporary sedimentation basins at construction sites.434 B. Dams
Dams can take many forms fiom earthen embankments, to stop-log structures, to concrete weirs. Historically, dams have sparked many a controversy. Once constructed, the riparians around the flowage become accustomed to a specific water level and when that water level changes, the controversy over dam operations begins. Not surprisingly, dams are heavily regulated. As discussed earlier, on the federal level, a permit is required for constructing a dam on navigable waters, and the Corps administers these permits.435On the state level, a DNR permit is required to construct, enlarge, operate and maintain a dam over a navigable water.436 DNR approval is required to remove a dam.437Even transferring ownership of a dam requires DNR approval.438Hence, before selling a property containing a dam, the proposed buyer must submit proof of financial responsibility to the DNR and request approval for the transfer.439Dams over non-navigable streams are also subject to the DNR's oversight.440 When the DNR receives applications for constructing, enlarging, and removing dams, opportunities for a hearing are provided.441
33 U.S.C. $ 1344(f). Rivers and Harbors Act $ 9; 33 U.S.C. $ 401; CWA $ 404; 33 C.F.R. $5 321-322. 436 Wis. Stat. jj 3 1.05. 437 wis. Stat. jj$ 31.185 and31.13. 438 Wis. Stat. $ 3 1.2 1. 439 Wis. Stat. jj 31.14(4). 440 Wis. Stat. jj 31.3 1. 441 Wis. Stat. $5 31.06,31.08 and 31.253.
434
435
Chapter 5 Sulfate Water
DNR's regulatory authority over dams is comprehensive. The following identifies just some of the DNR powers over dams: "investigate and determine all reasonable methods of construction, operation, maintenance and equipment for any dam" and supervise the implementation of same; may designate maximum and minimum water levels that must be maintained through dam operation; and has free access at all times to any parts of a dam.442 Not only do dam owners have to comply with DNR's requirements, they also have a general statutory obligation to "maintain and operate [the dam] for the protection of the public rights in such waters, and for the preservation of life, health and property."443 The design requirements for dams are determined by the proposed size of the dam. Any new dam that falls within the following three categories must comply with the design and construction requirements of Wis. Admin. Code ch. NR 333:44 Has a structural height of more than 6 feet and a maximum storage capacity of 50 acrefeet or more of water; Has a structural height of 25 feet or more and a maximum storage capacity of more than 15 acre-feet of water; and Has a structural height of 6 feet or less or a maximum storage capacity of less than 50 acre-feet of water if the DNR determines the dam is likely to endanger life, health or propertyAny dam falling under these three categories is deemed a "large dam" and has been or will be
~ ~ ~ of existing large dams must bring their dams assigned a dam hazard rating by D N R . Owners
Wis. Stat. Ej 3 1.02. Wis. Stat. Ej 3 1.18. This same obligation applies to owners of bridges. 444 Wis. Admin. Code EjEj NR 333.04(2) and 333.02(1). 445 Wis. Admin. Code Ej NR 333.04(1). 442
443
Chapter 5 Surjace Water
into compliance with the design and construction requirements of ch. NR 333 within 10 years of obtaining the hazard rating.446 When constructing a dam, the dam owner must have ownership of or flowage rights over any land that will be flooded by the dam. Owners may obtain flowage rights if the impacted property owner is willing to voluntarily give or sell those rights. Some statutes-such dam and the hydroelectric dam statutes-guarantee
as the cranberry
the right to purchase flowage rights
regardless of the flooded property owner's wishes. For older dams, even if there is no evidence of purchasing flowage rights, those rights may have been obtained through prescriptive easements. To obtain a prescriptive flowage easement, the flowage must have occurred for at least 20 years in an "open, notorious and continuous" fashion.447Prescriptive rights over a historic flowage do not just vest with the dam owner, they may also accrue to the riparians. If a riparian has relied on the water level of an artificial waterbody for at least 20 years, some courts have ruled the riparian is entitled to have that water level maintained regardless of the dam owner's
Other
courts have refhed to force a dam owner to repair and maintain a dam against the owner's
Dams with special purposes may have special regulations. For instance, hydroelectric dams are regulated and licensed under federal energy law4'' but are also regulated under special provisions in Wisconsin law.4" Cranberry dams are provided special privileges under Wisconsin law. Specifically, those involved with cranberry culture may build and maintain dams and ditches
Admin. Code $ NR 333.04(2)(b). Wis. Stat. $ 893.28. 448 Village ofPewaukee v. Savoy, 103 Wis. 271,278,79 N.W. 436 (1899); Smith v. Youmans, 96 Wis. 103,70 N.W 1 1 15 (1 897). 449 ~ a a s e212 , Wis. at 587-88. 450 16 U.S.C. $4 791a-825r. 451 Wis. Stat. $$ 31.095, 196.91, 196.92 and 196.665. 446 Wis.
447
Chapter 5 Sucface Water
that are necessary for the cranberry industry. Anyone injured by the cranberry dam has the right to seek compensation as specified under the statute.452
C. Surface Water Quantity Surface water quantity issues address both the right to take and use surface waters as well as the right to drain or turn away unwanted surface waters.
I. Water Withdrawalsfrom Lakes and Streams As noted earlier, one of the riparian's bundle of rights is the reasonable use of the water, including consumptive
Therefore, as a general rule, riparians may divert or withdraw
water for their reasonable use at their pleasure.454On the flip side, as a general rule, non-riparians may not withdraw water from waters of the state for their own use.455The Legislature has created exceptions to both of these general rules: sometimes requiring riparians to obtain a permit before withdrawing water and other times allowing non-riparians to withdraw waters. In late 2005, dramatic restrictions were adopted for certain withdrawals occurring in the Great Lakes Basin. These Great Lakes protections were the latest in a series of international agreements regulating activities in and near the Great Lakes. The first agreement was the 1909 Boundary Waters Treaty. a. Withdrawals and Diversions from the Great Lakes Basin
On December 13, 2005, the governors of the Great Lakes states and premiers of the Great Lakes Canadian provinces signed two new agreements managing the water resources in the Great Lakes Basin (2005 ~ g r e e m e n t s ) . ~Under '~ the 2005 Agreements all new or increased Wis. Stat. $9 94.27-94.30. LLC~n~~m use" p t imeans ~ e a use that results in a failure to return any or all of the water to the basin from which it is withdrawn. See, e.g., Wis. Stat. $ 28 1.35(l)(c). 454 State ex rel. Chain O'Lakes Protective Ass'n v. Moses, 53 Wis. 2d 579,582-83, 193 N.W.2d 708 (1972). 455 Bin0 v. City ofHurley, 273 Wis. 10, 16,76 N.W.2d 571 (1956). 456 Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement (Dec. 13,2005) and the Great Lakes-St. Lawrence River Basin Water Resources Compact (Dec. 13,2005). These agreements relate to both surface 452
453
CIzapter 5 Surface Water
diversions from the Great Lakes Basin or between Great Lakes watersheds are prohibited except as specified.457Exceptions to the prohibition on diversions include the following: water transferred within a "Straddling omm mu nit^"^^^ (city, village or town) for use as a public water supply within that straddling community provided that the water withdrawn fi-om the Basin is returned to the Basin. Transfers within Straddling Communities over 100,000 gallons per day (gpd) must also comply with the so-called "Exception Standard" and over 5,000,000 gpd must also undergo "Regional ~ e v i e w . " ~ ~ ~ water transferred among Great Lakes watersheds depending on the volume of water transferred. Intra-basin transfers of less than 100,000 gpd are generally permissible. Intrabasin transfers between 100,000 and 5,000,000 gpd are allowed if there is no feasible, cost effective and environmentally sound water supply alternative and if it meets the Exception Standard. Transfers over 5,000,000 gpd are only permitted if (i) there is no feasible, cost effective and environmentally sound water supply alternative, (ii) the proposal meets the Exception Standard, (iii) the water is returned to the source watershed, and (iv) the proposal undergoes Regional Review and is approved by the Great Lakes-St. Lawrence River Basin Water Resources in limited circumstances, water transferred within a "Straddling County" that has inadequate supplies of potable water provided that the water is used for public water supply. Obtaining approval for transfers within Straddling Counties is significantly more difficult than for transfers within Straddling ~ o m m u n i t i e s . ~ ~ '
In addition to transfers, consumptive use of waters within the Great Lakes Basin is also restricted. The 2005 Agreements require notice to the governors and premiers with an opportunity to comment on any proposal for a new or increased consumptive use of 5,000,000 or
and groundwater. For the compact to become both state and federal law, the eight state legislatures must ratify it and the United States Congress must provide its consent. 457 Water Resources Compact, Section 4.8; Sustainable Water Resources Agreement, Article 200. 458 "Straddling Community" means "any incorporated city, town or the equivalent thereof, wholly within any county that lies partly or completely within the Basin, whose corporate boundary existing as of the effective date of this Compact, is partly within the Basin or partly within two Great Lakes watersheds." Water Resources Compact, Section 1.2. See similar definition in Sustainable Water Resources Agreement, Article 103. 459 Water Resources Compact, Section 4.9.1; Sustainable Water Resources Agreement, Article 201. The requirements for Exception Standard are specified in Section 4.9.10 of the Compact, which includes such things as proving that conservation and efficient use of existing resources would be insufficient and that the proposal will not cause significant adverse impacts to the water quantity or quality in the Basin. See also Article 202 of the Sustainable Water Resources Agreement. The requirements for Regional Review are specified in Section 4.5 of the Compact. 460 2005 Water Resources Compact, Section 4.9.2; Sustainable Water Resources Agreement, Article 202. 46' 2005 Water Resources Compact, Section 4.9.3; Sustainable Water Resources Agreement, Article 202.
Chapter 5 Surjace Water more gpd (averaged over 90 days).462For the new agreements to become law in Wisconsin, the Wisconsin Legislature must codify the rights and responsibilities set forth in the 2005 Agreements. The 2005 Agreements are just the latest in a series of agreements among the Great Lakes States and Canadian Provinces. In response to one of the earlier agreements-the Charter in 1985-Wisconsin
Great Lakes
created special regulations for waters in the Great Lakes
asi in.^^^
Water withdrawals from the Great Lakes Basin that will result in a water loss of 2,000,000 gallons per day (a 30-day average) or more are not eligible for a permit if the withdrawal will have a significant adverse impact on the Great Lakes Basin or will impair the Basin's ability to meet its own water needs?64
b. Large-Scale Withdrawals from Lakes or Streams (Navigable and Non-Navigable) Anyone (riparian or not) wishing to withdrawal more than 100,000 gallons per day in a 30-day period from the waters of the state must register with the D N R . With ~ ~ ~one exception, anyone (riparian or not) must obtain an individual permit to divert water from a lake or a stream that will result in a water loss of 2,000,000 gallons per day (a 30-day average) over the person's authorized base level of water loss?66 TO obtain a permit, the withdrawal must comply with the standards specified in Wis. Stat. $281.35(5)(d), which include such things as the following: No significant detrimental effect on water quantity and quality; Not detrimental to the public interest; and Will not interfere with the public rights in navigable waters.
2005 Water Resources Compact, Section 4.6. Great Lakes Basin means the watershed of the Great Lakes and the St. Lawrence River upstream from Trois Rivieres, Quebec. Wis. Stat. 9 281.35(1)(d); Wis. Admin. Code ch. 142. 464 Wis. Admin. Code 9s NR 142.06(1) and (3). 465 Wis. Stat. 9 281.35(3)(a)2. 466 Wis. Stat. 9 30.18(2)(b). 462 463
Chapter 5 Surface Water
Water and sewage facilities that are regulated under Wis. Stat. 9 281.41 are not required to obtain a permit for such a withdrawal. Additional standards apply to any withdrawal resulting in an interbasin diversion467and, as noted earlier, especially withdrawals and diversions involving waters in the Great Lakes Basin. c. Withdrawals from Streams (1Vavinable and Non-Navinable)
With one exception, anyone (riparian or not) must obtain an individual permit to divert water from a stream (i) for the purpose of maintaining or restoring navigable lake levels or the normal flow of a navigable stream, or (ii) for the purpose of agriculture or irrigation.468Cranberry growers are the exception and need not get a permit for diverting water fi-om a stream for purposes of cranberry culture.469
d. Water Withdrawals from a Drainane District Water may be withdrawn fi-om a ditch contained within a Drainage District (which are described below) for purposes of irrigation (under a permit) or of cranberry culture provided that the withdrawal will not injure the ditch nor materially defeat the purpose of the drainage
2. Diverting Away Diffuse Surface Water Wisconsin has been and continues to be a water-rich state. Therefore, property owners are usually more interested in ridding their property of diffuse surface waters than utilizing it. Prior to 1974, landowners could divert diffuse surface waters at will, even if it caused harm to the neighboring property.471Since 1974, diverting water may create liability under the following circumstances:
467 Wis.
Stat. (j 281.35(5)(d)7. Wis. Stat. (j 30.18(2)(a); Omemikv. State, 64 Wis. 2d 6, 12,218 N.W.2d 734 (1974). 469 Wis. Stat. (j 94.26; State v. Zawistowksi, 95 Wis. 2d 250,265,290 N.W.2d 303 (1980). 470 Wis. Stat. ji 88.93. 471 The common enemy doctrine "allowed a landowner to make whatever changes to his or her land as were necessary to repel the common enemy of water." See Soo Line R.R. Co. v. Commissioner of Transp., 170 Wis. 2d 543,553,489 N.W.2d 672 (Ct. App. 1992). 468
Chapter 5 Surface Water
1. The landowner's conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land; and 2. the invasion is either: (a) intentional and unreasonable; or (b) intentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.472 When the water diversion is intentional, the action must be "unreasonable," which is defined as follows: (a) the gravity of the harm outweighs the utility of the landowner's conduct, or (b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.473 In short, a court will weigh and balance the benefits of the water diversion against the harm inflicted to determine if the diversion is legal.
3. Drainage Anyone may install a drain wholly contained on their own land unless it affects (i) a regulated wetland,'74 (ii) a navigable water,'7s or (iii) a Drainage ~ i s t r i c t . ' ~Moreover, ~ certain parties may install drains over the lands of others. Specifically, agricultural landowners and Drainage Districts have a qualified right to construct drainage ditches over the lands of others. a. Drainage Districts
Wisconsin statutes allow the creation of drainage districts within which a county drainage board may construct, maintain and repair drainage ditches in the district and levy assessments or State v. Deetz, 66 Wis. 2d 1, 16,224 N.W.2d 407 (1974); Crest Chevrolet v. Willemsen, 129 Wis. 2d 129, 138, 384 N.W.2d 692 (1986). 473 Deetz, 66 Wis. 2d at 17; Crest Chevrolet, 129 Wis. 2d at 139-41. These cases go onto define the factors used in evaluating the gravity of the harm and the utility of the conduct. 474 Wetlands are discussed herein at Chapter 6. 475 Wis. Stat. 9 30.19. However, private agricultural drains are exempt from the permit requirements under this section. See Wis. Stat. 8 30.19(lm)(b). 476 Wis. Stat. 9 88.92. 472
Chapter 5 Surface Water
borrow money for the costs of those activities.477Though historically the government heavily subsidized these activities, today the property owners who benefit from the drains pay for most, if not all, of the costs. The drainage board also has the authority to assess costs to an upstream municipality for enlarging or maintaining drains if those costs are attributable to increased waterflow emanating from that upstream municipality.478 Creation of drainage districts involves petitioning the circuit court with proof that the lands will be improved and the public health or public welfare will be promoted by the drainage.479 Once the district is created, the majority of decision-making power rests with the drainage board with its decisions being subject to review by a writ of certiorari to the circuit court. Because of the importance of long-term care and maintenance of the drains, heavy responsibility falls on the drainage board. Drainage districts, when not well managed, can cause significant strife for those in the district. For instance, properties located in the lower part of the district, where the water flow is the greatest, have an increased threat of erosion along the district's drains. In an attempt to minimize such problems, the Department of Agriculture Trade and Consumer Protection has created rules for the management of drainage
6. Agricultural Drains Owners of agricultural lands may drain up to 80 acres of their agricultural land by either petitioning the town board or, if applicable, the drainage district board. If approved, the petitioner may install drains on its agricultural land and over the lands of others provided that the
Wis. Stat. ch. 88. Wis. Stat. 9 88.64 479 wis. Stat. $9 88.27-88.28. 480 Wis. Admin. Code ch. ATCP 48.
477
478
Chapter 5 Surface Water
petitioner pays for the construction and the damage to the impacted lands.48'Once approved, the drain is considered "public." 4. Obstructions in Water Flow When flowing water is obstructed, it can create an overabundance of water. There are a number of mechanisms through which damaged property owners may remove such obstructions even if those obstructions are located on someone else's property. a. Obstructions in Natural Waters
Wisconsin statutes empower landowners to remove obstructions in natural waters if those obstructions are causing damage.482If the obstructions are natural (such as trees or beaver dams), the damaged landowner, after obtaining any necessary permits from the DNR, may go upon the land where the obstruction is located and remove the obstruction.483The landowner removing the obstruction must do so at the person's own expense and must also pay for any damage caused to the land where the obstruction is located. If the obstructions are caused by the negligent action of the riparian or the riparian's agent, then the damaged owner may demand removal of the obstruction in writing and, if the obstruction is not removed within six days, the damaged landowner may request that the town or village remove the obstruction with the costs being assessed to the negligent party.484 b. Damaae Caused bv or to Roads and Railroad Embankments
Road and railroad grades are prohibited from causing an unreasonable accumulation or discharge of surface waters.485(This prohibition does not apply to grades used for retaining water for either cranberry culture or conservation management purposes.) If damage has or will occur, Wis. Stat. ji 88.94. Wis. Stat. ji 88.90. 483 Wis. Stat. ji 88.90(3). 484 Wis. Stat. jiEj 88.90(1) and (2). 485 Wis. Stat. 5 88.87. 481 482
Chapter 5 Surface Water
the public authority or railroad may purchase or condemn drainage rights or easements. Owners of damaged property that have not been so compensated may bring an inverse condemnation action under Wis. Stat. $ 8 8 . 8 7 ( 2 ) ( ~ )There . ~ ~ ~ is a three-year notice of claim requirement, and this statutory cause-of-action pre-empts common law claims for damage caused by road and railroad grades.487Similarly, landowners must "provide and at all times maintain" sufficient drainage for certain surface waters so as to avoid damaging roads and railroad
D. Shoreland and Floodplain Zoning Wisconsin regulates activities occurring within both shorelands and floodplains through zoning.489 1. Shoreland Zoning Counties are required to enact shoreland-zoning ordinances for unincorporated areas. Though towns are permitted to opt out of other county zoning ordinances, towns may not opt out of county shoreland ordinances.490Shorelands are defined as those lands within the following: 1,000 feet from the OHWM of a navigable lake or flowage, and 300 feet from the OHWM of a navigable river or stream or from the landward side of the floodplain, whichever is greater.49' The shoreland ordinances must comply with minimum state standards and, if a county does not adopt such an ordinance, the DNR must adopt the ordinance that will be administered in that
One court held that an action under $ 88.87 is the exclusive remedy for flooding caused by roads impeding surface water flows. The court said the plaintiffs could not prevail on claims under both 9 88.87 and a nuisance claim. Pruim v. Town ofAshford, 168 Wis. 2d 114,483 N.W.2d 242 (Ct. App. 1992). Another court ruled that a takings claim and other claims raised under Wis. Stat. ch. 32 may be raised with a claim under $ 88.87. Kohlbeck v. Reliance Constr. Co., 2002 WI App 142,256 Wis. 2d 235,647 N.W.2d 277. 487 Wis. Stat. $ 88.87(2)(c);Pruim, 168 Wis. 2d at 122; Lins v. Blau, 220 Wis. 2d 855, 867-68, 584 N.W.2d 183 (Ct. App. 1998). 488 Wis. Stat. $ 88.87(3). 489 For a more in-depth discussion of shoreland and floodplain zoning, see Paul G. Kent & Tamara A. Dudiak, Wisconsin Water Law, A Guide to Water Rights and Regulations (2d ed. 2001). 490 Wis. Stat. $5 59.692(1m) and (2)(a); Wis. Admin. Code ch. NR 115. 49' Wis. Stat. $ 59.692(1)(b); Wis. Admin. Code $ NR 1l5.03(8). 486
Chapter 5 Surface Water
county.4" With some exceptions, the minimum state standards include such things as the following: a 75-foot building setback from the OHWM, minimum lot sizes, and cutting restrictions in a 35-foot buffer zone, wherein clear cutting cannot occur for more than 30 feet for every 100-foot stretch.493 Cities, villages and counties must enact shoreland-wetland zoning ordinances, which are more restrictive than shoreland ordinances. Shoreland-wetland zoning is discussed in Chapter 6. The Wisconsin Supreme Court has held that Wisconsin's shoreland zoning requirements do not constitute a taking.494 2. Floodplain Zoning Floodplains are lands that have been or may be covered by floodwater during the "regional flood," i.e., a 100-year flood event.495Cities, villages and counties are all required to enact floodplain zoning once sufficient data is available to formulate a floodplain ordinance.496Not only are floodplain ordinances intended to protect life, health and property, they are also necessary to retain eligibility for flood insurance under the National Flood Insurance Program (NFIP).~~~ The "floodplain" includes the floodway, a floodfi-inge, shallow depth flooding, flood storage, and coastal floodplain areas.498 Floodways encompass the channel of the waterbody plus those adjacent areas that convey flowing waters during floods.499In contrast, the floodfringe is covered
Wis. Admin. Code 9 NR 115.01. Wis. Admin. Code $9 NR 115.05(3)(a)-(c). 494 Just V. Marinette Co., 56 Wis. 2d 7, 19,201 N.W.2d 761 (1972). 495 Wis. Admin. Code 9 NR 1 l7.03(5). 496 Wis. Stat. Ej 87.30; Wis. Admin. Code ch. NR 116. 497 42 U.S.C. Ej 4022, et seq. 498 Wis. Admin. Code 9 NR 116.03(16). 499 Wis. Admin. Code 9 NR 116.03(22). 492
493
Chapter 5 S u ~ f i c eWater
by (standing) water during the regional flood, but is not within the f l o o d ~ a ~ Floodplain .~'~ zoning must regulate "all those areas covered by water during the regional flood."50' Since the floodway must carry the floodwaters, permitted uses in a floodway are severely limited.502Indeed, residences may not be built in the floodway. In contrast, the floodfringe area is usually inundated with standing floodwaters but not impacted by flowing floodwaters. Accordingly, permitted uses in the floodhnge are more liberal than in the floodway: restrictions in the floodhnge are intended to ensure the flood flows are not obstructed and the flood storage areas are not diminished.503Residential structures may be placed in the floodfi-ingeprovided they are built above the regional flood elevation (RFE). Fill may be used to raise the building envelope in order meet the RFE, common referred to as " f l ~ o d ~ r o o f i n ~ . " ~ ~ ~ Until scientific floodplain studies are conducted, all areas of Wisconsin will have generic floodplain maps that are determined by approximate methods. These maps are prepared by the National Flood Insurance Program and referred to as the Flood Insurance Rate Maps. Once a municipality conducts its own floodplain analysis, it must submit the analysis to the DNR for review and approval and ultimately must be submitted to FEMA. A floodplain zoning ordinance must comply with the state's minimum standards and requires D N R s approval.505If a municipality fails to adopt a floodplain ordinance, DNR may adopt its own which the local municipality is then required to administer.506
Wis. Admin. Code 5 NR 116.03(14). Wis. Admin. Code 9 NR 116.06. '02 Wis. Admin. Code 9 NR 116.12. Wis. Admin. Code $ NR 1 16.13. 504 Wis. Admin. Code $9 NR 1 l6.13(2) and 116.16. '05 Wis. Admin. Code $ NR 116.22(2). '06 Wis. Stat. 9 87.30(1); Wis. Admin. Code $ NR 116.22(4). DNR has created a model floodplain ordinance for use by municipalities. '0ยฐ
50'
CHAPTER 6 WETLANDS Lauren L. Azar I. OVERVIEW Wetlands are in a class unto themselves. Obtaining the approvals necessary for projects involving wetlands is often complex because of the intertwining and overlapping restrictions on the federal, state and local levels. This chapter first describes the nature of wetlands and then describes the restrictions that apply to wetlands. The restrictions set forth in this chapter are in addition to other regulations that may be applicable to the proposed activity regardless of its wetlands status. Hence, these regulations can be described as an overlay of additional regulations.
11. APPLICABLE STATUTES AND ADMINISTRATIVE RULES The following are some of the more fundamental statutes and rules regulating wetlands: 33 U.S.C. $ 1344 (CWA $404): Permits for Dredged and Fill Material 33 U.S.C. $ 1341 (CWA $ 401): State Water Quality Certification Wis. Stat. $9 281.165, .22, .36, and .37: Wetland Specific Sections Wis. Stat. $5 59.692,61.35 and 62.231: Zoning Wis. Stat. $8 281.15, .16, and .l7: Water Quality Issues Wis. Admin. Code ch. NR 103: Water Quality Standards for Wetlands Wis. Admin. Code ch. NR 115: Wetland Zoning for Counties Wis. Admin. Code ch. NR 117: Wetland Zoning for Cities and Villages Wis. Admin. Code ch. NR 299: Water Quality Certification Wis. Admin. Code ch. NR 350: Wetland Compensatory Mitigation Wis. Admin. Code ch. NR 35 1: Nonfederal Exemptions Wis. Admin. Code ch. NR 352: Nonfederal Delineation Wis. Admin. Code ch. NR 353: Wetland Conservation Activities
111. RIGHTS TO WETLANDS To the eye, wetlands may appear as muddy water, saturated land or a lake. They may be attached to a lake or a stream, or may be isolated. Wisconsin defines a wetland as: "[Aln area
Chapter 6 Wetlands where water is at, near or above the land surface long enough to be capable of supporting aquatic or hydrophytic vegetation and which has soils indicative of wet conditions."'
Historically,
wetlands were viewed as useless and were drained for development. Indeed, the federal government provided incentives for draining wetlands through the Swamp Land Act of 1850.'~~ However, in the 1970s,'~~ the full benefits of wetlands were recognized, including: recharge areas for groundwater; habitat for waterfowl and other wildlife; filtering stormwater; and storage areas for flood and storm waters. Wetlands have gone from being perceived as undesirable to beneficial, and now the federal and state governments heavily regulate activities in and near wetlands to preserve them. Since these activities are heavily regulated, the exact boundaries of wetland areas are frequently disputed. The federal government uses the U.S. Army Corps of Engineers Wetlands Delineation Manual (1987) for identifying and delineating the boundaries of wetlands, and the DNR uses the Basic
Guide to Wisconsin's Wetlands and Their Boundaries, which is based on the Corps' 1987
Wetlands are owned by the private property owner of the land in which the wetland is located unless the wetland is adjacent to a lake or could be considered a lake itself. If adjacent to a lake such that the lake waters create a defined bed and bank in the wetland, then the wetland will likely be deemed part of the lake with the ownership of the wetland bed vesting with the state.'l Wis. Admin. Code 5 NR 103.02(5). Swamp Lands Act, 9 Stat. 519 (1850). 5wThough full benefits were not recognized until the 1 9 7 0 ~some ~ values of wetlands were recognized earlier. The Migratory Bird Hunting Stamp Act of 1934 was the first federally sponsored initiative to recognize the value of wetlands. 'I0 Wis. Admin. Code 5 NR 103.08(lm). 'I1 Houslet v. DNR,110 Wis. 2d 280,286,329 N.W.2d 219 (Ct. App. 1982). '07 '08
Chapter 6 Wetlands IV. RESTRICTIONS OVER WETLANDS
Activities within or near wetlands are regulated by three distinct overlays of regulations: one regulatory layer stems primarily from section 404 of the federal Clean Water Act (CWA), the second from Wisconsin Statutes, and the third from local zoning. Evaluation of all regulatory regimes is required when developing in or near wetlands. A. Federal Regulation of Wetlands
1. Clean Water Act The federal government uses the powers vested through the CWA to regulate activities in wetlands.512As discussed in Chapter 5, CWA ยง 404 requires a permit for the discharge of "dredged or fill material" into the "waters of United States" and this includes discharges into certain wetlands.513 a. Wetlands Falling WithinFederal Jurisdiction Precisely which wetlands fall within the ambit of the federal jurisdiction has been the subject of significant dispute. Federal jurisdiction under the CWA is limited to "waters of the United States," which is not defined in the CWA. The Corps and EPA have adopted similar definitions of "waters of the United States" as they relate to wetlands that include interstate wetlands and "wetlands adjacent" to navigable waters.514The Corps' rule defines "adjacent" as "bordering, contiguous, or neighboring" including those separated by "man-made dikes or barriers, natural river berms, beach dunes and the like."515 Three United States Supreme Court cases have addressed the scope of "waters of the United States" in the CWA as it relates to wetlands. First, in United States v. Riverside Bayview Homes, 'I2 Prior to the enactment of the CWA, the federal government also regulated activities in wetlands through the Rivers and Harbors Act. Zabel v. Tabb,430 F.2d 199 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971). 'I3 33 U.S.C. $0 1344 and 1362(7). 'I4 33 C.F.R. (i 328.3(a); 40 C.F.R. (i 230.3(s). 33 C.F.R. (i 328.3(c); see also United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985).
'"
Chapter 6 Wetlands ~ n c . ,the ~ ' court ~ upheld the Corps7 interpretation of "waters of the United States" which included "wetlands adjacent to but not regularly flooded by rivers, streams, and other hydrographic features more conventionally identifiable as 'waters .3,517 3
After the Riverside Bayview case, the Corps adopted its "Migratory Bird Rule," through which the Corps claimed jurisdiction over wetlands located far from navigable waters under the theory that migratory birds used these isolated wetlands thereby rendering them within the reach of the Interstate Commerce
The Migratory Bird Rule led to the second U.S. Supreme
Court case: Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC).~'~ In SWANCC, the court ruled that "waters of the United States" did not include isolated, intrastate waters because there was no "significant nexus" to traditionally navigable waters.520 In its most recent case, Rapanos v. United ~ t a t e s , ' ~the ' U.S. Supreme Court essentially split down the middle. Rapanos consolidated two cases. In one case, the Corps claimed jurisdiction over a wetland that was separated by a man-made berm from an artificial ditch that ultimately connected to a creek.522In the second case, the wetland was connected to a water of the United States first through a manrnade ditch, then a non-navigable tributary and ultimately to a navigable water 1 1 to 20 miles away.523 The precedential effect of Rapanos is currently unclear. The only point on which a majority was achieved was remanding the case to the lower courts for further action. Four justices rejected
516Id.
Id. at 131. 51 Fed. Reg. 41217 (1986); see also H o f i a n Homes, Inc. v. EPA, 999 F.2d 256 (7th Cir. 1993). 5'9 Solid Waste Agency ofNorthern Cook County v. US. Army Corps ofEngineers, 351 U.S. 159 (2001). 'O Id. at 167-68. '"Rapanos v. United States, 126 S. Ct. 2208 (2006). Carabell v. U S . Army Corps ofEngineers, 391 F.3d 704 (6th Cir. 2004). CJ: Village of Oconornowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994). 523 United States v. Rapanos, 339 F.3d 447 (6th Cir. 2003). 5'7
'I8
'''
Chapter 6 Wetlands
the Corps' application of the CWA to the wetlands involved in these cases and proposed the Court adopt the following two-part test for determining whether a wetland is "adjacent to the waters of the United States" and, therefore, within the ambit of the CWA: Threshold Step:
Is the water involved connected to traditional interstate navigable waters?
Second Step:
Does the wetland have "a continuous surface connection with that water, making it difficult to determine where the 'water' ends and the 'wetland' begins ?524 9'
In contrast, four other justices agreed with the Corps that the wetlands in these cases fell within the jurisdiction of the C W A . ~Though ~ ~ recognizing the Corps' reach was broad, these four justices reasoned that the Corps' interpretation advances the purpose of the CWA. Lastly, the ninth, Justice Kennedy, joined the first four justices for the sole purpose of remanding "for proper consideration of the nexus requirement."526 Kennedy requested that the lower court consider "whether the specific wetlands at issue possess a significant nexus with navigable waters."527Kennedy argued that the above two-part test is flawed because the surface connection seen as a prerequisite for CWA jurisdiction is one form of a "significant nexus," but is not the only form. Kennedy suggested that a wetland or water body that filters water, performs the functions of flood control and helps with run off storage has a "significant nexus" with navigable waters.528Though Rapanos has given us a glimpse into the minds of the opposing sides of the Court, the actual import of the decision will be revealed over time because no majority was achieved on any of the substantive issues. Litigation over the meaning of "adjacent" will undoubtedly continue. And so will the litigation over which wetlands fall within the reach of the CWA. Justices Scalia, Thomas, Roberts and Alito. See Rapanos, 126 S. Ct. at 2227. Justices Stevens, Souter, Ginsburg and Breyer. See Rapanos, 126 S. Ct. at 2262. 526 Id. at 2236 (Kennedy, J., concurring). 527 Id. at 2252 (Kennedy, J., concurring). 528 Id. at 2247-48. 524
525
Chapter 6 Wetlands
b. Discharging Dredged or Fill Material In or Near Federallv Reaulated Wetlands If within the reach of the CWA, wetlands are subject to the same $404 permitting process as other waters of United States as described in Chapter 5. As mentioned in Chapter 5, the Corps applies the "404 Guidelines" to its permitting decisions; these guidelines reflect Corps and EPA agreement on how the Corps will protect surface water quality under
3 404.
The Corps will
analyze an application to discharge dredge or fill material by weighing and balancing the favorable impacts against the detrimental impacts of the proposed project. In addition to the generic criteria of CWA. There are aspects of the
3 404, wetlands also have special provisions within the
3 404 permitting process that are more onerous for projects
involving wetlands, two of which are described below. First, in evaluating whether to issue an individual
3 404
permit, the Corps must apply special criteria when the project involves a
wetland.529For example, specified wetland functions are deemed "important to the public interest" and no permit may be issued unless the benefits of the project outweigh the damage to those specific wetland functions.530Second, some general permits (GP) and letters of permission
(LOP) contain unique requirements for projects involving wetlands. For example, projects involving wetlands within 300 feet of a calcareous fen may not be eligible for a GP or
LOP.^^'
In sum, when seeking a CWA permit for a project involving a wetland, the applicant must comply with both the generic requirements plus the wetland specific requirements of 3 404. 2. Federal Regulation of Agricultural Wetlands The federal government has created special mechanisms to address agricultural activities involving wetlands. No CWA 404 permit is required to discharge dredged and fill material into
33 C.F.R. 9 320.4(b); 40 C.F.R. $230.10(a)(3). See also 40 C.F.R. 9 230.41. C.F.R. $9 320.4(b)(2) and 320.4(b)(4). 531 See "Exclusions from LOP Authorizations" in USACE, LOP-06-WI (2006); "AreasIActivities Excluded from the Non-Reporting GP" in USACE, GP-002-WI (2006). 529
530 33
Chapter 6 Wetlands
a wetland if the discharge is associated with an ongoing normal farming operation.532This exemption has traditionally been construed narrowly, and the Corps' rules specify the exemption is not applicable if the activity would convert a wetland to an upland.533Hence, though farming operations may discharge into wetlands without a
5 404 permit, the Corps tries to limit those
discharges. In contrast to this CWA exemption that allows farmers to fill wetlands, Congress prohibits farmers from converting wetlands for farming purposes if those farms receive USDA farm program benefits. Specifically, the Swampbuster Act of 1985 (Swampbuster) provided financial disincentives for converting wetlands for the purpose of producing an agricultural commodity.534 In 1990, these disincentives were expanded to cover wetlands converted in a way that made production possible, even if an agricultural commodity was not actually being produced.535 Moreover, in 1990, the penalties were increased. Converting wetlands prior to November 28, 1990 resulted only in a proportional loss of benefits. Conversion after November 28, 1990 results in a loss of all USDA benefits on all land the farmer controls until the wetland loss is mitigated or the wetland is restored.536 Swampbuster applies to all agricultural land meeting the Act's definition of a wetland, which are areas of predominantly hydric soils that under natural conditions support a prevalence of water-loving plants. Under Swampbuster, no additional drainage is allowed in wetlands, but existing drainage for adjacent farmed wetland pastures, farmed wetlands, or prior converted cropland may be maintained, as described below:
33 U.S.C. 9 1344(f). 33 C.F.R. ยง 323.4(c). 534 16 U.S.C. $3821; 7 C.F.R. $ 12.2. 535 16 U.S.C. $ 3821(c); 7 C.F.R. $ 12.4(a)(3). 536 16 U.S.C. $9 3821(c) and 3822(i); see also Holly Hill Farm COT. v. United States, 447 F.3d 258,263 (4th Cir. 2006); United States v. Dierchan, 201 F.3d 915,918 (7th Cir. 2000). 532
533
Chapter 6 Wetlands
AGRICULTURAL WETLAND TYPE Converted wetland = drained or altered after December 23, 1985 (the date Swampbuster was enacted) to enhance agricultural production. After November 28, 1990, includes conversion "to make possible" agricultural production. Farmed wetland = partially drained or altered to produce an agricultural crop prior to December 23, 1986, but still exhibits some wetland values. Prior converted cropland (a/k/a prior converted wetland) = converted to cropland use before December 23, 1985, and no longer meets wetland criteria.
DRAINAGE ALLOWED IN WETLAND TYPE No additional drainage and no drainage I maintenance are allowed.
I
While no additional drainage is allowed, existing drainage may be maintained (but not improved), and the area may be farmed as it was prior to December 23. 1986. Additional drainage is allowed without restriction, and drainage maintenance is allowed without restriction.
Swampbuster does not affect any conversions for non-agricultural uses.
B. State Regulations Over Wetlands Wisconsin's jurisdiction over wetlands stems from three sources. First, as described in Chapter 5, state water quality certification under CWA 8 401 is required to obtain a CWA 5 404 permit. Second, Wisconsin also regulates the discharges of dredged or fill material into "isolated" wetlands that were removed from federal jurisdiction by SWANCC. Lastly, activities in or near wetlands may also be regulated by other Wisconsin statutes unrelated to wetlands, such as the navigable waterway regulations of Wis. Stat. ch. 30, described in Chapter 5. 1. CWA 8401 Water Quality Certificationfor Wetlands
To obtain a CWA
8 404 permit, the state must certify (or waive its right to certify) that the
proposed discharge of dredged or fill material into a federally regulated wetland will not violate the state's water quality standards. Without DNR water quality certification, the Corps will not issue a CWA 5 404 permit and the dredged or fill material cannot be placed into the wetland.537
537 33
130
U.S.C. 4 1341(a)(l).
Chapter 6 Wetlands
As explained below, the water quality standards for wetlands are unique and are found in Wis. Admin. Code ch. NR 103.
a. Water Quality Certification Under Wis. Adrnin. Code chs. NR 299 and 103 While the generic water quality certification process is specified in Wis. Admin. Code ch. NR 299, the standards specific to wetlands are found in Wis. Admin. Code ch. NR 103. The requirements for receiving water quality certification under NR 103 are not crystal clear. Indeed, there is debate over exactly how DNR's administration of ch. NR 103 comports with the rule's language. Most proposed projects are not wetland dependent.538In these circumstances, to receive a water quality certification for wetlands, applicants must fulfill the requirements of the following three-step test: Step 1: Demonstrate that no practicable alternative539exists that would avoid adverse impacts to wetlands; Step 2: Demonstrate that the adverse impacts to the wetland functional values have been minimized to the extent practicable; and Step 3: Demonstrate that "[tlhe activity will not result in significant adverse impacts to wetland functional values, significant adverse im acts to water quality or other significant adverse environmental consequences."54
f
If the applicant can satisfactorily establish each step, then the DNR will issue a water quality certification. In the rare cases where a proposed project is water or wetland dependent, then the applicant must only establish steps 2 and 3 and may forego the practicable alternatives analysis. Wetland mitigation can only be considered as part of this analysis in limited circumstances. Specifically, wetland mitigation can be considered in establishing steps 1 and 2, if any of the following are true: 538
L'Waterdependency" or "wetland dependency" means the activity is of a nature that requires location in or adjacent to surface waters or wetlands to fulfill its basic purpose. Wis. Admin. Code 9 NR 103.07(3). 539 LLPra~ti~able alternatives" means available and capable of being implemented after taking into consideration cost, available technology and logistics in light of overall project purposes. Wis. Admin. Code 9 NR 103.07(2). 540 Wis. Admin. Code 9 NR 103.08(4); Paul Kent and Tamara Dudek, Wisconsin Water Law, p. 148.
Chapter 6 Wetlands
The wetland impacts are less than 0.1 acres; All affected wetlands are less than 1 acre in size, are located outside the 100 year floodplain and are not a type of wetland listed in Wis. Admin. Code 5 NR 103.08(4)(~)(3)a;or The activity is related to cranberry culture.541 Otherwise, mitigation can only be considered after the applicant has established that all measures to avoid and minimize adverse impacts to wetlands have been taken. Projects impacting wetlands located in areas of "special natural resource interest" are not eligible for mitigation.
541
Wis. Admin. Code 9 NR 103.08(4)(c).
Chapter 6 Wetlands
DNR prepared the following flowchart displaying its decision-making process: REVIEW OF ACTIVITIES UNDER NR 1 0 3 Does the activity affect wetland'?
NR 103 does not apply.
ISthe activity --water or wetland dependent, OR -- a cranberry operation, OR is the impact 0.1-acre or less?
Does a practicable alternative2 exist that will not harm wetlands or cause other significant harm to the environment?
+
+-
Determine how the project affects wetland functions include cumulative impacts, secondary impacts, and effects o n wetlands in areas of special natural resource interest. Examine alternatives2that avoid or minimize adverse effects to wetland functions and values. Considering the alternatives that avoid or minimize adverse effects, is this level of impact significant?
v NR 103 standards ARE NOT met.
NR 103 standards ARE met.
ax he following artificial wetlands
(created wetlands with n o prior wetland or stream history) are EXEMPT from NR 103 ONLY IF they provide no significant aquatic or wildlife habitat function, or recreational, cultural, educationai, scientific or natural aesthetic value: Sedimentation and stormwater detention basins and associated conveyance features operated and maintained only for sediment detention or flood storage purposes Active sewage lagoons. cooling ponds, waste disposal pits, fish rearing ponds and landscape ponds = Actively maintained farm drainage or roadslde ditches Artificial wetlands within active non-metallic mining operations
-
'For landfitl expansions, alternatives MAY be limited to areas adjacent t o or on the same property. For expansions of existing cranberry operations (existing prior to June 1 , 1998), alternatives are limited to areas adjacent to or o n the same property. PUBL-FH-025-00REV
Reprinted with permission by the DNR. b. Unique Water Ozralitv Analyses For Specified Projects
While some activities are exempt from water quality certification requirements,542special rules apply to other activities. For instance, if DNR has participated in the Public Service Commission (PSC) siting process for the project under Wis. Stat. ch. 196, while applying the four-step test, the DNR must conclude that there is no "practicable alternative'' for certain utility 542 A number of artificial wetlands are exempt entirely from the water quality certification requirements. Wis. Admin. Code ยง NR 103.06(4).
Chapter 6 Wetlancls
(See discussion in Chapter 15.) For proposed landfill expansions,544the DNR may, and for existing cranberry operations545the DNR must, limit the practicable alternatives analysis to areas adjacent to or on the same property. 2. Water Quality Certipcation for Non-Federal Wetlands In Wisconsin, the water quality certification for federally regulated wetlands is also applied to some non-federally regulated wetlands. Responding to SWANCC's narrowing of federal jurisdiction over wetlands in 2001, the Wisconsin Legislature increased state regulation to cover any wetland that was no longer federally regulated because of SWANCC. Specifically, Wisconsin law defines "nonfederal wetlands" as either of the following: wetlands that are determined to be "nonnavigable, intrastate and isolated" under SWANCC or its progeny; or land to which discharges of dredged or fill material would have been regulated under CWA 5 404 had it not been for sWANCC.'~~ On the day Rapanos was released, in a preliminary statement, the DNR concluded Rapanos was progeny of SWANCC and, therefore, any wetlands removed from federal jurisdiction by Rapanos, would be captured under Wisconsin law as a "nonfederal wetland." Under this law, water quality certification is required to discharge dredged or fill material into these nonfederal wetlands.547The DNR may issue both general and individual certifications. Once the application is complete, DNR has 120 days within which to approve or deny a water quality certification application for a nonfederal wetland.548
Wis. Stat. Ej 30.025(2s). Wis. Admin. Code 9 NR 504.04(2). 545 Wis. Admin. Code 5 NR 103.08(4)(d). 546 Wis. Stat. $281.36(1m). Rules on the delineation of nonfederal wetlands are located at Wis. Admin. Code ch. NR 352. 547 Wis. Stat. Ej281.36(2)(a); exemptions to this requirement are found in Wis. Admin. Code ch. NR 351. 548 Wis. Stat. Ej 281.36(2)(b). 543
544
Chapter 6 Wetlands 3. Applicability of Other Wisconsin Statutes to Wetlands
Compliance with the wetland water quality standards as specified in Wis. Admin. Code ch. NR 103 is required for more than just
5 404 permits and SWANCC-impacted wetlands. Wetland
water quality standards are also applied in the permitting and approval processes of a number of state statutes.549For instance, wetland water quality certifications are required when receiving approvals or permits for forestry projects under Wis. Stat. chs. 26 and 28, park projects under ch. 27, and dam projects under ch. 3 1. Also, activities impacting navigable wetlands or wetlands near a lake or stream may also be restricted under other state statutes, such as Wis. Stat. ch. 30. If a project is regulated under chapter 30, the applicant should be aware that the permitting process for the water quality certification of wetlands is different from the process for chapter 30 permits. The most significant procedural difference is the timing of the opportunity for a contested case hearing to challenge DNR's decision. While an opportunity for a contested case hearing comes after the issuance of a chapter 30 permit, it comes before the issuance of a water quality certification (unless that certification relates to nonfederal
wetland^)."^
4. Wetland Mitigation As discussed earlier, the DNR may consider wetland mitigation in determining whether to grant permits or other approvals for activities that will adversely affect wetlands.55' (However, mitigation is not applicable to projects involving areas of "special natural resource interest.")
549 Wis. Admin.
Code (j NR 103.06(1). federally regulated wetlands, see Wis. Stat. (j 30.209(1m) and Wis. Admin. Code (j NR 299.05(5); for nonfederal wetlands, see Wis. Stat. (j281.36(2)(b), specifying that the DNR must approve or deny the certification within 120 days of a completed application and not specifymg any unique hearing procedures. Wis. Stat. (j 281.37(2)(a). For federally regulated wetlands, the DNR can only consider mitigation but cannot require it. Wis. Stat. (j 281.37(2). In contrast, the Corps can and does require mitigation as a condition of permit issuance under (j 404. (In limited circumstances, the DNR may also require mitigation for nonfederal wetlands. See Wis. Stat. (j 28 1.36(7)(~)4.) 550 For
135
Chapter 6 Wetlands A mitigation project restores, enhances, or creates wetlands to compensate for adverse impacts to
other wetlands or it uses credits in a wetlands mitigation bank.552 Landowners unable to perform wetland mitigation on their own project site may "purchase" mitigation credits from a nearby landowner who has performed mitigation above and beyond what has been required by the D N R . ~ 'DNR ~ has created rules for the development and administration of wetland mitigation banks.554Since the creation of this law, active wetland mitigation banks have been created and are currently selling mitigation credits in Wisconsin. At the time of writing, credits in Wisconsin were selling for approximately $28,00O/acre, and nationally were selling for approximately $50,000/acre.'~~
C. Local Zoning Regulations Cities, villages and counties must enact zoning ordinances regulating activities in wetlands located near lakes or streams called "shoreland-wetland zoning." Shoreland-wetland zoning restrictions are overlaid on top of any existing zoning for a specific parcel and override any less restrictive requirements. The DNR has created minimum requirements for these zoning ordinances. Only a limited number of activities are allowed and all other activities are prohibited. DNR may adopt an ordinance for any municipality failing to enact a shoreland-wetland zoning ordinance and may require the municipality to administer the ordinance; both DNR and the municipality have the power to enforce violations of DNR-created ordinances.556
Wis. Stat. $ 281.37(1)@). Wis. Admin. Code $ NR 350.04. 554 Wis. Admin. Code ch. NR 350. 555 The DNR maintains a list of registered wetland mitigation banks, located at http://dnr.wi.gov/ordwater/fh~/ wetlands/mitination/mitinationbanks.shtml. 556 Wis. Stat. $5 59.692(6), 61.351(6) and 62.23 l(6). 552 553
Chapter 6 Wetlands
I . Wetlands within Cities and Villages All Wisconsin cities and villages are statutorily required to enact zoning ordinances regulating wetlands having all of the following characteristics: five or more acres in size; identified on the Wisconsin Wetland Inventory ~
aand ~
;
~
~
located within 1,000 feet from a lake, pond or flowage or within 300 feet from a river or stream or to the landward side of the floodplain.55s Cities and villages may voluntarily elect to regulate additional wetlands.559Therefore, when developing land containing a wetland that is located within a city or village, one should obtain a copy of the local shoreland-wetland zoning ordinances regardless of wetland size or location.
2. Wetlands Outside of Cities and Villages According to administrative rule, all Wisconsin counties must enact shoreland-wetland zoning ordinances regulating wetlands with the following characteristics: identified on DNR's Wisconsin Wetland Inventory Map, and located within 1,000 feet from a lake, pond or flowage or within 300 feet from a river or stream or to the landward side of the floodplain.560 Originally, the DNR mapped only those wetlands of five acres or more; but DNR is now mapping wetlands of two acres or more. Consequently, depending on the map, counties may have a threshold size of only two acres. 557 The Wisconsin Wetland Inventory does not include all wetlands. The Inventory originally identified wetlands of five acres or more but is now capturing wetlands of two acres or more. Since the maps may not be accurate, they should be used as a general information tool, but should not be relied on to determine the presence or absence of a wetland. Site specific review to determine the existence, boundaries and values of wetlands will be necessary for any project proposal. Even with their limitations, the maps are used for the purpose of identifymg which wetlands are subject to zoning restrictions. Order forms for the Wisconsin Wetland Inventory map may be found at ht~://dnr.wi.nov/ore/water/fhp/wetlands/documents/ma~ordfin.pdf. Wis. Stat. $9 61.351(3) and 62.231(3); Wis. Admin. Code ch. NR 117. Special provisions may apply to property annexed into a city or village after May 7, 1982. See Wis. Stat. 9 59.692(7). 559 Wis. Stat. $9 61.351(3) and 62.231(3). 'O Wis. Admin. Code $ NR 115.05(2)(b); see also Wis. Admin. Code 9 NR 115.03(8) (definition of shoreland). In contrast to cities and villages, counties are required to enact wetland zoning by DNR rule, not by statute. Wis. Stat. 5 59.692; Wis. Admin. Code 8 NR 115.05(2).
'"
~
Chapter 6 Wetlands As with cities and villages, counties may voluntarily place zoning restrictions on additional wetlands. Therefore, when developing outside of a village or city, the developer should obtain the county's shoreland-wetland zoning ordinance regardless of wetland size and location. Though not required, towns are empowered to enact shoreland-wetland zoning ordinances if they so choose.561
3. Permitted Uses in Shoreland- Wetlands Whereas counties "must permit" the following, cities and villages "may permit, prohibit or authorize as a special exception" the following uses within shoreland-wetland zones: Hiking, fishing, trapping, hunting, swimming and boating; Harvesting of wild crops; Silviculture; Pasturing of livestock and the construction and maintenance of fences; Cultivation of agricultural crops; Construction and maintenance of duck blinds; Construction of buildings used for raising minnows, waterfowl, aquatic animals, etc.; Construction of piers, docks and walkways; Parks, boat accesses; and Utility infrastructure, railroads, highways and bridges.562 However, the administrative rules specify restrictions for some of these activities. The restrictions differ between counties and cities/villages. In addition to the activities listed above that pertain to all types of municipalities, cities and villages may also allow additional activities in their shoreland-wetland zones. Specifically, cities
56 1
562
Wis. Stat. 5 60.627. Wis. ~ d m &Code $5 NR 115.05(2)(c) and 1 ly.O5(2)(a)-(l) and (n).
Chapter 6 Wetlands
and villages may allow the installation of tiles for draining lands outside of the zoning district and the maintenance and repair of non-agricultural drainage ditches or drainage systems.563 As a general rule, any use not explicitly permitted in a shoreland-wetland zone is prohibited.564However, in certain specified circumstances, areas within a shoreland-wetland zone may be rezoned to permit what would have otherwise been a prohibited activity.
563
564
Wis. Admin. Code $9 NR 117.05(2)(m) and (0). Wis. Admin. Code EjEj NR 115.05(2)(d) and 117.05(3).
CHAPTER 7 GROUNDWATER AND DRINKING WATER Lauren L. Azar I. OVERVIEW
Historically, groundwater has not been regulated as expansively as surface waters. Indeed, only relatively recently have scientists come to understand how groundwater moves horizontally and vertically and how its quality and quantity may be affected through human activity. Protection of groundwater is primarily provided through state not federal law. While Wisconsin protects both the quality and quantity of groundwater, the federal government recognizes some protections for groundwater located within the Great Lakes Basin. In addition to groundwater, this chapter also discusses drinking water. Water used for consumption comes from both surface water and ground water. Drinking water, regardless of its source, has special protections under state and federal law. 11. APPLICABLE STATUTES AND ADMINISTRATIVE RULES
42 U.S.C. 5 300f, et seq. = Safe Drinking Water Act 40 C.F.R. part 141, et seq. Wis. Stat. ch. 160 = Groundwater Standards Wis. Admin. Code chs. NR 140, ATCP 3 1, Trans 277 Wis. Stat. ch. 280 and 281.77 = Drinking Water Wis. Admin. Code chs. NR 141,146,809,811,812,845 Wis. Stat. 55 281.l7(8), 281.34 = High Capacity Well Law Wis. Admin. Code ch. NR 214 = Landspreading
Clzapter 7 Groundwater and Drinking Water
111. RIGHTS IN GROUNDWATER
In Wisconsin, groundwater is considered a "water of the state" and is owned by the state.565 However, common law gives property owners the right to reasonably use groundwater. Specifically, in a 1973 landmark case, State v. Michels Pipeline Construction, Inc., the Wisconsin Supreme Court ruled property owners have the privilege of using the groundwater under their property for beneficial uses so long as it does not cause "unreasonable harm."566Prior to Michels Pipeline, landowners could remove as much groundwater as they wanted even for no purpose or for malicious purposes.567 Michels Pipeline held that a landowner's use of groundwater would be judged according to the following test:568LLA possessor of land or his grantee who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water by another, unless (a) The withdrawal of water causes unreasonable harm ...." The court noted that the new rule "preserves the basic expression of a rule of non-liability-a you will-to
privilege if
use groundwater beneath the land."569But the privilege is qualified; mainly, the use
of groundwater cannot cause "unreasonable harm." As explained below, the Wisconsin Legislature limits this privilege somewhat by prohibiting some activities and requiring permits for other activities relating to groundwater. IV. GROUNDWATER REGULATIONS
Wisconsin regulations pertaining to groundwater may be categorized according to those protecting groundwater quality and those protecting groundwater quantity. Wis. Stat. ji 283.01(20); Robert E. Lee & Assocs., Inc. v. Peters, 206 Wis. 2d 509,527,557 N.W.2d 457 (Ct. App. 1996). This is an insurance coverage case wherein the Wisconsin Court of Appeals held that the groundwater under an insured's property was not owned by the insured but was a natural resource owned by the state. State v. Michels Pipeline Constr., Inc., 63 Wis. 2d 278,302-03,217 N.W.2d 339,219 N.W.2d 308 (1974). 567 Huber v. Merkel, 117 Wis. 355,363,94 N.W. 354 (1903); see also Michels Pipeline, 63 Wis. 2d at 288-90. Michels Pipeline, 63 Wis. 2d at 302-03. 569 Id. at 303. 565
Chapter 7 Groundwater and Drinking Water
A. Groundwater Quality Wisconsin uses two mechanisms for regulating groundwater quality: it regulates activities that release contaminants into the groundwater and, if the groundwater becomes contaminated, it regulates what contaminant levels may remain and what levels trigger an obligation to remediate. While this chapter discusses groundwater quality generally, Chapter 11 discusses what actions must be taken if the groundwater quality is found to be unacceptable. All of the regulations described in this groundwater quality section stem from state law. The federal government does not comprehensively and generically regulate groundwater quality.570 Instead, the federal role in groundwater protection derives from narrowly tailored regulations, such as those relating to drinking water or waters located in the Great Lakes Region.
I. Groundwater Quality Standards Under Wis. Stat. ch. 160, the Legislature directed all state regulatory agencies to identify contaminants that may be released into the groundwater from activities regulated by those agencies. Where no federal standard exists, the DNR in concert with the Department of Health and Family Services (DHFS) develops numeric standards.571For each substance two numeric standards are set. The upper limit, based on the maximum contaminant level for drinking water, is called the Enforcement Standard (ES). Exceeding the ES is prohibited, and if a substance reaches that concentration the responsible regulatory agency must require actions to bring the concentration down below the E S . ~ ~ ~ The lower tier or limit is called the Preventive Action Limit (PAL). This tier is unique to Wisconsin's groundwater protection program and plays both a preventive and a corrective role in
570 Groundwater is not considered a "water of the United States" and is therefore not regulated under the Clean Water Act. 57' Wis. Stat. 9 160.07(4). 572 Wis. Stat. 9 160.25.
Chapter 7 Groundwater and Drinking Water
the regulatory regime. The PAL is set at a percentage of the ES (10% for cancer-causing substances, 20% for substances with other health effects, and 50% for substances of concern to public welfarelaesthetics but not public health).573In its preventive role, the PAL is used to set design standards (e.g., landfills) and use criteria (e.g., pesticides) to prevent contamination from occurring; it is also used to set a residual contaminant level for soil r e m e d i a t i ~ nThe . ~ ~ PAL'S ~ second job is to serve as an early-warning or trigger system. If the PAL is reached for a substance, the responsible regulatory agency shall investigate, determine what has gone wrong, and take appropriate measures to prevent further c ~ n t a m i n a t i o n .Wis. ~ ~ ~ Admin. Code ch.
NR 140 specifies the ES and PAL for a number of compounds and parameters. This rule also describes the sampling protocol for groundwater sampling. Wis. Stat. ch. 160 itself does not create any independent regulatory authority to take action when the numeric groundwater standards are exceeded.576Other statutes and administrative rules dictate what happens when these groundwater quality standards are exceeded. Indeed, Wis. Stat.
5 160.21 requires regulatory agencies to promulgate rules setting forth the actions required when a PAL or ES is exceeded.577 See Chapter 1 1 for a discussion of the obligations to remediate groundwater contamination.
2. WisconsinPollutant Discharge Elimination System (WPDES) The WPDES program, which is discussed in detail in Chapter 8, applies to all "waters of the state." Since groundwater is a water of the state, discharges to groundwater are regulated under the WPDES program. Pollutants may be discharged to groundwater through liquid pollutants Stat. 9 160.15(1). 9 NR 720.19(4). 575 Wis. Stat. $ 160.23. 576 Wis. Stat. 5 160.001(3). 577 For instance, Wis. Admin. Code ch. ATCP 3 1 provides the groundwater protection program for the Department of Agriculture, Trade and Consumer Protection. Wis. Admin. Code ji Trans 277.04 specifies requirements on the use and storage of road salt. 573 Wis.
574 Wis. Admin. Code
Chapter 7 Groundwater and Drinking Water infiltrating through the soil. Hence, a WPDES permit is required for most landspreading of liquid waste.578The discharge limits contained within a WPDES permit are usually based on the state's groundwater quality standards.
B. Groundwater Quantity In 1936, Wisconsin first adopted rules protecting groundwater quantity through the regulation of groundwater well installation.579(Regulating the installation of groundwater wells is also used for protecting the quality of groundwater.) More recently, in 2004, the Legislature created new protections for groundwater quantity.s80As discussed in Chapter 5, regional concern about the health of the Great Lakes has prompted the Great Lakes States and Canadian Provinces to adopt protections of those waters, including protections of groundwater quantity in the Great Lakes Basin.
I. Groundwater Wells Prior to installation of any groundwater well, a landowner must notify the DNR of the proposed location for that and must comply with state
The well may only be installed by a certified well driller582
standard^.^" Depending on the type of well, additional requirements
may also apply. For instance, groundwater monitoring wells-wells quality, depth and flow of groundwater-have
that are used to test the
their own requirements.584Also, groundwater
wells used for drinking water supplies have additional regulations as discussed
Admin. Code ch. NR 214. well construction and pump installation are presently found in Wis. Admin. Code ch. NR 812. 580 See Wis. Stat. 5 281.34, created by 2003 Wis. Act 310, 5 7 (eff. May 7,2004). Wis. Stat. rj 281.34(3). 582 Wis. Admin. Code ch. NR 146. 583 Wis. Admin. Code ch. NR 812. 584 Wis. Admin. Code ch. NR 141. See, e.g., Wis. Admin. Code $3 NR 8 11.16-81 1.24. 578 Wis.
579 Rules regulating
"'
Chapter 7 GI-oundwaterand Drinking Water
2. High Capacity Wells After a highly contentious proposal by Perrier Group to establish a bottled water company in Wisconsin that would use water fi-om a spring, the Wisconsin Legislature revised the law requiring permits for high capacity
Landowners wishing to install one or more wells
with a combined capacity to remove more than 100,000 gallons-per-day (gpd) must obtain a permit for a high capacity
Evaluation of a high capacity well permit application must
include the following inquiry: Whether it will impair the water supply of a public utility; Whether it is located in a groundwater protection area; Whether it will cause a high volume of water loss;588and Whether it will have a significant environmental impact on a spring. Answers to these questions will determine whether the DNR must prepare an Environmental Impact Statement before issuing a permit or whether a permit can be issued at all.589Even after issuing a permit, the DNR has the explicit right to rescind the permit if the high capacity well "is not in conformance with standards or conditions applicable to the approval."590Moreover, six or more Wisconsin residents may petition the DNR to investigate alleged violations of high capacity well permits.591
3. Groundwater Quantity in the Great Lakes Basin As discussed in Chapter 5, two new agreements managing the water resources in the Great Lakes Basin were signed by the Great Lakes Governors and Premiers in 2005 (2005 586
See 2003 Wis. Act 310 (eff. May 7,2004).
Wis. Stat. $9 281.34(1)(b) and (2). "Water loss" is defined as a "loss of water fi-om the basin from which it is withdrawn as a result of interbasin diversion or consumptive use or both." Wis. Stat. 9 281.34(1)(g). 589 Wis. Stat. $9 281.34(4) and (5). "Groundwaterprotection area" is defined in Wis. Stat. (j 28 l.%(l)(a). 590 Wis. Stat. (j 281.34 (7). 59' Wis. Stat. 8 281.94(1). Residents may also submit petitions under this provision for alleged violations of largevolume surface withdrawals. 587
588
Chapter 7 Groundwater and Drinking Water
~ ~ r e e m e n t sThese ) . ~ ~ 2005 ~ Agreements regulate groundwater just as they regulate surface water. Under the 2005 Agreements, all new or increased groundwater diversions from the Great Lakes Basin or between Great Lakes watersheds are prohibited except as specified.593Moreover, consumptive use of more than 5,000,000 gpd of groundwater in the Great Lake Basin is restricted. See Chapter 5 for a more in-depth discussion of the requirements created by the 2005 Agreements. Responding to earlier agreements between the Great Lakes States and the Canadian Provinces, Wisconsin also restricts certain new withdrawals resulting in groundwater losses of 2,000,000 gpd or more from the Great Lakes Basin (or expanded withdrawals that increase groundwater loss by 2,000,000 gpd or more).594 V. DRINKING WATER REGULATIONS
In Wisconsin, drinking water is regulated under both federal and state law. A. Federal Safe Drinking Water Act Under powers vested through the Federal Safe Drinking Water Act, the USEPA has established drinking water standards called maximum contaminant levels ( M C L S ) . ~ ~ ~ Specifically, USEPA established primary MCLs for the protection of public health and secondary MCLs for the protection of the public welfare.596 Public water supplies may not contain substances above the MCLs. The Safe Drinking Water Act applies to any source of drinking water, whether it is groundwater or surface water.
592 Great Lakes-St. Lawrence River Basin Sustainable Water Resources Agreement (Dec. 13,2005) and the Great Lakes-St. Lawrence River Basin Water Resources Compact (Dec. 13,2005). 593 Water Resources Compact, Section 4.8; Sustainable Water Resources Agreement, Article 200. Wis. Stat. 9 281.35(4). 595 42 U.S.C. 6 300f, et seq.; 40 C.F.R. part 141. 596 40 C.F.R. parts 141 and 143, respectively.
Chapter 7 Groundwater and Drinking Water
B. State Drinking Water Standards
The Wisconsin Legislature empowered the DNR to create and administer a safe drinking water program no less stringent than the Federal Safe Drinking Water A C ~In .turn, ~ ~the~DNR created a rule codifying the federal M C L S . ~AS ~ ' with the federal program, these standards apply to all public water systems599and do not distinguish whether the water originates from surface water or groundwater. The DNR may use either the drinking water standards andlor the groundwater standards of Wis. Admin. Code ch. NR 140 as justification for declaring a nonpublic water supply " c ~ n t a m i n a t e d . ~ ~ ~
C. Individual Drinking Water Wells and Larger Drinking Water Systems The DNR and local authorities are charged with regulating individual groundwater wells used for human consumption.60' As the number of users increases, so does the level of regulation. If a drinking water system serves: at least 15 connections, or less than 15 connections but serves an average of 25 or more individuals on a daily basis for at least 60 days/year,602 then it is considered a "public water system." There are two types of public water systems: "community water systems" and "non-community water systems." Community water systems serve: at least 15 service connections used by year-round residents, or "regularly" serves at least 25 year-round residents.603
597 Wis.
Stat. (j 28 l.l7(8); see also Wis. Stat. ch. 280. Wis. Admin. Code ch. NR 809. 599 Wis. Admin. Code $9 NR 809.03 and 809.04(57). 600 Wis. Admin. Code (j NR 812.06. 60' For the DNR's powers, see Wis. Stat. 5 280.1 l(1) and Wis. Admin. Code ch. 812; for local powers, see Wis. Stat. 5 280.21 and Wis. Admin. Code ch. NR 845. 602 Wis. Admin. Code 4 NR 8 11.O2(25). 598
Chapter 7 Groundwater and Drinking Water A public water system that does not qualify as a "community water system" is a "noncommunity water system."604 Community water systems are heavily regulated. The design, construction and operation of these systems are specified in Wis. Admin. Code ch. NR 81 1. This includes regulation over using both surface water and ground water for drinking purposes. A community water system owned by a municipality is called a "municipal water system" and has additional regulations, for instance, wellhead protection programs are required for those wells.605 If a regulated activity contaminates wells used for water supplies for humans or livestock, the
DNR or a court may order the owner or operator of the regulated activity to either treat the well or supply an alternative water
D. Aquifer Storage and Recovery Wells An aquifer recovery system (ARS) is a system whereby treated drinking water is placed underground for storage and later recovered for use as drinking water.607With a few limited exceptions, ARS must comply with both of the state's groundwater and drinking water standards.608
E. Drilling and Abandonment of Drinking Water Wells Businesses engaged in the drilling of drinking water wells and installing related pumps must ~ who drill drinking water wells must be licensed under register with the D N R . ~ ' Individuals
Wisconsin law or be under the supervision of a licensed well driller or registered drilling rig
Admin. Code (j NR 809.04(4). There is a rebuttable presumption that systems serving any of the following qualify as a "community water system": 7 or more homes, and 10 or more mobile homes, apartment units, or condo units. Wis. Admin. Code (j NR 811.02(9). '04 Wis. Admin. Code (j NR 8 11.02(21). 605 Wis. Admin. Code (j NR 8 1l.l6(5). 606 Wis. Stat. (j 281.77. 607 Wis. Stat. (j 160.257(1)(b). 608 Wis. Stat. (j 160.257(2); Wis. Admin. Code $5 NR 81 1.87-81 1.93. 609 Wis. Stat. (j 280.15(1).
603 Wis.
Chapter 7 Groundwater and Drinking Water
operator. To become a licensed drinking water well driller, an individual must generally have been a registered drilling rig operator for at least two years, complied with specified training requirements, must have well drilling experience and must pass an
Water supply wells
may only be filled or sealed by a licensed well driller or pump installer, or a certified water
'
system operator.61
610
Wis. Stat. 4 280.15(2m). Wis. Stat. 4 280.30(2).
CHAPTER 8 WISCONSIN POLLUTANT DISCHARGE ELIMINATION SYSTEM (WPDES) PERMIT PROGRAM Lauren L. Azar David A. Crass I. OVERVIEW Wisconsin regulates the discharge of pollutants into surface water through the Wisconsin Pollutant Discharge Elimination System (WPDES) program, the authorized state program under the federal Clean Water Act. The WPDES program has separate requirements depending on how pollutants enter the surface water. There is one set of regulations for pollutants entering from a specific location (point source), others for those entering through storrnwater (non-point source) and a third set for discharges entering surface water via a sanitary sewer system. This chapter discusses in detail the regulations for each of these three sources of pollutants.
11. APPLICABLE STATUTES AND ADMINISTRATIVE RULES The following are some of the more fundamental statutes and rules relating to discharging pollutants into surface waters: Water Pollution Control ActIClean Water Act: 33 U.S.C. @ 1251, 1281-1301, 1311, l3l2,l3l3,l3l4,l3l5,l3l7,l342,l345,l37O,1377
40C.F.R.parts123,124,125,129-133,135-136,257,401,403,400-424,425-471, 501,503 Oil Pollution Act: 33 U.S.C.
8 2701, et seq.
Wis. Stat. ch. 283: Pollution Discharge Elimination 0 Wis. Admin. Code chs. NR 200-299 Wis. Stat. ch. 281: Water and Sewage Wis. Admin. Code chs. NR 101- 106 Wis. Admin. Code ch. Comm 83
Chapter 8 Wisconsin Pollutant Disclt a g e Elintination System (WPDES) Permit Program
111. DISCHARGE OF POLLUTANTS IN SURFACE WATERS
Enacted in 1972, the initial focus of the United States Clean Water Act ( c w A ) ~ ' ~was regulation of "point sources," i.e., regulating discharges coming from the end of a pipe. Under the CWA, National Pollutant Discharge Elimination System (NPDES) permits are required for point source discharges of pollutants into the "waters of the United
The United States
Environmental Protection Agency (EPA) delegated its authority to administer the NPDES program to the State of Wisconsin in 1974 through its WPDES program.614Tribal nations also have the power to issue NPDES permits and set water-quality standards for bodies of water located within their reservation boundaries.615To effectuate this power, a tribe must first obtain treatment-as-state (TAS) status. When this book went to print, the Lac du Flambeau were seeking TAS status in Wisconsin. By the late 1980s, it was readily apparent that regulating only point sources would not achieve the goals of the CWA, "to restore and maintain the chemical, physical and biological integrity of the Nation's
Hence, in 1987, Congress established the first
comprehensive program to address non-point source pollution which primarily regulates stormwater. With a few specified exceptions, the Wisconsin Legislature has mandated that the WPDES program comply with but not exceed the requirements of the NPDES program.617However, the WPDES program is broader than NPDES in one fundamental way: the WPDES program applies
612
33 U.S.C. $4 1251-1387, at the time referred to as the Federal Water Pollution Control Act Amendment of 1972. 33 U.S.C. $(i1311 and 1342. 4I' Wisconsin DNR and EPA, Memorandum of Agreement between the State of Wisconsin Department of Natural Resources and United States Environmental Protection Agency, Region V (Feb. 4, 1974). 6'5 Wisconsin v. EPA,266 F.3d 741 (7th Cir. 2001). 'I6 33 U.S.C. $ 1251(a). 'I7 Wis. Stat. $$ 283.11(2)-(3). 'I3
Chapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Pernzit Program to the "waters of the state," while the NPDES program applies to "waters of the United "Waters of the United States" encompass only navigable waters, tributaries of In contrast, "waters of the state" include every water of
navigable waters and certain
the United States, plus groundwater and all surface waters "except those waters which are entirely confined and retained completely upon the property of a person."620 In addition to the WPDES program, there are other laws that also regulate discharges of pollutants to surface waters, but none are as comprehensive as WPDES. For instance, the federal Oil Pollution A C ~regulates ~ ~ ' spills of oil or hazardous substances into the waters of the United States. Wisconsin regulates spills into waters of the state primarily through the Wisconsin Spill Law, which is discussed in Chapter 11. A. Point Source Discharges Parties wishing to discharge a L'pollutant"622into a "water of the state" through a "point source" must apply for and receive a permit for that activity fiom the DNR. Point sources are defined as: "A discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, ... concentrated animal feeding operation pollutants may be discharged
...."623
... fiom
which
TO obtain a permit, the applicant must show that it will
comply with specified limits for the pollutants being discharged.
