Wisconsin Hosp. Ass'n v. Natural Resources Bd.
| Decision Date | 24 August 1989 |
| Docket Number | No. 89-0420,89-0420 |
| Court | Wisconsin Court of Appeals |
| Parties | WISCONSIN HOSPITAL ASSOCIATION, Wisconsin Manufacturers and Commerce, Printing Industries of Wisconsin, Wisconsin Paper Council, United Foundrymen of Wisconsin, and Wisconsin Wood Products Manufacturers, Plaintiffs-Appellants, A.O. Smith Corporation, American Petroleum Institute, Amity Leather Products Company, Berlin Foundry Corporation, Briggs & Stratton Corporation, The Buckstaff Company, Eck Industries, Inc., The Falk Corporation, Freeman Chemical Corporation, General Electric Company, Grede Foundries, Inc., Minnesota Mining and Manufacturing Company, Motor Castings Company, Neenah Foundry Company, Pelton Casteel, Inc., Shawano Community Hospital, and Young Radiator Company, Plaintiffs-Intervenors-Appellants, v. NATURAL RESOURCES BOARD and Department of Natural Resources, Defendants-Respondents, Citizens For a Better Environment, John Muir Chapter--Sierra Club, League of Women Voters, Inc., and Wisconsin's Environmental Decade, Inc., Intervenors-Respondents. . Oral Argument |
Jon P. Axelrod, Argued, of DeWitt, Porter, Huggett, Schumacher & Morgan, S.C., Debra J. Waite, Gen. Counsel, on the briefs, Madison, for plaintiffs-appellants Wisconsin Hosp. Ass'n and plaintiffs-intervenors-appellants Shawano Community Hosp.
Jon P. Axelrod, Argued, DeWitt, Porter, Huggett, Schumacher & Morgan, S.C. and Paul G. Kent, on the briefs, Madison, for plaintiffs-appellants Wisconsin Mfrs. and Commerce, Wisconsin Paper Council and Wisconsin Wood Products Mfrs.
Jon P. Axelrod, Argued, of DeWitt, Porter, Huggett, Schumacher & Morgan, S.C., Foley & Lardner by Mark A. Thimke, on the briefs, Milwaukee, for plaintiffs-appellants Printing Industries of Wisconsin.
Jon P. Axelrod, Argued, of DeWitt, Porter, Huggett, Schumacher & Morgan, S.C., Cook & Franke by Pamela H. Schaefer, on the briefs, Milwaukee, for plaintiffs-appellants United Foundrymen of Wisconsin.
Donald Heaney, Argued, Lathrop & Clark by Michael J. Lawton, on the briefs, Madison (G. William Frick and Ralph J. Colleli, Jr., of counsel, Washington, D.C.), for plaintiffs-intervenors-appellants American Petroleum Institute.
Jon P. Axelrod, Argued, of DeWitt, Porter, Huggett, Schumacher & Morgan, S.C., Quarles & Brady by Michael S. McCauley, Ralph Topinka and Erica Eisinger, on the briefs, Madison, for plaintiffs-intervenors-appellants Minnesota Min. & Mfg., Inc.
Mary V. Bowman, Asst. Atty. Gen., Argued, Donald Hanaway, Atty. Gen. and Thomas F. Steidl, Dept. of Natural Resources Bureau of Legal Services, on the briefs, for defendants-respondents Natural Resources Bd. and Dept. of Natural Resources.
Susan R. Mudd, for intervenors-respondents Citizens for a Better Environment, John R. Muir Chapter-Sierra Club, League of Women Voters, Inc. and Wisconsin's Environmental Decade, Inc.
Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.
The plaintiffs are hospital and industrial associations and their member business corporations. 1 They appeal from an order on summary judgment. The order declares the validity and constitutionality of a state administrative rule entitled "Control of Hazardous Pollutants," Wis.Adm.Code ch. NR 445 (Sept.1988), and dismisses plaintiffs' claims that the rule is not statutorily authorized and denies the hospitals equal protection of the laws. The Wisconsin Department of Natural Resources (DNR), which adopted the rule, and the Natural Resources Board are the defendants. 2 Four groups have intervened as respondents. 3
We affirm that part of the order dismissing the plaintiffs' claim that DNR lacks statutory authority to adopt the rule. We reverse that part dismissing the hospitals' equal protection claim and that part declaring the rule is valid. The equal protection issue must be tried. The result of our mandate is that all plaintiffs except Wisconsin Hospital Association and Shawano Community Hospital are out of this action.
