*1 Wisconsin, State Plaintiff-Appellant,
v. Chryslеr a/k/a Beaver Dam Corporation, Outboard Products Marine Corporation, Corpora- a/k/a
tion, foreign corporation, Defendant-Respondent.
Supreme Court 3, 1997. argument No. 96-1158. Oral December Decided 19, 1998. June (On appeals.) certification from the court of
(Also 203.) reported in 580 N.W.2d *6 the cause was argued For the plaintiff-appellant Hirsch, R. Shari Eggleson Cynthia assistant by was James on the attorney generals, with whom briefs Doyle, attorney general. E. there was a brief defendant-respondent
For the P.C., Attorneys, Steven C. Kohl and Howard & Howard Hills, MI and William F. Reilly Hip- Bloomfield Moodie, S.C., & Reilly and oral penmeyer, Waukesha C. Kohl. argument by Steven WILCOX, P. J. This case is before the JON appeals court on certification from the court of follow- an order of the Circuit Court for Waukesha ing County, Judge, Patrick L. which dismissed the Snyder, appel- (State) lant environmental State Wisconsin's enforcement action to Wis. Admin. Code pursuant (1969) (Solid Law) RD 51.05-.06 for failure to Waste §§ commence the action statute of applicable within limitations. The circuit court also held that the State could not impose liability upon respondent Chrysler (Chrysler)1 Outboard Corporation pursuant court, respon
1 In their briefs to this the State refers to the "Chrysler Corporation," respondent dent as Outboard while title, corporate Corpora uses its current "Beaver Dam Products purposes simplicity, the former tion." For we use title throughout opinion. 144.76(3) (1977) Law)
to Wis. Stat. (Spills § because caused the hazardous substance spill issue to the prior effective date of the Spills Law. The State appealed. (1) 2. On certification, we consider two issues:
whether the State's Solid Waste Law violation enforce- ment action is subject to a statute of limitations bar or (2) to the application of the "discovery rule"; and 144.76(3) (1977) whether Wis. Stat. is applicable post-1978 discharges from resulting part pre-1978 acts when the implicated does not party own or possess the affected but property generated the wastes and failed to remediate their subsequent spillage. We hold the discovery rule is not applicable to the State's environmental enforcement action under the Solid *7 Law,2 Waste and that Law is in applicable actions the State to by of, compel remediation and to impose penalties for, which, hazardous substance spills although initially caused in part by actions рreceding 21, the statute's May 1978, date, effective continue to discharge after that date. Therefore, we affirm the order of the circuit court dismissing State's action pursuant the Solid time-barred, Waste Law as and reverse the circuit court's order which dismissed the State's action under the Spills Law. 3. The facts relevant to our
¶ decision are not in dispute. Chrysler, a foreign corporation registered do business in the Wisconsin, state of owned and oper- Hartford, ated a in plant Wisconsin, from 1965 to 1984 case, At argument oral in this the State clarified that it apply discovery seeks "to rule to violations of environmental law, particularly this environmental law this case." We express opinion no application on the rule to violations present environmental law that are not in this case. The marine engines. it manufactured outboard
where oils, paints, waste manufacturing process generated hazardous sub- solvents, some of which contained 144.30(10) (1977). Stat. by stances as defined Wis. six months of 4. For the first approximately ¶ a construction contracted with Keller Transit to remove demolition known as business drums, from the waste, 55-gallon contained Keller Transit hauled the Hartford plant disposal. Hartland, then located in the Village waste to site of Keller Hasslinger, president owned Mr. Lee Transit, by a real estate partnership and now owned site). (Bark River Keller named Bark River Properties the drums with other rubbish together Transit dumped site, Bark and covered the in a low at the River spot there until area with fill. The drums remained buried in late 1992. they were discovered 25,1992, 5. On the State became aware August of the drums for the first time. In the investi- ensuing determined that at least some of the State gation, Testing drums Hartford originated Chrysler's plant. Bark has the hazardous at the River site shown discharged ground, producing wastes have into the contamination at least one-half plume groundwater mile The contains levels of chlorinated sol- long. plume drinking vents as much as ten times the safe water standard. the State subsequent litigation between *8 settlement,
and a Chrysler produced by Chrysler which and of the drums agreed properly dispose excavate by and to remediate the environmental caused damage 1993, In of the hazardous waste. discharge August in consultation with the of Natural Department (DNR), Chrysler plan Rеsources submitted work Excava- and interim activities. investigation response 138 1993, in December and the tion of the site commenced subsequently issued a closure letter DNR has Chrysler indicates that the site has been satis- which factorily respect remediated to the removal of the with and remediation of the contaminated buried drums groundwater respect soil, to the contami- but not with eventually Of the 401 nation at site.3 drums site, the Bark 240 contained haz- excavated from River ardous wastes. 1995, In State commenced action
seeking injunctive penalties relief and under both civil the Solid Waste Law and the Law.4 The both pursuant promulgated Solid Waste Law was (1967), provided pertinent part: § Stat. 144.43 which Disposal 144.43 Solid Waste Standards. The 1969, shall, January department no later than minimum for the loca- prepare adopt and standards sanitation, tion, construction, design, operation and facili- disposal maintenance of solid waste sites ties. .. .5 developed are forth in
The standards DNR set §§ Code RD Code, the Administrative Wis. Admin. (1969), provide part: 51.05-.06 in relevant 3 3,1997, from the Specifically, April closure letter DNR "This closure determination does not indicates: groundwater property found on the nor include contamination migrating property." groundwater contamination off Appeal Record on 26:1. dismissed, a third voluntarily prejudice, The State with alleged Chrysler had ille against Chrysler which claim facility from gally operated a hazardous waste without license the DNR. enabling currently codified at Wis. Stat. statute is (1995-96). 289.05
RD 51.05 Collection transportation of solid waste.
(1) The occupant any premises, owner and of busi- ness establishment or industry responsible shall be satisfactory for the transportation collection and all solid waste accumulated at that premises, busi- ness industry establishment to a solid waste disposal facility arrangements site or unless purpose such have collecting been made with a transporting holding permit service from the department.
(2) persons All engaged in the business of collect- ing and transporting services. . .shall obtain an permit annual from department as indicated in chapter. RD 51.06 Disposal of solid waste. No person dispose any waste, shall solid including salvage- material, any able facility site or not licensed ,6 department... 8. The Spills Law, Wis. Stat. (1977), 144.76 provides part: (1) 144.76 Hazardous spills. substance DEFINI-
TIONS. As used in this section: (а) means, "Discharge" to, but is not limited spilling, leaking, pumping, pouring, emitting, emp- tying or dumping.
(b) "Hazardous substance" has the meaning 144.30(10). given under s. Responsibility. having possession Persons
(3) or control over hazardous being substance dis- regulations The DNR currently are set forth in the NR500 series of the Wisconsin Administrative Code.
charged, discharge, or who cause a hazardous shall necessary take the actions to restore the environ- *10 minimize practicable ment to the extent and air, any discharge to the harmful effects from lands or of this state.7 waters Law, 9. Violations of both the Solid Waste 1,1969, Law,
effective and the effective May Spills May 21,1978, were as Wis. subject penalties provided by (1969) Stat. 144.57 or a version of the subsequent § same The states: penalties provision statute.
144.57 Penalties. Any person who violates this fails, neglects obey any or or refuses to chapter, who general special department, order of the shall $5,000, forfeit not less than nor more than for $10 violation, day each failure or refusal. Each of contin- violation is a offense... .8 separate ued every day 10. The State seeks for penalties 1970, every day violation of the Solid Waste Law and 21,1978. More May of violation of the Law since Spills under the State seeks to specifically, impose penalties Solid Law for failure to use Chrysler's Waste waste, for fail- licensed haulers to remove its solid and facility. ure to that waste at a licensed deposit Law relate sought Spills violations penalties the Bark failure to remediate Chrysler's post-1978 the State sought by site. The relief injunctive River con- Chrysler includes both an order that requiring the contamination tinue and remediation of complete site, Bark River and an order requiring at the (1977) 144.76(3) currently codified Wisconsin Stat. § 292.11(3) (1995-96). § Stat. In Stat. 144.57 was renumbered to Wis. § (1995-96) and reads currently 144.99. It is codified at 299.97 § substantially the same as it did in 1969.
to determine where the rest of the hazardous wastes it generated prior plant to 1976 at its Hartford were disposed. parties summary judgment.
¶ 11. Both moved for (1) discovery The State asserted: that the rule should apply to its Solid Waste Law claim so toas eliminate (2) any statute concern; of limitations its attempt impose liability under the Law was post application not a retroactive, ex facto of the law sought only Chrysler's post-1978 since it to address failure to remediate the Bark River site —not its pre-1978 dumping Chrysler responded activities. argued summary judgment in its own motion for previously employed rule, in tort actions alone, should not be extended to environmental *11 brought by years enforcement actions the State after the environmental violations addition, occurred. In Chrysler argued any attempt impose penalties Spills and forfeitures under the Law, which became post provisions 1978, in effective violates the ex facto of they the state and federal constitutions since would be predicated upon Chrysler's actions in 1970. Citing legislature the fact that neither
nor this court has extended the rule an environmental enforcement action sort, of this the cir- summary cuit court denied the State's motion for judgment granted summary judgment Chrysler and on the Solid Waste Later, Law claim. the circuit court summary judgment, denied the State's motion for granted summary judgment Chrysler in favor of on the Spills Law claim. The circuit court concluded that the Spills Law does not allow State to seek remediation Chrysler from spill because the hazardous substance prior Spills was caused to the effective date of the Law. Any penalties imposed or forfeitures on would, court, according circuit violate the ex post of facto clauses the United States and Wisconsin Con- stitutions.9 The State from the circuit appealed court's order, final of the court certified the case to appeals (Rule) this court Stat. pursuant Wis. 809.61 § (1995-96).
STATUTE OF LIMITATIONS we proceed 13. Before to the first issue case, in we this must decide which statute of presented claim, limitations to the Law commenced applies February on 1995.10 The State asserts (1995-96)11 Stat. 893.87 is the of applicable statute § in limitations this action. It in provides pertinent part: 893.87 General limitation of in action favor state, of Any the state. action in favor of the if no prescribed chapter, other limitation shall years be commenced after within the cause of action accrues or barred.... be I, provides 12 of the Constitution § Article Wisconsin part:
relevant law, attainder, post any impairing No bill of ex facto nor law obligation contracts, passed.... shall ever be I, provides: Article of10 the United States Constitution any Attainder, Law, .pass post No shall. . Bill of ex facto оr state Contracts, Obligation grant any impairing Law Title *12 Nobility. 10 applies We need not decide which statute oflimitations claim, the Solid since the State has exceeded all Waste Law apply time limits in this case and seeks instead to rule to this cause of action. 11 purposes simplicity, For use the we 1995-96 version question. of limitation in At all times statutes relevant action, of these statutes remained the substance same.
143 893.93(2)(a) Stat. that Wis. § contends (1995-96) claim. That statute to the State's applies in relevant part: reads actions.