Wis. Stat. 5 283.01(20). 33 U.S.C. 5 1362(7); 40 C.F.R. Cj 122.2. 620 Wis. Stat. Cj 283.01(20); see also Maple LeafFanns v. DNR, 2001 WI App 170,247 Wis. 2d 96,633 N.W.2d 720. 62' 33 U.S.C. ch. 40 (33 U.S.C. ch. 2701, etseq.). 622 LLP~llutant~y' is broadly defined to include "dredged spoil, solid waste, incinerator residue, sewage, garbage, refbse, oil, sewage sludge, ... chemical wastes, biological material ...heat ... rock, sand ... and industrial, municipal and agricultural waste discharged into water." Wis. Stat. Cj 283.01(13). 623 Wis. Stat. 5 283.01(12)(a). 6'9
Chapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Permit Program
There are two types of WPDES permits: general and individual. DNR creates general permits for specific categories or classes of point sources.624To qualify for a general permit, the applicant must submit an application to the DNR showing its proposed discharge falls within the categories of discharges covered by the general permit. Examples of the current categories covered by general WPDES permits include, but are not limited to, the following: Non-Contact Cooling Water, Condensate and Boiler Blowdown Concrete Products Operations Nonmetallic Mining Operations Swimming Pool Facilities Domestic Wastewater to a Subsurface Soil Absorption System Nondomestic Wastewater to Subsurface Absorption Systems If the applicant qualifies, then the applicant is permitted to discharge from a point source under the conditions specified within that general permit. If the holder of a general permit fails to comply with the permit conditions, the DNR may require the discharger to apply for an individual permit. Discharges not falling under a general permit require an individual permit. Individual permits specify conditions and effluent limitations that are facility specific to that permit holder.
I. Establishing Discharge Limits for an Individual Permit There are two primary types of discharge limits that may be imposed through a DNR permit: categorical effluent limits625and water-quality-based effluent limits.626In addition to these two primary types of discharge limits, DNR may also regulate limits through other methodologies
Wis. Stat. 5 283.35(1). Wis. Admin. Code 9 NR 212.03(2). 626 Wis. Admin. Code 5 NR 212.03(24). 624 See 625
Chapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Permit Program that consider the quality of the waterbody that is receiving the effluent. Usually a WPDES permit will require the permittee to comply with whatever limit is most stringent. A WPDES permit may specify the effluent limits through the concentration and/or the mass of pollutants contained in the discharge.627
a. Categorical Effluent Limits Categorical effluent limits are based on the effectiveness of the pollution-control technologies that are available to the applicant. Since facilities within the same industry have the same pollution-control technologies available to them, DNR has designated categorical effluent limits for a number of industrial categories.628The categorical limits are specified in terms of the overall volume of effluent discharged.629For instance, for new metal finishing operations, the maximum daily limit for cadmium is currently 0.1 1 mg/l of discharge water with a monthly average limit of 0.07 Categorical effluent limits depend on (i) when the discharge first begins and (ii) the type of discharge. (i) Historic Discharges Discharges in existence as of July 1, 1977 were required to apply the "best practicable control technology currently available" or "BPT."~~'By July 1, 1984, in Wisconsin, discharges of "conventional pollutants"632 were required to meet the "best conventional pollutant control
627 Limits based on concentration are
specified in units of mg/L, and those based on mass in units of kg/day or equivalent units. Wis. Admin. Code ch. NR 220; see also 40 C.F.R.parts 400-47 1. 629 Wis. Admin. Code chs. NR 221-297. 630 See Wis. Admin. Code ch. NR 261. 63' Wis. Stat. 9 283.13(2)(a). 632 Conventional pollutants are biochemical oxygen demand (BOD), total suspended solids (TSS), oil and grease, pH, and fecal coliform. Wis. Admin. Code 9 NR 215.05.
Chapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Permit Program technology" or " B c T " ~while ~ ~ discharges of most "toxic pollutants" were required to achieve "best available technology economically achievable" or
BAT".^^^ By July 1, 1987, discharges
of non-conventional pollutants were required to achieve
BAT.^^'
The list of toxic and non-
conventional pollutants may be found in Wis. Admin. Code ch. NR 2 15. (ii) New Discharges Both EPA and DNR have adopted New Source Performance Standards (NSPS) for certain industries. When a new discharge begins, if an NSPS has already been established for that industry type, then the new discharge must comply with the N S P S . ~However, ~~ if no NSPS has yet been established, then for conventional pollutants the new discharge must comply with BCT and, for all other types of pollutants, BAT.
b. EffluentLimits Based on Water-Quality Standards Since humans have been discharging substances to surface waters for hundreds of years, the quality of Wisconsin's surface waters has degraded. The current quality of any specific waterbody depends on both current use and whether the historically discharged pollutants have flushed through the system or still persist (bioaccumulate) in the system such as in the sediments. Because they are driven by the effectiveness of technology, categorical effluent limits do not consider the current quality of the receiving water. In contrast, effluent limits based on waterquality standards do just that. Their purpose is to ensure the discharge will not harm the present
and future uses of Wisconsin waters and, therefore, must necessarily consider the current condition of the receiving body.
Wis. Stat. 9 283.13(2)(e). Stat. $9 283.13(2)(b)-(d). 635 Wis. Stat. 9 283.13(2)(f). 636 Wis. Stat. 9 283.19(2). 633
634 Wis.
Clzapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Permit Program
"Water-quality standards" are defined in Wis. Admin. Code chs. NR 1 0 2 - 1 0 5 . ~These ~~ standards define the goals for a waterbody by designating its uses and setting criteria to protect those uses. The "water-quality criteria" are intended to protect the following: the public health and welfare; the present and prospective use of all surface waters for public and private water supplies; and the propagation of fish and aquatic life and In turn, these water-quality criteria are used to derive water-quality-based effluent limits. For instance, the "wildlife criterion is the concentration of a substance which if not exceeded protects Wisconsin's wildlife from adverse effects resulting from ingestion of surface waters of the state and from ingestion of aquatic organisms taken from the surface waters of the state."639Hence, a numeric effluent limit would be set at a level that would protect wildlife from the adverse effects of ingestion. The different methods of setting an effluent limit based on the water-quality standards are described below. Permittees may apply for a variance from a water-quality standard that is used to derive water-quality-based effluent limits.640 (i) Chemical-Specific Water-Quality-Based Effluent Limits For a number of chemical compounds, the DNR has designated limits based on the toxicity of each compound.641The regulations specify limits for both acute toxicity and chronic
637 Wis.
Admin. Code 9 NR 105.01.
638 Id.
Admin. Code $j NR 105.07(1). Wis. Stat. $j 283.15. 64 1 See Wis. Admin. Code chs. NR 102, 105 and 106. 639 Wis.
Chapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Permit Program
For instance, the acute toxicity limit for arsenic in cold water fisheries is currently 339.8 ug/L while for chronic toxicity it is 148 ~
g
i
~
.
~
~
~
(ii) Whole-Effluent Toxicity Limits DNR also regulates the toxicity of the overall discharge (i.e., the cocktail of compounds in the discharge) through its "whole-effluent toxicity" (WET) limit.644WET testing is not required in all cases.645When required to develop the WET limit, vertebrate and invertebrate organisms are placed in varying concentrations of the proposed effluent over varying periods of time. Both the acute and chronic toxicity of the effluent are then evaluated. Sometimes ongoing WET testing is required under a WPDES permit. (iii) Anti-Degradation Rules For conventional and toxic pollutants, new WPDES applicants and existing WPDES permittees seeking to increase their discharges are also subject to the DNR7s anti-degradation The DNR has categorized Wisconsin's waters into the following categories, with each category having its own anti-degradation requirements: Outstanding Resource Waters-degradation prohibited647 Exceptional Resource Waters-degradation prohibited648 Great Lakes Waters-persistent
bioaccumulating toxic substances regulated649
642 "Acute toxicitf' means the ability of a substance to cause mortality or an adverse effect from a single or shortterm exposure. Wis. Admin. Code $ NR 105.03(1). "Chronic toxicity" means the ability of a substance to cause an adverse effect from exposure over a substantial portion of the natural life expectancy of an organism. Wis. Admin. Code $ NR 105.03(14). 643 Wis. Admin. Code $ NR 105.06, Tables 1 and 5. "Wis. Admin. Code $9 NR 106.08-106.09. 645 Wis. Adrnin. Code 9 NR 106.08. 646 Wis. Admin. Code ch. NR 207; Wis. Admin. Code $ NR 102.05(1). 647 Wis. Admin. Code $ NR 102.10(2). Wis. Admin. Code $ NR 102.1l(2). 649 Wis. Admin. Code ยง NR 102.12(2).
Chapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Permit Program
Fish and Aquatic Life Waters-limited Variance Waters-waters
degradation allowed650
identified have limits specifiedb5'
Wis. Admin. Code ch. NR 207 specifies the anti-degradation procedures that must be applied to each of these categories. For instance, when applying the anti-degradation rules to a Fish and Aquatic Life Water, the applicant must provide the following to DNR: An assessment of the existing treatment capability for the applicant's discharge; Effluent quality data and background water-quality data showing whether a significant lowering of water quality will occur; If there will be any lowering of water quality, then a showing that the degradation will "accommodate important economic or social development"; and If there will be a signijkant lowering of water qualit then a showing that the degradation cannot be prevented in a cost-effective manner.&* If the required showings cannot be made, then DNR will disallow the proposed discharge. (iv) Allocated Waste Loads and Total Maximum Daily Loads When the categorical effluent limits are less stringent than necessary to achieve the designated water-quality standard, then both water-quality-based effluent limits and total maximum loads must be established.653The DNR has established waste load allocations (WLAs) for conventional pollutants, ammonia and phosphorus, and the effluent limits are established as a result of those allocations.654WLAs are also used when calculating the total maximum daily loads (TMDL) for an impaired water.
~ ~ DNR ~ has identified waterbodies that are not meeting their As required by the E P A , the designated uses (such as fishing and swimming) and are, therefore, considered "impaired" Wis. Admin. Code (i NR 102.13.
"' Wis. Admin. Code ch. NR 104.
"*
Wis. Admin. Code (i NR 207.04. (i NR 212.05(1). 654 Wis. Adrnin. Code (i NR 212.10. 655 33 U.S.C. (i 1313(d); 40 C.F.R. (i 130.7. 653 Wis. Admin. Code
Chapter 8 Wisconsin Pollutant Discharge Elintination System (WPDES) Permit Program
waters. This list of waters is called the "303(d) list" (referencing the defining section of the Clean Water Act) and is updated every two years.656For each listed water, the DNR is to establish the TMDL for the critical pollutants in that ~ a t e r b o dOnce ~ . ~a~TMDL ~ is established, the DNR must apportion the TMDL among all of the current WPDES permit holders while accounting for background levels and non-permitted sources. The TMDL is then allocated between point sources (WLAs) and non-point sources (load allocation). 2. Permit Application Process When and how an applicant must apply for coverage under a general WPDES permit will be specified in the permit. In contrast, the application process for individual permits is statutorily specified. Applications for an individual WPDES permit for a new facility must be submitted at least 180 days before the discharge begins.658Facilities with an existing WPDES permit must provide 180 days notice for all of the following: request to renew the permit, request to increase the permitted discharge, or request to create a new discharge.659If a renewal applicant submits its application in a timely manner but the DNR does not render a decision on the application before the existing WPDES permit expires, the applicant may continue to discharge under the expired permit until DNR acts on the permit application.660 After receiving an application, the DNR will prepare a draft permit and issue a public notice specifying that the public may review and comment on the terms of the draft permit.661Interested persons may request an informational hearing within the time specified in the notice, which is
DNR has submitted its next proposed list to the EPA but the list has not yet been approved. Wis. Stat. $8 283.31(3)(d)3 and 283.83. DNR has established a schedule for TMDL development over the next several years based on the need to prioritize limited staff resources. 658 Wis. Stat. 8 283.37(2). 659 Wis. Stat. $4 283.53(3) and 283.59(4). 660 Wis. Stat. 9 227.51(2). Wis. Stat. 283.39. 656
657
Chapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Permit Program
usually 30 days.h62After either the public notice period or, if applicable, the informational hearing, the DNR may issue a final permit. WPDES permits are effective for, at most, five years.663 Within 60 days of permit issuance, interested parties may request an evidentiary hearing, which automatically stays the effectiveness of the specific permit conditions that are challenged; all other conditions remain effective.664EPA has the ultimate power to veto conditions within an individual WPDES permit if EPA concludes the conditions violate the Clean Water A C ~ . ~ ~ ~ 3. Monitoring and Ongoing Compliance of Point Source Discharges Under WPDES
Holders of WPDES permits are required to conduct ongoing monitoring to ensure compliance with the permit effluent limits.666Monthly reports--called Discharge Monitoring Reports or "DMRs"-must
also be submitted to the DNR. Noncompliance with permit
conditions can lead to an enforcement action against the permittee.
B. Non-Point Source Discharges
In 1987, Congress created a new two-phased CWA program relating to ~ t o r m w a t e r EPA .~~~ enacted Phase I of the stormwater program in 1990 requiring NPDES permits for stormwater discharges from the following: "medium" and "large" municipal separate storm sewer systems668(MS4s) generally serving populations of 100,000 or greater; construction activity disturbing five acres of land or more; and ten categories of industrial activity.
Wis. Stat. $ 283.49. Stat. $ 283.53(1). 664 Wis. Stat. $283.63. 665 33 U.S.C. $ 1342(d). 666 Wis. Stat. $283.55. 667 See Water Quality Act of 1987, Pub. L. No. 100-4. 668 MS4s are defined at 40 C.F.R. 122.26(b)(8).
662
663 Wis.
Chapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Permit Program
Wisconsin implemented these regulations through its enactment of Wis. Stat. $ 283.33 and the promulgation of Wis. Admin. Code ch. NR 216 in 1994. Phase I1 began in 2003 when EPA expanded the regulation of stormwater discharges by municipalities and by construction activities disturbing one acre of land or more.
I . Municipal Permits Under the MS4 program (Municipal Separate Storm Sewer System), municipalities serving populations of 100,000 or more and those identified as "urbanized areas" as a result of the 2000 decennial census, are required to apply to DNR for coverage under a General WPDES Permit and to implement the following program components: 1. Public education and outreach 2. Public involvement and participation 3. Illicit discharge detection and elimination 4. Construction site pollutant control
5. Post-construction site stormwater management 6. Pollution prevention This program is just getting underway. DNR is working with the MS4 municipalities to educate them on what they need to do, and those municipalities will be implementing education and outreach programs to educate their residents. The municipalities will be adopting stormwater management and erosion control ordinances, and developing management practices to reduce the volume of solid material that may be washed away from residential, commercial and industrial sites. Model ordinances for adoption by municipalities are provided in ch. NR 152. The list of municipalities identified as "urbanized areas" is included in $ NR 216.02(3).
Chapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Permit Program
2. Industrial Permits Stormwater permits are required for industries listed within the Wisconsin stormwater rule as either "Tier I" or "Tier 11" industries. Tier I industries are heavy manufacturers, which include such industries as paper producers, primary metal industries and lumber products.669Tier I1 industries are light manufacturers, transportation facilities, mining, oil and gas operations as well as a number of other specified industries.670If the circumstances warrant, the DNR has the power to treat facilities who would normally be Tier I1 as Tier I and vice versa.671Moreover, if a Tier I or Tier I1 facility certifies to DNR that it does not expose stormwater to industrial materials or activities then this facility falls under the "No Exposure Exclusion" and need not obtain a stormwater permit.672 If not exempt, then Tier I and Tier I1 facilities must submit to DNR both a notice of intent (NOI) and a summary of their Storm Water Pollution Prevention Plan ( s w P P P ) . ~ Tier ~ ~ I and Tier I1 facilities that will have one or more acres of "land disturbing construction must submit, at least 14 working days prior to the start of construction, either the SWPPP summary or a No Exposure ~ertification.~~' All other Tier I and Tier I1 facilities must submit the SWPPP summary prior to initiating industrial operations.676
669 Wis.
Admin. Code fj NR 2 16.2 1(2), Table 1. Admin. Code fj NR 2 16.21(2), Table 2. 67' Wis. Admin. Code $ 9 NR 216.23(3)-(4). 672 Wis. Admin. Code fj NR 216.21(3). 673 Wis. Admin. Code fjfj NR 216.22(2) and 216.29(1)(e). 674 Land disturbing construction activity is defined as "any man-made alteration of the land surface resulting in a change in the topography or existing vegetative or non-vegetative soil cover that may result in stormwater runoff and lead to increased soil erosion and movement of sediment into waters of the state. Land disturbing construction activity includes clearing and grubbing, demolition, excavating, pit trench dewatering, filling and grading activities." Wis. Admin. Code 9 NR 216.002(14). 675 Wis. Admin. Code fjfj NR 216.22(2) and 216.29(1)(a). 676 Wis. Admin. Code fj NR 216.29(1)(b).
670 Wis.
Chapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Permit Program
a. Types o fIndustrial Stormwater Permits There are three types of stormwater permits for Tier I and Tier I1 industries. First, the DNR issues statewide general permits for each tier clas~ification.~~~ Second, DNR has also created industry-specific general permits for industries with unique stormwater issues. Any facility falling within an industry-specific general permit is not allowed to obtain a statewide general Examples of industry-specific permits include salvage yards and dismantling of vehicles for parts selling and salvage. Third, individual permits are issued to facilities that do not meet the applicability criteria for general permits or where the interaction between pollutants and stormwater at the facility are complex.679 Based on the information submitted in the NO1 and SWPPP summary, the DNR will determine whether the facility qualifies for a general permit, an industry-specific general permit, or an individual permit is required. DNR will send a letter to the applicant.680
b. Stormwater Pollution Prevention Plans "SWPPP
"
Any industry covered by a general or individual stormwater permit must prepare and implement an SWPPP.~~' The following lists the more significant items that must be included in the SWPPP: Drainage base map showing stormwater movement through the facility with materials likely to contaminate the stormwater marked on the map; Identification of all potential areas of stormwater contamination; Description of the Best Management Practices (BMPs) that will be implemented; and Identification of stormwater pollutants likely to occur after the BMPs are implemented.
5 NR 216.23. Wis. Admin. Code $5 NR 216.24 and 216.23(1)-(2). 679 Wis. Admin. Code $ NR 216.25(3). 680 Wis. Admin. Code $jNR 216.22(5). 681 Wis. Admin. Code $ NR 216.27(1). 677 Wis. Admin. Code
678
Chapter 8 Wisconsin Pollutant Disclzarge Elimination System (WPDES) Permit Program
"To the maximum extent practicable, and to the extent it is cost effective," BMPs must eliminate or minimize potential sources of contamination (rather than treat stormwater after it has been ~ontaminated).~'~ Unless the permit specifies otherwise, implementation of the BMPs must begin at the start of industrial operations.683 c.
Monitoring, Inspections and Reporting
Tier I and Tier I1 facilities must conduct three types of inspections. Annually, they must conduct inspections verifying the accuracy of their SWPPPs and ensuring their BMPs are properly implemented, properly operated and adequately maintained.684Quarterly, they must visually inspect the quality of the stormwater leaving their sites with the inspection occurring between 30 and 60 minutes after runoff begins.685Lastly, they must also inspect all outfalls for non-stormwater discharges.686 For the first two years, a Tier I facility must also conduct chemical stormwater sampling at up to five dissimilar outfalls for the residual pollutants listed in the facility's SWPPP.~'~ Inspection reports must be maintained on site and initially, the annual reports and sampling reports must be submitted to the DNR.
3. Construction Permits Generally, any land disturbing activity that affects one or more acres must obtain a construction stormwater discharge permit688and construction activities affecting less than one acre may also require a permit if they are deemed to be a "significant" source of stormwater
Wis. Admin. Code ji NR 216.27(3)(h). Wis. Admin. Code $ NR 216.29(5). 684 Wis. Admin. Code ji NR 216.28(2). 685 Wis. Admin. Code ji NR 216.28(3). 686 Wis. Admin. Code ji NR 216.28(1). 687 Wis. Admin. Code $ NR 2 l6.28(4)(b). Wis. Admin. Code $$ NR 216.002(2) and 216.42(1). 682
Chapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Permit Program
pollution.689Ten types of land disturbing activities are exempt from this permit requirement, including agriculture, DOT projects, and silviculture.690 The DNR has issued a WPDES Permit for Land Disturbing General Construction activities and most applicants will qualify for this general permit. At least 14 working days before beginning the construction, a landowner must submit a NO1 to begin land disturbing activities. Some local municipalities administer the construction-site stormwater rules on behalf of DNR. In such communities, the NO1 must be submitted to both the DNR and the local authority.691 Prior to submitting the NOI, the landowner must prepare a site-specific stormwater plan that includes two distinct plans: the erosion control plan and the stormwater management plan.692 Unless otherwise notified, the landowner may begin activities 14 working days after the NO1 is submitted.693
a. Erosion Control Plan The erosion control plan addresses the soil erosion and sedimentation created during construction. The plan must achieve "to the maximum extent practicable, a reduction of 80% of the sediment load carried in runoff, on an average annual basis, as compared with no sediment or erosion controls."694The plan must describe the BMPs that will be implemented at the site to accomplish this performance standard. At a minimum, the BMPs in an erosion control plan must include the following:
Admin. Code (j NR 216.51(3)(b). Wis. Admin. Code (j(j NR 216.42(2)-(11). 691 Wis. Admin. Code (j NR 216.48(2). 692 Wis. Admin. Code (j(j NR 2 16.46 and 2 16.47, respectively. 693 Wis. Admin. Code (j NR 216.45. While the rules do not require it, DNR typically sends a letter confirming coverage under the general permit rather than acquiescing by silence in response to the NOI. 694 Wis. Admin. Code (j NR 15 1.1 1 (6)(a). 689 W ~ S . 690
Chapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Permit Program
Control measures for each major activity; Interim and permanent stabilization practices; Structural practices to divert stormwater from exposed soils; Management of overland flow unless controlled by outfall measures; Trapping of sediment in channelized flow; Phased construction to limit bare areas subject to erosion; Protection of downslope drainage inlets; Minimization of tracking; Cleanup of off-site sediment deposits; Proper disposal of waste; Stabilization of the drainage ways; Installation of permanent stabilization processes as soon as possible after final grading; and Minimization of In addition to specifying the BMPs that will be implemented, the erosion control plan, among other things, must include a site map and the sequence of activities that will disturb the site.696
b. Stormwater Management Plan The stormwater management plan addresses post-construction pollution caused by stormwater discharges from the site. The plan must meet specified performance standards for controlling total suspended solids (TSS) and peak flow, enhancing infiltration, maintaining or restoring protective areas and reducing petroleum in runoff.697For instance, to the maximum extent possible, the plan must propose construction of BMPs that would maintain or reduce the Admin. Code fi NR 2 l6.46(6). NR 2 l6.46(4). 697 Wis. Admin. Code $5 NR 15 1.12(5)(a)-(e). 695 Wis.
696 Wis. Admin. Code fi
Chapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Permit Program
peak runoff discharge rate for the two-year, 24-hour design storm as compared to predevelopment conditions. BMPs that control impacts from stormwater runoff include the following: Infiltration systems; Wet detention ponds; Constructed wetlands; Grassed swales; Vegetative protective areas; Reduced imperviousness; Beneficial reuse such as irrigation; Combinations of these practices; or Other methods which prevent significant adverse impacts on receiving waters.
Inspections and Maintenance During construction, landowners must inspect their erosion and sediment control practices weekly and within 24 hours after a 3 0.5" rainfall. Inspection reports must be maintained at the site.698As needed to meet the performance standard, control practices must be repaired or replaced. Failure to complete the inspections and to repair and replace control practices may lead to enforcement actions.
4. Agricultural Permits
In Wisconsin, the DNR has authority to regulate animal feeding operations (AFOs) that are either defined or designated as concentrated animal feeding operations (CAFOs) as "point
698 Wis. Admin. Code
168
9 NR 216.46(9).
Chapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Perm it Program
sources" pursuant to Wisconsin's WPDES permit program.699The statutes provide the DNR with authority to promulgate rules to implement the WPDES permit program with regard to livestock operations defined or designated as CAFOs and those rules implement the program.700The DNR also has authority to incorporate federal requirements developed by USEPA as reflected in federal regulations.70'Wisconsin has regulated CAFOs pursuant to the WPDES permit program since the promulgation of chapter NR 243 of the Wisconsin Administrative Code in 1984. a. CAFO Desianation/Definition
Generally speaking, there are two ways that an AFO can be considered a CAFO and therefore require coverage pursuant to a WPDES permit: (i) definition; or (ii) designation. When an AFO feeds, confines, maintains or stables more than 1,000 "animal units" for 45 days or more in any 12-month period, that AFO is deJined as a CAFO for purposes of the permitting program and is required to be covered by a WPDES permit. An "animal unit" is not simply one head of livestock. Rather, an "animal unit" is calculated based upon the amount of manure projected to be produced by a 1,000-pound beef cattle. As such, a conversion chart is used to define an "animal unit" equivalency for the number of head based on livestock species or type.702 Among several important distinctions between the federal program and the Wisconsin WPDES program with respect to livestock operations is that Wisconsin aggregates all livestock type and species confined at an AFO for purposes of defining a CAFO whereas the federal rules do not provide for such aggregation. As a consequence, AFOs not defined as CAFOs under the Federal Clean Water Act can still be required to obtain a WPDES permit under Wisconsin law if
699 W ~ SStat. .
Ejji 283.01(12) and 283.31. Stat. Ej 283.1 l(1). 70' See 40 C.F.R. parts 122 and 412. 702 Wis. Admin. Code ยง NR 243.1 1(2), Table 2. 700 Ibid.; Wis.
Chapter 8 Wisconsin Pollutant Discharge Elinzination System (WPDES) Permit Program
the AFO confines more than 1,000 animal units when on aggregates all of the types or species of livestock at the production facility.
An AFO can also be designated for coverage under the WPDES permit program even if it confines fewer than 1,000 animal units. Such designation can occur if the AFO's operations result in a "point source" discharge of pollutants to navigable surface waters via a manmade conveyance or if the AFO's operations result in significant discharges to navigable waters or groundwaters. In either instance, the AFO may be designated a CAFO by the DNR and required to obtain a WPDES permit. Wisconsin law provides the mechanism for this designation whereby the DNR can designate an AFO as a CAFO (and require WPDES permit coverage) based upon observations made during on-site inspections by the D N R . ~ ' ~
b. Permit Application Process and Requirements Owners or operators of CAFOs are required to file a WPDES permit application 12 months before the operator plans to become a CAFO (i.e., 12 months before housing its 1,000th animal unit).704Comprehensive revisions to the federal regulations found at 40 C.F.R. part 122 were finalized in 2003 and, following a federal court case7'' revised and finalized in 2006. As a consequence, Wisconsin undertook a comprehensive revision of its implementing rules, chapter NR 243, beginning in 2003. DNR proposed to repeal and reissue chapter NR 243 in 2006 to provide for incorporation of many of the federal rule changes, as well as to update the rule. The proposed revised rule provides much more stringent regulatory requirements for nutrient management practices, operation and design of constructed facilities, inspection requirements, monitoring, recordkeeping and documentation for the collection, storage and safe land
703 Wis. Admin. Code
EjEj NR 243.21-243.26. Wis. Admin. Code Ej NR 243.12(1). 705 WaterkeeperAlliance, Inc. v. US.EPA, 399 F.3d 486 (2d Cir. 2005). 704
Chapter 8 Wisconsin Pollutant Discharge Elimination System (WPDES) Permit Program
application of livestock manure pursuant to the program. As of the writing of this book, those proposed revisions were still pending final adoption. WPDES permits applicable to CAFOs prevent permittees from having a discharge of pollutants from the animal production area--defined as areas of the livestock operation that are directly associated with the production of animals, including feed storage areas, raw material storage areas, animal lots, manure transfer and storage facilities and process wastewater storage facilities-to
navigable waters except when such a discharge occurs as a result of a 25-year,
24-hour storm event, so long as the CAFO facilities are designed pursuant to agricultural design standards and so long as the CAFO is complying with monitoring, inspection and recordkeeping requirements. Permittees must develop a nutrient management plan which provides for the safe storage and land application of manure and process wastewaters from the CAFO respecting resource protection setbacks, considering weather forecasts and implementing other conservation practices designed to minimize runoff of livestock manure from the intended land application sites. CAFOs are required to manage their manure pursuant to a phosphorus-based nutrient management plan whereby the nutrient phosphorus is the limiting factor with respect to crop uptake and land application volumes. WPDES permits applicable to CAFOs also require permittees to develop emergency response plans, to manage mortality to ensure there is not a discharge of mortality to waters of the State and to have adequate manure storage engineered to agricultural performance standards to avoid manure discharges or over-tapping of manure storage facilities. Inspections, recordkeeping and reporting are also important requirements of WPDES permits applicable to CAFOs.
Chapter 8 Wisconsin Pollutant Disclzarge Elintination System (WPDES) Pern~itProgram
c. Anricultural "Nonpoint " Pollution In that the WPDES permit program covers "point source" discharges from CAFOs (either definitional point sources or via direct conveyances), the WPDES permit program does not apply to "non-point" pollution or agricultural runoff from livestock operations or other forms of agricultural activity, such as tillage practices or the land application of livestock manure from non-CAFOs. Wisconsin's comprehensive non-point source regulatory program governs these discharges. The non-point source program applicable to agricultural operations can be found by reference to chapters 281 and 283 of the Wisconsin Statutes and chapters ATCP 50 and NR 151 of the Wisconsin Administrative Code.
C. Discharge of Pollutants to Sanitary Sewers Publicly owned treatment works (POTW) collect sewage from their customers and treat it. At least 180 days prior to a new or increased discharge, any party proposing to discharge industrial wastes or hazardous substances to a POTW must first notify the DNR and the POTW of its intent to discharge.706Some industrial discharges to POTW's are prohibited, such as discharges that create a fire or explosion hazard.707Discharging other industrial wastes or hazardous substances may require pretreatment before discharge and, if so, will be regulated by DNR and are also sometimes regulated through municipal ordinances.708Pretreatment may include such activities as dewatering with sludge removal, microscreening for suspended solids or clarifiers. The DNR has created pretreatment standards for any pollutant that "interferes with, passes through, or otherwise is incompatible with the treatment
DNR has also created
Stat. 98 283.59(2), 283.37(4) and 299.15(1). 9 NR 2 11.10. By law, municipalities discharging more than five million gallons per day of wastewater into the waters of the state must enact a pretreatment ordinance. Wis. Admin. Code 9 NR 211.20. 709 Wis. Stat. 9 283.21(2)@). 706 Wis.
707 Wis. Admin. Code
Chapter 8 Wisconsin Pollrrtant Discharge Elimination System (WPDES) Permit Program
categorical requirements for a number of industries and, for facilities not covered by categorical standards, the DNR requires the POTW to set discharge limits for industrial users that will cause the POTW to violate its WPDES Categorical pretreatment standards are provided for those industries for which DNR has established surface water effluent limits, as described a b ~ v e . ~Different " pretreatment standards are provided for existing sources (Pretreatment Standards for Existing Sources or PSES) and for new sources (Pretreatment Standards for New Sources or PSNS).
found at Wis. Admin. Code chs. NR 221-297. Wis. Admin. Code 9 NR 21 1.lo@) specifies the pretreatment requirements for those facilities not having categorical standards. 7" Wis. Admin. Code 9 NR 211.11. 710 Categorical pretreatment standards are
CHAPTER 9 SOLID WASTE MANAGEMENT David A. Crass Linda H. Bochert I. OVERVIEW Wisconsin's approach to solid waste management falls into four general categories: siting and operation of landfills, siting and operation of other solid waste facilities, management of special waste types, and recycling. This chapter discusses the regulatory approach to each of these categories. The regulation of solid waste management begins with the following key definitions. Solid
waste is defined very broadly to mean any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded or salvageable materials, including solid, liquid, semisolid, or contained gaseous materials resulting from industrial, commercial, mining and agricultural operations, and from community activities, but does not include solids or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under ch. 283, or source material, as defined in s. 254.31(10), special nuclear material, as defined in s. 254.31(1 l), or by-product material, as defined in s. 254.3 1(l)?I2
Solid waste disposal "means the discharge, deposit, injection, dumping or placing of any solid waste into or on any land or water. This term does not include the transportation, storage or treatment of solid waste."713 And a solid wastefacility is defined as follows: a facility for solid waste treatment, solid waste storage or solid waste disposal, and includes commercial, industrial, municipal, state and federal establishments or operations such as, without limitation because of enumeration, sanitary landfills, dumps, land disposal sites, incinerators, transfer stations, storage facilities, collection and transportation services and processing, treatment and recovery facilities. This term includes the land where the facility is located. This term does not include a facility for the processing of scrap iron, steel or nonferrous metal using large machines to produce a principal product of scrap metal for sale or use for remelting purposes. This term does not include a facility which uses large machines to sort, grade, compact
7'2
7'3
Wis. Stat. $ 289.01(33). Wis. Stat. 5 289.01(34).
Chapter 9
Solid Waste Managentent or bale clean wastepaper, fibers or plastics, not mixed with other solid waste, for sale or use for 714 recycling purposes. This term does not include an auto junk yard or scrap metal salvage yard.
11. APPLICABLE STATUTES AND ADMINISTRATIVE RULES Wis. Stat. ch. 287: Solid Waste Reduction, Recovery and Recycling Wis. Stat. ch. 289: Solid Waste Facilities Wis. Admin. Code chs. NR 500-590 111. SITING AND OPERATION OF LANDFILLS: WISCONSIN'S UNIQUE TWOTRACK LANDFILL SITING PROCESS In the early 1 9 8 0 Wisconsin ~~ confronted the dual-challenge associated with siting landfillsthe societal need for such disposal facilities balanced against the objections of many communities and homeowners to having a facility located in their area-by two-track siting process. One track-called
developing a unique
the "negotiatiodarbitration process"-is
overseen by
the Waste Facility Siting Board and addresses the zoning, economic, and social issues involved in siting a landfill.715The other track-the location and performance criteria-is
technical review of the need for the landfill, the
under the jurisdiction of DNR. To either site a new landfill,
or expand an existing landfill, a landfill developer must satisfL both sets of A. NegotiatiodArbitration Process The negotiatiodarbitration process for siting or expanding a landfill is set out in Wis. Stat. 289.33. That section includes specific expression of legislative intent to "create and maintain an effective and comprehensive policy of negotiation and arbitration between the applicant" and a "committee representing the affected municipalities" to assure (a) arbitrary or discriminatory policies or actions of local units of government to obstruct siting of facilities can be set aside; (b) legitimate concerns of residents and municipalities can be expressed, negotiated and, if need be, Stat. $ 289.01(35). it is discussed here in the context of siting solid waste landfills, this process also applies to the siting or expansion of hazardous waste treatment, storage and disposal facilities. Wis. Stat. $ 289.33(3)(c). 716 See DNR's website for a detailed discussion of the Landfill Siting Process and applicable checklists at httD://~~~.dnr.state.wi.us/org/aw/wm/solid/landfilvsitin~.h~. 714 Wis.
715 While
Chapter 9 Solid Waste Management
arbitrated; and (c) existence of an adequate mechanism to establish environmentally sound and economically viable disposal f a ~ i l i t i e s . ~ ' ~ Creation of the negotiationlarbitration process and Waste Facility Siting Board (WFSB) in 19817'%as a response to a Court of Appeals decision holding that DNR could not override a county zoning ordinance that prohibited siting a landfill without approval of the County ~ o a r d . At ~ ' the ~ time of enactment, many believed that $289.33 was intended to provide the state the ultimate authority to override a local municipality's exclusionary zoning ordinance. However, that viewpoint was tested and rejected in the key case interpreting this section, in which the Court of Appeals held that a preexisting local zoning ordinance prohibiting siting of a landfill could only be set aside if it were found to be "arbitrary or dis~riminatory."~~~ In the absence of guidance on what would constitute an "arbitrary or discriminatory" zoning ordinance, that decision is viewed by many to have shifted the balance in favor of the local municipality and against the landfill developer in the siting process. The negotiationlarbitration process consists of the following steps. The statutory time frames for action are specific and short as a means to expedite the process, and failure to meet them can be fatal to continued participation: 1. The landfill developer (applicant) must request that the local municipality in which the landfill is proposed to be located identify any local approvals that are required to site the landfill and make application for any that are identified.721Only "preexisting" local approvals, i.e., those in effect at least 15 months prior to the submission to DNR of either
7'7
Wis. Stat. $5 289.33(2)(a)-(c).
See 1981 Wis. Laws ch. 374. 7'9 See Nelson v. DNR, 88 Wis. 2d 1,276 N.W.2d 302 (Ct. App. 1979), afd, 96 Wis. 2d 730,292 N.W.2d 655 (1980). 720 Madison Landfills, Inc. v. Libby LandfillNegotiating Comm., 179 Wis. 2d 815,820,509 N.W.2d 307 (Ct. App. 7'8
1993). 72'
Wis. Stat. $ 289.22(1m).
Chapter 9 Solid Waste Management
a Feasibility Report or Initial Site Report, are applicable.722The municipalit must identify the preexisting local approvals within 15 days of the applicant's request.7 2 7 2. Within 60 days of receiving the applicant's request, the municipality must adopt a "siting resolution" confirming its intent to participate in the negotiatiodarbitration process and identifying the members of the local negotiating committee, and file that information with the WFSB. Failure to do so means the municipality cannot participate, and the applicant can proceed without further involvement in the negotiatiodarbitration process.724Municipalities whose borders are within 1,500 feet of the proposed limits of the facility are also considered "affected municipalities" and may opt into the process by adopting a similar siting resolution.725 3. Upon timely receipt, the WFSB will notify the applicant and the municipality that the negotiatiodarbitration process has been invoked, identify the parties, and inform them that negotiations may commence.726 4. Negotiations are conducted in open session and the process calls for public notice and public involvement.727If negotiations are successful, the parties subsequently file their negotiated agreement with the WFSB. Once DNR approval of the technical aspects of the facility, described below, is received, construction may begin. 5. If negotiations are not successful, the parties may request arbitration under the WFSB, following the procedures set out in Wis. Stat. ยง 289.33(10). The WFSB typically will request that parties continue to negotiate for a period of time, and also require mediation prior to implementing the arbitration procedures provided. Ultimately, if no agreement can be reached, the WFSB will oversee the arbitration proceeding and select fkom the final offers submitted by the applicant and the local negotiating c~rnmittee."~ Any subject is negotiable with two exceptions: a proposal to make the applicant's obligations under the Feasibility Report or Plan of Operation less stringent, and the need for the facility.729 However, only the following eight items are subject to arbitration:730 1. Compensation to any person for substantial economic impacts which are a direct result of the facility including insurance and damages not covered by the waste management fund.
722 Wis.
Stat. (j 289.33(3)(fm). Stat. 9 289.22(1m). 724 Wis. Stat. 9 289.33(6)(a). "* Wis. Stat. $9 289.01(1)(b) and 289.33(6). In addition, the applicant and affected municipalities may, by agreement, allow any other municipality to participate in the negotiations. Wis. Stat. (j 289.33(7n). 726 Wis. Stat. (j 289.33(6)@). 727 Wis. Stat. (j 289.33(9)(a). 728 Wis. Stat. (j 289.33(10). 729 Wis. Stat. (j 289.33(8)(a). 730 Wis. Stat. 9 289.33(8)(b). 723 Wis.
Chapter 9 Solid Waste Management
Reimbursement of reasonable costs, but not to exceed $20,000, incurred by the local committee relating to negotiation, mediation and arbitration activities under this section. Screening and fencing related to the appearance of the facility. This item may not affect the design capacity of the facility. Operational concerns including, but not limited to, noise, dust, debris, odor and hours of operation but excluding design capacity.73' Traffic flows and patterns resulting from the facility. Uses of the site where the facility is located afier closing the facility. Economically feasible methods to recycle or reduce the quantities of waste to the facility. At facilities for which the applicant will not provide or contract for collection and transportation services, this item is limited to methods provided at the facility. The applicability or nonapplicability of any preexisting local approvals. Staff support for the WFSB is currently provided by the Department of Administration Division of Hearings and Appeals. Copies of all negotiated agreements are on file and may be obtained by contacting the Division.
B. DNR's Technical Review and Approval Process The companion technical review process conducted by DNR consists of four steps: Initial Site Report, Feasibility Report, Plan of Operation, and Operating License. Each is discussed briefly below.
I. Initial Site Report Prior to constructing (or expanding) a landfill, the applicant must submit to DNR an initial site report ( I S R ) . ~The ~ ~ ISR may be preceded by an initial site inspection by DNR, if the applicant makes that request, to provide an early evaluation of whether the site intended for development as a landfill is viable from a technical standpoint. The ISR is to include, among other things, information on location, acreage, proposed landfill life and design capacity, 73' The design of the landfill liner and cap, landfill gas control system, and environmental monitoring systems were found to be arbitrable operational concerns in Madison Landfils, 179 Wis. 2d at 834. 732 Wis. Stat. (i 289.2 1.
Chapter 9 Solid Waste Managentent
anticipated waste types, anticipated volumes, land uses at and around the proposed site, zoning, adjacent landowners, and regional geotechnical information, including topography, hydrology, geology, hydrogeology, and water
The ISR must be submitted, and DNR's opinion on
the ISR obtained, before the applicant may submit a Feasibility ~ e ~ 0 1 DNR's - t . ~ ~opinion ~ letter will identify any apparent constraints to development of the landfill, such as the existence of wetlands or other sensitive land areas or resources on the site. 2. Feasibility Report A Feasibility Report must also be submitted and approved before construction of the landfill can begin.735The DNR technical review process and the negotiationlarbitration process are coordinated at this step in the following manner: the Feasibility Report may not be submitted to DNR until at least 120 days after the landfill developer has applied to the local municipality for any needed local approvals, or been advised by the local municipality that no local approvals are applicable. In addition, the Feasibility Report is to be provided to the affected municipalities at the same time it is submitted to D N R . ~ ~ ~ The Feasibility Report is the key document in the technical approval of the landfill and provides substantial technical data for DNR's review. The Feasibility Report includes information in the following categories: general facility information; land use information; sitespecific geotechnical information; subsurface data; waste and leachate characterization; discussion of any constraints on landfill development, including how the proposed facility will meet the detailed locational criteria and performance standards;737proposed preliminary design; an Environmental Assessment addressing proposed physical changes, existing environment, Wis. Admin. Code $9 NR 509.05-509.07. Code 8 NR 509.05(1). 735 Wis. Stat. 8 289.23(1). 736 Wis. Stat. 8 289.23(2). 737 Wis. Admin. Code ch. NR 504. 733
734 Wis. Admin.
Chapter 9 Solid Waste Managenr ent
environmental consequences, and alternatives; need and design capacity; and alternatives to land disposal of waste, including reduction, reuse, recycling, composting and energy recovery
initiative^.^^' DNR first determines whether the Feasibility Report is complete. It is typical that DNR will request additional information from the applicant before making a completeness determination. Once the Feasibility Report is deemed complete, DNR makes a companion decision as to whether preparation of an Environmental Impact Statement is required by the Wisconsin Environmental Policy Act
WE PA).^^^ If
SO,
DNR is to complete the EIS and related WEPA
process before proceeding. If not, DNR is to issue a public notice advising of its determination that the Feasibility Report is complete, that no EIS is required, and providing opportunity for submission of written comments and request for a hearing.740 Either a public informational hearing or a contested case hearing may be requested.741 Following the hearing, if one is held, DNR makes its final feasibility determination. This determination consists of findings of fact, conclusions of law, and will include conditions imposed on the construction and operation of the landfill based on DNR9s review.742 Determination of feasibility will include a determination that facility is needed, based on criteria specified in Wis. Stat. $289.28, and will specify the design capacity of the proposed facility. Issuance of a favorable feasibility determination constitutes approval of the facility for the purposes stated in the application, but the applicant must still receive approval of the Plan of
738
Wis. Stat. (i 289.24 (1); Wis. Admin. Code ch. NR 512. Stat. 6 1.11. 740 Wis. Stat. 289.25. 741 Wis. Stat. (j(i 289.26-289.27; there is no additional right to a hearing under Wis. Stat. (j 227.42. Wis. Stat. (i 227.42(5). 742 Wis. Stat. (i 289.29. 739 Wis.
Chapter 9 Solid Waste Management Operation before construction can
If DNR determines the facility is not needed,
the applicant is not authorized to construct or operate the
3. Plan of Operation Following a favorable feasibility determination, the applicant prepares and submits a Plan of Operation, detailing how the landfill will be operated in conformity with the conditions of the Feasibility Report
The statutes specify that no EIS can be required for approval of a
Plan of Operation, and if the approval of a Plan of Operation is challenged via judicial review, the Feasibility Report approval is not subject to review in that proceeding.746 The Plan of Operation also includes a plan for closure and long-term care of the landfill, including the method the landfill operator will use to maintain proof of financial responsibility.747Financial responsibility requirements are detailed and prescriptive; standard methods include a bond, a deposit, an established escrow account, an irrevocable letter of credit, or other method deemed satisfactory by D N R . ~ ~ If*the landfill is sold or transferred to another owner, the current owner remains responsible for closure and long-term care financial responsibility until the new owner makes satisfactory demonstration of both to D N R . ~ ~ ~
4. Operating License The Feasibility Report and Plan of Operation approvals authorize the applicant to construct the landfill. Before the landfill can be operated, the Operating License must be issued. The initial Operating License for the landfill is issued by DNR after the landfill is constructed according to
Wis. Stat. $5 289.29(3) and 289.30(1). Wis. Stat. 9 289.28(3). 745 Wis. Stat. 9 289.30; Wis. Adrnin. Code ch. NR 506. 746 Wis. Stat. @289.30(7) and (10). DNR has the discretion to grant a hearing on the plan of operation but is not obligated to do so. Wis. Stat. 9 289.30(11). 747 Wis. Stat. 9 289.30(4). 748 Wis. Stat. ji 289.41; Wis. Admin. Code ch. NR 520. 749 Wis. Stat. (i 289.41(10). 743 744
Chapter 9 Solid Waste Management
the Feasibility Report and Plan of Operation approval.750Operating Licenses are typically issued for a year, and are subject to annual renewal.75' C. Solid Waste Management Fees DNR is authorized to set and collect "reasonable license and review fees" to implement the solid waste management activities of the ~ e ~ a r t m e n t .A ~ "source of periodic tension between the Department and those who must either collect or pay the fees-e.g., industrial facility generators-the
landfill operators,
following fees are currently authorized by statute and
established in DNR rules: tonnage fees, groundwater and well compensation fees, WFSB fees, recycling fees, environmental repair fees and surcharges, and waste management fund fees.753 IV. SITING AND OPERATION OF OTHER SOLID WASTE FACILITIES
A. Regulated Facilities Solid waste facilities which are not considered landfills are also regulated, but are largely exempt from the negotiatiodarbitration process described above. Wis. Admin. Code ch. NR 502 governs all solid waste storage, transportation, transfer, incinerators, air curtain destructors, processing, wood-burning, composting and municipal solid waste combustors. General performance standards prohibit siting a facility in an area where there is a reasonable probability it will cause a detrimental effect on any surface water, a significant adverse impact to wetlands, a detrimental effect on groundwater quality, a taking of an endangered or threatened species, migration and concentration of explosive gases, and emissions of any hazardous air contaminant in excess of applicable limitations set in Wis. Admin. Code ch. NR 445.754Each of these types of
Wis. Stat. Ej 289.3 1. Wis. Stat. 5 289.31(1). 752 Wis. Stat. Ej 289.61. 753 Wis. Stat. $9 289.61-289.68; Wis. Admin. Code ch. NR 520. 754 Wis. Admin. Code Ej NR 502.04(1). 750
75'
Chapter 9 Solid Waste Management
facilities is subject to performance and siting criteria, must be approved by DNR, and operate according to an approved Plan of One-time disposal landfills, small size construction and demolition waste landfills, and intermediate size construction and demolition waste landfills can also be authorized and are regulated under the locational and performance criteria set out in Wis. Admin. Code ch. NR 503. B. Waivers and Exemptions
DNR may waive compliance with the solid waste facility siting requirements in emergency conditions necessary to prevent a threat to public health, safety or welfare,756and for research projects designed to demonstrate the feasibility of recycling certain solid wastes.757 Single-family waste disposal and animal carcass disposal are exempt from regulation.758 DNR may adopt rules to exempt from regulation low-hazard waste disposal,759and may adopt rules to exempt from regulation or licensing the development of improved methods of solid waste disposal.760DNR has exercised authority to exempt beneficial uses of certain industrial byproducts, such as supplemental fuels that provide energy through controlled burning, and raw materials for manufacturing a product with no measurable leaching, emissions or decomposition characteristics, such as cement, lightweight aggregate, structural or ornamental concrete, mineral wool, and wallboard.761
Wis. Admin. Code ch. NR 502. Wis. Stat. Q; 289.43(2). 757 Wis. Stat. Q; 289.43(3). 758 Wis. Stat. $9 289.43(5) and (9). 759 Wis. Stat. Q; 289.43(8); Wis. Admin. Code ch. NR 538. 760 Wis. Stat. Q; 289.43(4). 76' Wis. Admin. Code ch. NR 538; Wis. Adrnin. Code Q; NR 538.10. 755
756
Chapter 9
Solid Waste Managenlent The following activities are exempt from solid waste licensing: agricultural landspreading of sludge as a soil ~onditioner,'~~ agricultural use of wood ash,763and recycling of high-volume industrial waste.764 V. MANAGEMENT OF SPECIAL WASTES
Wis. Stat. ch. 289 also regulates the following specific wastes: open burning of solid wastes; commercial PCB waste storage and treatment facilities; disposal of PCB dredged materials; tire dumps; and disposal and burning of low-level radioactive waste.765 VI. RECYCLING
Wisconsin enacted comprehensive recycling legislation in 1 9 9 0 . ~The ~ ~approach involves both DNR and local units of government. DNR's role is to oversee the implementation of the recycling requirements by local units of government that agree to take on the recycling responsibility. A local unit, called a Responsible Unit or RU, may be a municipality, county, Indian tribe, solid waste management system or other unit or local government that takes on the responsibility for planning, operating and fbnding a recycling program. Rather than emphasizing regulatory requirements and enforcement, the focus of the recycling program is on education and technical and financial assistance to RUs and citizens.767 A. Solid Waste Management Policy Hierarchy
Wis. Stat. ch. 287 embraces the now-familiar "reduce, reuse, recycle" as the state policy and establishes the following hierarchy of preferred solid waste management options:768
Stat. $ 289.43(6). Stat. $ 289.43(6m). 764 Wis. Stat. 5 289.43(7); Wis. Admin. Code ch. NR 538. 765 Wis. Stat. $9 289.51-289.59. 766 Wisconsin first acted to encourage recycling in 1983 Wis. Act 426. The limitations of that approach led to the more comprehensive legislation enacted in 1989 Wis. Act 335, now codified in Wis. Stat. ch. 287. 767 Wis. Stat. 5 287.05. 768 Wis. Stat. 5 287.05(12). 762 Wis. 763 Wis.
Chapter 9 So lid Waste Management
1. Reduction of the amount of solid waste generated 2. Reuse of solid waste
3. Recycling of solid waste 4. Composting of solid waste 5. Recovery of energy from solid waste
6. Land disposal of solid waste 7. Burning of solid waste without energy recovery B. Landfill and Incineration Bans As a way to meet these goals, the law implemented a series of bans on landfilling and incineration which went into effect in 1991, 1993, and 1995.769
1. Landfill Bans At this time, subject to certain restrictions the following 15 categories of items are banned from disposal in landfills: 1. lead acid batteries 2. major appliances
3. waste oil (except when incinerated with energy recovery)
4. yard waste (may be disposed in approved compost facility or incinerated with energy recovery) 5. aluminum containers 6. corrugated paper or other container board
7. plastic containers
8. foam polystyrene packaging 9. glass containers 10. magazines and materials printed on similar paper
769 Wis. Stat.
Ij 287.07.
Chapter 9 Solid Waste Management
11. newspapers and materials printed on newsprint 12. office paper 13. steel containers
14. steel/aluminum (bi-metal) containers 15. waste tires (except when incinerated with energy recovery) 2. Incineration Bans Subject to certain exceptions, the following 10 items are banned from in~ineration:~~' aluminum containers corrugated paper or other container board foam polystyrene packaging glass containers magazines and materials printed on similar paper newspapers and materials printed on newsprint office paper plastic containers steel containers
10. steel/aluminum (bi-metal) containers C. Responsible Units Obligations The basic obligation of the RU is to establish and implement an "effective recycling program" at the local level. The RU develops the program and submits it to DNR for review. The program is considered "effective" if it contains all of the following:771
Stat. 9 287.07(4). Wis. Stat. fi 287.11; Wis. Admin. Code ch. NR 544.
770 Wis. 77'
Chapter 9 Solid Waste Management
1. public education component 2. requirement that single-family residences, buildings with two or more dwelling units, and commercial, retail, industrial and government facilities separate materials banned from landfilling and incineration
3. requirement that owners of buildings with 5 or more dwellings units provide separate recycling containers, notify tenants of the program obligations, and provide for collection of recycled materials 4. requirement that owners of commercial, retail, industrial and government facilities provide separate recycling containers, notify users and occupants of the program obligations, and provide for collection of recycled materials 5. a system for collecting recycled materials from single-family residences
6. a system for processing and marketing recyclable materials 7. prohibition on the landfilling or incinerating of banned materials 8. provisions for management of post-consumer waste not separated for recycling or recovery 9. other provisions DNR may require by rule
10. adequate enforcement mechanisms 11. equipment or means to implement the requirements
12. a reasonable effort to reduce the generation of solid waste
D. Financial and Technical Assistance DNR implements financial and technical assistance through recycling grants to RUs, waste reduction and recycling demonstration grants, and recycling efficiency incentive grants to
RUS.~~~
772
Wis. Admin. Code chs. NR 542,548 and 549.
188
CHAPTER 10 HAZARDOUS WASTES AND HAZARDOUS SUBSTANCES Pamela L. Gergens Linda H. Bochert I. OVERVIEW While the terms "hazardous waste" and "hazardous substance" are often used interchangeably in every day speech. In the law they have distinct meanings and regulatory implications. As explained in more detail in this chapter, hazardous waste refers to something that is a "waste", whereas hazardous substances are used in product manufacture. The regulation of hazardous wastes in the United States has changed drastically over the past 30 years. In the mid-twentieth century, hazardous waste disposal practices could be extremely
unsophisticated with disposal literally taking the form of dumping the waste in the generator's backyard. This all changed in the 1970s with the passage of the federal Resource Conservation and Recovery Act (RCRA) which ultimately has forced hazardous waste generators to account for their waste from the moment it is generated to the moment it is disposed. The legal liability for the waste follows the generator forever. Similarly, the identification of substances as hazardous and their regulation in manufacture, commerce, and storage has received significant attention in both federal and state laws and regulations. The first section of this chapter details the current state of hazardous waste regulation. It first discusses what constitutes a hazardous waste. It then moves to a discussion of the generation, transportation, and treatment, storage and disposal of hazardous waste. Finally, it concludes with a discussion of enforcement mechanisms for violations of the hazardous waste statutes and regulations.
Chapter 10 Hazardous Wastes and Hazardous Substances The second section of this chapter discusses four federal hazardous substance regulatory programs, EPCRA, TSCA, FIFRA and the UST program, and their Wisconsin counterpart statutes and regulations. 11. APPLICABLE STATUTES, REGULATIONS AND CASE LAW A. Hazardous Waste Management 1. Federal 42 U.S.C. $ 6901, et seq.: Solid Waste Disposal Act 40 C.F.R. part 261: Identification and Listing of Hazardous Waste 40 C.F.R. part 262: Standards Applicable to Generators of Hazardous Waste 40 C.F.R. part 263: Standards Applicable to Transporters of Hazardous Waste 40 C.F.R. part 264: Standards for Owners and Operators of Hazardous Waste Treatment, Storage and Disposal Facilities 40 C.F.R. part 268: Land Disposal Restrictions Meghrig v. KFC Western, Inc., 5 16 U.S. 479 (1996) 2. State Wis. Stat. ch. 291: Hazardous Waste Management Wis. Admin. Code ch. NR 661: Hazardous Waste Identification and Listing Wis. Admin. Code ch. NR 662: Hazardous Waste Generator Standards Wis. Admin. Code ch. NR 663: Hazardous Waste Transporter Standards Wis. Admin. Code ch. NR 664: Hazardous Waste Treatment, Storage and Disposal Facility Standards Wis. Admin. Code ch. NR 668: Land Disposal Restrictions B. Hazardous Substance Management I. Federal
Emergency Planning and Community Right to Know Act 42 U.S.C. $9 11001-11050 40 C.F.R. parts 302 and 370 Toxic Substances Control Act 15 U.S.C. $$2601-2692 40 C.F.R. $8 700-799
Chapter 10 Hazardous Wastes and Hazardous Substances Federal Insecticide, Fungicide and Rodenticide Act 7 U.S.C. $9 136-1364, 40 C.F.R. $5 150-189 Underground Storage Tank program 42 U.S.C. $5 6991-69911 40 C.F.R. part 280 2. State Wis. Stat. ch. 166: Emergency Management Wis. Admin. Code chs. WEM 3 and 6: Toxic Chemical Inventory Reports by Private and Public Agencies; Response and Reimbursement Procedures for Regional and Local Emergency Response Teams Wis. Stat. $ 299.45: Manufacture and purchase of polychlorinated biphenyls Wis. Admin. Code ch. NR 157: Management of PCBs and Products Containing PCBs Wis. Stat. $9 94.67-94.71: Pesticides Wis. Admin. Code ch. ATCP 29: Pesticide Use and Control Wis. Admin. Code ch. ATCP 30: Pesticide Product Restrictions Wis. Admin. Code ch. NR 80: Use of Pesticides on Land and Water Areas of the State of Wisconsin Wis. Admin. Code ch. NR 107: Aquatic Plant Management Wis. Stat. $8 101.09, 101.10 and 101.142: Storage of flammable, combustible and hazardous liquids; Storage and handling of anhydrous ammonia; Inventory of petroleum product storage tanks Wis. Admin. Code ch. Comm 10: Flammable and Combustible Liquids Wis. Admin. Code ch. Comm 43: Anhydrous Ammonia Wis. Admin. Code $ Comm 47.1 1: Tank Registration Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (199 I), reversing Mortier v. Town of Casey, 154 Wis. 2d 18,452 N.W.2d 555 (1990) Croplife America, Inc. v. City ofMadison, 432 F.3d 732 (7th Cir. 2005) 111. HAZARDOUS WASTE MANAGEMENT
RCRA was the first major federal regulatory statute designed to address the problems of hazardous waste
Enacted in 1976, RCRA is a highly detailed statute regulating
hazardous waste streams from their generation to final disposal. RCRA is often termed a "cradle to grave" statute for hazardous wastes as it governs hazardous wastes from their generation through disposal. 773 42 U.S.C.
6 690 1, et seq.
Chapter 10 Hazardous Wastes and Hazardous Substances
In 1977, Wisconsin enacted the Hazardous Waste Management A C ~The . Hazardous ~ ~ ~ Waste Management Act calls for the Wisconsin Department of Natural Resources (DNR) to develop and administer a regulatory program that met nine specific objectives, the last of which was to develop a program that met the minimum requirements of RcRA.~~'The DNR proceeded to draft such rules which were ultimately codified in the Wisconsin Administrative Code ch. NR 600 series. The United States Environmental Protection Agency (EPA) may delegate its authority to implement RCRA to the states.776To be eligible for such designation, a state must create a program that is substantially equivalent to and consistent with RCRA, be consistent with other approved state programs, and provide adequate enforcement mechanisms.777Wisconsin was granted interim authorization to administer a significant portion of RCRA in 1981, and final authorization in 1 9 8 6 . Wisconsin ~~~ is authorized to administer the portions of RCRA pertaining to hazardous waste control which include permitting, treatment, storage and disposal facilities and the regulation of generators and transporters. The state also has primary enforcement authority, although the EPA retains oversight authority as well as the right to conduct inspections and initiate enforcement actions.779 It follows, then, that Wisconsin's regulatory framework for hazardous wastes is patterned after RCRA and its regulations. In fact, Wisconsin recently reformatted and renumbered all of its hazardous waste regulations so that they more closely resemble the formatting and numbering scheme of their federal counterparts. Stat. ch. 291. Wis. Stat. 3 291.001. 776 42 U.S.C. 6 6926. 777 42 U.S.C. 9 6926(b). 778 51 Fed. Reg. 3783 (Jan. 30, 1986). 779 Id. 774 Wis. 775
Chapter 10 Hazardous Wastes and Hazardous Substances
A. Definition of Hazardous Waste In order to determine whether a waste is hazardous, it first must meet the definition of a solid waste.780A solid waste is any discarded material, other than certain domestic sewer and industrial wastewater d i ~ c h a r ~ e s . ~A"material is discarded if it is abandoned, recycled, considered inherently waste-like, or a military munition identified as a solid waste.782Materials are considered abandoned if they are disposed of; burned or incinerated; accumulated; or accumulated, stored or treated (but not recycled) before or in lieu of being abandoned.783 A solid waste, then, is a hazardous waste if all of the following apply: 1. It is not excluded by rule from regulation as a hazardous waste; and 2. It meets any of the characteristics of a hazardous waste or is listed on a regulatory list of hazardous wastes.784 Very few solid wastes are excluded by rule from the definition of hazardous waste. Perhaps the most common excluded waste is household waste. Household waste means any material, including garbage, trash and sanitary wastes in septic tanks, derived from households.785The definition of "household" includes single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds and day-use recreation areas.786
Admin. Code (3 NR 661.03(1); 40 C.F.R. 9 261.2. Admin. Code (3 NR 661.02(1)(a); 40 C.F.R. (3 261.2(a)(1). 782 Wis. Admin. Code (3 NR 661.02(1)(b); 40 C.F.R. (3 261.2(a)(2). 783 Wis. Admin. Code (3 NR 661.02(2); 40 C.F.R. (3 261.2(b). 784 Wis. Admin. Code (3 NR 661.03(1); 40 C.F.R. (3 261.3(a). 785 Wis. Admin. Code (3 NR 661.04(2)(a); 40 C.F.R. (3 261.4@)(1). 786 Id. 780 Wis.
781 Wis.
Chapter 10 Hazardous Wastes and Hazardous Substances
1. Listed Hazardous Wastes A listed hazardous waste is a waste that is present on one of the four lists maintained by the
D N R . ~The ~ ~DNR's lists are nearly identical to those maintained by the E P A . ~The ~ ~lists are referred to by the letters F, K, P, and U. F listed wastes are hazardous wastes from common industrial and manufacturing processes.789The F listed wastes can be divided into seven groups, depending on the type of manufacturing or industrial operation that created them.790These seven categories are spent solvent wastes, electroplating and other metal finishing wastes, dioxin-bearing wastes, chlorinated aliphatic hydrocarbons production wastes, wood preserving wastes, petroleum refinery wastewater treatment sludge and multisource l e a ~ h a t e . ~ ~ ' Hazardous wastes from specific sectors of industry and manufacturing are included in the
K list of hazardous wastes.792The wastes on the K list are generated from 13 different industrial or manufacturing categories on the list.793These wastes are very specifically described. For example, wastes such as the "bottom sediment sludge from the treatment of wastewaters from wood preserving processes that used creosote or pentachlorophenol" are included on the K list.794 The P and U listed wastes are comprised primarily of wastes from discarded commercial chemical products.795For a waste to qualify as a P or U listed waste, the waste must meet the following three criteria:
787 Wis. Admin.
Code ch. NR 661, subch. D. subpart D. 789 Wis. Admin. Code 9 NR 66 1.31; 40 C.F.R. 9 261.3 1. 790 Id. 791Id. 792 Wis. Admin. Code 9 NR 661.32; 40 C.F.R. 9 261.32. 793 Id. 794 Id. 795 Wis. Admin. Code 9 NR 661.33; 40 C.F.R. $8 261.33 and 261.35. 788 40 C.F.R. part 261,
Chapter 10 Hazardous Wastes and Hazardous Substances
The waste must contain one of the chemicals listed on the P or U list; The chemical in the waste must be unused; and The chemical in the waste must be in the form of a commercial chemical product (ccP).~~~ For purposes of these two lists, a CCP is defined as a chemical that is either 100%pure, technical grade or the sole active ingredient in a chemical f o n r ~ u l a t i o n . ~ ~ ~ 2. Characteristic Hazardous Wastes Solid wastes that are not on any of the lists of hazardous wastes can still be hazardous wastes if they display a hazardous waste characteristic. Characteristic wastes are wastes that exhibit measurable properties which indicate that waste poses enough of a threat to warrant regulation as a hazardous waste. The four hazardous waste characteristics are ignitability, corrosivity, reactivity and
A solid waste displaying any one of these characteristics is a hazardous
waste. a. Ignitability
The ignitability characteristic identifies wastes that can readily catch fire and sustain combustion. Specifically, a solid waste exhibits the ignitability characteristic if a representative sample of the waste has any of the following properties: 1. It is a liquid and has a flashpoint less than 60 degrees Celsius;
2. It is not a liquid and is capable of causing fire through fiction, absorption of moisture or spontaneous chemical changes and, when ignited, burns so vigorously and persistently that it creates a hazard; or
3. It is a flammable gas or oxidizer as defined by federal rule.799
Id. Id. 798 Wis. Admin. Code ch. NR 661, subch. C; 40 C.F.R. part 261, subpart C. 799 W ~ SAdrnin. . Code Cj NR 661.21(1); 40 C.F.R. $ 261.21(a). 796
797
Chapter 10 Hazardous Wastes and Hazardous Substances
A solid waste with the ignitability characteristic has the EPA hazardous waste number DO01 .800 Many paints, cleaners and other industrial wastes have the ignitability characteristic and are hazardous wastes.
b. Corrosivitv Wastes that are acidic or alkaline are identified through the presence of the corrosivity characteristic. More precisely, a solid waste exhibits the corrosivity characteristic if a representative sample is aqueous and has a pH of less than or equal to 2 or greater than or equal to 12.5 or it is a liquid and corrodes steel at a rate greater than 6.35 mm per year at a test ~ ~solid ' waste that exhibits the corrosivity characteristic has temperature of 55 degrees ~ e l s i u s .A the EPA hazardous waste number ~ 0 0 2 . ' ~ ~
c. Reactivity The reactivity characteristic describes wastes that readily explode or undergo violent reactions or react to release toxic gasses or fumes. A solid waste exhibits the reactivity characteristic if a representative sample of the waste has any of the following properties: 1. It is normally unstable and readily undergoes violent change without detonating; 2. It reacts violently with water;
3. It forms potentially explosive mixtures with water; 4. When mixed with water, it generates toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment; 5. It is a cyanide or sulfide bearing waste that can generate toxic gases, vapors or fumes in a quantity sufficient to present a danger to human health or the environment; 6. It is capable of detonation or explosive reaction if it is subjected to a strong initiating source or if heated under confinement; Wis. Admin. Code 9 NR 66 1.2l(2); 40 C.F.R. ji 26 1.21 (b). Wis. Admin. Code 9 NR 661.22(1); 40 C.F.R. 4 26 1.22(a). Wis. Admin. Code 9 NR 66 1.22(2); 40 C.F.R. $261.22(b).
Chapter 10 Hazardous Wastes and Hazardous Substances 7. It is readily capable of detonation or explosive decomposition or reaction at standard temperature and pressure; or
8. It is a forbidden explosive as defined by EPA rule.'03
A solid waste that exhibits the reactivity characteristic has the EPA hazardous waste number ~ 0 0 3 . "Examples ~ of reactive hazardous wastes are discarded explosives or munitions.
d. Toxicity Toxic hazardous waste is waste that, when disposed in a land disposal unit, can leach toxic compounds into the groundwater and pose a threat to the drinking water supply. In order to determine if a waste has the toxicity characteristic, the toxicity characteristic leaching procedure (TCLP) method prescribed by the EPA is used. If the sample contains any of the contaminants listed in the TCLP table at levels exceeding the regulatory level listed on that table, the waste is a hazardous waste.'05 A solid waste exhibiting the toxicity characteristic for a specific contaminant on the table is given the corresponding EPA hazardous waste number as indicated on the table. 3. Mixture Rule
The mixture rule is applied to ensure that mixtures of listed wastes with non-hazardous solid wastes are managed in the proper manner, either as a hazardous waste or as a solid waste.806 A mixture of a listed hazardous waste with a non-hazardous waste is still considered a hazardous waste regardless of the amount of listed hazardous waste in the rnixture8O7However, a mixture involving a characteristic hazardous waste is hazardous only if the mixture itself exhibits a hazardous character is ti^.'^' Characteristic waste can be made non-hazardous through treating it to remove its hazardous properties. Finally, all wastes listed solely for exhibiting the Wis. Admin. Code 8 NR 661.23(1); 40 C.F.R. 3 261.23(a). Wis. Admin. Code NR 66 1.23(2); 40 C.F.R. 3 261.23(b). Wis. Admin. Code 3 NR 661 .24(l); 40 C.F.R. 3 261.24(a). Wis. Admin. Code 3 NR 661.03(1)(b)4; 40 C.F.R. 9 261.3(a)(2)(iv). 807Id. (however, there are several exemptions to this rule for specific waste streams). 808 Id.
