Andersen v. Dep't of Natural Res.

• Decision Date: 23 March 2011
• Docket Number: No. 2008AP3235.,2008AP3235.
• Citation: Andersen v. Dep't of Natural Res., 2011 WI 19, 332 Wis.2d 41, 796 N.W.2d 1 (Wis. 2011)
• Parties: Curt ANDERSEN, John Hermanson, Rebecca Leighton Katers, Christine Fossen Rades, National Wildlife Federation and Clean Water Action Council of Northeastern Wisconsin, Inc., Petitioners–Appellants,v.DEPARTMENT OF NATURAL RESOURCES, Respondent–Respondent–Petitioner.
• Court: Wisconsin Supreme Court

332 Wis.2d 41

796 N.W.2d 1

2011 WI 19

Curt ANDERSEN, John Hermanson, Rebecca Leighton Katers, Christine Fossen Rades, National Wildlife Federation and Clean Water Action Council of Northeastern Wisconsin, Inc., Petitioners–Appellants,

v.DEPARTMENT OF NATURAL RESOURCES, Respondent–Respondent–Petitioner.

No. 2008AP3235.

Supreme Court of Wisconsin.

Argued Nov. 3, 2010.Decided March 23, 2011.

For the respondent-respondent-petitioner the cause was argued by Joanne F. Kloppenburg, assistant attorney general, with whom on the briefs was J.B. Van Hollen, attorney general.For the petitioners-appellants there was a brief by Elizabeth Lawton, Dennis Grzezinski and Midwest Environmental Advocates, Madison, and oral argument by Carl A. Sinderbrand, Axley Brynelson LLP, Madison.A joint amicus curiae brief was filed by Paul G. Kent, Stafford Rosenbaum, LLP, Madison, Michael McCabe and Susan Anthony, Milwaukee Metropolitan Sewerage District and Claire Silverman, League of Wisconsin Municipalities, Madison, for Municipal Environmental Group–Wastewater Division, The League of Wisconsin Municipalities and Milwaukee Metropolitan Sewerage District.An amicus brief was filed by Richard J. Lewandowski, Whyte Hirschboeck Dudek S.C., Madison, Todd E. Palmer, DeWitt Ross & Stevens S.C., Madison, Steven Heinzen, Godfrey & Kahn S.C., Madison, David R. Oberstar, Fryberger, Buchanan, Smith & Frederick, P.A., Duluth, and David A. Crass, Michael Best & Friedrich LLP, Madison for Georgia–Pacific Consumer Products, LP, Wisconsin Paper Council, Inc., Midwest Food Processors Association, Wisconsin Industrial Energy Group, Inc., Wisconsin Dairy Business Association and Lake States Lumber Association.An amicus brief was filed by Albert Ettinger, admitted pro hac vice, Environmental Law & Policy Center, Chicago, and Christa O. Westerberg, McGillivray Westerberg & Bender LLC, Madison, for Wisconsin Wildlife Federation, Milwaukee Riverkeeper, Clean Wisconsin, and Sokaogon Chippewa Community of Mole Lake.ANNETTE KINGSLAND ZIEGLER, J.

This is a review of a published decision of the court of appeals, Andersen v. DNR,2010 WI App 64, 324 Wis.2d 828, 783 N.W.2d 877, that reversed an order of the Brown County Circuit Court¹ affirming an order of the Department of Natural Resources(DNR) which denied in part the petitioners' request for a public hearing under Wis. Stat. § 283.63(2005–06).²

¶ 2Curt Andersen, John Hermanson, Rebecca Leighton Katers, Christine Fossen–Rades, Thomas Sydow, and James L. Baldock(collectively, the petitioners), through legal counsel at Midwest Environmental Advocates, petitioned the DNR for review of a Wisconsin Pollutant Discharge Elimination System (WPDES) permit that the DNR reissued to Fort James Operating Company's (Fort James) Broadway Mill in Green Bay.The petitioners argued that the permit failed to comply with basic requirements of the Federal Water Pollution Control ActAmendments of 1972(the Clean Water Act) and federal regulations promulgated thereunder.Pursuant to Wis. Stat. § 283.63(1)(b), the petitioners requested the DNR to hold a public hearing on their petition.

¶ 3 To the extent that the petitioners challenged the permit as being contrary to federal law, the DNR denied their request for a public hearing, concluding that a challenge made under Wis. Stat. § 283.63 must be based on Wisconsin law.

¶ 4The petitioners, then joined by the Clean Water Action Council of Northeastern Wisconsin, Inc. and the National Wildlife Federation, (collectively, CWAC) filed a petition for judicial review of the DNR's order.The circuit court affirmed.

¶ 5 CWAC then appealed to the court of appeals, which reversed.The court of appeals concluded that the DNR possesses the authority to determine whether conditions in a state-issued permit, authorized by state regulations, comply with federal law.

¶ 6 The DNR petitioned this court for review.We now reverse the decision of the court of appeals.

¶ 7 The issue in this case is whether Wis. Stat. § 283.63 requires the DNR to hold a public hearing on CWAC's petition for review of the permit reissued to Fort James' Broadway Mill when the premise of CWAC's petition is that the permit fails to comply with basic requirements of the Clean Water Act and federal regulations promulgated thereunder.

