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COURT OF APPEALS DECISION DATED AND RELEASED JUNE 25, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-3162
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
WAUGAMIE FARMCO
COOPERATIVE,
D/B/A WAUGAMIE FS
COOPERATIVE,
Petitioner-Appellant,
v.
WISCONSIN DEPARTMENT
OF NATURAL RESOURCES,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Outagamie County:
JAMES T. BAYORGEON, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Waugamie Farmco Cooperative appeals a judgment
affirming the decision of an administrative law judge in a contested case. The ALJ ruled in favor of the Department of
Natural Resources and ordered additional testing of soil and ground water
contaminated by pesticides and fertilizer.
Waugamie argues that an earlier DNR order was based on an erroneous
legal standard, that the ALJ exceeded his authority by modifying the original
DNR order, that the ALJ's order subjects Waugamie to arbitrary and limitless
requirements without proof of necessity and that Waugamie did not have
reasonable notice that the hearing before the ALJ could result in a more
burdensome order being issued. We
reject these arguments and affirm the judgment.
In 1989, the DNR issued
an order requiring testing and remediation of chemical spills attributable to
Waugamie. The DNR order required
Waugamie to "take the actions necessary to restore the environment to the
extent possible ...." Waugamie
requested a contested case hearing at which it contended that soil and water
samples showed the pollution had been abated.
The ALJ modified the initial DNR order to require additional test wells
and Waugamie contests the ALJ's order.
Issues relating to the
initial DNR order are moot. Waugamie
argues that the DNR order is invalid because it required Waugamie to restore
the environment to the extent "possible" when § 144.76(3), Stats., only requires restoration to
the extent "practicable."
This error in the initial DNR order was corrected when the ALJ used the
correct standard at the contested case hearing. The original DNR order is no longer in effect and any correction
of the errors underlying that order will have no practical effect on this
controversy. Therefore, the issue is
moot. See Racine v. J-T
Enters., 64 Wis.2d 691, 700, 221 N.W.2d 869, 874 (1974).
A contested case
"hearing" is not a certiorari-type review of an existing record
limited to affirming or remanding the agency's decision.[1] Rather, it is a de novo consideration
of the subject matter addressed in the notice.
The ALJ is not limited to reviewing the initial DNR order and affirming
or reversing it. After a contested case
hearing, whether conducted by an ALJ or the secretary of the DNR, the
decisionmaker is authorized to enter any order permitted by law. See § 227.46(1)(h) and (i), Stats.
That is, an ALJ conducting a contested case for the DNR may enter any
order that the DNR is authorized to enter as long as it is supported by
substantial and credible evidence and the parties have had notice and an
opportunity to be heard. See
§§ 227.20(6) and 227.44, Stats. The ALJ's decision is consistent with his
authority under § 227.46(1)(h) and (i), the DNR's powers under
§ 144.76(3) and (7)(c), Stats.,
and the DNR's rules.
The ALJ's decision was
not appealed by the DNR and became the decision of the DNR. See Wis.
Adm. Code § NR 2.155(1) (1996).
This court must give "due weight" to the experience,
competence and knowledge of the DNR as the agency with the statutory authority
under § 144.76, Stats., to
require an owner to restore contaminated property. See Barnes v. DNR, 184 Wis.2d 645, 662, 516
N.W.2d 730, 738 (1985). The scope of
this court's review for a discretionary DNR decision is limited. We may look no further than to determine
whether the decisionmaker examined relevant facts, applied a proper standard of
law, and reached a reasoned conclusion.
Kwaterski v. LIRC, 158 Wis.2d 112, 120, 462 N.W.2d 534,
537 (Ct. App. 1990).
The ALJ's order is
supported by substantial and credible evidence establishing that additional
testing is necessary and practicable.
Waugamie argues that additional testing serves no purpose except to
appease the DNR's curiosity. Waugamie
submitted soil samples from only four of thirty-three locations that it had
previously agreed to sample and contends that these tests establish that
further remediation will not be necessary.
The most recent ground water sampling, done in 1991, showed ground water
contamination levels that exceed the standards set in Wis. Adm. Code § NR 140.10. The record does not establish, as Waugamie argues, that natural
attenuation will restore the ground water.
A DNR water supply specialist testified that it is difficult to
determine how ground water flows. He
opined that sampling from the original wells plus the addition of some new
wells would be necessary to determine the extent, both vertically and
horizontally, of the plume and whether any contaminated soil remains on the
site. An expert witness testified that
chemical breakdown of the compounds involved here occurs very slowly in cool,
dark and anaerobic conditions of ground water.
He concluded that additional geoprobe samples are needed.
Waugamie's argument that
it is subjected to boundless, limitless or senseless requirements substantially
exaggerates its position. The ALJ's
decision is not dramatically different from the initial DNR decision. The order to do additional testing following
the incomplete testing Waugamie performed is a reasonable exercise of
discretion.
Waugamie had adequate
notice of the scope of the contested case hearing. Waugamie contends that it had no indication that the hearing
could result in an order imposing more stringent requirements than those
initially ordered by the DNR. The
notice, entitled "In the Matter of Ground Water Contamination Caused by
Pesticides Spills and Fertilizer Spills on Property Owned by Waugamie FS
Cooperative in the City of Bear Creek, Wisconsin" referred to the DNR
order as it concerns "ground water contamination caused by pesticides
spills and fertilizer spills and the failure to take the actions necessary to
identify the contamination and restore the environment." The notice further provided that a public
hearing would be held "regarding the Department's Order ...." Finally, the notice stated that this is a
Class 2 contested case. From this
notice, Waugamie should have known that it was participating in a full hearing
of the contamination problem, not a limited review of the initial DNR
order. Even the application for the
contested case hearing submitted by Waugamie noted the possibility of
modification of the DNR order. Waugamie
fully participated in the hearing and called witnesses to present its position. Waugamie has not identified any additional
evidence that it could have presented had it been given more specific notice
that the hearing could result in a more onerous order. We perceive no violation of Waugamie's due
process rights.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.