Chapter 10 Hazardous Wastes and Hazardous Substances
characteristics of ignitability, corrosivity and/or reactivity are not regulated as hazardous wastes once they no longer exhibit a character is ti^.^^^
4. Derived-From Rule Hazardous waste treatment, storage and disposal activities can generate residues that may contain high concentrations of hazardous materials. The so-called "derived-from rule" governs the regulatory status of such waste re~idues.''~The waste residues of a listed waste is still a hazardous waste unless the residue is derived-from a hazardous waste that is listed solely for exhibiting the characteristic of ignitability, corrosivity, and/or reactivity and does not exhibit a characteristic of hazardous waste or unless the waste is recycled to make new products or proceeds to recover usable materials with economic value.*" Treatment residues and materials derived from characteristic wastes are hazardous only if they themselves exhibit a ~haracteristic.''~
B. Hazardous Waste Generators
A generator is defined as any person, by site, whose act or process produces a listed or characteristic hazardous waste or whose first act causes a hazardous waste to become subject to regulation.'13 Generators are required to first determine whether the waste generated by them is a hazardous waste.'14 If the waste is hazardous, the generator must obtain an EPA identification number from the DNR for the treatment, storage, disposal or transportation of that waste.'15 This identification number allows the DNR to track that waste to its final disposal location. The
8'0
Wis. Admin. Code $ NR 661.O3(7); 40 C.F.R. $ 261.3(g). Wis. Admin. Code $ NR 661.03(3); 40 C.F.R. $ 261.3(c). Id. Id. Wis. Admin. Code $ NR 660.10(50); 40 C.F.R. $ 260.10. Wis. Admin. Code $ NR 662.01 1; 40 C.F.R. $ 262.1 1. Wis. Admin. Code $ NR 662.012; 40 C.F.R. $262.12.
'" 8'3 'I4
'I5
Chapter 10 Hazardous Wastes and Hazardous Substances
issuance of the identification number also kicks the generator into a complex series of regulations for that hazardous waste.
A generator may only accumulate hazardous waste on-site for 90 days without obtaining a license to operate a treatment, storage or disposal facility.816Unless the generator is in the hazardous waste disposal or treatment business, obtaining an operating license is impractical. Thus, the generator must comply with the 90-day storage requirement and properly contain, place, label and document the waste according to the very specific requirements detailed in the r e g u l a t i ~ n . The ~ ' ~ DNR may grant an extension to the 90-day storage period if the generator can demonstrate unforeseen, temporary and uncontrollable
circumstance^.^^^
Prior to transporting hazardous waste off-site, the generator must properly package the waste following the packaging regulations of the United States Department of ~ r a n s ~ o r t a t i o The n.~~~ wastes must also be properly labeled, marked and placarded.820 Hazardous wastes may only be transported off-site with an approved manifest form signed by the generator.821The generator must keep copies of all manifests for three years or until the generator receives a signed copy from the designated facility which received the waste.822The generator must also keep copies of any test results or waste analyses for a period of three years. 823
Wis. Admin. Code 9 NR 662.034; 40 C.F.R. $ 262.34. Id. 'IS Id. 'I9 Wis. Admin. Code 9 NR 662.030; 40 C.F.R. 8 262.30. 820 Wis. Admin. Code $9 NR 662.031,662.032 and 662.033; 40 C.F.R. $$262.31,262.32 and 262.33. 821 Wis. Admin. Code 5 NR 662.020; 40 C.F.R. 5 262.20. 822 Wis. Admin. Code 9 NR 662.040; 40 C.F.R. $ 262.40. 823 Id.
'I6 'I7
Chapter 10 Hazardous Wastes and Hazardous Substances
A generator who ships any hazardous waste off-site to a treatment, storage or disposal
facility must prepare an annual report.824The annual report must contain the generator's EPA identification number, name and address; the calendar year covered by the report; a certification signed by the generator or authorized representative; and the generator fee worksheet to determine the environmental repair fee to be paid.825Annual reports for odd-numbered years must include additional information as to the names of transporters, description of the waste transported and efforts to reduce hazardous waste volume and
The generator must
retain copies of the annual reports for a period of at least three years from their due dates.827 Hazardous waste generators are classified as large quantity generators (LQGs), smallquantity generators (SQGs) and very small quantity generators ( v s Q G s ) . ~ A ~ ~generator is an SQG in a calendar month if the generator generates greater than 100 kg but less than 1000 kg of nonacutely hazardous waste in that month.829A generator is a VSQG if the generator generates less than 100 kg of nonacutely hazardous waste in a calendar month.830All other hazardous waste generators are LQGs. LQGs must comply with all of the manifest, pre-transport, and recordkeeping and reporting requirements discussed above. However, SQGs and VSQs are exempt from some of these requirements.
Wis. Admin. Code (i NR 662.041; 40 C.F.R. (i 262.41 (the EPA only requires biennial reporting). Id. 826 Id. 827 Wis. Admin. Code (i NR 662.040(2); 40 C.F.R. (i 262.40(b). Wis. Admin. Code ch. NR 662, subchs. S and V; 40 C.F.R. part 273, subparts B and C. 829 Wis. Admin. Code (i NR 662.190(1); 40 C.F.R. (j 260.10. 830 Wis. Admin. Code (i NR 662.220(6); 40 C.F.R. (i 261.5 (called a "conditionally exempt small quantity generator").
"'
Chapter 10 Hazardous Wastes and Hazardous Substances
The manifest requirements do not apply to SQGs if the waste is reclaimed and the SQG maintains a copy of the reclamation contract for a period of three years or until its expiration.831 SQGs are also allowed to accumulate their hazardous waste for a period of 180 days rather than the 90 days allowed for LQGs as long as the SQG complies with the emergency procedures and personnel training requirements of the regulation.832The time period is extended to 270 days for SQGs who transport their own waste or offer their hazardous waste for transportation over a distance of 200 miles or more for off-site treatment.833VSQGs are subject to even fewer regulatory requirements.834
C. Hazardous Waste Transporters The hazardous waste transporter regulations are designed to ensure the safe transport of hazardous wastes fiom the generator to the designated treatment, storage or disposal facilities. A transporter is any person engaged in the off-site transportation of hazardous waste by air, rail, highway or water.835 Like a generator, a transporter must obtain an EPA identification number.836A transporter must also obtain a hazardous waste transportation license.837Each location at which a person transporting hazardous waste bases transport vehicles must be licensed as a separate transportation service.838 Transporters must comply with the manifest system required of the generators.839 A transporter may not accept hazardous waste fiom a generator unless it is accompanied by a Wis. Admin. Code 8 NR 662.191; 40 C.F.R. (i 262.20(e). Admin. Code 9 NR 662.192; 40 C.F.R. (i 262.34. 833 Wis. Admin. Code (i NR 662.192(2); 40 C.F.R. (i 262.34(e). 834 Wis. Admin. Code (i NR 662.220(6); 40 C.F.R. 9 261.5. 835 Wis. Admin. Code 9 NR 660.10(125); 40 C.F.R. (i 260.10. 836 Wis. Admin. Code (i NR 663.1 1; 40 C.F.R. 9 263.1 1. 837 Wis. Admin. Code 8 NR 663.13. 838 Wis. Admin. Code 9 NR 663.13(1)@). 839 W~S. Admin. Code 9 NR 663.20; 40 C.F.R. 9 263.20. 83'
832 Wis.
Chapter 10 Hazardous Wastes and Hazardous Substances
properly signed manifest.840Before transporting the hazardous waste, the transporter must also sign and date the manifest acknowledging acceptance of the waste."'
The transporter must
ensure that the manifest accompanies the waste until it is delivered either to another transporter or the designated
AS discussed above, the manifest requirement does not apply to a
shipment fi-om a SQG transported pursuant to a reclamation agreement.843The transporter must also keep a copy of the manifest signed by the generator, transporter and next transporter or disposal facility for a period of three years.844In the event of a discharge of hazardous waste during transport, the transporter must take appropriate immediate action (i.e., notify local authorities and dike the discharge area) to protect human health and the environment.845
D. Hazardous Waste Treatment, Storage and Disposal Facility Standards Owners and operators of facilities which treat, store, or dispose of hazardous wastes are subject to strict regulations governing the standards and operations of those facilities.'"
The
terms facility, treatment, storage and disposal are all defined terms, and any facility meeting the definition is subject to this intense regulation. First, a facility is all contiguous land, structures and other appurtenances and improvements on the land used for treating, storing or disposing of hazardous waste.847 The treatment of hazardous waste means any method, technique or process, including neutralization which follows generation and which is designed to change the physical, chemical or biological character or composition of any hazardous waste so as to neutralize the hazardous waste or so as
840
Id.
841 Id. 842
Id.
"'Wis. Admin. Code jj NR 663.20(8); 40 C.F.R. jj 263.20(h). Wis. Admin. Code jj NR 663.22; 40 C.F.R. jj 263.22. Admin. Code jj NR 663.30; 40 C.F.R. ji 263.30. 846 Wis. Admin. Code ch. NR 664; 40 C.F.R. part 264. 847 Wis. Admin. Code $ NR 660.10(43); 40 C.F.R. $ 260.10.
844
845 Wis.
Chapter 10 Hazardous Wastes and Hazardous Substances to render the waste nonhazardous, safer for transport amendable for recovery, amendable for storage or reduced in volume.848Storage means the holding of hazardous waste for a temporary period and the end of which the hazardous waste is treated, disposed of or stored elsewhere.849 Finally, disposal facility means a facility or part of a facility at which hazardous waste is intentionally placed into or on any land or water and which waste will remain after closure.850 1. Hazardous Waste Facility Licenses A "hazardous waste facility" is a facility used for the treatment, storage and/or disposal of
hazardous waste. All hazardous waste facilities must obtain an operating license before beginning operations.85' Prior to applying for an operating license, the facility must submit a written request to all affected municipalities, apply for local approvals, and hold a public meeting.852Applying for an operating license is a two-step process.853 The first step, called Part A, consists of completing two forms published by the EPA. The second step involves filing a feasibility and plan of operation report. The feasibility and plan of operation report includes both general and specific information.854The general information required in the report includes, among other things, a general description of the facility, chemical and physical analyses of the hazardous waste to be handled at the facility, a copy of the facility's waste analysis plan, and a description of all security measures.855The specific information required in the report varies with
Wis. Stat. Ej 291.01(21); 40 C.F.R. Ej 260.10. Wis. Admin. Code 9 NR 660.10(112); 40 C.F.R. 9 260.10. "O Wis. Admin. Code 9 NR 660.10(27); 40 C.F.R. 9 260.10. 85' Wis. Admin. Code 5 NR 670.001; 40 C.F.R. 9 270.1. 852 Wis. Admin. Code 9 NR 670.007. 853 Wis. Admin. Code 9 NR 670.001(2); 40 C.F.R. Ej 270.l(b). 854 Wis. Adrnin. Code 9 NR 670.014(1); 40 C.F.R. 9 270.14(a). 855 Wis. Admin. Code 9 NR 670.014(2); 40 C.F.R. Ej 270.14(b). 848
849
Chapter 10 Hazardous Wastes and Hazardous Substances the type of
The DNR must give public notice of its intent to issue an operating
license.857
2. Exempt Facilities All facilities must comply with the hazardous waste facility standards unless they are specifically exempted.858Exempt facilities include: 1. Facilities with permits under certain similar environmental laws; 2. Facilities that manage very small
of waste;
3. Facilities that manage certain recyclable materials;
4. Generators accumulating waste on-site in accordance with the timing limitations of the regulations; 5. Farmers disposing of pesticide wastes on their own property;
6. Totally enclosed treatment facilities; 7. Elementary neutralizations units;
8. Wastewater treatment units; 9. Emergency response actions to contain or treat a spill of hazardous waste; 10. Transfer facilities storing waste for less than 10 days; 11. Facilities adding absorbent to waste; and 12. Handlers and transporters of universal wastes.859 3. General Facility Standards
All non-exempt facilities must meet general facility standards.860First, every facility must have an EPA identification number.861Second, facilities must comply with notice requirements
Wis. Admin. Code $9 NR 670.015-670.027; 40 C.F.R. $9 270.15-270.27. Wis. Admin. Code 9 NR 670.415(2). 858 Wis. Admin. Code 5 NR 664.0001(2); 40 C.F.R. 5 264.1. 859 Wis. Admin. Code (i NR 664.0001(7); 40 C.F.R. (i 264.1(g). 860 Wis. Admin. Code 3 NR 664.0010; 40 C.F.R. 9 264.10. 861 Wis. Admin. Code 8 NR 664.00 1 1;40 C.F.R. (i 264.1 1.
s56 857
Chapter 10 Hazardous Wastes and Hazardous Substances
when receiving hazardous waste.862Third, prior to treating, storing, or disposing of hazardous waste, a facility needs to obtain a detailed chemical and physical analysis of a representative sample of the wastes.863This analysis should be repeated as frequently as necessary to ensure it is accurate and up to date.864To facilitate this analysis, every facility must develop a written waste analysis plan that details procedures for verifying the composition of incoming waste.865 The waste analysis plan must be kept on-site and describe the parameters to be analyzed, the testing and sampling methods to be used, the frequency of waste analysis, and the waste analyses that hazardous waste generators have agreed to supply for off-site facilities. For facilities exempted as surface impoundments or under air emission standards, there are several other items that must be included in the waste analysis plan.866 In addition, facilities must comply with security requirements to minimize accidental and unauthorized entry of people or livestock.867Security measures include the use of a 24-hour surveillance system or artificial or natural barriers and the posting of signs.868 Special precautions are required near ignitable, reactive, or incompatible wastes.869 Facilities further are required to follow a written inspection schedule identifjing the procedure for visually inspecting the facility for malfunction, deterioration, operator errors, and discharges.870The schedule also must identify the problems for which the inspector should look and establish the frequency of such inspections.871
Wis. Admin. Code Q: NR 664.0012; 40 C.F.R. Q: 264.12. Wis. Admin. Code (j NR 664.0013(1)(a); 40 C.F.R. 9 264.13(a)(l). 864 Wis. Admin. Code (j NR 664.0013(1)(~); 40 C.F.R. Q: 264.13(a)(3). 865 Wis. Admin. Code Q: NR 664.0013(2); 40 C.F.R. (j264.13(b). 866 Id. 867 Wis. Admin. Code Q: NR 664.0014(1); 40 C.F.R. (j 264.14(a). '"Wis. Admin. Code (j NR 664.0014; 40 C.F.R. Q: 264.14. '"Wis. Admin. Code (j NR 664.0017; 40 C.F.R. Q: 264.17. 870 Wis. Admin. Code Q: NR 664.0015; 40 C.F.R. (j 264.15. 871 Id. 862 863
Chapter 10 Hazardous Wastes and Hazardous Substances
Facility personnel must undergo extensive training focusing on effective responses to emergencies.872Finally, the regulations include several provisions that affect the location and construction of hazardous waste facilities so that they are protective of human health and the environment.873 4. Preparedness and Prevention
Facilities must be operated in a manner that minimizes the possibility of fire, explosion, or unplanned release of hazardous waste.874Facilities are required to maintain an internal alarm system, phones or radios to contact emergency personnel, fire-fighting equipment, adequate water supply, and minimum aisle space.875 The required equipment must be tested and maintained to ensure proper operation.876Personnel must have access to the alarm system when hazardous waste is being handled.877 5. Contingency Plan and Emergency Procedures
Facilities are required to create a contingency plan to minimize dangers from fires, explosions, or the release of hazardous waste.878The provisions of the contingency plan must be followed whenever such an event occurs.879The contingency plan must describe the actions of facility personnel, arrangements with local emergency response teams, up-to-date contact information for the facility's emergency response coordinator, an up-to-date list of emergency
s72 Wis. Admin. Code
(j NR 664.0016; 40 C.F.R. (j 264.16. Wis. Admin. Code $9 NR 664.0018,664.0019 and 664.0025; 40 C.F.R. $9 264.18 and 264.19. 874 Wis. Admin. Code (j NR 664.0031; 40 C.F.R. (j 264.31. 875 Wis. Admin. Code $9 NR 664.0032 and 664.0035; 40 C.F.R. $9 264.32 and 264.35. 876 Wis. Admin. Code (j NR 664.0033; 40 C.F.R. (j 264.33. 877 Wis. Admin. Code (j NR 664.0034; 40 C.F.R. (j 264.34. 878 Wis. Admin. Code 9 NR 664.0051(1); 40 C.F.R. (j 264.51(a). 879 Wis. Admin. Code (j NR 664.0051(2); 40 C.F.R. 5 264.51(b). 873
Chapter 10 Hazardous Wastes and Hazardous Substances
equipment at the facility, and an evacuation plan.880Copies of the contingency plan must be kept at the facility and submitted to local emergency response
team^.^"
The contingency plan must be reviewed and amended under the following circumstances: the facility's license is revised; the plan fails in an emergency; the operation or design of the facility increases the potential for fires, explosions, or releases of hazardous waste; and any time the list of emergency coordinators or equipment changes.882 At least one employee either on the facility premises or on call must be designated as the emergency ~oordinator.''~The emergency coordinator is responsible for coordination of all emergency response measures and must have authority to commit the resources necessary to carry out the contingency plan.884 The duties of the emergency coordinator vary depending on the type of emergency. If there is an imminent or actual emergency situation, the emergency coordinator must activate the internal alarms and notify the appropriate local authorities.885In the event of a fire, explosion, or release of hazardous material, the emergency coordinator must identify the character, exact source, amount, and extent of released
material^.'^^
At the same time, the emergency coordinator is
responsible for assessing dangers to human health or the en~ironment.'~~ If the emergency coordinator determines that the fire, explosion, or release threatens human health or the environment and that evacuation of local areas is advisable, he or she must notify appropriate
Wis. Admin. Code (j NR 664.0052; 40 C.F.R. (j 264.52.
"' Wis. Admin. Code (j NR 664.0053; 40 C.F.R. (j 264.53. Wis. Admin. Code (j NR 664.0054; 40 C.F.R. (j 264.54. Wis. Admin. Code (j NR 664.0055; 40 C.F.R. 9 264.55. Id. 885 Wis. Admin. Code (j NR 664.0056; 40 C.F.R. (j 264.56. 886 Id. 887 Id.
882
883
Chapter 10 Hazardous Wastes and Hazardous Substances
authorities.888 During an emergency, the emergency coordinator must take all reasonable measures to ensure fires, explosions, and releases do not occur or spread to other hazardous waste at the facility.889If the facility stops operations as a result of a fire, explosion, or release, the emergency coordinator must monitor for leaks, pressure buildup, gas generation, or ruptures in valves, pipes, and other equipment.890Following an emergency, the emergency coordinator must provide for treatment, storage, or disposal of material resulting from the emergency.891 Prior to resuming operations after an emergency, the emergency coordinator must ensure that all emergency equipment is cleaned and fit for its intended use.892In addition, the owner or operator of the facility must notify the DNR and appropriate state and local authorities that the facility is in compliance with this statute.893The owner or operator also must document in the operator record any incident that requires implementing the contingency plan and submit a written report describing the incident to the D N R . ' ~ ~
6. Hazardous Waste Facility Closure Every facility must submit a written closure plan along with its application for an operating license.895If approved, the plan becomes a condition of the facility's operating license.896The plan establishes the steps the facility must take to perform partial or final closure.897Among other things, the plan must describe how the facility will be closed, estimate the maximum inventory of hazardous wastes present at the facility at any point during the active life of the
s8s Id. ss9 Id. s90 Id.
s91 Id. 892 Id. 893 Id.
894 Id. 895
Wis. Admin. Code 5 NR 664.01 12(1); 40 C.F.R. 5 264.1 12(a).
896 -Td. -..
s97
Wis. Admin. Code 5 NR 664.0012(2); 40 C.F.R. Ej 264.1 12(b).
Chapter 10 Hazardous Wastes and Hazardous Substances facility, establish the steps necessary to remove or decontaminate all equipment, and provide a schedule for closure estimating the total time required to close the facility.898 All facilities must be closed in a manner that minimizes the need for further maintenance.899 In addition, closure procedures must control, minimize, or eliminate the escape of hazardous waste after closure to the extent necessary to protect human health and the environment.900 The owner or operator must notify the DNR in writing of the intent to close the facility at least 180 days prior to partial or final closure.90' The facility must be closed according to the approved closure plan within 90 days of receiving the final volume of hazardous wastes, unless the DNR approves a longer period.902Closure must be completed within 180 days after receiving the final volume of hazardous wastes, unless the facility receives an extension.903Following closure, the owner or operator must submit to the DNR a certification signed by the owner or operator and an independent registered professional engineer indicating that closure was completed in accordance with the approved closure plan.904 7. Long-Term Care
All hazardous waste facilities are subject to the requirements for long-term care.905Longterm care begins after closure and continues for a minimum of 40 years or as long as necessary to protect human health and the environment, whichever is longer.906 Long-term care involves monitoring and maintenance of the facility.907
898 Id.
Admin. Code $ NR 664.011 l(1); 40 C.F.R. $264.11 l(a). Code $ NR 664.01 1 l(2); 40 C.F.R. $ 264.1 1 I@). 90' Wis. Admin. Code $ NR 664.01 l2(4). "* Wis. Admin. Code $ NR 664.01 13(1). 903 Wis. Admin. Code $ NR 664.01 13(2). '04 Wis. Admin. Code Ij NR 664.0115. '05 Wis. Admin. Code $ NR 664.01 lO(2); 40 C.F.R. $ 264.1 10(b). "Wis. Admin. Code $ NR 664.01 17(1); 40 C.F.R $ 264.117(a)(l) (federal law requires a minimum of 30 years). 907 Id. 899 Wis.
900 Wis. Admin.
Chapter 10 Hazardous Wastes and Hazardous Substances
Each facility must submit a written long-term care plan to the DNR as part of its operating license application.908Like the closure plan, the long-term care plan becomes a condition of the operating license.909 The plan must include a description of monitoring and maintenance activities and the frequency of such activities, among other things.910 Upon completion of long-term care, the owner or operator must submit to the DNR a certification that the long-term care period was completed according to the approved Both the owner or operator and an independent registered professional engineer must sign the ~ertification.~'~
8. Closure and Long-Term Care Financial Responsibility The owner or operator of a facility must create a written estimate of closure
The
estimate must be adjusted annually to account for inflation.914The owners or operators must demonstrate their financial ability to pay for closure.915Financial assurance can be established in several ways including the use of an irrevocable trust fund, a surety payment or performance bond, a deposit with the DNR, an escrow account, a letter of credit, insurance, or a net worth test.916 Additionally, owners or operators of certain types of disposal facilities must create a written estimate of the annual cost of long-term care, which must be adjusted annually for inflation.917
'"is.
Admin. Code (j NR 664.01 18(1); 40 C.F.R. (j 264.1l8(a).
909 Id. 9'0
Wis. Admin. Code ยง NR 664.0018(2);40 C.F.R. (j 264.118(b).
"' wis. Admin. Code (j NR 664.0120;40 C.F.R. (j 264.120. Id. "'Wis. Admin. Code 8 NR 664.0142(1);40 C.F.R. 9 264.142(a). 9L2
Wis. Admin. Code (j NR 664.0142(2);40 C.F.R. $264.142(b). Wis. Admin. Code (j NR 664.0143;40 C.F.R. (j 264.143. 9'6 Wis. Admin. Code (j NR 664.0146. Wis. Admin. Code (j NR 664.0144.
9'4
9L5
"'
Chapter 10 Hazardous Wastes and Hazardous Substances Owners or operators must establish their financial ability to pay for long-term care using the same methods described above for closure
cost^.^'^
Furthermore, owners or operators must carry liability coverage. Owners or operators of all facilities must carry liability coverage for sudden accidental occurrences.919At a minimum, the liability coverage must be $1 million per occurrence with an annual aggregate of at least
$2 million, exclusive of legal defense
Owners or operators of waste surface
impoundments and landfills must carry additional coverage for non-sudden accidental
occurrence^.^^' The minimum coverage is $3 million per occurrence with an annual aggregate of at least $6 million, exclusive of legal defense
Satisfaction of these requirements can be
demonstrated in a variety of ways including passing a financial test of self insurance or obtaining insurance on the commercial market.923 E. Land Disposal Restrictions
The Land Disposal Restrictions (LDRs) in both the Wisconsin and federal regulations require waste handlers to treat hazardous waste or to meet specified levels for hazardous contaminants prior to disposing of hazardous waste on land (i.e., within landfills).924The LDR program, like many other provisions of the hazardous waste code, is designed to protect groundwater.925
Wis. Admin. Code $9 NR 664.0145 and 664.0146; 40 C.F.R. $264.146. Admin. Code 4 NR 664.0147(1); 40 C.F.R. 5 264.147(a). 920 Id. 921 Wis. Admin. Code $ NR 664.0147(2); 40 C.F.R. $ 264.147(b). 9'8
919 wis.
922 r 2
1u.
Wis. Admin. Code $ NR 664.0147; 40 C.F.R. 8 264.147. Admin. Code ch. NR 668; 40 C.F.R. part 268. 925 EPA, Introduction to Land Disposal Restrictions (EPA 530-K-05-013, Sept. 2005). Hazardous wastes can contaminate groundwater through leaching, a process whereby precipitation percolating through the ground draws contaminates out of wastes that have been disposed in the ground and cames those contaminants to the groundwater.
923
924 Wis.
Chapter 10 Hazardous Wastes and Hazardous Substances
The LDRs prohibit the land disposal of certain categories of hazardous wastes unless those wastes are treated in accordance with LDR requirements prior to disposal.926The treatment standards are specified for both wastewaters and nonwastewaters as the regulations further categorize hazardous wastes in this manner.927 The treatment standards are categorized primarily by waste description.928Specific treatment standards are then provided for each waste. These treatment standards may be expressed as a maximum concentration of a constituent allowed prior to land disposal, or a specific treatment technology may be required for the waste.929For example, nonwastewaters that exhibit the toxicity characteristic for lead must be treated to a maximum concentration of 0.75 mgll TCLP lead prior to land disposal.930Any treatment method that reduces the concentrations to this level can be used. However, lead acid batteries are required to be treated by thermal recovery prior to land disposal.931No specific lead concentration is provided for lead acid batteries. Rather, a specific treatment technology, thermal treatment, is required. The LDRs provide for a variance procedure to the treatment standard requirements.932The EPA has the discretion to grant a variance if it is not physically possible to treat the waste to the specified level or by the specified treatment standard or if it is inappropriate to require the waste to be treated to the specified level or through the specified treatment standard even though treatment is technically possible.933 In the latter case, the petitioner must demonstrate that treatment is technically inappropriate (for example, resulting in combustion of large amounts of
"'Wis. Admin. Code ch. 668, subch. C; 40 C.F.R. part 268, subpart C. 927 Wis. Admin. Code ch. 668, subch. D; 40 C.F.R. part 268, subpart D. 928
Wis. Admin. Code 5 NR 668.40; 40 C.F.R. 9 268.40.
929 Id. 930 Id. 931 Id. 932
Wis. Admin. Code 5 NR 668.44; 40 C.F.R. 5 268.44.
933 Id.
Chapter 10 Hazardous Wastes and Hazardous Substances mildly contaminated environmental media) or for remediation waste only, treatment is inappropriate because it would discourage aggressive r e m e d i a t i ~ n . ~ ~ ~ It is the generator's responsibility to determine if its hazardous wastes meet the treatment standards or if the hazardous waste must be treated prior to land disposal.935This determination must be made through testing with an approved method or using "knowledge of the waste."936
I?. Enforcement The DNR and EPA have a variety of enforcement mechanisms they can employ for violations of hazardous waste regulations. These include making inspections, issuing orders, revoking licenses, and referring cases for prosecution and the imposition of civil and criminal penalties. Generally, in Wisconsin, the DNR will take the lead on enforcement of hazardous waste violations. However, in certain instances, the EPA steps in and leads the enforcement process.
I. Inspections The DNR may inspect any hazardous waste facility to determine compliance with the hazardous waste regulations and the terms of any license issued to the facility.937The DNR need not give prior notice of an inspection, although the inspection must be made at a reasonable time.938Upon the arrival of a DNR inspector, the facility must admit the DNR representative and provide him or her with access to the premises, vehicles and records relating to hazardous wastes.939The inspector may take samples of any hazardous waste, but must give the facility a
934 Id. 935
Wis. Admin. Code 5 NR 668.07; 40 C.F.R. 5 268.7.
936 Id.
Wis. Stat. 5 291.91(1). Wis. Stat. 5 291.91(2). 939 Id.
937 938
Chapter 10 Hazardous Wastes and Hazardous Substances
receipt for the samples and a "split" (i.e., half) of the sample at the facility's request.940The EPA has similar inspection authority to that of DNR."'
2. License Revocations The DNR can deny, suspend or revoke a facility's operating license if the licensee does any of the following: Fails to pay a required fee; Fails to comply with the hazardous waste statutes or rules; Fails to comply with an approved plan of operation; Fails to fully disclose all relevant facts in a feasibility report, plan of operation or license application or in a review of a feasibility report, plan of operation or license; Misrepresents any relevant fact at any time; or Operates the facility in a way that endangers human health or the environment to the extent that denial, suspension or revocation of the license is the only way to provide an acceptable level of protection.942 Upon a finding of any of these conditions, the DNR must give notice to the licensee of the violation and its intent to deny, suspend, or revoke the license.943The licensee can request that a hearing be held on the DNR's notice, and the hearing must be held within 45 days.944This hearing is an informational hearing unless the licensee requests that it be held as a contested case hearing.945A public comment period follows the hearing.946The DNR then makes its decision on
940 Id.
42 U.S.C. 6 6927. "* Wis. Stat. 6 291.87(1m). 94'
943
Wis. Stat. (j 291.87(2).
944 Id.
945 Wis. 946 Wis.
Stat. 291.87(3). Stat. (j 291.87(4).
Chapter 10 Hazardous Wastes and Hazardous Substances the denial, suspension or revocation, and there is no statutory right to a hearing concerning the DNR's final decision.947 3. Enforcement
If the DNR determines that a person is in violation of the hazardous waste statutes or regulations, it can commence a formal enforcement process against the ~iolator."~The DNR may give written notice to the violator of the violations, issue an order, or refer the matter to the Department of Justice for prosecution.949
4. Civil and Criminal Penalties Any person who violates the hazardous waste statutes and regulations, any special order, a plan approval, or term or condition of a license shall be subject to civil forfeitures of not less than $100 nor more than $25,000 for each violation.950These amounts can compound quickly as each day of violation is considered a separate violation.951 Further, any person who willfully does any of the following shall be fined not less than $100 nor more than $25,000 or imprisoned for not more than one year in the county jail or both: 1. In connection with an application, label, manifest, record, report, license or other document relating to hazardous waste regulation, makes an untrue statement of a material fact or fails to state a material fact with the result that the statements made in the document are misleading; or 2. Destroys, alters, conceals or fails to submit a record required to be maintained or submitted under the hazardous waste statutes or rules, special order, plan approval or term or condition of a license or variance.952
Wis. Stat. 9 291.87(7). Wis. Stat. (j 291.95. 949 Id. 950 Wis. Stat. 8 291.97(1) (Civil and criminal penalties can also be assessed by the federal government for violations of hazardous waste statutes and regulations in a manner similar to that available under Wisconsin law. 42 U.S.C. 9 6928). 951 Id. Wis. Stat. ji 291.97(2)(a). 947
948
"'
Chapter 10 Hazardous Wastes and Hazardous Substances
Certain other violations of the hazardous waste statutes and regulations are considered Class H felonies also subject to fines up to $ 1 0 0 , 0 0 0 . ~Violations ~~ subject to this higher penalty include transporting hazardous waste to a facility that does not have a license, and storing, treating, transporting or disposing of hazardous waste without a license.954 5. Citizen Suits Both Wisconsin and federal law provide for citizens to bring suit for hazardous waste violations.955In Wisconsin, any group of six or more citizens of a municipality may petition the
DNR to review alleged hazardous waste violations, which is further discussed in Chapter 18. Further, under RCRA, any citizen that meets the standing requirements can commence suit against any person who is in violation of a hazardous waste permit, standard, regulation, condition, requirement, prohibition or order.956Further, a citizen can commence a suit against any generator, transporter, or owner or operator of a treatment, storage and disposal facility who has contributed or is contributing to an action that may present an imminent and substantial endangerment to human health or the environment.957However, a court may grant only injunctive relief in a RCRA citizen
NOmoney damages can be a~arded.9'~ The prevailing
party is entitled to reasonable attorneys' fees.960 IV. HAZARDOUS SUBSTANCE REGULATION In addition to regulating hazardous materials when they become waste products, as just discussed, and regulating site remediation when they are spilled or released into the environment,
"' Wis. Stat. 9 291.97(2)(b). 954 Id.
Wis. Stat. 3 29 1.89; 42 U.S.C. 8 6972. 42 U.S.C. 6972(a). 957 Id. 958 Meghrig v. KFC Western, Inc., 5 16 U.S. 479 (1996). 959 Id. 960 42 U.S.C. 9 6972(e).
955
956
Chapter 10 Hazardous Wastes and Hazardous Substances as discussed in Chapter 11, both the state and federal governments regulate the manufacture, handling, transportation and use of hazardous substances. The primary federal hazardous substance laws are known as the Emergency Planning and Community Right to Know Act (EPcRA),~~'the Toxic Substances Control Act ( T S C A ) , ~the ~~ Federal Insecticide, Fungicide and Rodenticide Act ( F I F R A ) , ~and ~ ~ the Underground Storage Tank requirements of the Solid Waste Disposal Act ( s D w A ) . ~ ~ Each ~ of these is described below, along with their counterpart Wisconsin laws and regulations. A. Hazardous Substance Definitions
1. Federal Definitions Any discussion of hazardous substances necessarily begins with the question, "what is a hazardous substance?" For federal purposes, the answer to that question requires assembly and careful examination of several different lists developed or utilized by EPA and the Occupational Safety and Health Administration (OSHA): a. EPA 's Lists (i) Under CERCLA hazardous substance means:965 (a) any substance so designated under the Clean Water Act; (b) any element, compound, mixture, solution or substance designated under CERCLA; (c) any hazardous waste with characteristics identified or listed under the SWDA, excluding any waste for which Congress has suspended regulation under that Act; (d) any toxic pollutant listed under the Clean Water Act; (e) any hazardous air pollutant listed under the Clean Air Act; and ( f ) any imminently hazardous chemical substance or mixture which the EPA Administrator has designated under TSCA.
"'
42 U.S.C. $9 11001-11050; also referred to as the SARA (Superfimd Amendment and Reauthorization Act) Title III requirements, and the Community Right-to-Know requirements. 962 15 U.S.C. $5 2601-2692. 963 7 U.S.C. $6 136-1364.. 964 42 U.S.C. $6 6991-6991i. "'42 U.S.C. Q 9601(14).
Chapter 10 Hazardous Wastes and Hazardous Substances (ii) Under EPCRA hazardous substance means: (a) the list of hazardous substances set out in 40 C.F.R. 9 302.4; and (b) the list of extremely hazardous substances is set out in 40 C.F.R. 5 355 App. A.
b. OSHA ~ i s t s ~ ~ ~ (i) any chemical listed as a Toxic and Hazardous Substance in OSHA's regulations in 29 C.F.R. part 1910, subpart Z; (ii) any chemical listed by the American Conference of Governmental Industrial Hygienists (ACGIH) (latest edition); (iii) any chemical listed by the National Toxicology Program (NTP) Annual Report on Carcinogens (latest edition); and (iv) any chemical listed by the International Agency for Research on Cancer (IARC), Monographs (latest edition). 2. Wisconsin 's Definitions Unlike many states that have adopted the federal definitions, Wisconsin has not. Wisconsin regulations define hazardous substance as "Hazardous substance" means any substance or combination of substances including any waste of a solid, semisolid, liquid or gaseous form which may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or which may pose a substantial present or potential hazard to human health or the environment because of its quantity, concentration or physical, chemical or infectious characteristics. This term includes, but is not limited to, substances which are toxic, corrosive, flammable, irritants, strong sensitizers or explosives as determined by the department. The federal lists provide a reasonable starting point for identification of a hazardous substance, but this significantly broader Wisconsin definition means that substances not specified as hazardous on any federal list may, nonetheless, be regulated as hazardous substances in Wisconsin based on the site specific circumstances. The telling example often used is that milk in a trout stream can be a hazardous substance. Perhaps the most effective way to understand what may constitute a hazardous substance in Wisconsin is that it is something that is in the wrong place at the wrong time.
"29 C.F.R.
$6 1910.1200(d)(3)and (4).
"'Wis. Stat. $$ 289.Ol(l I), 292.01(5) and 299.01(6).
Chapter 10 Hazardous Wastes and Hazardous Substances Against that background, the remainder of this chapter discusses four federal programs designed to address hazardous substances and their Wisconsin counterpart programs.
B. Emergency Planning and Community Right to Know Act (EPCRA) 1. Federal Program
a. Purpose of EPCRA As part of the 1986 amendments to the Superfund law, Congress enacted requirements designed to provide emergency planning and response agencies, state and local governments, and citizens more information about the hazardous substances that are manufactured, stored, transported and used in their communities. The essential purpose of EPCRA is to require owners and operators of covered facilities to identify and report to their state and local governments the quantity and location of chemicals stored on-site so that the state and local government can respond to an emergency should one occur. This purpose is carried out through the designation of a state emergency response commission and local emergency planning committees;68 and the preparation of emergency response plans which, inter alia, identify the facilities subject to the EPCRA requirements, transportation routes for substances listed as "extremely hazardous," and facilities contributing to or subjected to additional risk due to their proximity to covered facilities.969 b. EPCRA Reporting Requirements
The basic EPCRA framework requires facilities to report the presence of hazardous substances and to report the unexpected release of hazardous substances.
"'42 U.S.C. $ 11001. "'42 U.S.C. 6 11003.
Chapter 10 Hazardous Wastes and Hazardous Substances .
(i) Presence of Hazardous Substances
Reporting the presence of hazardous substances is done in two ways: through the submission of Material Safety Data Sheets (MSDS) which provide information about each chemical and through annual reports which identify the chemicals and amounts on site. Any facility required to have available a Material Safety Data Sheet (MSDS) for a hazardous chemical under the Occupational Safety and Health Act (osHA)~~' and its regulations must provide either a list of those chemicals or a copy of the MSDS to the local emergency planning committee, state emergency response commission and the local fire department.971If a new chemical is brought on-site, or new information becomes available about an existing chemical, the MSDS submittal must be updated within three months.972Certain minimum thresholds are established below which reporting is not required. For most hazardous chemicals the minimum reporting threshold is 10,000 pounds; however, other thresholds are established for extremely hazardous substances, gasoline, and diesel f ~ e l . ~ ~ ~ Annual inventory reports, called Tier I reports, are also required by March 1 of each year. This report identifies all hazardous chemicals present at a facility at any one time during the preceding calendar year in amounts equal to or greater than the established reporting threshold.974Tier I reports aggregate the information on hazardous chemicals present at the facility. Tier I1 reports, due only upon request, provide more detailed information about amounts, location, storage techniques, and related information.975
29 U.S.C. 8 651, et seq. 42 U.S.C. 0 11021. 972 40 C.F.R. QQ 370.20(c) and 370.21(c). 973 40 C.F.R. 0 370.20. 974 40 C.F.R. 9 370.20(d). 975 42 U.S.C. Q 11022; 40 C.F.R. 9 370.25. The forms are available at 40 C.F.R. gg370.40 and 370.41. 970
97'
Chapter 10 Hazardous Wastes and Hazardous Substances
In addition to Tier I annual reports, an~yfacility with 10 or more employees which falls within the Standard Industrial Classification (SIC) Codes 20 through 39 and "manufactured, processed, or otherwise used" a toxic chemical in excess of an applicable threshold quantity,976 must file a toxic chemical release form called Form R. Thresholds for Form R reporting are based on the amount of chemical manufactured, processed or used at the facility during the calendar years; e.g., since 1989, the threshold is 25,000 pounds for chemicals manufactured or processed, and 10,000 pounds for chemicals used at the facility.977Information reported on Form R is maintained by EPA in a Toxic Release Inventory ( T R I ) ~ database ~' available to citizens and local officials. (ii) Unexpected Release of Hazardous Substances When an unexpected release of a hazardous substances occurs to the environment, a report may be required under both EPCRA, to the state and local emergency planning agencies, and under CERCLA, to the National Response Center ( N R C ) . The ~ ~ ~report is required if the release is of a hazardous substance in excess of the reportable quantity (RQ) established by EPA.~" Unlisted hazardous substances may also be subject to EPCRA reporting at an RQ of 100 pounds, with certain e~ceptions.~''Each time an episodic release occurs, the required emergency
976 Yet
another list, this one appears at 40 C.F.R. $ 372.65. C.F.R. $ 372.25. 978 Available at http:l/www.epa.gov/triex~lorer. 979 42 U.S.C. Q 11004; 42 U.S.C. $ 9603. The National Response Center is part of the United States Coast Guard and is staffed 24 hourslday, 7 dayslweek, 365 dayslyear. It is the federal focal point for oil and chemical spill incident reporting. For a user-friendly summary of reporting obligations, see the EPA website frequently asked questions regard NRC reporting at http:llwww.epa.gov/supe~nd/~rog;rams/erltri~~ers/h~.htm. 980 The list of hazardous substances is set out in 40 C.F.R. $302.4; the list of extremely hazardous substances is set out in 40 C.F.R. $ 355 App. A. 98' 40 C.F.R. 5 302.5(b). 977 40
Clzapter 10 Hazardous Wastes and Hazardous Substances notification and follow up reports must be made and must include the identity of the hazardous substance(s) release and the approximately quantity.982 2. Wisconsin Emergency Management In Wisconsin, EPCRA is implemented by the State Emergency Response Board (SERB), part of Wisconsin Division of Emergency Management (wEM).~'~Each of Wisconsin's 72 counties has a Local Emergency Planning Committee (LEPC) and each county has been designated as an emergency planning district to carry out EPCRA's emergency planning requirements. At this writing, WEM reports that more than 7,000 facilities in Wisconsin plan and report their use and storage of hazardous chemicals, 8 Regional or "Level A Hazardous Materials Response Teams are under contract to WEM, and 41 counties have "Level B" teams.984 Wisconsin's
program
largely mirrors the
federal EPCRA requirements.985 The
responsibilities of WEM and DNR are specified and ~oordinated.~'~ In the case of an unexpected release, notification of DNR under Wis. Stat. 5 292.1 1 of a hazardous substance spill constitutes notification of WEM as long as all of the information required by EPCRA is included.987
C. Toxic Substances Control Act (TSCA)
I. Federal Program TSCA is designed to regulate and track chemicals in commerce. Enacted in 1976, TSCA directs EPA to regulate distribution and use of chemicals, new commercial chemicals prior to their entry into the market, and chemicals already in commerce in 1976 when they pose an
982
42 U.S.C. (i 11005; 40 C.F.R. (i 302.6.
"' Wis. Stat. ch. 166; Wis. Admin. Code chs. WEM 3 and 6. "'http://emergencyrnanagement.wi.gov.
See Wis. Stat. $9 166.20-166.22. Wis. Stat. 33 166.20(2) and (4). 987 Wis. Stat. 3 166.20(5)2 ,referencing 42 U.S.C. 11004. See also Chapter 11 for a discussion of the reporting obligations under Wis. Stat. 9 292.1 1 and Wis. Admin. Code ch. NR 706.
985
986
Chapter 10 Hazardous Wastes and Hazardous Substances
unreasonable risk to health or the envir~nment."~Under TSCA, EPA maintains an inventory of chemical substances. A chemical manufacturer must provide EPA with pre-manufacture notice (PMN) prior to the manufacture or import of any chemical not already on the EPA inventory. EPA's authority includes imposing restrictions on significant new uses of chemicals, banning the manufacture or distribution, limiting use, and requiring labeling.989TSCA has been amended since its enactment to include specific regulations relating to lead-based paint, asbestos and polychlorinated biphenyls (PCBs).
2. Wisconsin 's Regulation of PCBs The TSCA connection of particular importance to environmental practitioners in Wisconsin involves the state's additional regulations of PCBs. Wisconsin bans the manufacture or purchase for use within the state of any PCBs or products containing PCBs, with certain limited exceptions for enclosed electric transformers, or capacitors, electrical components containing less than 2 pounds of PCBs and wastepaper, pulp or other paper products or materials.990DNR is authorized to exempt other uses of PCBs from the prohibition on manufacture or purchase for use, if adequate alternatives are not a ~ a i l a b l e . ~ ~ ' DNR7s rules establish handling and storage requirements for generators of PCBs which require disposal in a manner that will prevent losses to the environment. Disposal of more than 500 pounds annually may necessitate a written handling and storage plan. Leak inspection, spill containment, container specifications, and cleanup requirements are all addressed.992PCB transporters must be licensed pursuant to Wis. Admin. Code ch. NR 663 as a hazardous waste
TSCA regulations appear at 40 C.F.R. $9 700-799. 15 U.S.C. (j 2605. 990 Wis. Stat. $8 299.45(2) and (3). 991 Wis. Stat. $9 299.45(5)-(6). Wis. Admin. Code (j NR 157.03. 988
989
Chapter 10 Hazardous Wastes and Hazardous Substances
Incineration and landfill facilities for PCBs are prohibited in Wisconsin without specific authorization by D N R . ~ ~ ~
D. Federal Insecticide, Fungicide and Rodenticide Act (FIFRA)
1. Federal Program Another law in EPA's arsenal to address chemicals in the environment, FIFRA focuses on pesticides. From its origin as the Insecticide Act of 1910, enacted to protect farmers from adulterated or mislabeled pesticide products, through creation as FIFRA in 1947, which required the registration of all pesticides by the Department of Agriculture prior to introduction into interstate commerce, since 1970 this law has been implemented by EPA and focuses n minimizing toxicity and environmental degradation from pesticides.995Under FIFRA and its r e g u ~ a t i o n sa ~pesticide ~~ must be registered by EPA before it can be sold, distributed or used as a pesticide; labeled according to EPA requirements; and limited in its use based on EPA's classification of the pesticide as either "general use" or "restricted use" or both. In 1996, FIFRA was amended by both the Food Quality Protection Act of 1996 (FPQA) and the Federal Food, Drug and Cosmetic Act of 1996 (FFDCA) to coordinate the regulation of pesticides with food tolerances in human food and animal feed. 2. Wisconsin'sRegulation of Pesticides In Wisconsin, pesticides are regulated by the Department of Agriculture, Trade and Consumer Protection (DATCP) under state law and regulations.997DATCP regulates the efficacy of the pesticide and the representations made about it; and licenses manufacturers, labelers, Wis. Admin. Code 9 NR 157.04. Wis. Admin. Code 9 NR 157.07. 995 hffD://~.~a.~~~/c~mvliance/ci~i~fi~fifiaenfs~treq.html. 996 7 U.S.C. $9 136-136y; 40 C.F.R. ยง$ 150-189. 997 Wis. Stat. $9 94.67-94.71; Wis. Admin. Code chs. ATCP 29 and 30. DNR also addresses the use of pesticides on land and water and in aquatic nuisance control compounds in Wis. Admin. Code chs. NR 80 and 107. 993 994
Chapter 10 Hazardous Wastes and Hazardous Substances
dealers and distributors of restricted-use pesticides, and commercial applicators.998The following pesticides are currently prohibited from sale, distribution, purchase or use in Wisconsin: DDT, TDE, endrin, cadmium, thalium sulfate, aldrin, chlordane, dieldrin, heptachlor, 2,4,5-T, 2-propionic acid, dinoseb, kelthane, and ethyl parathion.999Use restrictions in the form of limited application rates, limitations on application sites, limitations on timing of application or other restrictions are currently in effect for aldicarb, atrazine, and metam sodium.1000 DATCP also implements an agricultural work protection program to provide these workers with information about the pesticides being used and protection against health impacts.'00' Wisconsin has specifically addressed the question of local regulation of pesticides. In 1991, the United States Supreme Court held that FIFRA did not preempt local regulation of pesticides, overturning the decision of the Wisconsin Supreme Court in a case that involved the Town of Casey's attempt to enact an ordinance regulating pesticide application.1002The Wisconsin Legislature responded with enactment of Wis. Stat.
8 94.701
which limits local regulation to
ordinances that are consistent with state or federal law. However, a local ordinance may regulate the phosphorous content of a weed and feed product that is both a pesticide and fertilizer on the basis that while the regulation of pesticides is reserved to the state, fertilizers are subject to local regulation.loo3
Wis. Admin. Code $4 ATCP 29.05-29.33. Admin. Code $ ATCP 30.05. loo' Wis. Admin. Code ch. ATCP 30. loo' Wis. Admin. Code $$ ATCP 29.60-29.66. 1002 WisconsinPublic Intervenor v. Mortier, 501 U.S. 597 (1991), reversing Mortier v. Town of Casey, 154 Wis. 2d 18,452 N.W.2d 555 (1990). loo3 Croplife America, Inc. v. City ofMadison, 432 F.3d 732 (7th Cir. 2005).
998
999 Wis.
Chapter 10 Hazardous Wastes and Hazardous Substances
E. Underground Storage Tank (UST) Program
1. Federal Program A component of the Solid Waste Disposal Act, the federal UST program was enacted in 1984 to address the risk of leaks from underground storage tanks containing either petroleum or hazardous substances.'004A UST is defined as one or a combination of tanks the volume of which is 10% or more beneath the surface of the ground. The definition excludes farm or residential tanks of 1100 gallons or less used for motor fuel for non-commercial purposes, heating oil tanks, septic tanks, pipeline facilities, surface impoundments, storm water and waste water collection systems, flow through process tanks, certain traps used in oil and gas production, and tanks in a basement or similar area if the tank sits on or above the surface of the floor.'Oo5 EPA has further excluded certain de minimis categories including tanks of 110 gallon capacity or less and those containing a de minimis concentration of regulated substances.'006 This legislation generated lots of activity in the late 1980s and 1990s as tanks were identified and registered. As the quality of the tanks and the scope of the regulations became more widelyknown, many tanks were emptied, and either removed or filled with inert solid material and closed in place. The Energy Policy Act of 20051ยฐ07amended the original legislation to fiuther reduce UST releases to the environment. These amendments address inspection requirements, operator training, delivery prohibitions, secondary containment and financial responsibility, and cleanup of releases containing oxygenated fuel additives. Overall, EPA's UST requirements address spill
'Oo4 'Oo5 'Oo6
'Oo7
42 U.S.C. 9 6991, et seq. 42 U.S.C. 8 6991(1). 40 C.F.R. 6 280.10(b). Pub. L. NO. 109-58, 119 Stat. 594 (2005).
226
Chapter 1 0 Hazardous Wastes and Hazardous Substances protection, overall protection, corrosion protection, release detection, maintenance and record keeping requirements.
2. Wisconsin's UST Program In Wisconsin, the UST program is implemented by the Department of C o r n r n e r ~ e . ' ~ ~ ~ Commerce regulates storage of flammable, combustible and hazardous liquids under Wis. Admin. Code ch. Comm 10'Oo9and storage of anhydrous ammonia under Wis. Admin. Code ch. Comm 43.I0l0 Flammable liquids are defined as those that have a flash point below 100" F, combustible liquids as those that have a flash point at or above 100" F and below 200" F, and hazardous substances are those defined as such under CERCLA.""
Registration with Commerce is
required for all underground petroleum product storage tanks of 60 gallons capacity or Commerce shares administrative responsibility for the UST program with local units of government (local authorized agent). Plan review and written approval from either the local authorized agent or Commerce is required to construct a new UST or make other installation or operational modifications to an existing U S T . ' ~ 'Acceptable ~ tank materials are ~ ~ e c i f i e d . ' ~ ' ~
loo' Wis. Stat. $8 101.O9, 101.10 and 101.142; Wis. Admin. Code chs. Cornm 10 and 43 and 8 47.1 1. The Energy Policy Act requires that all states receiving federal funding under Subtitle I of the SWDA must implement the secondary containment and financial responsibility requirements by February 2007. At this writing, it is not clear what revisions this may require to the regulations of the Department of Commerce. Ioo9 Wis. Stat. (i 101.09. lo'' Wis. Stat. (i 101.10. lo" Wis. Stat. Q: 101.09(1). ''I2 Wis. Admin. Code $9 Cornm 10.13 and 47.1 1. Registration of all above-ground petroleum storage tanks is also required with the following exceptions: pipeline facilities, tank systems of 110 gallons or less capacity, and residential tank systems of 1,100 gallons or less capacity. ''I3 Wis. Admin. Code Q: Comrn 10.10. ''I4 Wis. Admin. Code Q: Cornm 10.125.
Chapter 10 Hazardous Wastes and Hazardous Substances
A tank permit must be obtained prior to operation of a UST and will not be issued until the plan approval is granted, registration is completed, and the tank has been Many agricultural operations in Wisconsin use and store anhydrous ammonia on site. Wis. Admin. Code ch. Comm 43 applies to the design, construction, repair, alteration, location, installation, inspection and operation of anhydrous ammonia systems with the exception of ammonia manufacturing plants, rehgeration plants where ammonia is used solely as a refrigerant, ammonia transportation pipelines, and ammonia barges and tankers.I0l6 The regulation is not retroactive, unless specifically ~tated,"'~and reflects an effort to balance the reasonable regulation of a common and important agricultural substance with the risk that it may be abused for terrorist purposes. Construction of any new or additional permanent storage installation of anhydrous ammonia must be approved by ~ o m m e r c e . ' ~Periodic '~ inspections are required; a permit to operate is issued by Commerce after each inspection and remains in effect until the next Commerce has adopted by reference many of the American National Standard Safety Requirements for the Storage and Handling of Anhydrous Ammonia ANSI K61 .l-1999 and requires that all such installations in Wisconsin be designed, installed, maintained and operated consistent with those requirements, subject to certain changes, additions, and omissions specified in Wis. Admin. Code 3 8 Comm 43.40-43.46.'OZ0 The state and local regulatory balance is also reflected in the fact the local role in regulating anhydrous ammonia facilities is specifically preserved in several places in Commerce's ''I5 ''I6 ''I7
"18 ''I9 Io2'
Wis. Admin. Code Cj Comm 10.16. Wis. Admin. Code 9 Comm 43.02. Wis. Admin. Code Cj Comm 43.02(1). Wis. Admin. Code Cj Comm 43.10. Wis. Admin. Code Cj Comm 43.15. Wis. Admin. Code $8 Comm 43.30-43.3 1.
Chapter 1 0 Hazardous Wastes and Hazardous Substances
regulations. Local regulations that do not conflict with the requirements of Wis. Admin. Code ch. Comm 43 or other Commerce regulations are not limited, approval from the local fire department of permanent storage facilities is required, and local authorities may conduct additional inspections.lo*
Wis. Admin. Code #(iComrn 43.03,43.10(3) and 43.14 NOTE.
CHAPTER 11 CONTAMINATION CLEANUP: REGULATING REMOVAL AND REMEDIATION OF HAZARDOUS SUBSTANCES IN SOIL AND GROUNDWATER Angela Black1o22 I. INTRODUCTION As with most areas of environmental law, the cleanup of contaminated sites is governed at both the state and federal level. Wisconsin regulates contaminated sites primarily through a statute referred to as the "Spill Law7,1023 and a series of related administrative rules referred to as the "NR 700 series.3,1024 At the federal level, a law commonly referred to as "CERCLA 9,1025 governs cleanup of contaminated sites. There are many other state and federal laws and regulations that govern or relate to the cleanup of contaminated sites but the majority of cleanups in Wisconsin occur pursuant to the Spill Law and/or CERCLA."~~ Thus, this chapter will focus on those two statutes in generally outlining the process involved in the cleanup of contaminated sites. There is a popular misconception that CERCLA governs cleanup of most contaminated sites under the oversight of the United States Environmental Protection Agency (EPA). In addition to EPA's administrative authority, CERCLA provides that state and tribal governments may, under certain circumstances, administer CERCLA within their own borders.1027 In Wisconsin and many other states, cleanups actually often occur pursuant to state programs,'028with oversight by state
The author would like to thank the following individuals for their invaluable assistance in drafting this chapter: Anna C. Stern, Brian H. Potts, Mark F. Trocinski and Louise A. Jellings. Wis. Stat. 5 292.1 1. Wis. Admin. Code chs. NR 700-749. "The Comprehensive Environmental Response, Compensation, and Liability Act of 1980," Pub. L. No. 96-510, 94 Stat. 2767 (1980), codzjiedat 42 U.S.C. 599601-9675 (1981). The DNR responds to over 800 releases a year under these statutes. See DNR website at ht@://dnr.wi.~ov. 40 C.F.R. 6 300.505; 40 C.F.R. 5 300.510;40 C.F.R. 9 300.515; 40 C.F.R. 9 300.520; 40 C.F.R. $300.525. lo2* 42 U.S.C. 5 9614(a) specifically states that federal regulation of hazardous waste remediation does not completely pre-empt similar state regulations.
Chapter I 1 contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
agencies responsible for environmental protection. The Spill Law designates the Wisconsin Department of Natural Resources (DNR) as the primary agency responsible for overseeing a majority of Wisconsin cleanups.'029 This chapter will first provide a general overview of the state and federal remediation programs-namely,
the Spill Law and CERCLA. Next it will discuss applicable provisions of
state and federal law, how those laws interact and some of the significant differences between them. 11. APPLICABLE STATUTES AND ADMINISTRATIVE CODES Federal Laws 42 U.S.C. 5 9601, et seq.: Comprehensive Environmental Response, Compensation, and Liability Act 7 U.S.C. 5 136, et seq.: Federal Insecticide, Fungicide, and Rodenticide Act 15 U.S.C. 5 2601, et seq.: Toxic Substances Control Act 33 U.S.C. 5 1251, et seq. : Federal Water Pollution Control Act 33 U.S.C. 55 2702-2761: Oil Pollution Act 42 U.S.C. 5 6901, et seq.: Resource Conservation and Recovery Act 42 U.S.C. fj 6901, et seq.: Solid Waste Disposal Act 42 U.S.C. 5 11001, et seq.: Emergency Planning and Community Right to Know Act State Laws Wis. Stat. ch. 94: Plant Industry; includes Wis. Stat. 94.73 (Agricultural chemical cleanup program) Wis. Stat. ch. 292: Remedial Action; includes Wis. Stat. 5 292.1 1 (Hazardous substance spills) and ยง 292.65 (Dry cleaner environmental response program) Wis. Stat. ch. 101: Department of Commerce-Regulation of Industry, Buildings and Safety; includes Wis. Stat. 5 101.143: Petroleum Environmental Cleanup Fund Act (PECFA) Wis. Admin. Code ch. NR 700: General (Remediation) Requirements Wis. Admin. Code ch. NR 702: Contingency Planning for Hazardous Substance Discharge Response by State Agencies Wis. Admin. Code ch. NR 704: Contingency Planning for Abandoned Container Response See Wis. Stat. ch. 292 generally and $9 292.01(2) and 292.1 l(7).
Clzapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
Wis. Admin. Code ch. NR 706: Hazardous Substance Discharge Notification and Source Confirmation Requirements Wis. Admin. Code ch. NR 708: Immediate and Interim Actions Wis. Admin. Code ch. NR 7 10: Site Discovery, Screening and Ranking Wis. Admin. Code ch. NR 7 12: Personnel Qualifications for Conducting Environmental Response Actions Wis. Admin. Code ch. NR 714: Public Information and Participation Wis. Admin. Code ch. NR 716: Site Investigations Wis. Admin. Code ch. NR 7 18: Management of Solid Wastes Excavated During Response Actions Wis. Admin. Code ch. NR 720: Soil Cleanup Standards Wis. Admin. Code ch. NR 722: Standards for Selecting Remedial Actions Wis. Admin. Code ch. NR 724: Remedial and Interim Action Design, Implementation, Operation, Maintenance and Monitoring Requirements Wis. Admin. Code ch. NR 726: Case Closure Wis. Admin. Code ch. NR 728: Enforcement Wis. Admin. Code ch. NR 730: Superfund Cost Sharing Wis. Admin. Code ch. NR 732: Cost Reimbursement for Municipal Landfill Monitoring Wis. Admin. Code ch. NR 734: Selecting and Contracting Environmental Consulting Services Wis. Admin. Code ch. NR 736: Advertising, Bidding and Award of Environmental Construction Contracts Wis. Admin. Code ch. NR 738: Temporary Emergency Water Supplies Wis. Admin. Code ch. NR 746: Risk Screening and Closure Criteria for Petroleum Product Contaminated Sites, and Agency Roles and Responsibilities Wis. Admin. Code ch. NR 749: Fees for Providing Assistance; Remediation and Redevelopment Program 111. APPLICABILITY OF WISCONSIN AND FEDERAL REMEDIATION LAWS Both Wisconsin and federal law provide a comprehensive statutory and administrative process for investigating and cleaning up contaminated sites. Each imposes liability and responsibility for cleanup on certain parties that are responsible for or exercise control over contaminated sites. Wisconsin and federal law also provide a mechanism for DNR and EPA to evaluate sites, develop a list of contaminated sites and identify those sites that are significantly contaminated (under federal law, these sites are often referred to as "Superfund" sites, discussed
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
in further detail in Section IV below). Finally, both laws also grant authority to and impose obligations on DNR and EPA to clean up contaminated sites under certain circumstances. This section provides separate overviews of Wisconsin and federal remediation laws and discusses under what circumstances these laws impose liability and cleanup obligations on parties that own or are responsible for contaminated sites. Section IV discusses how DNR and EPA ensure that contaminated sites are cleaned up. A. Overview of Wisconsin Law Governing Remediation DNR has coined the title "Remediation and Redevelopment Program" (RR) to refer to Wisconsin's program for handling sites contaminated with hazardous substances.1030Chapter 292 of the Wisconsin Statutes sets forth the majority of the statutory provisions governing
cleanup of contaminated sites and includes the section commonly referred to as the "Spill ~ a w . " ' ~DNR ~ ' primarily relies on the Spill Law to require cleanup of contaminated sites which, in fairly simple terms, requires: "A person who possesses or controls a hazardous substance which is discharged or who causes the discharge of a hazardous substance shall take the actions necessary to restore the environment to the extent practicable and minimize the harmful effects from the discharge to the air, lands or waters of this state.,71032 In implementing the Spill Law and other remediation statutes, DNR relies heavily on its administrative rules adopted pursuant to those statutes and set forth in Wisconsin Administrative Code chapters NR 700 through 749.
'03' '03'
http://dnr.wi.gov/org/aw/rr/index.htm. Wis. Stat. 6 292.1 1. Wis. Stat. 292.1 l(3).
Chapter 11 Contan1ination Cleanup: Regulating Renzoval and Remediation of Hazardous Substances in Soil and Groundwater
B. Overview of Federal Law Governing Remediation Similar to the Spill Law, under the federal statutory scheme EPA requires the cleanup of contaminated sites primarily based on CERCLA. Although Wisconsin's Spill Law and CERCLA have similar goals and require similar actions and outcomes, they have different methods of getting there. For instance, the brevity and simplicity of the Wisconsin Spill Law is stark in contrast to the text of CERCLA, which spans hundreds of pages too numerous to duplicate in this text.'033
C. The Remediation Process in Wisconsin; Interaction of State and Federal Remediation Programs Wisconsin has approximately 10,000 properties'034 with varying types and levels of contamination. These properties are commonly referred to as "Brownfields. ,71035 Fortunately, Wisconsin is one of the most innovative states when it comes to cleaning up and redeveloping Brownfields. Although this chapter focuses on remediation requirements, it is important to note that a number of cleanup actions in Wisconsin also involve redeveloping contaminated sites following the actual cleanup. Accordingly, many cleanups in Wisconsin are undertaken voluntarily as part of the overall redevelopment process. The Wisconsin Legislature enacted the Spill Law in 1 9 7 8 , " ~two ~ years before the United States Congress enacted CERCLA.'037Additional legislative enactments followed the Spill Law
See 42 U.S.C. $9 9601-9675. Estimate is provided by DNR. See httv://dnr.wi.g.ov/org/aw/rr/rbrownfields/index.htm. ''Brownfields are abandoned, idle or underused commercial or industrial properties, where the expansion or redevelopment is hindered by real or perceived contamination. Brownfields vary in size, location, age, and past use-they can be anything from a five-hundred acre automobile assembly plant to a small, abandoned comer gas station." WDNR, Brownfields: Redeveloping Contaminated Property, available at httv://dnr.wi.g.ov/ordaw/rr/rbr~wnfields/. 1977 Wis. Laws ch. 377, Q 23 (eff. May 21, 1978). r CERCLA has been significantly amended several times Congress enacted CERCLA on ~ e c e m b e 11,1980. since its creation. Two of the most significant amendments are the Superfund Amendments and Reauthorization Act
Chapter I I Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
to increase the comprehensiveness of Wisconsin's contamination cleanup regime. Those enactments include creation of the Wisconsin Environmental Improvement
and the
Petroleum Environmental Cleanup Fund (PECFA),"~~ both of which help pay for cleanup of certain contaminated sites. These statutes will be discussed in further detail at the end of Section IV of this chapter. As noted above, DNR oversees and exercises primary authority over a majority of contamination cleanups in Wisconsin. In 1995, EPA and DNR entered into a memorandum of understanding'O4' establishing that DNR would be the lead agency in responding to and overseeing most cleanups in
isc cons in."^'
The Wisconsin Department of Commerce
( ~ o m m e r c e ) "and ~ ~ Department of Agriculture, Trade and Consumer Protection (DATCP) also have some responsibility for enforcing certain environmental laws and directing cleanup of specified types of ~ontamination."~~ Section IV below provides a discussion of the specific programs overseen by Commerce and DATCP. The federal Small Business Liability Relief and Brownfields Revitalization Act of 2002 (Brownfields Reform Act) further solidified the cooperative arrangement between DNR and EPA with respect to the DNR's authority to oversee cleanup of contaminated properties which
of 1986 (SARA) and the Small Business Liability Relief and Brownfields Revitalization Act of 2002,Pub. L. No. 107-118 (aik/a Brownfields Reform Act). 1997 Wis. Act 27 created the Land Recycling (Brownfields) Program to help local governments investigate and remediate certain properties. This fund also serves other purposes. 1987 Wis. Act 399. '04' Brownfields Memorandum of Agreement Between the Wisconsin Department of Natural Resources and the United States Environmental Protection Agency, Region V, Concerning Brownfields Properties and Voluntary Clean Ups (Oct. 17,1995), available at httu://dnr.wi.aov/ora/aw/rr/archives/vubs/RR541 .udf. lo'' DNR's authority over cleanup in Wisconsin is subject to certain "exceptional circumstances," described in more detail in the Memorandum. See Wis. Stat. $ 101.09;Wis. Stat. ch. 168;Wis. Admin. Code chs. Comm 10 and 48. lW3 See Wis. Stat. $94.73;Wis. Admin. Code ch. ATCP 35.
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
qualify as "Brownfields.,,I044 The Brownfields Reform Act generally provides that if a Brownfields cleanup is completed pursuant to a state program and EPA approves the actions taken to complete the cleanup,'045EPA cannot exercise its authority under CERCLA at that particular site.1046 Finally, most recently, EPA and DNR entered into an additional memorandum of agreement related to the One Cleanup Program, which seeks to further enhance both the cooperation between the agencies in Wisconsin cleanups and increase the consistency of cleanups n a t i 0 n ~ i d e . l ' The ~ ~ One Cleanup Program, which EPA anticipates establishing with all states, sets the following goals that will ultimately be accomplished through the development and adoption of better performance measures for determining how best to accomplish cleanups while taking into account limited resources: Consistency and effectiveness of cleanups; Facilitate the sharing of clear and useful information about cleanups with the public; Establishing better performance measures for cleanups; and Encouraging efficient and effective cleanup of Brownfields sites. The One Cleanup Program only applies to specified types of contaminated sites, including
Brownfields, federal facilities, leaking underground storage tanks, RCRA sites and Superfund See 42 U.S.C. 5 9601(39), generally defining a "Brownfields site" as "real property, the expansion, redevelopment, or reuse of which may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant." lo'* See 42 U.S.C. $9 9601(41) and 9628, discussing "eligible response sites," those sites which EPA determines will be adequately addressed under applicable state remediation requirements. 42 U.S.C. $ 9628(b)(l)(A). EPA's deference to state programs is subject to several exceptions: (1) the state program must be EPA approved; (2) if a state requests EPA intervention, this statute will not prevent EPA from having jurisdiction over a site; and (3) EPA may also take jurisdiction over a site if the site presents an imminent danger, if additional information indicates the site is a greater threat than previously acknowledged, or if contamination from a site migrates across state lines. 42 U.S.C. $ 9628(b)(l)(B). One Cleanup Program Memorandum of Agreement Between the United States Environmental Protection Agency Region 5 and the Wisconsin Department of Natural Resources, November 27,2006, available at http://www.epa.gov/brownfields/pdE/wis moa.pdf
Chapter 11 Contamin ation Cleaizup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
sites. Importantly, the One Cleanup Program memorandum of agreement between EPA and DNR recognizes that DNR's 700 series regulations which currently govern most Wisconsin cleanups do meet the CERCLA requirements for contamination cleanups (therefore allowing DNR to remain as the lead agency overseeing most Wisconsin cleanups).'048 Both the Spill Law and CERCLA impose a two-pronged system for responding to and managing contamination. The first prong requires immediate notification of applicable state and federal agencies when a discharge or release of hazardous substances is discovered with limited exceptions.'049The second and more involved of the two prongs mandates cleaning up and/or treating contamination to eliminate or minimize the impact on, and threat to, humans and the environment.'050Before delving into a discussion of each prong of the system, it is useful to understand a few key definitions and issues regarding: (1) to whom these laws apply; (2) to what the laws apply (i.e., what is considered "contamination" or "hazardous materials"); (3) when the laws apply; and (4) what type of liability the laws impose.
1. To Whom Do The Laws Apply? Both the Spill Law and CERCLA impose liability on two classes of persons: those who own the contaminated property, and those who cause or "control" the contamination. The laws use different terminology to define the classes of liable persons105'but, in practice, anyone in these two classes is commonly referred to as a "responsible party" or "RP" regardless whether liability
1049
Io5'
Id. at 5-6. See Wis. Stat. 5 292.1 l(2) and 40 C.F.R. ยง 300.405, respectively. See Wis. Stat. jj 292.1 l(5) and 40 C.F.R. $9 300.420(b), 300.430(d) and 300.435, respectively. See Wis. Stat. 9 292.11(3) and 42 U.S.C. $4 9607(a)(4)(A)-(B),respectively.
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation o f Hazardous Substances in Soil and Groundwater
is under state or federal law.lo5*This chapter will use the term "responsible party" or "RP" in discussing the requirements imposed on a person who is potentially liable for contamination. The Spill Law defines two categories of "persons ~ 1 0 5 3who can be liable for contamination: those who "possess or control" a hazardous substance and those who cause the discharge of the hazardous substance.'054The Spill Law has been interpreted broadly to potentially encompass everyone involved with a contaminated site including a current or past owner, a tenant,'OS5or a contractor who excavates (or controls) soil on the site. For example, the Wisconsin Supreme Court has concluded the term "cause" applies broadly to impose liability on former owners and hazardous waste generators for actions that "caused" contamination even though the actions occurred prior to enactment of the Spill Law.1056 The Wisconsin Supreme Court has also held the Spill Law imposes liability on a person who possesses or controls a hazardous substance by virtue of property ownership even though that person did not cause the initial discharge.1057 1, other words, a subsequent property owner has "possession and control" over a hazardous substance that was discharged on the property by a former owner of the property.'058
The drafters of the federal environmental statutes often also use the term "potentially responsible party" or "PRP." See, e.g., 42 U.S.C. 9 9613. The statutes define "person" as an "individual, owner, operator, corporation, limited liability company, partnership, association, municipality, interstate agency, state agency or federal agency." Wis. Stat. ยง 292.01(13). 'OS4 Wis. Stat. 9 292.1 l(3). Ios5 DNR offers tenants a liability clarification letter pursuant to the authority granted by Wis. Stat. 9 292.55 in which DNR will clarify whether a particular tenant under the circumstances possesses and controls a hazardous substance. 'OS6 State v. Chrysler Outboard Corp., 219 Wis. 2d 130, 162,580 N.W.2d 203 (1998). Ios7 State v. Mauthe, 123 Wis. 2d 288,300-01,366 N.W.2d 871 (1985). See id. at 299 (finding that owner or possessor of land was responsible for cleanup); Foss v. Madison Twentieth Century Theatres, Inc., 203 Wis. 2d 2 10,22 1,551 N.W.2d 862 (Ct. App. 1996) (imposing a cleanup duty on possessor of property where possessor did not cause discharge).