¶ 8We conclude that Wis. Stat. § 283.63 does not require the DNR to hold a public hearing on CWAC's petition for review of the permit reissued to Fort James' Broadway Mill when the premise of CWAC's petition is that the permit fails to comply with basic requirements of the federal Clean Water Act and federal regulations promulgated thereunder.A conclusion otherwise would undermine the careful federal and state balance created by the Clean Water Act and would thwart the finality of permits properly issued under the WPDES permit program.If CWAC is entitled to a remedy, the remedy rests with the United States Environmental Protection Agency(EPA).

I.FACTUAL BACKGROUND

¶ 9Fort James' Broadway Mill produces tissue paper from wastepaper.The facility deinks pre- and post-consumer wastepaper and produces over a thousand tons per day of various tissue and toweling paper.The process results in the daily discharge of several millions of gallons of treated wastewater.

¶ 10 On May 27, 2005, pursuant to Wis. Stat. § 283.39, the DNR issued a public notice of its intent to reissue to Fort James' Broadway Mill a WPDES permit regulating the discharge of pollutants into the Lower Fox River.The DNR made available the proposed permit and a Permit Reissuance Fact Sheet detailing the terms of the proposed permit.Relevant to this case, the proposed permit imposed a phosphorous effluent limitation ³ of 1.0 milligrams per liter (mg/L), compliance of which was to be determined as a rolling 12–month average.In addition, the proposed permit required Fort James' Broadway Mill to monitor its mercury discharge according to the requirements of Wis. Admin. Code§ NR 106.145(May 2005).⁴

¶ 11 The public notice advised interested persons that they had 30 days to comment on, object to, or request a public hearing on the proposed permit.SeeWis. Stat. §§ 283.39(2),283.49(1)(a).The public notice also explained that the EPA is allowed up to 90 days to submit comments on or objections to the proposed permit.See33 U.S.C. § 1342(d)(2);Wis. Stat. § 283.41(2).

¶ 12 The DNR received three comment letters on the reissuance of the permit, one of which was from Midwest Environmental Advocates.The comments by Midwest Environmental Advocates were based on both federal and state law.Specifically, Midwest Environmental Advocates commented that (1) pursuant to 40 C.F.R. § 122.44(d)(1)(2005),⁵ the DNR must prepare a reasonable potential analysis to determine whether the Fort James' Broadway Mill's increase in phosphorous discharge will cause or contribute to a violation of water quality standards; ⁶(2) pursuant to 40 C.F.R. § 122.45(d) and (f), the proposed permit must state the effluent limitation for phosphorous as a maximum daily and average monthly discharge limitation and in terms of a mass limit; and (3) pursuant to Wis. Admin. Code§ NR 207, the DNR must perform an anti-degradation analysis to determine whether the increase in phosphorous discharge will exceed effluent limitations or violate water quality standards.

¶ 13 On June 28, 2005, the EPA requested from the DNR the full 90 days to complete its review of the proposed permit to Fort James' Broadway Mill and “to determine whether the draft permit meets the guidelines and requirements of the Clean Water Act.”

¶ 14 On July 21, 2005, the EPA advised the DNR that it has reviewed the proposed permit to Fort James' Broadway Mill and will not object to the reissuance of the permit as drafted.In addition, the EPA made the following request of the DNR: “When the final permit is issued, please forward one copy and any significant comments received during the public notice to this office at the above address.”

¶ 15 On August 24, 2005, the DNR issued a final decision and response to comments on the permit reissuance to Fort James' Broadway Mill.⁷The DNR decided to reissue the permit as drafted, with only technical corrections.The permit was reissued effective October 1, 2005, and had an expiration date of September 30, 2010.

II.PROCEDURAL POSTURE

¶ 16 On October 28, 2005, the petitioners, through legal counsel at Midwest Environmental Advocates, petitioned the DNR for review of the permit reissued to Fort James' Broadway Mill, pursuant to Wis. Stat. § 283.63.The petitioners reiterated the three phosphorous allegations previously raised by Midwest Environmental Advocates during the comment period.In addition, the petitioners requested review of the permit's conditions relating to mercury, including the reasonableness of the DNR's failure (1) to perform a reasonable potential analysis to determine whether Fort James' Broadway Mill discharges mercury at a level that will cause or contribute to a violation of water quality standards under 40 C.F.R. § 122.44(d);(2) to incorporate a water quality-based effluent limit for the discharge of mercury; and (3) to require more frequent monitoring for mercury.Pursuant to Wis. Stat. § 283.63(1)(b), the petitioners requested the DNR to hold a public hearing on the issues they raised.

¶ 17 To the extent that the petitioners challenged the permit as being contrary to federal law, the DNR denied their request for a public hearing, concluding that a challenge made under Wis. Stat. § 283.63 must be based on Wisconsin law.⁸The DNR explained that pursuant to its delegation agreement with the EPA, the EPA “accepts WPDES permitting as the legal surrogate for federal permitting under the Clean Water Act.”Should a WPDES permit fail to comply with federal requirements, the DNR maintained that the reviewing authority rests with the EPA: the EPA has the authority to object to a state-issued permit, and the DNR may not...