COUNTY OF MILW v. Superior of Wisconsin

• Decision Date: 07 March 2000
• Docket Number: No. 98-2897, No. 98-2898., No. 98-2851
• Citation: COUNTY OF MILW v. Superior of Wisconsin, 234 Wis.2d 218, 2000 WI App 75, 610 N.W.2d 484 (Wis. App. 2000)
• Parties: COUNTY OF MILWAUKEE, Plaintiff-Respondent, v. SUPERIOR OF WISCONSIN, INC., Defendant-Appellant. COUNTY OF MILWAUKEE, Plaintiff-Respondent, v. FAIRWAY TRANSIT, INC., Defendant-Appellant. COUNTY OF MILWAUKEE, Plaintiff-Respondent, v. FAIRWAY TRANSIT, INC., Defendant-Appellant.
• Court: Wisconsin Court of Appeals

234 Wis.2d 218

2000 WI App 75

610 N.W.2d 484

COUNTY OF MILWAUKEE, Plaintiff-Respondent, v. SUPERIOR OF WISCONSIN, INC., Defendant-Appellant.

COUNTY OF MILWAUKEE, Plaintiff-Respondent, v. FAIRWAY TRANSIT, INC., Defendant-Appellant.

COUNTY OF MILWAUKEE, Plaintiff-Respondent, v. FAIRWAY TRANSIT, INC., Defendant-Appellant.

Nos. 98-2851, 98-2897, 98-2898.

Court of Appeals of Wisconsin.

Oral argument January 12, 2000.

Decided March 7, 2000.

On behalf of the defendant-appellant Superior of Wisconsin, Inc., the cause was submitted on the briefs of Joseph P. Duffey of Duffey Law Office, S.C. and Karen K. Duke of Superior Services, Inc., Milwaukee. There was oral argument by Joseph P. Duffey.

On behalf of the defendant-appellant Fairway Transit, Inc., the cause was submitted on the briefs of Anthony R. Varda and Bradley C. Fulton of DeWitt Ross & Stevens S.C., Madison. There was oral argument by Anthony R. Varda.

On behalf of the plaintiff-respondent, the cause was submitted on the brief of E. Michael McCann, district attorney and Kent L. Lovern, assistant district attorney, Milwaukee. There was oral argument by Kent L. Lovern. There was a supplemental brief of James E. Doyle, attorney general, by Peter C. Anderson, assistant attorney general and Barbara F. Bird, Department of Transportation, of counsel. There was oral argument by Peter C. Anderson.

Before Wedemeyer, P.J., Fine and Schudson, JJ.

¶ 1. WEDEMEYER, P.J.

Superior of Wisconsin, Inc. and Fairway Transit, Inc. (collectively "Superior") appeal from a judgment of the circuit court finding both companies guilty of violating overweight permits issued by the Wisconsin Department of Transportation. The dispositive issue in this case involves whether "shredder fluff"—the material that was being transported in the trucks that were cited for weight violations—constitutes "recyclable scrap" as that term is defined in WIS. ADMIN. CODE § TRANS 269.02 (1991). Because fluff, by both its nature and use in this case, was recyclable scrap, we conclude that the trial court erred in ruling to the contrary. Accordingly, the judgment is reversed.

¶ 2. Superior raises three additional issues: (1) whether the sheriff's department had the authority to issue the citations; (2) whether the trial court erred in ruling that issue preclusion did not apply to bar this litigation; and (3) whether a walking floor trailer meets the statutory definition of "self-compactor equipped vehicle" as that term is used in WIS. ADMIN. CODE § TRANS 269.02(2)(f) (1991). Because the sheriff's department has the authority to issue the citations and because the trial court did not err in deciding that issue preclusion did not bar this matter, we affirm those decisions. Further, we need not reach the "self-compacting vehicle issue" because we conclude that the material involved here constituted recyclable scrap, which need not be transported in a self-compacting vehicle. See WIS. ADMIN. CODE § TRANS 269.05(2) (1991); see Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issues need to be addressed).

I. BACKGROUND

¶ 3. Superior is a corporation engaged in the solid waste disposal business, operating waste-hauling facilities throughout Wisconsin. Sometime prior to April 28, 1997, Superior applied for an overweight permit to move loads of "garbage, refuse and recyclable scrap." The Department of Transportation issued a multiple-trip permit, effective April 28, 1997, allowing a weight up to 120,000 pounds. Without an overweight permit, Superior's weight limitation would have been 80,000 pounds. ¶ 4. On August 4, 1997, one of Superior's trucks was en route from Miller Compressing Company to the Emerald Park Landfill in Muskego. The vehicle, a tractor-trailer combination, was hauling a material referred to as "shredder fluff." Shredder fluff is the nonmetallic portion of the scrap material that remains after the removal of metals from the shredding of automobiles, appliances and similar items. The fluff is used at landfills as "alternate daily cover." At the end of each day, a cover is required to be spread over compacted solid waste at a landfill. See WIS. ADMIN. CODE § NR 506.05(1) (1996). Materials used as daily cover include soil, foundry sand, and fluff. See WIS. ADMIN. CODE §§ NR 506.05(1) and 506.055 (1996).