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
CERCLA covers four categories of potentially "responsible parties": (a) "the owner and operator of a
or a facility,,71060
(b) "any person1061who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,,,1062 (c) "any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person ...;,91063 and (d) "any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release, ... of a hazardous substance.3,1064 Under CERCLA, similar to the Spill Law, current owners may be liable for cleaning up contamination even if they did not own the property when the hazardous substance was re1ea~ed.l'~~ And, similar to the Spill Law, an operator of a facility who does not own the facility can be liable because CERCLA applies to anyone who has control over a facility.'066If past owners and operators caused contamination by an affirmative action, such as spilling or dumping a hazardous substance, they would also be liable under CERCLA."~~ Unlike Wisconsin cases, there is some debate among federal courts regarding CERCLA liability for past owners who do not take any action to actually cause contamination during
'OS9 The term "vessel ... means every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." 42 U.S.C. Q9601(28). lMO 42 U.S.C. Q 9607(a)(l). The term "facility ...means (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel." 42 U.S.C. 9 9601(9). lo'' Similar to the Spill Law, person is defined broadly to include individuals and entities. See 42 U.S.C. Q 9601(21). '06' 42 U.S.C. 9 9607(a)(2). 42 U.S.C. Q 9607(a)(3). '064 42 U.S.C. Q 9607(a)(4). Io6'See, e.g., Artesian Water Co. v. Government of New Castle County, 659 F. Supp. 1269, 1287 (D. Del. 1987), afd, 851 F.2d 643 (3d Cir. 1988). Rockwell Int'l Corp. v. IUInt'I Corp., 702 F. Supp. 1384, 1390 (N.D. Ill. 1988). lM7 42 U.S.C. 9 9607(a)(2) and 42 U.S.C. $Q 9607(a)(4)(A)-(B).
Chapter I I Contantination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater ownership (i.e., liability for passive migration during ownership). In 1992, the Fourth Circuit Court of Appeals held that passive migration of hazardous substances could be sufficient to impose liability on past owners.'068 However, other circuits have held that liability requires active participation in causing the contamination, such as actual dumping, spilling or discharging of a hazardous substance, not simply passive migration.1069
2. To What Do The Laws Apply? The Spill Law and CERCLA take different approaches in defining contamination. Both generally regulate "hazardous substances"'070but define that term quite differently. a. Defininn Hazardous Substances Under WisconsinLaw The Spill Law and other Wisconsin statutes regulating contamination establish a broad, nonspecific definition of hazardous substances, not limited to toxic or noxious substances that most would consider to be contaminants or pollutants: "Hazardous substance" means any substance or combination of substances including any waste of a solid, semisolid, liquid or gaseous form which may cause or significantly contribute to an increase in mortality or an increase in serious irreversible or incapacitating reversible illness or which may pose a substantial present or potential hazard to human health or the environment because of its quantity, concentration or physical, chemical or infectious characteristics. This term includes, but is not limited to, substances which are toxic, corrosive, flammable, irritants, strong sensitizers or explosives as determined by the department.1071 Theoretically, an otherwise innocuous substance could be deemed a hazardous substance if discharged in large enough quantities. A typical example often used to make this point is "milk
Numd, Inc. v. Wi'illiamE.Hooper & Sons Cb.,966 F.2d 837, 846 (4th Cir. 1992). See United States t: CDMG Realty Co., 96 F.3d 706, 714-15 (3d Cir. 1996);ABB Indux Svs., Inc. 11. Prime Tech.,Inc., 120 F.3d 351, 358 (2d ~ i r 1997). . '07' Readers should note that the terms "hazardous waste" and "hazardous substance" are not synonymous under state and federal law. Although the terms interact with one another, hazardous wastes are regulated under an entirely different statutory scheme (discussed in Chapter 10) than hazardous substances. '07' Wis. Stat. 292.01(5), 299.01(6); Wis. Admin. Code NR 700.03(25). lo''
Chapter I I Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
spilled in a trout stream" that can result in a fish kill. Unlike CERCLA, discussed next, the Spill Law does not exempt petroleum products from the definition of a hazardous substance.'072
b. Defining Hazardous Substances Under CERCLA CERCLA defines "hazardous substances" more narrowly than the Spill Law, providing two ways for classifying a substance as hazardous. First, CERCLA classifies most substances as hazardous by incorporating a list compiled by federal agencies, most of which are commonly known contaminants and pollutants scientifically determined to be harmful to humans or the environment. The list includes:'073 substances designated pursuant to the Federal Water Pollution Control elements, compounds, mixtures, solutions or substances designated by EPA as a hazardous substance; hazardous wastes identified under or listed pursuant to the Solid Waste Disposal toxic pollutants under the Federal Water Pollution Control A C ~ ; ~ ~ ~ hazardous air pollutants listed under the Clean Air
and
imminently hazardous chemical substances or mixtures under the Toxic Substances Control Act. Substances that do not appear on the above lists can nonetheless be deemed a hazardous substance if they contain a listed hazardous substance.'080 For example, soil can become a hazardous substance if it contains a listed hazardous substance. See 42 U.S.C. $ 9601(14)(F). 42 U.S.C. Q 9601(14). 33 U.S.C. $ 1321(b)(2)(A),now known as the Clean Water Act. 42 U.S.C. $ 9602 sets forth EPA's authority to designate hazardous substances under CERCLA. The current list of EPA-designated hazardous substances can be found in 40 C.F.R. Q 302.4(a) (2001). '7ol 42 U.S.C. Q 6921. See Chapter 10 for further discussion of hazardous wastes under the Solid Waste Disposal Act. 33 U.S.C. $ 1317(a). lo7* 42 U.S.C. $ 7412. 15 U.S.C. $2606.
Chapter 11 Contantination Cleanup: Regulating Removal and Reniediation of Hazardous Substances in Soil and Groundwater
Second, CERCLA also classifies certain unlisted substances as hazardous if they exhibit one or more of the properties of a "hazardous waste" under the Resource Conservation and Recovery Act (RCRA).'~~' EPA has identified the characteristics of a hazardous waste under RCRA as ignitability,'082c ~ r r o s i v i treactivity,1084 ~ , ~ ~ ~ ~ and toxicity.1085 The definition of "hazardous substance" under CERCLA also contains specific exclusions. For example, the definition expressly excludes petroleum products, including crude oil and certain other gaseous substances,'0s6which fall under the Oil Pollution Act and the Clean Water Act.
3. When Do the Laws Apply? The Spill Law and CERCLA both impose liability under similar circumstances. Although the Spill Law calls this circumstance a "discharge" and CERCLA refers to it as a "release," the definitions are strikingly similar. Essentially, both laws apply when a hazardous substance enters the environment or escapes from the place or thing where it is normally contained. The Spill Law applies to hazardous substance "discharges," defined as "spilling, leaking, pumping, pouring, emitting, emptying or dumping.7,1087 The Wisconsin Supreme Court has expanded the definition of "discharge" to include migration of hazardous substances: "the outflow of a hazardous substance from contaminated soil into neighboring properties is a discharge.~ 1 0 8 8The Spill Law also grants DNR the authority to regulate even though an actual
42 U.S.C. Q 9601(14)(C). 42 U.S.C. Q 6901, et seq. lo'* 40 C.F.R. Q 261.21. loS3 40 C.F.R. Q 261.22. loS4 40 C.F.R. Q 261.23. loS5 40 C.F.R. lj 261.24. 42 U.S.C. Q 9601(14)(F). lo'' Wis. Stat. lj 292.01(3). lo'' Mauthe, 123 Wis. 2d at 290,299. loso lo''
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
discharge has not yet occurred: "[DNR may] require that preventive measures be taken by any person possessing or having control over a hazardous substance if [DNR] finds that existing control measures are inadequate to prevent discharges.,31089 Similarly, CERCLA applies to actual or threatened "releases," subject to four narrow exclusions.1090"Releases" is broadly defined to mean "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).,,I091 The term "leaching" in the definition of release has been interpreted to include passive migration as a form of release. lo9* 4. What Type of Liability Do Remediation Laws Impose? The Spill Law and CERCLA require responsible parties to respond to contamination through a series of investigations and short-term and long-term cleanup actions (discussion of the specific cleanup actions is presented in more detail in Section IV below). Many types of costs and penalties may be imposed on responsible parties in relation to responding to a discharge or release of a hazardous substance.
Wis. Stat. 9 292.11(4)(a). The following activities do not constitute "releases" under CERCLA: (a) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons; (b) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine; (c) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954 [42 U.S.C. $ 201 1, et seq.], if such release is subject to requirements with respect to fmancial protection established by the Nuclear Regulatory Commission under section 170 of such Act [42 U.S.C. 22101, or, for the purposes of section 9604 of this title or any other response action, any release of source byproduct, or special nuclear material from any processing site designated under section 7912(a)(l) or 7942(a) of this title; and (d) the normal application of fertilizer.42 U.S.C. 5 9601(22). '09' 42 U.S.C. 9 9601(22). See, e.g., CDMG ReaIty Co., 96 F.3d at 715. Ios9
Chapter I 1 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater a. Liability for Costs o f Investigation and Cleanup
In general, both the Spill Law and CERCLA impose liability on responsible parties for all costs of investigating, managing and disposing of or treating contamination, whether conducted by the responsible party itself or done by the applicable governmental agency.'093In cases where a responsible party conducts the required activities itself, the responsible party will also likely be responsible to pay some costs incurred by DNR or EPA in overseeing those activities. If DNR or EPA conduct the activities required to address the contamination, the responsible party will likely also be subject to penalties (discussed further below) and additional costs and expenses incurred by the agency in bringing an enforcement action (including, in some cases, attorneys' fees). Under both the Spill Law and CERCLA, liability can be retroactive, holding responsible parties liable for acts that happened before enactment of the law.1095In addition, liability can be imposed jointly and severally on all responsible parties-in
other words, all responsible parties
can be jointly liable for paying cleanup costs, but any one of the responsible parties may also be held liable for the entire amount of the cleanup
Finally, both the Spill Law and
CERCLA impose strict liability; a responsible party cannot avoid liability by asserting that it was not negligent or that it was operating according to industry standards.'097
In addition, under CERCLA $ 107(a), Indian Tribes and "any other person" who incurs "necessary costs of response ... consistent with the national contingency plan" may be entitled to bring a cost recovery action. 42 U.S.C. (j 9607(a). Wis. Stat. (j 292.99; 42 U.S.C. $ 9607. Chiysler Outboard C o y . , 2 19 Wis. 2d at 162-64; United States v. Olin Corp., 107 F.3d 1506, 1511-14 (1 1th Cir. 1997). 42 U.S.C. (j 9607(a); Mauthe, 123 Wis. 2d at 300; O'Neil v. Picillo, 883 F.2d 176, 178-79 (1st Cir. 1989), cert. denied, 493 U.S. 1071 (1990). Wis. Stat. $292.1 l(3) and 42 U.S.C. $ 9607(a).
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
The Spill Law specifically imposes liability on responsible parties for the following costs that may be incurred at a contaminated site: The costs of site investigations to define the "nature, degree and extent of contamination," and to identify the source of the contamination and appropriate actions for responding to the contamination regardless of whether the costs are incurred by the responsible party itself or by the D N R ; " ~ ~ The costs of all immediate, interim and remedial actions required to stop the hazardous substance discharge and restore the environment to the extent practicable, regardless of whether the costs are incurred by the responsible party itself or by the D N R ; " ~ ~ Costs incurred by the DNR in enforcing the Spill Law and responding to a hazardous substance discharge;' '0ยฐ and DNR fees related to processing requests of and negotiating with responsible parties.''01 Under the Spill Law, only the State can force responsible parties to pay for cleanups. Wisconsin courts have specifically held that the Spill Law does not create a private cause of action."02 Thus, the Spill Law does not provide a cause of action to citizens. Moreover, the Spill Law is not a "safety statute." A violation of the statute is not considered negligence per se (which might be otherwise argued by a third party in a tort claim for CERCLA imposes liability on responsible parties for the following potential costs related to contaminated sites:'Io4 Costs of removing, remediating or otherwise responding to contamination, including site investigations and studies regarding the feasibility of proposed actions, regardless of
Wis. Admin. Code $ NR 716.01, adopted pursuant to Wis. Stat. $9 292.11 and 292.31. Wis. Admin. Code $5 NR 708.05 and 724.02, adopted pursuant to Wis. Stat. $9 292.11 and 292.31. See also Wis. Stat. 166.22(2) involving costs associated with emergency responses to hazardous substances releases at a local level. 'Io0 Wis. Stat. $9: 292.1 1(13), 292.81 and 292.94. DNR's fees can be imposed as a lien on the affected property under these statutes. "01 Wis. Admin. Code ch. NR 749, adopted pursuant to Wis. Stat. $ 292.1 1(7)(d)2. 'Io2 Grube v. Daun, 210 Wis. 2d 681,692,563 N.W.2d 523 (1997). "03 Grube, 210 Wis. 2d at 692-93. 42 U.S.C. $9 9607(a)(4)(A)-(D). lo9*
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
whether the costs are incurred by the responsible party itself, by EPA, or by a State or Indian tribe; Damages for injury to, destruction or loss of natural resources, including the reasonable costs of assessing such injury, destruction or loss; and The costs of any health assessment or health effects study."05 Under CERCLA, liability for cleanup costs is generally imposed in one of four ways: (I) the responsible party can admit culpability and settle with EPA, as discussed further in the next section; (2) the EPA, a state or an Indian Tribe can commence a "cost recovery action" (also known as a "section 107 action") to recover "all costs of removal and remedial
(3)
"any other person" (who is not a responsible party) may bring a cost recovery action for "any other necessary costs of response ... consistent with the national contingency plan";"07 or (4) after an administrative or civil action has been brought, one responsible party may bring a "contribution action" against another responsible party."08 Since CERCLA imposes joint and several liability, once the EPA or a state has commenced an action against a responsible party, generally that responsible party can bring a contribution action against any other responsible party for monetary contribution toward cleanup ~ o s t s . ' ' ~ ~ Contribution actions can be brought against other responsible parties even if the other responsible parties were not named or found liable in an initial cost recovery action."I0 However, the United States Supreme Court recently identified one important limitation on
carried out pursuant to 42 U.S.C. 8 9604(i). 42 U.S.C. 0 9607(a)(4)(A). 'Io7 Id., ยง 9607(a)(4)(B). Also known as a "section 113 action." 42 U.S.C. ยง 9613. The Spill Law does not provide a similar contribution provision generally allowing responsible parties to collect fiom other responsible parties. But see Wis. Stat. 9: 292.35(9)(0 (related to local governmental units taking ownership over and responsibility for certain sites and facilities). 'Io9 42 U.S.C. 0 9613. "'O See New Castle County v. Halliburton N U S Corp., 1 1 1 F.3d 11 16 (3d Cir. 1997). lLoSHealth assessments may be 'Io6
Chapter I 1 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
contribution actions in its 2004 Aviall decision: a contribution claim can only be asserted following commencement of an administrative or civil action (such as a section 106 or section 107 action) and will not be available when EPA or a state has not actually commenced an action.1111 In practice, the Aviall case prevents responsible parties from bringing contribution claims when they settle CERCLA claims under threat of, but prior to, the actual commencement of an administrative or court action. The Aviall case has already had a chilling effect on responsible parties' willingness to settle CERCLA claims before commencement of administrative or court proceedings for fear that they will have no recourse to collect from other responsible parties who contribute to contamination. It is important to note, however, that the Supreme Court limited its decision in Aviall to section 113 contribution claims. The Aviall case did not address cost recovery actions under section 107 (available to any other person that incurred "necessary costs of response").l
l2
Although Aviall did not come to a conclusion regarding the distinction between claims by one responsible party against another under a cost recovery action versus a contribution claim, several federal courts have. Most of those courts have concluded section 107 cost recovery actions are separate and distinct from section 113 contribution actions and the Aviall decision does not foreclose a cost recovery action under section 107 even if Aviall forecloses a section
CooperIndus.,Inc. v. AviallServs., Inc., 543 U.S. 157, 166-67 (2004). 42 U.S.C. $9607(a). The Aviall court declined to decide whether the responsible party in that case had an implied right to contribution under CERCLA $ 107(a) because the parties had not briefed the issue. 543 U.S. at 169-70.
'I" 2I'
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater 113 contribution action."13 Readers should stay tuned and likely will see a United States
Supreme Court decision on the issue in the near future.'
'
l4
Assuming Aviall does not prevent a contribution action, a court will use "such equitable factors as the court determines are appropriate" in allocating cleanup costs among responsible parties."" Although a court could use any number of considerations to devise an allocation of costs,'
l6
'
many courts have relied on the so-called "Gore ~actors":
l7
The ability of the parties to demonstrate their contribution to the contamination is distinguishable; The amount of hazardous substance involved; The toxicity of the hazardous substance contributed by the particular responsible party; The particular responsible party's involvement in generation, transportation, treatment, storage, or disposal; The degree of care exercised by the party, taking into account the characteristics of the hazardous substance; and The party's cooperation with governmental officials to prevent harm to the public or the environment. Civil Penalties In addition to the costs outlined above associated with investigation and cleanup, responsible parties can also be subject to civil penalties under both state and federal law. The Spill Law
See Metropolitan Water Reclamation Dist. v. North Am. Galvanizing & Coatings, Inc., -F . 3 d , 2007 WL 102979 (7th Cir. 2007); Atlantic Research Corp. v. United States, 459 F.3d 827 (8th Cir. 2006), cert. granted, 2007 WL 124673; Consolidated Edison Co. v. UGI Utils., Inc., 423 F.3d 90 (2d Cir. 2005); but see E.I. DuPont De Nemours & Co. v. United States, 460 F.3d 515 (3d Cir. 2006). See United States v. Atlantic Research Corp.,petition for cert. granted, 2007 WL 124673,75 U.S.L.W. 3236 (U.S. Jan. 19,2007) (No. 06-562). "I5 42 U.S.C. (i 9613(f)(1). 6I' Bancarnerica Commercial Corp. v. Mosher Steel of Kansas, Inc., 100 F.3d 792,802 (10th Cir. 1996). "I7 These factors were entered into the legislative record by Senator Gore during Congressional Hearings prior to the passage of CERCLA. See 126 Cong. Rec. 26,779-81 (1980). "I3
Chapter I 1 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
permits a range of penalties from $10 to $10,000 per ~iolation."'~ Each day that a violation continues can be considered a separate vi~lation."'~A court may also award attorneys' fees incurred by the Wisconsin Department of Justice in prosecuting Spill Law ~ i o l a t i o n s . ' ' ~ ~ The civil penalty structure under CERCLA has two levels. The first level, "Class I Administrative Penalty," may be imposed for violations of CERCLA's notice requirements,"21 destruction of records
financial responsibility
settlement agreements or
administrative orders."24 The fine for a Class I violation can be up to $25,000 per violation.1125 The second level, "Class I1 Administrative Penalty," may be imposed for the same types of violations as listed for Class I, but carries with it a penalty of $25,000 per day in ~ i o l a t i o n . "In ~~ addition to civil penalties, CERCLA authorizes imposition of criminal liability for certain violations of CERCLA's notice provisions.'127 c. Defenses and Limitations on Liabilitv
The Spill Law and CERCLA offer very few defenses and limitations on liability. Indeed, the Spill Law lists no defenses. Rather, the Spill Law and several other Wisconsin statutes governing contamination offer limited exemptions for specified persons under very few circumstances. Those exemptions are discussed in the following subsection (discussing exemptions). On the other hand, CERCLA specifies several defenses. However, the defenses are very narrow. CERCLA defenses require a potentially responsible party to show "by a preponderance
1119 lZO '12' 'IZ3 'IZ4 'I2 'IZ6
Wis. Stat. $ 292.99. ~ d . Id. 42 U.S.C. $ 9609(a)(l)(A). 42 U.S.C. $ 9609(a)(l)(B). 42 U.S.C. $ 9609(a)(l)(C). 42 U.S.C. $9 9609(a)(l)(D)-(E). 42 U.S.C. $ 9609(a)(l). 42 U.S.C. $9609(b). 42 U.S.C. $ 9603(b).
Chapter I 1 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater of the evidence that the release or threat of release of a hazardous substance and the [resulting] damages ... were caused solely by ...": an act of God; anact ofwar; an act or omission of a third party [with whom the defendant has no contractual relationship]; or "any combination of the foregoing ....3'1
128
As a practical matter, many responsible parties find it more expensive to litigate the applicability of a CERCLA defense than simply to clean up contamination. Upon Congress' enactment of the Brownfields Revitalization Act in 2002, parties that minimally contribute to the overall contamination at a site may now be eligible for reduced liability, subject to certain ~onditions."~~ Congress provided this limitation to responsible parties that contributed only a de minimis amount of contamination in an effort to expedite settlements in such ~ a s e s . ' 'A~ responsible ~ party may also be eligible for a de minimis settlement if it can demonstrate an inability or limited ability to pay response
cost^."^'
To qualify for reduced
liability, the responsible party must, among other conditions, waive all claims it may have against other responsible parties (including contribution claims)."32 Both the Spill Law and CERCLA also provide mechanisms for responsible parties to limit their liability by voluntarily participating in the cleanup process and/or settling potential violations prior to commencement of an administrative or court action. Although such
'I3'
42 U.S.C. 0 9607(b). 42 U.S.C. 9 9622(g). 42 U.S.C. 9 9622(g)(l). 42 U.S.C. (i 9622(g)(7). 42 U.S.C. (i 9622(g)(8).
Chapter 11 Contam ination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
responsible parties must still meet the cleanup requirements and standards, and must conduct cleanups under the purview of the applicable agency, typically the costs of a voluntary cleanup will be less than a government-conducted cleanup (for which costs the responsible party will be liable). In addition, a responsible party will usually avoid or reduce civil penalties if it undertakes a voluntary cleanup. A discussion of the process for conducting a voluntary cleanup under both state and federal law are discussed in more detail in Sections 1V.C. and 1V.D. below.
d. Liability Exemptions Both state and federal environmental remediation laws, including the Spill Law and CERCLA, grant limited exemptions to two specific groups that might otherwise be deemed responsible parties: governmental entities and lenders. The applicable statutory provisions require strict adherence with specified requirements for the exemptions to apply. An exemption will not apply where a party that might otherwise be exempt has caused, contributed to or exacerbated contamination. (i) Local Governments A governmental unit that acquires property through certain legal processes, including through tax delinquency, bankruptcy or condemnation proceedings, may be exempt from liability under both the Spill Law and CERCLA. The governmental unit must meet the specific conditions attached to the exemption, including that the governmental unit was not involved in and did not contribute to the ~ontamination."~~ The Spill Law provides an exemption for "local governmental units,9,1134 including a municipality,'135redevelopment authority,lU6a public body designated by a municipality under
"34
Wis. Stat. $9 292.1 l(9)(e)lm. and 2.; 42 U.S.C. $ 9601(20)(D). Wis. Stat. $ 292.1 1(9)(e)1.
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
Wis. Stat.
6 66.1337(4), a community development authority''37 or a housing
To
qualifL for an exemption, the local governmental unit that acquires contaminated property through one of the specified legal processes must not have caused the discharge1'" and must not exacerbate the contamination by any of the following actions: Failure to take appropriate action to restrict access to the property to minimize costs or damages resulting from unauthorized access; Failure to sample and analyze unidentified substances in containers stored aboveground on the property; Failure to remove and properly dispose of (or to place in a different container and properly store) any hazardous substance stored aboveground on the property in a container that is leaking or is likely to leak; Failure to take necessary action directed by the DNR based on the DNR's consideration of the intended use and development of the property and the need to reduce any substantial threat to public health or safety; Failure to allow DNR and responsible parties access to the property to respond to the discharge; or Failure to enter into an agreement with the DNR to ensure the above listed events do not occur. 1140 In 2006, the Wisconsin Legislature expanded the local government unit exemption to allow local government units to acquire, without liability, properties considered to be "unlicensed landfills" under similar conditions to those outlined above.'141
"Municipality" is defined in several places throughout the Wisconsin statutes (see, e.g., Wis. Stat. $9 59.001(3) and 60.70(3)). In this instance, the term means "any city, town, village, county, county utility district, town sanitary district, public inland lake protection and rehabilitation district or metropolitan sewage district." Wis. Stat. 5 292.01(11). See Wis. Stat. (j 66.1333 for a description of the creation of redevelopment authorities. Wis. Stat. 5 66.1335. 'I3' Wis. Stat. (j 66.1201. Wis. Stat. (j 292.1 1(9)(e)2.a. 'I4' Wis. Stat. (j 292.11(9)(e). 14' 2005 Wis. Act 4 18, creating Wis. Stat. (j 292.23.
'
Chapter 11 Contamination Cleanup: Regulating Renzoval and Remediation qf Hazardous Substances in Soil and Groundwater
CERCLA exempts state and local governments from liability through a somewhat simpler scheme. Congress exempted state and local governments from CERCLA coverage by excluding ,,I 142 Similar to the Spill Law, to be exempt, them from the definition of an "owner or operator. the state or local government must: (1) have acquired ownership of the property "through bankruptcy, tax delinquency, abandonment, or other circumstances in which the government 931
involuntarily acquires title by virtue of its function as sovereign,
143
and (2) not have caused or
contributed to the release or threatened release of a hazardous substance.' '44 (ii) Lenders Lenders will generally be exempt from liability for contamination so long as they only loan money to the owner or operator of a contaminated site and do not engage in any active operation, management or control of the site. The Spill Law provides that "a lender does not possess or control a hazardous substance or cause the discharge of a hazardous substance as a result of 991
engaging in lending activities.
145
However, a lender can still be liable for a discharge of
hazardous substances if the lender: (1) causes the discharge, or (2) "through tortious conduct with respect to lending activities causes a discharge of a hazardous substance or exacerbates an existing discharge of a hazardous substance.,,I I46 In addition, lenders must meet a series of additional requirements set forth in the statute if the lender acquires title to the property by way of enforcing its security interest in the property (such as through forecl~sure)."~~ Lenders may
'
42 U.S.C.
"45
'4I'
9 9601(20)(D).
143Id.
Id. Wis. Stat. 8 292.21(1)(a); see Wis. Stat. $9 292.01(8) and (9) for deftnitions of "lender" and "lending activities." Wis. Stat. $9 292.21(l)(a)2.a-b. Wis. Stat. $3 292.21(l)(b)-(e).
Chapter 11 contamination Cleanup: Regulating Removal and Remediation o f Hazardous Substances in Soil and Groundwater also take advantage of the voluntary party liability exemption provided under the Spill Law, discussed in further detail in Section IV below. Similarly, CERCLA contains a lender"48 liability exemption."49 Just like the CERCLA governmental unit exemption, the lender exemption is created by excluding lenders from the definition of an "owner or operator." To come within the exemption, the lender must not participate in managementf150 of the facility and must "hold [its] indicia of ownership primarily to protect the security interest of the person in the ... facility.""5' In the event of a foreclosure, a lender can continue to qualify for the exemption so long as the lender takes certain actions to facilitate the transfer of the facility to a subsequent purchaser and limits involvement with the facility to only what is necessary to market and sell the fa~i1ity.l'~~ (iii) Additional Liability Exemptions Purchasers of contaminated property can protect themselves from liability for contamination if they sufficiently investigate the condition of the property prior to purchase and follow the appropriate statutory steps to remove or remediate any contamination that may be discovered during that investigation. The Spill Law does not expressly include a liability exemption for purchasers. However, purchasers in Wisconsin may follow the Voluntary Party Liability Exemption (VPLE) procedure to minimize their risks in purchasing a contaminated property. The VPLE procedure is discussed further in Section 1V.C. below. Other than the VPLE procedure and the exemptions discussed above, there are no other express exemptions or limitations on liability under the Spill Law for purchasers. 'I4'
115' "52
See 42 U.S.C. 9 9601(20)(G)(iv) for the definition of lender. 42 U.S.C. $6 9601(20)(E)-(G). See 42 U.S.C. ยง 9601(20)(F) for a description of activities that constitute "participation in management." 42 U.S.C. 9 9601(20)(E)(i). 42 U.S.C. 9 9601(20)(E)(ii).
Chapter 11 Contamination Cleanup: Regulating Renzoval and Remediation of Hazardous Substances in Soil and Groundwater
CERCLA provides a specific but narrow exemption for bona Jide purchasers.''53 his exemption only applies if a purchaser demonstrates the purchaser had no reason to know of the existence of hazardous substances at the time of
This means a purchaser cannot
simply rely on a seller's representations or a visual examination in determining a property is not contaminated. To avoid CERCLA liability, a purchaser must make "all appropriate inquiries" to determine if a hazardous substance is present on the property,1155 including review of: Results of an inquiry by an environmental professional (EP); Interviews with past and present owners, operators and occupants of the facility for the purpose of gathering information regarding the potential for contamination at the facility; Historical sources, such as chain of title documents, aerial photographs, building department records and land use records, to determine previous uses and occupancies of the real property since the property was first developed; Searches for recorded environmental cleanup liens against the facility that are filed under federal, state, or local law; Federal, state, and local government records; waste disposal records; underground storage tank records; and hazardous waste handling, generation, treatment, disposal, and spill records concerning contamination at or near the facility; Visual inspections of the facility and adjoining properties; Specialized knowledge or experience on the part of the defendant, if any; The relationship of purchase price to the value of the property if the property was not contaminated; Commonly known or reasonably ascertainable information about the property; and The degree of obviousness of the presence or likely presence of contamination at the property, and the ability to detect the contamination by appropriate i n ~ e s t i ~ a t i o n . " ~ ~
42 U.S.C. (i 9601(40). 42 U.S.C. (i 9601(35)(A)(i). 1155 42 U.S.C. (i 9601(35)(B)(i). 1'56 42 U.S.C. (i 9601(35)(B)(iii).
Chapter 11 Contan1ination Cleanup: Regulating Removal and Remediation of' Hazardous Substances in Soil and Groundwater
The 2002 Brownfields Reform ~ c t ' "added ~ several new but limited exemptions to CERCLA liability, including a new de micvornis exemption. The exemption eliminates liability for small businesses that contributed less than 110 gallons of liquid materials or 200 pounds of solid hazardous waste to a site listed on EPA's "National Priorities List" (list of extremely contaminated sites), also known as Supefind sites, discussed fhrther in Section IV below.'158 The de micvomis exemption is subject to several conditions and limitations: (1) all or part of the disposal, treatment or transport of the materials must have occurred prior to April 1,2001,.I159 (2) the EPA reserves the right to revoke the exemption if it finds that the materials containing the hazardous substances contributed significantly to the cost of the response action;"60 (3) EPA can refbse to issue the exemption if the party claiming the exemption fails to comply with EPA's information request or subpoena issued in relation to a response action or in any other way impedes the response action;ll6l and (4) the exemption does not apply in any case in which a responsible party was criminally convicted or could have been convicted for the conduct to which the exemption would otherwise apply.'162EPA's determination of whether the exemption applies is not subject to judicial review.' 163 The second new CERCLA exemption created by the Brownfields Reform Act, the municipal solid waste exemption, exempts individuals and small businesses (defined as a business with fewer than 100 full-time employees) that send solid waste to a municipal solid waste fa~i1ity.l'~~
Small Business Liability Relief and Brownfields Revitalization Act, Pub. L. No. 107-1 18. 9 9607(o)(l)(A). 42 U.S.C. 6 9607(o)(l)(B). 'I6' 42 U.S.C. $ 9607(0)(2)(A)(i). '16' 42 U.S.C. 6 9607(0)(2)(A)(ii). 'I6*42 U.S.C. (j 9607(0)(2)(B). 42 U.S.C. (j 9607(0)(3). 'IM 42 U.S.C. $9607(p)(l). "" 42 U.S.C.
Chapter 11 Contam ination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
This exemption attempts to lighten the impact that CERCLA liability could create for such individuals and small businesses who contributed only minimally to contamination and that are generally unable to bear the financial responsibility associated with cleanup. The municipal solid waste exemption is subject to conditions and limitations very similar to those placed on the de rnicrornis exemption discussed above.' 16'
As previously discussed, CERCLA liability only applies to certain enumerated categories of persons that are considered responsible parties. The Brownfields Reform Act created a third exemption from CERCLA liability by excluding another type of potentially responsible party from the definition of an owner or operator: contiguous landowners. Owners whose property is contaminated by migrating contamination from a contiguous property are not "owners or operators" under CERCLA."66 To qualify for the exemption, the contiguous landowner must show that: The owner did not cause, contribute or consent to the release or threatened release of the hazardous substance; 167 The owner is not otherwise a responsible party through a business, familial or other relationship;I 16* The owner took reasonable steps to stop any continuing release, prevent any future release and prevent or limit exposure to the The owner cooperated h l l y with any response action taken;"70 The owner is in compliance with requirements imposed in the response a~tion;"~'
0 9607(p)(2). 42 U.S.C. 0 9607(q)(1). 42 U.S.C. 0 9607(q)(l)(A)(i). "'* 42 U.S.C. $6 9607(q)(l)(A)(ii)(I)-(11). 42 U.S.C. 0 9607(q)(l)(A)(iii). 'I7' 42 U.S.C. 9607(q)(l)(A)(iv). 'I7' 42 U.S.C. $9 9607(q)(l)(A)(v)(I)-(11). "" 42 U.S.C.
Chapter 1I Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Grourzdwater
The owner provided all requested information to the agency(ies) that conducted the response action;' '72 and At the time of purchase, the owner conducted "all appropriate inquiries" (as discussed above for the bonaJide purchaser exemption) which did not reveal the release or potential release. '73
'
Despite CERCLA's exemption for contiguous property owners and bonajde purchasers, the Brownfields Reform Act prohibits either group from obtaining a windfall profit. For example, a bona Jide purchaser might not qualify for the exemption if the purchaser purchased a
contaminated property for a reduced price because of the CERCLA liability the seller may have otherwise faced. Such a purchaser would recognize a windfall profit if exempted from liability. The EPA is entitled to file a lien against the property to recover its costs in such windfall cases. 1174 IV. THE PROCESS OF CLEANING UP A CONTAMINATED SITE A. Reporting Spills of Hazardous Substances
Under both the Spill Law and CERCLA, a discharge or release of a hazardous substance must be reported to the proper authorities once discovered. At the state level, notice must be given to D N R . " ~At ~ the federal level, the proper authority is the National Response The obligation to report applies to those "in charge" of the hazardous substance (under CERCLA),"~~ to a person who "possesses or controls" the hazardous substance (under the Spill
42 U.S.C. $ 9607(q)(l)(A)(vii). 42 U.S.C. $8 9607(q)(l)(~)(viii)(1)-(11). 42 U.S.C. $ 9607(r). 'I7' Wis. Stat. $292.11(2)(a). DNR has appointed five Regional Spill Coordinators who react to spills that occur in or affect their respective regions. 42 U.S.C. $ 9603(a). 42 U.S.C. $ 9603(a).
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
Law), as well as to the party that caused the discharge (under both CERCLA and the Spill ~ a w ) .17'' Certain minimal discharges or releases of hazardous substances do not have to be reported. At the federal level, EPA has established the minimum amount of specified hazardous substances that must be discharged before the obligation to report arises (sometimes referred to as the Reportable Quantity or RQ)."79 The Spill Law and its associated regulations provide a similar exclusion fiom reporting requirements: if the amount of hazardous substance discharged in a 24-hour period is less than the RQ listed in EPA's regulations, the discharge is excluded from reporting under the Spill Law.
'
''O
In addition, the Spill Law carves out exemptions from the reporting requirement for other specified discharges: (1) any discharge pursuant to the terms of a properly issued discharge permit,11s1(2) any discharge carried out by law enforcement officers or firefighters in the course of their d~ties,"'~ (3) a discharge of gasoline or petroleum products under certain circumstances,1183and (4) discharges resulting fiom certain types of agricultural chemical spills.' lS4 However, the above exemptions will not apply if the discharged substance: has not evaporated or has not been cleaned up in compliance with the requirements of chs. NR 700 to 726;' lS5
Wis. Stat. (i 292.1 1(2)(a); 42 U.S.C. (i 9603(a). 42 U.S.C. (i 9602; 40 C.F.R. (i 302.5. "'O Wis. Admin. Code (i NR 706.07(2)(a)7. The substance discharged must be less that the RQ listed in 40 C.F.R. parts 117 and 302. 'I8' Wis. Stat. (i 292.1 l(9)(a); Wis. Admin. Code (i NR 706.07(1)(a). "82 Wis. Stat. (i 292.1 l(9)(b); Wis. Admin. Code (i NR 706.07(1)(b). Wis. Admin. Code $5 NR 706.07(2)(a)(l)-(3). 'Is4 Wis. Stat. (i 292.1 1(9)(d)(2); Wis. Admin. Code (i(i NR 706.07(1)(d) and (2)(a)(4)-(6). Wis. Admin. Code (i NR 706.07(2)(b)l. 'I7'
"79
Chapter 11 Contamination Cleanup: Regulating Renzoval and Remediation of Hazardous Substances in Soil and Groundwater
threatens to or has adversely impacted the air, lands or water of the state either as a single discharge or when accumulated with previous discharges;' l g 6 threatens to or has adversely impacted human health;''87 or presents or threatens to present a fire, explosion or other safety hazard.'lg8 If a discharge is not reported and does not fall under one of the above exemptions, the parties who were required to report may face civil liability under both state and federal law and criminal charges under federal law.1189
B. State and Federal Agency Authority Over Contaminated Sites: Investigation and Cleanup of Contaminated Sites As noted above, most cleanups in Wisconsin occur pursuant to the Spill Law. In most cases, compliance with the Spill Law also satisfies CERCLA requirements. Thus, to a much lesser extent, EPA will be involved pursuant to CERCLA at some extremely contaminated Wisconsin sites or sites with certain substances such as PCBs. Both CERCLA and the Spill Law generally obligate EPA and DNR to: (1) identify contaminated sites and responsible parties, and (2) ensure contaminated sites are remediated pursuant to the applicable cleanup standards (discussed further below), whether performed by the responsible party or the agency.' lgO Once a discharge or release of a hazardous substance has been reported and the applicable agency determines that a contaminated site needs to be further investigated or cleaned up, in most cases the responsible party(s) identified by the agency will be obligated to: (1) investigate and/or cleanup the site at its own cost with oversight from the applicable agency, or (2) pay for part or all of the cost of investigation and/or cleanup performed by the agency. As used in this
'IR7 lIs8 'Is9 '19
Wis. Admin. Code $ NR 706.07(2)(b)2. Wis. Admin. Code $ NR 706.07(2)(b)3. Wis. Admin. Code (j NR 706.07(2)(b)4. 42 U.S.C. (j 9603(b); see also United States v. Goodner Bros. Aircraft, Inc., 966 F.2d 380 (8th Cir. 1992). 42 U.S.C. (j(j 9604,9606; Wis. Stat. $5 160.03,289.06,292.11,292.31.
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater context, "cleanup" may include identification, location, monitoring, containment, removal or disposal of a hazardous substance that has been released or discharged. There are numerous C E R C L A , " ~ ~imposing administrative regulations implementing the Spill ~ a w " ~ and ' procedural and substantive requirements for the investigation and cleanup, including immediate emergency actions, removal actions and remediation. C. Cleanups Under the Spill Law
Both the Spill Law and CERCLA provide for short-term and long-term responses to cleanup or mitigate contamination. Generally speaking, short-term responses involve stopping the discharge and/or minimizing the immediate harm contamination may pose to people and the environment. Long-term responses typically include more involved processes to treat and/or remove contamination so that the environment will eventually be returned to its natural condition (or as near thereto as possible). 1. Immediate and Interim Actions Under the Spill Law Under the Spill Law, the short-term responses to contamination are referred to as immediate and interim actions.1193An immediate action is required "to halt a hazardous substance discharge or environmental pollution and to minimize the harmful effects of the discharge ....9,1194 Immediate actions are further broken down into emergency and non-emergency immediate actions. A responsible party will be required to take "all necessary, emergency immediate actions" if a hazardous substance discharge poses "an imminent threat to public health, safety or
"9' 'I9'
Wis. Admin. Code chs. NR 708-750 (2005). 40 C.F.R. parts 300-374. Wis. Admin. Code ch. NR 708. Wis. Admin. Code ยง NR 708.05(1).
Chapter 11 Contanzination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater 731
welfare or the environment.
195
A responsible party will be required to take "all necessary non-
emergency immediate actions ... to minimize the harmful effects of the discharge to the air, lands and waters of the state" if the discharge does not pose an imminent threat."96 After halting the discharge in either an emergency or non-emergency immediate action, a responsible party must submit a "no further action" report to the DNR regardless whether a subsequent long-term remedial action may be required to further clean up the ~ontamination."~~ While an immediate action generally involves the halting of a discharge, an interim action aims to "contain or stabilize a discharge" to prepare for further investigation and long-term cleanup.H98Interim actions can include, for example, restricting public access to the site, conducting source removal such as excavation or constructing temporary engineering controls."99 2. Site Investigation and Remedial Actions Under the Spill Law Following the halting of any immediate threat of a discharge by way of an immediate or interim action, the actual cleanup of a contaminated site, often referred to as "remedial action," will be subject to either categorical or site-specific standards. A list of potential remedial actions will be developed and considered based on guidance from both soil and groundwater standards included in the Wisconsin Administrative Code (discussed in further detail below). In most cases, the agency leading or overseeing a cleanup will be DNR. In certain cases involving contamination caused by petroleum, the Wisconsin Department of Commerce (Commerce) will
Wis. Admin. Code 9 NR 708.05(2). Wis. Admin. Code 5 NR 708.05(3). 'I9 W ~ SAdmin. . Code $9 NR 708.05(2)-(3) and 708.09. "" Wis. Admin. Code $ NR 708.1 l(1). Iw9 wis. Admin. Code NR 708.1 l(2). "9s
"I'
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
also have authority over cleanup, and sites with agricultural chemicals will involve the Wisconsin Department of Agriculture, Trade and Consumer Protection. The Spill Law interacts with the Petroleum Environmental Cleanup Fund Act (PECFA)~~" to vest authority in both DNR and Commerce over the cleanup of petroleum contamination.12" Under PECFA and the Spill Law, the division of authority between Commerce and D N R ' ~ 'is~ as follows: Commerce is responsible for payments from the PECFA reimbursement fund (discussed in more detail and the end of Section IV below) and oversight of cleanups at petroleum tank discharges that do not include high risk factors;1203DNR is responsible for establishing investigation and remedial action requirements at high-risk petroleum tank discharge sites.1204 Wisconsin Administrative Code chapters Comm 46 and NR 746 are identical administrative rules that include requirements for standards to be applied by both agencies for administration of cleanup at petroleum-contaminated sites. a. Spill Law Site Investigation and Development o fRemedial Action Plan
A responsible party will often be required to conduct a site investigation to further define the scope and extent of contamination prior to considering any proposed remedial action options.'205 Once a site investigation has been completed, DNR regulations require the identification and 1200 Wis. Stat. $9 101.142-101.144; Wis. Admin. Code $$ Comm 47.01-47.71 (2005). A good overview of the PECFA program and its requirements is located at h t t v : / / c o m m e r c e . w i . ~ o v / E R v d E / v e c f a / i e w /04-04).pdf. I2O' Studies suggest that between 1990 and 1999, approximately 25 million gallons of petroleum were released through petroleum consumption. This constitutes 85% of all anthropogenic releases to North American marine waters. Of this, 54,000 tons (or 65%) come from land-based petroleum use that enters the ocean through rivers and runoff "[Slmall but frequent and widespread releases contribute to the overwhelming majority of the petroleum that enters the sea due to human activity." Indeed, "[elighty percent or more of the USTs in small towns are made of unprotected steel; these tanks are prone to leaking after as little as ten years in the ground." 1202 WDNR, Petroleum-Underground Storage Tank (UST) and Leaking Underground Storage Tanh (LUSlJ, available at httv://dnr.wi.gov/org/aw/rr/cleanuv/ust lust.html#overview. I2O3 Wis. Stat. $ 101.144; see Wis. Admin. Code ch. Comm 47. 1204Id. 1205 Wis. Admin. Code NR 716.05.
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
evaluation of remedial action options.'206Typically a responsible party will perform an initial screening of remedial technologies that "are reasonably likely to be feasible for a site or facility.,31207 Once a set of remedial action options has been developed based on the screening, those options are then evaluated according to technical feasibility and economic feasibility. In determining technical feasibility, the responsible party must look at the long-term effectiveness, short-term effectiveness, implementability and restoration timefiame.'208 In determining economic feasibility, the responsible party looks at, among other things, the capital costs, the design and testing costs, the annual operation and maintenance costs and the costs associated with potential future liability.1209All determinations of feasibility (or the lack thereof) must be documented appr0priate1y.I~'~ If (and only if) a remedial action will achieve the most stringent soil and groundwater standards under the DNR regulations (i.e., those that do not require ongoing monitoring or institutional controls), the responsible party may choose which remedial action to take.1211 Typically, however, a remedial action will not immediately achieve the most stringent DNR standards. Remedial actions in such cases will be subject to the approval of and ongoing oversight of the applicable agency. (i) Wisconsin Soil Standards Wisconsin Administrative Code chapter NR 720 sets forth soil rernediation standards: numerical values or calculation methods for specific compounds that represent concentrations of
Wis. Admin. Code Ij NR 722.07. Wis. Admin. Code Ij NR 722.07(2). I2O8 Wis. Admin. Code Ij NR 722.07(4)(a). 1209 Wis. Admin. Code Ij NR 722.07(4)(b). l2I0 Wis. Admin. Code 9 NR 722.05(4). '2L1Wis. Admin. Code Ij NR 722.09. I2O6 I2O7
Chapter 1I Contantination Cleanup: Regulating Removal and Renzediation of Hazardous Substances in Soil and Groundwater
contaminants that can remain in the soil following remedial action.1212There are several different ways to accomplish soil remediation of varying levels with commensurate ongoing obligations. If, for instance, it is possible to contain the soil contamination by covering it up or paving over it, such paving or covering of the contamination may be al10wed.l~'~ However, if the contamination has already reached the groundwater, more stringent and expensive control measures are often required (see discussion of groundwater standards in the following paragraph).'2'4 The soil standards also permit a range of concentration limits and calculations for certain pollutants (for example, petroleum), and DNR may allow higher concentrations to remain on site if (1) use of the property doesn't warrant a higher cleanup standard (i.e., residential versus industrial), and (2) certain ongoing monitoring and/or "institutional controls" continue to ensure the contamination remains ~ontained.'~'~ If the site meets the most stringent soil standards after remediation, DNR generally cannot require M h e r action except under exceptional circumstances.1216 (ii) Wisconsin Groundwater Standards DNR's Enforcement Standards for groundwater are numerical values for contaminant concentrations that pose a threat to public health and welfare.1217Unlike soil standards which are exclusively developed by DNR, groundwater Enforcement Standards are based on federallydetermined contaminant limits for specific compounds, including consideration of health risk and other factors. If no federal contaminant limit has been established for a specific compound, the 1212 Wis. Admin. Code ch. NR 140 sets forth groundwater guidelines, as discussed further in the following paragraph. l 2 I 3 Mark F. Giesfeldt, Applications of Soil Performance Standards Guidance (What is the level of soil contamination that is required to be addressed, and hence, could be addressed through the use of a soil performance standard at closure?), at 1 (WDNR Guidance Memo. Oct. 8,2001), available at httv://dnr.wi.novlordawlrrlarchives/~ubslRR676.udf. I 2 l 4 ~ dat. 2. 1215 See Wis. Admin. Code (i NR 720.19(1). I 2 l 6 Wis. Admin. Code (i NR 720.05(3). 1217 Wis. Stat. (i 160.01(2).
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
State may establish its own Enforcement standard.l2I8Guidelines and standards for groundwater are established in chapter 160 of the Wisconsin Statutes and chapter NR 140 of the Wisconsin Administrative Code. See Chapter 7 for a more detailed discussion of the groundwater laws and requirements. DNR is required to establish by administrative rule a Preventive Action Limit (PAL) for each contaminant for which a groundwater Enforcement Standard is e~tab1ished.l~'~ The PAL is a contaminant limit that is less stringent than the groundwater Enforcement Standard and is intended as a warning level to allow action to be taken prior to violation of the Enforcement standard.lZz0The regulations establish a goal of achieving the PAL limits; however, if achieving the PAL is determined not to be economically or technically feasible, the DNR will allow contamination to exceed the PAL limits if below the Enforcement standard.lZ2' Indeed, NR 140 and 726 allow flexibility in the level of groundwater remediation that may be required. Remediation of contaminated groundwater is sometimes less cost effective than soil remediation. Thus, DNR sometimes does not require full remediation of groundwater by active methods (i.e., removal and treatment). Rather, methods that reduce contamination over time are often utilized. Natural attenuation is one important method relied upon to clean up residual contamination after the source of the contamination is removed (usually the source is in the soil).1222Natural attenuation is a method of cleaning up contaminated groundwater by making use of natural processes in soil and groundwater to contain the spread of contamination and to
12's Wis.
Stat. ยง 160.09. Wis. Stat. 9 160.23. '220 Wis. Stat. 9 160.01(6). 12" Wis. Admin. Code 9 NR 140.02(3) 1222 Wis. Admin. Code ch. NR 746. ''I9
Chapter 11 Contam ination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater reduce the amount of contamination over time.'223Natural attenuation is an in situ treatment method-meaning
contaminants are left in place while natural processes break them down over
time. It is important to note that since groundwater contamination is harder to eliminate in a short period (and may involve natural attenuation over a number of years), a responsible party may have ongoing groundwater remediation obligations for years to come even though able to achieve completion of soil remediation.
3. Case Closure Under the Spill Law After a responsible party completes an environmental cleanup in accordance with an approved remedial action plan (RAP) the party can request case c10sure.l~~~ Case closure is not a guarantee that the responsible party will not face future liability or be required to conduct future cleanup activities. For petroleum-contaminated sites, case closure will be subject to either DNR's or Commerce's approval, depending on which agency oversees the site.1225Once a responsible party has fully completed investigation and the agency-approved RAP, the responsible party can request case closure and the applicable agency will issue a closure letter if the criteria for closure have been met. In many instances, institutional controls (e.g., deed restrictions upon future types of use) are sufficient to obtain case closure when residual soil or groundwater contamination Usually case closure involves DNR issuing a no further action letter. DNR's website also indicates a responsible party can go a step beyond a case closure letter for added comfort by requesting a VPLE (discussed in the following section): "A case closure with an optional, fee1223 Wis. Stat. (j 101.143(l)(cq) defines "natural attenuation" as "the reduction in the concentration and mass of a substance, and the products into which the substance breaks down, due to naturally occumng physical, chemical and biological processes." '224 Wis. Admin. Code ch. NR 726. This form is available at h~://dnr.wi.gov/org/aw/~/archives/pubs/4400-202.pdf. '225 Wis. Admin. Code ch. Comm 46. 1226 TOlearn more about institutional controls, see WDNR, Guidance on Case Closure and the Requirementsfor Institutional Controls and VPLE Environmental Insurance (Aug. 2005), available at ht@://dnr.wi.gov/or~aw/rr/ archives/vubs/RR606.~df
Chapter 11 Contantination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
based Certificate of Completion ensures that DNR will not require the property owner, or future property owners, to conduct any additional investigation or cleanup for that incident after the certificate is issued." (Certificates of Completion are discussed in the following section.)1227 4. Voluntary Party Liability Exemption Under the Spill Law
Any business, individual or local government can request the DNR issue it a Voluntary Party Liability Exemption (VPLE) for a contaminated site, limiting the liability of the person to whom the VPLE is
The Legislature enacted the VPLE to allow owners and prospective
purchasers of contaminated sites and certain types of landfills to establish a finite limit to their liability, encouraging redevelopment of contaminated properties without fear of future liability. In 2006, the Wisconsin Legislature passed Senate Bill 546, expanding the types and number of sites eligible for VPLE treatrnent.lZz9Any person who submits an application to obtain the exemption and pays the associated fees can be considered for the V P L E . " ~TO ~ qualify, the applicant must conduct (at its own expense) a DNR-approved investigation and, if necessary, cleanup plan, typically involving some or all of the investigation and cleanup activities discussed above. Once completed in accordance with the approved plan, the applicant will receive a Certificate of Completion exempting the holder from future liability for any contamination existing on the property at the time the Certificate is issued (future discharges may lead to further liability).1231A Certificate of Completion also provides protection from liability: (1) even if the
Cleanup, available at httv:lldnr.wi.~ovlordaw/~/cleanuv/index.htm. Wis. Stat. 292.15. 1229 2005 S.B. 546, enacted as 2006 Wis. Act 418. Wis. Stat. 5 292.15(1)(f). 1231 Wis. Stat. (i 292.15(2). The Certificate of Completion may impose conditions, such as requirements as to monitoring and ongoing actions to maintain the property. See also Robert Hersh & Kris Wernstedt, The Brownfield Bargain: Negotiating Site Cleanup Policies in Wisconsin, at 28 (Discussion Paper. Resources for the Future. Washington, DC. Dec. 2003), available at http://www.cveo.or~/vubs/RFF-DP-03-52.pdf. 1227 WDNR,
12"
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
environmental standards change;1232(2) the cleanup action overseen and approved by DNR fails;12)' (3) the contamination is discovered to be of a larger scale than originally estimated;'234 (4) any person, not the voluntary party, who owns or controls the property fails to maintain and monitor the property as required;'235or (5) a party that is not the voluntary party, but who owns or controls the property, does not allow the DNR or any other authorized party to enter the property to determine whether natural attenuation of the contamination failed.1236 The Certificate of Completion is fully assignable to any successor owner so long as the successor owner continues to satisfy the DNR imposed conditions. The VPLE prevents not only DNR fi-om instituting any further actions based on the contamination covered by Certificate of Completion, it may also protect against actions under CERCLA. For example, as discussed above, so long as EPA has pre-approved the state program governing the cleanup of the contaminated site, EPA generally cannot and will not assert jurisdiction over the site.
D. Cleanups Under CERCLA CERCLA generally requires two types of actions in responding to a release of a hazardous substance: removal actions and remedial actions. Like the Spill Law, removal actions are aimed at addressing "substantial" threats to humans and the environment in the short-term, and remedial actions are aimed at achieving long-term results to reduce or eliminate contamination. Also like the Spill Law, ultimately the cleanup of a site will be based on a remediation plan approved by EPA. Wis. Stat. 5 292.15(2)@)1. Wis. Stat. Ej 292.15(2)@)2. '234 Wis. Stat. Ej 292.15(2)@)3. '235 Wis. Stat. Ej 292.15(2)(b)4. '236 Wis. Stat. Ej 292.15(2)(b)5. '232 '233
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater 1. CERCLA Removal Actions
CERCLA requires removal actions when contamination threatens health or the environment and removal must be done promptly to eliminate or minimize the threat.1237Typical removal actions include removing drums and/or contaminated soil, or providing alternative sources of drinking water to a community. 2. CERCLA Remedial Actions
Remedial actions are longer-term, more comprehensive cleanup actions. Similar to remedial actions under the Spill Law, CERCLA remedial actions may include treating contaminated soil, pumping and treating groundwater over a number of years, containing contamination by capping (i.e., covering the contamination) or the utilization of a variety of other techn010~ies.l~~~ Also like the Spill Law, typically before remedial action is commenced, a site investigation will be required. a. Preliminary Site Assessment and Evaluation for Listinn as Suverfund Site EPA has established procedures for investigating contaminated sites, beginning with a "preliminary asse~sment'~-a basic examination of a contaminated site-with
a goal to determine
whether and to what extent the site poses a threat to human health.'239 If the inspection reveals the site poses a significant threat to human health, further site inspection will be required.'240No further investigation will be required if the site is deemed to pose little threat to human health.1241
42 U.S.C. 9 9604(a). 42 U.S.C. $ 9601(24). '239 40 C.F.R. 9 300.430. The EPA publication, Guidancefor Pei$orming Preliminary Assessments Under CERCLA (NTIS PB92-963303, EPA 9345.0-01A) (Sept. 1991), provides more information on conducting a preliminary assessment. 1240 42 U.S.C. 9 9604(b). The EPA publication, Guidancefor Pei$orming Site Inspections Under CERCLA; Interim Final (NTIS PB92-963375, EPA 9345.1-05) (Sept. 1992), provides more information on conducting a site investigation. 1241 Id. '237 '238
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
EPA uses the data collected in a site inspection to assign a score under the "Hazard Ranking System" (HRS), utilizing a complicated formula based on the following factors:I2" The likelihood that the site has released or will release hazardous substances into the environment; The harmful characteristics of the waste at the site; Whether there are people or sensitive environments affected by the release of the waste; and The medium by which people will be exposed to the waste'243(i.e., groundwater, surface water, soil or air). If a site receives an HRS score of 28.5 or higher, it is eligible to be placed on EPA7sNational Priorities List ( N P L ) . ' ~The ~ ~NPL is, as its name suggests, a listing of the sites that the EPA has deemed to be of the highest priority for cleanup and r e m e d i a t i ~ n . 'These ~ ~ ~ sites are also commonly referred to as ''Superhnd Sites." A site can also be placed on the NPL if it is designated as a top priority site by a state or territory (regardless of the HRS score)'246or if the site meets all of the following conditions:'247 the Agency for Toxic Substances and Disease Registry of the U.S. Public Health Service has issued a health advisory and a recommendation to remove all or some people from the site; the EPA determines that the site poses a substantial threat to public health; and the EPA anticipates it will be more cost-effective to use its remedial authority (available only at NPL sites) than to use its emergency removal authority to respond to the site.
1242 42 U.S.C. (j 9605; 40 C.F.R.part 300. Hazard Ranking System; Final Rule, 55 Fed. Reg. 51532 (Dec. 14,1990). For more information on the Hazard Ranking System, visit ht~://www.e~a.~ov/su~e~nd/~romams/npI hrsl hrsint.htm. 1243 42 U.S.C. $ 9605(a)(8)(A). '244 U.S. Department of Energy Hazard Ranking System Document, available at htt~://www.eh.doe.gov/oeva/ guidance/cercla/hrs.vdf. 1245 Id. '246 42 U.S.C. $ 9605(a)(S)(B); 40 C.F.R. $ 300.425(~)(2). '247 40 C.F.R. $3 300.425(c)(3)(i)-(iii).
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
As of October 11, 2006, there were 1,243 sites listed on the NPL and sixty-one (61) proposed sites.1248 Thirty-seven (37) of these sites are in Wisconsin, the tenth highest in the country.1249
b. Remedial Investination and Feasibility Study If a site is listed on the NPL, EPA will conduct a remedial investigation and a feasibility study ( R I I F S ) . ' ~In~ cases ~ where a site is not listed on the NPL, or if a responsible party has entered into an agreement with EPA to voluntarily conduct the investigation and cleanup itself, EPA will allow a responsible party to conduct the RIIFS with oversight by EPA and other interested parties.'25' The RIIFS provides additional data that allows the EPA to further evaluate: (1) the potential threat the site may pose, (2) whether the site is "treatable," and (3) remedial action options.'252 The RIIFS is generally conducted concurrently in the following phases:'253(1) "scoping'the process of collecting existing site data to determine the basic characteristics of the site and the hazardous substances (i.e., boundaries, contaminants present, e t ~ . ) ; " ~(2) ~ "site characterization"-sampling
and analysis of the hazardous substances, as well as in the other
media such as soil, air, water, etc., to determine the feasibility of potential remedial strategies;'255 (3) develop and consider alternative remedial actions based on EPA's identified remedial action
objectives, considering probable effectiveness, practicality and
and (4) "detailed
'248~nited States Environmental Protection Agency, National Priorities List. Updated version available at httv://www.eva.~ov/suverfund~sites/nvWnvl.htm. Last checked Oct. 11,2006. 1249 Id. There is also one site proposed to be added to the Wisconsin list and six sites that have been removed. '250 40 C.F.R. 9 300.430. '251 42 U.S.C. $9 9604 and 9622. '252 40 C.F.R. 3 300.430. 1253 Id. '254 40 C.F.R. $300.430(b). '255 40 C.F.R. 9 300.430(d). '256 40 C.F.R. Q 300.430(e)(9).
Chapter I 1 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater analysis phase"-the
determination of which remedial strategy is most likely to achieve its goals
based on the following criteria:1257 Protection of human health and the environment Compliance with Applicable or Relevant and Appropriate Requirements (ARARs) Implementability Short-term effectiveness Reduction of toxicity, mobility or volume through treatment Short-term effectiveness and permanence Cost State and community acceptance EPA primarily relies on its agency guidance (or an agency "policy") to evaluate soil and groundwater contaminants.'258 EPA7s guidance on soil and groundwater standards include a multitude of factors it considers in selecting a remedial action. 3. Completion of Remediation and No Further Action Letters Under CERCLA
Once EPA has determined the appropriate remedial action following the RIIFS process, prior to implementation, the public and all interested parties must have the opportunity to make comments about the RIIFS and remedial action ~e1ected.l'~~ If remediation is voluntarily conducted by a responsible party, upon completing compliance with the EPA-approved remedial action plan, the EPA will usually issue a "No Further Action Letter" upon request (NOFA
C.F.R. $9 300.430(9 and 300.430(e)(9)(iii). 42 U.S.C. $ 9621 (setting forth "cleanup standards");see, e.g., 40 C.F.R. part 192 (Health and Environmental Protection Standards for Uranium and Thorium Tailings); see EPA Soil Screening Guidance, available at httr>://www.epa.~ov/suverfund/resources/soil/index.htm; key OSWER groundwater guidances and reports available at httr>://www.e~a.~ov/suverfund/resources/p;wdocs. '259 42 U.S.C. (i 9617; 40 C.F.R. $4 300.430(~)(2)(ii)(A)and (C). See also Sherwin-Williams Co. v. City of Hamtramck, 840 F. Supp. 470,476 (E.D. Mich. 1993). 1257 40 12"
Chapter I 1 Contantination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
Letter). EPA issues NOFA letters as a matter of policy, not statute or regulation. NOFA letters do not provide a guarantee that EPA will not proceed against the responsible party in the future and does not provide any asserted limitation on future liability.'260However, as matter of practice, typically EPA will not proceed against or seek to impose liability once a responsible party has been issued a NOFA letter.
4. Voluntary Cleanups Under CERCLA CERCLA expressly authorizes and encourages the EPA to enter into voluntary settlements with responsible parties for CERCLA
violation^.'^^' Generally, a voluntary settlement with EPA
will require conducting investigation and cleanup actions approved by EPA, and will involve the investigation, removal and remedial activities discussed above. The process under CERCLA is considerably more involved than under the Spill Law. In most cases, except for where the responsible party is only a de minimis contributor to contamination, any proposed settlement EPA wishes to enter into must first go through a public comment period.'262In addition, except for de minimis cases, settlement agreements under CERCLA must be in the form of a formal consent decree setting forth the requirements imposed on the responsible party, and including EPA's covenant not to sue if the responsible party meets all its 0 b 1 i ~ a t i o n s . l ~ ~ ~ Chet Clarke, Texas Natural Resource Conservation Commission, No Further Action Letters In Risk-Based Department of Energy, Office of Corrective Actions, available at httv://www.eva.~ov/OUSTlrbdm/nfalettr.htm; Pollution Prevention and Resource Conservation Policy and Guidance (EH-43), CERCLA Remedial Action Site Closure Guidance, available at h t t v : N h o m e r . o r n l . g o v / n u c l e a r s a f e t v / n s e a / (this is a draft document currently being prepared and not yet final). See also Close Out Procedures for National Priorities List Sites (OSWER Directive 9320.2-09A-P) (Jan. 2000), available at http://www.epa.g.ov/suverfund/ resources/closeout/index.htm (applicable to Superfund sites). '261 42 U.S.C. Ej 9622. 42 U.S.C. Ej 9622(d). Id. EPA's website defines a consent degree as a "Judicial agreement between the Federal government and the Potentially Responsible Parties (PRPs) fully or partially settling a claim under CERCLA. This agreement may settle litigation or may be presented concurrently with the complaint (achieved through negotiations). The agreement may be for response work, cost recovery, or both." http://oasvub.eva.rzov/enviro/cerclis web.action definition? action code=CD.
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of' Hazardous Substances in Soil and Groundwater E. Funding Cleanups
There are many programs at both the state and federal level that have been established for the purpose of ensuring that there is adequate funding for the cleanup of contaminated sites. These programs provide funding through two primary mechanisms: "revolving funds" and grants providing reimbursement to parties who conduct cleanups themselves. 1. "Revolving Funds" A revolving fund operates by first raising a large sum of money, then dispersing funds to clean up contaminated sites. After the sites have been cleaned up, if the parties that were originally responsible for the contamination can be found and have the financial resources, they may be required to reimburse the fund for costs associated with the cleanup. In this sense, the money in the fund is "revolving" between the fund accounts and being put to use by parties cleaning up contaminated sites. a. The Wisconsin Environmental Fund
Inevitably there are times when no responsible party can be found, or the responsible party is financially unable to clean up a site. In response, the Wisconsin Legislature created the Environmental Repair Appropriations Fund (Wisconsin ~ u n d ) for ' ~ ''sites ~ ~ (1) where there is known or suspected contamination that is causing a threat to human health or the environment; and (2) where a responsible party (RP) is not cleaning up contamination because the RP is unknown, the department has not demonstrated the RP7s responsibility, the RP does not acknowledge responsibility, or the RP is unable or unwilling to proceed."'265 During 2001 and
'265
Wis. Stat. $ 20.370(2)(dv). WDNR, State Funded Response, available at httv://dnr.wi.~ov/org/aw/rr/cleanuv/statefunded.htm.
Chapter 11 Contan1ination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
2002, the Wisconsin Fund provided about $2.5 million for investigating and cleaning up approximately 60 sites statewide.1266 Similar to CERCLA's Superfund (discussed next), the Wisconsin Fund finances many different activities including "site investigations, design and installation of multi-million dollar landfill caps, provision of emergency water to residents with contaminated wells, installation of treatment systems to remove pollutants from groundwater, contracts for construction oversight, operation and maintenance of treatment facilities, and other remediation activities.,91267 In deciding whether to take action at a particular site, the statute mandates that, except in cases of emergency, DNR must consider: the significance to public health, the community, and the environment of each site or facility, the amount of finds available, the information available about each site or facility, the willingness and ability of an owner, operator, or other responsible person to undertake or assist in remedial action, the availability of federal finds under 42 USC 9601, et seq., and other relevant factors. The department shall give the highest priority to remedial action at sites or facilities which have caused contamination of a municipal water system.1268 In cases of emergency, DNR may take immediate action without consideration of these factors if a delay in response would result in "imminent risk to public health or safety or the environment.,91269
b. CERCLA 's Superfund The best and probably most famous example of an environmental revolving fund is the one under CERCLA-the
~ u ~ e r f u n dThe . ' ~ purpose ~~ of CERCLA7s Superfbnd is to provide a
mechanism to locate and facilitate the cleanup of the worst hazardous waste sites in the country and to assure that "those responsible for any damage, environmental harm, or injury from 1266 Id.
1267 Id.
Wis. Stat. ยง 292.31(3)(c). Wis. Stat. 8 292.31(3)(d). 127042U.S.C. S; 9611; 26 U.S.C. 9: 9507.
'268
1269
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater chemical poisons bear the costs of their actions.,31271 Provided a site meets the criteria for being listed on the National Priorities List, EPA can use the Superfund to clean up the site and then later seek to recover the costs incurred from the responsible party(s). Because the Superfund is no longer funded by an influx of revenue from taxes on chemicaland petroleum-based businesses,'272the recovery of spent funds (or the "revolving" of money back into the fund) has become more important. If EPA finances a cleanup using the Superfund, it must follow certain procedures, may only incur specified types of costs and must seek reimbursement of costs from the responsible parties.'273 2. Grant and Reimbursement Programs Under certain circumstances, specified parties can receive grants which provide reimbursement for some or all costs incurred in cleaning up and redeveloping contaminated properties. In some grant programs, funds are only available to those who did not cause or control contamination. However, several Wisconsin grant programs do provide funding to those who may have had a role in the contamination. One universal requirement of each of these programs is that the party requesting funding must have timely notified the DNR of any discharge. '274
'27' Uniroyal Chemical Co. v. Deltech Corp., 160 F.3d 238 (5th Cir. 1998) (quoting Senate Report No. 96-848 at 13 (1980)). 1272 Initially, the Superfund was funded by a tax on chemical- and petroleum-related businesses. The revenue generated by this tax was set aside into a fund to be used to pay for cleanup of the hazardous sites. In its first five years, this fund grew to over $1.6 billion (the large amount of money in the fund is the source of the nickname "The Superfund"). In 1986 the Superfund Amendment and Reauthorization Act (SARA) was passed, and the Superfund swelled to $8.5 billion. However, SARA contained a sunset provision and the taxes that provided new (i.e., not "revolving") income to the Superfund expired in 1995. Now, little new revenue is added to the fund because the only taxes that contribute to the Superfund at this time come from small appropriations from general taxation. '273 42 U.S.C. 9 9612. 1274 Wis. Admin. Code $5 NR 169.01 and 169.05.
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater a. Petroleum Environmental Cleanup Fund Act (PECFA)
PECFA primarily operates as a reimbursement program, providing funding to owners of eligible petroleum-product systems to pay for a portion of cleanup costs related to releases fiom underground and above-ground storage tanks (USTs and ASTS).'~~' Funding for the PECFA program comes from a $0.02 per gallon petroleum inspection fee1276and other appropriations specified by the Wisconsin ~ e ~ i s 1 a t u r eWhile . I ~ ~ ~PECFA provides financial assistance for cleaning up petroleum spills, it does not relieve responsible parties from liability for petroleum contamination or lessen cleanup obligations should PECFA funding be inadequate to complete remediation: "The PECFA fund does not relieve a responsible party from liability. The individual or organization responsible for a contaminated property shall carry out the remediation of that property .... The availability or unavailability of PECFA funding shall not be a determining factor as to whether a remediation shall be completed.7,1278 One of the most important responsibilities Commerce has in the administration of PECFA is issuing awards after eligible costs have been incurred.'279 Owners of the following may be eligible for reimbursement: (a) commercial USTs and ASTs with a capacity of 110 gallons or more; (b) farm and residential vehicle fuel tanks storing more than 1,100 gallons of petroleum products that are not for resale; (c) home heating oil systems; and (d) certain other farm vehicle fuel tanks, public school district and technical college tanks, and certain tanks on trust lands of an American Indian tribe.1280The responsible party must ensure that costs are minimized.1281
1275Wis.
Stat. 9 101.143(4)(a).
htff)://commerce.wi.gov/ER-PECFA-Home.htm1. 1277Wis.