893.93 Miscellaneous (2) commenced following actions shall be of action accrues or be years 2 after the cause within barred:
(a) upon a statute by private party An action a given to the the action is penalty, or forfeiture when state, except prosecuting therefor party provides it a different imposing the statute when limitation. State that Wis. Stat. 14. We with the agree (1995-96) limita- controlling is the statute of 893.87
§
893.93(2)(a),
Stat.
for the
Law claim. Wis.
Spills
§
tions
by private party
to actions
face,
only
applies
on its
to the
given
or forfeitures when the action
penalties
aby
This is not an action
state.
private party
limita-
There
no other statute of
being
private party.12
action,
general
for the State's
tions prescribed
of the State
limitations
for actions
favor
statute of
claim. This conclusion is
to the
Law
applies
for the
reason.
following
important
In State v. Wisconsin
Co., 91
Telephone
Wis.
(1979),
this court con-
702, 717-19, 284 N.W.2d
2d
defense in the context of
sidered a statute of limitations
case
notably,
action. Most
forfeiture/penalty
893.21(1)
Stat.
an action controlled Wis.
involved
144.76(3) does not create a
We also note that Wis. Stat. §
Daun,
682, 693,
2d
See
v.
210 Wis.
private cause of action.
Grube
533,
by 213
2d
(1975), to the statute of precursor limitations which here, to be proposes controlling Stat. 893.93(2)(a) (1995-96). We held that every where day § of violation of a statute constitutes a separate violation (as is of that statute the case with the penalty provision here), a on cause of action accrues each of those days of See alleged violation. id. at 719. Therefore, a statute of limitations will act bar
as a forfeiture claims which are based on any than, violations that occurred more this case as using an 10 example, years prior to date the action was commenced. Compare (concluding id. at 719 that Wis. 893.21(1) (1975) Stat. barred forfeiture claims occur- § more years than two to commencement ring prior action). assertions, then, the State's Contrary may State not collect for violations of the penalties date, on beginning Law the statute's effective but Spills for those only violations which have occurred since 16, 1985, ten February years prior to the commence- ment of this action.13
13Relying upon weighty authority no less than State's Mauthe, to this in State 2d brief court v. 123 Wis. (1985), Chrysler penalties that
N.W.2d asserts cannot be Spills a affirmatively assessed under the Law until defendant support declines to undertake remedial action. We find no itself, position nothing law, the statute Wisconsin case — suggests brief in or even the State's Mauthe this is an contrary, reading Spills plain accurate Law. To the (1977) reading of Wis. Stat. 144.76 and Wis. Stat. 144.57 § (1969) illustrates de facto violation of the Law is trigger penalties. sufficient to
THE SOLID LAW WASTE *14 now turn the first issue on We presented ¶ the rule" "discovery apply whether should appeal: State's enforcement action under the environmental Law, so it under timely the Solid as to render Waste (1995-96). Stat. Upon 893.87 review law in a motion for application appropriate granting of we a de of summary judgment, exercise novo standard the Thus, analyze review. we law without apply deference circuit court's conclusion law. See Le to the of Schrieber, 733, 736, Fevre v. 167 Wis. 2d 482 N.W.2d (1992). 904 discovery 18. The rule was first adopted by
¶ Robins, Inc., 550, v. A.H. court Hansen Wis. 2d (1983). (Han- In case, the plaintiff N.W.2d 578 sen) had a Shield Daikon intrauterine device inserted her into uterus medical See id. at 552. personnel. later, four she Approximately years began to experi- problems, ence various health which eventually her doctor to remove the device. See id. at prompted removed, 552-53. Although Daikon Shield was escape did not unharmed: she plaintiff pel- contracted inflammatory disease, vic left fallopian which her tubes blocked and her sterile. rendered See id. at 553. 19. The of applicable statute limitations Hansen's personal subsequent injury action stated that actions to recover damages injuries per- son must years be commenced within three after the cause of action accrues See at 554. If be barred. id. Hansen's personal injury cause of action had accrued at the time of the act —the negligent insertion of the Daikon Shield —her claim A.H. against Robins would have been Instead, barred. "the of recognizing injustice the statute of limitations commencing before a claim- ant action," aware of his or her and that right the date of as the benchmark "using injury for accrual can id. results," claims harsh yield extremely we rule for adopted discovery Hansen's action and others like it. See id. at 560-61. In rule, adopting discovery we stated: justice fairness,
In the interest of and fundamental adopt discovery we rule for all tort actions other already governed by than those legislatively cre- ated rule. Such tort claims shall accrue on the injury the date is discovered or with reasonable diligence discovered, be should whichever occurs All holding first. cases tort claims accrue at the negligent hereby time act or are injury overruled.
Id. at 560. Because Hansen could not have discovered her injury any earlier, or could not expected per- be to condition, her sonally diagnose we held that her personal injury 1978, claim accrued in upon discovery condition. See id. at 561. of her medical Thus, her cause of action was timely filed. 21. The State to seeks have this same rule
¶
to the
of
an
applied
present cause
action:
environmen
tal enforcement
claim
violations of the Solid Waste
1970,
Law which occurred in
but which were not dis
until
According
State,
covered
to the
court
this
continued,
direction,
has
legislative
expand
without
Hansen,
the discovery
rule since our decision in
has indicated its intention to
rule
make
discovery
applicable
other
of cases. To
types
support
pro
position,
cases,
including
State
cites
several
Levin,
v.
Claypool
284,
209 Wis. 2d
562
584
N.W.2d
Dean,
Spitler v.
(1997),
630,
148 Wis. 2d
436 N.W.2d
(1989), Kohnke
v.
Co.,
St. Paul Fire
308
Ins.
144
2d
Wis.
Co.,
and Borello v. U.S. Oil
352, 424N.W.2d
(1988),
191
147
(1986).
397,
2d
388
140
disagree
130 Wis.
N.W.2d
We
of authority.
the State's
and use
argument
with
declined to extend
has recently
22. This court
action
sounding
rule
causes of
not
Partnership
tort. See CLL Assocs. Ltd.
v. Arrowhead
617,
Corp.,
174 Wis. 2d
N.W.2d
Pacific
(1993)
of action
in con-
(holding
sounding
causes
breached,
the time
tract accrue at
the contract
regardless
injured party
of whether
knew should
occurred).14
known that
Moreover,
have
breach
of the
cited
the State
although
argua-
several
cases
the discovery rule,
some
bly represent
"expansion"
all
are
cases
of action
they
plaintiffs
in which
cause
sounded
tort. Stated more
these cases all
precisely,
See
Claypool,
claims for
personal
injury.
involved
2d at
claim for
(barring
malprac-
287-88
medical
Spitler,
tice);
intention rule to situations expand outside of the tort arising brings context. State our in Kohnke which states: "The attention to a paragraph Hansen case limit language did not its plain cases, discovery rule to certain such as medical types *16 but malpractice products liability, applicable was cre- any 'already governed by case not legislatively Kohnke, rule.'" 144 2d at discovery ated 361 14 recently judicially-created also the dis We clarified that covery applied repose. rule cannot be to a statute of See 260, 166, Bailey, v. 578 Tomczak 218 Wis. 2d N.W.2d 173 (1998).
148 560). 113 Wis. 2d at (quotingHansen, The State misin- this terprets statement. Nothing 24. in that paragraph purports the rule to
apply situations outside arising the tort by context. This is made evident the fact that Kohnke involved a personal injury tort claim for dam- ages Kohnke's, sustained the during plaintiff, Kohnke, See surgery. childhood Wis. 2d at statement cited by simply State reflects our conclu- sion that discovery rule should to Kohnke's apply action —a claim controlled by malprac- not medical limitations, tice statute of by injury but a personal statute of in when Kohnke limitations effect suffered his and which did contain its injury not own rule of Kohnke, 144 discovery. Wis. 2d at 359-61. Nevertheless, the State attempts analo-
gize the social purposes underlying environmental enforcement actions to those tort generally by served State, law. to the According environmental enforce- ment actions are similar" to tort claims "strikingly losses, because the actions shift in the form of injunctions to remediate the environment or forfeit- ures, to the party fault damaging Placing environment. law-violating cost with the party one most able to injury prevent —the —serves to dеter other would-be violators from or dis- handling their posing of hazardous wastes an unsafe manner. law, Finally, just as in tort losses are distributed widely industry since considers the cost compliance as part of cost of doing business Wisconsin.15 purposes For discussion the broad social served law, tort Partnership see CLL Assocs. Ltd. v. Arrowhead Pacific 604, 610, 497 (1993), Corp., 174 Wis. 2d N.W.2d 115 and sources cited therein. *17 the State's anal- 26. We are not persuaded
¶ request that the State's in persuaded Nor are we ogy. understanding our traditional comports this case with discovery proceed expound upon of the rule. now We distinctions, our and to deci- important explain these defer for legislature adopting sion to in rule environmental enforcement actions discovery to the Solid Waste Law. brought pursuant OF v. DISCOVERY DISCOVERY INJURY RULES OF RULES VIOLATION nature of the By clarifying precise 27. ¶ case, the first State's we critical request expose from our traditional use and understanding deviation A decision discovery of the rule. brief look at a of the States of for the District of Appeals United Court Columbia Circuit make our task an easier one. will (D.C. Browner, In 3M v. Co. F.3d 1453 28. 1994), Agency Cir. Environmental Protection (EPA) civil 3M sought penalties against assess Act, violations Toxic Substances Control See id. at U.S.C. 2601-2629. 1454. relevant §§ faced question by the United States Court Appeals a statute five-year was whether of limitations began EPA could running only when have reasonably to the detect the violations rise civil expected giving See id. penalties. here, Just as the State contends the EPA rule was needed to
argued discovery address difficulties the environmental agency's enforcing See id. noting After law. the laudable purposes 3M court illustrated rule, discovery injury the federal had not the rule to courts limited per- However, sonal actions. in those instances injury where the federal courts had expanded *18 rule outside the of claims, boundaries tort the court that "the rale emphasized has been only applied (citations omitted). remedial, civil claims." Id. In contrast to cases involving
¶ remedial claims, the 3M court noted: sponsors
[t]he rule EPA different entirely is of an "discovery sort. It is a of having violation" rule noth- ing problem whatever do with the of latent injuries. The rationale underlying discovery the of injury rule —that a claim cannot realistically be said to accrue until the claimant has suffered completely harm —is inapposite... .In an action for pеnalty, government's civil the prove burden is to violation; injuries the damages resulting or from the part action; violation are not of the of cause the may regardless suit be maintained damage. of Immediately upon violation, the may EPA institute proceeding penalty to have the imposed. liability . . .Because penalty attaches at the violation, moment of the one expect would this to be the time penalty when claim for the "first accrued."