¶ 5. Emerald Park uses and reuses fluff as its daily alternate cover. The fluff is spread over the compacted waste at the end of the day. On each day following, the fluff is scraped back so that it can be reused.¹ Fluff is preferred over soil for several reasons. First, because of its beneficial use, fluff is not taxed by the state. Second, fluff is much lighter than soil and therefore easier and more efficient to work with. Third, fluff is more aesthetic than soil; it does not track in and out of the landfill, is not messy in inclement weather, and is not wind-borne.

¶ 6. With an annual overweight permit in hand, Superior's vehicle, weighing 106,000 pounds, was transporting fluff to the landfill. A Milwaukee County Sheriff's Deputy issued an overweight citation to the vehicle despite the fact that the overweight permit allowed the truck to haul up to 120,000 pounds of "garbage, refuse and recyclable scrap." The deputy believed the overweight permit was being violated because, in his opinion, the fluff was refuse, not recyclable scrap, and refuse must be transported in a "self-compacting" vehicle. The deputy believed that the "walking floor trailer" was not self-compacting.²

¶ 7. Superior challenged the citation and the case was tried to the circuit court in July 1998. On September 18, 1998, the court found Superior guilty of violating the overweight vehicle statute. It ruled: (1) the issue preclusion doctrine did not bar prosecution of this case; (2) the sheriff's deputy had the authority to issue the overweight citation; (3) fluff did not constitute recyclable scrap; and (4) the walking floor trailer was not a self-compacting vehicle. Judgment was entered. Superior now appeals.

II. DISCUSSION

A. Recyclable Scrap?

¶ 8. The central issue in this case is whether the fluff, beneficially used and reused at the Emerald Park Landfill, constitutes recyclable scrap under WIS. ADMIN. CODE § TRANS 269.02 (1991). The trial court compared the definitions of recyclable scrap and refuse. Recyclable scrap is defined as "metallic or non-metallic material in waste for which there exists a commercially demonstrated processing or manufacturing technology which uses the material as a raw material, and which is transported for use as such a raw material." WIS. ADMIN. CODE § TRANS 269.02(2)(d) (1991). Refuse is defined as "any combustible and non-combustible rubbish including, but not limited to, paper, wood, metal, glass, cloth and products thereof; litter and street rubbish, ashes; and lumber, concrete, and other debris resulting from the construction or demolition of structures." WIS. ADMIN. CODE § TRANS 269.02(2)(e) (1991).

¶ 9. The trial court considered the testimony and concluded that the County proved "by clear and convincing evidence that shredder fluff is not recyclable scrap and is, indeed, refuse." The trial court went on to conclude that the walking floor trailer was not a self-compacting vehicle. Based on these conclusions, the trial court found Superior guilty of violating the overweight permit because it was transporting refuse in a non-compacting vehicle.

[1-3]

¶ 10. Our standard of review is mixed. The resolution of this issue involves interpretation of statutes and regulations, which present questions of law. See State v. Trudeau, 139 Wis. 2d 91, 103, 408 N.W.2d 337 (1987). In addition, application of a particular statute or regulation to a given set of facts involves a question of law. See id. at 103. Thus, that portion of our review will be done independently. However, review of a trial court's findings of fact are subject to the clearly erroneous standard. See WIS. STAT. § 805.17(2) (1997-98).

[4-8]

¶ 11. Our determination depends upon our interpretation of the definition of recyclable scrap found in WIS. ADMIN. CODE § TRANS 269.02(2)(d) (1991). This court may not resort to statutory construction if the statute is clear on its face. See H.F. v. T.F., 168 Wis. 2d 62, 70 n.6, 483 N.W.2d 803 (1992). We interpret administrative regulations in the same manner as we interpret statutes. See Law Enforcement Standards Bd. v. Village of Lyndon Station, 101 Wis. 2d 472, 489, 305 N.W.2d 89 (1981). The purpose of interpretation is to determine the intent of the agency that adopted the regulation. See McGarrity v. Welch Plumbing Co., 104 Wis. 2d 414, 425, 312 N.W.2d 37 (1981). We will apply statutory construction to agency rules only if the rule or rules are ambiguous. See State v. Joerns Furniture Co., Inc., 114 Wis. 2d 324, 329, 338 N.W.2d 331 (Ct. App. 1983). A regulation is ambiguous "if `reasonably well-informed persons could understand it in more than one way,' [if such is the case] the rules of statutory construction `require us to look at the statutory context, subject matter, scope, history and object to be accomplished.'" Continental Cas. Co. v. Milwaukee Metro. Sewerage Dist., 175 Wis. 2d 527, 531, 499 N.W.2d 282 (Ct. App. 1993) (citation omitted).

¶ 12. The definition has four parts. To be recyclable scrap, the material must be: (1) "metallic or nonmetallic material in waste"; (2) "for which there exists a commercially demonstrated processing or manufacturing technology"; (3) the technology must "use[] the material as a raw material"; and (4) the material must be "transported for use as such a raw material."

1. "metallic or non-metallic material in waste"

¶ 13. It is undisputed that fluff satisfies the first portion of this definition: it is the non-metallic portion remaining after all the metal is removed from cars, appliances and similar items.

2. "for which there exists a commercially demonstrated processing or manufacturing technology"

¶ 14....