Stat. rj 20.143(3)(v). rj Comm 47.01(3). 1279Wis. Stat. 5 101.143; Wis. Admin. Code !j Comm 47. 12'0 Wis. Stat. 9 101.143. 1278Wis. Admin. Code
Chapter I I Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
Commerce pays PECFA claims on a first-in, first-out basis for completed cleanup actions (or phase thereof), providing progress payments where multiple discrete phases are inv01ved.I~~~ PECFA establishes maximum awards per petroleum leak occurrence.'283The amount of funding available for reimbursement under PECFA has decreased over the years. For example, for a standard petroleum cleanup site for an underground tank where the cleanup began prior to December 22,2001, there was a maximum per occurrence award of $1,000,000 in PECFA funds. The same site as of the date of writing this chapter would only be eligible for a reimbursement of up to $190,000 per occurrence. '284
b. Wisconsin Anricultural Chemical Cleanup Pronram The Wisconsin Agricultural Chemical Cleanup ~ r o g r a m(ACCP) ' ~ ~ ~ was created to help ease the financial burden associated with cleaning up agricultural chemical contamination (e.g., from a fertilizer or a non-household pesticide).'286 The Department of Agriculture, Trade and Consumer Protection (DATCP) administers ACCP. DATCP accepts applications for reimbursement from responsible parties submitted within three (3) years of incurring cleanup Only "reasonable and necessary" costs are eligible for r e i m b ~ r s e m e n t 'including, ~~~ among other things, costs of consultants, sampling and analyzing (for soil and groundwater), installation of monitoring wells, and the removal or treatment of contaminated soil or
Wis. Admin. Code $9 Comm 47.01(4)-(5). Wis. Admin. Code $$ Comm 47.0 15(39) and 47.355(2)(c). See Mews v. Department of Commerce, 2004 WI App 24,269 Wis. 2d 641,676 N.W.2d 160 (discusses commingling of plumes constituting one occurrence). '284 Wisconsin Department of Commerce Brochure, Information About PECFA Reimbursement, at 8, available at lZ8'
'282 See 1283
httD:llcommerce.wi.nov/ERvdE/~ecfa/ER-PECFA10083-New-9-06.vdf. '285
Wis. Stat. 9 94.73.
1286 Id. '287 '288
Wis. Stat. $94.73(3)(a). See Wis. Stat. 9 94.73(3m).
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
groundwater.'289ACCP does not reimburse for attorneys' fees, loss of income, and costs to replace the spilled chemicals.'290 ACCP allowed for a reimbursement rate of 80% of eligible costs between 1998 and 2003, capped at $400,000. As amended in 2003, ACCP reimbursement was reduced to 75% of eligible costs incurred on or after January 1, 2004, so long as greater than $3,000 and less than $400,000.'291Importantly, the reimbursement cap applies to a site as a whole regardless of how many responsible parties helped clean it
and if one of those responsible parties requests
reimbursement, it must inform all other responsible parties that helped (or may be liable for a contribution claim if it does not).1293The party applying for ACCP funds must pay a deductible of either $3,000 or $7,500, depending on the type of business doing the cleanup.'294 c.
The Dw Cleaner Environmental Response Fund
The DNR also administers the Dry Cleaner Environmental Response Fund ( D E R F ) . ' ~ ~ ~ DERF helps dry cleaners pay for the cost of cleanup following the discharge of a "dry cleaning product" at a "dry cleaning facility.9,1296 Cleanups conducted under this program must comply with both the Spill Law requirements discussed above and applicable DERF requirements.1297 Prior to incurring any costs that may be eligible for reimbursements, a potential claim
'289 W ~ SAdmin. . Code
Cj ATCP 35.04. Stat. 9 94.73(3m); Wis. Admin. Code 5 ATCP 35.14. 12" Wis. Admin. Code 9 ATCP 35.22(1)(a). '292 Wis. Admin. Code Cj ATCP 35.20(1). 1293 Wis. Admin. Code Cj ATCP 35.20(2). '294 Wis. Admin. Code Cj ATCP 35.22. 12" Wis. Stat. Cj 292.65(3)(a). 12" Wis. Admin. Code $5 NR 169.01 and 169.05. '297 Wis. Stat. $ 292.65(4). 1290 Wis.
Chapter I I Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
notification form must be submitted to the DNR project manager, who then assesses the eligibility of the applicant and sends an initial eligibility determination letter.'298 DERF receives about $1 million each year from fees imposed on dry cleaning. Because the demand for funding typically exceeds the amount of fees collected, the statutes provide guidelines for prioritizing reimbursements based on DNR's site ranking applicable to all types of contamination (as discussed above, generally based on the nature and extent of threat to humans and the en~ironrnent).'~~~ The maximum award is $500,000 per facility'300 upon meeting specified dedu~tibles.'~~'
d. Brownfields Grants The Wisconsin Legislature has created a fimding mechanism to encourage the cleanup and redevelopment of Brownfields sites-those commercial facilities or sites-also
that are abandoned, idle or underused industrial or
known as the Blight Elimination and Brownfields
Redevelopment Program (or BEBR).'~'~Commerce administers the BEBR program, including disbursing grants in the total amount of about $7.5 million each year made up of state and federal Anyone that acquires a Brownfields site for redevelopment purposes may be eligible for a Brownfields grant under BEBR, including cities, towns, villages, counties, businesses and i n d i ~ i d u a 1 s .However, l~~~ grants will only be given if the person or entity requesting the grant did not cause the contamination and the responsible party is either unknown, cannot be located or is
12" Wis. Stat. $9 292.65(4)(b)-(c) and @)(a). The claim notification form can be found at http://dnr.wi.gov/org/ w/rr/financial/dr~clean.html. '299 Wis. Admin. Code $ NR 169.15. 1300 Wis. Stat. (i 292.65(8)(f); Wis. Admin. Code $ NR 169.13(1). I3O' Wis. Stat. $ 292.65(8)(e); Wis. Admin. Code $ NR 169.21. 1302 Wis. Stat. $560.13. I3O3 Commerce may not make an award of greater than $1,250,000 to any one person or entity. Wis. Stat. $ 560.13(4). I3O4 Wis. Stat. $ 560.13(1)(g).
Chapter 1I Contantination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
financially unable to conduct a cleanup.'305 In reviewing applications for BEBR grants, Commerce considers: the potential the project will promote economic development, whether it will have a positive effect on the environment, the amount and quality of the applicant's contribution to the project and the innovativeness of the proposal for remediation and redevelopment.1306 Once awarded, BEBR Brownfields grants can typically be used for both remediation and redevelopment activities, including: Investigation, remediation and site monitoring; Costs of acquiring (or buying) the site; Clearing the site, including demolishing buildings, or renovation of existing structures; md Construction of infrastructure improvements (i.e., water and sewer lines).1307 Brownfields redevelopment grants are available at the federal level as well. However, those grants are much more limited than under Wisconsin law, limiting who may receive them. The 2002 Brownfields Reform Act created additional funding for the redevelopment of Brownfields, authorizing Congress to spend up to $200,000,000 per year in 2002 through 2006 to carry out the ' ~ more than $200,000 (or $350,000 in special cases) may go to any purposes of the A C ~ . ' ~NO
single site.1309Those who are eligible for the grants, including specified governmental and quasigovernmental entities,1310 can use the funds for many purposes related to cleanup and
Wis. Stat. (i 560.13(2); Wis. Admin. Code (i Comm 110.03(2). Stat. (I 560.13(3)(a). 1307 Wis. Stat. $9 560.13(1)(b) and (d); Wis. Admin. Code $5 Cornrn 110.02(2) and (4). 1308 42 U.S.C. Q 9604(k)(12)(A). I3O9 42 U.S.C. (i 9604(k)(4)(A)(i)(II). I3l0 42 U.S.C. Q 9604(k). I3O5
I3O6Wis.
Chapter 11 Contamination Cleanup: Regulating Removal and Remediation of Hazardous Substances in Soil and Groundwater
redevelopment of Brownfields sites.13" While the program has enjoyed a certain level of success (since the beginning of the Brownfields program, EPA has awarded 883 assessment
it
has never been fully funded. Although eligible for a total appropriation of $200 million per $169.9 million is the most ever appropriated in one year.
U.S.C. (j 9604(k)(4)(B). ht~://www.epa.~ov/brownfields/archive/vilot arch.htm. 1313 42 U.S.C. 0 9604(k)(12)(A). 13" 42 1312
CHAPTER 12 NATURAL RESOURCES LAW Pamela L. Gergens I. OVERVIEW The practice of environmental law extends well beyond the regulation of hazardous substances and the remediation of contamination to the protection of our country's valuable natural resources. The area of natural resources law includes the protection of public lands and animal and plant life and directly affects the recreational and leisure opportunities available to the average citizen. This chapter focuses on the evolution of environmental law in the area of natural resource preservation. This chapter begins with the discussion of the conservation of land and forest resources with a particular emphasis on public lands in Wisconsin. The chapter then moves to a discussion of endangered and threatened species tracking both federal and state legislation of the preservation of these important natural resources. The chapter then discusses wildlife management, an important topic in Wisconsin given the varied and plentiful wildlife found in this state. Finally, the chapter concludes with thoughts as to working with the regulatory agencies to protect our natural resources to the extent possible. 11. APPLICABLE STATUTES, ADMINISTRATIVE RULES AND CASE LAW A. Public Lands Wis. Stat. ch. 23: Conservation Wis. Stat. ch. 24: Public Domain and Trust Funds Wis. Stat. ch. 29: Wild Animals and Plants Wis. Admin. Code ch. NR 1 : Natural Resources Board Policies
B. Endangered Species 16 U.S.C. $ 1531 , et seq. : Federal Endangered Species Act Tennessee ValleyAuthority v. Hill, 437 U.S. 153 (1978) Wis. Stat. ch. 29: Wild Animals and Plants Wis. Admin. Code ch. NR 27: Endangered and Threatened Species
Chapter 12 Natural Resources Law
C. Wildlife Management Wis. Stat. ch. 29: Wild Animals and Plants
111. DISCUSSION OF APPLICABLE STATUTES AND CASE LAW A. Public Lands The public lands in the United States are as diverse as the citizenry. Lands owned by the federal government or a state are located in all 50 of the United states.1314Mt. McKinley, the highest point in North America, lies on public land as does Death Valley, the lowest point in the United states.I3l5However, public ownership of lands was not always a priority in the United States. During the nineteenth century, a basic policy of the federal government was to encourage westward expansion and settlement through the disposal of public lands.1316It was not until the latter part of the nineteenth century that the federal government began to reserve portions of lands for federal ownership and public use. This public land ownership movement began with the establishment of Yellowstone Park and continues today.1317 This concept was formalized with the creation of the Public Land Review Commission in 1964 whereby Congress declared that it was a policy of Congress that public lands in the United States be retained and managed or disposed of all in a manner to provide the maximum benefit for the general public.131s The State of Wisconsin owns many types of lands which are used for varying purposes. The state constitution authorizes the state to purchase or accept lands for streets, highways, parks, playgrounds, and public buildings.1319 By statute, the state can acquire lands for schools and
1314
Peter S. Menell & Richard B. Stewart, Environmental Law and Policy, at 1075 (Little Brown and Co. 1994). Id. 1316 Id. l3I7 Id. '3'8 43 U.S.C. 9 1391. I3l9 Wis. Const. art. XI, 9 3a. I3l5
Chapter 12 Natural Resources Law
colleges'320and for conservation and recreational purposes.'32' Finally, with limited exceptions, the state owns the beds of navigable waters within the state.'322 The Department of Natural Resources (DNR) also owns and manages land for conservation and public use. DNR has the power to acquire lands or waters suitable for the protection, development and use of forests, fish and game, lakes, streams, plant life, flowers and other outdoor resources within the state.'323DNR can acquire this land through purchase, lease or gift as well as through its powers of ~0ndernnation.l~~~ DNR can also designate lands for game refuges and fish refuges.1325 DNR has the duty of general care, protection and supervision of all state parks and forests and all lands owned by the state or in which the state holds an interest and are not under the care of supervision of another entity.'326One other such entity that owns land for the benefit of the public is the Board of Commissioners of Public ~ a n d s . The ' ~ ~Board ~ of Commissioners of Public Lands safeguards approximately 80,000 acres of Trust Lands for the benefit of the public. These lands are remaining from the nineteenth century land grants to the state from the federal government. The Trust Lands are located primarily in northern Wisconsin and provide income for the state through sustainable timber management as well as public access for recreation. In addition to its duty to care for, protect, and supervise Wisconsin's state parks and forests, the DNR's statutory duties extend, for example, to state natural areas,1328state recreation
Wis. Stat. 5 24.01. Wis. Stat. Ej 23.09(2)(d). '322 See Chapter 5. '323 Wis. Stat. $5 23.09(1) and (2)(d). 1324 Wis. Stat. 5 23.09(2)(d). 1325 Wis. Stat. $5 23.09(2)@)-(c). '326 Wis. Stat. Ej 23.1 1. 1327 See Wis. Const. art. X, EjEj 7-8; Wis. Stat. ch. 24. 1328 Wis. Stat. 9 23.27. '320
'321
Chapter 12 Natural Resources Law areas, 1329 and public hunting and fishing grounds. '330 DNR is also responsible for the portions of state trails, including the Ice Age Trail, located on state lands.1331 To further preserve public lands, the Wisconsin Legislature created the Warren KnowlesGaylord Nelson Stewardship 2000
The Stewardship 2000 Program was created to
preserve the state's valuable natural areas and wildlife habitat, to protect water quality and fisheries, and to expand recreational areas and opportunities. The Stewardship 2000 Program has four main components: (1) land acquisition for conservation and recreational purposes; (2) property development of state lands and local assistance in the form of grants for acquisition and conservation of land; (3) bluff protection; and (4) land acquisition and conversation of the hardwood forest of the Baraboo ~ i 1 l s . lThe ~ ~ Stewardship ~ 2000 Program is funded by the Legislature and makes grants and other financial assistance available for the furtherance of its statutory purposes. The program's successful land acquisitions to date include the addition of approximately 50 square miles of land for conservation purposes in 14 northern Wisconsin counties and the Forest Legacy Easement protecting over 35,000 acres of forestlands in Iron, Oneida, Marathon and Lincoln Counties from being converted to non-forest uses. DNR also has the authority to sell and lease state-owned lands."34 However, only lands that the Natural Resources ~ o a r d determines ' ~ ~ ~ are no longer necessary for the state's use for conservation purposes may be sold.'336 Prior to any sale, the Natural Resources Board must prepare for the governor a complete report of the lands to be sold, the reason for the sale, the Wis. Stat. (j 23.091. Stat. (j 29.617. 133' Wis. Stat. $5 23.17 and 23.175. The Ice Age Trail is a natural scenic and recreational trail for the use of the public that runs from Door County in the eastern portion of the state to St. Croix County in the northwestern portion of the state. '332 Wis. Stat. (j 23.0917. '333 Wis. Stat. 9 23.0917(2). 1334 Wis. Stat. $9 24.1 1 and 24.39. '335 The 7-member Citizen Advisory Board to DNR, appointed by the Governor as provided in Wis. Stat. (j 15.34. 1336 Wis. Stat. (j 23.15. '329
1330 Wis.
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price of the sale and the application for sale.'337The governor then approves or rejects the sale.'338The financial proceeds of any sale of land by the Natural Resources Board are placed in a conservation fund for the exclusive purpose of purchasing other public lands in the future.'339 Certain public lands, however, cannot be sold through this process. Generally, state park lands cannot be sold.'340They may, however, be transferred to a municipality with the approval of the Legislature's Joint Committee on Finance regarding the appropriate level of reimbursement to be received by the state for the transfer.'341Portions of state parks may also be leased. '342 State forests may be sold through the process outlined above; however, they may be sold only to certain parties for certain purposes, and a public hearing must be held prior to the sale. Specifically, they can be sold to a local unit of government for a public use.'343They can also be sold to any party for purposes of making adjustments due to occupancy resulting from survey errors.'344Finally, forest lands can be sold to convey good quality arable land, to settle land title disputes and for public utilities and co-ops for power and telecommunications services.1345 DNR may also grant leases or easements over state owned lands. DNR may not execute, extend or renew any leases for private
However, DNR can enter into leases for
telecommunications towers to be located on state owned lands.'347
Wis. Stat. Q; 23.15(2). Wis. Stat. Q; 23.15(2m). 1339 Wis. Stat. Q; 23.15(4). '340 Wis. Admin. Code 3 NR 1.47. 1341 Wis. Stat. Q; 27.01(3). '342 Wis. Stat. Q; 27.01(2)(g). '343 Wis. Stat. 5 28.02(4)(b). 13'14 Id. 1345 Id. 1346 Wis. Admin. Code 3 NR 1.47. '347 Wis. Admin. Code $3 NR 1.483 and 1.485. '337
1338 Id.;
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B. Endangered and Threatened Species 1. Federal Endangered Species Act
The Endangered Species Preservation Act of 1966 was the first federal program created for the purpose of conserving, protecting and restoring certain species of fish and wildlife. However, this statute had little meat to it and basically urged the protection of these species through directing the Federal Departments of Agriculture, Interior and Defense to preserve habitats of endangered species on federal lands. This statute also authorized these agencies to acquire lands for the purpose of habitat protection. The Endangered Species Conservation Act of 1969 expanded on the 1966 statute by adding to the lists of endangered species and authorizing hnds for land acquisition. It was not until 1973, however, that a comprehensive program to protect endangered species was created. The Endangered Species Act of 1973 (the ESA) was created in response to Congressional findings that various species of fish, wildlife and plants in the United States had been rendered extinct due to economic growth and development and that other species had been so depleted in number that they were in danger of extinction.'348Thus, the purposes of the ESA are to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved, to provide a program for the conservation of such endangered and threatened species, and to take appropriate measures to achieve the purposes of various treaties and conventions for the conservation of fish, wildlife and plant life of which the United States has pledged its participation.'349The ESA further declared that it is to be the policy of Congress that all federal departments and agencies shall seek to conserve endangered and threatened
'348
'349
16 U.S.C. 9 1531(a). 16 U.S.C. (j 1531(b).
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species.i350Like its predecessor, the ESA also authorizes the acquisition of land for the protection of endangered and threatened species.'35i The backbone of the ESA is the creation and implementation of the endangered and threatened species list and the identification of "critical habitat" for those species.1352 A, endangered species is any species that is in danger of extinction throughout all or a significant portion of its range.1353A threatened species is any species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.i354 Finally, critical habitat is defined as the specific areas within the geographical area occupied by the species at the time it is listed on which are found the physical or biological features essential to the conservation of the species and which may require special management considerations or protection.1355Critical habitat can also include areas outside of the geographical area occupied by the species at the time it is listed if those areas are essential for the conservation of the species. 1356 The ESA details several factors to be utilized to determine the listing of a species as endangered or threatened. The presence of any one of the following factors supports the listing of a species as endangered or threatened: 1. the present or threatened destruction, modification, or curtailment of its habitat or range;
2. overutilization for commercial, recreational, scientific, or educational purposes; 3. disease or predation;
16 U.S.C. (j 1531(c). 16 U.S.C. (j 1534. 1352 16 U.S.C. 3 1533(a). 1353 16 U.S.C. (j 1532(6). 1354 16 U.S.C. (j 1532(20). 1355 16 U.S.C. (i 1532(5)(A). 1356 Id. 1350
1351
Chapter 12 Natural Resources Law 4. the inadequacy of existing regulatory mechanisms; or 5. other natural or manmade factors affecting its continued existence.'357
The determination of an endangered species is made solely on the basis of the best scientific and commercial data available at the time the species is reviewed.'358While the determination of critical habitat is also based upon the best scientific and commercial data available, economic impact, national security and "any other relevant impact" are also considered in the determination of critical habitat.1359 Once a species is listed as endangered, the ESA prohibits certain activities involving that species. The ESA prohibits the import into and export out of the United States of any endangered species.1360The taking of any species within the United States, its territorial seas or the high seas is prohibited.1361 Taking is defined broadly meaning to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or even to attempt to engage in any of these activities.1362Further, no one may sell, deliver, carry, transport or ship any endangered species.'363The removal, damage or destruction of any listed plant species from areas of federal or state jurisdiction is also prohibited.1364 As with many rules, there are exceptions. The ESA allows the grant of a permit to allow prohibited acts done for scientific purposes or to enhance the propagation or survival of the affected endangered species.1365In addition, the ESA allows for the grant of a permit for the taking of an endangered species if the taking is incidental to, and not the purpose of, the carrying
16 U.S.C. 5 1533(a)(1). 16 U.S.C. (j 1533(b)(l). '359 16 U.S.C. 9 1533(b)(2). 13" 16 U.S.C. 9 1538(a)(l). 1361 Id. '362 16 U.S.C. 5 1532(19). '363 16 U.S.C. (j 1538(a)(l). 1364 16 U.S.C. (j 1538(a)(2). '365 16 U.S.C. 5 1539(a)(1). '357
'358
292
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out of an otherwise lawful
However, no incidental taking permit may be granted
unless and until an application is approved which demonstrates (i) the impact that will likely result fi-om the taking, (ii) what steps the applicant will take to minimize and mitigate the impact and that the applicant has funding for such steps, and (iii) what alternatives to the taking were considered.1367 To implement the Congressional policy that all federal departments and agencies shall seek to conserve endangered and threatened species, the ESA provides that all agencies must ensure that any action authorized, funded or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species or adversely affect critical habitat.1368If there is reason to believe that an endangered species or critical habitat will be present in the area of a project (public or private) for which a permit or license is necessary, the permitting or licensing agency must consult with the Secretary of the Interior to determine the effect the project will have on the species.1369The Secretary will then issue an opinion on the application and, if jeopardy or adverse effect is found, the Secretary will then suggest reasonable and prudent alternatives for the project. 1370 The ESA also requires interagency cooperation and consultation to ensure that federal actions will not jeopardize an endangered species. Each federal agency involved in an action must request information fi-om the Secretary of Interior on species or critical habitat that may be affected by the action.1371If any endangered species is present, the agency must conduct a biological assessment to identifl the endangered or threatened species likely affected by the
1366 Id.
16 U.S.C. (j 1539(a)(2). 16 U.S.C. (j 1536(a). '369 16 U.S.C. (j 1536(a)(3). 1370 16 U.S.C. (j 1536(b)(3). '371 16 U.S.C. 9 1536(c). 1367
13'*
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action.'372This biological assessment must be completed prior to commencement of any work on the project.1373 If the biological assessment reveals that the proposed action would jeopardize the species or its critical habitat, the action is prohibited unless an exemption is granted."" The availability of exemptions to prohibited acts resulted from a challenge to the ESA arising shortly after the ESA was enacted. The challenge involved the completion of the Tellico Dam, a federal project on the Little Tennessee ~ i v e r . The ' ~ ~completion ~ of the dam would have eliminated the critical habitat of the snail darter fish which was included on the federal endangered species list. The Court took a strict stance and held that the ESA imposed a duty on federal agencies to take no action that would threaten an endangered species or its critical habitat and further held that the ESA contained no exceptions to this absolute prohibition.
In response to this holding, Congress created the exception provision to the ESA to allow major public projects such as these to go
The exemption process is administered by
the Endangered Species Committee which is comprised of six heads of federal agencies and designees of governors of the states affected by the project.1377An application for an exemption may be filed by a federal agency, the governor of the state in which the action will occur, or a private applicant for a permit or license.'378An exemption will be granted if the committee makes the following findings:
1372 Id.
L373Id.
15 U.S.C. $ 1536(a)(2). Tennessee Valley Authority v. Hill,437 U S . 153 (1978). '376 16 U.S.C. $ 1536(g). Interestingly, in 1979, the floodgates of the dam were closed after several hundred snail darters were moved to another location. In 1980, an apparently indigenous group of snail darters were found in another stream approximately 25 miles from the dam. Other populations continued to be discovered resulting in the eventual removal of the snail darter from the endangered species list. Menell & Stewart, supra, note 1, at 1144. '377 16 U.S.C. $ 1536(e). '378 16 U.S.C. $ 1536(g). '374
'375
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There are no reasonable and prudent alternatives to the agency action; The benefits of such action clearly outweigh the benefits of alternative courses of action consistent with conserving the species or its critical habitat, and such action is in the public interest; The action is of regional or national significance; and Neither the federal agency concerned nor the applicant made any irreversible or irretrievable commitment of resources that has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures with respect to preservation of endangered or threatened species or their critical habitats.'379 the committee grants the exemption, it must require reasonable mitigation and enhancement measures.'380 Within one year from the grant of exemption, the applicant is required to formally report to the committee detailing compliance with the required measures.'381 Annual reporting to the committee is required until all of the mitigation and enhancement requirements have been met,1382
2. Wisconsin Endangered and Threatened Species Act Like the ESA, Wisconsin's Endangered and Threatened Species Act (WETSA) is intended to eliminate the taking, possession, and marketing of endangered animal and plant species.'383In addition, WETSA establishes a program for the conservation and restoration of these endangered species.'384WETSA is administered by DNR. The definitions of endangered and threatened species under WETSA differ slightly for those terms as used in the ESA. Under WETSA, an endangered species is any species whose continued existence as a viable component of the state's wild animals or wild plants is determined by DNR
16 U.S.C. (i 1536(h). 16 U.S.C. 8 1536(1). 13" Id. 1382 Id. 1383 Wis. Stat. (i 29.604(4). '384 Wis. Stat. $ 29.604(7). '379
13'0
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to be in jeopardy on the basis of scientific evidence.'385A threatened species is any species of wild animals or wild plants which appears likely, within the foreseeable future, on the basis of scientific evidence, to become endangered.'386 WETSA requires DNR to establish lists of threatened and endangered species.'387This list is comprised of the following three parts: 1. Wild Animals and wild plants on the U.S. list of endangered and threatened species; 2. Wild animals and wild plants on the U.S. list of endangered and threatened native species; and 3. Wisconsin endangered and threatened species.'388
Thus, all federal endangered and threatened species are included on Wisconsin's list. Endangered and threatened species unique to Wisconsin are then added making Wisconsin's list broader than the federal list. When including a species on the state endangered and threatened species list, DNR must determine that the continued existence of a species of wild animals or plants is in jeopardy.'389
DNR must base its decision on the best scientific and commercial data available to it and consult with other state game directors, federal agencies and other interested parties and organizations.1390 DNR must periodically review its list and may, afier a public hearing, revise its list. Further, upon the petition of three or more persons, DNR must review any listed or unlisted wild animal or wild plant if the petitioners present scientific evidence to warrant such a review.1391Following this review, DNR may by hearing and rule amend the list accordingly.1392
Wis. Stat. 15 29.604(2)(a). Stat. 9 29.604(2)(b). '387 Wis. Stat. 9 29.604(3). 1388 -Id.. '389 Wis. Stat. 3 29.604(3). 1390 Id. 1391 Id. L392Id. 13"
1386 Wis.
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WETSA prohibits the taking, transportation, possession, processing, or sale of any wild animal specified on DNR's endangered and threatened species list.1393The definition of wild animal includes that animal's parts, products, egg, off-spring or dead body parts.'394WETSA also prohibits the processing and sale of any wild plant.1395 Wild plant is defined broadly to mean any undomesticated species of the plant kingdom occurring in a natural ecosystem.1396 ~h~ prohibitions on the processing and sale of wild plants also include prohibitions against cutting, rooting up, severing, injuring or destroying wild plants if these activities take place on property that the person does not own or lease.1397However, WETSA allows for an exception to this prohibition for activities done in the course of forestry or agricultural practices or in the construction, operation or maintenance of a utility facility.1398 WETSA allows for the assessment of forfeitures against a person who performs a prohibited act on an endangered or threatened species.'399In addition, the court shall order the revocation of all hunting approvals issued to the violator and shall prohibit the issuance of new approvals for a period of one year.1400If the violation is intentional, the forfeitures increase as does the length of the revocation of the hunting approvals.1401 Like the ESA, WETSA provides for permits to perform prohibited acts. Permits are allowed for the taking, exportation, transportation or possession of any wild animal or wild plant on the endangered or threatened species list for zoological, educational or scientific purposes.'402These permits set forth strict conditions for feeding, treatment, sanitation, pens and housing of the 1393 Wis. 1394 Wis.
Stat. Ej 29.604(4). Stat. Ej 29.604(2)(c).
1395 Id. 1396 Wis. 1397 Wis.
Stat. Ej 29.604(2)(d). Stat. Ej 29.604(4)(c).
1398 Id.
Wis. Stat. Ej 29.604(5). Id. I4O1 Id. 1402 Wis. Stat. Ej 29.604(6). '399 I4O0
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endangered or threatened species at issue.'403In addition to a state permit, a federal pennit is required for those species also included in the federal endangered and threatened species list.I4O4 There are few exceptions to the permit requirement and these exceptions apply in only very narrow circumstances.1405 Perhaps the most common type of permit, however, is an incidental takings permit. A taking is any of the prohibited activities discussed above.I4O6 The state incidental taking permit is similar to its federal counterpart and may be issued for takings incidental to the carrying out of another lawfkl purpose.'407The application for an incidental taking permit requires the creation and submission to DNR of a conservation plan and the execution of an implementing agreement.1408 The conservation plan must include the following items: 1. A description of the impact that will likely occur as a result of the taking of an endangered or threatened species; 2. The steps that the parties will take to minimize and mitigate the impact that the species will suffer;
3. A description of the funding that the parties will have available to implement the minimization and mitigation steps; 4. A description of the alternative actions to the taking that the parties have considered and the reasons these alternatives were not utilized, and 5. Any other measures DNR determines are necessary and appropriate.1409 The implementing agreement for the incidental taking must specifically name and describe the obligations and responsibilities of all of the parties that will be involved in the taking as authorized by the permit.
9 NR 27.05(2). 5 NR 27.05(5). I4O5Wis. Admin. Code 9 NR 27.06. I4O3 Wis. Admin. Code
1404 Wis. Admin. Code I4O6 Wis. 1407 Id. 1408Id. I4O9Id.
Stat. 29.604(6m).
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Prior to acting on an application for an incidental taking permit, DNR must publicize the application and distribute it to the news media in the vicinity of the proposed taking. 1410 ne application must also be distributed to nonprofit conservation groups that have a professional, scientific or academic interest in endangered or threatened species.14" DNR will then take public comment on the application.'4'2 After considering the public comments, DNR will then issue the permit if DNR finds that the taking will meet all of the following requirements: 1. The taking will not be the purpose of, but will be only incidental to, the carrying out of a lawful activity;
2. The permittee will, to the maximum extent practicable, minimize and mitigate the impact caused by the taking; 3. The permittee will ensure that adequate funding for the conservation plan will be provided; and 4. The taking will not appreciably reduce the likelihood of the survival or recovery of the endangered or threatened species within the state, the whole plant-animal community of which it is a part or the habitat that is critical to its existence.1413
DNR may also require the permittee to make additional assurances that these conditions will be met. 1414 Like the ESA, WETSA also contains interagency cooperation and consultation requirements.1415 A state agency must notify DNR of the location, nature and extent of a proposed activity that the agency may conduct, approve or fund and that may affect and endangered or threatened species.1416The DNR may allow the taking of an endangered or threatened species for such an activity if the activity is accomplished in accordance with interagency consultation processes, the activity is not likely to jeopardize the continued existence
1411 l4I2 l4I3 I4l4 I4l5 1416
Id. Id. Id. Id. wis. Stat. (i 29.604(6r). ~d.
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and recovery of the affected species or habitat for that species, and the benefit to public health, safety and welfare justifi es the activity.'417 WETSA also charges DNR with a conservation role. DNR must conduct research on endangered and threatened species and implement programs directed at conserving, protecting, restoring, and propagating selected state endangered and threatened species.'418 One such conservation program is the Conservation Strategy for the Butler's ~ a r t n e r s n a k e . ' ~The ' ~ Butler's Gartnersnake is a listed threatened species common in southeastern Wisconsin. Butler's Gartnersnakes are frequently the subject of incidental takings permits to allow for development in this part of the state. In the Conservation Strategy, DNR has created three tiers of Butler's Gartersnake habitat and developed conservation measures for each tier. 1. Tier 1 Sites are sites that do not contribute to the overall conservation of the species because the habitat is isolated from other patches, is too small, or is of poor quality. An incidental take in a Tier 1 Site requires a letter from DNR under what is known as the Tier 1 Broad Incidental Take Authorization. No conservation measures are required for Tier 1 Sites but voluntary actions are encouraged. 2. Tier 2 Sites are sites of moderate long-term conservation value. Broad Incidental Take Authorization is allowed for these sites as well, provided, however, that a sufficient number of Tier 3 Sites can be secured with no-net-loss of suitable habitat at any individual site.
3. Tier 3 Sites are sites of significant conservation value the preservation of which are critical to the long-term conservation of the Butler's Gartnersnake. The conservation strategy for Tier 3 Sites calls for takes to be avoided at these sites.
14" l4I8 1419
Id. Wis. Stat. 5 29.604(7). Wisconsin Department of Natural Resources, March 3 1,2005, Version 2.3.
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C. Wildlife Management
The purpose of wildlife management in Wisconsin is to maximize the conservation of fish and game within the state.'420 The state regulates the enjoyment, use, disposition and conservation of wild animals within its borders.142'The state has the authority to regulate fish and game because legal title to and the custody and protection of all wild animals within the state are vested in the state.'422 The term "wild animal" is defined as any mammal, bird, fish or other creature of a wild nature endowed with the sensation and the power of voluntary motion.1423 The regulation of wild animals does not extend to farm-raised deer, farm-raised game birds, farm-raised fish or captive wild animals.'424 Perhaps the state's most effective wildlife management tool is the licensing of hunting, trapping and fishing.'425 DNR is authorized to issue licenses and permits for the hunting, trapping and fishing of various wild animals including wild turkey, goose, deer, elk and bear.1426 DNR also sets the seasons in which the wild animals may be hunted, trapped or fished and the method by which these activities may be accomplished.1427 Another wildlife management tool is the creation of wildlife refuges. The owner of contiguous land comprising, in the aggregate, at least 160 acres located outside the limits of any city or village may apply to DNR for the establishment of land as a wildlife refuge.1428If DNR determines that the establishment of the land as a wildlife refuge will promote the conservation
Wis. Stat. ch. 29. Wis. Stat. 5 29.01 1. 1422 Id. Wis. Stat. 9 29.001(90). '424 Wis. Stat. 9 29.01l(3). '425 Wis. Stat. ch. 29, subchs. 111, IV and V 1426 Id. 1427 Id. '428 Wis. Stat. 8 29.621. '420
'42'
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of species or varieties native to the state, it may establish the land as a wildlife refuge.'429 Hunting and trapping is not allowed within a wildlife refuge.'43%ven the possession of a gun, firearm, bow or crossbow is prohibited unless the firearm is unloaded and the bow unstrung."" DNR may place wild animals within a wildlife refuge for purposes of propagation.'432 The DNR is also authorized to actively promote the propagation of species through breeding and stocking programs. These programs include state-operated fish hatcheries, the issuance of permits for privately managed fish hatcheries and the propagation of wild mammals and birds.1433
IV. CONCLUSION Wisconsin has a healthy tourism industry that relies heavily on the state's natural resources. Wisconsin is a leader in natural resource preservation and has some of the highest quality state parks and other public lands in the country. The preservation of the state's natural resources is critical not only for the continued life of these resources but for the continued viability of the state's economy. However, the need for preservation of natural resources must be reconciled with the inevitability of development. Many large, and many not-so-large, construction and development projects in Wisconsin involve some degree of involvement with natural resources. Perhaps the most common involvement is the impact of such projects on endangered and threatened species. The early recognition of a project's impact on endangered and threatened species is critical to the success of a project and the maximization of natural resource protection.
1429 Id. 1430 Id.
1431 Id. 1432 Id. 1433
Wis. Stat. ch. 29, subch. X.
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The general rule of success in obtaining the necessary permits and keeping a project on time and most consistent with the original plan is to involve the regulatory agencies as early in the process as possible. As a practical matter, the agency with which the Wisconsin practitioner will interact most often in the area of natural resources law is DNR. DNR can be extremely helpful in assisting in development strategies to minimize adverse effects on natural resources early on, allowing permits to be issued on time or allowing applicants to recognize that permits will not be issued resulting in a need to abandon or modify the project before too much time and effort is expended. Wisconsin is fortunate to have such varied and high quality natural resources. The statutes and rules in place are designed to maximize the protection and conservation of these resources and to allow for their enjoyment by all.
CHAPTER 13 NON-METALLIC AND METALLIC MINING Chad R. Taylor Mark F. Trocinski I. OVERVIEW This chapter discusses the regulation of non-metallic and metallic mining in the state of Wisconsin, relevant case law, and two issues at the forefront of legal discussions involving mining in the state: the law of non-conforming uses in non-metallic mining operations and the diminishing asset rule. Although mineral extraction plays a comparatively minor role in the lives of most Wisconsin residents today, historically, mining was an integral component in the state's economy. In fact, lead mining was "the major economic activity of the Wisconsin Territory at the time of its creation in 1836.7,1434 Remnants of this history are present in many facets of Wisconsin life today, from city names (for example, Mineral Point, which dates back to the lead rush to Wisconsin of the early nineteenth century) to Wisconsin's unofficial nickname, "The Badger This rich tradition is also reflected in the current extensive regulation of metallic and non-metallic mining under Wisconsin law. Extensive regulation of metallic mining, beginning with the first comprehensive metallic mining law in 1974, in concert with other factors, has led to the halt in metallic mining in the state. Metallic mining is the process of extracting metallic minerals (such as copper, zinc, and lead), but does not include gravel mining or quarrying.1436Currently, there are no metallic mines
1434 Wisconsin Legislative Reference Bureau, Regulation of Metallic Mining in Wisconsin (Legislative Brief 00-15 Nov. 2000), httu://www.le~is.state.wi.us/lrb/pubs/wb/OOwb15.~df (last visited 06/05/2006). 1435 "Miners who moved to the area in the 1820s and 1830s wasted little time in constructing shelters. Some simply burrowed holes into hillsides, earning miners the nickname 'badgers."' Wisconsin Historical Society, Lead Mining in Southwestern Wisconsin,h t ~ : / / w w w . w i s c o n s i n h i s t o w . o r d t u m i essay n ~ (last visited 04/04/2006). 1436 See Wis. Stat. ch. 293, et seq., and Wis. Stat. ch. 295, et seq.
Chapter 13 Non-Metallic and Metallic Mining
operating in the state.'437The last operating metallic mine completed its operations in 1997. A site near the city of Crandon was proposed as the next metallic mineral mine in the state, but efforts to obtain the necessary permits for mining that site ceased when the applicant company (and the land owned by it) was purchased in 2003.'~~' Non-metallic mining, on the other hand, is virtually everywhere in Wisconsin. Several thousand non-metallic mines are scattered throughout the state. As one might expect, these mines are regulated differently than the metallic mines in the state. 11. APPLICABLE STATUTES AND ADMINISTRATIVE RULES Wis. Stat. ch. 107: Mining And Metal Recovery Wis. Stat. ch. 283: Pollution Discharge Elimination Wis. Stat. ch. 285: Air Pollution Wis. Stat. ch. 293: Metallic Mining Wis. Stat. ch. 295: Nonmetallic Mining Reclamation; Oil and Gas Wis. Admin. Code ch. NR 103: Water Quality Standards for Wetlands Wis. Admin. Code ch. NR 130: Metallic Mineral Exploration Wis. Admin. Code ch. NR 131: Metallic Mineral Prospecting Wis. Admin. Code ch. NR 132: Metallic Mineral Mining Wis. Admin. Code ch. NR 135: Nonmetallic Mining Reclamation Wis. Admin. Code ch. NR 182: Metallic Mining Wastes Wis. Admin. Code ch. NR 269: Stone, Gravel and Sand Segment of Mineral Mining and Processing Wis. Admin. Code ch. NR 340: Nonmetallic Mining and Reclamation Associated with Navigable Waterways and Adjacent Areas 111. NON-METALLIC MINING REGULATION Non-metallic mining is a thriving industry in Wisconsin. The minerals primarily extracted in the process of non-metallic mining are stone, sand, gravel, asbestos, beryl, diamond, clay, coal,
1437 Wisconsin Department of Natural Resources, Mining in Wisconsin, httD:Ndnr.wi.~ovlorgJaw/wmlminind (last visited 04/04/2006). The property was subsequently purchased by the Mole Lake Sokaogon Chippewa and the Forest County Potawatomi Indian tribes, which had long objected to development of the site for metallic mining. '438 Wisconsin Department of Natural Resources, Proposed Crandon Mine Information, ht@://dnr.wi.~ov/or~l es/science/crandonl (last modified 12/05/2003).
Chapter 13 Non-Metallic and Metallic Mining feldspar, peat, talc and
Several statutes and regulations promulgated by the DNR
affect how this mining is conducted in the state. The main statutory and regulatory scheme for non-metallic mining focuses on the "reclamation" of non-metallic mining sites when they are no longer in use.1440However, several other statutes and regulations govern particular aspects of the process as well. For example, Wis. Stat. tj 30.20 and Wis. Admin. Code ch. NR 340 govern the removal of any material, including non-metallic minerals, from the beds of state waters. Additionally, state regulations intended to regulate broader issues are sometimes applicable to non-metallic mining.'44' "Reclamation" is defined as "the rehabilitation of a nonmetallic mining site to achieve a land use specified in an approved nonmetallic mining reclamation plan, including removal or reuse of nonmetallic mining refuse, grading of the nonmetallic mining site, removal, storage and replacement of topsoil, stabilization of soil conditions, reestablishment of vegetative cover, control of surface water and ground water, prevention of environmental pollution and if practicable the restoration of plant, fish and wildlife habitat.,31442 A. Statewide Reclamation Standards The Wisconsin Legislature has required the DNR to establish statewide standards for nonmetallic mining re~1amation.l~~~ These standards apply during the course of mining as well as after all mining activity has been terminated.'444The purpose of the standards is to encourage the
Wis. Admin. Code 9 NR 135.03(11). See Wis. Stat. ch. 295; Wis. Admin. Code ch. NR 135. 1441 See, e.g., the fugitive dust regulations in Wis. Admin. Code 9 NR 415.04. Wis. Admin. Code 9 NR 135.03(14). Wis. Stat. 9 295.12(1)(a). Wis. Stat. 4 295.12(2)(a).
1439
Chapter 13 Non-Metallic and Metallic Mining
development and reclamation of non-metallic mining sites and to achieve approved land uses on the sites once the mining is complete.i445 The rules promulgated by the DNR serve to regulate mining activity while also protecting other natural resources that can be affected by non-metallic mining. This dual intent is reflected in the general reclamation standards: Refuse shall be reused and other solid waste shall be disposed pursuant to DNR rules.1446 The mining shall be conducted in a way that minimizes the area of disturbed land. 1447 All non-metallic mining shall be done in a way so as to comply with all relevant federal, state and local regulations governing health, safety and ~ e 1 f a r e . I ~ ~ ' If the non-metallic mining requires alteration to plant, fish or wildlife habitat, it must be restored to a condition at least as suitable as its pre-mining ~ 0 n d i t i o n . I ~ ~ ~ Reclamation of non-metallic mining sites shall comply with any apylicable federal, state and local laws, including environmental, zoning and land use laws. 50 Non-metallic mining reclamation shall be conducted and completed in a manner that complies with DNR water quality standards. Diverted or channelized runoff resulting fi-om reclamation must not affect neighboring properties or pollute waters of the state.1451 Non-metallic mining reclamation must not cause a permanent drop in the water table resulting in adverse effects on surface water and ground water quality standards.1452 Topsoil and topsoil substitute material shall be removed, protected, and redistributed in such a way so as to support reclamation and site ~tabi1ization.l~~~ All reclamation activities must satisfy specific grading requirements.'454 All non-road surfaces shall be reclaimed and stabilized by revegetation or other means. The success of the revegetation shall be measured by quantifiable methods.1455 lM5 Wis.
Stat. (j 295.12(2)(d). Admin. Code (j NR 135.06(1). lM7 Wis. Admin. Code (j NR 135.06(2). IM8Wis. Admin. Code Jj NR 135.06(3). '449 Wis. Admin. Code (j NR 135.06(4). '450 Wis. Admin. Code (j NR 135.06(5). '45' Wis. Admin. Code (j NR 135.07. '452 Wis. Admin. Code (j NR 135.08. '453 Wis. Admin. Code $9 NR 135.09 and 135.11. 1454 Wis. Admin. Code (j NR 135.10. 1446 Wis.
Chapter 13 Non-Metallic and Metallic Mining
These standards are the minimum for the entire state, although individual counties, towns, villages, and cities may adopt and enforce ordinances that are at least as restrictive as the minimum state standards.'456
B. County Regulation of Non-Metallic Mining Every county in Wisconsin is mandated by statute to enact and administer a non-metallic mining reclamation ordinance that complies with the provisions of Wis. Stat. $ 295.12.'~" If the county has an ordinance dealing with non-metallic mining reclamation in effect on or before June 1, 1993, and such pre-existing ordinance is at least as restrictive as the rules contained in Wis. Admin. Code ch. NR 135, the county may use and enforce that pre-existing ordinance.'458 Whether the county enforces a pre-existing ordinance or a new one passed under this statutory directive, the ordinance will be in force throughout the entire county, except within those cities, villages or towns that adopt a non-metallic mining reclamation ordinance under Wis. Stat.
5 295.14.'~'~Under Wis.
Stat. $295.14, a city, village or town has the authority to adopt and
administer its own non-metallic mining reclamation ordinance.1460 However, very few municipalities have chosen and been approved to administer their own non-metallic mining ordinance. The difference between these local governmental units is that while counties are obligated to pass an ordinance governing non-metallic mining, cities, villages and towns are allowed to do so.
Wis. Admin. Code $9 NR 135.12 and l35.13(3)-(5). Stat. $9 295.13(2) and 295.14(2). 14" Wis. Stat. jj 295.13(1). 14" Wis. Stat. jj 295.13(2). '459 Wis. Stat. jj 295.13(3). 1460Wis. Stat. jj 295.14(1). 14"
1456Wis.
Chapter 13 Non-Metallic and Metallic Mining
C. Permit for Non-Metallic Mining Unless the non-metallic mining will fit within one of the exemptions discussed below, a reclamation permit is required prior to the commencement of non-metallic mining.146'The nonmetallic mining reclamation permit is issued by the relevant county, municipal body or the
D N R . ' ~TO ~ ~ apply for a non-metallic mining reclamation permit, the following must be submitted: certain information about the applicant,1463 an annual fee as required by Wis. Admin. Code
9 NR 135.39 and a reclamation plan.'464Probably the most significant and onerous
requirement for obtaining the reclamation permit is the submission and approval of the nonmetallic mining reclamation plan. The non-metallic mining reclamation plan must include: "maps, information about the nonmetallic mining site, a proposed land use for which the nonmetallic mining site will be rehabilitated after the nonmetallic mining is completed, a description of the proposed nonmetallic mining reclamation including methods and procedures to be used and a proposed timetable for completion of various stages of the nonmetallic mining reclamation.7,1465 The specific requirements for each of these aspects to the reclamation plan are spelled out in Wis. Admin. Code 5 NR 135.19. Within 30 days after the applicant files an application for a reclamation permit, the regulatory authority must publish a notice of application and, if it is a new mine, schedule a public
Wis. Admin. Code Ij NR 135.16. Code $9 NR 135.17(1)-(3). '463 A brief description of the general location and nature of the non-metallic site, a legal description of the property on which the non-metallic mine is located or proposed, the names, address, and telephone number of the operator and each owner and lessor of the property on which the non-metallic mining site is located, and a certification by the operator of intent to comply with the state non-metallic mining standards discussed above. Wis. Admin. Code Ij NR 135.18(2). Wis. Admin. Code Ij NR 135.18(1). 1465 Wis. Stat. Ij 295.12(3)(c). 14"
1462 Wis. Admin.
Chapter 13 Nnn-Meta llic and Metallic Mining
informational hearing.1466After such hearing, the authority must decide whether to approve or reject the application. An application for a reclamation permit may be denied if: The applicant, after being given an opportunity to make corrections, has failed to provide an adequate emit application, reclamation plan, financial assurance or other required submittal.1 4 6 7 The proposed non-metallic mining site cannot be sufficiently reclaimed to satisfy the reclamation standards contained in Wis. Stat. ch. 295 and Wis. Admin. Code ch. NR 1 3 5 . ' ~ ~ ~ The applicant or its agent has shown a pattern of serious violations of the federal, state or local environmental laws related to metallic mining within the previous ten years.1469 The decision-making governmental authority may make the approval conditional on the filing of a financial assurance that demonstrates the ability of the operator to faithfully perform all requirements of the reclamation.'470The regulating authority must take action approving, denying or conditionally approving a permit within 90 days after receipt of the mining operation and reclamation plans or if a public hearing is held, within 60 days after close of the public hearing.'471An expedited review can be obtained by paying an additional fee or if the permit is needed to perform services for a governmental
A regulating authority's decision to deny
an application is subject to review and m0dificati0n.l~~~
D. Exemptions Certain activities that fall within the definition of non-metallic mining are nonetheless exempt from these regulations. These exempt activities include the following:
a
Wis. Admin. Code NR 135.20. Admin. Code 9 NR 135.22(1)(a). '468 Wis. Admin. Code 5 NR 135.22(1)(b). 1469 Wis. Admin. Code (i NR 135.22(1)(~). 1470 Wis. Admin. Code (i NR 135.40(2). 147' Wis. Stat. rj 295.12(3)(d). 1472 Wis. Stat. (i 295.12(3)(f); Wis. Admin. Code NR 135.23(2). 1473 Wis. Admin. Code (is NR 135.22(2) and 135.30. 1467 Wis.
Chapter 13 Non-Metallic and Metallic Mining Sites subject to permit and reclamation requirements of the DNR under Wis. Stat. 5 30.19, 30.195, 30.20, 30.30 or 30.3 1 and compliant with Wis. Admin. Code ch. NR 3 4 0 . ' ~ ~ ~ Non-metallic mining conducted by or on behalf of the state or a municipality.1475 Excavations or grading by a person solely for domestic or farm use at his or her residence or farm.'476 Excavations or grading conducted for airport, railroad or highway construction purposes within the boundaries of the transportation Grading conducted for preparing a construction site or restoring land following a flood or natural disaster.1478 Excavations for building construction purposes.1479 Non-metallic mining sites that affect less than one acre over the total life of the mine.'480 Any mining operation, the reclamation of which is required in a permit obtained under Wis. Stat. ch. 293.'481 Activities conducted at a solid waste or hazardous waste disposal site required to prepare, operate or close such a site.1482 Dredging for navigational purposes, to construct or maintain farm drainage ditches and for the remediation of environmental contamination, and the disposing of spoils from that dredging 1483 Removal of material from the bed of Lake Michigan or Lake Superior by a public utility pursuant to a permit under Wis. Stat. 5 3 0 . 2 1 . ' ~ ~ ~
Any activity fully within one of these categories need not obtain a reclamation permit before beginning operations.
Wis. Stat. 9 295.16(2); Wis. Admin. Code $9 NR 135.02(3)(a)-(b). Stat. 9 295.16(3)(a). '476 Wis. Stat. Ej 295.16(4)(a); Wis. Admin. Code Ej NR 135.02(3)(c). 1477Wis. Stat. jj 295.16(4)(b); Wis. Admin. Code jj NR 135.02(3)(d). 1478 Wis. Stat. (i 295.16(4)(c); Wis. Admin. Code (i NR 135.02(3)(e). 1479Wis. Stat. jj 295.16(4)(d); Wis. Admin. Code jj NR 135.02(3)(f). Wis. Stat. 9 295.16(4)(e); Wis. Admin. Code 9 NR 135.02(3)(g). 14" Wis. Stat. 9 295.16(4)(f); Wis. Admin. Code jj NR 135.02(3)(h). '482 Wis. Stat. 9 295.16(4)(g); Wis. Admin. Code Ej NR 135.02(3)(i). 1483Wis. Stat. 9 295.16(4)(i); Wis. Admin. Code (i NR 135.02(3)(k). '484 Wis. Stat. 9 295.16(4)(j); Wis. Admin. Code 3 NR 135.02(3)(L). '474
1475Wis.
Chapter 13 Non-Metallic and Metallic Mining E. Registering a Non-Metallic Mineral Deposit
Landowners may file a registration with the register of deeds stating that land they own contains a marketable non-metallic mineral deposit. If registered, the landowner gains certain protections against subsequent zoning changes that would potentially impede its ability to mine the deposit. One of these protections that a registration affords is that the county, city, village or town in which the deposit lies may not alter the zoning, grant a variance or commit another official act that would permit the construction of a building that would permanently preclude the landowner from mining its deposit.'485The registration is valid for a period of ten years, and can be renewed.1486 The landowner must satisfy several procedural steps in order to register its land under the statute. First, the landowner must identify where the deposit is located'487and must demonstrate that it actually is a marketable non-metallic mineral deposit. This demonstration can be made by the certification of a professional, licensed geologist or a professional engineer.1488Second, the landowner must notify each county, city, village and town that has zoning authority over the land of the owner's intent to register the marketable non-metallic mineral deposit.'489 Third, the landowner must show that non-metallic mining is a permitted or conditional use for the land at the time that the owner gives notice. 1490 Because the registration will limit the zoning powers of the local government authorities, the county, city, village or town which has zoning powers has the right to challenge the registration on two grounds: (1) that the mineral deposit is not a
'485 Wis. Stat. (j 295.20(2)(a).
Wis. Stat. (j 295.20(1)(d). Stat. (j 295.20(1)(c). '488 Wis. Stat. (j 295.20(1)(a)l. '489 Wis. Stat. (j 295.20(1)(a)2. 14" Wis. Stat. (j 295.20(1)(a)3. '486
'487 Wis.
Chapter 13 Non-Metallic and Metallic Mining
marketable non-metallic mineral deposit, and (2) that mining is not a permitted or conditional use in the area that the landowner proposes to register its deposit.'49'
F. Enforcement and Administration The government authority adopting the non-metallic ordinance is charged with the responsibility of enforcing such 0 r d i n a n ~ e . I Pursuant ~~~ to this responsibility, the local government entity has the authority to order its agent to enter upon a non-metallic mining site at any reasonable time and inspect the premises to determine whether it is in compliance with such 0 r d i n a n ~ e . IIf~ this ~ ~ agent finds non-compliance at the non-metallic mining site, he or she has the authority to issue an order requiring the operator to comply with the ordinance, an order suspending or revoking the reclamation permit, an order directing the operator to cease an activity, andlor to submit orders to abate violations of the non-metallic mining reclamation ordinance to the district attorney.'494 But the regulation of the operators of the non-metallic mining sites is not limited to the local authorities. The DNR also has the power and authority to review the local programs, conduct onsite inspection of facilities, issue orders, and dispense penalties.'495 In addition to directly monitoring the operators of non-metallic mining sites, the DNR also has the power and authority to monitor the local government entities to determine whether their enforcement satisfies (but does not exceed) DNR7s standards.'496If the DNR determines that a
1491 Wis.
Stat. (j 295.20(1)@). Wis. Stat. (j 295.19; Wis. Admin. Code (j NR 135.32(1). 1493 Wis. Stat. (j 295.17. '494 Wis. Stat. $8 295.19(l)(a)-(d). 1495 Wis. Stat. $5 295.18(1) and 295.19(2)-(3). 1496 Wis. Stat. (j 295.18. '492
Chapter 13 Non-Metallic and Metallic Mining
city, village or town is not in compliance with its standards, the DNR is empowered to take over the administration of the program in that 10cation.l~~~ Penalties that can be imposed by the local enforcing authority and/or by DNR for noncompliance violations include forfeitures ranging from $10 to $5,000 for each violation."98 IV. METALLIC MINING REGULATION IN WISCONSIN The regulation of metallic mining in Wisconsin is extremely comprehensive and aggressive. A summary of Wisconsin's metallic mineral mining regulations follows.
A. Three Sets of Regulations In the context of metallic mining, Wisconsin statutes regulate exploration, prospecting and mining separately. 1. Exploration "Mineral exploration" or "exploration," unless the context requires otherwise, means the onsite geologic examination from the surface of an area by core, rotary, percussion or other drilling, where the diameter of the hole does not exceed 18 inches, for the purpose of searching for metallic minerals or establishing the nature of a known metallic mineral deposit, and includes associated activities such as clearing and preparing sites or constructing roads for such drilling 1499 Well before any excavation of soil occurs, regulation of the proposed mining activity has begun. The regulation starts this early because the Wisconsin Legislature has stated that no person may engage in exploration, as that term is defined above, without having been issued a permit by DNR.'~" Additionally, not just anyone is allowed to engage in this exploration. In
Wis. Stat. (j 295.18(4). Wis. Stat. $9 295.19(3)(a)-(b). Each day of continued violation is a separate offense. '499 Wis. Stat. (j 293.01(5). I5O0 Wis. Stat. $ 293.21(2); Wis. Admin. Code (j NR 130.05(1). '497 '498
Chapter 13 Non-Metallic and Metallic Mining order to engage in exploration, an applicant must apply to DNR. Such application must include a fee,I5O' a $5,000 bond,'502 a certificate of insurance in an amount deemed appropriate by D N R , ' ~ ' and ~ a copy of the applicant's most recent filings with the Securities and Exchange
omm mission.'^^^ If the DNR does grant a permit for exploration, the recipient of such permit is required to give DNR at least ten days notice prior to the commencement of any drilling.I5O5 2. Prospecting The second type of activity regulated by the state of Wisconsin is prospecting. "Prospecting" is defined as: [Elngaging in the examination of an area for the purpose of determining the quality and quantity of minerals, other than for exploration but including the obtaining of an ore sample, by such physical means as excavating, trenching, construction of shafts, ramps and tunnels and other means, other than for exploration, which the department, by rule, identifies, and the production of prospecting refhe and other associated activities ....1506 The DNR requires anyone who intends to engage in prospecting to obtain a permit specifically for that activity.'507 An application for a prospecting permit will be denied by the DNR for several reasons. The DNR will not issue a prospecting permit if the reclamation plan is non-compliant with Wis. Stat. tj 293.13 or tj 293.35, if the applicant is in violation of Wis. Stat. ch. 293, if the applicant or persons with a certain fiduciary relationship with the applicant have forfeited a bond in association with prospecting in the previous 20 years,1508or if the DNR finds that the site is unsuitable for prospecting.1509A site is unsuitable if the prospecting may reasonably be expected to destroy or irreparably damage either the habitat required for survival
Wis. Admin. Code Cj NR 130.05(2)(a). Wis. Admin. Code Cj NR 130.05(2)@). I5O3Wis. Admin. Code Cj NR 130.05(2)(c). IS" Wis. Admin. Code Cj NR 130.05(2)(d). Wis. Stat. 9 293.21(4)(a). Wis. Stat. 9 293.01(18)
1 0 '
ISo2
ISo8
Wis. Stat. cj 293.35. Wis. Stat. 9 293.45(2). Wis. Stat. 9Cj 293.45(1)-(2).
Chapter 13 Nun-Metallic and Metallic Mining
for a species designated by the DNR as endangered, or unique features of the land such as wilderness areas, wild and scenic rivers, national or state parks, wildlife refuges, archeological areas, properties listed in Wis. Stat. 5 44.3 1 or other lands designated as unique or unsuitable for prospecting. 1510
3. Mining "'Mining' or 'mining operation' means all or part of the process involved in the mining of metallic minerals, other than for exploration or prospecting, including commercial extraction, agglomeration, beneficiation, construction of roads, removal of overburden and the production of refuse."1511The regulation of metallic mining in Wisconsin is extensive. To obtain a mining permit, applicants must satisfy many statutory and regulatory requirements. The applicant must apply for all of the necessary local government approvals (i.e., re-zoning approvals, conditional use permits, etc.)I5l2 and provide evidence satisfactory to the DNR that it has done so. The applicant must demonstrate that it is compliant with all statutes.'513This requirement includes a demonstration of evidence that convinces the DNR that the mining and reclamation plan submitted by the applicant (plans are defined below) are reasonably likely or certain to result in the reclamation of the mining site,1514that the proposed mining operation will comply with the terms of all air, groundwater, surface water, and solid and hazardous waste laws,1515that the proposed site will not endanger public health or be a safety hazard,1516 and that the proposed operation will have a positive net economic impact on the area.1517
1510 15" 1512 l5I3 1514 I5l5 1516 1517
Wis. Stat. (i 293.01(28). Wis. Stat. $ 293.01(9). Wis. Stat. $ 293.49(1)(a)6. Wis. Stat. (j 293.49(1). Wis. Stat. (j 293.49(1)(a)l. Wis. Stat. (j 293.49(1)(a)2. Wis. Stat. (i 293.49(1)(a)4. Wis. Stat. $ 293.49(1)(a)5.
Chapter 13 Non-Metallic and Metallic Mining Assuming the applicant satisfies the DNR that it is compliant with all of the statutes, ordinances and regulations mentioned above, and assuming the applicant has $10,000 for a submission fee,l5I8 the applicant can then submit its application for a permit to commence mining. The application requires the submission of detailed information with the primary part being the mining plan.I5l9 The mining plan must contain all of the information enumerated in Wis. Admin. Code
3 NR
132.07, including detailed information on the proposed mining site,
details of the operating procedure, and evidence that satisfies the DNR that the operation will be consistent with the reclamation plan. The second portion of the mining permit application is the reclamation plan.1520As mentioned above, the focus of mining regulation in Wisconsin is the reclamation of the land after the mining operations have ceased. The requirements of the reclamation plan are delineated in Wis. Admin. Code 5 NR 132.08. Such plans include detailed information and maps on reclamation procedures, and evidence satisfactory to the DNR that the proposed reclamation will conform to its minimum standards. The mining and reclamation plans must have provisions that satis@ DNR requirements that regulate the handling, treatment, storage and disposal of mining wastes. These requirements are spelled out in Wis. Admin. Code ch. NR 1 8 2 . ' ~ ~ ' Finally, an applicant must meet various financial responsibility requirements for mining operations and reclamation. The applicant may be required to set aside hnds sufficient to satisfy the DNR that the closure, long-term care and waste management costs will be paid without issue. 1522
Wis. Admin. Code (j NR 132.06(3)(a). Wis. Stat. 9 293.37(2)(a); Wis. Admin. Code (j NR 132.06(3)(b). '520 Wis. Stat. (j 293.37(3); Wis. Admin. Code fj NR 132.06(3)(c). 15" Wis. Admin. Code ch. NR 182. '522 Wis. Admin. Code $4 NR 132.09, 182.16, 182.17 and 182.18. 1518
I5l9
Chapter 13 Non-Metallic and Metallic Mining
B. Metallic Mining Permitting Procedures Obtaining an exploration permit is not difficult. An applicant need only submit the proper forms, appropriate fee and bond to the D N R . ' ~ ~ A)license will be issued within 10 days of receipt of the completed application or the following July 1, whichever is later.'"'
The review
process for the issuance of an exploration permit is brief and not a significant hurdle. However, to obtain a prospecting or metallic mining permit, a three-step process must be completed by the applicant. First, the applicant must file a notice of intent. Then the applicant must submit numerous permit applications. Finally, DNR will conduct a master hearing regarding all of the permit applications. Only then is there a possibility of the issuance of a metallic mining permit. The process for obtaining a prospecting permit is very similar to the process for obtaining a metallic mining permit. In fact, the regulations that govern prospecting permits and metallic mining permits, chs. NR 131 and 132, are remarkably similar. Each has exactly the same subsections, with one exception.1525For the sake of brevity, this discussion will explain the process of obtaining a metallic mining permit, and point out any differences in the parallel process of obtaining a prospecting permit.
I. Notice of Intent An applicant must notify the DNR that it is intending to collect data to support its potentially forthcoming metallic mining permit application.'526 If this notice is timely submitted via registered mail to the DNR, the data collected will be available for use by the applicant in its subsequent permit application. If the notice of intent is not properly filed, any data collected may Wis. Admin. Code (i NR Wis. Admin. Code (i NR Wis. Admin. Code (i NR the prospecting regulation. Wis. Admin. Code (i NR
130.05(2). 130.06. 132.085, which is entitled "Irrevocable trust agreement," has no parallel provision in 132.05; Wis. Admin. Code (i NR 131.O5 is the parallel provision for prospecting.
Chapter 13 Non-Metallic and Metallic Mining
be excluded from the application process. However, if the environmental data were collected before a notice of intent could be approved, or if the data were collected with no intent to evade the regulation, the data may still be available for use by the a p ~ 1 i c a n t . l ~ ~ ~ The reason DNR requires a notice of intent from the applicant is so that DNR can schedule a prompt public hearing, which is held no fewer than 45 and no more than 90 days after the notice of intent is given.1528Following the comment period, the DNR must inform the applicant of the type and quantity of information needed to support a mining application,1529 necessary approvals, licenses and 2. Permit Applications and Hearing Several regulatory permits and approvals are required prior to the issuance of a mining permit. Wisconsin has established a method by which applicants must apply for all of these permits simultaneously, as opposed to having to conduct hearings on each individual permit and approval requisite to obtaining a mining permit.1531The focus of this process is a "master hearing" at which all permits required for the mining operation and the Environmental Impact Statement (EIS) required for all mining permit applications are ~ 0 n s i d e r e d . A l ~typical ~~ mining operation will require at least the following permits: The mining permit-Wis.
Stat. $293.37(1)(a)
A wastewater discharge permit-Wis.
Stat. $283.3 l(1)
A wastewater treatment plan approval-Wis. An air pollution permit-Wis.
Stat. $ 281.41
Stat. $5 285.60 and 285.61
'527 Wis. Admin. Code 9 NR 132.05(4)@);Wis. Admin. Code 9 NR 131.05(4)(b)is the parallel provision for prospecting. Wis. Admin. Code (i NR l32.05(3) 1529W ~ SAdmin. . Code (i NR 132.05(4). Wis. Stat. (i 293.31(4). L53' This process, where it is not inconsistent, shall govern all hearings on applications for prospecting or mining permits. Wis. Stat. 9 293.43(1). Id.
Chapter 13 Non-Metallic and Metallic Mining A mine dewatering permit-Wis.
Stat. $ 293.65(2)
A mine waste disposal feasibility and plan of operation approval-Wis.
Stat. ch. 289
Water regulatory permits for work in or near wetlands and navigable waters-Wis. ch. 30; Wis. Admin. Code chs. NR 103 and 299
Stat.
The hearing is usually presided over by an Administrative Law Judge (ALJ), an employee of the Department of Administration, Division of Hearings and Appeals. The master hearing consists of two parts. The first part is a public information hearing, which may be completed in one day or a few days. All interested parties have the opportunity to present relevant information and viewpoints; they are neither under oath nor subject to cross e ~ a m i n a t i 0 n . l ~ ~ ~ After this portion of the hearing is complete the second part, the "contested case" begins.1534 All testimony in this part of the hearing, usually given by expert witnesses, is under oath and subject to cross-examination. This portion of the master hearing can last for weeks, or longer. For purposes of judicial review, the record consists of the contested case part of the hearing. However, all written comments submitted from all sources are entered into the record to be given the appropriate probative value by the ALJ or decision-maker.1535 The hearing is required to start in the county where the proposed site is 10cated.l~~~ The remainder of the hearing may be moved if other locations are more convenient for the parties inv01ved.l~~~ At least one informational meeting regarding the draft EIS must be held within 60 days of its issuance and the "master hearing" must begin no fewer than 120 and no more than 180 days after the final EIS is
Wis. Stat. ยง 293.43(5). Id. '535 Wis. Stat. 293.43(5)(c). Wis. Stat. 9 227.46 authorized DNR to designate the ALJ or a DNR agency offrcial as the final decision-maker in any contested case hearing. DNR typically designates the ALJ but would have authority to reserve the frnal decision to the DNR secretary or his or her designee. 1536 Wis. Stat. 293.43(2). 1537 Id. '538 Wis. Stat. 9 293.43(3)(b). 1534
Chapter 13 Non-Metallic and Metallic Mining
Although the process of evaluation of prospecting permits and metallic mining permits is largely the same, the criteria for granting each are slightly different. Because metallic mining has a greater relative impact on the land than prospecting, a prospecting permit is easier to obtain than a metallic mining permit.
A prospecting permit will be granted within 60 days of the closing of the official hearing if the site is not unsuitable for prospecting, the prospecting plan satisfies all statutory and regulatory conditions and no party related to the applicant has forfeit a bond in the last 20 years.'539On the other hand, a mining permit must be granted only if the following findings are made:'540 The DNR-approved mining plan and reclamation plan are reasonably certain, according to the objective review of the DNR, to result in an effective reclamation of the mining site consistent with Wis. Stat. ch. 293 and the rules adopted under that chapter. The proposed operation will comply with all applicable air, groundwater, surface water and solid and hazardous waste management laws and attendant rules of the DNR. In the case of a surface mine, the site is not unsuitable for mining. The proposed mine will not endanger public health, safety or welfare. The proposed mine will result in a net positive economic impact in the area reasonably expected to be most impacted by the activity. The proposed mining operation conforms with all applicable zoning ordinances. On the other hand, the permit must be denied (within 90 days after the completion of the public hearing record) if any of the following conditions are found:'54' The proposed surface mining site is unsuitable for surface mining. The applicant has violated and continues to be out of compliance with ch. 293 and any rules adopted under that chapter.'542
Wis. Stat. $9 293.45(1)-(2). Wis. Stat. 4 293.49(1Mal . ,. , Wis. Stat. 293.49(2).
Chapter 13 Non-Metallic and Metallic Mining
That in the 10 years prior to the submission of the application, the applicant, a principal shareholder of the applicant or a related person'543forfeited a mining reclamation bond posted in accordance with a permit or other approval for a mining operation in the United States, unless the forfeiture was by agreement with the entity for whose benefit the bond was posted and the bond was sufficient to cover all costs of reclamation. That within 10 years before the application was submitted, the applicant, a related person or an officer or director of the applicant was convicted of more than one felony violation of environment protection laws in connection with the operation of a mining site in the United States, unless (i) the convicted person was pardoned for all of the felonies, or is a related person or an officer or director of the applicant whose relationship with the applicant is terminated; or (ii) the permit application included a plan to prevent the occurrence in Wisconsin of events similar to the events that resulted in the convictions. That within 10 years before the application was submitted the applicant or a related person has declared bankruptcy or undergone dissolution that resulted in a failure to reclaim a mining site in the Untied States in violation of a state or federal law and that failure has not been remedied and is not being remedied. That, within 10 years before the application was submitted, a mining permit or other mining approval issued to the applicant or a related person was permanently revoked because of a failure to reclaim a mining site in the United States in violation of state or federal law and that failure has not been and is not being remedied. As previously noted, detailed regulations containing the application requirements and minimum standards are contained in Wis. Admin. Code chs. NR 132 and 182. C. Mining Moratorium Law
In addition to the procedures discussed above, any proposed site owner who intends to extract any mineral from a sulfide ore body must satisfy the conditions of Wis. Stat.