Id. at 1460-61. the 3M court declined to a result, As rule for adopt discovery the EPA's environmental enforcement action. See id. at 1462-63. In the same our way, adoption discov-
¶ rule in ery this context would a dramatic represent from our on the departure previous thinking subject: rule would no discovery longer designed be to offer concealed injuries a. chance to have latent, those with their in court. day Were we to rule adopt case, in this the State would be afforded the opportu- nity to both remediation and the of compel payment entities whose violations or penalties by individuals applicable within the were not discovered state law of limitations. statute brought pen- could have this civil 32. The State
alty if the under the Solid Waste Law even action intact, had remained at the Bark River site drums ground. discharging into the hazardous wastes without proved claim is All that in the Solid Waste Law need be regardless any occurred, that a of state law violation damage injury Thus, the State to the environment. "discovery injury" apply rule not seek to does past, in the but rather a which this court has seen "discovery of rule which has never before violation" employed in this state. been truly argues it 33. The State seeks *19 discovery injury apply case, of rule to this not the a discovery by 3M of rule encountered violation discovery that the rule court. The State reasons would leaking discharge apply if no or not to this case words, occurred. In other an hazardous substances had "injury" damage case, con- or State —which discharge cedes, was the of hazardous substances —is theory apply required in order to under the State's discovery injury requirement sepa- rule. It is this that present 3M rates the case from the scenario. theory Although
¶ the State's dictates discharge actually impose оccur in order to reme- must liability against Chrysler help punitive dial and with disagree discovery rule, the State's from the we with discovery injury assertion that it seeks a rule for its "leaking" nor "dis- Solid Waste Law claim. Neither charge" A are elements of a Solid Waste Law violation. complete of the Solid Waste Law is when an violation facility entity uses unlicensed haulers or an unlicensed leaking dispose or dis- of its waste. The unlawful charge subsequent are of a hazardous substance violations may which be via the prosecuted Spills Law not, under any terms, but of its reading by using Solid Waste Law. Therefore, we find it difficult to conceive State can
how the
rule to
employ
discovery
impose
for
violation of the Solid Waste
penalties
Law when
(dis-
an element
it concedes is
for
claim
necessary
its
environment)
to the
charge
leaking causing damage
is not an element of the Solid Waste Law to
with.
begin
only
logical
indeed,
sustaina-
legally
—
interpretation
remains of the State's Solid
ble —
it does seek a
enforcement
claim
Waste Law
is that
rule,
of violation
discovery
whereby the failure to use
is,
itself,
licensed haulers or a
by
licensed
site
dump
enough
remedial
impose
punitive
liability
against Chrysler. This new-found
to the dis-
approach
rule is
covery
cause
consideration on several
levels.
PENALTIES
THE SOLID
UNDER
WASTE LAW
36. To
rule in this instance
adopt
punish
would be to allow the State to
those who vio
law,
case,
lated a state
as in this
nearly
years prior
any
to the commencement of
action
the State. As the
3M court
noted, "[f|ines,
forfeitures,
penalties
criminal,
whether civil or
considered a form of
may be
3M, v.
Austin
at 1460
punishment."
(citing
F.3d
(1993)).
States,
United
153
561-62,
133
2d
Wuky,
Milwaukee v.
26 Wis.
(same).
(1965)
Thus,
attempt
the State's
N.W.2d 356
for a violation
against Chrysler
impose penalties
to a criminal action
analogous
is more
Waste Law
Solid
previ-
actions in which we have
than to the civil tort
rule.16
ously employed
actions,
ordinarily
the State is
In criminal
does not have
a statute of limitations bar —it
subject to
any
time because
prosecute
unfettered discretion to
the time the offense
the offense attaches at
liability for
(1995-96)
See,
e.g.,
Wis. Stat.
is committed.
§939.74
com-
for felonies must be
that
(providing
prosecutions
3
and misdemeanors within
years
menced within 6
in certain
crime,
a
except
after commission of
years
circumstances).
Court
Supreme
As the United States
country
where
nearly
years ago, "[i]n
concluded
after a
of
lapse
not even treason can be prosecuted
an indi-
it could
be
years,
scarcely
supposed
three
to a pecuniary
vidual
remain for ever liable
would
(2 Cranch) 336,
Woods,
Adams v.
6 U.S.
forfeiture."
C.J.).
(1805)
Indeed,
(Marshall,
342,
ROLE OF LEGISLATURE that a violation of acknowledge 40. We can to affect all citizens of Solid Waste Law be said Wisconsin, commenced this state of such that the State case, fact, adopt rule in this In were we apply why the rule wouldn't we find it difficult to understand brought by the every forfeiture/penalty action generally to State. *22 citizens. Neverthe- "injured"
action on
of those
behalf
the
of state law with
less, a
violation
request
equate
victim,
concealed,
latent
of a tort
so as to
injury
the
case, is one
the
of limitations
in this
statute
expand
than to this court.
directed to the legislature
better
held that statutes
traditionally
"Wisconsin courts have
the prov-
of limitation are
considerations within
policy
Kretz,
2d 573,
ince of the
Miller v.
191 Wis.
legislature."
(Ct.
1995).
See also Tomczak
App.
conclude that rule would not cure adopting
18See, legislature's example, choice of action (1995-96). context, malpractice medical Wis. Stat. 893.55 what it to be the real an perceives problem: ill-designed or inefficient environmental enforcement program or begin statute to with. On this the words of the point, 3M are once again pertinent court to our discussion: agency may
An experience problems detecting statutory violations because its enforcement effort sufficiently funded; is not or agency because the has not devoted an trained adequate person- number of task; agency's nel to the or because the enforcement inefficient; program ill-designed or because the nature of the makes statute it difficult to uncover violations; or because of some combination of these agency's factors and others. . . .An failure to detect *23 violations, reasons, for does the whatever not avoid memories, problems of faded lost witnesses and dis- penalty brought carded documents in actions alleged finally decades after violations are discovered.
3M,
tion to
the
rule for violations
adopt
resources,
time,
Solid Waste Law: it has the
the
and
to review and
the
investigatory capability
analyze
interests at stake
this matter. The words
competing
Mauthe,
State v.
288, 302,
inDay
of Justice
123 Wis. 2d
(1985), may
157 (1983). vitally important work N.W.2d us, sustaining the life forces around protecting environment, collectively to as the is basic referred and fundamental to our survival. The means to always agreed upon. ends are not achieve these disagreement often are in as to how to Experts system it achieve these results. Under our carry it legislature agencies empowers and the respon- out its mandates that bear this tremendous they conflicting sibility. It is who must resolve problems. approaches specific interests and staff, agency is the state with the "[T]he D.N.R. expertise sources in environmental mat- Decade, . ters. . ." Wisconsin's Environmental Wis. 2d at 391.
Id. reasons, 44. For the we conclude that foregoing rule is to the State's reme- inapplicable
dial and environmental enforcement action punitive situation, under the Solid In this Waste Law. need defendants from stale claims protect outweighs any injustice by caused environmental enforce- barring ment actions under the Solid Waste Law prior Because discovery. liability the remediation penalties Solid Waste Law attached at imposed violation, the moment of the claim also "accrued" at time, the State's action thereby rendering *24 untimely.19 cites, lists, plethora State and at times of cases foreign jurisdictions attempt persuade
from in an to this court discovery adopted the rule should be this case. See necessary respond State's Brief at 16-21. We do not find it stated, arguments. policy these prior As we have behind our applications involving rule tort cases con cealed, injuries simply apply open-ended latent does not to an
THE 1978 SPILLS LAW issue we consider is whether The second ¶45. 144.76(3) (1977) is applicable post-1978 Stat. § from resulting part of hazardous wastes discharges drums at the Bark of waste dumping the pre-1978 did not own or site, possess when Chrysler River to remediate and failed site, but wastes generated review of again, upon Once subsequent spillage. their summary judgment granting the circuit court's order de standard of we exercise a novo Chrysler, in favor to the cir- deference review and law without apply Fevre, 2d See Le 167 Wis. cuit court's conclusion law. arguments makes three Chrysler primary First, to the Law. relating Spills this court before Law does not allow contends that Chrysler caused from a who party the State to seek remediation of a hazardous discharge enactment Law pre-Spill or own substance, currently possess but who does not Second, remediation. which requires property 144.76(3) (1977) that Wis. Stat. Chrysler argues Finally, to apply prospectively. intended of the Spills if the remedial provision asserts even its retroactively, applying pen- applied Law could be the ex post violate and forfeiture would alty provisions con- Statеs and Wisconsin facto clauses of the United in turn. arguments address these stitutions. We an enforcement discovery of violation rule for environmental none of the Because brought under the Solid Waste Law. action a differ- authority persuades us that foreign cited State reached, those decline to address should be we ent conclusion cases. *25 THE LAW OF SPILLS
APPLICABILITY regarding applica- Chrysler's argument ¶ conduct in this case Law to its Spills bility 2d Mauthe, in 123 Wis. around our decision revolves of haz- Mauthe, discovered evidence 288. In DNR that had used near a site been spills ardous substance elec- for chrome Corporation Chromium by Wisconsin 1960. See id. at 293. The activities since troplating Chromium, Mauthe, of Wisconsin president defendant in and leased it to had site purchased continued to con- Chromium corporation. Wisconsin the location chrome activities electroplating duct 1976, at time the dissolved corporation until which At all activities ceased. electroplating approximately See time, company. the same Mauthe formed his own id. at and to the site revealed adjacent 48. Tests chromium contamination of the
extensive hexavalent hazardous substance within groundwater soil —a 144. See id. at 292-93. The meaning Chapter relief as well as forfeitures from sought injunctive state (1981-82)20 for the Mauthe under Wis. Stat. 144.99 § chromium leak- Law caused violations surface runoff and into the soil with water age coupled at 294. flow. See id. groundwater first Mauthe's rejected argument 49. We in Stat. "discharge" the definition of provided (1981-82) 144.76(l)(a) some kind of human required results in contaminant See id. activity seepage. which 'emitting' Because such as 'leaking' "[w]ords at 298. tie to human and often refer activity have no apparent opinion, may it purposes For of this be assumed that statutory the same provisions at issue Mauthe contained language provisions as the at issue this case. *26 phenomena conduct," id., which occur absent human "discharge" encompasses concluded that inactive
we waste sites from which hazardous flowing. substances are although
¶ 50. We then concluded that he did not spill, cause the hazardous substance Mauthe could be responsible spill held for remediation of the because he property in owned the which the contaminated soil was dоing rejected so, located. In we Mauthe's assertion holding Spills that him liable under the Law would post violate the ex facto clause of the Wisconsin Consti- electroplating tution since the activities ceased in prior 1976, to the statute's effective date. See id. at 300-01. stated: We only brought
[t]he action the state relates to the discharge from the contaminated soil located on his property and. . .does not relate to activities took on to the stat- place property prior which his It current ute's enactment. is abatement this Therefore, discharge seeking. the state is this not an ex facto post application law. Id. at 301-02. Chrysler the rationale of contends that apply not to the current situation since
Mauthe does possession or of the land. In Mauthe had actual control Chrysler possessed owned, or con- case, has never this agree with this trolled the Bark River site. We 144.76(3) (1977) Nevertheless, Stat. assertion. liability "[plersons having possession imposes of or on discharged, being control a hazardous substance over (Emphasis discharge. . ." or who cause a hazardous . added.) presented The here is different from situation only that a different clause that in Mauthe to the extent liability. being impose Spills of the Law is used to penalties not seek remediation and from State does Chrysler possessed it or controlled the hazard- because theory only upon after but ous substance discharge Chrysler Spills caused a hazardous after the effect. Law took Therefore, to determine whether
may
case,
be held liable
we must examine both
punitive segments
Spills
the remedial
Law
party
charged
"causing"
the context of a
who is
spill.
legis-
remediation,
As to
we conclude that the
apply
Spills
retroactively.
lature intended to
Law
penalties
forfeitures,
As to
we conclude that the
imposition
penalties
in this case does not constitute
application
*27
a retroactive
Law.