The legislature's authorization to DNR to adopt the rule is sec. 144.375(5), Stats., which provides in relevant part:
(a) If an emission standard for a hazardous air contaminant is promulgated under section 112 of the federal clean air act, [42 U.S.C. sec. 7412,] the department shall promulgate by rule a similar standard but this standard may not be more restrictive in terms of emission limitations than the federal standard....
(b) If an emission standard for a hazardous air contaminant is not promulgated under section 112 of the federal clean air act, the department may promulgate an emission standard for the hazardous air contaminant if the department finds the standard is needed to provide adequate protection for public health or welfare.
"Emission standard" is defined in sec. 144.30(11), Stats., as
The purpose of the rule is "to establish emission limitations for hazardous pollutants." Wis.Adm.Code sec. NR 445.01. (2). It "applies to all air contaminant sources and to all owners or operators of an air contaminant source." Sec. NR 445.01(1). It sets emission limitations for 405 substances. The emission limitations do not apply to a contaminant source which must meet a national emission standard for a pollutant under sec. 112 of the federal clean air act. Sec. NR 445.01(1).
Most substances covered by the rule are subject to emission limitations based upon standards established for indoor air by the American Conference of Governmental Industrial Hygienists. The rule divides these 329 substances into three groups. Wis.Adm.Code sec. NR 445.04 Tables 1, 2, and 4. Table 1 covers "Hazardous Air Contaminants With Acceptable Ambient Concentrations." Table 4 covers other such contaminants but assigns to them a different compliance schedule than the Table 1 contaminants for existing sources. Table 2 lists "Hazardous Air Contaminants Which Are Pesticides, Rodenticides, Insecticides, Herbicides or Fungicides with Acceptable Ambient Concentrations."
For each substance in Tables 1, 2, and 4, the American Conference of Governmental Industrial Hygienists had previously recommended a form of emission limitation--"threshold limit values"--applicable to indoor working conditions. The hygienists divided these "values" into a "threshold limit value--time weighted average" (TLV-TWA) and a "threshold limit value--ceiling" (TLV-C). DNR's rule uses those threshold limits as a basis for regulating outdoor concentrations of Table 1, 2, and 4 substances. Sources may not emit regulated substances "to cause ambient air concentrations off the source's property which exceed" either of two limits. The offsite-outdoor concentration for any contaminant may not exceed 2.4% of the TLV-TWA for that contaminant over any consecutive 24-hour period or 10% of the TLV-C for any one-hour averaging period. Wis.Adm.Code secs. NR 445.04(1) and (2), 445.05(1), (2), and (4).
The remaining seventy-six of the 405 substances covered by the rule are known or suspected carcinogens. These substances are listed in Wis.Adm.Code sec. NR 445.04 Table 3. The rule establishes emission limitations based on a "best available control technology" (BACT) limitation for some of the carcinogens and a "lowest achievable emission rate" (LAER) limitation for the others.
The BACT limitation sets an "emission limit for a hazardous air contaminant based on the maximum degree of reduction practically achievable as specified by the department on an individual case-by-case basis taking into account energy, economic and environmental impacts and other costs related to the source." Wis.Adm.Code sec. NR 445.02(4). The LAER limitation sets a rate which is the more stringent of
(a) The most stringent emission limitation for the hazardous air contaminant which is contained in the air pollution regulatory program of any state for this class or category of source, unless an applicant for a permit demonstrates that this limitation is not achievable; or
(b) The most stringent emission limitation for the hazardous air contaminant which is achieved in practice by the class or category of source.
DNR adopted the rule after five years of study and public hearings by DNR, the Natural Resources Board, and a seven-member Hazardous Emissions Task Force appointed by the secretary of DNR. Rather than conducting new research to determine which substances should be regulated, those organizations relied on studies performed by other scientific bodies. On May 25, 1988, the Natural Resources Board adopted the rule upon finding that:
WHEREAS, the Natural Resources Board has heard ample testimony and is aware of sound scientific data relating to the harmful effects of hazardous air contaminants on public health and welfare; and the Board is aware of the inadequate efforts by [the United States Environmental Protection Agency (EPA) ] to promulgate emission standards for hazardous air contaminants under section 112 of the federal Clean Air Act; and
WHEREAS, the Natural Resources Board finds that it is necessary to promulgate emission standards for hazardous air contaminants not regulated under section 112 of the federal Clean Air Act in order to provide adequate protection for public health and welfare.
NOW, THEREFORE, the Natural Resources Board adopts the rule proposed ... which establishes standards for hazardous air contaminants which are not currently regulated under section 112 of the federal Clean Air Act.... [Emphasis added.]
The rule was to go into effect on October 1, 1988 for new or modified sources of contaminants. Wis.Adm.Code sec. NR 445.04(1). For existing sources, the rule establishes phased compliance schedules...
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