293.50,
commonly referred to as the "Mining Moratorium L ~ w . " A ' ~"sulfide ~~ ore body" is defined by the statute as "a mineral deposit in which metals are mixed with sulfide minerals.9,1545 Many of the valuable metal deposits in Wisconsin, including deposits of zinc and copper, are found in Wis. Stat. 9 293.49(2)(b). "Related person" means any person that owns or operates a mining site in the United States and that is one of the following when an application for a mining permit is submitted to the DNR: (a) the parent corporation of the applicant; (b) a person that holds more than a 30% ownership interest in the applicant; (c) a subsidiary or affiliate of the applicant in which the applicant holds more than a 30% ownership interest. Wis. Stat. 9 293.01(26). Wis. Stat. 9 293.50. Wis. Stat. 9 293.50(1)(b). '542
Chapter 13 Nnn-Metallic and Metallic Mining
sulfide formations.'546Unfortunately, the process of extracting the metals from the sulfide formations often results in sulfuric acid being produced and making its way into the groundwater. In order for an applicant to obtain a permit to mine metal from a "sulfide ore body," the applicant must show evidence that (1) there is at least one mine in the United States or Canada that has been in operation for at least ten years without polluting the groundwater or surface water with its acid drainage;Is4' and (2) there is at least one mine in the United States or Canada that has been closed for at least ten years without polluting the groundwater or surface water in the time after the mine was closed.'548The mines that the applicant chooses to satisfy these two requirements must satisfy an additional set of conditions specified in the statute.1549 This statute was signed into law by then-Governor Tommy Thompson. At the time, a site near Crandon, Wisconsin was under consideration to receive a mining permit. The site contains minerals contained within sulfide formations. This statute further provided that it applied regardless of the date of submission of the application for a mining permit.1550This provision required that the Crandon site provide examples of sites that satisfied the conditions discussed above even though the applicant had already submitted its application. D. Annual Review
Both prospecting and metallic mining permit holders must provide DNR with data on an annual basis. Eighteen months after the issuance of a prospecting permit, and annually thereafter, the DNR will review the prospecting permit and reclamation plan to ensure ongoing compliance
Wisconsin Legislative Reference Bureau, The Mining Moratorium (Legislative Brief 98- 1 May 1998), h~://www.legis.state.wi.us/lrb/vubs/lb 1.pdf (last visited 06/05/2006). Wis. Stat. 5 293.50(2)(a). '548 Wis. Stat. 5 293.50(2)(b). '549 Wis. Stat. $9 293.50(2m)(a)-(b). Wis. Stat. jj 293.50(3).
Chapter 13 Non-Metallic and Metallic Mining with state and federal laws, including laws instituted after the issuance of the permit.'55' The operator of a mining site must supply the DNR with a report detailing the mining taking place at each mining site each year. The report must contain information sufficient for the DNR to base an analysis of the previous year's mining and reclamation activity.1552 Simultaneous with the submission of the annual report, the applicant or DNR can apply to change the mining or reclamation plans.1553A request to increase or decrease the area of a mining site or substantially change the mining or reclamation plan is treated in the same manner as an original application for a permit.'554 Such a request would be subject to the entire permitting process.
E. Metallic Mining Enforcement 1. Enforcement by the DNR The DNR has broad authority to issue civil penalties for violations of mining statutes and
regulation^.'^" If any applicant violates a state statute, intentionally submits false statements or omits any significant information during the application process, the DNR has the authority to cancel that applicant's prospecting or mining permit.'556The DNR has the authority to compel mining site operators to reestablish compliance with any relevant statute or regulation, as well as with the site's mining and reclamation plans.1557The DNR may also cancel a permit if the operator of the mining site refuses to reclaim a site in compliance with the reclamation plan.1558 In addition, in the case of a site operator refusing to reclaim a site pursuant to the terms of its reclamation plan, the DNR has the authority to refuse to ever issue another permit to that ""Wis. Stat. 5 293.53(1)(a).
Wis. Stat. 9 293.53(2)(a). Wis. Stat. $9 293.53(l)(a)-(b). Wis. Stat. 9 293.53(1)@). 1555 Seegenerally Wis. Stat. ch. 293, subch. 5, 9 293.81, et seq. Wis. Stat. 8 293.85. Wis. Stat. 293.83(1)(a)l. 15" Wis. Stat. $9 293.83(2)-(3).
Chapter 13 Nbn-Metallic and Metallic Mining
operator. 1559 Finally, the DNR may issue an emergency stop order if it determines that the mining operation constitutes an "immediate and substantial threat to public health and safety or 33
the environment.
1560
2. Citizen Suit Provision In addition to the enforcement action of the DNR, mine site operators are also subject to citizen suits that can be brought by any citizen for an alleged violation of the mining law.156'The citizen suit provision also allows citizens to file suit against the DNR for failing to perform any action under Wis. Stat. ch. 293, except for those acts which are discretionary.'562 3. Dewatering Damage Claims
If a person finds that the quantity or quality of his or her private water supply has been damaged by mining or prospecting operations, such person may file a complaint with the
D N R . ' ~If~there ~ is a need for an immediate alternative source of water, the injured party may file a complaint with the town, village or city in which the water supply is located.15@If after investigation the DNR concludes that there is reason to believe that the damage is related to the prospecting or mining, it must conduct a hearing.'565 Should the DNR then conclude that prospecting or mining is the cause of the damage, it must issue an order requiring the operator to provide water to the injured party.'566
Id. Wis. Stat. lj 293.83(4)(a). Is6' Wis. Stat. lj 293.89(1)(a). '562 Wis. Stat. lj 293.89(1)@). Wis. Stat. jj 293.65(4)@). Id. 1s6s Id. Wis. Stat. lj 293.65(4)(d). ISS9
Chapter 13 Non-Metallic and Metallic Mining V. CURRENT TOPICS IN MINING A. The Law of Non-Conforming Uses and Non-Metallic Mining
With the suburbanization of traditionally rural areas and the development and implementation of Master Land Use Plans by communities, more long-existing non-metallic mining operations are finding themselves subject to complaints and challenges in the continued operation of their businesses. These challenges generally come when a complaint is brought to the attention of zoning enforcement officers who often respond by interpreting the zoning ordinance to require the operator to obtain a conditional use permit or other form of zoning approval in order to remain in compliance. A non-metallic mining operator faced with this issue may first consider whether their operation qualifies as a legal non-conforming use and is exempt fiom more recent zoning regulations. A legal nonconforming use has been described as "an active and actual use of land and buildings which existed prior to the commencement of the zoning ordinance and which has continued in the same or a related use until the present.,91567 Because the right to maintain a nonconforming use attaches to the land itself, once a property owner has acquired a "vested interest" in that use a successive owner can continue the use and is protected fiom subsequent rezoning.1568 In discussing the vested property interests inherent in a legal nonconforming use, the Wisconsin Supreme Court has noted that "'a nonconforming use existing at the time a zoning ordinance goes into effect cannot be prohibited or restricted by statute or ordinance ... zoning regulations cannot be made retroactive and neither can prior nonconforming uses be removed
Walworth County v. Hartwell, 62 Wis. 2d 57, 60,214 N.W.2d 288 (1974) (citing Gabe v. Cudahy, 52 Wis. 2d 13, 187 N.W.2d 874 (1971)). 1 R. Anderson, American Law of Zoning 3d 3 6.40 (1986); see also Waukesha County v. Seitz, 140 Wis. 2d 11 1, 117,409 N.W.2d 403 (Ct. App. 1987) (describing legal nonconforming use as "vested" interest in property).
'567
Chapter 13 Nnn-Metallic and Metallic Mining
nor existing conditions be affected thereby.,,,I569 In Des Jardin, the Court stated further that "[a] construction of a statute which gives it a retrospective effect is not favored, and this is especially true where vested rights are affected.9,1570 In short, a land use qualifies as a legal nonconforming use if there is active and actual use of land that existed before the commencement of the zoning ordinance and it has continued in the same or related use until the present time. Nevertheless, a county is permitted to regulate nonconforming uses by adopting a zoning ordinance under Wis. Stat.
9 59.69. However, in
enacting a zoning ordinance, state law prohibits a county from adopting an ordinance prohibiting the continuation of a legal nonconforming use. Specifically, Wis. Stat. $ 59.69(10) provides in relevant part (emphasis added): An ordinance enacted under this section may not prohibit the continuance of the lawful use of any building or premises for any trade or industry for which such building or premises is used at the time that the ordinances take effect, but the alteration of, or addition to, or repair in excess of 50% of its assessed value of any existing building or structure for the purpose of carrying on
any prohibited trade or new industry within the district where such buildings or structures are located, may be prohibited. The continuance of the nonconforming use of a temporary structure may be prohibited. If the nonconforming use is discontinued for a period of 12 months, any future use of the building and premises shall conform to the ordinance.
A nonconforming use will not be recognized in the absence of sufficient competent evidence to prove it was lawfully in existence at the time the ordinance was enacted.1571The burden of establishing that the use in question is fundamentally the same use and not a new and impermissible one is on the party asserting it.'572The allocation of this burden is "in accordance
Des Jardin v. Town of Greenjield, 262 Wis. 43,47-48,53 N.W.2d 784 (1952) (emphasis added) (quoting 8 McQuillin, Municipal Corporations $ 25.181, at 363 (3d ed.)). '570 ~ dat. 48 (quoting Building Height Cases, 181 Wis. 519,531, 195 N.W. 544 (1923)). Is7' Lessard v. Burnett County Bd. ofAdjustment, 2002 WI App 186,120,256 Wis. 2d 821,649 N.W.2d 728 (citing 8A McQuillin, Municipal Corporations ยง 25.188.50 (rev.3d ed. 1994)). Id. (citing Waukesha County v. Pewaukee Marina, Inc., 187 Wis. 2d 18,30,522N.W.2d 536 (Ct. App. 1994)).
Chapter 13 Non-Metallic and Metallic Mining
with the general policy of zoning to carefully limit the extension and enlargement of nonconforming uses.,71573 Further, while a county may not prohibit the continuance of the lawful use of any building or premises for any trade or industry for which such building or premises is used at the time the ordinances take effect, the statutory authority to regulate nonconforming uses under Wis. Stat.
5 59.69(10) includes the
authority to enact ordinances that limit the change or extension of
nonconforming uses (if the change results in a change in use).'17'
B. Diminishing Asset Rule In addition to the general legal standards for the review of a nonconforming use, there is an additional rule that often arises in the context of non-metallic mining zoning disputes. Specifically, Wisconsin courts recognize the "diminishing asset rule" which "is a gloss on the definition of 'existing use' for mineral extraction operations whereby all land which constitutes an integral part of the operation, notwithstanding the fact that it was not under actual excavation, is considered 'in use. 9,91575 However, "this is not an unlimited definition and does not automatically permit expansion of a mineral extraction operation to every portion of every contiguous parcel owned by the operator. 'The relevant inquiry is [the owner's] intent and ownership of the property coupled with unique use of extraction.9,91576 Recent case law has also examined the treatment of quarry operations ~ p e c i f i c a l l y . These '~~~ cases have held that if a property owner is carrying on a legal nonconforming quarry operation,
Id. Schroeder v. Dane County Bd. ofAdjustment, 228 Wis. 2d 324,339,596 N.W.2d 472 (Ct. App 1999) (citing Pewaukee Marina, Inc., 187 Wis. 2d at 24). Schroeder, 228 Wis. 2d at 341. Id. Smart v. Dane County Bd. ofAdjustment, 177 Wis. 2d 445,501 N.W.2d 782 (1993); Sturgis v Winnebago County Bd. ofAd~hstment,141 Wis. 2d 149,413 N.W.2d 642 (Ct. App. 1987); Schroeder, 228 Wis. 2d 324,596 N.W.2d 472 (Ct. App. 1999).
''"
Chapter 13 Non-Meta llic and Metallic Mining
an expansion of that quarry operation onto contiguous land owned by the same property owner is a permissible expansion of the legal nonconforming use. C. Proposed Rule Changes
In the spring of 2006, the DNR issued a notice of public hearings concerning the alteration of several of the rules that control reclamation of non-metallic mining.'578The Natural Resources Board met at the end of June to approve the revisions after the required comment period. Among the topics to be considered for revision are an increase in fees and a more specific set of rules that deal with dispute resolution. The fee increases are intended to adjust for inflation and to help defray the costs of administering mining regulations. The dispute resolution rule changes are intended to make the dispute resolution process more specific and more useful. Currently, the DNR can attempt to aid in resolving disputes between non-metallic mine operators and their respective regulators. However, the outcomes of this process are not well defined by statute or regulation. The proposed rule change (to Wis. Admin. Code $ NR 135.52) would clarify the role of the DNR in the dispute resolution process and spell out the appropriate timefi-ame for taking those actions. The changes also contain several revisions of text to clarify and simplify the application of the regulations.
Scott Hassett, Secretary, Wisconsin DNR, Notice ofPublic Hearing #WA-14-06 (March 30,2006).
330
CHAPTER 14 UTILITY INFRASTRUCTURE SITING Linda H. Bochert Lauren L. Azar I. OVERVIEW To construct an electric or natural gas facility over a threshold size, a public utility must apply to the Public Service Commission (PSC or the Commission) for either a Certificate of Public Convenience and Necessity (CPCN) under Wis. Stat. Authority (CA) under Wis. Stat.
5 196.49.
9 196.491 or a Certificate of
Because electric generating facilities are large
construction projects having the potential for both air emissions and wastewater discharges, they also require construction and operating permits from the Department of Natural Resources (DNR). Natural gas pipelines and electric transmission lines are long, linear projects that frequently cross navigable waterways and may impact wetlands, and so require DNR permits for those construction activities. This chapter briefly summarizes the PSC requirements and the statutory relationship between the PSC approvals and the DNR permitting process set out in Wis. Stat. @ 196.49 and 196.491. It also describes three pieces of legislation enacted in 2003 and 2005 to address problems that arose as a result of inconsistencies in the agencies' actions, and other impediments to utility project siting that surfaced in the approval process of some significant infrastructure projects. Because Public Utility Law in Wisconsin is quite complex, this chapter is limited to an overview and does not delve into the intricacies of the law.
11. APPLICABLE STATUTES, ADMINISTRATIVE RULES AND LEGISLATIVE ACTS Wis. Stat. 5 1.12: State Energy Policy Wis. Stat. 5 196.49: Authorization from commission before transacting business; extensions and improvements to be approved; enforcement of orders; natural gas
Chapter 14 Utility Infrastructure Siting
Wis. Stat. ยง 196.491: Strategic energy assessment; electric generating facilities and transmission lines Wis. Stat. 30.025: Permit procedure for utility facilities Wis. Admin. Code ch. PSC 4: Environmental Analysis Wis. Admin. Code ch. PSC 111: Requirements for strategic energy assessments and certificates of public convenience and necessity Wis. Admin. Code ch. NR 103: Water quality standards for wetlands Wis. Admin. Code ch. NR 299: Water quality certification 2003 Wis. Act 89-amending Wis. Stat. 5 30.025 2005 Wis. Act 29-creating Wis. Stat. $ 196.491(3)2m. a.-c. 2005 Wis. Act 24--amending Wis. Stat. $ 196.491(3e)
111. DIFFERENT TYPES OF UTILITY ENTITIES The majority of Wisconsin's laws for the siting of utility infrastructure are found in Wis. Stat. ch. 196. Whether and how a proposed utility project is regulated not only depends on the project, but also depends on who is proposing the project. Entities qualifjrlng as "public utilities,31579 are the most heavily regulated; independent power producers (IPPs) and cooperatives are the least regulated under state law. (Entities generating, transmitting or distributing electricity andlor natural gas may also be regulated under federal law.) There are many other types of entities involved with building utility infrastructure-such
as municipal
electric utilities, exempt wholesale generators, and electric utilities-each with its own unique regulatory status under Wisconsin law. This chapter focuses on electric and natural gas public
IV. OVERVIEW OF PSC PROCEDURES FOR PUBLIC UTILITY INFRASTRUCTURE REVIEW AND APPROVAL Proposed electric or natural gas infrastructure improvements may require a CPCN, a CA, or no prior approval from the PSC.
wis. Stat. 8 196.01(5). $8 196.485, 196.49 and 196.491.
15*0 W ~ SStat. .
Chapter 14 Utility Infrastructure Siting A. Certificate of Public Convenience and Necessity
Wisconsin law requires the largest utility projects to obtain a CPCN from the PSC: "[Nlo person may commence the construction of a facility unless the person has applied for and received a certificate of public convenience and necessity [from the commission as provided in this section].,31581 The statute defines "facility" to include large electric generating facilities of 100 MW or more,1582and high voltage transmission lines that are longer than one mile with a nominal voltage of 100 kV or more. To obtain a CPCN, the public utility must submit a joint application to both the DNR and the PSC. Under a relatively new law that will be explained below, before submitting the joint application, the applicant must first submit information to and confer with the DNR over the permits that will likely be required from the D N R . " ~ ~ At least 6 months before beginning construction, a joint application must be submitted to the PSC and D N R . ' ~ ' Within ~ 30 days of receiving a joint application, the PSC and DNR determine whether the application is complete.'586 If incomplete, the PSC and/or DNR will request additional information.'587 Once the PSC and DNR deem the joint application complete, with limited exceptions, the PSC has 180 days to either grant or deny the C P C N . ~ ~ ~ ~
''" Wis. Stat. $ 196.491(3). lSs2 Wis. Stat. 9s 196.491(1)(e) and (g). However, persons who (i) are neither a public utility nor a cooperative, and (ii) will consume 70% or more of the power at the generating site, are not required to get a CPCN. Wis. Stat. $ 196.491(4)0>). Wis. Stat. $5 196.491(1)(e) and (f). However, the construction of a line with less than 345 kV constructed entirely within an existing electric transmission right of way is exempt ftom the CPCN requirements. Wis. Stat. 9 196.491(4)(~). Wis. Stat. $9 196.491(3)(a)3.a and 30.025(1m). 1585 Wis. Stat. 9 196.491(3)(a)l. Wis. Stat. ji 196.491(3)(a)3.b.
1,
' ' ' ' This time period is subject to a one-time maximum extension to 360 days upon petition to and approval by the Dane County Circuit Court. Wis. Stat. $ 196.491(3)(g).
Chapter 14 Utility I~?fi.astructureSiting The Commission can grant a CPCN if and only if the project meets numerous criteria specified in Wis. Stat. $ 196.491(3)(d). Among other factors, the following environmental criteria must be met in order to qualify for a CPCN:
3. The design and location or route is in the public interest considering ... environmental factors .... In its consideration of environmental factors, the commission may not determine that the design and location or route is not in the public interest because of the impact of air pollution if the proposed facility will meet the requirements of ch. 285. 3m.For a high-voltage transmission line ... that is to be located in the lower Wisconsin state riverway ... the high-voltage transmission line will not impair, to the extent practicable, the scenic beauty or the natural value of the riverway .... 3r. For a high-voltage transmission line that is proposed to increase the transmission import capability into this state ... the routing and design of the high-voltage transmission line minimizes environmental impacts in a manner that is consistent with achieving reasonable electric rates. 4. The proposed facility will not have undue adverse impact on other environmental values such as, but not limited to, ecological balance, public health and welfare, historic sites, geological formations, the aesthetics of land and water and recreational use. In its consideration of the impact on other environmental values, the commission may not determine that the proposed facility will have an undue adverse impact on these values because of the impact of air pollution if the proposed facility will meet the requirements of ch. 285.'589
In deciding whether to grant a CPCN, the PSC must also comply with the Wisconsin Environmental Policy Act (WEPA). (See Chapter 3.) Wis. Admin. Code ch. PSC 4 specifies whether a project requires an Environmental Assessment (EA) or an Environmental Impact Statement (EIS). In addition to WEPA, the PSC must also apply the Energy Priorities Law (Wis. Stat.
9 1.12)
when evaluating an energy project.'590 The Energy Priorities Law requires the PSC to consider whether a different type of utility project or program could accomplish the goals of the proposed project. The law provides a prioritized list of the projects and programs that the PSC must consider, such as energy conservation and efficiency, and noncombustible renewable energy
ISS9 15"
Wis. Stat. $9 196.491(3)(d)3.-3r.and 4. See Clean Wisconsin, Inc. v. PSC, 2005 WI 93,282 Wis. 2d 250,700 N.W.2d 768, for a discussion of this
statutory requirement.
Chapter 14 Utility Infiastructirre Siting
resource^.'^^' A 2003 revision to the Energy Priorities Law added priorities for the siting of new electric transmission facilities, including "to the greatest extent feasible" maximizing the use of existing utility corridors.'592
B. Certificate of Authority While a CPCN is required for the largest electric utility infrastructure projects, smaller projects may require a certificate of authority (CA). The threshold sizes for electric projects needing a CA are specified in Wis. Admin. Code ch. PSC 112. A CA may also be required for natural gas ~ r 0 j e c t s . l ~ ~ ~ For electric projects, to issue a CA, the PSC must find that the project is required for the "public convenience and necessity" and that it complies with Wis. Stat. ยง 196.49(3)(b)."~~ The PSC applies a similar standard to natural gas projects.1s95The joint application process with the PSC and DNR as discussed above for CPCN's is also applicable to CA's."~~Both WEPA and the Energy Priorities Law also apply to CA proceedings. V. RECENT LEGISLATIVE ACTS AFFECTING PSC AND DNR UTILITY PROJECT PERMITTING After many years of relatively little construction, the number of utility infrastructure projects proposed for approval and under construction in Wisconsin has increased significantly in the last few years. Several large projects focused attention on inconsistencies in the applicable PSC and DNR regulations and the need for improved coordination between the two agencies, as well as the challenges of implementing state agency approvals in the face of local government
Stat. $ 1.12(4). See Wis. Stat. (j 1.12(6), created by 2003 Wis. Act 89, fi 1. Wis. Stat. (j 196.49(5) and Wis. Admin. Code ch. PSC 133. 1594 Wis. Stat. (j 196.49(3)@);Wis. Adrnin. Code (j PSC 112.07(1). Wis. Admin. Code fi PSC 133.05(2). Wis. Stat. (j 30.025(ls)(b).
1591 See Wis. 1592
Chapter 14 Utility Injiastructure Siting
opposition. As a result, three separate bills were enacted to address these situations: 2003 Wisconsin Act 89,2005 Wisconsin Act 29, and 2005 Wisconsin Act 24. Factors giving rise to each of these bills and the essential provisions of each are summarized below. A. 2003 Wis. Act 89 The problem addressed in Act 89 was the lack of coordination between DNR and PSC when making approval and permitting decisions on energy projects and the potential for one agency's decision to effectively veto that of the other. The primary impetus to enactment of Act 89 was a natural gas pipeline project in south-central
isc cons in.'^^^ After a detailed review and hearing
process, PSC issued a CA for construction of the project finding that the natural gas pipeline is necessary to serve the public interest, is properly designed, and can be constructed in an environmentally sound manner. Because portions of the approved route would cross streams and impact wetland areas, the utility applied to DNR for permits required under Wis. Stat. ch. 30 and Wis. Admin. Code chs. NR 103 and 299. However, DNR was unwilling to issue permits for construction on that route, believing that significant portions of the route selected by PSC did not meet the permit criteria. Following lengthy negotiations among the utility, DNR, various environmental advocacy groups, and individual property owners, agreement was reached on a revised route, and the DNR permits were issued. Because the route was significantly revised, the utility was required to resubmit it to PSC for approval, which was ultimately granted to allow construction to commence. Act 89 revised Wis. Stat.
5 30.025
to establish a unique procedure for DNR wetland and
waterway permitting of utility facilities that require either a CA or a CPCN and made companion
Often referred to as the Guardian Lateral project, this project was constructed by Wisconsin Gas Company, a subsidiary of Wisconsin Energy Corporation, and is now known as the Ixonia Lateral.
Chapter 14 Utility Infrastructure Siting revisions to Wis. Stat.
$5
196.49 and 196.491. Section 30.025 now calls for contemporaneous
submittal of a project permit application to DNR for wetland and waterway permits and a project application to the PSC for either a CA or C P C N . ' ~ ~Prior ' to submitting these applications, the project applicant is to confer with DNR and PSC to identify needed permits, timelines, alternatives and potentially interested parties wishing to be involved in the siting process.'599 PSC is given special inspection authority for these purposes, which can be used to obtain information necessary to prepare or review an application for a CA or CPCN and to evaluate any environmental features or effects that are relevant to the application.1600 DNR may hold a public informational hearing on the project and if PSC holds technical evidentiary hearings, DNR is to participate in those proceedings to provide DNR's evaluation of the proposed location, site or route for the utility f a ~ i l i t y . ' ~The ~ ' opportunity for a public informational hearing is provided before DNR issues its permit. (Prior to this law, a contested case hearing could be requested before the permit was issued.1602)DNR and PSC staff are to coordinate the substance and timing of their reviews to enable the PSC to act on the CA or CPCN application within the timeframe established in Wis. Stat. ch. 196I6O3and to have the benefit of DNR project evaluation at the time the PSC makes its final decision. DNR is to adopt the PSC's decision approving a site, route or location for the facility as DNR's conclusion that the approved site, route or location is the only practicable alternative for purposes of wetland water quality standards analysis under Wis. Stat. 9 30.025(1), as amended by 2003 Wis. Act 89, 9 8. Wis. Stat. 9 30.025(1m), as created by 2003 Wis. Act 89, 9 11. 1600 Wis. Stat. 9 66.01 19(1)(a), as amended by 2003 Wis. Act 89,922; Wis. Stat. 8 196.02(5m), as created by 2003 Wis. Act 89, 9 29. ''01 Wis. Stat. 9 30.025(2), as amended by 2003 Wis. Act 89,s 14; Wis. Stat. 8 30.025(2g), as created by 2003 Wis. Act 89, 9 15. ''02 2003 Wis. Act 118, signed into law on December 3,2003 and effective on February 6,2004, made a similar change in the chapter 30 procedures for non-utility projects, by eliminating the opportunity for a contested case hearing before the permit is issued and replacing it with a pre-permit issuance public informational hearing and slightly revised post-permit issuance contested case hearing opportunity. ''03 180 days for a CPCN, extendable to 360 days upon sufficient showing to the Dane County Circuit Court (Wis. Stat. 9 196.491(3)(g)); no set time frame for a CA. 15" Wis. 1599 -
~
Chapter 14 Utility Infiastructure Siting
Admin. Code ch. NR 103, subject to certain conditions, and may not require the applicant to evaluate other alternative sites, routes or locations.'604DNR is to issue wetland and waterway permits within 30 days of the PSC decision.'605 Act 89 also directed DNR and PSC to coordinate their respective duties under the WEPA (Wis. Stat.
5 1.11) for any project requiring PSC approval and a DNR wetland and waterway
permit.1606In addition, Act 89 created expedited review procedures for limited work on highvoltage transmission lines, and for construction of new lines of less than 345 kilovolts if all related construction takes place within the existing transmission line right-of-way.'607Act 89 also revised the Energy Priorities Statute to address the use of existing utility corridors where possible in siting new transmission lines. Act 89 established the following siting priority for electric transmission lines: (1) existing utility corridors; (2) highway and railroad corridors; (3) recreational trails where facilities may be constructed below ground and do not significantly impact environmentally sensitive areas; and (4) new corridors.1608
B. 2005 Wis. Act 29 The primary issue addressed in Act 29 was demonstrated by a trial court's decision in the siting of an expanded electric generating station.1609 Specifically, Act 29 addresses what constitutes a complete application for a CPCN. Act 29l6I0created Wis. Stat. ยง 196.491(3)(a)2rn., 1604 Wis.
s
Stat. ยง 30.025(2s), as created by 2003 Wis. Act 89, 16. Stat. 9 30.025 (4), as amended by 2003 Wis. Act 89,s 19. 60'' Wis. Stat. $9 30.025(2g) and (2s). I6O7 Wis. Stat. $ 196.491(3b), as created by 2003 Wis. Act 89, $ 4 6 ; Wis. Stat. 196.491(4)(~), as afected by 2003 Wis. Act 89, Q$ 47-49. 1608 Wis. Stat. $ 1.12(6), as created by 2003 Wis. Act 89, $ 1. This policy is also reflected in the "Cooperative Agreement Between the Wisconsin DOT and the PSC Regarding the Construction of New Electric Transmission Lines7'signed by the PSC and the Department of Transportation on November 24,2003. I6O9 The project is known as the Elm Road Generating Station, and involved expansion of the Wisconsin Electric Power Company Oak Creek Power Plant in Oak Creek, Wisconsin. On appeal, the trial court's decision was overturned in its entirety by the Supreme Court. See Clean Wisconsin,Inc. v. PSC, 2005 WI 93,282 Wis. 2d 250, 700 N.W.2d 768. l6I0 Act 29 became effective on August 27,2005 and applies to applications filed with, pending before, reopened or reconsidered by the PSC on or after that date. 1605 Wis.
Chapter 14 Utility Infi.astructure Siting which allows the PSC to find the application for large electric generating facilities and highvoltage transmission lines complete in the following circumstances: The application for a large electric generating facility may include some but not all of the information needed to evaluate the construction of such transmission facilities by a third party. Executed transmission agreements are not required. In proposing alternative sites, the application may include proposed sites that are contiguous or proximate, provided at least one of the proposed sites is a Brownfields site or the site of a former or existing large generating facility. Sites need not be under separate ownership to be considered "alternatives". The applicant has not yet obtained all DNR permits and approvals required for construction. Additionally, for any project requiring a CPCN, the law now clarifies that PSC can issue a CPCN before the DNR construction permits have been i~sued.'~" This clarification is consistent with revisions made to Wis. Stat. 5 30.025 described above in 2003 Wisconsin Act 89. C. 2005 Wis. Act 24
Issues arising as part of the construction of a major high-voltage transmission line across northern Wisconsin led to enactment of Act 24.1612 Following a detailed review and hearing process, PSC issued a CPCN for construction of the transmission line. The approved project route crossed many counties, including a portion of county-owned land. Project opponents prevailed on the county board to deny access on county lands and the county board rehsed to negotiate with the utility. It was unclear whether statutes allowed condemnation of state-, municipal- and county-owned property for utility projects.'613 Act 24 created Wis. Stat.
5 196.491(3e) which provides that if an electric utility receives a
CPCN for construction of a high-voltage transmission line that will be constructed over, on, or Wis. Stat. $ 196.491(3)(e), as amended by 2005 Wis. Act 29,s 2. The project, known as the Arrowhead-Weston Transmission Line, constructed by American Transmission Company (ATC) and the Wisconsin Public Service Corporation in Wisconsin, was a joint project with Minnesota Power and involved construction of over 200 miles of transmission line from Minnesota through northern and north central Wisconsin to a connection point near Wausau, Wisconsin. I6l3 Wis. Stat. jj 32.03(1). la'
1612
Chapter 14 Utility Inj?astructure Siting
under land owned by a county, city, village, town, public board or commission, the landowner shall convey the land to the utility at fair market value. It also establishes a mechanism for determining fair market value in the event of a dispute between the utility and the landowner.
CHAPTER 15 INSURANCE COVERAGE FOR ENVIRONMENTAL LIABILITIES Cynthia E. Smith I. OVERVIEW Past and present insurance policies may provide insurance coverage for liabilities arising from environmental damage or injury to persons or property. Whether insurance coverage is available depends upon the language and type of the insurance policies at issue and the facts and circumstances surrounding the claims. The issue is complex and the subject of much litigation in Wisconsin and elsewhere. Accordingly, the topic cannot be treated comprehensively in a single chapter. However, this chapter will highlight some of the important issues under Wisconsin law when coverage is sought for environmental liabilities under comprehensive general liability and excess liability insurance policies. This chapter will also identify additional types of specialty insurance coverage that may be available for purchase to insure environmental risks and liabilities. 11. APPLICABLE CASE LAW Listed below are a few key cases discussing the availability of insurance coverage under comprehensive general and excess liability policies: City of Edgerton v. General Cas. Co., 184 Wis. 2d 750,5 17 N.W.2d 463 (1994), rev 'd by Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108,264 Wis. 2d 60,665 N.W.2d 257 Johnson Controls, Inc. v. Employers Ins. of Wausau, 2003 WI 108,264 Wis. 2d 60,665 N.W.2d 257 Society Ins. v. Town of Franklin, 2000 WI App 35,233 Wis. 2d 207,607 N.W.2d 342 Just v. Land Reclamation, Ltd., 155 Wis. 2d 737,456 N.W.2d 570 (1990) American States Ins. Co. v. Skrobis Painting & Decorating, 182 Wis. 2d 445, 5 13 N.W.2d 695 (Ct. App. 1994) Peace v. Northwestern Nat'l Ins. Co., 228 Wis. 2d 106,596 N.W.2d 429 (1999) Donaldson v. Urban Land Interests, Inc., 21 1 Wis. 2d 224,564 N.W.2d 728 (1997)
Chapter 15 Insurance Coverage .for Environmental Liabilities
111. DISCUSSION OF ISSUES AND APPLICABLE CASE LAW A. Comprehensive General Liability Policies and Excess Policies
The traditional comprehensive general liability (CGL) policy obligates the insurer to (I) indemnify the insured for all sums the insured may become legally obligated to pay as damages, and (2) to defend the insured in any "suit" seeking "damages". Excess policies provide similar coverage above the underlying CGL policies. There are two general types of CGL and excess policies: (I) occurrence based policies; and (2) "claims-made" based policies. An occurrence based policy provides coverage for bodily injury or property damage caused by an "occurrence" that is typically defined as "an accident or a continuous or repeated exposure to conditions which results in property damage neither expected or intended by the insured. A claims-based policy provides coverage claims for bodily injury or property damage provided such claims are made during the policy period. Simply put, the distinction between these types of policies is that "occurrence" based policies provide coverage when the damage or injury occurs-regardless
of when a claim may be made-
whereas claims-made policies may provide coverage when a claim is made. Given the nature of coverage provided under occurrence based policies, coverage has been sought under such policies for environmental damages that occurred during the terms of the policies (sometimes dating as far back as the 1900s) where the environmental damage was not discovered until decades later. Some of the issues that are often involved in whether coverage is available include the following: (1) are the sums sought "damages"; (2) has there been a "suit" requiring a defense be provided; (3) did the damage or injury occur during the policy period (also known as the trigger issue); and (4) is the damage or injury excluded by a pollution exclusion contained in the policy. This list is not intended to be an exhaustive list of the potential issues
Chapter 15 Insurance Coverage.for Environmental Liabilities
that may arise under CGL and excess liability policies. Each of these issues will be discussed below.
B. Are Cleanup Costs "Damages"? Typical CGL and excess policies require the insurance company to pay for all sums the insured is "legally obligated to pay as damages." In City of Edgerton v. General Casualty
co.,1614 the Wisconsin Supreme Court concluded that the costs incurred in responding to a governmental directive to cleanup were not "damages" for which coverage is available. In July,
2003, Edgerton was reversed by Johnson Controls, Inc. v. Employers Insurance of ~ a u s a u , ' ~ ' ~ and the narrow definition of "damages" is no longer law. Under Johnson Controls, the Wisconsin Supreme Court held that cleanup costs incurred in responding to a governmental demand are "damages" for which coverage is available unless otherwise excluded under the policy. C. Has a "Suit" Been Filed Requiring a Defense? CGL policies typically provide that the insurance company has a duty to defend the insured for "suits" seeking damages. In Edgerton, the Wisconsin Supreme Court concluded that a potentially responsible party (PRP) letter or comparable notification letter from a state agency did not constitute a "suit." Instead, the court narrowly defined "suit" to include only judicial In Johnson Controls, the Wisconsin Supreme Court also reversed its holding on the "suit" issue, concluding that receipt of a PRP letter did constitute a suit triggering the insurance companies duty to defend.
1614
City of Edgerton v. General Cas. Co., 184 Wis. 2d 750,5 17 N.W.2d 463 (1994), rev'd by Johnson Controls, Inc. v. Employers Ins. of Wausau,2003 WI 108,264 Wis. 2d 60,665 N.W.2d 257. ' 6 ' 5 J ~ h nControls, ~ ~ n Inc. v. Employers Ins. of Wausau,2003 WI 108,264 Wis. 2d 60,665 N.W.2d 257. " I 6 184 Wis. 2d at 770-71.
Chapter 15 Insurance Coverage for Environmental Liabilities D. Did Property Damage Occur During the Policy Period?
As previously discussed, "occurrence" based policies provide coverage only for property damage that occurs during the policy period. Courts have adopted a number of theories when deciding when the property damage occurred. Some courts have held that a policy is triggered when the property is exposed to damaging substances or pollutants (known as the exposure theory). Other courts have held that a policy is triggered only when property damage is discovered or becomes known to the insured or a third party (known as the manifestation theory). Another theory adopted by the courts is that all policies are triggered during the years in which actual injury is proven, but only for those damages which occurred during each policy period (known as the injury-in-fact trigger).
A fourth trigger theory is known as the continuous trigger theory which holds that all policies insuring the risk from the date of initial exposure through manifestation are triggered. Wisconsin has specifically adopted the continuous trigger in the environmental context. In Society the ' ~Town of Franklin sought insurance coverage from Society Insurance v. Town of ~ r a n k l i n , ' ~ Insurance Company for environmental liabilities associated with the Town landfill. Society had issued consecutive one-year policies to the Town from 1972 through 1986. The landfill was operated from 1940 through 1976. In 1981, contamination from the landfill was discovered. The court concluded that all of the Society policies were triggered: "[wlhile all damages resulted from one ongoing occurrence, that occurrence gave rise to property damage each year, thus triggering coverage under each of the various policies.9,1618
I6l7 I6l8
Society Ins. v. Town ofFranklin, 2000 WI App 35,233 Wis. 2d 207,607 N.W.2d 342. Id., fi 1.
Chapter 15 Insctr-ance Coverage for Environmental Liabilities
E. Does the Pollution Exclusion Preclude Coverage? Beginning in the 1970s, the insurance companies added a pollution exclusion to their policies that typically read: This policy does not apply to ... property damage arising out of the discharge, dispersal, release or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids, gases, waste materials or other irritants, contaminants or pollutants into or upon the land, the atmosphere, or any watercourse or body of water; but this exclusion does not apply if such dispersal, release or escape was sudden and accidental. In Just v. Land Reclamation, ~ t d . , 'the ~ 'Wisconsin ~ Supreme Court concluded that the terms "sudden" and "accidental" as used in the exclusion were ambiguous and therefore had to be interpreted in a manner more favorable to the insured. Accordingly, the court concluded that the terms sudden and accidental meant unexpected or unintended. As such, the sudden and accidental pollution exclusion does not preclude coverage for the gradual contamination that occurred over time at the landfill at issue in Just because the insureds did not expect or intend the groundwater contamination to result. Commencing in the mid-1980s, the insurance companies introduced a new pollution exclusion, often referred to as an "absolute" pollution exclusion which precluded coverage for any claim, action, judgment, liability, settlement of any obligation arising out of the discharge, dispersal, release or escape of pollutants. In American States Insurance Co. v. Skrobis Painting & ~ e c o r a t i n g , 'the ~ ~court ~ concluded that the exclusion precluded coverage for costs incurred
by the insured in remediating contamination caused by the release of diesel fuel. In Peace v. Northwestern National Insurance C O . , ' ~ the ~ ' court concluded that injuries that resulted from the
ingestion of lead-based paint chips and dust were not covered by the insurance policy. However,
1619
Just v. Land Reclamation, Ltd., 155 Wis. 2d 737,456 N.W.2d 570 (1990). American States Ins. Co. v. Skrobis Painting & Decorating, 182 Wis. 2d 445,513 N.W.2d 695 (Ct. App. 1994). 162' Peace v. Northwestern Nat'l Ins. Co., 228 Wis. 2d 106,596 N.W.2d 429 (1999). 1620
Chapter 15 Insurance Coverage for Environmental Liabilities
the court has found that the exclusion did not preclude coverage for certain types of pollution claims.'622
F. Pollution Legal Liability and Other Specialty Insurance Policies Beginning in the 1980s, insurance companies began to market insurance policies designed to specifically cover environmental risks and claims. For example, a Pollution Legal Liability1 Environmental Impairment Liability Policy became available that was designed to cover claims arising from pollution conditions on, within, or under covered locations or emanating from covered locations. This coverage includes claims for cleanup costs, bodily injury and property damage and may also cover claims related to off-site waste disposal sites. Another type of specialty type coverage which is now available is Cleanup Cap or Stop Gap Coverage which is designed to cover an increase in the costs of a known cleanup.
IV. CONCLUSION Litigation is likely to continue regarding the extent to which occurrence based policies sold prior to 1986 provide coverage for contamination that occurred in the past. Litigation may also arise as claims are made under newer types of specialty pollution/cleanup policies.
'*61 See, e.g., Donaldson v. Urban Land Interests, Inc., 21 1 Wis. 2d 224,564 N.W.2d 728 (1997) (exclusion did not preclude coverage for injuries that resulted from the build-up of carbon dioxide that was caused by an inadequate ventilation system).
CHAPTER 16 COMMON LAW LIABILITY Cynthia E. Smith I. OVERVIEW Environmental law is multi-faceted. As discussed in other chapters, state and federal statutory and administrative laws impose obligations and liabilities for protection of the environment. However, prior to the enactment of these statutory laws, courts in Wisconsin recognized that remedies existed to address damage to property. "It has long been the law of this state that the cost of repairing and restoring damaged property and water to its original condition is a proper measure of compensatory damages.,71623 The enactment of state and federal legislation (such as the Wisconsin Spill
or the federal Comprehensive Environmental Response,
Compensation and Liability A C ~ ' ~did ~ ' )not change the availability of remedies and relief under the common law. Section 292.3 l(1O)(a) of the Wisconsin Statutes specifically provides, "No common law liability, and no statutory liability which is provided in other statutes, for damages resulting from a site or facility is affected in any manner by this section. The authority, power and remedies provided in this section are in addition to any authority, power or remedy provided 9,
in any other statutes or provided at common law.
I626
This chapter will discuss whether and under what circumstances a private party may recover monetary damages or other relief under legal theories that have evolved over the centuries in the
'623 General Cas. Co. of Wisconsin v. Hills, 209 Wis. 2d 167, 181,561 N.W.2d 718 (1997) (citing Jost v. Dairyland Power Coop., 45 Wis. 2d 164,172 N.W.2d 647 (1969); Anstee v. Monroe Light & Fuel Co., 171 Wis. 291,177 N.W. 26 (1920); Pedelty v. Wisconsin Zinc Co., 148 Wis. 245, 134 N.W. 356 (1912); Fortier v. Flambeau Plastics Co., 164 Wis. 2d 639,476 N.W.2d 593 (Ct. App. 1991), rev. denied, 479 N.W.2d 172 (1992). Seegenerally Russell M. Ware, The Law ofDamages in Wisconsin,$9 18.4 and 18.22 (1988 & Supp. 1996); Nischke v. Farmers & Merchants Bank & Trust, 187 Wis. 2d 96,522 N.W.2d. 542 (Ct. App.), rev. denied, 527 N.W.2d 335 (1994). Wis. Stat. 5 292.1 1. 1625 42 U.S.C. 5 9601, et seq. '626 See also 42 U.S.C. 5 9652(d) ("Nothing in this Act [CERCLA] shall affect or modify in any way the obligations or liabilities of any person under other Federal or State law, including common law, with respect to releases i f hazardous substances or other pollutants or contaminants ....").
Chapter 16 Contnzon Law Liability courts and were not promulgated by the Legislature or administrative agencies. The body of legal theories developed by the courts in the context of specific cases is often referred to as the common law. The Wisconsin Supreme Court is the ultimate arbiter in disputes arising from the common law. Cases that are brought under the common law and arise from alleged injuries or damages resulting fiom environmental damage or injury are sometimes referred to as "toxic tort" cases. A "tort" can be generally defined as "a civil wrong, other than a breach of contract, for which the court will provide a remedy in the form of an action for damages.7,1627 Torts are distinct fiom crimes or violations of statutes which are considered wrongs against the general public and punishable by fines and/or imprisonment and generally only the State can seek redress. Any injured person can bring a tort action (referred to as the "plaintiff') against the alleged wrongdoer (referred to as the "defendant") to recover money and/or seek to stop the wrongful conduct. The primary common law theories used to recover damages for injuries to person or property arising fiom environmental conditions are negligence, nuisance, trespass and strict liability. In addition, where the sale of real property is involved, common law claims of misrepresentation may arise. Section I1 of this chapter will identify some of the key Wisconsin cases which have addressed relief under the common law in the environmental context. Section I11 will identify and discuss the elements that must be established to have a cognizable claim under negligence, nuisance, trespass, strict liability, and misrepresentation. Section IV will identify the remedies that may be available under the common law where property has been damaged or a person has been injured by the release of contaminants or pollutants. SectionV will discuss potential defenses to liability that may exist under the common law. The chapter will conclude with an
'627 Prosser and Keeton on
Torts at Cj 1 (5th ed.).
Chapter 16 Conimon Law Liability
identification of future issues that may emerge as the common law continues to evolve in the environmental context. 11. APPLICABLE CASE LAW Some of the key cases that have applied common law theories to claims arising from pollution or contamination include the following: Fortier v. Flambeau Plastics Co., 164 Wis. 2d 639,476 N.W.2d 593 (Ct. App. l99l), rev. denied, 479 N.W.2d 172 (1992) (negligence, nuisance, trespass and strict liability) Nischke v. Farmers & Merchants Bank & Trust, 187 Wis. 2d 96,522 N.W.2d 542 (Ct. App. 1994) (negligence) Kleinke v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138,549 N.W.2d 714 (1996) (negligence) Anstee v. Monroe Light & Fuel Co., 171 Wis. 291, 177 N.W. 26 (1920) (nuisance) Jost v. Dairyland Power Coop., 45 Wis. 2d 164, 172 N.W.2d 647 (1969) (nuisance) State v. Michels Pipeline Constr., Inc., 63 Wis. 2d 278,2 17 N.W.2d 339, 2 19 N.W.2d 308 (1974) (nuisance) Pedelty v. Wisconsin Zinc Co., 148 Wis. 245, 134 N.W. 356 (1912) (trespass) Bennett v. Larsen Co., 118 Wis. 2d 681,348 N.W.2d 540 (1984) (strict liability) Kinnickv. Schierl, Inc., 197 Wis. 2d 855,541 N.W.2d 803 (Ct. App. 1995) (contribution) 111. DISCUSSION OF APPLICABLE CASE LAW A. Negligence A plaintiff can recover damages under negligence if the plaintiff proves: (1) a duty recognized by law which requires conformance to a standard of conduct; (2) another has breached its duty by failing to confirm to the standard of conduct; (3) a causal connection between the conduct and resulting injuries; and (4) actual losses or damages.'628 Duty is an important factor in determining whether an act is negligent.1629In order to prove negligence, the plaintiff must first establish that the defendant owed him or her a duty.1630"Each
'628 Restatement (Second) of Torts 9 28 1 (1965); A.E. Investment Corp. v. Link Builders, Inc., 62 Wis. 2d 479,484, 214 N.W.2d 764 (1974); Rockweit v. Senecal, 197 Wis. 2d 409,418,541 N.W.2d 742 (1995) (citations omitted). See also Nieuwendolp v. American Family Ins. Co., 191 Wis. 2d 462,475,529 N.W.2d 594 (1995). 1629 A.E. Investment Colp., 62 Wis. 2d at 484. 1630 Schicker v. Leick, 40 Wis. 2d 295,299, 162 N.W.2d 66 (1968).
Clzapteu 16 Comnion Law Liability
individual is held, at the very least, to a standard of ordinary care in all a~tivities."~'~' "[Tlhe proper analysis of duty in Wisconsin is as follows: 'The duty of any person is the obligation of due care to refrain from any act which will cause foreseeable harm to others even though the nature of that harm and the identity of the harmed person or harmed interest is unknown at the time of the act ....9,31632 ~ ~ ~defendant's duty is established when it can As the court stated in RoZph v. EBI C O S . , ' "[a] be said that it was foreseeable that his act or omiss'ion to act may cause harm to someone." The duty is to refrain from such act or omission.1634 A duty of care is breached when a person fails to exercise ordinary care. A person fails to exercise ordinary care, when regardless of intent, he or she does something or fails to do something under circumstances in which a reasonable person would foresee that by his or her action or failure to act, he or she will subject a person or property to an unreasonable risk or injury or damage.1635A person may be in compliance with all applicable statutes and regulations yet still be found negligent.'636 However, where a person's conduct violates a "safety statute," such a violation may constitute negligence as a matter of law.1637 In addition to demonstrating a breach of a duty of care, a party must prove that such a breach caused injury or damage. The term "cause" means that another's conduct was a substantial factor
Rockweit, 197 Wis. 2d at 419. Id. at 419-20 (citing A.E. Investment, 62 Wis. 2d at 483-84). ~ o l p hv. EBI Cos., 159 Wis. 2d 518,532,464 N.W.2d 667 (1991). A.E. Investment, 62 Wis. 2d at 485. Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250,261,580 N.W.2d 233 (1998) (citing Wis. JI-Civil 1005). 1636See Blanchard v. Terpstra, 37 Wis. 2d 292,299,155 N.W.2d 156 (1967). Walker v. Bignell, 100 Wis. 2d 256,301 N.W.2d 447 (1981). Safety statutes are those legislative enactments that are designed to protect a certain class of persons from a particular type of harm. Id. at 268. See also Bennett v. Larsen Co., 118 Wis. 2d 681,693-94,348 N.W.2d 540 (1984). A statute is not a safety statute if the Legislature merely intended to protect the general public. See In re Estate of Drab, 143 Wis. 2d 568,570-71,422 N.W.2d 144 (Ct. App. 1988). The courts have concluded that environmental statutes in Wisconsin, like the Spill Statute, are not safety statutes and therefore violation of the same does not constitute negligence as a matter of law. Grube v. Daun, 210 Wis. 2d 681,693,563 N.W.2d 523 (1997).
Chapter 16 Common Law Liability
in bringing about the
The negligent conduct need not be the sole or primary factor
causing the injury, but it must be a substantial factor.'639 Wisconsin courts have allowed plaintiffs to seek damages where the defendant's negligence results in groundwater c ~ n t a m i n a t i o n .In ' ~ ~Fortier ~ v. Flambeau Plastics Co., residential land owners sued generator companies which had disposed of hazardous materials at a neighboring landfill from 1952 through 1987. The plaintiffs sought damages for the contaminated groundwater which had been used for drinking water. The court examined whether the generators knew or should have known that their disposal activities posed a risk of contaminating the gr~undwater.'~~' In Nischke v. Farmers & Merchants Bank & Trust, the bank foreclosed on secured property which included a gas pump and underground tank that was located on the plaintiffs property pursuant to a lease agreement with the debtor. When contamination emanating from the tank was discovered by Nischke, she asserted that the bank was negligent for failing to inform her that it was abandoning its security interest in the gas tank, and failed to exercise reasonable care in its dominion and control over the secured property.'642
B. Nuisance Generally, a nuisance is "an unreasonable activity or use of property that interferes substantially with the comfortable enjoyment of life, health, safety of another or others."'643
'638 Johnson v. Misericordia Cmty. Hosp., 97 Wis. 2d 521,560,294 N.W.2d 501 (Ct. App. 1980), af'd, 99 Wis. 2d 708,301 N.W.2d 156 (1980). 1639 ~ o r ~ v. a Pennsylvania n Gen. Ins. Co., 87 Wis. 2d 723,275 N.W.2d 660 (1979). See Fortier v. Flambeau Plastics Co., 164 Wis. 2d 639,663,476 N.W.2d 593 (Ct. App. 1991); Nischke v. Farmers &Merchants Bank & Trust, 187 Wis. 2d 96,522 N.W.2d 542 (Ct. App. 1994). '@I Fortier v. Flambeau Plastics Co., 164 Wis. 2d 639,662-66,476 N.W.2d 593 (Ct. App. 1991). Nischke v. Farmers &Merchants Bank & Trust, 187 Wis. 2d 96,104,522 N.W.2d 542 (Ct. App. 1994). 'a3State v. Quality Egg Farm, Inc., 104 Wis. 2d 506,517,311 N.W.2d 650 (1981).
Chapter 16 Common Law Liability
Once a nuisance is established, a court must then determine whether the nuisance is a public nuisance or a private nuisance. 1644
C. Private Nuisance In Wisconsin, "[a] private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of
Wisconsin has adopted the analysis for private nuisance
as set forth in section 822 of the Restatement (Second) of Torts, which provides: One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either (a) intentional and unreasonable, or (b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.1646 "When one landowner's use of his or her property unreasonably interferes with another's enjoyment of his or her property, that use is said to be a private nuisance.,91647 The focus in determining whether a particular nuisance is actionable depends on whether the interference with the use and enjoyment of land is unreasonable and ~ubstantia1.l~~~ Inconvenience or annoyance arising from infringement on the use and enjoyment of property is not actionable unless the interference causes "significant harm.9,1649 If the interference is "petty or trifling" it does not give rise to a cause of action for nuisance: "By significant harm is meant harm of importance, involving more than slight inconvenience or petty annoyance. The law does
1644 Id.
Fortier, 164 Wis. 2d at 676 (citing Restatement (Second) of Torts (i 821(d) (1979)). ~estatement(Second) of Torts (j 822 (1979); see also Prah v. Maretti, 108 Wis. 2d 223,240 n. 15,321 N.W.2d 182 (1982). lM7 Prah, 108 Wis. 2d at 23 1. l M 8 Krueger v. Mitchell, 112 Wis. 2d 88,108,332 N.W.2d 733 (1983). 1649 Id. at 106; Restatement (Second) of Torts (j 821F (1979). lM6
Chapter 16 Cnnmon Law Liability not concern itself with trifles, and therefore there must be a real and appreciable invasion of the 77
plaintiffs interests before he can have an action for either a public or a private nuisance.
16.50
Only "significant harm" or substantial injury are compensable under nuisance.1651 "Substantial injury is defined as 'tangible' injury, or as a 'discomfort perceptible to the senses of ordinary people. ,791652 Although a plaintiffs subjective feelings of unreasonable harm are an essential showing for a valid nuisance claim, they are not, alone, sufficient.1653A plaintiff must also establish (in addition to subjective harm) that reasonable members of the community also would consider the interference to be unreasonable: "The standard for the determination of significant character is the standard of normal persons or property in the particular locality. If normal persons living in the ... community ...would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one ....
7,
1654
An activity may create a private nuisance even though it
is not Wisconsin courts have long held that contamination of groundwater used for drinking water constitutes a private nuisance. "Chemicals seeping or percolating through groundwater can constitute an invasion" sufficient to establish a private nuisance.1656In Anstee v. Monroe Light & Fuel Co., 1657 the Wisconsin Supreme Court awarded damages for the nuisance created by a gas plant for discharging tarry liquid wastes into a river. The tarry waste eventually infiltrated and contaminated neighboring soils, groundwater and well water. The plaintiff was awarded $1,200
Krueger, 112 Wis. 2d at 106-07 (quoting Restatement (Second) of Torts 8 821F). See Jost v. Dairyland Power Coop., 45 Wis. 2d 164,172,172 N.W.2d 647 (1969). Id. (citing Pennoyer v. Allen, 56 Wis. 502, 14 N.W. 609 (1883)). 1653 Krueger, 112 Wis. 2d at 107. 1654 Id. (quoting Restatement (Second) of Torts 8 821F). Id. at 103. Fortier, 164 Wis. 2d at 676. See also Anstee v. Monroe Light & Fuel Co., 171 Wis. 291, 177 N.W. 26 (1920). '657 ~ n s t e v. e Monroe Light & Fuel Co., 171 Wis. 291, 177 N.W. 26 (1920).
353
Chapter 16 Cnntrnon Law Liability
for the soil contamination and $100 for his polluted well. In addition, the gas plant was permanently enjoined from making future "deposits of industrial waste upon its premises in such a manner as to cause fbrther pollution of plaintiffs soil.,91658 In Jost v. Dairyland Power ~ o o ~ e r a t i v eplaintiff , ' ~ ~ ~ sought diminished market value under nuisance where certain crops were dying or had been destroyed completely due to defendant's discharge of sulfur fumes into the atmosphere. Since it was undisputed that the fumes physically damaged the alfalfa crops, the court concluded that the injury was "substantial" and therefore compensable under nuisance.'660
D. Public Nuisance Common law public nuisance is the wrongful interference with the rights of the community at large: "There must be a substantial injury tangible or discomfort perceptible to the senses of ordinary people. ,31661 "The 'public' does not have to include all the persons of the community but only a sufficiently large number of persons ....
7,
I662
Like private nuisance, Wisconsin courts have held that contamination of groundwater may constitute a public nuisance. In State v. Michels Pipeline Construction, I ~ c . , ' the ~ ~ court ~ concluded that interference with the use and enjoyment of groundwater may constitute a public nuisance. In that case, the state filed a public nuisance action against a county, its sewage commission and a contractor alleging that these parties were in the process of constructing a sewer that harmed the defendants by dewatering of the soil and lowering groundwater table from
"" Id.
at 292-93.
J O S ~V. Dairyland '"O
Power Coop., 45 Wis. 2d 164,172 N.W.2d 647 (1969). Id. at 172. State v. Quality Egg Farm, Inc., 104 Wis. 2d at 520. State v. Michels Pipeline Constr., Inc., 63 Wis. 2d 278,288,217 N.W.2d 339,219 N.W.2d 308 (1974). Id.
Chapter 16 Common Law Liability
which the area residents drew water for private wells. Accordingly, the unreasonable interference or harm to groundwater may constitute a public nuisance.
E. Trespass A trespass is established either by an intentional or unintentional invasion of another's possession of property resulting from reckless or negligent ~ 0 n d u c t . Under I ~ ~ ~ Wisconsin law, trespass requires an entry onto land in the possession of another.""
This entry can either be
direct or indirect. Entry may be made by causing or permitting something to cross the boundary of the premises whether the entry be above or below ground.1667 Wisconsin courts have long held that pollution of groundwater used for drinking water constitutes a trespass. In P e d e l ~v. Wisconsin Zinc C O . , ' ~ the ~ * court concluded that flowage of the mill sludge from defendant's property onto the surface of plaintiffs property and into his well water constituted a trespass. Similarly, the migration of contaminants through groundwater and into plaintiffs property and well water may constitute a trespass.
F. Strict Liability for Ultrahazardous Activity Another tort recognized under common law imposes strict liability upon a person who conducts an abnormally dangerous/ultrahazardous activity. When an activity is characterized by the courts as ultrahazardous, the person carrying on such an activity is liable for harm to others caused by that activity even where the person has exercised the utmost care.'670 The Wisconsin Supreme Court has recognized the doctrine of strict liability for ultrahazardous activities in the
Id. at 303. Fortier, 164 Wis. 2d at 677. lM6 Gilman v. Brown, 115 Wis. 1,91 N.W. 227 (1902). Steiger v. Nowakowski, 67 Wis. 2d 355,359,227 N.W.2d 104 (1975); Fortier, 164 Wis. 2d at 676. 1668Pedelty v. Wisconsin Zinc Co., 148 Wis. 245, 134 N.W. 356 (19 12). or tier. 164 Wis. 2d at 677. 1670 Restatement (Second) on Torts 9 519 (1977). '~5'
Chapter 16 Conrnzon Law Liability environmental context as embodied in sections 519 and 520 of the Restatement (Second) of
~orts.'~~' Section 519 of the Restatement (Second) of Torts subjects an actor to strict liability for engaging in an ultrahazardous activity: 1. One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. 2. This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.1672
Section 520 of the Restatement lists guidelines for determining whether an activity is abnormally dangerous: In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.1673 When applying the factors identified in the Restatement, Wisconsin courts have held that dredging and filling operations,1674 spraying of pesticides,1675and the use of a landfill to dispose
'671 See, e.g., Fortier, 164 Wis. 2d at 667 (citing Bennett v. Larsen Co., 118 Wis. 2d 681, 703,348 N.W.2d 540 (1984); Brown v. L.S. Lunder Constr. Co., 240 Wis. 122, 128,2 N.W.2d 859 (1942)). '672 Restatement (Second) of Torts Ej 519 (1977). Id., Ej 520. McLoone Metal Graphics, Inc. v. Robers Dredge, Inc., 58 Wis. 2d 704,207 N.W.2d 616 (1973). '675 Bennett v. Larsen Co., 118 Wis. 2d 68 1,704,348 N.W.2d 540 (1984).
Chapter 16 Common Law Liability of wastes containing volatile organic compounds during the time period at issue in that case were not ultrahazardous activities.'676
G. Misrepresentation The rule of caveat emptor ("buyer beware") traditionally controlled the sale of real estate, imposing no duty to disclose on the seller. Consequently, in the past there was no liability in a buyer's action against a seller for misrepresentation for failure to disclose environmental conditions of the property.'677This rule has undergone significant change in the past several decades. The Legislature and the courts have departed or relaxed this "no duty to disclose" rule by enacting specific statutory disclosure requirements and carving out a variety of exceptions requiring disclosure whenever justice, equity and fair dealing demand it.'678 Courts have held that the rule does not apply where a seller actively conceals a defect, where he or she prevents investigation, where he or she has made an ambiguous statement to create a false impression, or where the facts are peculiarly and exclusively within the knowledge of one party to the transaction and the other party is not in a position to discover the facts inde~endent1y.l~~~ To protect against injustice in the transfer of real property, the Wisconsin Supreme Court in Ollerman v. O'Rourke CO.,'~" ruled that a commercial seller has a duty to a purchaser to disclose facts which (1) are known to the seller, (2) are material to the transaction, and (3) are not readily discernible to the purchaser.'681Facts are "known" if the seller has actual knowledge or if the seller acts in reckless disregard to the existence of the fact. Facts are LLmaterial"if a reasonable buyer would attach importance to their existence or nonexistence. Finally, whether or
Fortier, 164 Wis. 2d at 675. Ollennan v. O'Rourke Co., 94 Wis. 2d 17,288 N.W.2d 95 (1980). Ollennan, 94 Wis. 2d at 30-33. '679 Id. at 30-3 1. Ollennan v. O'Rourke Co., 94 Wis. 2d 17,288 N.W.2d 95 (1980). '681 ~ dat . 42. 16"
Chapter 16 Contmotz Law Liability
not a fact is "readily discernible" depends upon the nature of the fact, the relation of the buyer and seller, and the nature of the t r a n s a ~ t i 0 n . I ~ ~ ~ In sum, caveat emptor no longer excuses real estate sellers from fully disclosing to potential purchasers the existence of conditions, including environmental conditions, which may be material to the decision to purchase and which the purchaser is in a poor position to discover. In Green Spring Farms v. Spring Green Farms, the court stated: "Where the material facts unknown to the buyer have to do with a physical condition known to the [seller] but difficult for the buyer to find, certainly then there is a duty to speak and tell the buyer about it.3,1683
H. Torts of Non-Disclosure When a seller has a duty to disclose a fact, failure to disclose such a fact is equivalent to the seller representing its nonexistence.1684A seller's failure to disclose, therefore, will be equated with the seller's (mis)representation that such a fadcondition did not exist. There are three torts of misrepresentation: intentional; negligent; and strict responsibility. Equating silence with a representation of nonexistence is applicable to all three torts.1685These three torts have three common elements: (1) a defendant making a factual representation; (2) which was untrue; and
(3) which the plaintiff believed to be true and relied on to his or her detriment. In the claim of intentional misrepresentation, two additional elements must be shown. First,
the plaintiff must prove that the defendant either made the representation knowing it was untrue or made it recklessly without caring whether it was true or false. Further, it must be proven that the defendant made the representation with intent to defraud and to induce another to act upon
-
1682 Id.
Green Spring Farms v. Spring Green Farms, 172 Wis. 2d 28,39,492 N.W.2d 392 (Ct. App. 1992). Wis. 2d at 26. 1685 Grube v. Daun, 173 Wis. 2d 30,56,496 N.W.2d 106 (Ct. App. 1992). Whipp v. Iverson, 43 Wis. 2d 166, 169-70, 168 N.W.2d 201 (1969). lm3
1684 Ollerman, 94
Chapter 16 Conrnzorz Law Liability
it.lbs7An allegation of negligent misrepresentation requires one additional element to the three common elements: the defendant was negligent in making the misrepresentation. In an action for negligence, it must be proven that the defendant had a duty, that was breached, and that caused the plaintiffs injury, and that actual loss or damage was suffered as a result by the Strict responsibility for misrepresentation requires two elements in addition to the three common elements. First, the defendant must have made the representation based on his or her own personal knowledge concerning a matter about which he or she purports to have knowledge and can be taken to have assumed responsibility as in the case of a warranty. Second, the defendant must have had an economic interest in the transaction.'689
I. Statutory and Regulatory Disclosure Requirements Wis. Stat.
5 709.02 requires that sellers of residential real estate in Wisconsin inform buyers
(by way of completion of a property condition report) about defects affecting the property's structure or value, or posing potential health or safety concerns. The required condition report requires the seller to disclose information regarding a number of conditions relating to the property, including but not limited to the following: the presence of underground or aboveground fuel storage tanks; defects caused by unsafe concentrations of, or unsafe conditions relating to radon, radium in water supplies, lead in paint, lead in soil, lead in water supplies or plumbing system, or other potentially hazardous or toxic substances on the premises; the presence of asbestos or asbestos-containing material on the premises; or defects caused by unsafe
Grube, 173 Wis. 2d at 54. Cofley v. City ofMilwaukee, 74 Wis. 2d 526,53 1,247 N.W.2d 132 (1976). 1689 Grube, 173 Wis. 2d at 55. '687
'688
Chapter 16 Coninion Law Liability concentrations of or unsafe conditions relating to or the storage of hazardous or toxic substances on neighboring properties.'690 The Residential Lead-Based Paint Hazard Reduction Act of 1 9 9 2 ' ~ ~requires ' sellers, landlords, and real estate agents to disclose the potential for lead-based paint hazards in residential dwellings constructed prior to 1978. These disclosure requirements did not impose requirements for the completion of lead-paint evaluations or abatement activities. However, in Antwaun A. v. Heritage Mutual Insurance C O . , ' the ~ ~ Wisconsin ~ Supreme Court imposed a common law duty (under the theory of negligence) upon a landlord to sample peeling paint and take other responsive measures where the landlord knew or should have known that peeling paint existed in the dwelling. IV. REMEDIES UNDER COMMON LAW A. Compensatory Damages The basic goal of awarding damages for injury to property is compensation-that
is to restore
the injured party's property to the condition it was in immediately prior to the injury.1693 Generally, Wisconsin courts have measured damage to real property by (1) the diminished value rule, or (2) the costs to restore the property-whichever
is less. Wisconsin has recognized a
unique exception to the general rule for measuring damages where a property has been damaged by contamination, allowing the recovery of the full costs of restoration even where the costs are in excess of the property value.
16" Wis. Stat. 5 709.03. The sellers are not the only persons with a duty to disclose known environmental conditions of the property to be sold. Wis. Admin. Code 9 RL 24.07 "imposes a duty upon a broker to conduct a reasonably competent and diligent investigation to determine the existence of material facts adverse to the transaction," including facts presenting a significant health risk to occupants of the property. See Grube, 173 Wis. 2d at 52; Wis. Admin. Code $5 RL 24.02 and 24.07. '69' 42 U.S.C. $9 4851-4856. '692 Antwaun A. v. Heritage Mut. Ins. Co., 228 Wis. 2d 44,596 N.W.2d 456 (1999). Zindell v. Central Mut. Ins. Co., 222 Wis. 575,583,269 N.W. 327 (1936) (owner recovered cost to restore damaged improvement so it could be used for all purposes for which it was used before the injury).
360
Chapter 16 Comnt on Law Liability
Under the diminished value rule, the injured party recovers the difference between the market value of the real estate immediately before and after the injury. This rule was applied in the environmental context.1694As an alternative to the diminished value rule, courts have allowed the recovery of restoration costs where such costs are less than the value of the land.'695In Nischke
v. Farmers & Merchants Bank &
rust,'^^^
the court examined the measure of damages in
negligence cases involving contamination. In this case, the court created an exception to the general rule in Wisconsin that a property owner's damages are the lesser of the cost of repair or the property's diminished value.1697In concluding that the plaintiff should be entitled to recover the cost to repair, even though it exceeded the diminution in property value, the court relied upon the legal obligation that was imposed upon the plaintiff under Wisconsin's Spill Statute (Wis. Stat. ยง 292.1 1) to investigate and remediate her property.'698 In addition to restoration costs or diminished value of the property, the courts have also awarded additional damages in trespass and nuisance cases. The courts have concluded that a plaintiff asserting a cause of action under trespass could also seek damages or compensation for discomfort and annoyance, as well as actual physical damage to the property.'699Similarly, in a
""
Pedelty v. Wisconsin Zinc Co., 148 Wis. 245,252,134 N.W. 356 (1912) (damages measured by property's diminution in market value where large quantities of mill waste sludge flowed from defendant's land onto plaintiffs land); Anstee v. Monroe Light & Fuel Co., 171 Wis. 291,294, 177 N.W. 26 (1920) (plaintiff awarded $1,200 as amount of diminished market value due to deposits of tarry wastes from gas plant); Behnisch v. Cedarburg Dairy Co., 180 Wis. 34, 192 N.W. 447 (1923) (riparian recovered diminished rental value of land during period of pollution to surface water). ""Bunker v. City ofHudson, 122 Wis. 43,55,99 N.W. 448 (1904); Pedelty, 148 Wis. at 252. 16" Nischke v. Farmers & Merchants Bank & Trust, 187 Wis. 2d 96,522 N.W.2d 542 (Ct. App. 1994). 16" Id. at 118 (citing Bunker v. City of Hudson, 122 Wis. 43,55,99 N.W. 448 (1904); 1 Russell M. Ware, The Law ofDamages in Wisconsin 9 18.4 (1988); Wis. JI-Civil 1804). See also Pedelty, 148 Wis. at 252 (awarding owner cost to restore land in excess of decrease in value would be unjust to the wrongdoer by awarding the owner far greater sum than actually lost). 187 Wis. 2d at 120. See Gallagher v. Grant-Lafayette Elec. Coop., 2001 WI App 276,249 Wis. 2d 115,637 N.W.2d 80.
Chapter 1 6 Cnnznzon Law Liability
nuisance action, a plaintiff may recover for personal inconvenience, annoyance and discomfort caused by the nuisance.1700 Wisconsin follows the benefit of the bargain rule in misrepresentation cases.1701Benefit of the bargain may be proven by showing the difference between the value of the property as represented and its actual value when purchased, or by showing out-of-pocket expenses.1702 part of the latter measure of recovery, the plaintiff may recover the cost of converting the property received to the condition in which it was represented to be.1703 Damages for personal injuries may include reimbursement for medical expenses, lost wages, lost future earning capacity, disability, pain and suffering and mental distress.
B. Punitive Damages Wis. Stat. 8 895.85 provides that "[tlhe plaintiff may receive punitive damages if evidence is submitted showing that the defendant acted maliciously toward the plaintiff or in an intentional disregard of the rights of the plaintiff." In Wischer v. Mitsubishi Heavy Duty Industries America, ~ n c . , ' ~ the " Wisconsin Supreme Court held that to come under the punitive damage statute, the alleged wrongdoer had to act with a purpose to disregard another's rights or had to be aware that its conduct was substantially certain to result in another's rights being disregarded. It is not necessary for the plaintiff to prove that the defendant intended to cause harm or injury to the plaintiff, but must show that the defendant acted maliciously to the plaintiff or intentionally disregarded the rights of the plaintiff.1705
v. Mitchell, 112 Wis. 2d 88, 105-08,332 N.W.2d 733 (1983). Ollerman, 94 Wis. 2d at 52. 1702 Id. at 52-53; see also Luebke v. Miller Consulting Engineers, 174 Wis. 2d 66, 70,496 N.W.2d 753 (Ct. App. 1993). 1703 Ollerman, 94 Wis. 2d at 53. 17" Wischer v. Mitsubishi Heavy Duty Inds. America, Inc., 2005 WI 26,279 Wis. 2d 4,694 N.W.2d 320. 1705~ d .7, 8.