REMEDIATION AND RETROACTIVITY
¶
It
53.
is well-established rule in Wisconsin
legislation
presumed
prospective
appli-
that
in
be
(1)
by express
cation unless:
the statute reveals
language
legislature's
provi-
apply
the
intent
the
(2)
retroactively;
language
sions
reveals such
by necessary implication.
e.g.,
See,
intent
Martin v.
Richards, 192
156, 199-200,
Wis. 2d
531
70
N.W.2d
(1995); Chappy
LIRC,
v.
172, 180,
136 Wis. 2d
401
(1987);
Dept.,
N.W.2d 568
State v. ILHR
101
2dWis.
(1981).
396, 403,
¶ 54. Wisconsin Stat. provisions those violation of its to "take the actions necessary to restore the environment to the extent practicable any and minimize the harmful from effects discharge air, to the lands or waters of this state." We chose its words care- that the legislature must presume See, Ball v. District e.g., this statute. drafting fully Vocational, Technical and Adult Bd. Area No. of (1984). Educ., 117 Wis. 2d 529, 539, 345 N.W.2d to the "restore the environment of the phrase Use reveals an necessary implication by practicable" extent those whose con- conduct. Even to address past intent cannot escape Law Spills in part predated duct must com- they perform under this liability provision: to make site spill remediation of plete again. whole environment of or construction interpretation other Any result, an absurd which produce would language See, ex rel. State e.g., has a to avoid. duty
this court 2d County, Court Dane 214 Wis. Reimann v. Circuit (1997). If remediation under 604, 621, 571 N.W.2d in a fashion prospective to apply Law were for remediation solely would be liable Chrysler only, after which occurred substance spills the hazardous courts could ascertain assuming 1978. Even discharging began the barrels date which upon precise to allow substances, it be absurd would their hazardous remediation complete short Chrysler stop represents which spill portion on focusing alone. spillage post-1978 would, so, it not be to do Were *28 practicable. to the extent the environment
restoring of Wis. Stat. language that Therefore, we conclude (1977) 144.76(3) that violators necessarily implies § thorough for complete Law are liable the Spills those spills substance of hazardous remediation —even 163 in occurred spills part prior which statute's effec- tive date.21 57. Our interpretation Law is
analogous
to the
federal
interpretation
courts
given
have
to the imminent hazard provision of the
Resource
(RCRA),
Conservation and
Act
42
Recovery
(1994).
Price,
U.S.C.
6973
In United States v.
523 F.
(D.
(3d
1981),
Supp.
N.J.
Id. 1071-72 F. Supp. Corp., v. Inmont In Jones (S.D. reached court 1984), the district 1425, 1436 Ohio Noting RCRA. regarding conclusion a similar discharge, as "the defined RCRA by "disposal" word leaking, plac- spilling, injection, dumping, deposit, any into or on waste waste or hazardous solid ing any environ- enter may .[it] that. . or water so land 6903(3) added), (emphasis see ment," 42 U.S.C. restraint "authorizes that RCRA Jones court concluded dis- [originally wastes of hazardous leaking of further need 1974], leaking in 1973 and posed the defen- action affirmative any not result from *30 Supp. Jones, dant." 584 F. at 1436.23See also United Corp., Rep. States v. Diamond Shamrock 17 Env't Cas. (BNA) (N.D. 1981) ("To 1329, 1334 Ohio hold that remedial environmental statutes could or should not engaged apply to in conduct antecedent to the enact- statutes, ment of such when the effects of such conduct present threat, create a environmental would consti- judicial legislative tute an irrational foreclosure of attempts rectify pre-existing currently existing to abuses."). environmental
FORFEITURES AND RETROACTIVITY attempt impose penalties ¶ 60. The State's analy- in forfeitures this case warrants distinct Upon language Spills sis. supporting review of the of the Law and legislature's
material to ascertain the intent, conclude we that the State does not seek a retro- post application Spills active, ex facto Law. Although Chrysler ¶ 61. concedes that a hazard- "discharge" ous substance occurred after Chrysler argues that it did not "cause" the hazardous discharge According Chrysler, in this case. Keller discharge dumped Transit caused the when it waste drums at the Bark River site in 1970. Even if Chrysler discharge, prior did cause the it did so to the
23Congress subsequently has amended RCRA to make government clear may that the "against 'past commence actions present' generators, transporters or disposers or of hazardous any 'past present' wastes to redress hazardous waste activi may ties present which an imminent and substantial endangerment." Mintz, Joel A. Abandoned Hazardous Waste Sites and the RCRA Sugges Imminent Hazard Provision: Some Construction, tions a Sound Judicial 11 Harv. Envtl. L. Rev. (1987). 247, 273 For a discussion of RCRA's imminent hazard provision, generally see id. date the
effective when the again, Law — drums were the Bark buried River site in 1970. Therefore, using Spills Law on impose liability in this situation would be to retroactively the law in violation of the ex apply post facto provisions of the United States and Wisconsin Constitutions. 62. We might compelled be with agree Chrysler's argument if we with agreed its definition of 144.76(3) "cause," the term it as is used Wis. Stat. § (1977). Under Chrysler's theory, only cause of the hazardous discharge substance this case was the dumping waste drums at the Bark River site in 1970. We do not with this agree interpretation. *31 63. "Cause" is not defined in 144 of the Chapter
¶
Statutes,
Wisconsin
nor
in
any
has
court
this state
defined the
it
in
Therefore,
term as
is used
this context.
we must
the standard
apply
principles
statutory con-
struction to determine
its
of our
meaning.
goal
examination,
usual,
as
is to discern the intent of the
See State
Rosenburg,
v.
legislature.
208 Wis. 2d
(1997).
194,
¶
court must
language
first look to the
of the statute.
If
that
and
language
clearly
unambiguously
sets forth
intent,
the legislative
duty
it is the court's
to
that
apply
intent
to the case at hand and not look
beyond
See
language
statute's
to determine
its
meaning.
v.
Strigel,
N.E.M.
1, 7,
208
2d
Wis.
nition given in Black's Law "Cause" is defined 2d at 300. follows: Dictionary as of; to effect as v. To be
Cause, the cause or occasion existence; about; bring into agent; bring an induce; compel. make to Cause, of an event. n... separate .Each antecedent effect brings about an Something precedes that A for an action or condi- or a result. reason brings something about. agent . . . An tion. for con- That in some manner is accountable which produces an or that brings dition that about effect state. cause for the resultant action or 1990). (6th ed. Dictionary at Black's Law as a guide, these definitions Using accepted Transit, Keller Chrysler's arguments we address caused the at the Bark River Chrysler, discharge not discharge, if indeed caused the it site and that to the effective date of the Law. We did so prior understood being that "cause" is capable conclude *32 in more than one persons well-informed reasonably an not entity "bring A or can about" event way. person event, but affirmatively produce only by acting the failure to differently, also to act. Stated by failing and can a "reason for an action or condition" act can be in the same "antecedent of an event" necessary be action can precede bring that affirmative way an effect. about Using
¶ manner, the term "cause" reasonably person may conclude well-informed Chrysler discharges caused hazardous substance after by failing any Spills took effect to remediate Law discharge by is, and all occurred after 1978. That which failing day May up 21, 1978, each after to clean site, waste at the Bark River hazardous thereby discharge" indepen- would "cause a hazardous its, Transit's, dent of or Keller actions in 1970. As we already Mauthe, held in conscious human have conduct comport is not needed to with the definition of "dis- 144.76(l)(a) (1977) charge" § Stat. because Wis. 'leaking' 'emitting' appar- "[w]ords such as or have no activity phenomena refer ent tie to human and often Mauthe, human conduct." which occur absent Wis. leaking emitting 2d at 298. Because the ofhazardous ongoing process an that occurs human waste is absent may reasonably person conduct, one conclude that a leaking by failing up can cause that to clean the haz- generated. ardous waste it has Therefore, we examine factors such as the subject scope, history, purpose context, matter and 144.76(3) (1977) § Stat. to determine whether legislature intended the term "cause" to include both the commission and of an act which leads to a omission spill. purpose case, hazardous waste In this us to the conclusion that the Law alone leads legislature did intend such a result. (1977) purpose is, 69. The of Wis. Stat. 144.76
as we have stated: minimize, and, prevent, necessary, if abate and
remedy of this state's environment contamination and the resultant risks to human health caused *33 risks The same discharges of hazardous substances. are to human health environment and to this state's seepage of a hazardous or not the present whether human in relation to some occurred substance seepage occurred. activity at the time the Thus, it would be inconsis- Mauthe, 123 2d at 299. Wis. limitation upon place legislative purpose tent with it to the action "cause" that would restrict the term already forms in 1970—action which by Chrysler taken the Solid Law. Fail- under Waste liability the basis for can have the spills hazardous waste to remediate ing effect as affirmative same, any or perhaps greater, is that waste: the environment spilling dumping risks to serious damaged, posing contaminated to abate purpose health. It is the legislature's human of the regardless that contamination remedy cause. may of the legislature's purpose 70. Evidence provision Chapter from the gleaned penalties
also be (1969). above, Stat. 144.57 144 as reproduced of which equivalent That substantial provision, 1978, that "each of contin- day was in effect indicates This clear provides ued violation is a offense." separate ongoing legislature recognized evidence and that the failure spills, nature of hazardous waste itself a cause of a remediate, day, each could be meaning Spills hazardous within discharge Law. inter- counter-argument to our logical Law —one that implicit
pretation court —is that Chrysler to this Chrysler's argument not of the hazardous substance which spill could know had after the waste eight years occurred after manufacturing from Chrysler's plant. been removed *34 144.76(3) (1977) imposes Nevertheless, Stat. Wis. lia- bility upon persons causing discharges hazardous regardless they discharge. of whether knew about the legislature impose liability only If the had desired to upon "knowingly those who cause a hazardous dis- charge," certainly it could have done so. legislature's
¶ 72. Evidence of the intent not to require apparent by intentional causation is made looking Management to the Hazardous Act, Waste (1977), by leg- §§ Stat. 144.60-144.74 enacted the same Spills §§ islation 21, as Law. See 1977 Laws ch. 144.74(3) Specifically, § 23. indicates as follows: Any person any transports who hazardous waste subject facility to ss. 144.60 to 144.74 to a which knows does not have a inten- license, transporter tionally any disposes subject hazardous waste ss. to 144.74 having 144.60 without obtained a of hazardous wastes or inten- disposal license for tionally any makes false statement or representation.... added.)
