855 N.W.2d 443
Wis. Ct. App.2014Background
- DNR issued combined construction and operation air permits for an industrial sand facility in Blair (Preferred Sands) after permit revisions were requested following notice of violations. Preferred Sands later purchased the facility.
- DNR published draft permits, solicited comments and held a public hearing; final permits issued in Jan. 2013. Midwest Environmental Advocates commented and later represented Haase‑Hardie.
- Haase‑Hardie petitioned the DNR for a contested‑case hearing on seven substantive issues tied to the permits (later treated as seven issues by DNR).
- DNR granted a contested‑case hearing on Issues 1–3 (dust modeling, permit approval criteria/emission limits, and consideration of baghouses in modeling/emission limits) but denied hearings on Issues 4–7.
- Issues 4–7 involved: (4) requiring periodic stack testing; (5) requiring daily dust control recordkeeping/reporting; (6) ambient air monitoring, including PM2.5; and (7) whether an environmental assessment (EA) was required. DNR denied those four because Haase‑Hardie failed to show disputes of material fact.
- Haase‑Hardie sought judicial review; the circuit court and this appellate court affirmed the DNR, rejecting both (a) that Issues 4–7 involved material factual disputes and (b) that one proved factual dispute entitles a petitioner to a hearing on all issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Issue 4 — periodic compliance (stack) testing | DNR legally erred by not requiring periodic stack testing; there are material factual disputes about facility design, baghouse performance over time, and ability to meet low limits | Whether testing is required is a legal question; the factual matters identified are material only to Issues 2–3 (for which a hearing was granted) not to the discrete legal question on testing | Denied — no dispute of material fact specific to the stack‑testing issue; issue is legal, and overlapping factual matters are already covered by hearing on Issues 2–3 |
| Issue 5 — daily dust control recordkeeping/reporting | DNR abused discretion by not imposing more stringent recordkeeping/reporting; site‑specific facts (including prior noncompliance) make additional requirements necessary | Whether particular recordkeeping is required is a legal question; prior noncompliance is undisputed and plaintiff fails to show how it creates a material factual dispute tied to the recordkeeping standard | Denied — plaintiff failed to identify a factual dispute "of consequence" to this issue; legal question remains for judicial review, not contested hearing |
| Issue 6 — ambient monitoring including PM2.5 | DNR erred by not requiring PM2.5 monitoring and by adopting insufficient monitoring provisions; past noncompliance and control failures create factual disputes | Monitoring obligations are legal issues; alleged factual disputes are either undisputed (past noncompliance) or overlap Issues 2–3 already set for hearing | Denied — no material factual dispute distinct to monitoring issue shown |
| Issue 7 — environmental assessment (EA) | DNR improperly declined an EA and failed to document consideration of NR 150 factors; DNR should have considered cumulative impacts and prior noncompliance | Classification as Type III (which normally does not require EA) was undisputed; the need for an EA and what must be documented are legal questions; cumulative‑impact duty not shown | Denied — plaintiff did not identify a material factual dispute showing necessity of EA; procedural/documentation points are legal matters |
| Statutory interpretation — whether one factual dispute entitles petitioner to hearings on all issues | A single demonstrated dispute of material fact under Wis. Stat. § 227.42(1)(d) entitles petitioner to contested‑case hearings on all issues in petition | § 227.42(1) must be read to allow hearings only on the specific issues for which material factual disputes are shown; allowing one dispute to trigger hearings on all issues is absurd and burdensome | Denied — court adopts DNR's interpretation: petitioner gets hearings only on issues that independently involve disputes of material fact; analogy to separate claim analysis on summary judgment supports rule |
Key Cases Cited
- Schmidt v. Northern States Power Co., 305 Wis. 2d 538 (2007) (defines "material fact" as one of consequence to litigation merits)
- Michael R.B. v. State, 175 Wis. 2d 713 (1993) (discussion of materiality standard)
- Clay v. Horton Mfg. Co., 172 Wis. 2d 349 (1992) (material facts affect resolution of controversy)
- Shearer v. DNR, 151 Wis. 2d 153 (1989) (scope of contested‑case hearing right under § 227.42(1) reviewed)
- McNeil v. Hansen, 300 Wis. 2d 358 (2007) (statutory interpretation is a question of law reviewed independently)
- State ex rel. Kalal v. Circuit Court for Dane Cnty., 271 Wis. 2d 633 (2004) (guidance on statutory interpretation and plain‑meaning/absurdity principles)
- State v. West, 336 Wis. 2d 578 (2011) (statutory ambiguity analysis)
- Goudy v. Yamaha Motor Corp., 324 Wis. 2d 441 (2010) (analogy to claim‑by‑claim summary judgment analysis)
- Metropolitan Greyhound Mgmt. Corp. v. Wisconsin Racing Bd., 157 Wis. 2d 678 (1990) (de novo review appropriate for contested‑case entitlement when agency lacks special expertise)
- State v. Blalock, 150 Wis. 2d 688 (1989) (decide cases on narrowest ground available)