1700 Krueger I7O'
Chapter 16 Coninion Law Liability
The Wisconsin Supreme Court has also held that punitive damages are not to compensate for negligence: "Because punitive damages depend on the nature of the wrongdoer's conduct, not on the nature of the tort on which compensatory damage is based ... punitive damages are not recoverable if the wrongdoer's conduct is merely negligence. Punitive damages do not rise from negligence ....,71706 An award of punitive damages is only available when there has been an award of compensatory damages.
'
707
C. Injunctive Relief
A non-monetary remedy that may be awarded to plaintiffs seeking recovery under common law theories is injunctive relief. An injunction is a court order directing the defendant to stop the offending conduct. While damages compensate injuries fkom past actions, an injunction looks to the hture and is a means of preventing continued or repeated harmful conduct.1708 V. POTENTIAL DEFENSES TO COMMON LAW LIABILITY A. Statute of Limitations
The applicable statute of limitations for a tort claim for property damage is six years after the cause of action accrued.'709The applicable statute of limitations for a tort claim for bodily injury is three years after a ~ c r u a 1 .Under l ~ ~ ~ Wisconsin law, a cause of action accrues when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, "not only the fact or injury but also that the injury was probably caused by the defendant's conduct ....,71711 A plaintiff can rely on the discovery rule only if he or she has exercised reasonable diligence.'712
1706 Wangen v. Ford Motor
Co., 97 Wis. 2d 260,275,294 N.W.2d 437 (1980) (emphasis added). 142 Wis. 2d 425,418 N.W.2d 818 (1988). 1708 Sohns v. Jensen, 11 Wis. 2d 449,461-62, 105 N.W.2d 818 (1960). 1709 Wis. Stat. 4 893.52. 1710 Wis. Stat. 5 893.54. 17" Bor-ello V. U S . Oil CO.,130 Wis. 2d 397,411,388 N.W.2d 140 (1986). 1712 Spitler v. Dean, 148 Wis. 2d 630,638,436 N.W.2d 308 (1989). 1707 Tucker v. Marcus,
Chapter 16 Coninion Law Liability
In Jacobs
11.
Nor-Lake, I ~ c . , ' "the ' ~ court examined what constitutes reasonable diligence in
discovering the source of contamination and whether a group of residents had sufficient information to give them notice of the cause of their injury for purposes of determining whether an action is time-barred under the discovery rule. When deciding whether the statute of limitations has run for a nuisance claim, the court may also consider whether a nuisance is a permanent nuisance or a continuing nuisance.1714 A nuisance is generally considered to be a continuing nuisance if it can be discontinued or abated or if it is an ongoing or repeated disturbance, such as disturbance caused by noise, vibration or foul odor.l7I5 If a nuisance is continuing, the nuisance claim is not barred by a statute of limitations. In Andersen v. Village of Little chute,I7l6 the court stated that "[aln action for a continuing injury may be maintained beyond the ordinary statute of limitations.7,1717 However, if a nuisance is permanent, a suit must be commenced within the applicable statute of l i m i t a t i ~ n . ' ~ ' ~
B. Lack of Foreseeability of Harm As the court stated in Rolph v. EBI
"A defendant's duty is established when it can
be said that it was foreseeable that his act or omission to act may cause harm to someone." The duty is to refrain from such act or omission.1720"[Tlhe existence of a duty hinges on foreseeability.''1721 The foreseeability of possible harm is not enough to constitute a breach of
I7l3 Jacobs V . Nor-Lake, 1714
Inc., 217 Wis. 2d 625,579 N.W.2d 254 (Ct. App. 1998). See Sunnyside Feed Co., Inc. v. City ofportage, 222 Wis. 2d 461,588 N.W.2d 278 (Ct. App. 1998). I7l5 Id. at 466. l7I6 Andersen v. Village ofLittle Chute, 201 Wis. 2d 467,549 N.W.2d 737 (Ct. App. 1996). l7I7 Id. at 487; see also Speth v. City ofMadison, 248 Wis. 492,499,22 N.W.2d 501 (1946) ("There is no statute which bars an action for a continuing injury to property."). 17" Sunnyside Feed Co., 222 Wis. 2d at 466. I7l9 RoIph v. EBI Cos., 159 Wis. 2d 518,532,464 N.W.2d 667 (1991). '720 A.E. Investment, 62 Wis. 2d at 485. 172' Antwaun A., 228 Wis. 2d at 56.
Chapter 16 Cnnznzon Law Liability
one's duty: "Harm must be reasonably foreseen as probable by a person of ordinary prudence under like circumstances.7,1722 Depending upon the nature and timing of the activities that may have resulted in the contamination, there may be an issue as to whether the resulting contamination was foreseeable (and therefore whether a party breached any duty of care owed to another). In Fortier v. Flambeau Plastics CO.
residential landowners sued generator companies
who disposed of hazardous materials at a neighboring landfill from 1952 through 1987.'724The plaintiffs sought damages for their contaminated drinking water
The court examined
whether the generators breached their duty of care owed to the plaintiffs. Specifically, the court examined whether these companies should have foreseen the risk of harm to someone from their use of and disposal of wastes at the Given the existence of applicable laws governing the disposal of solid waste in 1969 and the fact that the landfill had a license that prohibited disposal of hazardous waste, the court held: "The DNR's solid waste disposal rules after mid-1969 and the Baraboo landfill licenses are evidence from which the t i e r of fact could conclude the companies should have known after that time that a risk of harm existed from their use.9,1727 In Antwaun A. v. Heritage Mutual Insurance ~ 0 . the~ guardian ' ~ ~ad ~litern of a child who suffered from lead poisoning commenced a lawsuit against landlords and their insurers under a number of theories, including common law negligence. The court examined whether landlords had a duty to test for lead paint, and if so, when that duty arose. The court's analysis hinged on 1722
WisconsinPower & Light Co. v. Columbia County, 18 Wis. 2d 39,42-43, 117 N.W.2d 597 (1962). Flambeau Plastics Co., 164 Wis. 2d 639,476 N.W.2d 593 (Ct. App. 1991). 1724Id. at 652. 17" Id. at 650. Id. at 663-64. 1727 Id. at 666 (emphasis added). 1728 Antwaun A. v. Heritage Mut. Ins. Co., 228 Wis. 2d 44,596 N.W.2d 456 (1999). 1723 Fortier v.
Chapter 16 Contnton Law Liability
whether (and if so when) it was foreseeable that peeling and chipping paint would result in lead poisoning.'729The court's analysis included a determination as to when the landlord knew or in the use of ordinary care should have known that the chipping and peeling paint contained lead.1730The court concluded that by no later than 1989, the landlord should have known about the dangers of lead paint: Simply put, we are persuaded that awareness of the dangers of lead paint in 1989 or 1990 is on a different plane than the awareness of such dangers ten, twenty, or thirty years earlier. This has direct bearing on whether it was foreseeable in 1989 or 1990 that peeling or chipping paint in a pre-1978 house contained lead and whether it was foreseeable that lead ingested by children would be an unreasonable risk of physical harm.'731 The court noted the enactment of federal, state and local legislation by the 1990s (including a federal ban on the use of lead paint in 1978), the frequency of lead and lead poisoning public service campaigns, and the mass media attention to the
AS in Antwaun A., the
awareness of the dangers to the groundwater posed by the release of VOCs is dramatically different today than it was in the past and as a result, the damage to groundwater that were caused by activities in the past may not have been reasonably foreseeable at the time those activities occurred.
C. Lack of Actual Damage or Injury Generally, proof of physical injuries is required in order to recover for emotional distress.'733 Damages for emotional distress absent a showing of physical injuries is permitted only in very rare cases where the following elements are established: (1) the defendant's conduct was intentional (i.e., defendant behaved as he did for the purpose of causing emotional distress to the
172?d. at 56. 1730 Id. 1731 Id. at 59. '732 Id. at 60-62. '733 La Fleur v. Mosher, 109 Wis. 2d 112,115-16,325 N.W.2d 314 (1982) ("An examination of the cases dealing with recovery of emotional distress alone demonstrates that the physical injury requirement has been deemed necessary to distinguish between genuine and fraudulent claims for negligent infliction of emotional distress.").
Chapter 16 Common Law Liability
plaintiff); (2) defendant's conduct must also be extreme and outrageous; (3) plaintiff must demonstrate that the defendant's conduct was a cause in fact of his injury; and (4) plaintiff must demonstrate that helshe suffered an extreme disabling emotional response to the defendant's conduct.'734 In Piorkowski v. Liberty Mutual Insurance C O . , ' ~plaintiffs ~~ sought recovery of damages arising from a contractor's blasting operations which allegedly rendered their water well inoperative. Plaintiffs sought to recover damages for actual physical damage to the well and the replacement costs related to such damage, as well as damages for inconvenience, humiliation or emotional strain not manifested by or causative of physical injury. The jury awarded $1,179 for property damages and $5,500 for inconvenience, humiliation and emotional strain.'736On appeal, the personal damages awarded to the plaintiffs for inconvenience, humiliation and emotional strain were ~ h a 1 l e n ~ e d . l ~ ~ ~ With regard to damages for the actual physical inconvenience of having to go without water or go elsewhere to secure water for personal use and hygiene, the court affirmed the award of damages. However, with regard to the alleged "emotional strain, not manifested by or causative of any physical injury," the court concluded that such an award was impermissible under Wisconsin
The court also concluded that "humiliation" was not a proper element of
damage. In Kleinke v. Farmers Cooperative Supply &
homeowners brought a negligence
action against the company that removed a fuel oil tank from the basement of plaintiffs' home,
~ ~ s t e v. e nGehl, 21 Wis. 2d 349,359-60, 124 N.W.2d 312 (1963). Piorkowski v. Liberty Mut. Ins. Co., 68 Wis. 2d 455,228 N.W.2d 695 (1975). '736 Id. at 457. Id. at 463. '738 Id. at 464 (citing Ver Hagen v. Gibbons, 47 Wis. 2d 220, 177 N.W.2d 83 (1970)). '739 Kleinke v. Farmers Coop. Supply &Shipping, 202 Wis. 2d 138,549 N.W.2d 714 (1996).
'734
'735
Chapter 16 Comnzon Law Liability
but left the exterior fill pipe in place which subsequently resulted in damage to the basement when fuel oil filled the basement because the supply company pumped fuel oil into the fill pipe after the tank removal. In this case, the court concluded that the public policy precluded these plaintiffs from recovering for their emotional distress, and that "[aln evaluation of these public policy criteria leads us to conclude that it is unlikely that a plaintiff could ever recover for the emotional distress caused by negligent damage to his or her property.3,1740 D. Economic Loss Doctrine
Traditionally under the economic loss doctrine, the purchaser of a product is precluded from recovering economic losses from the product manufacturer under tort theories of negligence and strict products liability.'74' These economic losses include the diminution in value of a product or the cost to repair the same because it is inferior in
Economic losses include both
direct economic loss (i.e., cost to repair) and consequential economic loss (i.e., lost profitsldiminution in value).'743Wisconsin law does not permit a tort claim for economic losses where the claimant has a contractual relationship with a party and the injury is based on the subject matter of that contract.'744In other words, when contractual expectations are frustrated because of a defect in the subject matter of the contract, a party's remedy lies exclusively in contract. "From its inception the economic loss doctrine has been based on an understanding that contract law and the law of warranty, in particular, are better suited than tort law for dealing with
'740 Id. at 145. '74'See,e.g., Daanen & Janssen, Inc. v. Cedarapids, Inc., 216 Wis. 2d 395,401,573 N.W.2d 842 (1998). L742 Northridge Co. v. KR. Grace & Co., 162 Wis. 2d 918,92526,471 N.W.2d 179 (1991). '743 Daanen, 216 Wis. 2d at 401. '744 Id. at 403.
Chapter 16 Conmon Law Liability
purely economic loss in the commercial arena.,,1745 The economic loss doctrine applies even in the absence of p r i ~ i t y . ' ~ ~ ~ The application of the economic loss doctrine has been extended to real estate transactions involving contaminated property.'747These courts have concluded that a purchaser's tort claims seeking damages such as decline in value of the property, loss of use and enjoyment of the land, and environmental investigation and cleanup costs were barred by the economic loss doctrine. The courts reasoned that the real property is the subject of the contract and the real property is defective (i.e., it is contaminated). Costs to investigate and remedy and other damages such as loss of use and diminution in value are economic losses that are incurred in an effort to repair the defect and obtain the benefit of the bargain. "Commercial entities are capable of bargaining to allocate the risk of loss inherent in any commercial transaction .... Permitting parties to sue in tort when the deal goes awry rewrites the agreement by allowing a party to recoup a benefit that was not part of the bargain.,71748 The plaintiffs in Raytheon and Metal Processing sued the seller/contaminator of the property directly. As established in Daanen, the economic loss doctrine applies even in the absence of privity. In Mose, a purchaser (Mose) knowingly bought contaminated land from a seller and then sued the entity that contaminated the land and that sold the property to the Mose's seller. The court of appeals held that the Mose's claims against the original seller were barred by the economic loss doctrine: "Mose purchased the property knowing that it was contaminated. He took the risk. He negotiated a compromised purchase price as a result. He cannot now expect to Id. at 403-04; see also American Family Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2, 34-35,268 Wis. 2d 16,673 N.W.2d 65. '746 Daanen, 216 Wis. 2d at 413. 1747 See Mose v. Tedco Equities-Potter Rd. Ltd. PShip, 228 Wis. 2d 848,598 N.W.2d 594 (Ct. App. 1999); Raytheon Co. v. McGraw-Edison Co., 979 F. Supp. 858 (E.D. Wis. 1997); Metal Processing Co. v. Amoco Oil Co., 926 F. Supp. 828 (E.D. Wis. 1996). 1748 Raytheon, 979 F. Supp. at 866. '745
Chapter 16 Cnmnt on Law Liability
circumvent the contract to sue the original owner/occupier for a tort recovery for his economic losses."'749
E. Causation/Intervening Superseding Causes Where alleged injuries involve damage to property, plaintiffs can only maintain actionable claims if they can demonstrate a condition on their property that was a direct result of the defendant's conduct. In Kinnick v. Schierl, ~ n c . , the ' ~ ~court ~ of appeals affirmed a grant of summary judgment against plaintiffs who alleged damages in tort for contamination of their property. "We conclude that because of appellants' [plaintiffs] inability to establish by expert testimony that contamination from Seidl's [defendant's] property contributed to the contamination in the plaintiffs' wells, the court properly granted summary judgment dismissing the cross claims and did not act prematurely.,91751 The issues concerning "the migration of contaminated groundwater" are beyond the understanding of a lay jury and expert testimony on causation is required to establish aprima facie case.'752"When expert testimony is required and is lacking, the evidence is insufficient to support a claim.''1753 In Kinnick, the court of appeals affirmed summary judgment where plaintiffs had been unable to present any expert testimony that defendants were more likely than not the source of contamination on their property.1754The court rejected plaintiffs' expert testimony that defendants were a "possible" source of contamination. The court held such testimony could not overcome summary judgment because an "expert opinion expressed in terms of possibility is
Mose, 228 Wis. 2d at 857. Kinnickv. Schierl, Inc., 197 Wis. 2d 855, 541 N.W.2d 803 (Ct. App. 1995). Id. at 860-61. '752 Id. at 862. 1753 Id. 1754 Id.
'749
'750
'"'
3 70
Chapter 1 6 Conznion Law Liability
insufficient and is inadmissible in evidence.,,1755 The court of appeals therefore concluded: "Because appellants lack the necessary expert testimony, we conclude that no factual issues 7,1756 remain to be tried, and Seidl is entitled to summary judgment dismissing their cross claims. The defense of supersedinglintervening cause is applicable not only to the negligence cause of action but also nuisance.'757Causation is an essential element to sustain a nuisance claim.1758 In Menick v. City of
ena as ha,'^^^ the court granted summary judgment to the defendant when
the plaintiff failed to provide expert testimony that the defendant's conduct caused the plaintiffs basement to become contaminated with sewage. The court noted that the "mere possibility of such causation is not enough ....9,1760 The court there held: "Under the Restatement rule defining a private nuisance, a showing of negligence requires proof of causation. We conclude, as did the trial court, that Menick has not met this burden. She has failed to offer any substantiated theories of negligence implicating the actions of the City, and summary judgment for the City was properly granted.~ 1 7 6 1
F. Contribution Where two or more parties are responsible for causing a loss, the responsible defendants may seek recovery from one another under the common law theory of c ~ n t r i b u t i o n . ' ~ ~ ~
Id. at 862-63 (quoting McGarrity v. Welch Plumbing Co., 104 Wis. 2d 414,430,312 N.W.2d 37 (1981)). at 862. See Walley v. Patake, 271 Wis. 530,74 N.W.2d 130 (1956); Brown v. Milwaukee TerminaIRy., 199 Wis. 575, 224 N.W. 748 (1929); Wis. JI-Civil 1920. 1758 CEWMgmt. C o p . v. First Fed. Sav. &Loan, 88 Wis. 2d 631,633,277 N.W.2d 766 (1979) (stating the rule as "one is subject to liability for a private nuisance if his conduct is the legal cause of an invasion of a private interest in land ...."). '759 Menick v. City ofMenasha, 200 Wis. 2d 737,547 N.W.2d 778 (Ct. App. 1996). 1760 Id. at 749. 1761 Id. 1762 State Farm Mut. Auto. Ins. Co. v. Continental Cas. Co., 174 Wis. 2d 434,498 N.W.2d 247 (Ct. App. 1993). 17"
17" Id. 1757
Chapter 1 6 Conrmon Law Liability
G. Contributory Negligence When a plaintiff may have had some responsibility for contributing to his or her injuries, the remedies of that injured plaintiff may be reduced by the percentage that his or her own actions caused the injury or damage.1763 If the plaintiff was more than 50% responsible for the injury of damage, Wisconsin law precludes recovery.'764
H. Coming to the Nuisance The defense of "coming to the nuisance" is recognized in Wisconsin, but it applies only where the relief sought is abatement. Coming to the nuisance is not a defense in a suit seeking damages.'765 As the Court noted in Kellogg, "tilust because it happened that the village landowner arrived in the area first and maintained a nuisance on this property, this does not grant to the village a perpetual easement to pollute the air over all surrounding lands. In Abdella v.
3,
I766
the defense of coming to the nuisance was used to successfully defeat
the plaintiffs request for injunctive relief. In that case, defendant had lawfully engaged in operating riding stables in a rural area for many years. The plaintiff decided to open a restaurant adjacent to the stables. When the odors from the stables negatively impacted the restaurant, the plaintiff restaurant owner sought to enjoin the activities at the stable. Recognizing that the restaurant was built "for the very purpose of forcing an adjudication that the conduct of his competitor in the stable business was a nuisance," the court concluded that the restaurant
'763
Wis. Stat. 9 895.045.
1764 Id. '765 Kellogg v. Village of Viola, 67 Wis. 2d 345,349,227 N.W.2d 55 (1975) ("While coming to the nuisance may properly be considered while weighing the equities in an abatement action, it is irrelevant in a damage suit.") (footnote omitted). 1766 Id. '767 ~ b d e l l a v. Smith, 34 Wis. 2d 393, 149 N.W.2d 537 (1967).
Chapter 16 Conrnion Law Liability business was an unreasonable use of property under the circumstances and therefore concluded that the riding stables did not constitute a nuisance that must be enjoined."68 To prevail on a defense of coming to the nuisance, the court in Abdella as well as in Costas v.
City of Fond du ~ a c ,recognized ' ~ ~ ~ that before the doctrine can be invoked, a party "must show it has used all reasonable means to prevent the nuisance.,,I
770
I. Contractual Provisions and Due Diligence in Property Transactions To protect against potential liability arising fkom non-disclosure andlor misrepresentation, sellers may impose a contractual provision or may retain environmental consultants to study the property before it is acquired. An example of contractual provisions that may be used in the sale of property include use of
representations and warranties and/or "as is" clauses in the purchase agreement. An "as is" clause in a contract normally alerts the buyer that he or she, rather than the seller, has the duty to determine the condition of the property. Although helpful to the seller in some cases, an "as is" clause is not a blanket defense to misrepresentation ~ 1 a i m s . l ~ An ~ ' "as is" clause without any warranties can be effective to defeat a buyer's claim for alleged breaches of implied or express An "as is" clause will not protect the seller from tort claims of warranties of the ~e1ler.l~~' intentional or negligent misrepresentation. If a seller makes any kind of affirmative representation about some aspect of the property, the seller incurs a duty to investigate the condition of the property, and the buyer is entitled to rely upon that statement and to expect full and fair disclosure of all material facts relating to that aspect of the property.1773
17"
Id. at 401.
'769 Costas v.
City ofFond du Lac, 24 Wis. 2d 409, 129 N.W.2d 217 (1964).
'770 Id. at 416. 177'
'772
'773
Grube, 173 Wis. 2d at 59,63. Omernik v. Bushman, 151 Wis. 2d 299,444 N.W.2d 409 (Ct. App. 1989). Grube, 173 Wis. 2d at 68.
Chapter 16 Contnton Law Liability
If, however, a seller makes absolutely no affirmative representations regarding the condition of the property, an "as is" clause places the burden on the buyer to determine the condition of the property, and may protect the seller from claims premised upon non-disclosure. Further, if the buyer obtains its own information concerning environmental matters and chooses to proceed with a purchase of the property "as is" then a court may conclude that the buyer has waived its warranty and misrepresentation claims against the seller.1774 In addition to contractual provisions, environmental site assessments are often used as a means to identify potential environmental risks associated with the purchase of property. These assessment are often done in phases, commencing with a Phase I Site Assessment. The general purpose of a Phase I is to identify recognized environmental conditions (e.g., the presence or likely presence of hazardous substances on a property). A Phase I does not involve physical sampling. If a recognized environment condition is identified, the assessment may proceed to a Phase I1 assessment which include sampling of soil and/or groundwater. J. Public Policy Even where a party may be able to establish liability under common law, public policy concerns may preclude an award of damages. In Wisconsin, liability does not necessarily follow even when negligence and negligence as a cause-in-fact of injury are present. Public policy considerations may preclude liability.'775 Some of the public policy considerations that may preclude liability are: (1) the injury is too remote from the alleged negligence; (2) the injury is too wholly out of proportion to the tortfeasor's culpability; (3) in retrospect it appears too highly extraordinary that the alleged negligence should have resulted in foreseeable harm; (4) allowing recovery would place too Lambert v. Hein, 218 Wis. 2d 712, 582 N.W.2d 84 (Ct. App. 1998). See Miller v. Wal-Mart Stores, Inc., 219 Wis. 2d 250,264, 580 N.W.2d 233 (1998); Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723,737,275 N.W.2d 660 (1979). '774
Chapter 16 Contnt on Law Liability
unreasonable a burden on the tortfeasor; (5) allocation recovery would enter a field that has no sensible or just stopping point.'776An additional, yet related policy ground for relieving an alleged negligent tortfeasor from liability for conduct which has been a substantial factor in producing injury is the intervening and superseding cause doctrine.1777This doctrine "is another way of saying the negligence is too remote from the injury to impose liability.9,1778 In Kleinke v. Farmers Cooperative Supply &
the Wisconsin Supreme Court
refused, based upon public policy grounds, to sustain plaintiffs' claims for emotional distress where there was damage to the plaintiffs property as a result of the defendant pumping 300 gallons of fuel oil into plaintiffs basement. The court held that allowing recovery in such cases was too remote to the tortfeasor's allegedly wrongful conduct and "allowing recovery in such cases would remove any logical stopping point to a tortfeasor's liability.7,1780 The court concluded that, among other things, "emotional distress based on property damage is the type of injury that will usually be wholly out of proportion to the culpability of the negligent party. 7,1781 VI. CONCLUSION
The use of common law theories is likely to continue. An issue that may be examined by the courts in the future may include whether or not a plaintiff can recover damages under Wisconsin's negligence or nuisance law where their property has not been physically damaged by the contamination but it is alleged the a mere presence of nearby (or the former presence of contamination on the property) creates a "stigma. 7,1782
2d at 265; Morgan, 87 Wis. 2d at 737 87 Wis. 2d at 738.
1776 ~ i l l e r219 , Wis. 1777 Morgan, 1778
Id.
1779 Kleinke 17'0
17" 17'*
v. Farmers Coop. Supply & Shipping, 202 Wis. 2d 138,549 N.W.2d 714 (1996). Id. at 146. Id. at 145. See Fortier, supra; Nischke, supra; and Nor-Lake, supra.
Chapter 16 Conimnn Law Liability
The W-isconsinnuisance and negligence cases analyzed to date suggest that actual physical damage to the property or some sort of physical annoyance or discomfort is required in order to recover damages under either nuisance or negligence. As previously mentioned, the cases involving contamination and asserting causes of action under nuisance and negligence all involve actual damage to real property.'783 Additionally, Wisconsin nuisance and negligence case law generally confirm a requirement for actual physical damage or physical annoyance or discomfort.'784 An issue that arises in the environmental context is whether parties may recover damages solely for the diminution of property value due to the alleged "stigma" of contamination that may be in the area but not physically impacting the party's property. Many jurisdictions allow for stigma damages only if the plaintiff can show proof of actual contamination. If the plaintiff cannot show such proof, then he or she will not be able to recover damages for diminution of property value due solely to the public's perception that the property might be contaminated or is located near other contaminated property.1785Only a handful of states have allowed damages for
See Fortier, Nischke, Nor-Lake and Anstee. v. Dairyland Power Coop., 45 Wis. 2d 164, 172 N.W.2d 647 (1969) (nuisance cause of action seeking diminished market value where certain type of vegetation and crops were dying or had been destroyed completely due to defendants discharge of sulfur fumes into atmosphere); State v. Quality Egg Farm, Inc., 104 Wis. 2d 506,3 11 N.W.2d 650 (1981) (public nuisance action arising from emission of chicken and chicken manure odors by operation of defendants' egg industry of which plaintiffs sought abatement); Prah v. Maretti, 108 Wis. 2d 223,321 N.W.2d 182 (1982) (interference with plaintiffs access to sunlight for his solar heated residence constituted a nuisance); Krueger v. Mitchell, 112 Wis. 2d 88,332 N.W.2d 733 (1983) (court ordered damages in nuisance action for unreasonable noise level). '785 See Adkins v. Thomas Solvent Co., 487 N.W.2d 715 (Mich. 1992) (where the court rehsed to award stigma damages because the plaintiffs failed to show actual contamination); Adams v. Star Enterprise, 51 F.3d 417 (4th Cir. 1995) (where the court refused to award stigma damages under Virginia law because the plaintiffs failed to show actual contamination); Lamb v. Martin Marietta Energy Sys., Inc., 835 F . Supp. 959 (W.D. Ky. 1993) (where the court held that where the evidence showed that the level of contamination on plaintiffs property posed no health risk, the plaintiffs could not recover a nuisance for diminution of property value due to the public's unfounded fears about dangers contamination); Allan v. Uni-First Corp., 558 A.2d 961 (Vt. 1988); Clark v. United States, 660 F. Supp. 1164 (W.D. Wash. 1987). '783
1784 See Jost
Chapter 16 Common Law Liability
diminution of property value due to the stigma of contamination, without proof of actual contamination. '786
1786
See, e.g., Acadian Heritage Realty, Inc. v. City oflafayette, 446 So. 2d 375 (L.A. App. 3 Cir. 1984).
CHAPTER 17 ENVIRONMENTAL INNOVATION: GREEN TIER Linda H. Bochert I. OVERVIEW This chapter describes the innovative environmental program Wisconsin enacted in 2004 called "Green Tier," designed to encourage and reward regulated entities to "go beyond compliance" and deliver "superior environmental performance." It also describes a companion program enacted at the same time to encourage facilities to conduct environmental audits by providing limited liability for violations detected in the course of such audits and promptly remedied. 11. APPLICABLE STATUTES Wis. Stat. 5 299.83: Environmental Results Program Wis. Stat. 5 299.85: Environmental Improvement Program 111. STATUTORY FRAMEWORK Sections 299.83 and 299.85 of the Wisconsin Statutes represent years of work by a diverse group of interests to address two concepts: (1) to achieve environmental gains beyond those produced by compliance with environmental regulatory requirements by creating incentives to public and private entities to deliver superior environmental performance; and (2) to encourage voluntary environmental compliance audits by private and public entities by creating a mechanism to significantly limit their exposure to civil monetary penalties for environmental law violations identified as part of such an audit. A. Green Tier The Environmental Results Program, more commonly referred to as "Green Tier," is premised on the idea that government and the entities it regulates can both do a better job of
Chapter 17 Environmental Innovation: Green Tier
environmental protection if the relationship is built on collaboration rather than the traditional "command and control" approach to environmental regulation.'787 Participation in Green Tier is entirely voluntary and is available for any of the environmental regulatory programs administered by DNR: air, wastewater, stormwater, solid and hazardous waste, wetland and waterways protection. Green Tier participation calls for a three-part commitment (1) to operate at a level of environmental compliance that exceeds the minimum requirements set out in the laws or administrative rules; (2) to do so in a transparent manner that provides DNR and the public with ongoing access to information; and (3) to continually improve upon the environmental performance being delivered. Green Tier participants elect to enter the program at either Tier I or Tier 11. 1. Tier I In Tier I, if the regulated entity makes the required commitments to implement an environmental management system (EMS and meets the compliance record eligibility requirements, then DNR will provide certain incentives or rewards of public recognition, reduced frequency of inspections, and a single point of DNR contact for permitting.'788A participating entity in Tier I must conduct an annual EMS audit and report the results to DNR. The participating entity may, but need not, enter into a contract with DNR. If the EMS audit identifies violations, and the Tier I participant corrects the violations within a specified time, the state of Wisconsin is prohibited from bringing an enforcement action against the Tier I participant to collect a civil forfeiture for the vi01ation.l~~~
'787 Green Tier incorporated, inter alia,lessons learned from the Wisconsin Environmental Cooperation Pilot Program (ECPP) enacted in 1997. Wis. Stat. $299.80. Under ECPP authority, DNR negotiated agreements with six Wisconsin businesses. That program remains in the statutes and many of those agreements are expected to be renewed by the participants. 1788 Wis. Stat. Ij 299.83(4m). 1789 Wis. Stat. Ij 299.83(6m).
Chapter 1 7 Envirvnmental Innovation: Green Tier
The environmental compliance record eligibility criteria for Tier I are: no criminal conviction within the prior 5 years for an environmental law violation that resulted in substantial harm or presented an imminent threat to public health or the environment; no civil judgment within the prior 3 years for an environmental law violation that resulted in substantial harm to public health or the environment; and no lawsuit filed by the state or citation issued by DNR within the prior 2 years for an environmental law violation. 2. Tier I1 In Tier 11, the applicant submits a letter of intent which, if accepted by DNR, leads to a participation contract between the Tier I1 participant and DNR which specifies the commitments to "superior environmental performance" and incentives negotiated between DNR and the ~articipant.'~~' Any negotiated incentives must be "proportional" to the environmental performance being provided.'792In addition to the Tier I commitments, a Tier I1 participant must also commit itself to conduct an environmental compliance audit and report the results to
D N R . ' ~The ~ ~prohibitions on civil lawsuits by the state to collect forfeitures are the same as in Tier I. The eligibility requirements for Tier I1 are more demanding than for Tier I: 1794 no criminal conviction within the prior 10 years for an environmental law violation that resulted in substantial harm or presented an imminent threat to public health or the environment; no civil judgment within the prior 5 years for an environmental law violation that resulted in substantial harm to public health or the environment; and
Wis. Stat. fi 299.83(3). Stat. (i 299.83(6).
1791Wis. 1792Id.
17" See Wis. Stat. (i 299.83(5)(c). In Tier I, the audit is conducted to confirm the EMS is working effectively. In Tier 11, the audit is conducted to determine if the facility is complying with applicable environmental regulations. 17" Wis. Stat. 9 299.83(5)(b).
Chapter 17 Environmental Innovation: Green Tier
no lawsuit filed by the state or citation issued by DNR within the prior 2 years for an environmental law violation. Under both Tier I and Tier 11, DNR will publicly identify participants as a Green Tier participant, and authorize use of the Green Tier logo connoting superior environmental performance on company materials.
3. Charters While single entities enter into a contract with DNR, a group of entities can come together and negotiate a Tier I or Tier I1 Green Tier "Charter" with DNR.'795 A Green Tier Charter commits all members of the group to the same environmental performance deliverables and provides all members of the group the same benefits from participation. For example, the first three negotiated Charters have committed participants to provide more management of stormwater and more effectively address sediment loading to area lakes and streams than would otherwise be gained under application of the stormwater regulations.'796 4. Federal Recognition of Green Tier One issue frequently raised by regulated entities with respect to such voluntary "beyond compliance" commitments is whether EPA will recognize them in its exercise of federal enforcement authority. To respond to that concern in the context of the Environmental Cooperation Performance Program, DNR and EPA entered into a Memorandum of Agreement to establish the principle that experimenting with new approaches to environmental protection is positive and the agencies should use their enforcement discretion to promote, rather than hinder,
Wis. Stat. 9 299.83(7e). Scrap Metal Recycling Industry Green Tier Charter; Veridian Homes Clean Water Initiative; Wisconsin Builders Association Development Council Green Tier Charter. '795
17%
Chapter 17 Environmental Innovation: Green Tier
such i n n ~ v a t i o n . ' ~More ~ ' recently, with respect to Green Tier, DNR and EPA entered into an additional Memorandum of Agreement to coordinate Green Tier with EPA's Performance Track program. 1798
B. Limited Audit Liability As incentive to regulated entities to conduct and act on the results of environmental compliance audits, the Environmental Improvement Program limits the exposure to civil forfeitures for regulated entities that conduct an environmental compliance audit, report the results to DNR, and remedy any identified violations within a specified period of time.'799 Modeled in part on EPA's Audit Policy, the Environmental Improvement Program provides a limitation on civil forfeitures but not immunity from forfeitures. Rather than enforcement through referral to the Department of Justice for prosecution by the state, these violations are subject to assessment of a civil forfeiture through a citation issued by DNR and enforceable by the county district attorney.1800The amount of the civil forfeiture is limited to no more than $500 per violation, regardless of the number of days of violation.1801To be eligible for the civil forfeiture limitations, the regulated entity must noti@ DNR at least 30 days before conducting the audit.lgo2Participation in Tier I or Tier I1 of Green Tier is not required to be eligible for the limited liability available under the Environmental Improvement Program.
1797' L M e m ~ r a n dofAgreement ~m between the Wisconsin Department of Natural Resources and the United States Environmental Protection Agency concerning Implementation of the Joint State/EPA Agreement to Pursue Regulatory Innovation and the WisconsinEnvironmental Cooperation Pilot Program" (signed March 25, 1999). 1798"Memorandum of Agreement between the Wisconsin Department of Natural Resources and the United States Environmental Protection Agency for Coordination and Implementation of Wisconsin 's Green Tier Program and EPA 's National Performance Track Program" (signed October 3,2005). 1799See Wis. Stat. 8 299.85. See Wis. Stat. (j 299.85(7)(am). '*01 Wis. Stat. 9 299.85(7)(a). lgo2 Wis. Stat. (j 299.85(2).
Chapter 17 Environn~entalInnovation: Green Tier
IV. CONCLUSION
As a relatively new program at this writing, much of what Green Tier will accomplish is yet to be determined, but state government is strongly committed to its success. Many DNR staff actively encourage Green Tier participation in their interactions with regulated facilities and the agency regularly updates its website information on the program.'803 In 2005, Wisconsin's Green Tier program was selected as a semifinalist for the Innovations in American Government Award, given by the Ash Institute for Democratic Governance and Innovation in association with Harvard University's Kennedy School of Government.
Iso3
Access the DNR website at httv://www.dnr.state.wi.us and type "Green Tier" into the search function.
3 84
CHAPTER 18 ENVIRONMENTAL ENFORCEMENT Linda H. Bochert I. OVERVIEW This chapter describes the statutory authorities relied on and the procedures used by the Department of Natural Resources (DNR) and Department of Justice (DOJ) to enforce environmental statutes and rules, and permits and approvals issued or required pursuant to them in Wisconsin. It also discusses the role the United States Environmental Protection Agency (EPA) plays in enforcement in Wisconsin, the Wisconsin statutes that address limited civil liability in the event a regulated entity self-discloses violations identified during an audit, and the provisions of Wisconsin law that authorize citizen enforcement. The primary enforcement agencies in Wisconsin are DNR and DOJ. EPA retains oversight authority with respect to the federal programs enforced by the state, and will exercise that authority if it deems the state's enforcement response to be inadequate. DNR prefers to exercise control of enforcement at the state level rather than defer to federal prosecution by EPA. DNR utilizes a stepped enforcement process, but because DNR does not have general citation authority by which it can assess and collect civil forfeitures a referral to DOJ for prosecution of the violation is the frequent outcome once the enforcement process begins. DNR does have citation authority in specific program areas and is using it to bring environmental enforcement actions through the county district attorneys. Wisconsin does not have citizen suit provisions under state law like those in the Clean Air Act and Clean Water Act, but there are mechanisms that enable citizens to petition DNR to take enforcement action. These mechanisms tend to be less used in Wisconsin, likely because the federal citizen suit provisions are more direct.
Chapter 18 Environmental Enforcent ent
The Wisconsin Attorney General also has public nuisance enforcement authority which is not dependent on a referral from DNR, and is using it increasingly to address environmental enforcement issues. Overall, Wisconsin is considered an aggressive state with respect to environmental enforcement. 11. APPLICABLE STATUTES
Wis. Stat. ch. 299: General Environmental Provisions $ 299.93: Environmental surcharge $ 299.95: Enforcement; duty of department of justice; expenses $ 299.97: Penalties and remedies Wis. Stat. ch. 281: Water and Sewage $ 281.98: Penalties Wis. Stat. ch. 283: Wisconsin Pollutant Discharge Elimination System (WPDES) $ 283.89: Enforcement $ 283.91: Civil and criminal remedies Wis. Stat. ch. 285: Air Pollution $ 285.83: Violations; enforcement 5 285.87: Penalties for violations relating to air pollution Wis. Stat. ch. 287: Solid Waste Reduction, Recovery and Recycling $287.91 : Enforcement; duty of department of justice; expenses 5 287.95: Penalties concerning land disposal and incineration; citations $ 287.97: Penalties Wis. Stat. ch. 289: Solid Waste Facilities 5 289.96: Penalties $ 289.97: Enforcement Wis. Stat. ch. 291: Hazardous Waste Management $ 29 1.95: Enforcement $291.97: Violations and penalties Wis. Stat. ch. 292: Remedial Action 5 292.98: Violations and enforcement; environmental repair and cost recovery $292.99: Penalties Wis. Stat. ch. 293: Metallic Mining 5 293.87: Enforcement; penalties
Chapter 18 Environmental Enforcement
Wis. Stat. ch. 295: Nonmetallic Mining Reclamation; Oil and Gas 3 295. 19: Enforcement; remedies; penalties tj 295.37: Penalties; oil and gas Wis. Stat. ch. 30: Navigable Waters, Harbors and Navigation tj 30.292: Parties to a violation 5 30.294: Nuisances, abatement 5 30.298: Penalties 3 30.49: Enforcement tj 30.80: Penalties tj 30.99: Parties to a violation Wis. Stat. ch. 3 1: Regulation of Dams and Bridges Affecting Navigable Waters tj 3 1.99: Parties to a violation 111. STATUTORY AND REGULATORY FRAMEWORK
Wisconsin Statutes chapters 283 through 292 include the statutes enacted as state counterparts to the federal Clean Water Act, Clean Air Act, CERCLA, and RCRA. Under these statutes, DNR implements its delegation of authority from EPA to administer and enforce these federal programs in Wisconsin. In addition, Wisconsin has enacted specific statutes to address water and sewage, solid waste reduction and recycling, and metallic and non-metallic mining (Wis. Stat. chs. 281,287,293 and 295). For each of these areas, the range of penalties a court may assess for violations of the statute, rules, or permits or approvals issued or required under the statutes are specified at the end of each chapter. In general, available civil forfeitures range from a minimum of $10 to a maximum of $5,000, $10,000 or $25,000 per day per violation, depending on the regulatory program, the nature of the violation and whether it is determined to be a repeat offense.lpo4In addition to assessment of a civil forfeiture, the circuit court may order the defendant to implement temporary or permanent injunctive action, such as the installation of pollution control equipment
lso4
See, e.g., Wis. Stat. $9 281.98,287.97,293.87,295.19 and 295.37.
Chapter 18 Environnlental Enforcenient
or cleanup of contaminated groundwater or soil.'805Criminal penalties are also set out in each chapter, for violations of the provisions of that chapter or rules, or for violations of permits or approvals issued or required under the chapter. Wisconsin Statutes chapters 30 and 3 1, which regulate activities having impacts on navigable waterways, represent the codification of common law and case law established over the years for such activities. There is no federal law counterpart to these chapters, but the enforcement procedures for violations of a permit or approval or failure to obtain a required permit or approval are the same as those with federal counterparts. Some of the individual statutory sections dealing with navigable waterway impacts contain a civil penalty provision specific to that activity.'806 For the remainder, the civil forfeitures are generic and may range from a minimum of $100 to a maximum of $10,000 per day per violation.
'
The two primary government agencies involved in environmental enforcement in Wisconsin are DNR and D O J . ' ~DNR ~ ~ is the lead administrative agency with responsibility to administer environmental regulatory programs, enact administrative rules, and issue permits, approvals and orders to carry out the statutory requirements. DOJ (a/k/a the Wisconsin Attorney General's Office) represents the state in court for civil and criminal environmental enforcement proceedings.'809DOJ becomes involved in a case when DNR "refers" alleged violations to DOJ for prosecution. In certain limited situations, DNR or DOJ may request that the county district
See, e.g., Wis. Stat. $9 281.98(3) and 287.91. See, e.g., Wis. Stat. $9 30.12(5), 30.121(7) and 30.126(10). lSo7 Wis. Stat. 6 30.298. 1808The ~ e ~ a r & e nof t Agriculture, Trade and Consumer Protection (DATCP) has certain enforcement authority with respect to pesticide use, fertilizer storage, and groundwater impacts (Wis. Stat. ch. 94), and the Department of Commerce (Commerce) has certain enforcement authority with respect to underground storage tank contamination (Wis. Stat. 9 101.09). However, since DNR is the primary environmental agency, this discussion focuses on DNR's responsibilities. Wis. Stat. 9 299.95. "05 "06
Chapter 18 En vironnt ental Enforcement
attorney represent the state in the enforcement action.1810The Attorney General also has authority to initiate public nuisance actions without a referral from DNR""
and has used that
authority to address environmental concerns.
IV. AGENCY PROCEDURES A. DNR Enforcement Procedures As described in the other chapters in this handbook, DNR is authorized by the various environmental statutes to issue orders that require an entity to take or refrain from specific action. DNR is also empowered to issue permits and approvals that authorize an entity to take specific action. DNR may enforce those orders, permits and approvals through civil administrative means. To do this, DNR utilizes what they refer to as a "stepped enforcement process." The written tools DNR may use range from a Letter of Inquiry (LOI), to a Letter of Noncompliance (LON), to a Notice of Noncompliance (NON), to a Notice of Violation (NOV). These "steps" range fiom asking a facility for information to advising the facility DNR has determined it is in violation of a requirement. However, DNR is neither obligated to use these tools in order, nor to use them at all. DNR selects its means of communication based on its assessment of the quality of its own information and the likelihood that the information demonstrates that a violation has occurred.1812 For example, when DNR has information it believes shows a facility has violated a condition of one its permits, DNR will communicate with the facility in writing, identify the information and the particular violation(s) DNR believes are involved, and invite the facility to provide
See., e.g., Wis. Stat. ยง(j 30.03,283.89,291.95(3) and 299.85(7)(am). Wis. Stat. 9 823.02; State v. Dairyland Power Coop., 52 Wis. 2d 45, 187 N.W.2d 878 (1971). See also State v. Quality Egg Fann, Inc., 104 Wis. 2d 506,311 N.W.2d 650 (1981). Is'* DNR has maintained an internal Environmental Enforcement Handbook for many years, outlining for DNR staff the enforcement tools and procedures to be used in each of the environmental regulatory programs. DNR's Handbook is currently being updated and is expected to be posted on the DNR website at some point in the future. To access the DNR website, go to http://www.dnr.state.wi.us. l8l0
IS"
Chapter 18 Environniental Enforcement
additional information to explain why DNR's initial conclusion is incorrect, or what the facility has done to correct the situation and prevent recurrence. This communication is frequently in the form of an NOV, and may include a request that the facility attend an "enforcement conference" with DNR staff to discuss the background of the violation(s), what the facility has done to correct or remedy the problem, and what procedures or measures the facility has put in place to prevent recurrence. Following an enforcement conference, DNR evaluates the information it has received and determines whether to "close-out" the NOV or refer the facility to DOJ for prosecution. DNR refers a case to DOJ for prosecution in order to collect a civil forfeiture and obtain temporary or permanent injunctive relief. With limited exceptions,'813DNR does not have "environmental citation authority," i.e., statutory authority to collect a civil forfeiture for environmental violations. Collection of a civil forfeiture must be by DOJ pursuant to a judgment entered by the jurisdictional circuit court. Called a "referral," the decision to send a case to DOJ for prosecution is largely discretionary with DNR and reflects DNR's assessment of the seriousness of the violation(s), the need to deter this and other facilities from the same violation by making an example of this facility through collection of a civil penalty, and the need for an enforceable timetable for installation of required equipment or remediation of contamination. DNR also investigates criminal violations of the environmental laws and will refer a case to DOJ for criminal prosecution.
I 8 l 3 See, e.g., discussion of Environmental Improvement and Environmental Results Programs in Section V. Also, DNR has recently begun to use environmental citations issued by DNR law enforcement wardens to address violations of construction site stormwater requirements under the provisions of Wis. Admin. Code ch. NR 2 16. Use of citations for the stormwater discharges is specifically authorized by Wis. Stat. 9 283.89(2m). These citations are enforceable by the county district attorney using the procedures in Wis. Stat. $9 23.50-23.99. DNR exercises the citation option or the referral option depending on the agency's assessment of the significance of the case and the existence of other alleged violations involved in the situation.
Chapter 18 Environmental Eqforcentent B. DOJ Enforcement Procedures
When DOJ receives a referral from DNR, the DOJ attorney (called Assistant Attorney General) assigned reviews the case and recommends to the Attorney General whether to accept the request to prosecute. In the vast majority of cases, DOJ accepts the referral and proceeds with the case. When this happens, DNR becomes the client and DOJ the attorney. All further discussion with the state about the case must be with the DOJ Assistant Attorney General or with that person's permission. DOJ will ordinarily offer the defendant the opportunity to discuss the violations referred before initiating action through filing a civil complaint. These discussions are in the nature of settlement discussions and frequently result in an agreement between the defendant, DOJ and DNR on the remedy to be implemented and the civil penalty to be paid. The factors DOJ considers include the perceived severity of the violation, e.g., whether there was environmental damage or risk to public health, the duration of the violation, the frequency with which this circumstance has recurred over time, the degree of cooperation shown by the defendant, and the defendant's ability to pay. These factors are similar to those considered by EPA under its various civil penalty policies, but in contrast with EPA, the state does not apply them according to a formula that calculates economic benefit and a gravity component. Venue is authorized in the county in which the "violation occurred in whole or in part," or in Dane County (the seat of the State Capitol and location of both DNR and DOJ headquarters) for violations alleged under Wis. Stat. chs. 281-285 and 289-295.1814However, it is the practice of DOJ to bring these actions in the county in which the alleged violation occurred or the defendant resides or does business.
I8l4
Wis. Stat. 4 299.95.
Chapter 18 Envirwmental Enforcement
If the settlement discussions result in an agreement, DOJ will prepare and file a civil complaint, stipulation and proposed order for judgment and submit it to the circuit court for approval. If the circuit court approves the stipulation and enters the order for judgment, DOJ will issue a press release identifying the defendant and describing the violations alleged in the complaint, the forfeiture to be paid, and any corrective action to be taken. If the settlement discussions do not result in an agreement, then DOJ will file a civil complaint and the parties will proceed through the litigation according to the state rules of civil procedure.
C. Civil Penalties and Supplemental Environmental Projects (SEPs) By Wisconsin Constitution, civil forfeitures are deposited in the school
not the
budget of DNR or DOJ. The Legislature has enacted certain surcharges and other fees that are automatically added on to the civil forfeiture amount but are not forfeitures and so can be deposited in various parts of the state budget. At this writing, these surcharges and fees represent an amount added to the civil forfeiture that is somewhat more than 34% of the civil forfeiture.1816 In addition, the court may award DOJ "the reasonable and necessary expenses of the investigation and prosecution of the violation, including attorneys fees" to be deposited in the state's general h n d and available for appropriation to individual state agencies.1817 DOJ will also consider Supplemental Environmental Projects (SEPs) as part of a case settlement. A SEP is an action or program undertaken by the defendant that is related somehow to the violation alleged, but is not required by statute or rule and therefore is more than the state could obtain if the case were to be tried and a verdict returned in the state's favor. A SEP may be attractive to a defendant because the investment in the SEP may reduce the civil forfeiture 1815
Wis. Const. art. X, Ej 2. Wis. Stat. Ej 757.05(1) (24% penalty assessment); 8 299.93(1) (10% Environmental Assessment); Ej 814.75(14) (jail assessment); 8 814.63(1) (court costs); 5 814.75(3) (crime lab and drug assessment fee); 8 814.85 (court support services fee); 8 814.86 (justice information fee). 1817 Wis. Stat. Ej 299.97(2). la''
Chapter 18 Envir.onnietztal Enforcement
somewhat, and the project itself may have positive public relations value. Inclusion of a SEP in a case settlement is entirely voluntary; the nature of the SEP is that it cannot be mandated because it is more than the regulations require the defendant to do. EPA uses a similar concept and has adopted criteria defining what sort of SEP will be acceptable, and how much of a credit against the civil forfeiture the dollars invested in the SEP will warrant.l8I8EPA's formal criteria, which are designed to achieve consistency across the EPA Regions nationwide, also tend to limit the flexibility of the SEP concept. DOJ has not formalized its criteria to the same degree, thus negotiations with DOJ on a SEP may be somewhat less constrained.
D. EPA Enforcement and Coordination with DNR While DNR is the lead environmental enforcement agency in Wisconsin and acts under state law, EPA has retained federal oversight and enforcement authority under the Clean Air Act, Clean Water Act, CERCLA and RCRA. The practical effect of this is that EPA can choose not to defer to enforcement decisions made by DNR and to take federal enforcement action against a defendant either in place of DNR or in addition to DNR. DNR and EPA have entered into various Memoranda of Understanding (MOU) and Memoranda of Agreement (MOA) to describe the procedures each agency will follow in implementing their working relationship. General EPA-DNR coordination is addressed in an agreement the agencies periodically revise and renew called the Environmental Performance Partnership Agreement: Wisconsin For. ' ~ ' ~ Department of Natural Resources and United States Environmental Protection ~ ~ e n c ~
18'' EPA's civil penalty policies and supplement environmental project policies are accessible through the EPA website at httu://www.epa.gov. Whether SEP dollars are tax deductible is open to question. It is an academic question with respect to a federal SEP because EPA requires the defendant to certify that it will not seek a tax deduction for such expenditures. Wisconsin DOJ has not taken a definitive position. For an excellent discussion of this issue and the tax-deductible nature of other environmental expenditures such as remedial cleanup and restoration, see Sheldon D. Pollack, Tax Treatment of EnvironmentaI Transactions, 52 Tax Lawyer 8 1 (Fall 1998). 9I' Available on the DNR website at httD://dnr.wi.~ov/environmentprotect/en~~aexecsum.hm.
Chapter 18 Environnzental Enforcement
air pollution control, EPA's High Priority Violation (HPV)
is reflected in the Air
Compliance and Enforcement Memorandum of Understanding between DNR and EPARegion 5.18*' The HPV policy and EPA-DNR MOU recognize the lead role of DNR, but require DNR to resolve alleged violations that meet the HPV criteria within certain time periods or EPA retains the right to take over the lead enforcement role. V. ENVIRONMENTAL LIMITED LIABILITY POLICY EPA has adopted an Audit Policy that encourages facilities to promptly self-disclose and remedy environmental violations identified through internal audits or due diligence programs.'822 In return, EPA will consider reduction of gravity component of the potential civil forfeiture that would apply under the applicable EPA Civil Penalty Policy. Many states have adopted similar audit policy programs via legislation or administrative rules. Wisconsin has not enacted a companion to EPA's Audit Policy, but has enacted legislation that limits liability under specific circumstances. As part of an innovative program called Green Tier (aMa Environmental Results Program) (discussed in Chapter 17) that is designed to reward regulated entities for achieving superior environmental performance, a participating entity that identifies violations, reports and remedies them promptly may not be sued by the state of Wisconsin to collect civil forfeitures for those vi01ations.I~~~ Under the "Environmental Improvement Program," enacted in the same legislation, if a regulated entity gives DNR at least 30 days' notice of its intent to conduct an environmental audit, and if the audit identifies violations and the entity reports them to DNR and corrects them within 90 days, then the lsZ0 See EPA Office of Enforcement and Compliance Assurance, The Timely and Appropriate (T&A) Enforcement Response to High Priority Violations (HPVs) Workbook and related materials available at httv:Nwww.eva.gov. lgZ1 Current version at this writing, dated May 2000. 65 Fed. Reg. 19618 (April 11,2000), "Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations" (effective May 11,2000); see also 65 Fed. Reg. 19630 (April 11,2000), "Small Business Compliance Policy" (effective May 1I, 2000). lgZ3 Wis. Stat. 9 299.83(6m)(d).
Chapter 18 En vironnzental Enforcement
regulated entity "may not be required to forfeit more than $500 for each violation, regardless of the number of days during which the violation
DNR is authorized to collect this
forfeiture by issuing a citation enforceable through the county district attorney rather than referring the entity to DOJ for prosecution.'s25 VI. CITIZEN ENFORCEMENT The federal Clean Air Act and Clean Water Act authorize enforcement of those laws by 7,
citizens in the form of "Citizen Suits.
I826
Citizen suits may be brought in federal court in Wisconsin under the provisions of the federal acts, but the scope of the suit is limited to the reach of the federal acts, even if the reach of the state law is broader.'827Wisconsin has not enacted specific counterparts to these federal citizen suit provisions; however, Wisconsin has had a general citizen enforcement provision in the statutes for many years. This authority was used more frequently many years ago, before the state and federal environmental regulatory programs became so well established. Enacted as a means to enable citizens to bring information to DNR's attention and force the agency to use its investigative powers and resources to determine whether the situation requires a remedy, this mechanism is called a "six-citizen complaint." Any six citizens may petition DNR to investigate and respond to "alleged or potential environmental pollution.
931
828
"Environmental pollution" is
broadly defined to mean "contaminating or rendering unclean or impure the air, land or waters of the state, or making the same injurious to public health, harmful for commercial or recreational use, or deleterious to fish, bird, animal or plant life.,71829 With respect to a six-citizen complaint,
Wis. Stat. Q 299.85(7). Wis. Stat. (i 299.85(7)(am). 42 U.S.C. Q 7604 (Clean Air Act); 33 U.S.C. Q 1365 (Clean Water Act). Village of Oconomowoc Lake v. Dayton Hudson Corp.,24 F.3d 962 (7th Cir. 1994). '828 Wis. Stat. 5 299.91. Wis. Stat. ji 299.01(4).
Chapter 18 Environmental Enforcement
"[alny situation, project or activity which upon continuance or implementation would cause, beyond reasonable doubt, a degree of pollution that normally would require cleanup action if it already existed, shall be considered potential environmental pollution.9,1830 Upon receipt of a sixcitizen complaint, DNR is required to give notice to the alleged polluter, provide opportunity for a response, conduct a contested case hearing on the complaint, make findings of fact and conclusions of law, and enter an order with respect to those findings. DNR's order is subject to judicial review under the provisions of the state Administrative Procedures Act (APA) in Wis. Stat. ch. 227 as a final agency action.'g31 In addition, the following similar mechanisms exist for citizens to petition DNR to take action by investigating and conducting a contested case hearing with respect to alleged violations: 1. Six or more citizens may petition DNR with respect to water withdrawals.1s32 2. Six or more citizens or a municipality may petition DNR with respect to solid waste matters.1833 3. Six or more citizens or a municipality may petition DNR with respect to hazardous waste issues. I834
Any citizen may commence a direct action against an alleged violator or against DNR for .failure to take a non-discretionary action with respect to metallic mining.1835 As described in prior chapters, citizens may obtain administrative review of WPDES permits and air construction or operation permits by filing a verified petition within the time period specified in the statute and meeting the standing requirements.lS3'
Wis. Stat. Ij 299.91. Wis. Stat. 9 299.91. Wis. Stat. 5 281.94. Wis. Stat. (i 289.92. 1834 Wis. Stat. 9 291.89. Wis. Stat. 9 293.89. 1836 Wis. Stat. 9 283.63 (WPDES permits) and 9 285.81 (air permits). 1831
Chapter 18 Environntental Enforcement
All of the administrative contested case proceedings described above are conducted by an Administrative Law Judge (ALJ) who is an employee of the Department of Administration (DOA) Division of Hearings and Appeals, an independent agency charged with the responsibility to conduct contested case proceedings on actions by DNR and other state agencies. The final decision rendered by the ALJ is appealable to circuit court in the form of a petition for judicial review under Wis. Stat. ch. 227.'837 Wis. Stat. fj 30.294 provides that every violation of chapter 30 dealing with navigable waterways is "declared to be a public nuisance and may be prohibited by injunction and may be abated by legal action brought by any person." The Supreme Court has interpreted this section to authorize direct citizen action against a private party to abate an alleged nuisance under the public trust doctrine when the citizen believes DNR has failed to act or acted inadequately to address the ~ i t u a t i 0 n . l ~ ~ ~ VII. ENVIRONMENTAL ENFORCEMENT CASE LAW The vast majority of environmental enforcement cases referred to DOJ are settled without trial pursuant to stipulation between the state and the defendant. Of those that have been tried, a few have resulted in published decisions. A. Forfeiture Considerations With respect to the size of a civil forfeiture, and the factors to be considered, the courts have a wide range of discretion. "A trial court has a wide range of discretion in fixing the amounts of forfeitures ... based on the facts of the individual case. In assessing a forfeiture, the trial court may consider economic benefits to the defendant.9,1839 For example, in considering the
1837
Wis. Stat. $227.52. Gillen v. City ofNeenah, 219 Wis. 2d 806,580 N.W.2d 628 (1998). State v. C. Spielvogel &Sons Excavating, Inc., 193 Wis. 2d 464,478,535 N.W.2d 28 (Ct. App.) (citations omitted), rev. denied, 537 N.W.2d 572 (1995).
Chapter 18 Environmental Enforcement
appropriate size and components of a forfeiture for operation of a landfill without a license, failure to close and abandon a landfill site, and filling outside of approved areas, the Court of Appeals upheld a daily forfeiture of $50 per day, separate forfeitures for different violations occurring on the same day, and a total forfeiture assessment of $232,932, finding it was not an abuse of discretion in light of the evidence of economic benefit derived by the landfill operator as a result of the violations.'840 B. Corporate Officer Liability
The typical environmental enforcement case is a civil action against a business or corporate entity, in which the business or corporate entity is the named defendant. However, a corporate officer may be held personally liable for violations of solid and hazardous waste laws if the officer is responsible for overall operation of the corporation's facility, even if the individual officer did not personally authorize, participate in, or supervise the violating activity.1841
C. Definition of "Discharge" and Scope of Liability Under Spill Law Interpreting the scope of the Wisconsin spill law, the Supreme Court determined that seepage of a hazardous substance into the groundwater and onto adjacent property is a "discharge" as that term is used in
9 292.1 1, and the property owner can be required to take remedial action even
though the discharge was not the result of current human activity.'842 The Court also held the state may compel a company to remediate groundwater contamination that resulted from the disposal of drums prior to the 1978 enactment of the state spill law, if the drums continued to discharge after the date of enactment.1843
1840
State v. Schmitt, 145 Wis. 2d 724,429 N.W.2d 518 (Ct. App.), rev. denied, 146 Wis. 2d 875,430 N.W.2d 918 (1988). State v. RollJink,162 Wis. 2d 121,469 N.W.2d 398 (1991). State v. Mauthe, 123 Wis. 2d 288,366 N.W.2d 871 (1985). State v. Chlysler Outboard Corp., 219 Wis. 2d 130,580 N.W.2d 203 (1998).
Chapter 18 Environmental Enforcement D. Statute of Limitations
In a landmark case addressing the statute of limitations applicable to the state's effort to impose forfeitures for violations of the state spills statute (Wis. Stat.
292.1 1) the Supreme
Court held the controlling statute of limitations is 10 years. Thus, the state cannot seek forfeitures for claims based on violations that occurred more than 10 years prior to the date the action was brought. If the state seeks to enforce a continuing violation that began more than 10 years prior, the state's claim is limited to those violations that have occurred within the last 10 years. 1844
E. Estoppel While estoppel against the government is not favored, the City of Green Bay was entitled to a finding of estoppel against DNR in its attempt to collect civil forfeitures, but not with respect to enforcement of regulatory requirements designed to protect public health and ~ e 1 f a r e . l ' ~ ~
F. Authority Conveyed by Wis. Stat. 5 30.03 In a case involving the construction of a pier, the Court of Appeals examined the relationship between DNR's authority under Wis. Stat.
8 30.03 and the requirements set out in Wis. Admin.
Code ch. NR 326.'846NR 326.02 provides that the requirements of NR 326 can be applied to piers and boat shelters only in response to complaints or requests for information or for a permit. In an enforcement action against a pier brought in the absence of a complaint or request for information or permit, the defendants argued that DNR had no authority to regulate the size of the piers. The court disagreed, holding that "the cited rule cannot and does not deprive the
1844 1845
Id. State v. City of Green Bay, 96 Wis. 2d 195,291N.W.2d 508 (1980). Baer v. Wisconsin Dep't ofNatural Resources, 2006 WI App 255,2006 WL 2883227 (Oct. 12,2006).
Clzapter 18 Environmental Enforcement
Department of its statutory authority under Wis. Stat.
5 30.03(4) to
seek an order under that 3,1847
section 'to fblly protect the interest of the public in the navigable waters' of this state.
TABLE OF CASES
Page Federal Cases ABB Indus . Sys.. Inc. v. Prime Techn.. Inc.. 120 F.3d 351 (2d Cir. 1997) ..................................241 Adams v. Star Enterprise. 5 1 F.3d 417 (4th Cir. 1995) ...............................................................376 Air Pollution Control Dist . v. EPA. 739 F.2d 1071 (6th Cir. 1984) ............................................. 5 7 Artesian Water Co. v. Government of New Castle County. 659 F. Supp. 1269 (D. Del . 1987) ........................................................................................................................ 240 Atlantic Research Corp. v. United States. 459 F.3d 827 (8th Cir. 2006). cert. granted. 2007 WL 124673. 75 U.S.L.W. 3236 (U.S. Jan . 19. 2007) (NO. 06-562) ..........................................................................................................................249 Bancamerica Commercial Corp. v. Mosher Steel of Kansas. Inc., 100 F.3d 792 (10th Cir. 1996) .....................................................................................................................249 Carabell v. U S.Army Corps of Engineers. 39 1 F.3d 704 (6th Cir. 2004)..................................126 Clark v. United States. 660 F . Supp. 1164 (W.D. Wash. 1987) ..................................................376 Consolidated Edison Co. v. UGI Utils.. Inc.. 423 F.3d 90 (2d Cir. 2005) ..................................249 Cooper Indus.. Inc. v. Aviall Sews.. Inc.. 543 U.S. 157 (2004) ..................................................248 Croplife America. Inc. v. City of Madison. 432 F.3d 732 (7th Cir. 2005) ........................... 191. 225 E.I. DuPont De Nemours & Co. v. United States, 460 F.3d 5 15 (3d Cir. 2006) .........................249 Environmental Defense Fund v. Thomas. 870 F.2d 892 (2d Cir. 1989)........................................51 HofJFrzanHomes. Inc. v. EPA. 999 F.2d 256 (7th Cir. 1993).......................................................126 Holly Hill Farm Corp. v. United States. 447 F.3d 258 (4th Cir. 2006) .......................................129 Lamb v. Martin Marietta Energy Sys.. Inc.. 835 F. Supp. 959 (W.D. Ky. 1993)........................376 Meghrig v. KFC Western. Inc.. 5 16 U.S. 479 (1996) .......................................................... 190. 2 16 Metal Processing Co. v. Amoco Oil Co.. 926 F. Supp. 828 (E.D. Wis. 1996) ............................369 Metropolitan Water Reclamation Dist . v. North Am . Galvanizing & Coatings. 249 Inc., -F.3d - 2007 WL 102979 (7th Cir. 2007) ...........................................................
.
Table o f Cases National Ass'n of Home Builders v. U.S. Army Corps of Engineers, 440 F.3d 459 (D.C. Cir. 2006) .............................................................................................................. 107 New Castle County v. Halliburton NUS Corp.. 111 F.3d 1116 (3d Cir. 1997) ...........................247 New York v. United States E.P.A., 41 3 F.3d 3 (D.C. Cir. 2005).................................................... 75 New York v. United States E.P.A., 443 F.3d 880 (D.C. Cir. 2006)................................................ 70 Nurad. Inc. v. William E . Hooper & Sons Co.. 966 F.2d 837 (4th Cir. 1992) ............................ 241 O'Neil v. Picillo. 883 F.2d 176 (1st Cir. 1989). cert. denied. 493 U.S. 1071 (1990) ..................................................................................................................................... 245 Rapanos v. United States. 126 S. Ct. 2208 (2006) ............................................................. 126. 127 Raytheon Co. v. McGraw-Edison Co.. 979 F . Supp. 858 (E.D. Wis . 1997)................................ 369 Rockwell Int'l Corp. v. IU Int'l Corp., 702 F. Supp. 1384 (N.D. I11. 1988)................................. 240 Sherwin- Williams Co. v. City of Hamtramck. 840 F . Supp. 470 (E.D. Mich. 1993)......................................................................................................................................
274
Solid Waste Agency of Northern Cook County v. U S. Army Corps of Engineers. 351 U.S. 159 (2001) ............................................................................................126 Tennessee ValleyAuthority v. Hill. 437 U.S. 153 (1978) ....................................................285. 294 Tennessee ValleyAuthority v. Whitman. 336 F.3d 1236 (1 lth Cir. 2003) ....................................72 Uniroyal Chemical Co. v. Deltech Corp.. 160 F.3d 238 (5th Cir. 1998) ....................................278 United States v. CDMG Realty Co.. 96 F.3d 706 (3d Cir. 1996) ........................................241. 244 United States v. Dierckman. 201 F.3d 9 15 (7th Cir. 2000) .........................................................129 United States v. Duke Energy Corp.. 278 F . Supp. 2d 619 (M.D.N.C. 2003) ...............................76 United States v. Duke Energy Corp.. 41 1 F.3d 539 (4th Cir. 2005) ..............................................75 United States v. Goodner Bros . Aircraft. Inc.. 966 F.2d 380 (8th Cir. 1992) .............................261 United States v. Ohio Edison Comp.. 276 F. Supp. 2d 829 (S.D. Ohio 2003) ..............................72 United States v. Olin Corp.. 107 F.3d 1506 (1 1th Cir. 1997)..................................................... -245 United States v. Rapanos. 339 F.3d 447 (6th Cir. 2003) .............................................................126 United States v. Riverside Bayview Homes. Inc.. 474 U.S. 121 (1985) ..............................125. 126
Table of Cases
United States v. Southern Indiana Gas & Elec . Co., 245 F . Supp . 2d 994 (S.D. Ind . 2003)................................................................................................................................. 70 Village of Oconomowoc Lake v. Dayton Hudson Corp., 24 F.3d 962 (7th Cir. 1994) ............................................................................................................................
126. 395
Waterkeeper Alliance. Inc . v. U S. EPA. 399 F.3d 486 (2d Cir. 2005) .......................................170 Wisconsin Elec . Power Co. v. Reilly. 893 F.2d 901 (7th Cir. 1990) ................................. 69. 70. 71 Wisconsin Public Intervenor v. Mortier. 501 U.S. 597 ( 1 991)........................................ 7 191. 225 Wisconsin v. EPA. 266 F.3d 741 (7th Cir. 2001)......................................................................... 152 Zabel v. Tabb. 430 F.2d 199 (5th Cir. 1970). cert. denied. 401 U.S. 910 (1971) ....................... 125 State Cases
ABKA Limited P'ship v. DNR. 2002 W I 106. 255 W i s. 2d 486. 648 N.W.2d 854 ........................................................................................................................................... 99 A.E. Investment Corp. v. Link Builders. Inc., 62 W i s. 2d 479. 214 N.W.2d 764 (1974)..................................................................................................................... 349. 350. 364 Abdella v. Smith. 34 W i s. 2d 393. 149 N.W.2d 537 (1967) ................................................3 7 373 Acadian Heritage Realty. Inc . v. City oflafayette. 446 So. 2d 375 (L.A. A p p . 3 Cir. 1984)............................................................................................................................ 377 Adkins v. Thomas Solvent Co.. 487 N.W.2d 715 (Mich. 1992)................................................... 376 Aetna Life Ins . Co. v. Mitchell. 101 W i s. 2d 90. 303 N.W.2d 639 ( 1 981) ....................................22 376 Allan v. Uni-First Corp.. 558 A.2d 961 (Vt . 1988)..................................................................... Alsteen v. Gehl. 21 W i s. 2d 349. 124 N.W.2d 3 12 ( 1 963) .......................................................... 367 American Family Mut . Ins . Co. v. American Girl, Inc., 2004 W I 2. 268 W i s. 2d 16. 673 N.W.2d 65 ................................................................................................... 369 American Manufacturer's Mut . Ins . Co. v. Hernandez, 2002 W I App 76. 252 W i s. 2d 155. 642 N.W.2d 584 ................................................................................................. 30 American States Ins . Co. v. Skrobis Painting & Decorating. 182 W i s. 2d 445. 341, 345 513 N.W.2d 695 (Ct. App . 1994) .................................................................................. Andersen v. Village ofLittle Chute. 201 W i s. 2d 467. 549 N.W.2d 737 (Ct. App . 1996) ...................................................................................................................... 364
Table of Cases
Anstee v . Monroe Light & Fuel Co., 171 W i s. 291. 177 N.W. 26 (1920)..........347. 349. 353. 354. 361 Antwaun A . v. Heritage Mut . Ins . Co., 228 Wis. 2d 44, 596 N.W.2d 456 (1999).............................................................................................................