(Emphasis having provision again, This been — by legislation Spills enacted the same as the legislature Law—makes clear that could have established "intent" as an element of a Law viola- tion if it had so desired. Therefore, we conclude that discharge
caused a hazardous in this case after 1978 failing up to clean the hazardous left at the Bark waste penalties not River site. Because State does seek Chrysler's pre-1978 conduct, rather for but Chrysler's spill post-1978 failure remediate presented post alone, retroactive, are we not with ex application facto of the law. operate "[a] not 'retro does Indeed, statute arising applied merely
spectively' in a case it is because antedating enactment, or the statute's from conduct prior upsets expectations Rather, law. on based provision attaches the new must ask whether court completed legal consequences its to events before new Landgraf v. Products, 511 U.S. USI Film enactment." (1994). differently, "[a] retroactive Stated 244, 269-70 rights acquired away impairs or vested law 'takes obligation, existing laws, creates a new or under imposes disability, duty, attaches a new a new already respect or considerations to transactions past. 342, 357, 2d In re Estate 100 Wis. of Bilsie, . . .'" *35 1981) (Ct. Sturges App. (quoting v. 508 302 N.W.2d (1885)). Carter, 511, 114 U.S. 519 ongoing ¶ case, nature of a hazard- In this the any spill concern that eliminates ous substance duty" legal "impose or "attach new to a new State seeks consequences" completed the effective to events before discharge Spills at the Law. The hazardous date of or transaction River site was not a "consideration Bark already past." Rather, stated, as have it was an we Chrysler ongoing process cause continued to which failing Spills by date of the Law after the effective spill.24 remediate the Spills important interpretation to note that our of the It is wide-reaching than that imposes liability that is no more
Law Mauthe, by 2d 288. Mauthe illustrates that a imposed 123 Wis. merely by owning the is liable under the law property owner located, regardless upon hazardous wastes are property which to, of, knowledge the wastes. See id. of the owner's connection case, present interpretation Spills our of the Law at 301. In the may responsibility for envi that the State also allocate clarifies penalties to more investigations, remediation and ronmental Chrysler. culpable parties such as sum, In we conclude thаt the remedial por- ¶ 144.76(3) (1977) tion of Wis. Stat. was intended to have both retroactive and prospective application. Therefore, is liable for Chrysler remediation complete case, hazardous substance in this even if spill leaking had in occurred part before Law took Spills effect. 77. We further conclude that Chrysler caused at issue after discharge Law took effect in irrespective Chrysler's activities to that prior Therefore,
date. because Chrysler generated the haz- ardous substances,25 and caused their after discharge by failing remediate, it is liable for penalties each day of violation failure to remediate. 78. There no being genuine issue of fact that trial,
remains for we conclude that summary judgment was properly granted favor of on the Solid Chrysler Waste Law claim. we affirm the order of Accordingly, the circuit court on this issue. Because we affirm the order, circuit court's we need not address Chrysler's the Solid argument Waste Law was not intended apply Chrysler and that the law exceeded the However, DNR's rule-making authority. we reverse order of the circuit court granting summáry judgment in favor of on the claim and con- Spills Law clude that summary judgment granted should be *36 favor of the State on this issue.26
25 merely "A statute is not made retroactive because it Hart, upon operation." draws antecedent facts for its Cox v. 260 (1922). 427, 435 U.S. 26 following by Chrysler We note the assertion in its brief: court, holding "In the event this Court reverses of the trial either proceedings regarding the action must be remanded for further by Defendant-Appellant [sic] the other defenses raised below." to com- Chrysler compelled Accordingly, ¶ site, an conduct of the Bark River remediation plete all any the location to determine investigation at which its solid in Wisconsin unlicensed sites other Wisconsin, Hartford, from its wastes and hazardous the results of both and to submit disposed were plant a remediation necessary, and if investigation, DNR. plan, court to the circuit The cause is remanded authorized Wis. Stat. by the penalties
in order to assess
(1969)
of that same
versions
subsequent
144.57
§
1985, until
the date that
February
statute
from
in December
by Chrysler
commenced
remediation was
(1969)
a forfei-
mentioned,
144.57
provides
1993. As
$5,000
each
of violation.
day
range
ture
$10
the trial
give
intention
legislature's
"This reflects the
amounts of
court a wide
discretion
range of
fixing
Schmitt,
State v.
for ch. 144 violations."
forfeitures
1988)
(Ct.
724, 734,
App.
which circuit statutes, 778 of Wisconsin (discussing Chapter for the appropriate procedures which sets forth the forfeitures). Instead, trial court is per- "the collection [144.57] sec. mitted to use the limits provided on the facts of an forfeiture based appropriate fashion Id. at 735. The are some following the individual case." the circuit court should consider of the factors which added). Although (emphasis we reverse Brief 40-41 claim, identify Spills order on the Law we can the circuit court's claim that were left no additional defenses to the Law remanding this case unaddressed and which would necessitate for trial on that issue. *37 (1)
this case: with the DNR in Chrysler's cooperation far, River thus remediating Bark site including removal of the buried waste and drums remediation of (2) soil; of Chrysler's contaminated initiation reme- dial activities being without do so compelled judicial DNR via or administrative enforcement proce- (3) (4) dures; caused; the environmental harm and this degree Chrysler's culpability of in matter —not for in 1970, its violations of the Waste Law for its Solid but violations Law alone.
By the Court. —The order of court circuit in affirmed and reversed in The cause is part part. remanded to the court if fact-finding, circuit for further against and for the assessment necessary, penalties in a Chrysler Corporation manner consistent with this opinion. {concurring BABLITCH, 82. WILLIAM A. J.
¶ part dissenting part). I Because conclude court should extend the rule to actions Law, to enforce Wisconsin's Solid Waste I brought respectfully dissent. In 1970, Chrysler Corporation knowingly
violated the State’s law with solid respect disposal wastes. received the State Wisconsin Solid 1969) (effective Disposal May 1, Waste Standards on 15, did hauler December 1969 but not hire licensed until time in early regulations, some 1970s. Wis. Admin. Code ch. clearly unambiguously of solid waste such as required generators a) a licensed Chrysler dispose facility, of their waste: b)or licensed by a hauler. neither. Chrysler did *38 Instead, hired an unlicensed Chrysler 85.
¶ waste, of including to 400 drums transport hauler over substances, Evidence in the disposal. hazardous knew the that waste record indicates licensed, further knew hauler was not and disposal regulations that the forbade their activities. not and 86. The buried drums were unearthed
¶ I until 1992 when the site was excavated. discovered to injustice "[i]t the State that would be an agree with the of limitations to bar the State from statute apply defendants when the State had abso- prosecuting the identify violations, identify no the to lutely ability defendants, damage or to assess the to the environ- Brief at prior ment to discover barrels." State's 21-22. I I the discov- dissent because believe that rule to enforcement actions of the
ery apply should Solid Waste Law for in Wis. Stat. 144.43 provided § (1969) RD and Wis. Admin. Code 51.05-51.06. § rule Extending discovery is the result in this proper 1) because: of Solid and case violation Waste Law bears a far closer to an liability resultant resemblance of a tort of to which the analysis negligence, discovery analysis, rule than it does a contract applies, 2) the discovery which rule does not apply; applying of Solid fits discovery rule violations Waste Law with this rationale the dis- squarely extending court's Robins, Inc., to torts in Hansen v. A.H. rule 113 covery Dean, v. (1983), Spitler 550, Wis. 2d 335 578 N.W.2d v. and Borello 630, 436 (1989), 148 Wis. 2d N.W.2d 308 Co., U.S. Oil (1986); 130 Wis. 2d N.W.2d 3) violation of the Law Chrysler's Solid Waste includes similar to fraud —a cause of action to which the aspects 4) discovery rule other statutorily applies; states discovery have extended the rule to of enforcement similar environmental statutes.
I. rule to Extending discovery violations Law, of the Solid Stat. 144.43 Wis. Waste Admin. Code RD logical 51.05-51.06 is because §§ the close resemblance Solid violations Waste Law and resultant to a tort liability have classic declined to analysis. This court extend the case, holding rule to contract that a cause a action accrues when regardless the contract breached *39 of whether knew or should have known party See CLL v. Associates Arrowhead Pacific, breach. 174 (1993). 604, 617, 2d 497 Wis. N.W.2d 115 But a viola- tion the Solid Waste bears to a of Law no resemblance contract case. It bears striking negli- resemblance a gent tort case. 89. A is if per- liable person negligence
¶
son
a
he or she
duty,
duty,
has
breaches that
the breach
(cause-in-fact),
in
harm
public
fact causes
policy
See
not
preclude
liability.
considerations
do
imposing
Co.,
v.
Ins.
Pennsylvania Gen.
87
Morgan
Wis. 2d
(1979).
732-37,
¶ sin, had a of due to the whole duty care world. with an unlicensed Chrysler's contracting conduct — sub- containing to remove drums hazardous hauler stances, an unreasonable risk foreseeably created duty Chrysler's the citizens of the State of Wisconsin. codified as the Wis- to refrain from such conduct was Stat. and in consin Solid Law Wis. 144.43 Waste § RD as Admin. Code regulations promulgated §§ 51.05-51.06. its to the State duty breached it an unlicensed
Wisconsin and its citizens when hired Admin. hazardous waste hauler violation of Wis. The after Wis- Code RD 51.05. record shows that consin enacted the Solid Waste Law legislature regulations, Chrysler per- nonetheless promulgated a unlicensed hauler to contracting sisted with waste hazardous from its facility. remove waste is 93. The third law aspect negligence its care duty whether the defendant's breach of due left for the harm, generally jury. caused a question Legal negligence up cause in actions is made of two cause,' components, 'proximate cause-in-fact and policy [Citations omitted.] considerations. test negligence of cause-in-fact whether was producing injury. [Cita- factor' in 'substantial test, omitted.] tions can be Under there more *40 the contributing than one substantial factor same result and thus more than one cause-in-fact. (citations omitted). Morgan, 2d at 735 con- Chrysler's 94. "negligence," illegally ¶ turn, which, with an unlicensed hauler tracting site, the drums at an unlicensed was a sub- dumped stantial factor the harm —an producing nightmare. illegal environmental But for Chrysler's actions in 1970 and its continued failure to clean-up site, the the soil and water at ground the Bark River site free from would be contamination. 95. If the present case were one for negligence,
a court conclude might public policy precludes that holding even though Chrysler liable breached duty its by illegally hazardous waste and this dumping breach was cause-in-fact of the injury to environment.
Some of the public policy impos- reasons for not ing liability finding despite negligence of as a (1) producing substantial factor injury are: (2) injury negligence; is too remote from the or the injury wholly out of proportion culpabil- is too the (3) ity negligent tort-feasor; of in retrospect the or it appears highly extraordinary negli- too (4) harm; gence brought should have about or recovery of place because allowance would too negligent tort-feasor; unreasonable burden on the (5) recovery or because allowance be would too (6) likely claims; open way for fraudulent or recovery allowance of enter would a field that has just point. no stopping sensible (citations omitted). Id. at 737 Generally an appellate does court not address the issues before a public policy determines jury negligence and cause-in-fact " See id. However, issues. where the 'question is public policy fully presented by the complaint " demurrer,' the court may determine public policy Id. issue based on the pleadings. If the case were one for present negligence,
I believe none considerations public policy preclude holding Chrysler would liable. Chrysler's directly actions so caused the damage environmental that, even it was than 20 though years ago more when Law, Chrysler violated the Solid Waste injury not Chrysler's too remote from actions. Without regard *41 By Chrysler consequences, the law. con-
to the violated Chrysler tracting hauler, had to an unlicensed with might dump the hazardous that the hauler well realize evading thereby site, at state waste an unlicensed inspectors mechanisms. In retro- or other enforcement extraordinary spect, Chrysler's it not that actions is damage. Chrysler bring would about environmental containing drums, some hazardous allowed over dumped waste, waste Of at an unlicensed site. be course, age. this would cause environmental dam- over time Chrysler unduly
Holding not liable would be directly "responsible for the burdensome. was satisfactory transportation all collection and of solid premises." Admin. waste accumulated at § RD 51.05. Code
¶ 97. The Solid Waste Law enforcement action in present case a close resemblance to a classic bears negligence action; for the same reasons we chose to discovery adopt actions, rule tort we should adopt it here.