3 6 364. 365. 366
Attorney General ex re1. Becker v. Bay Boom Wild Rice & Fur Co., 172 W i s. 363. 178 N.W. 569 (1920)...................................................................................................... 94 Baer v. Wisconsin Dep 't of Natural Resources. 2006 W I App 255. 2006 W L 2883227 (Oct. 12. 2006) ........................................................................................................ 399 Baldwin v . Anderson. 40 W i s. 2d 33. 161 N.W.2d 553 (1968)..................................................... 97 Behnisch v. Cedarburg D a i y Co.. 1 80 W i s. 34. 192 N .W . 447 ( 1 923)...................................... 361 Bell v. City of Elkhorn. 122 W i s. 2d 558. 364 N.W.2d 144 (1985)................................................. 9 Bennett v. Larsen Co.. 11 8 W i s. 2d 68 1. 348 N.W.2d 540 (1984)..............................349. 350. 356 Bino v. City of Hurley. 273 W i s. 10. 76 N.W.2d 571 ( 1 956) ......................................................113 Blanchard v. Terpstra. 37 W i s. 2d 292. 155 N.W.2d 156 ( 1 967) ............................................... 350 Boorman v. Sunnuchs. 42 W i s. 233 ( 1 877) ...................................................................................94 Borello v. U S. Oil Co.. 130 W i s. 2d 397. 388 N.W.2d 140 (1986)............................................363 Brown v. L.S. Lunder Constr. Co., 240 W i s. 122. 2 N.W.2d 859 (1942)....................................356 Brown v. Milwaukee Terminal Ry.. 199 Wis. 575. 224 N.W. 748 ( 1 929)...................................371 Bunker v. City of Hudson. 122 W i s. 43. 99 N.W. 448 (1904).....................................................361 CEWMgmt. Corp. v. First Fed . Sav. & Loan, 88 W i s. 2d 63 1. 277 N.W.2d 766 ( 1 979).............................................................................................................................. 371 Capoun Revocable Trust v. Ansari. 2000 W I App 83. 234 W i s. 2d 335. 610 105 N.W.2d 129............................................................................................................................ Citizensfor Sensible Zoning. Inc. v. DNR. 90 W i s. 2d 804. 280 N.W.2d 702 ( 1979)...................................................................................................................................... 16 City of Beloit v. Town of Beloit. 37 W i s. 2d 637. 155 N.W.2d 633 (1968).................;.................29 City of Edgerton v. General Cas. Co., 184 W i s. 2d 750. 5 17 N.W.2d 463 (1994)............................................................................................................................. 341. 343 City ofMadison v. Schulti. 98 W i s. 2d 188. 295 N.W.2d 798 (Ct. App. 1980)..............................8
Table of Cases City ofMadison v . State. 1 W i s. 2d 252. 83 N.W.2d 674 (1957)..................................................93 City of Milwaukee v. State. 193 W i s. 423. 214 N.W. 820 (1927)................................................. 93 City of New Richmond v. DNR. 145 W i s. 2d 535. 428 N.W.2d 279 (Ct. App.), rev. denied. 145 W i s. 2d 918. 430 N.W.2d 352 (1988)..................................................... 3 44 Clean Wisconsin. Inc . v. PSC.. 2005 W I 93. 282 W i s. 2d 250. 700 N.W.2d 768 ......29. 30.31.46. 334. 338 Coffey v. City of Milwaukee. 74 W i s. 2d 526. 247 N.W.2d 132 (1976)...................................... 359 Collins v. Policano. 23 1 W i s. 2d 420. 605 N.W.2d 260 (Ct. App . 1999) ..................................... 27 Costas v. City of Fond du Lac. 24 W i s. 2d 409. 129 N.W.2d 2 17 ( 1 964)...................................373 Crest Chevrolet v. Willemsen. 129 W i s. 2d 129. 384 N.W.2d 692 ( 1 986)..................................1 17 Crystal Lake Cheese Factory v. LIRC. 2003 W I 106. 264 W i s. 2d 200. 664 N.W.2d 651 .............................................................................................................................. 29 Cudahy v. Department of Revenue. 66 W i s. 2d 253. 224 N.W.2d 570 (1974).............................. 27 Daanen & Janssen. Inc. v. Cedarapids. Inc., 216 W i s. 2d 395. 573 N.W.2d 842 (1998)...................................................................................................................... 3 6 369 Dane County v. H&SS Dep't. 79 W i s. 2d 323. 255 N.W.2d 539 (1977).......................................16 DeBeck v. DNR. 172 W i s. 2d 382. 493 N.W.2d 234 (Ct. A p p . 1992)...........................................22 DeGayner & Co. v. DNR. 70 W i s. 2d 936. 236 N.W.2d 2 17 ( 1 975) ............................................90 De Simone v. Kramer. 77 W i s. 2d 188. 252 N.W.2d 653 (1977).................................................. 94 Delaplaine v. Chicago & Northwestern Ry . Co.. 42 W i s. 2 14 ( 1 877) ..........................................94 Department of Revenue v. Howick. 100 W i s. 2d 274. 303 N.W.2d 381 (1981)............................22 Des Jardin v. Town of GreenJield. 262 Wis. 43. 53 N.W.2d 784 (1952)....................................328 Diana Shooting Club v. Husting. 156 W i s. 261. 145 N.W. 816 (1914)............................89. 91. 97 Diana Shooting Club v. Lamoreux. 114 W i s. 44. 89 N.W. 880 (1902).........................................89 Doemel v. Jantz. 180 W i s. 225. 193 N.W. 393 (1923)...............................................9 3 94. 95. 97. 98 Donaldson v. Urban Land Interests. Inc., 21 1 W i s. 2d 224. 564 N.W.2d 728 ( 1 997)............................................................................................................................. 341. 346
Table of Cases
Eller Media. Inc. v. Division of Hearings & Appeals. 2001 WI App 269. 249 28 Wis. 2d 198. 637 N.W.2d 96 ................................................................................................... Fortier v. Flambeau Plastics Co., 164 Wis . 2d 639. 476 N.W.2d 593 (Ct . App . 1991). rev. denied. 479 N.W.2d 172 (1992) ............................................. 3 4 349. 351-57. 365 Foss v. Madison Twentieth Century Theatres. Inc., 203 Wis . 2d 2 10. 55 1 N.W.2d 862 (Ct. App . 1996) ................................................................................................. 239 Fox v. DHSS. 112 Wis . 2d 514. 334 N.W.2d 532 (1983) ........................................................2 8 40 Gabe v. Cudahy. 52 Wis . 2d 13. 187 N.W.2d 874 (1971)...........................................................327 Gallagher v. Grant-Lafayette Elec. Coop., 2001 WI App 276. 249 Wis . 2d 361 115. 637 N.W.2d 80............................................................................................................... Gehin v. Wisconsin Group Ins. Bd., 2005 WI 16. 278 Wis . 2d 111. 692 N .W.2d 572.............................................................................................................................. 29 General Cas. Co. of Wisconsin v. Hills, 209 Wis . 2d 167. 561 N.W.2d 718 347 (1997) ..................................................................................................................................... George v. Schwarz. 200 1 WI App 72. 242 Wis . 2d 450. 626 N .W.2d 57 .....................................17 Gianoli v. Pfleiderer. 209 Wis . 2d 509. 563 N.W.2d 562 (Ct . App . 1997)................................... 95 Gillen v. City of Neenah. 2 19 Wis . 2d 806. 580 N.W.2d 628 (1 998) ............................93. 105. 397 355 Gilman v. Brown. 115 Wis . 1. 9 1 N .W . 227 (1902) .................................................................... Green Spring Farms v. Spring Green Farms. 172 Wis. 2d 28. 492 N.W.2d 392 (Ct. App. 1992) ...................................................................................................................... 358 Grube v. Daun. 173 Wis . 2d 30. 496 N.W.2d 106 (Ct. App. 1992) ....................358. 359. 360. 373 Grube v. Daun. 210 Wis . 2d 681. 563 N.W.2d 523 (1997).................................................246. 350 Haase v. Kingston Coop. Creamery Ass'n. 212 Wis . 585. 250 N.W. 444 (1933) ...........97.98. 112 Harnischfeger Corp. v. LIRC. 196 Wis . 2d 650. 660. 539 N.W.2d 98 (1995) ..............................30 Heise v. Village of Pewaukee. 92 Wis . 2d 333. 285 N.W.2d 859 (1979) ......................................94 Heritage Credit Union v. OfJice of Credit Unions. 2001 WI App 213. 247 16. 23 Wis . 2d 589. 634 N.W.2d 593 ........................................................................................... 90. 99 Hilton v. DNR. 2006 WI 84. 717 N .W.2d 166 ........................................................................ 45 Holtz & Krause. Inc. v. DNR. 85 Wis . 2d 198. 270 N.W.2d 409 (1978) ......................................
Table of Cases Houslet v. DNR. 110 Wis . 2d 280. 329 N.W.2d 219 (Ct. App . 1982)......................................... 124 Huber v. Merkel. 117 Wis . 355. 94 N.W. 354 (1903) ................................................................. 142 Illinois Steel Co.. v. Bilot. 109 Wis . 418. 84 N.W. 855 (1901) ..................................................... 92 In re Estate ofDrab. 143 Wis . 2d 568. 422 N.W.2d 144 (Ct . App. 1988).................................. 350 In re Tennessee Valley Authority. Docket No . CAA.2000.04.008. 2000 WL 1358648 (EAB Sept. 15. 2000).................................................................................... 72, 73, 74 Jacobs v. Nor.Lake. Inc.. 217 Wis. 2d 625. 579 N.W.2d 254 (Ct . App. 1998)........................... 364 Jansky v. City of Two Rivers. 227 Wis . 228. 278 N.W. 527 (1938) .............................................. 91 Jicha v. DILHR. 169 Wis . 2d 284. 485 N.W.2d 256 (1992) ......................................................... 31 Johnson Controls. Inc. v. Employers Ins. of Wausau. 2003 WI 108. 264 Wis. 2d 60. 665 N.W.2d 257 .........................................................................................3 4 343 Johnson v. Misericordia Cmty. Hosp., 97 Wis. 2d 521. 294 N.W.2d 501 (Ct. App. 1980) ......................................................................................................................
351
Jost v. Dairyland Power Coop.. 45 Wis . 2d 164. 172 N.W.2d 647 (1969) ........347.349.353.354. 376 Just v. Land Reclamation. Ltd.. 155 Wis. 2d 737. 456 N.W.2d 570 (1990)........................341. 345 Just v. Marinette Co.. 56 Wis. 2d 7. 201 N.W.2d 761 (1972) .....................................................121 Kellogg v. Village of Viola. 67 Wis. 2d 345. 227 N.W.2d 55 (1975)..........................................372 Kinnick v . Schierl. Inc.. 197 Wis. 2d 855. 541 N.W.2d 803 (Ct. App. 1995) .............349. 370. 371 Kleinke v. Farmers Coop. Supply & Shipping. 202 Wis . 2d 138. 549 N.W.2d 349. 367. 368. 375 714 (1996).................................................................................................... Klingeisen v. DNR. 163 Wis.2d 92 1. 472 N.W.2d 603 (Ct. App. 1991)................................89. 96 Kohlbeck v. Reliance Constr. Co., 2002 WI App 142. 256 Wis . 2d 235. 647 N.W.2d 277............................................................................................................................ 120 Krahenbuhl v. Wisconsin Dentistry Examining Bd., 2004 WI App 147. 275 Wis. 2d 626. 685 N.W.2d 591 ................................................................................................. 29 Krueger v. Mitchell. 112 Wis. 2d 88. 332 N.W.2d 733 (1983) ...........................352. 353. 362. 376 La Fleur v. Mosher. 109 Wis.2d 112. 325 N.W.2d 314 (1982) .................................................366
Table qf Cases Lambert v . Hein. 21 8 Wis . 2d 712. 582 N.W.2d 84 (Ct. App. 1998)..........................................374 Larsen v. Munz Corp.. 167 Wis . 2d 583. 482 N.W.2d 332 (1992)..........................................4 45 LeClair v. Natural Resources Bd., 168 Wis . 2d 227. 483 N.W.2d 278 (Ct. App. 1992) ........................................................................................................................
25
Lessard v. Burnett County Bd. of Adjustment. 2002 WI App 186. 256 Wis . 2d 821. 649 N.W.2d 728.............................................................................................................
328
Liberty Homes. Inc. v. DILHR. 136 Wis. 2d 368. 401 N.W.2d 805 (1987) .................................. 22 Lins v. Blau. 220 Wis . 2d 855. 584 N.W.2d 183 (Ct. App. 1998)............................................... 120 Luebke v. Miller Consulting Engineers. 174 Wis . 2d 66. 496 N.W.2d 753 (Ct. App. 1993).....................................................................................................................
-362
Mack v. DHFS. 23 1 Wis . 2d 644. 605 N.W.2d 65 1 (Ct. App. 1999) ............................................23 i n ~ 179 Wis . 2d Madison Landfills. Inc. v. Libby Landfill ~ e ~ o t i a tComm., 815. 509 N.W.2d 307 (Ct. App. 1993) .......................................................................... 177. 179 Maple Leaf Farms v. DNR. 2001 WI App 170. 247 Wis. 2d 96. 633 N.W.2d 720 ......................................................................................................................................... 153 20 Martinez v. DILHR. 165 Wis. 2d 687. 478 N.W.2d 582 (1992).................................................... 9 95. 96. 98 Mayer v. Grueber. 29 Wis . 2d 168. 138 N.W.2d 197 (1965) .................................. McLoone Metal Graphics. Inc. v. Robers Dredge. Inc., 58 Wis . 2d 704. 207 N.W.2d 616 (1973) ................................................................................................................ 356 Menick v. City ofMenasha. 200 Wis . 2d 737. 547 N.W.2d 778 (Ct. App. 1996)...................................................................................................................................... 371 Metropolitan Greyhound Mgmt. Corp. v. Wisconsin Racing Bd., 157 Wis . 2d 678. 460 N.W.2d 802 (Ct. App 1990) ..................................................................................... 25 Mews v. Department of Commerce. 2004 WI App 24. 269 Wis . 2d 641. 676 N.W.2d 160............................................................................................................................ 280 Miller v. Wal-Mart Stores. Inc.. 219 Wis . 2d 250. 580 N.W.2d 233 (1998) ...............350. 374. 375 Milwaukee Area Joint Plumbing Apprenticeship Comm. v. DILHR. 172 Wis. 2d 299. 493 N.W.2d 744 (Ct.App. 1992).......................................................................16 Milwaukee Metro. Sewerage Dist. v. DNR, 126 Wis. 2d 63. 375 N.W.2d 649 (1985)....................................................................................................................................... 25
Table o f Cases
Morgan v. Pennsylvania Gen. Ins. Co., 87 Wis. 2d 723, 275 N.W.2d 660 (1979) ................................................................................................................... 3 1 . 374. 375 Mose v. Tedco Equities-Potter Rd. Ltd. P'ship. 228 Wis . 2d 848. 598 N.W.2d 594 (Ct. App. 1999).......................................................................................................
369. 370
Muench v. PSC. 261 Wis. 492. 53 N.W.2d 514 (1952) ........................................................... 89. 90 Munninghoffv. Wisconsin Conservation Comm'n. 255 Wis . 252. 38 N.W.2d 712 (1949) ..........................................................................................................................
9 97
Nelson v. DNR. 88 Wis. 2d 1. 276 N.W.2d 302 (Ct. App. 1979) ................................................ 177 Nieuwendorp v. American Family Ins. Co., 191 Wis . 2d 462. 529 N.W.2d 594 (1995).....................................................................................................................................
349
Nischke v. Farmers & Merchants Bank & Trust. 187 Wis . 2d 96. 522 N.W.2d 542 (Ct. App.). rev. denied. 527 N.W.2d 335 (1994) .................................... 347. 349. 351. 361 North Lake Mgmt. Dist. v. DNR, 182 Wis. 2d 500. 5 13 N.W.2d 703 (Ct. App. 1994)........................................................................................................................................40 Northridge Co. v. K R . Grace & Co., 162 Wis. 2d 918. 471 N.W.2d 179 (1991).....................................................................................................................................368 O'Donnell v. Reivitz. 144 Wis. 2d 717. 424 N.W.2d 733 (Ct. App. 1988)......................................7 Ollerman v. O'Rourke Co.. 94 Wis . 2d 17. 288 N.W.2d 95 (1980) ............................357. 358. 362 Olson v. Merrill. 42 Wis . 203 (1877) ............................................................................................ 90 Omernick v. DNR. 100 Wis . 2d 234. 301 N.W.2d 437 (1981) ......................................................29 Omernik v. Bushman. 151 Wis . 2d 299. 444 N.W.2d 409 (Ct. App. 1989) ................................373 Omernik v. State. 64 Wis . 2d 6. 2 18 N.W.2d 734 (1974) ............................................................ 116 Oneida County v. Converse. 180 Wis. 2d 120. 508 N.W.2d 416 (1993) ......................................22 Peace v. Northwestern Nat'l Ins. Co., 228'Wis.2d 106. 596 N.W.2d 429 (1999)............................................................................................................................. 341. 345 Pedelty v. Wisconsin Zinc Co.. 148 Wis. 245. 134 N.W. 356 (1912)..................347. 349. 355. 361 Pewaukee Marina. Inc.. 187 Wis. 2d at 24 .................................................................................. 329 Piorkowski v. Liberty Mut. Ins. Co., 68 Wis . 2d 455. 228 N.W.2d 695 (1975) ..........................367 Prah v. Maretti. 108 Wis. 2d 223. 321 N.W.2d 182 (1982) ................................................3 5 2 376
Table of Cases Prziinz v. Town of Ashford. 168 Wis. 2d 1 14. 483 N.W.2d 242 (Ct. App. 1992) ........................120 RWDocks & Slips v. State. 2001 WI 73. 244 W i s. 2d 497. 628 N.W.2d 781. cert. denied. 534 U.S. 1041 (2001).......................................................................................... 98 Responsible Use of Rural and Agricultural Land (RURAL) v. PSC. 2000 W I 129. 239 W i s. 2d 660. 619 N.W.2d 888 ............................................................................ 2 31 Robert E . Lee & Assocs., Inc. v. Peters. 206 W i s. 2d 509. 557 N.W.2d 457 (Ct. App. 1996) ......................................................................................................................
142
Robinson v. Kunach. 76 W i s. 2d 436. 251 N.W.2d 449 (1977).................................................... 35 Rockweit v. Senecal. 197 W i s. 2d 409. 541 N.W.2d 742 (1995)......................................... 3 4 350 Rolph v. EBI Cox7159 W i s. 2d 51 8. 464 N.W.2d 667 (1991)............................................3 5 364 Schicker v. Leick. 40 W i s. 2d 295. 162 N.W.2d 66 (1968).........................................................349 Schoolway Transp. Co. v. Division ofMotor Vehicles, 72 W i s. 2d 223. 240 N .W.2d 403 ( 1 976) ..................................................................................................................23 Schroeder v. Dane County Bd . ofAdjustment. 228 W i s. 2d 324. 596 N.W.2d 329 472 (Ct. App 1999)................................................................................................................ Sea View Estates Beach Club. Inc. v. DNR. 223 W i s. 2d 138. 588 N.W.2d 667 30 (Ct. App. 1998) ........................................................................................................................ Seider v. OrConnell.2000 W I 76. 236 W i s. 2d 2 1 1. 612 N.W.2d 659 ..........................................22 Smart v. Dane County Bd . ofAdjustment. 177 W i s. 2d 445. 501 N.W.2d 782 ( 1993)..................................................................................................................................... 329 Smith v. Youmans. 96 W i s. 103. 70 N.W. 1 1 15 ( 1 897)..............................................................112 Society Ins . v. Town ofFranklin. 2000 W I App 35. 233 W i s. 2d 207. 607 3 4 344 N.W.2d 342 ................................................................................................................. Sohns v. Jensen. 1 1 W i s. 2d 449. 105 N.W.2d 8 18 ( 1 960) ......................................................... 363 Soo Line R.R. Co. v. Commissioner of Transp., 170 W i s. 2d 543. 489 N.W.2d 672 (Ct. App. 1992)...............................................................................................................116 Speth v. City ofMadison. 248 W i s. 492. 22 N.W.2d 501 (1946)................................................ 364 Spitler v. Dean. 148 W i s. 2d 630. 436 N.W.2d 308 ( 1989) ........................................................ 363 State ex re1. Boehm v. DNR. 174 W i s.2d 657. 497 N.W.2d 445 ( 1 993).....................33. 39. 44. 45
Table of Cases State ex re1. Chain O'Lakes Protective Ass'n v. Moses. 53 W i s. 2d 579. 193 N.W.2d 708 ( 1 972) .............................................................................................................. 113 State ex re1. Clifton v. Young. 133 W i s. 2d 193. 394 N.W.2d 769 (Ct. App . 1986) ........................................................................................................................................
23
State ex re1. Town ofDelavan v. Circuit Court. 167 W i s. 2d 719. 482 N.W.2d 899 (1992)................................................................................................................................
28
State Farm Mut. Auto . Ins . Co. v. Continental Cas. Co., 174 W i s. 2d 434, 498 N.W.2d 247 (Ct. App . 1993) ................................................................................................. 371 State Public Intervenor v. DNR. 171 W i s. 2d 243. 490 N.W.2d 770 (Ct. App . 1992) ........................................................................................................................................
29
State Public Intervenor v. DNR. 184. W i s. 2d 407. 5 15 N.W.2d 897 ( 1 994) ................................ 28 State v. Bleck. 114 W i s. 2d 454. 338 N.W.2d 492 (1983)............................................................. 98 State v. C. Spielvogel & Sons Excavating. Inc., 193 W i s. 2d 464. 535 N.W.2d 28 (Ct. App.). rev. denied. 537 N.W.2d 572 (1995)..............................................................397 State v. Chrysler Outboard Corp.. 219 W i s. 2d 130. 580 N.W.2d 203 (1998)...........239.245. 398 State v. City of Green Bay. 96 W i s. 2d 195. 291 N.W.2d 508 (1980).........................................399 State v. DILHR. 77 W i s. 2d 126. 252 N.W.2d 353 (1977)............................................................ 22 State v. Dairyland Power Coop.. 52 W i s. 2d 45. 187 N.W.2d 878 (1971).................................389 State v. Deetz. 66 W i s. 2d 1. 224 N.W.2d 407 (1974).........................................................1 0 117 State v. Mauthe. 123 W i s. 2d 288. 366 N.W.2d 871 (1985)................................2 3 9 243. 245. 398 State v. McFarren. 62 W i s. 2d 492. 2 15 N.W.2d 459 ( 1 974) .......................................................95 State v. Michels Pipeline Constr., Inc., 63 W i s. 2d 278. 217 N.W.2d 339. 219 N.W.2d 308 (1974)........................................................................................142. 349. 354. 355 State v. Outagamie County Bd . ofAdjustment. 2001 W I 78. 244 W i s. 2d 613. 628 N.W.2d 376 ....................................................................................................................... 22 State v. PSC. 275 W i s. 1 12. 8 1 N.W.2d 71 ( 1 957)........................................................................ 93 State v. Quality Egg Farm. Inc.. 104 W i s. 2d 506. 311 N.W.2d 650 (1981) .....351.352.354.376. 389 State v. RolEJink. 162 W i s. 2d 121. 469 N.W.2d 398 (1991)....................................................... 398
Table of Cases State v. Schmitt. 145 Wis . 2d 724. 429 N.W.2d 518 (Ct. App.), rev. denied. 146 Wis . 2d 875. 430 N.W.2d 918 (1988)............................................................................. 398 State v. Trudeau. 139 Wis. 2d 91. 408 N.W.2d 337 (1987) ..............................................9 1 92. 93 State v. Zawistowksi. 95 Wis . 2d 250. 290 N.W.2d 303 (1980) .................................................. 116 Steiger v. Nowakowski. 67 Wis . 2d 355. 227 N.W.2d 104 (1975) .............................................. 355 Sturgis v Winnebago County Bd. of Adjustment. 141 Wis . 2d 149. 413 N.W.2d 642 (Ct. App. 1987) ............................................................................................................ 329 Sunnyside Feed Co., Inc. v. City ofportage. 222 Wis . 2d 461. 588 N.W.2d 278 (Ct. App. 1998)............................................................................................................... 364 Town of Delavan v. City ofDelavan. 160 Wis . 2d 403. 466 N.W.2d 227 (Ct. App. 1991)........................................................................................................................
28
Tucker v. Marcus. 142 Wis. 2d 425. 418 N.W.2d 818 (1988) ....................................................363 Turkow v. DNR. 216 Wis . 2d 273. 576 N.W.2d 288 (Ct. App . 1998)........................................... 91
UFE. Inc. v. LIRC. 201 Wis. 2d 274. 548 N.W.2d 47 (1996) .................................................30, 31 Village of Pewaukee v. Savoy. 103 Wis . 27 1. 79 N.W. 436 (1899) ............................................ 112 W.H. Pugh Coal Co. v. State, 105 Wis . 2d 123. 312 N.W.2d 856 (Ct. App. 1981) ........................................................................................................................................ 94 Wagner v. State Med. Examining Bd., 181 Wis . 2d 633. 511 N.W.2d 874 (1994)....................................................................................................................................... 28 Walker v. Bignell. 100 Wis. 2d 256. 301 N.W.2d 447 (198 1).....................................................350 Walley v. Patake. 271 Wis . 530. 74 N.W.2d 130 (1956).............................................................371 Walworth County v. Hartwell. 62 Wis . 2d 57. 214 N.W.2d 288 (1974) .....................................327 Wangen v. Ford Motor Co.. 97 Wis . 2d 260. 294 N.W.2d 437 (1980) .......................................363 Waste Mgmt. of Wis.. Inc. v. DNR. 128 Wis. 2d 59. 381 N.W.2d 318 (1986) ..............................25 Waste Mgmt. of Wis.. Inc. v. DNR, 144 Wis. 2d 499. 424 N.W.2d 685 (1988) ............................28 Waukesha County v. Seitz. 140 Wis . 2d 111. 409 N.W.2d 403 (Ct. App. 1987).........................327 Weisensel v. DHSS. 179 Wis.2d 637. 508 N.W.2d 33 (Ct. App. 1993) .......................................27 Wendt v. Blazek. 2001 WI App 91. 242 Wis. 2d 722. 626 N.W.2d 78..........................................99
Table o f Cases
West Bend Ed~rc . Ass'n v. WERC, 121 Wis. 2d 1. 357 N.W.2d 534 (1984)..................................31 Whipp v. Iverson. 43 W i s. 2d 166. 168 N.W.2d 201 (1969)....................................................... 358 Willow River Club v. Wade. 100 W i s. 86. 76 N.W. 273 ( 1 898).................................................... 96 Wischer v. Mitsubishi Heavy Duty Inds . America. Inc., 2005 W I 26. 279 W i s. 2d 4. 694 N.W.2d 320 ................................................................................................... 362 WisconsinBuilders Ass'n v. DOT. 2005 WI App 160. 285 W i s. 2d 472. 702 N.W.2d 433 ...............................................................................................................................
1
Wisconsin Citizens Concernedfor Cranes & Doves v. DNR. 2004 W I 40. 270 W i s. 2d 318. 677 N.W.2d 612 ................................................................................................... 1 WisconsinHosp. Ass'n v. Natural Resources Bd., 156 W i s. 2d 688. 457 N.W.2d 879 (Ct. App. 1990) ...................................................................................................22 Wisconsin Power & Light Co. v. Columbia County. 18 W i s. 2d 39. 117 N.W.2d 597 (1962)................................................................................................................365 Wisconsin's Envtl. Decade. Inc . v. DILHR. 104 W i s. 2d 640. 312 N.W.2d 749 33 (1981)....................................................................................................................................... Wisconsin's Envtl. Decade. Inc. v. DNR. 94 W i s. 2d 263. 288 N.W.2d 168 3 43. 44 (Ct. App. 1979)............................................................................................................ Wisconsin's Envtl. Decade. Inc. v. DNR. 11 5 W i s. 2d 381. 340 N.W.2d 722 3 39. 44 (1983)........................................................................................................................... Wisconsin'sEnvtl. Decade. Inc. v. PSC. 69 W i s. 2d 1. 230 N.W.2d 243 (1975)....................28. 41 Wisconsin'sEnvtl. Decade. Inc. v. PSC. 79 W i s. 2d 161. 255 N.W.2d 917 ( 1 977) ............................................................................................................................. 28, 42
Wisconsin'sEnvtl. Decade. Inc. v. PSC. 79 W i s. 2d 409. 256 N.W.2d 149 ( 1 977)................................................................................................................................. 4 2 43 Wisconsin'sEnvtl. Decade. Inc. v. PSC. 81 W i s. 2d 344. 260 N.W.2d 712 ( 1 978)....................................................................................................................................... 41 Wisconsin's Envtl. Decade. Inc. v. PSC. 98 W i s. 2d 682. 298 N.W.2d 205 (Ct. App. 1980)................................................................................................................. 4 46 Wisconsin's Envtl. Decade. Inc. v. PSC. 105 W i s. 2d 457. 313 N.W.2d 863 41 (Ct. App. 1981)........................................................................................................................
Table of Cases Zindell v. Central Mzit . Ins . Co., 222 Wis . 575, 269 N.W. 327 (1936) .......................................360 Zinn v . State, 112 Wis . 2d 417. 334 N.W.2d 67 (1983) ................................................................ 94
TABLE OF ACRONYMS
ACCP ...................Agricultural Chemical Cleanup Program ALJ ...................... Administrative Law Judge APA .....................Administrative Procedures Act ARARs .................Applicable or Relevant and Appropriate Requirements BACT ...................Best Available Control Technology BAT .....................Best Available Technology BCPL ................... Board of Commissioners of Public Lands BPT ...................... Best Practicable Technology CA ........................ Certificate of Authority CAA .....................Clean Air Act CCP ...................... Commercial Chemical Product CERCLA.............. Comprehensive Environmental Response, Compensation and Liability Act CGL .....................Comprehensive General Liability CPCN ................... Certificate of Public Convenience and Necessity CWA ....................Clean Water Act DATCP ................Department of Agriculture, Trade and Consumer Protection DERF ...................Dry Cleaner Environmental Response Fund DHFS ...................Department of Health and Family Services DMR ....................Discharge Monitoring Report DMZ ....................Design Management Zone DNR .....................Department of Natural Resources DOA .....................Department of Administration DOJ ......................Department of Justice DOT .....................Department of Transportation EA ........................Environmental Assessment EIR .......................Environmental Impact Report EIS .......................Environmental Impact Statement EMS .....................Environmental Management System EPA.. ....................Environmental Protection Agency EPCRA ................Emergency Planning and Community Right to Know EPL ......................Environmental Priorities Law ES .........................Enforcement Standard ESA ......................Endangered Species Act ETSA ...................Endangered and Threatened Species Act FFDCA ................Federal Food, Drug and Cosmetic Act FIFRA ..................Federal Insecticide, Fungicide and Rodenticide Act FQPA ...................Food Quality Protection Act GACT ..................Generally Available Control Technology GP ........................General Permit HPV .....................High Priority Violation HRS......................Hazard Ranking System HSWA..................Hazardous and Solid Waste Amendments HWMA ................Hazardous Waste Management Act
Table of Acronynzs
ISR .......................Initial Site Report JCRAR ................. Joint Committee for Review of Administrative Rules LAER ................... Lowest Achievable Emission Rate LEPC .................... Local Emergency Planning Committee LDR .....................Land Disposal Restrictions LO1.......................Letter of Inquiry LON ..................... Letter of Noncompliance LOP ...................... Letter of Permission LQG .....................Large Quantity Generator LUST ...................Leaking Underground Storage Tank MACT .................. Maximum Achievable Control Technology MCL..................... Maximum Contaminant Level MCLG .................. Maximum Contaminant Level Goals MS4......................Municipal Separate Storm Sewer System MSDS .................. Material Safety Data Sheet NAAQS ................ National Ambient Air Quality Standard NCP ......................National Contingency Plan NEPA ...................National Environmental Policy Act NESHAP ..............National Emission Standard for Hazardous Air Pollutant NO1 ...................... Notice of Intent NOV .....................Notice of Violation NPDES .................National Pollutant Discharge Elimination System NPL ......................National Priorities List NRB .....................Natural Resources Board NRC .....................National Response Center NSPS ....................New Source Performance Standard NSR.. ....................New Source Review OHWM ................Ordinary High Water Mark OSHA ..................Occupational Safety and Health Administration PAA .....................Practicable Alternatives Analysis PAL ......................Preventive Action Limit PCB. .....................Polychlorinated Biphenyls PECFA .................Petroleum Environmental Cleanup Fund Act PMN .....................Pre-Manufacture Notice POTW ..................Publicly Owned Treatment Work PRP ......................Potentially Responsible Party PSC ......................Public Service Commission PSD ......................Prevention of Significant Deterioration PSES ....................Pretreatment Standards for Existing Sources PSNS ....................Pretreatment Standards for New Sources PTE ......................Potential to Emit RACT. ..................Reasonably Available Control Technology RCRA ..................Resource Conservation and Recovery Act RIIFS ....................Remedial Investigation and Feasibility Study (EPA) ROD .....................Record of Decision RP ........................Responsible Party
Table of Acronyms RQ ........................Reportable Quantity RR ........................ Remediation and Redevelopment Program RU ........................ Responsible Unit SARA...................Superfund Amendment and Reauthorization Act SBRRB ................ Small Business Regulation Review Board SDWA.................. Safe Drinking Water Act SEIS .....................Supplemental Environmental Impact Statement SEP ...................... Supplemental Environmental Project SERB ................... State Emergency Response Board SIC ....................... Standard Industrial Classification SIP........................ State Implementation Plan SQG ..................... Small Quantity Generator SWDA.................. Solid Waste Disposal Act TCLP .................... Toxicity Characteristic Leaching Procedure TRI .......................Toxic Release Inventory TSCA ................... Toxic Substances Control Act TSD ......................Transportation, Storage and Disposal UST ......................Underground Storage Tank VPLE ...................Voluntary Party Liability Exemption VSQG ..................Very Small Quantity Generator WEM ....................Wisconsin Emergency Management WEPA ..................Wisconsin Environmental Policy Act WET .....................Whole Effluent Toxicity WETSA................Wisconsin Endangered and Threatened Species Act WFSB ..................Waste Facility Siting Board WPDES ................Wisconsin Pollutant Discharge Elimination System WQC ....................Water Quality Certification
Table of Acronyms
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INDEX OF WORDS AND PHRASES
ACCP ................................................................................................................................... 280, 28 1 Act 118 .................................................................................................................... 18. 63. 100. 337 Act 24 .......................................................................................................................... 3 3 336. 339 Act 29 .................................................................................................................. 3 3 336. 338. 339 Act 89 .................................................................................................. 332. 335. 336. 337. 338. 339 administrative law judge ................................................................ 17. 24. 25. 26. 99. 104. 32 1. 397 administrative order ..................................................................................................................... 250 Administrative Procedures Act .......................................................................................... 1. 15. 396 Agricultural Chemical Cleanup Program ..........................................................................2 8 0 28 1 ALJ .................................................................................................................... 2 25. 26. 321. 397 anti-degradation ................................................................................................................... 158. 159 APA ............................................................................................................................................ -396 applicable or relevant and appropriate requirements ................................................................... 274 ARARs ........................................................................................................................................ -274 asbestos .................................................................................................................... 6 223. 306. 359 attainment areas ...................................................................................................................... 5 1. 67
BACT ..................................................................................................................... 6 69. 76. 77. 78 BAT ............................................................................................................................................ 156 best available control technology .......................................................................... 6 69. 76. 77. 78 best available technology ........................................................................................................... 156 best available technology economically achievable .................................................................... 156 best practicable control technology ............................................................................................1 5 5 best practicable technology ......................................................................................................... 155 biological assessment .................................................................................................................. 293 Board of Commissioners of Public Lands ................................................................................... 287 bona fide purchaser .............................................................................................................. 2 6 259 BPT .............................................................................................................................................. 155 bridges ......................................................................................................................... 106, 111, 138 brownfields .......................................................................................................................... 237, 284 C
CA ................................................................................................................ 331, 332. 335. 336. 337 CAA .................47.48.49. 50. 51. 54. 57. 58. 59. 61.62.64. 66.68.69. 72. 78. 80. 82. 83. 84. 85 case closure .................................................................................................................................. 268 categorical effluent limits .................................................................................... 154. 155. 156. 159 CCP .............................................................................................................................................. 195 CERCLA......xix. xx. 217. 221.227. 231. 232. 235. 237. 238. 240. 241. 242. 243.244. 245. 246. 247.248.249.250. 251. 252.254.255.256. 257. 258.259. 261.262.270. 271.274.275.277. 347.387. 393
Index of Words nnd Phrases
Certificate of Authority ............................................................................... 331, 332. 335. 336. 337 Certificate of Completion .................................................................................................. 269, 270 Certificate of Public Convenience and Necessity ........331, 332,333, 334,335,336, 337,338, 339 342, 343 CGL ..................................................................................................................................... Charter ........................................................................................................................... 87, 115, 382 .. citizen suit ............................................................................................................ 216, 326, 385, 395 249, 250, 252, 325 civil penalties ....................................................................................................... Clean Air Act ......xiv, xix, xx, 47,48,49, 50, 51, 54, 57, 58, 59, 61, 62,64,66, 68, 69, 72, 78, 80, 82,83,84, 85,217,242,385,387,393, 395 Clean Water Act ......xix, xx, 88, 105, 106, 107, 108, 109, 110, 123, 125, 127, 128, 129, 130, 134, 143,151,152,160,161,169,217,242,243,385,387,393, 395 cleanup......xv, xviii, 223, 226, 231, 232, 233, 234, 235, 236, 237, 239, 244, 245, 247, 249, 251, 256,258,261,262,263,264,266,268,269,270,271,272,273,274,275,276,277,278,279, 280,281,282,283,343,346,369,388,393, 396 collection and transportation services.................................................................................. 175, 179 5, 227 combustible liquid ................................................................................................................... 194, 195 commercial chemical product .............................................................................................. common enemy doctrine .........................................................................................................1 1 6 common law......xx, 1, 3, 10, 48, 87, 89, 120, 142, 347, 348, 349, 355, 360, 363, 365, 371, 374, 375, 388 community water systems ........................................................................................................... 148 347, 363 compensatory damages ........................................................................................................ Comprehensive Environmental Response, Compensation and Liability Act ......xix, xx, 2 17, 22 1, 227,231,232,235, 237, 238,240,241,242, 243, 244,245,246,247,248,249,250,251,252, 254,255,256,257,258,259,261,262,270,271,274,275,277,347,387, 393 341, 342, 343 comprehensive general liability ................................................................................... Conservation Strategy for the Butler's Gartnersnake ..................................................................300 331 construction and operating permits .............................................................................................. contested case ............................16, 23, 24, 25, 26, 27, 40, 104, 135, 181, 214, 321, 337, 396, 397 x i , xx, 247, 248, 249, 251, 281, 283, 349, 371 contribution ............................................................ x i , xx, 247, 248, 249 contribution action .......................................................................................... Corps of Engineers ............................................................................................ 105, 107, 124, 126 corrective action .......................................................................................................................... 392 227 corrosion protection ..................................................................................................................... corrosivity ........................................................................................................... 1 9 5 196, 198, 243 cost recovery action ..................................................................................................... 245, 247, 248 Council on Environmental Quality ................................................................................................ 34 CPCN ........................................................................... 331, 332, 333, 334, 335, 336, 337, 338, 339 . . criminal penalties ................................................................................................................ 2 13, 2 15 291, 292, 293, 294, 295 critical habitat .............................................................................................. CWA ............................105, 106, 107, 108, 109, 110, 123, 125, 127, 128, 129, 130, 134, 152, 161
DATCP .....................................................................................xvii. 6. 10. 224. 225. 236. 280. 388 de micromis exemption ....................................................................................................... 2 7 258 2 2 6 25 1. 275 de minimis ................................................................................................................
Index of Words and Phrases
de novo review ................................................................................................................... 11, 30, 42 delegated authority .................................................................................................... 48, 57, 73, 106 Department of Administration .................................................. .2, 18, 19, 24, 34, 45, 179, 32 1, 397 Department of Agriculture, Trade and Consumer Protection......xvii, 6, 10, 34, 144, 224, 225, 236,264,280, 388 Department of Commerce ................................................... xv, 5, 34, 227, 232, 236, 263, 280, 388 Department of Health and Family Services ............................................................ 3 6, 23, 34, 143 Department of Health and Social Services ........................................................................ 27, 28, 46 Department of Justice ..........xviii, 4, 5, 65,215,250,383, 385, 388,390,391,392, 393, 395, 397 Department of Labor and Human Resources ........................................................16, 20, 22, 3 1, 33 Department of Transportation .......................................................3 2, 34, 56, 108, 166, 199, 338 D E W ................................................................................................................................... 281, 282 derived-from rule ....................................................................................................................... 198 DHFS ................................................................................................................................ 6 23, 143 DHSS ................................................................................................................................. 27, 28, 46 DILHR ................................................................................................................... 16, 20, 22, 3 1, 33 diminishing asset rule ......................................................................................................... 3 0 5 329 discharge......7, 24, 37, 105, 106, 107, 108, 109, 119, 125, 128, 130, 134, 145, 151, 153, 154, 155, 156, 158, 159, 160, 162, 165, 168, 170, 171, 172, 173, 175,202,234,238,239,243,244, 246,253,254,259,260,261,262,263,264,278,281,320,345,354,376, 398 Discharge Monitoring Report ..................................................................................................... 161 disposal facilities ......................................................................................... 176, 177, 192, 20 1, 2 10 DOA ........................................................................................................................... 18, 19, 45, 397 DOJ .................................................................................. 5, 385, 388, 390, 391, 392, 393, 395, 397 DOT ................................................................................................................................. 2, 166, 338 drainage district ................................................................................................................. 1 17, 118 Dry Cleaner Environmental Response Fund ....................................................................... 28 1, 282 due diligence ......................................................................................................................... x i , 394 due process .................................................................................................................................... 22 due weight deference ..................................................................................................................... 30
EA .............................................................................................................................. 36. 37. 40. 334 economic feasibility .................................................................................................................... -265 economic loss doctrine ........................................................................................................ 368. 369 effective recycling program ........................................................................................................ 187 EIS .................................33.34.35.36.37.38.39.40.42.43.44.45.46. 181. 182.320.321. 334 eligible response sites ................................................................................................................237 emergency notification ............................................................................................................... -222 emergency planning ........................................................................................ 6 2 19. 220. 22 1. 222 Emergency Planning and Community Right to Know Act ......xx. 190. 217. 21 8. 219. 221. 222. 232 . . emergency planning distr~ct......................................................................................................... 222 emergency rules ............................................................................................................................ 1 EMS ..................................................................................................................................... 380, 381 Endangered and Threatened Species Act .................................................................................... 295
Index of Words and Plzrases
endangered species ...................................................................... 290, 291. 292. 293. 294. 295. 296 Endangered Species Act ..............................................2 5 290. 291. 292. 293. 294. 295. 297. 299 Energy Priorities Law ......................................................................................................... 3 3 4 335 enforcement......xviii. 1. 3. 5. 7. 15. 17. 22. 27. 37. 57. 59. 61. 64. 65. 85. 105. 109. 161. 168. 185. 188. 189. 192. 213.215. 245.260.266.314. 326. 327.331.380.382. 383.385.386.388. 389.390.393.394.395.397.398. 399 Enforcement Standard ........................................................................................ 1 4 3 144. 266. 267 Environmental Assessment ........................................................................ 3 37. 40. 180. 334. 392 environmental audit ............................................................................................................ 3 7 9 394 Environmental Impact Statement......24. 33. 34. 35. 36. 37. 38. 39. 40. 42. 43. 44. 45. 46. 146. 181.182.320.321. 334 Environmental Improvement Program ........................................................................ 3 7 9 383. 394 environmental management system .................................................................................... 3 8 0 38 1 Environmental Protection Agency ......xiv. 39. 42. 43. 47. 48. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59.60.61.66.67.69.70.71.72.74.75.76.77.78.79.80.81.82.83. 85. 106. 109. 125. 126. 128. 152. 156. 159. 160. 161. 162. 170. 192. 194. 196. 197. 198.200. 201.203.204. 211.212. 213.214.217.221.222.224.226.231.233.234.235.236.237.238.242.243.245.247.257. 259.260.261.270.271.272.273.274.275.278.284.382.383.385.387.391.393. 394 Environmental Results Program ................................................................................. 3 7 9 390. 394 EPA ......xiv. 39. 42. 43. 47. 48. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 66. 67. 69. 70. 71. 72.74.75.76.77.78.79. 80. 81. 82. 83. 85. 106. 109. 125. 126. 128. 152. 156. 159. 160. 161. 162. 170. 192. 194. 196. 197. 198.200.201.203.204.211.212.213.214.217.221.222.224. 226.231. 233. 234. 235.236.237.238.242.243.245. 247.257.259.260.261.270.271.272. 273.274.275.278.284.382.383.385.387.391.393. 394 episodic release ............................................................................................................................ 221 erosion ............................................................................. 91, 94. 100. 118. 162. 163. 166. 167. 168 ES ....................................................................................................................................... 143. 144 ESA ...................................................................................... 290, 291. 292. 293. 294. 295. 297. 299 exploration ........................................................................................................... 3 15. 3 16. 3 17. 3 19 extremely hazardous substance ................................................................................. 2 18. 220. 22 1
facility......xix. 36. 40. 41. 46. 48. 61. 62. 64. 65. 66. 68. 69. 70. 74. 75. 77. 80. 154. 160. 163. 164. 165. 170. 175. 176. 178. 179. 180. 181. 183. 184. 186. 199. 200. 202.203.204.205.206. 207. 208y209y210y 213. 214. 216. 220. 221. 240. 255.256.257.265. 277. 281.282.297. 3 12. 331.333.334.337. 339,347.381. 389. 3 9 8 Feasibility Report ........................................................................................ 178. 179. 180. 181. 182 . . . feasibility study.......................................................................................................................... 273 Federal Food. Drug and Cosmetic Act ........................................................................................ 224 Federal Insecticide. Fungicide and Rodenticide Act ...............................7. 190. 191. 2 17. 224. 225 Federal Water Pollution Control Act ........................................................................... 1 5 232. 242 FFDCA ....................................................................................................................................... -224 FIFRA .............................................................................................................. 7 190. 217. 224. 225 financial responsibility ................................................................ 110. 182. 226. 227. 250. 258. 3 18 flammable and combustible liquids ................................................................................................. 5 flammable. combustible and hazardous liquids ................................................................... 191. 227
Index of Words and PIzrases flash point .................................................................................................................................... 227 floodplain zoning ................................................................................................. 87, 120. 121. 122 Food Quality Protection Act ........................................................................................................ 224 forfeitures............................................. 215297. 315.381.383. 385. 387. 388.392.394.397. 399 Form R ......................................................................................................................................... 221 fuel oil .................................................................................................................................. 3 6 375
general permit ........................................6 101. 102. 103. 106. 107. 108. 109. 128. 154. 164. 166 generators............................................... 71, 183. 189. 192. 200. 201. 205. 223. 239. 332. 351. 365 Gore Factors ................................................................................................................................ 249 GP ........................................................................................................................ 106. 107. 108. 128 grading ................................................................................................. 101. 163. 167. 307. 308. 312 great weight deference ................................................................................................................... 30 Green Tier ............................................................................... x v xix. 379. 380. 382. 383. 384. 394 guidance documents ................................................................................................................ 2 47
habitat .................................... 38. 124. 288. 290. 291. 292. 293. 294. 295. 299. 300. 307. 308. 3 16 Hazard Ranking System .............................................................................................................. 272 hazardous substance......102, 153, 172, 189, 190, 217, 21 8, 219, 220, 221, 222, 226, 227, 234, 237,238,239,240,241,242,243,244.246,249,251,253,254,256,257,258,259,260,261, 262,270,272,273,285,347,374, 398 hazardous waste......xv, 36, 176, 189, 191, 192, 193, 194, 195, 196, 197, 198, 199,200,201,202. 203,204,205,206,207,208,209,211,212,213,214,215,216,217,223.231,239,241,242, 243,256,257,277,312,317,322,365,380,396, 398 hazardous waste facilities ............................................................................................ 203, 206, 209 hazardous waste generators ................................................................................. 189, 200, 205, 239 Hazardous Waste Management Act ............................................................................................ 192 heating oil tanks ........................................................................................................................... 226 high capacity well ........................................................................................................................ 146 High Priority Violation .................... .... ................................................................................... 394 household waste ........................................................................................................................... 193 HPV ............................................................................................................................................. 394 HRS ............................................................................................................................................ -272
Ice Age Trail ................................................................................................................................ 288 ignitability ........................................................................................................... 1 9 5 196. 198. 243 immediate action .................................................................................................. 202, 262. 263. 277 incidental taking permit ............................................................................................... 2 9 298. 299 incinerators .......................................................................................................................... 175. 183 informational hearing ............................................................ 2 3 24. 104. 160. 181. 2 14. 3 11 337 .. Initial Site Report ................................................................................................................. 178. 179 injunction ............................................................................................................................. 3 6 397 .. injunctive relief .................................................................................................... 216, 363. 372. 390
.
Index of Words and PIwases inspections ..................................... 37. 165. 168. 170. 171. 192. 205. 213. 228. 229. 256. 271. 380 ... insurance coverage ........................................................................................... xviii. 142. 34 1 344 interim action ..................................................................................................................... 2 6 2 263 inventory of chemical substances ............................................................................................... -223 ISR ............................................................................................................................................... 179
.
JCRAR ..................................................................................................................................... 20, 21 Jobs Creation Act ........................................................................................................................... 18 joint and several liability ............................................................................................................. 247 joint application .................................................................................................................. 3 3 335 Joint Committee for Review of Administrative Rules ............................................................ 20, 21 judicial review .........................................5 15. 26. 27. 28. 3 1. 40. 104. 182. 257. 321. 396. 397
.
K list of hazardous waste ............................................................................................................ 194
LAER ..................................................................................................................... 6 8 69. 76. 77. 78 Land Disposal Restrictions ........................................................................................ 190. 2 11. 2 12 landfill ......xv. xviii. 10. 25. 28. 44. 45. 134. 176. 177. 179. 180. 181. 182. 183. 224. 240. 277. 344.345.351.356.365,3 98 large quantity generator .............................................................................................................200 LDR ..................................................................................................................................... 21 1. 212 leaching ............................................................................................................... 1 84. 197. 2 11. 244 Leaking Underground Storage Tank ........................................................................................... 264 legislative review .......................................................................................................................... 19 LEPC ........................................................................................................................................... 222 Letter of Inquiry .......................................................................................................................... 389 letter of intent .............................................................................................................................. 3 1 Letter of Noncompliance ............................................................................................................. 389 . . Letter of Permission ............................................................................................................. 108, 128 local approvals .............................................................................................. x i , 177, 179, 180, 203 Local Emergency Planning Committee ....................................................................................... 222 local government units ............................................................................................................. 9, 253 local regulation of pesticides ...................................................................................................... -225 LON ............................................................................................................................................. 389 LOP ...................................................................................................................................... 1 0 128 lowest achievable emission rate ............................................................................ 6 8 69. 76. 77. 78 LUST ........................................................................................................................................... 264
MACT ...................................................................................................................................... 82. 83 major action ..................................................................................................... 3 34. 41. 42. 43. 44
Index of Words and Phrases
manifest requirements ................................................................................................................. -201 master hearing .............................................................................................................. 3 1 320. 321 Material Safety Data Sheet .......................................................................................................... 220 maximum achievable control technology ................................................................................82, 83 maximum contaminant level ............................................................................................... 143. 147 metallic mineral mining ............................................................................................................. 3 15 metallicmining ......xiv. 305. 306. 307. 308. 309. 310. 311. 312. 313. 314. 315. 317. 319. 322. 324.327.329.330.387. 396 mine dewatering permit .............................................................................................................. 3 1 mining ......xiv. 154. 163. 175. 305. 306. 307. 308. 309. 310. 311. 312. 313. 314. 315. 317. 318. 319.320.322.323.324.325.326.327.329.330.386.387. 396 mining permit ...................................................................... 3 1 3 18. 3 19. 320. 322. 323. 324. 325 mining plan .......................................................................................................................... 3 18. 322 mining wastes ............................................................................................................................. 1 8 misrepresentation ................................................................................. 3 4 357. 358. 362. 373. 374 . . . mitigation ..................................................................................... 123, 131, 132. 135, 136, 295. 298 mixture rule .................................................................................................................................. 197 mobile sources ............................................................................................................................... 53 MSDS .......................................................................................................................................... 220 Municipal Separate Storm Sewer System ................................................................................... 162 municipal solid waste exemption ................................................................................................ 257 municipality .......10,44,93, 118, 122, 136, 149, 177, 178, 180, 185,216,239,252,289,312, 396
NAAQS ............................................................................. 4 49. 50. 51. 55. 57. 60. 63. 64. 68. 78 National Ambient Air Quality Standards ..........................48. 49. 50. 5 1. 55. 57. 60. 63. 64. 68. 78 National Emission Standard for Hazardous Air Pollutant .............................................................83 National Environmental Policy Act ....................................................................... 3 39. 41. 42. 43 152. 161 National Pollutant Discharge Elimination System .............................................................. . . . National Priorities List ................................................................................. 2 7 272. 273. 275. 278 National Response Center ............................................................................................... 4 22 1. 259 natural attenuation ............................................................................................................... 2 6 8 270 natural resources ............................................................................ 1. 4. 34. 247. 285. 302. 303. 308 Natural Resources Board ......................................................................... xviii. 4. 19. 285. 288. 330 navigable waters ......xix. 41. 89. 90. 94. 99. 100. 101. 102. 105. 106. 110. 115. 125. 126. 127. 153. 170. 171.287.321. 400 negligence ........3.246. 348. 349. 350.351. 359.360. 361. 363. 365.367. 368. 371. 374.375. 376 negotiation ........................................................................................... 176. 177. 178. 179. 180. 183 negotiatiodarbitration process .................................................................... 176. 177. 178. 180. 183 NEPA ..................................................................................................................... 3 39. 41. 42. 43 NESHAP ........................................................................................................................................ 83 New Source Performance Standard ...........................48. 49. 66. 67. 68. 69. 70. 74. 75. 76. 77. 156 New Source Review ............................................................................ 6 68. 69. 70. 74. 75. 76. 77 nonattainment areas ....................................................................... 5 1 56. 60. 64. 68. 69. 76. 78. 85 nonconforming use .............................................................................................. 3 2 328. 329. 330
.
Index of Words and PIzrases
nonmetallic mining .......................................................................................................... 307, 310 16 nonpoint source............................................................................................................................. notice of appeal rights .................................................................................................................... 28 notice of intent ............................................................................................. 163, 164, 166, 3 19, 320 389, 390 notice of violation ................................................................................................................ 152, 161 NPDES ................................................................................................................................. 272, 273 NPL ...................................................................................................................................... 4 NRB ................................................................................................................................................. 221 NRC ............................................................................................................................................. 66, 67, 68, 69, 70, 74, 75, 76, 77, 156 NSPS ...................................................................................... 67, 68, 69, 70, 74, 75, 76, 77 NSR ..................................................................................................... nuisance......3, 9, 48, 120, 224, 348, 349, 351, 352, 353, 354. 361. 364, 371, 372, 373, 375, 376, 386,389, 397
Occupational Safety and Health Administration ........................................................2 17. 2 18. 220 offsets....................................................................................................................................... 69. 77 OHWM ........................................................................ 89, 91. 92. 93. 94. 95. 97. 98. 101. 120. 121 2 199. 203. 208. 210. 214 operating license .................................................................................... operation permits ................................................................................................................6 396 89. 91. 92. 93. 94. 95. 97. 98. 101. 120. 121 ordinary high water mark ......................................... 217, 218. 220 OSHA .......................................................................................................................... outstanding resource water ............................................................................................................ xv 60, 77. 149. 208. 209. 210. 216. 254. 255. 258 owner or operator ..................................................... ozone .......................................................................................................... 5 54. 55. 56. 64. 77. 78
.
P
PAL ............................................................................................................................. 1 4 3 144. 267 particulate matter .................................................................................................................... ... 5 5 85 PCB ............................................................................................................................ xviii, 185, 223 5, 232, 236, 264, 279, 280 PECFA ..................................................................................................... permit application ........................102, 106, 108, 109, 146, 160, 170, 3 11, 3 18, 3 19, 320, 323, 337 permitting ......xviii, xix, xx, xxi, 60, 63, 68, 100, 109, 128, 135, 169, 192, 293, 325, 331, 336, 355, 380 pesticides ................................................................................................... 7, 84, 144, 224, 225, 356 petroleum ....... xviii, 5, 167, 191, 194,226,227,242,243,260,263,264,266,268,278,279, 280 Petroleum Environmental Cleanup Fund Act .....................................5, 232, 236, 264, 279, 280 Plan of Operation ................................................................................................. 178, 179, 182, 184 223 PMN............................................................................................................................................. 151, 152, 153, 154, 160, 169, 170, 172, 175 point source.................................................................. pollutant ......7, 50, 51, 52, 54, 58, 61, 62, 63, 66, 69, 77, 105, 151, 153, 155, 162, 172,217, 237, 244 342, 345 pollution exclusion .............................................................................................................. xviii, 185, 191, 223 polychlorinated biphenyls .................................................................................. potential to emit ....................................................................................................................... 63, 84 potentially responsible party ................................................................................ 239, 250, 258, 343
.
Index of Words and Plzrases
POTW .................................................................................................................................. 1 7 2 173 preempt .............................................................................................................................. 7 85. 225 preexisting local approvals .................................................................................................. 178, 179 preliminary assessment ............................................................................................................... -271 Pre-Manufacture Notice .............................................................................................................. 223 pretreatment ......................................................................................................................... 172, 173 Pretreatment Standards for Existing Sources ..............................................................................173 Pretreatment Standards for New Sources .................................................................................... 173 Prevention of Significant Deterioration ............................................... 48, 61, 67, 68, 70, 75, 79, 80 Preventive Action Limit .............................................................................................. 143, 144, 267 private nuisance ................................................................................................... 352, 353, 354, 371 prospecting ................................................................... 3 1 5 3 16, 3 17, 3 19, 320, 322, 324, 325, 326 PRP ...................................................................................................................................... 239, 343 PSC ......28, 29, 31, 34, 35, 36, 37, 38, 39, 41, 42, 43, 45, 46, 88, 89, 93, 133, 331, 332, 333, 334, 335,336,337,338, 339 PSD .................................................................................. . . .....................48, 61, 67, 68, 70, 75, 79 PSES ............................................................................................................................................ 173 PSNS ............................................................................................................................................ 173 PTE ............................................................................................................................................... -63 public lands .............................................................................................. 4, 285, 286, 288, 289, 302 public nuisance .................................................................................... 352, 354, 376, 386, 389, 397 Public Service Commission......xv, 4,26,28,29, 31, 34, 35, 36, 37, 38, 39,41,42,43,45,46, 72, 88, 89,93, 133,331,332,333,334,335,336,337,338, 339 public trust doctrine ............................................................................... 89, 93, 94, 97, 98, 100, 397 . . . public utility ............................................................................................... xv, 6, 146, 312, 331, 333 publicly owned treatment works .................................................................................. 172, 173. 240 punitive damages ................................................................................................................. 3 6 2 363
RACT ....................................................................................................................................... 7678 x i xx. 189. 191. 192. 216. 237. 243. 387. 393 RCRA ..................................................................... reactivity ...................................................................................................... 195. 196. 197. 198. 243 reasonably available control technology .................................................................................76. 78 reclamation......201. 202. 307. 308. 309. 310. 311. 312. 314. 316. 317. 318. 322. 323. 324. 325. 330 recycling ...................................................................... 175. 176. 181. 183. 184. 185. 187. 188. 387 release ......37. 143. 196. 206. 207. 219. 221. 222. 227. 238. 240. 243. 244. 251. 254. 258. 259. 261.270.272.345.348.366. 392 release detection ......................................................................................................................... -227 remedial action ............................246. 247. 263. 264. 265. 266. 268. 270. 271. 273. 274. 277. 398 Remedial Investigation ..............................................................................................................273 Remedial Investigation and Feasibility Study ............................................................................. 273 remediation......xv. xviii. xix. xx. 5. 144. 213. 216. 23 1. 232. 234. 235. 237. 252. 262. 265. 267. 270.272.274.277.279.283.285.312. 390 Remediation and Redevelopment Program .........................................................................2 3 234 remedies ............................................................................................... 3 4 348. 372. 386. 387. 394
Index of Words nnd PIrrnses removal action ......................................................................................................xix, 262, 270, 271 ..................................................................................................................... reportable quantity 2 1 Resource Conservation and Recovery Act .....xix, xx, 189, 191, 192,216,232,237,243,387, 393 responsible party ......238, 239, 245, 246, 247, 248, 249, 250, 251, 252, 257, 258, 261, 262, 264, 265,268,273,274,275,276,278,279,282, 343 1 85, 187 responsible unit ................................................................................................................... ................................................................................................................... revolving fund 2 7 6 277 RI/FS .................................................................................................................................... 273, 274 riparian rights ..................................................................................................................... 95, 98, 99 Rivers and Harbors Act of 1899 .................................................................................................... 88
.
RR ................................................................................................................................................ 234 RU ........................................................................................................................................ 185, 187 rule......3, 15, 16, 17, 18, 19,20,21,22,23,70,74,75,79,82,97, 107, 113, 125, 131, 137, 139, 142,144, 148, 163, 170, 188, 193, 195, 197, 198,267,296,303,305,316,329,330,357,360, 361,362,363,364,371,392, 399 rulemaking process ............................................................................................................... 5 74
Safe Drinking Water Act ..................................................................................... 141. 147. 148. 217 SARA........................................................................................................................... 217, 236, 278 scoping .................................................................................................................................. 3 8. 273 SDWA ......................................................................................................................................... 217 3 92. 393 SEP ..................................................................................................................................... SERB ........................................................................................................................................... 222 shoreland zoning ......................................................................................................................... 121 SIP ................................................................................................. 4 57. 58. 59. 60. 63. 77. 79. 81 site characterization .................................................................................................................... -273 site inspection .............................................................................................. 170, 179, 271. 272. 3 14 2 4 6 264. 27 1. 277 site investigation ............................................................................................... . . . .................................................................................................................... six-citizen complaint 395 small quantity generator .............................................................................................. 200. 20 1. 202 solid waste ......25. 28. 36. 44. 153. 175. 176. 183. 184. 185. 186. 188. 193. 195. 196. 197. 257. 308.312.365.387. 396 175. 184. 365 solid waste disposal ..................................................................................................... 190. 217. 226. 232. 242 Solid Waste Disposal Act ............................................................................ 175. 184. 257 solid waste facility ....................................................................................................... ............................................................................................................................. SQG 200, 20 1. 202 standard of review ............................................................................................................. 30, 42. 43 standing .................................................................................... 1 25. 28. 30. 40. 41. 122. 216. 396 222 State Emergency Response Board ............................................................................................... State Implementation Plan ............................................................. 4 57. 58. 59. 60. 63. 77. 79. 81 state natural areas ......................................................................................................................... 287 2 8 289. 302. 3 17 state parks ............................................................................................................ state recreation areas .................................................................................................................... 288
Index of Words and Phrases stationary source .................................................................................................... 48, 60, 66, 69, 84 3 6 3 364, 399 statute of limitations .................................................................................................. 3 85. 389 .......................................................................................................... stepped enforcement 3 7 171. 175. 229 storage facilities ................................................................................................... stormwater ..........xiv. xviii. 103. 124. 151. 152. 161. 162. 163. 164. 165. 166. 167.380.382. 390 . . . . strict liab~lity............................................................................................ 3, 245, 348, 349, 355, 356 substantial evidence .............................................................................................................. 2 9 43 Superfund.............................................. x i , 217, 219, 233, 235, 237, 257, 271, 272, 275, 277, 278 Superfund Amendment and Reauthorization Act ....................................................2 7 236, 278 Superfund site ....................................................................................................... x i 238, 257, 275 superior environmental performance ............................................................. xv, 379, 38 1, 382, 394 Supplemental Environmental Project .................................................................................. 392. 393 SWDA ................................................................................................................................. 2 7 . 227
taking......29. 39. 77. 78. 81. 85. 121. 131. 183. 189. 237.247. 249.292. 295. 297.298.299. 325. 330 TCLP ................................................................................................................................... 197, 212 technical feasibility ..................................................................................................................... -265 threatened species ................................183, 285, 290, 291, 293, 295, 296, 297, 298, 299, 300, 302 Tier I ............................................................................ 163, 164, 165, 220, 221, 380, 381, 382, 383 Tier I reports ................................................................................................................................ 220 Tier I1 ................................................................................ 163, 164, 165, 220, 380, 381, 382, 383 Tier I1 reports .............................................................................................................................. -220 torts ........................................................................................................................................ 4 358 toxic chemical release form ....................................................................................................... 2 1 toxic chemicals ............................................................................................................................ 345 toxic substances ................................................................................................................... 158, 359 Toxic Substances Control Act ...................................................... 4 190, 2 17, 222, 223, 232, 242 toxic tort .........................................................................................................................x x 3. 348 toxicity ................................................................. 157. 158. 195. 197. 200. 2 12. 224. 243. 249. 274 197. 2 12 toxicity characteristic leaching procedure ........................................................................... trespass....................................................................................................... 3 10. 348. 349. 355, 361 TSCA ............................................................................................................... 4, 190, 217. 222, 223 Type I ........................................................................................................................... 35, 36, 37, 38 Type I1 ..................................................................................................................................... 36. 37 Type I11 .......................................................................................................................................... 37 Type IV .......................................................................................................................................... 37 type list .................................................................................................................................... 38, 45 ~
.
..
ultrahazardous activity ......................................................................................................... 3 5 356 underground storage tank ........................................................................ 4 190. 226. 227. 237. 264 UST .................................................................................................................. 4 190. 226. 227. 264
Index of Words and Plzrases
very small quantity generator ...................................................................................................... 200 volatile organic compounds ............................................................................................. 52, 64, 357 voluntary party ................................................................................................................... 2 5 5 270 255, 268, 269, 270 Voluntary Party Liability Exemption .................................................................. VPLE ................................................................................................................... 255, 268, 269, 270 VSQG .......................................................................................................................................... 200
Warren Knowles-Gaylord Nelson Stewardship 2000 Program ................................................... 288 Waste Facility Siting Board ................................................................... 10. 176. 177. 178. 179. 183 161 Water Quality Act of 1987 ...................... . .............................................................................. water quality certification ............................................................ 105. 109. 130. 131. 133. 134. 135 water quality standards for wetlands ........................................................................................... 131 wellhead protection ...................................................................................................................... 149 WEM ............................................................................................................................... 3 191. 222 WEPA ...................................3 34. 35. 37. 38. 39. 40. 41. 42. 43. 44. 45. 181. 334. 335. 338 WET ............................................................................................................................................. 158 wetlands ......xiv. xviii. xix. 89. 100. 106. 108. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134., 135. 136. 137. 138. 153. 168. 180. 183. 321. 331. 332 WETSA ....................................................................................................... 2 9 296. 297. 299. 300 WFSB .................................................................................................................. 177. 178. 179. 183 whole-effluent toxicity ................................................................................................................ 158 wild animal .................................................................................................. 2 9 296. 297. 301. 302 wildlife habitat ............................................................................................................. 2 8 8 307. 308 wildlife management .......................................................................................................... 2 8 5 301 wildlife refuges ................................................................................................................... 3 0 1. 317 Wisconsin Emergency Management .............................................................................. 3 191. 222 Wisconsin Endangered and Threatened Species Act ..................................295. 296. 297. 299. 300 Wisconsin Environmental Cooperation Pilot Program ....................................................... 3 8 0 383 Wisconsin Environmental Fund ................................................................................................. -276 Wisconsin Environmental Policy Act ......1. 33. 34. 35. 37. 38. 39. 40. 41. 42. 43. 44. 45. 18 1. 334.335. 338 Wisconsin Pollutant Discharge Elimination System......xiv. xviii. 24. 25. 35. 37. 87. 100. 144. 151.152.153. 154. 155.158.160. 161.162.166.169.170.171.172. 173.386. 396 WPDES ......xiv. xviii. 24.25. 35. 37. 144. 151. 152. 153. 154. 155. 158. 160. 161. 162. 166. 169. 170.171.172.173.386. 396
zoning......7. 8. 9. 10. 16. 87. 88. 89. 120. 121. 122. 123. 125. 136. 137. 138. 139. 176. 177. 180. 308.313.317.322.327.328. 329
Wisconsin DNR Offices DNR Central Office DNR Headquarters 101 South Webster Street P.O. Box 7921 Madison, WI 53707 ............................................................. (608) 266-2621 Telefax .................................................................................. (608) 26 1-4380 TDD ..................................................................................... (608) 267-6897 Webpage ............................................................................. http://dnr.wi.gov Northern Region Office
DNR NOR Headquarters 107 Sutliff Avenue Rhinelander, WI 54501........................................................ (715) 365-8900 Telefax .................................................................................. (715) 365-8932
Northeast Region Office
DNR NER Headquarters 2894 Shawano Avenue P.O. Box 10448 Green Bay, WI 54307 .......................................................... (920) 662-5 100 Telefax .................................................................................. (920) 662-54 13
West Central Region Office
DNR WCR Headquarters 1300 West Clairemont Avenue P.O. Box 4001 Eau Claire, WI 54701 ..........................................................(715) 839-3700 Telefax ................................................... (7 15) 839-6076 or (7 15) 839-1605
South Central Region Office
DNR SCR Headquarters 39 11 Fish Hatchery Road Fitchburg, WI 5371 1............................................................(608) 275-3266 Telefax ..................................................................................(609) 275-3338
Southeast Region Office
DNR SER Headquarters 2300 North Dr. Martin Luther King, Jr. Drive Milwaukee, WI 532 12 ......................................................... (414) 263-8500 Telefax ..................................................................................(414) 263-8606
Wisconsin Sources of Environmental Information Department of Administration Website: http://www.doa.state.wi.us Phone: (608) 266-1741
Department of Agriculture, Trade and Consumer Protection Website: http://www.datcp.state.wi.us Phone: (608) 224-5012 Department of Commerce Website: http://www.commerce.state.wi.us Phone: (608) 266-1018 Department of Health and Family Services http://www.dhfs.state.wi.us Website: Phone: (608) 266-1865 TTY: (608) 267-7371 Department of Justice (Attorney General) Website: http://www.doj.state.wi.us Phone: (608) 266-122 1 Telefax: (608) 267-2779 Department of Transportation Website: http://www.dot.wisconsin.gov (608) 262-7988 (Department of Transportation Information Center) Phone: Department of Workforce Development Website: http://www.dwd.state.wi.us Phone: (608) 266-3 131 Telefax: (608) 266- 1784 TTY: (608) 267-0477 Division of Emergency Management (WEM) Website: http://www.emergencymanagement.wi.gov Phone: (608) 242-3232 Telefax: (608) 242-3247 EPA Public Information Center Website: http://www .epa.gov/region3/r3info/peec.htrn Phone: (215) 814-5121 EPA Region 5 http://www.epa.gov/region5 Website: Phone: (3 12) 353-2000 or (800) 621-843 1 Hazardous Substance Spill Hotline Phone: (800) 943-0003
National Response Center Website: http://www.nrc.uscg.mil (800) 424-8802 or (202) 267-2675 Phone: Telefax: (202) 267- 1322
RCRA/Superfund/EmergencyPlanning and Community Right-to-Know Hotline Phone: (800) 424-9346 RCRA Program Information: RCRA Online Database: EPA UST Program:
http://ww.epa.gov/osw http://www.epa.gov/epaoswer/osw/publicat.htm http://ww.epa.gov/oust
Safe Drinking Water Hotline Phone: (800) 426-4791 DNR Violations Hotline Phone: (800) 847-9367 (tip-wdnr) TSCA Hotline Phone: (202) 554-1404 Telefax: (202) 554-5603 TDD: (202) 554-0551 E-mail:
[email protected] Wetlands Hotline Phone: (800) 832-7828 Telefax: (202) 566-1736 E-mail:
[email protected]