II.
Applying
discovery
¶ 98.
rule to
violations
squarely
Solid
Law fits
this court's
Wastе
with
discovery
adopting
Hansen,
rule for
rationale in
tort
of action. Violation of the Solid
Law
causes
Waste
negligence,
part
akin
as
I
so
tort
discussed
logically
dissent,
it
of this
follows
extend the
discovery
Solid
Law.
rule to violations
Waste
discovery
applies
rule
"all
tort
already governed
legisla-
by actions other than those
tively
discovery
Such
shall
created
rule.
tort claims
injury
on the date the
is discovered or
accrue
with
diligence
discovered,
reasonable
should be
whichever
Hansen,
occurs
113 Wis. 2d
560. The
first."
*42
rule requires
discovery
not
of
only
injury "but also that
the injury
probably
was
by
caused
defendant's con-
(footnote
Borello,
dúct or product."
¶ torts we recognized instances, because that in some "negligence may cause an which is injury initially Such latent. an not be injury may discovered until it is Hansen, a manifested at later date." 2d at 555. Not the discovery rule could have applying extremely results, harsh punishing victims for any blameless delay in a claim bringing rewarding while defendants barring meritorious claims. See id. by 556, 559.
Although theoretically a capable claim is of enforce- occurs, ment as soon as the as a injury practical a matter claim cannot be enforced the claim- until injury ant accompanying discovers and the right of action. In some cases the claim will be time discovered, barred before the harm is or be could making impossible injured party it for the to seek redress.
Id. at 559. Violations Wisconsin's Solid Waste Law
can as much just result latent as can be injury by caused a tort such as medical is a There malpractice. certain similarity between the to Mother Earth injury by illegally dumping caused drums of hazardous waste caused, to a injury an leav- person example, ing a in a as do sponge person during surgery. Just we not allow a negligent bury tort-feasor its mistake that the tort was liability ground on the
and escape late," a corpo- too should not allow discovered "too so we on the escape liability its waste bury rate citizen "too late." the violation discovered ground that was on this court's deсision in Chrysler relies rule CLL, 2d argue 174 Wis. to claims under the Solid Waste should not be extended State, in its enforce- Law. asserts claimant than a role, ment is more similar to a contract claimant. is not Chrysler also the State argues tort victim, tort but is more like a criminal hapless akin *43 to in that the State seeks prosecutor impose penalties The to the interest. protect public and forfeitures CLL an of this court example also cites as majority discovery to extend the rule. See declining majority op. at 148. the I that CLL is to inapposite pre- believe
¶ CLL, recognized the court that the sent case. In conflicting public policy Hansen court balanced the concerns raised statutes limitations and con- that meritorious tort claims cluded protecting stale or fraudulent outweighed preventing the policy CLL, 174 2d at 610 to Han- (referring claims. See 560). sen, 2d at The in CLL weighed 113 Wis. court in the contract con- policy these same considerations text and that favors the "public policy determined the contract of limitations current rule statute to run at the time of the breach." Id. at 611. begins Weighing policy these same considera- tions, I that a Solid Waste Law enforcement believe to and, action far more akin a tort than contract on is balance, favors the policy extending discovery public hand, is to rule. On one a statute limitations meant and fraudulent claims. discourage Corporate stale lost may destroyed personnel may records be be long gone. However, the under the test rule is plaintiff that the cause of action when the accrues dis- covers or should have discovered harm. State's enforcement action would barred if it be should have discovered the violation earlier and the of limi- statute expired. tations has in a Waste Also, Solid Law prove action, enforcement the State has the burden may allegations. simply its The State unable to be prove alleged if there violations is insufficient evi- long happened ago. dence because violation so competing public policy protecting ¶ 105. The diligent meritorious claimants who have been as possible. as When contracted with an unlicensed dumped hauler, in turn which hazardous waste at possibility an waste site, unlicensed there was no DNR could have detected violation absent some self-reporting actually or, outside action such as as impossible occurred, excavation of the waste site. It is inspect every for the acre of in the state DNR land possible monitor environmental violations. balance, State, 106. On which has been as
diligent possible, opportunity an as should have seek Chrysler's redress for violations Solid Waste Any Law. outcome result and other works harsh injustice on the State and its citizens. *44 Chrysler argues
¶ that the has control State to detect violations of the Solid Waste Law because it determine can needed to enforce the standards as law. authority promulgate While the State does the have necessary garner regulations, an not amount this does the similar which a control over risk of loss to that drafting contracting party and bene- has contract bargain. fiting from a action 108. A Solid Law enforcement is Waste agree-
nothing
A
"an
like a contract action.
contract is
183
which,
an
creates
or more persons
ment
two
between
Black's
thing."
to do a particular
to do or not
obligation
1990).
(6th
Under the Solid
ed.
Dictionary,
Law
at 322
any
between
Law,
agreement
parties.
there is no
Waste
obligation
have an
Rather,
Chrysler
such as
companies
because
thing
from
doing
particular
to do or refrain
enacting
by
expressed public policy
has
legislature
conduct.
certain
regarding
a statute
discovery
that the
argues
further
case,
govern-
to this
in which
should not apply
rule
the public
civil
because
requesting
penalties,
ment
is
statute of limitations
surrounding
concerns
policy
cases,
damages
cases than in
is different
in penalty
contrary,
public policies
as tort.1 To the
such
the same for all
of limitations
are
statutes
regarding
See,
American
Korth v.
e.g.,
statutes
of limitations.
Co.,
332, 340
494
Family Ins.
326,
115 Wis. 2d
N.W.2d
("[S]ec.
(1983)
893.54, the
statute of limita-
three-year
1
jurisdictions
applied
that have
Some federal
penalties
have declined
rule to an environmental action
civil
injunction. See
equitable
rule to the
relief of an
to extend the
519, 521
Engineers,
Supp.
969 F.
Army Corps
v. U.S.
Reichelt
(E.D.
(N.D.
Hobbs,
1406,
1996);
Supp.
736 F.
Ind.
U.S. v.
1990).
injunctive relief is
is a
Whether a claim for
barred
Va.
Reichelt, 969 F.
under the doctrine of laches. See
determined
requires
party
pur
if a
did not
Supp. at 521. "Lаches
dismissal
party
prejudiced." Id.
diligently
the case
and the other
is
sue
(citations
Hobbs,
(citing
omitted);
Supp.
736 F.
at 1410
see also
(1919)).
York,
City
250 U.S.
Benedict v.
Newof
request for relief
I need not determine whether the State's
injunction
the statute of limita-
in the form of an
is barred
under
injunctive
or doctrine of laches. The
relief available
tions
drums,
Law, cleaning
illegally dumped
up
the Solid
Waste
already
completed.
remediation left to be com-
has
been
contamination,
cleaning up
ground
the soil and
water
pleted,
Law.
actionable under Wisconsin
*45
is, like all statutes
tions,
limitations, designed ensure
prompt
litigation
valid claims and to protect
the defendant
from fraudulent or stale claims brought
after memories have faded or evidence has been lost."
added)). I
(emphasis
discern that Chrysler's assertion
stems from the fact that different statutes of limitation
to claims for
apply
penalties
claims for damages.
See, e.g., Open Pantry Food Marts v. Falcone, 92 Wis.
(Ct.
1979)
2d 807, 810-13,
ily
District of Columbia Circuit Court of Appeals'
decision in 3M Browner,
(D.C.
v.
plaintiffs
have a
tort claim
tenable
unless and
until
or harm. See
they have discovered their
injury
Hansen,
tenable claim Rather, the rule. discovery 1460. This is not F.3d at the adoption the statement of law without this is ("There- Hansen, 2d at 554 rule. See 113 Wis. discovery on the date of fore, held that tort claims accrue we have injury."). a the begun faulty premise, with Having 112.
¶
necessarily faulty.
of the 3M court is also
analysis
the
to the EPA's
to extend
proposal
3M court referred
rule to violations of the Toxic Substances
discovery
(TSCA)
of violation" rule
"discovery
Control Act
as
the
of
problem
whatever
to do with
"having nothing
The rationale
the
underlying
latent
injuries.
cannot
said
realistically
of
rule —that a claim
be
injury
harm —is
to accrue until
the claimant has suffered
3M,
See
III. A further extending discovery 115. basis for the ¶ rule to Solid Waste Law enforcement actions is that this akin fraud which closely case is cases to the is discovery statutorily applied. rule cases, statute of 116. In common law fraud the ¶ " '[w]hen limitations to run the information begins to the is such as to indi- brought aggrieved party home cate facts the can constituting where the fraud be . . .'" diligent discovered effectually upon inquiry. Haechler, 275, 278, Koehler 2d 133 N.W.2d v. (1965) (citation omitted). in Once a party pоsses- is would, sion of facts upon diligent essential that fraud, to make inquiry, duty disclose the has party If a diligent such See id. the fails to make inquiry. party time, within a reasonable the never- inquiry party he knowledge theless with of all facts which or charged she learned See id. may diligent have through inquiry. Hansen, Like rule articulated under discovery the in fraud, rule the cause of statutory discovery action and the begins accrues statute limitations run due dili- only plaintiff when discovers with gence could have discovered the or harm. See injury 2d at Koehler, 278; Hansen, 2d at 113 Wis. 560. 27 Wis. wisdom, in its extended The legislature, because, a party fraud where rule to discovery the injured false representation, makes a knowingly the falsehood way detecting has no generally party fortuitous event. by some except case, the State does not claim In this con- intentionally fraud; yet Chrysler knowingly a "see Taking waste hauler. tracted with an unlicensed it that evil, Chrysler argues hear no evil" approach, no waste, bury not the hauler would did know actions come Chrysler's perilously no fraud. But ergo an unlicensed fraud. contracted with Having close to unli- held to know that hauler, Chrysler should be the hazardous waste hauler well might dump censed landfill, unlicensed and that environ- unregulated, an I conclude that likely mental was the result. damage violating by hiring the mere fact of law knowingly Chrysler hauler should subject an unlicensed rule, if i.e., they as knew penalty, same should intentionally Chrysler hidden. being waste was escape held to know. should not be able be Far "they because didn't know." liability penalties did not they more is the plausible explanation want to know.
IV. the rule discovery an extension of Finally, ¶ mirror other to violations of the Solid Waste Law would rule to discovery have extended the jurisdictions which similar statutes. a Washington 120. The State of two- imposes actions in statute of limitations on environmental
year to a forfeiture or impose penalty. which the State seeks State, Ecology, Oil Co. v. 633 Refining Dept. See U.S. (Wash. 1981) to (referring P.2d Revised (RCW) 4.16.100(2)). Washington However, Code of the in provides rule that "a statute discovery Washington of limitations does not run until the begin plaintiff, reasonable would have the using diligence, discovered (citations Oil, U.S. P.2d cause of action." at 1333 omitted). Oil, In U.S. the state's Department Ecology (DOE) that U.S. Oil violated its waste dis- alleged undеr charge Washington the version of the permit (CWA). Clean Act The court concluded: Water discharges, Oil did properly report Since U.S. not its of the was DOE discovery delayed violations until reports suspected monitoring were inaccurate investigated. discovery rule, and a indus- Without discharge by failing and pollutants, tries can violation, report escape penalties. the can Id. at 1333-34. Hansen, Like this Washington court the
Supreme discovery by Court extended the rule balanc- raised statute of ing public the competing policies and claims limitations: stale fraudulent prohibiting meritorious "That test balancing claims. allowing has rule application [discovery] dictated to ascer- ability where the lacks the means or plaintiff has been committed." Id. at 1334. tain wrong that a [discovery] applied plain- [I]f the rule not were meaningful opportunity tiff would be denied . . case bring applying a suit. .Not rule penalize plaintiff would reward the clever of limi- purpose defendant. Neither for statutes justice is when runs tation nor served the statute concerning is in injury while the information the defendant's hands.
Id. enforce- rule environmental Applying ment from "discourages government actions
189 actions, while bringing pro- unreasonably delaying from an resulting from harm tecting public that could claims for violations inability prosecute v. Alumi- have been discovered." U.S. reasonably not (D.C. American, 824 F. Tex. num Co. of 646 Supp. Inc., 821 F. 1993) Properties, U.S. v. Winward (citing (N.D. 1993)). 690, 694 Ga. Supp. jurisdic- to several other 122. The State points rule discovery have extended
tions
See Public Interest
enforcement actions.
environmental
Termi-
Jersey
Duffryn
Research
New
v. Powell
Group of
(3rd
nals,
v.
Inc.,
U.S. Winward
1990);
alleged violations (CWA), and suit discovered usually entity bringing information through reported by the violations defendant, by reporting provisions as required Law, injury Like the Solid Waste an statute. Wisconsin an element of in the traditional sense of the word is not the Clean Water Act. Like the Wisconsin violating Law, Solid mere violation of the Clean Water Waste the statute. Act's enforcement of provisions triggers Law, enforcing Like the Wisconsin Solid Waste for violations of the Clean agency may impose penalties Law, Act. Like the Wisconsin Solid Waste viola- Water Act are difficult to discover tions of the Clean Water occurs. may long be discovered after violation However, in this case to majority's unlike the decision the Solid not extend the rule to violations of *50 discovery Law, federal Waste courts have extended the rule to violations of the Clean Water Act. "[A]
¶ 124. statute of limitations must be 'inter- preted light general purposes of the statute provisions, regard and other its and with due to those practical by any ends which are to be served limitation brought.'" of the time within which an action must be Supp. America, Aluminum Co. 824 F. at 644-45 (quoting Laboratories, United Inc., States v. Core (5th 1985)). Extending F.2d 481-82 Cir. the dis- covery rule to violations of the CWA is consistent with purpose "protect the Act's health, welfare, human discharge environment, and the to eliminate the of all pollutants to waters of the States, United and to physical, biological integrity chemical, restore the (citing of the Nation's waters." Id. at 645 33 USC 1251(a)). discovery entity rule, 125. Without the vio- lating inability the CWAwould benefit from the EPA's inspect immediately discover violations —a purposes result which would frustrate the of the CWA. polluters rule, See id. at 647. Without the encouraged would be to hide violations until the stat- expires. Supp. ute of limitations Reichelt, See 969 F. at Accordingly, a cause of action under the CWA for penalties civil does not accrue when violations of the actually occur, act but rather when the violations are e.g., Supp. See, Reichelt, 522; discovered. 969 F. at Alu- Supp. America, 647; Hobbs, minum Co. 824 F. Supp. F. at 1409. practically impossible It would have been for the plaintiff alleged have discovered the violations of only reports the defendant on its It are own. when public filed with the E.P.A. that becomes aware that violations occurred. have To hold that the stat- begins occur, ute to run actually when violations as discovered, opposed they impede, to when are would foreclose, if not the remedial benefits of the statute. Legal Supp. Found., Atlantic States 635 F. at 287-88 (citations omitted) (regarding citizens suit under the CWA). legislature expressed
¶ 126. The Wisconsin purpose of the Wisconsin Solid Waste Law in a State- Purposes enacting ment of Policies and included in the *51 statute:
(2) improper Inefficient and methods of waste disposal increasing have caused an pollution ever of air, our vital land and threatening water resources the utility of our resources and the quality of the in problems environment which we live. The of disposal endanger health, waste public safety the welfare, nuisances, and public create result in blight scenic adversely and affect land values. (3) air, The close interrelationship of land and pollution water requires prevent concerted action to worsening the of problems. these . . .Immediate remedial action protect is needed to our valuable resources.
(4) It is purpose the of this act to grant the necessary powers organize to a comprehensive pro- gram to enhance the quality, management and protection of the state's air and land resources. legislative § 1, 83, ch. Laws of 1967. This intent was repeated Department as a Preamble to the of Natural Disposal copy Resources Solid Standards, Waste of which on received December 1969. As expressed by legislature, purpose the of the Wis- prevent consin Solid Waste is to Law environmental pollution existing problems. and to remediate As the in Aluminum Co. America with expressed court CWA, rule to regard extending discovery of the Solid is consistent with the violations Waste Law statute's purpose. reasons, I 127. For all of the above respectfully
dissent to that that fails to part majority opinion rule to of the Wisconsin extend violations Solid Waste Law. (concurring in part GESKE, JANINE P. J. dissenting part). majority's holding I join Law, and I concur in the
with to the Solid Waste regard the Spills mandate remediation under Law. permitting the majority opinion holding I dissent to that part to actions the State Law is applicable for hazardous substance spills forfeitures impose caused in actions initially part by preced- which were date, the statute's effective and which continue ing after that date. This allows the State discharge holding for conduct that at the time legal actors was penalize violates, occurred, the Ex Post Facto my it view United States and Wisconsin clause Constitutions.18 *52 Stat. 144.43 1969, 129. In to Wis. pursuant §
(1967), Law, promulgated the Solid the DNR Waste provides: I Constitution Article of the United States Attainder, post .pass any Bill of ex facto Section 10. No State shall.. Contracts,
Law, grant any impairing Obligation of or Law Nobility. Title of provides: Article I of the Constitution Wisconsin Attainder; facto; post of attain- ex contracts. Section No bill law, obbgation der, any impairing post of ex facto nor law contracts, passed, shall work cor- shall ever be and no conviction ruption of blood or forfeiture estate. standards for the disposal of hazardous substances. rules made DNR owners and of a occupants prem- ises for the responsible collection of all solid waste accumulated and for the premises, waste's at a licensed In proper disposal facility. alternative, the owners could occupants arrange with licensed transporter their solid convey wastes to See proper facility. Wis. Admin. Code RD 51.05-.06 §§ (1969). Violators of the Solid Waste Law subject were (1969). to penalties, pursuant to Wis. Stat. 144.57 § 1970, For the first half of con- Chrysler tracted with Keller Transit to remove and dispose drums containing waste. Keller manufacturing was not a licensed transporter. Keller dumped buried the drums. Eight years later, Law, the Spills Wis. Stat. 144.76, effective, became providing § hav- persons ing possession of or control over a hazardous substance being or who cause discharged, a hazardous discharge, shall take actions necessary to restore the environment and to minimize the harmful effects of any discharge. Persons violating Spills Law were also subject the penalty provisions of Wis. Stat. 144.57. The drums buried Keller were not discovered until late 1992, and were found to have leaked hazardous sub- stances. The State seeks penalties against Chrysler for every day of violation of the Solid in 1970,2 Waste Law and for every day violation of the Spills Law since 21,1978. May
2There dispute is no permits the Solid Waste Law also the State to seek remediation of the site in the removing form of Beginning hazardous material. Chrysler in late exca vated the site and removed 401 drums. also soil, remediated the contaminated but thus far has not groundwater. remediated the contaminated *53 131. The holds that majority opinion "[a]s remediation, we conclude that the legislature intended the apply Spills Law As to retroactively. penalties forfeitures, we conclude that the of imрosition pen- alties this case does not constitute a retroactive of the application Spills Law." at 161-62. Majority op. inconsistent, These conclusions are at best. This is par- ticularly true when both to the same provisions apply conduct. I do not believe that the ade- majority has whether either the remedial the
quately analyzed or punitive of the Law can retro- portion Spills applied be under actively the test set out retroactivity analysis v. USI the United States Landgraf Court in Supreme Products, Film 511 244 (1994), U.S. as clarified by (1997).3 Lindh v. Murphy, 117 S. Ct. I 2059 believe that such an analysis would result the conclusion that intended the remedial legislature of the portion Spills Law to therefore I with apply retroactively, agree ultimate I majority's conclusion on that do point. believe, however, not such an analysis would result in the conclusion that intended legislature assessment penalty portion Law to conduct. the assertions of the apply past Despite deciding application penalty provision In retroactive, Spills Law in this case is not thus uncon is not stitutional, Products, majority quotes Landgraf v. USI Film (1994), operate U.S. 269-70 "a statute does not 'retro spectively' merely applied arising because it is in a case from enactment, antedating upsets expecta conduct the statute's Rather, prior tions based on law. the court must ask whether provision legal consequences the new attaches new to events completed single before its enactment." This reference to the retroactivity analysis Landgraf support the is insufficient majority's conclusion.
majority, penalties against Chrysler the it allows here pre-Spills conduct, are on and are based Law unconstitutional. Supreme recently
¶ 133. The Court described why our citizens and institutions disfavor retroactive application particularly impose laws, those which penalties: presumption against legislation
[T]he retroactive deeply jurisprudence, rooted in our embodies legal doctrine centuries than our Republic. older Elementary considerations of dictate that fairness opportunity individuals should have an to know what law is to conform their conduct accord- ingly; expectations lightly settled should not be disrupted. surprising . . .It is therefore not that the antiretroactivity principle expression finds in sev- provisions [national] eral of our . Constitution. . . provisions These demonstrate that retroactive stat- particular utes raise Legislature's concerns. The powers sweep away unmatched allow it to settled expectations suddenly and without individualized responsivity consideration. Its to political pressures poses may tempted a risk that it be to use retroac- legislation against tive as a means of retribution unpopular groups or individuals.... (1994) (citations
Landgraf,
¶ 134. The
as clarified
steps.
Lindh,
First,
involves three
the court must con-
legislature
clearly expressed
sider whether the
has
an
statutory
intention
text that the benefits of ret-
roactivity outweigh
disadvantages,
and that
apply
occurring
statute should
to conduct
before its
Landgraf,
enactment.
See
We have noted that the doctrine of interpreta See, e.g., apply procedural tion does not to or remedial statutes. Seamandel, Gutter v. 1, 17, 308 (1981); 103 Wis. 2d 403 N.W.2d Ins., Employers 154 224 Wis. 2d at n.21. "While statutes general prospectively are construed the rule is otherwise with operation statutes procedural whose or remedial. . . .'This statutes, doctrine. . .is not apply understood to remedial .only go rights already which. . to confirm existing and in fur remedy, by curing therance of the adding defects and to the enforcing existing obligations.'" Gutter, means of 2d at (citations omitted). 17-18 Procedural and remedial statutes are distinguished therefore from statutes that affect substantive See, e.g., Landgraf rights. the distinction made Court: "We have sometimes said that new 'remedial' statutes.. .should presumptively apply pending cases. While that statement remedies, holds for true some kinds of we have not classified a introducing damages liability statute as the sort of 'remedial' case, concedes that majority application affirm- necessarily Chrysler's past Law involves Spills ative conduct of its hazardous waste to an surrendering 137,141. majority unlicensed hauler. See op. is no that the dispute 135. As a first there step, clearly Wisconsin did not an intent legislature express Law be con- Spills applied pre-enactment duct.5 Nor does the forfeitures provision applicable address Spills expressly retroactivity.6 Law violations Thus, the next in the step Landgraf analy- application Spills sis is to determine whether majority Law will have-a retroactive effect. The denies change presumptively apply pending that should cases." 511 U.S. at 285 n.37. Law, Spills imposes liability
I conclude that the as it for restoration or remediation of environmental contamination and forfeitures, penalties rights. or affects substantive Effective 21,1978 May imposed obligation persons possessing it a new on controlling Therefore, causing discharge. or or a hazardous merely procedural affecting remedy. Law is not or (1977) (1) spills. Wis. Stat. 144.76 Hazardous substance DEFINITIONS. As used in this section: (a) means, to, "Discharge" spilling, leaking, but is not limited pumping, pouring, emitting, emptying dumping. (b) meaning given "Hazardous substance" has the under s. *56 144.30(10). (3) having possession RESPONSIBILITY. Persons of or con- being discharged,
trol over a hazardous substance or who cause a discharge, necessary hazardous shall take the actions to restore practicable the environment to the extent and minimize the harm- any discharge air, ful from effects to the lands or waters of this state. 6 (1969) Any person § Wis. Stat. 144.57 Penalties. who violates fails, chapter, neglects obey any genеral this or who or refuses to special department, order of the shall $10 forfeit not less than $5,000, violation, nor more than for each failure or refusal. Each day separate of continued violation is a offense. of the Spills of the forfeiture provision that application a retroactive effect based on Law to will have in Stat. of the verb "causes" Wis. its interpretation 144.76(3). the "causes" is not defined Because verb § Law, statutory invokes rules of majority the Spills and ordinary to determine the common construction so, In first doing majority of "causes." meaning 144.76. of Wis. Stat. purpose considers 137. This court has said that purpose minimize, and, necessary, if Law is to "prevent, this state's envi contamination remedy abate of hazardous by discharges ronment. . .caused Mauthe, State v. 288, 299, 2d substances." (1985); also see Wis. Stat. § 144.025;7 N.W.2d 871 statement of 144.76. The contends majority the legisla the conclusion compels alone purpose "causes" to include both ture intended the verb an act leads to a and omission of which commission See at 169. But spill. majority op. hazardous waste does statutory purpose remediation as a identifying to remediate" into Wis. not, facto, insert "failure ipso does a 144.76(3), Nor liability provision. Stat. § necessarily absolve legislative purpose statement of taint. "It will be frequently of an ex facto post statute of a new statute . .that retroactive application true. fully. more That considera purpose would vindicate its tion, however, is not sufficient to rebut 114 S. retroactivity." Landgraf, against presumption Ct. at 285-86. 144.025, policy purpose the statement of
7Wis. Stat. § pursuant and orders states that this act and rules for ch. objectives liberally policy in favor of the it shall be construed statutes, requiring such as those agree I that remedial the act. liberally property, can be con of contaminated restoration statutes, contrast, strictly are construed. Punitive strued. *57 138. The majority consults a to legal dictionary ascertain the meaning verb "causes." Normally, construction, our rules of statutory which seek to ascer- tain the common and ordinary meaning term, of a look general dictionaries of the English language. For instance, in the American Heritage Dictionary 305, the verb "cause" is defined as for; To be the cause of or reason result in. 2. To
bring about or compel by authority or force: The moderator causing invoked rule the debate to be ended.
The difference between an ordinary dictionary defini-
tion of
"cause,"
the verb
and the definition found in a
legal dictionary may be minor. But the
com-
majority
bines the law dictionary
definitions
both the verb
"cause" and the noun "cause" to reach its conclusion
that Chrysler's
failure
act,
more than eight years
after delivering its waste
Keller,
can be a reason for
the condition of discharge
on the
existing
Bark River
site today.
Enhancing
definition of the verb with
the definition of the noun enables the
majority
put
144.76(3)
verb "causes" as used in Wis. Stat.
on a
timeless continuum.
In addition,
the majority blends
Mauthe's conclusion that conscious human conduct
not needed to comport with the definition of "dis-
into
charge"
a conclusion
conscious human
conduct
is not needed to fit
the liability provision
"causes a discharge." See majority
at 170.
op.
139. Moreover,
brief
majority's
effort at
statutory construction does not take
the canon
up
when
determining
of a
meaning
single word phrase,
the word or phrase should be viewed in light of
the entire statute. See State
Sweat,
v.
Wis. 2d
(1997).
416,
¶ § vides: DISCHARGE, (a) OF depart-
"PREVENTION The may ment that require preventive measures be person possessing having or control by any taken over hazardous substances when it finds: discharges person this
. . .2. Past indicate existing control measures are inadequate added.) in preventing discharges." (Emphasis 144.76(7)(b) addition, In Wis. Stat. provides: § person causing The discharge shall reimburse the department necessary expenses for actual and incurred in carrying out its duties under this sub- added.) (Emphasis section. (9)(c)
Subsection Law also in con- speaks terms: temporaneous "Any person discharging with or under permit approved chapter exempted from the of this reporting penalty requirements 144.76(10)(b) section." Wis. Stat. directs Finally, § that:
"Anyperson discharges who substance, a hazardous the responsibilities discharge where for such a are prescribed by statute other than ss. 144.60 to 144.74, subject penalty shall be to the under either this section or the other section but not both." 141. All referenced subsections spеak control, active terms or persons about who or possess cause, who hazardous of those discharges. Application subsections would not have a retroactive effect. How-
ever, under the majority's application of Wis. Stat. 144.76(3) Chrysler, subsection does have retroactive effect. 142. Landgraf reminds us that the Court has
"strictly construed the Ex Post Facto Clause to prohibit application new statutes creating increasing pun- ishments after the fact." 511 U.S. 275 n.28. In this case, the State seeks to recover from penalties Chrysler. concedes majority that "authorization of penalties $5,000 up serves, per day at least in part, *59 to punish offenders of the Solid Waste Law."8 Majority at 153-54. In op. my view, by applying the Spills Law to Chrysler, the State seeks to create or increase punish- ment after the fact. Chrysler's only conduct in this case occurred in 1970. Under the majority's reasoning, Chrysler will pay Law Spills forfeitures for action it took eight years before the law was enacted.9 143. The relies majority on the continuing nature aof discharge to avoid invocation of ex post facto: "In case, nature of a ongoing hazardous substance spill eliminates any concern that the State seeks to 'impose new or duty' 'attach new legal conse-
8Violations of both the Solid Waste Law and Spills Law subject penalties were or provided by forfeitures as Wis. Stat. 144.57, subsequent or a § version of the same statute. See majority op. at 141.
9 I perplexed by am majority's conclusion, despite Chrysler's penalties assertion that cannot be assessed under Spills Law until a affirmatively defendant declines to action, (the undertake remedial plain reading that "a stat utes) illustrates that a de violation of the Law is facto trigger penalties." sufficient to Majority op. at 145 (empha n.13 added). sis If de literal, violation means a in fact or actual facto violation, how is description Chrysler's different from interpretation? to events
quences' completed before the effective date of the Spills Law." at 172. But the Majority op. federal environmental case cited law makes a majority distinction between remedial or prospective injunctive relief, and the retroactive imposition compensatory or punitive sаnctions. cites United v. States Dia 144. The majority Shamrock,
mond 17 E.R.C. 12 Envtl. L. Rep. (N.D. 20, 819 1981), Ohio where a district court consid ered a motion under summary judgment 6973 of the § (RCRA). Resource and Recovery Conservation Act defendant asserted that it as to antecedent applied acts, the RCRA provision was retroactive. unlawfully The district court disagreed, citing legislative history RCRA characterizing particular as provision "designed to abate and conditions consti remedy which tute imminent hazards to health or the environment. Its focus is on the of condi prevention amelioration tions, rather than the cessation of any particular affirmative human conduct." 12 L. Rep. Envtl. 20822. The Diamond Shamrock court concluded that relief, because "as provided injunctive relief," it was not opposed compensatory punitive impermissibly retroactive. See id. *60 145. The majority essentially this dis- ignores by the Diamond Shamrock court
tinction in the remainder of its discussion of for Law penalties In avoiding violation. over- analysis, majority looks fact presumption against is retroactivity strongest when the application law results in punishment.10
10
parties'
majority opinion
The
briefs and the
to some
analysis
imposes
extent blend the
of whether a statute which
past
specific prohibi
sanctions for
conduct violates either the
against
laws,
general
post
presumption
tion
ex
facto
or the
ongoing
Despite
nature of a hazardous
discharge, Chrysler's
case,
in this
unlike the
conduct
post
"An ex
facto
against retroactivity. This court said that
law
imposes punishment
is one
for an act which was not
which
imposes an
punishable at the time it was committed or
addi-
punishment
prescribed. [This]
tional
to that then
constitutional
appl[ies] only
impose penalties."
provision!)
to statutes which
Bd.,
Bingo Sup.
Equip.
Bingo
Wis.
&
Co. v.
Control
88 Wis. 2d
(1979) (citations omitted).
293, 304-05,
More
this court adhered to the United States
Supreme
post
an
Court's definition of
ex
facto law as one which
"punishes
committed,
рreviously
as a crime an act
which was
done;
innocent
pun
when
which makes more burdensome the
crime,
commission,
ishment
a
deprives
after its
or
one
which
charged
any
according
with crime of
defense available
to law at
Thiel,
the time when the act was committed.
. . ." State v.
695, 703,
(1994),
Wis. 2d
quoting
Shirley S. Abrahamson and Justice Ann Walsh Brad- ley join in this opinion. any punishment penalty and relates to acts which are not necessarily delineated as criminal.
Id. 11Indeed, majority opines "Chrysler when caused discharge Spills at issue after the Law took effect in irrespective Chrysler's date," prior majority activities to that op. added), (emphasis at 173 it unleashes Law forfeiture liability anyone groundwater on who failed to restore land or discharge. majority's contaminated a hazardous follow ing statement, Chrysler generated that "because the hazardous substances, discharge by failing and caused their after 1978 remediate, it is liability liable ..." does not re-tether to the terms of the statute.