*1 circuit testimony court could have taken additional offering parties did not state reason for not an opportunity put charge. in evidence on the amended We that under conclude these circumstances the circuit parties op- court erred when it failed to offer the portunity to submit additional evidence to ensure parties opportunity have a full to be heard on litigated. issues stated,
For the reasons we reverse decision of the appeals court of and remand the cause to the circuit court for trial. a new
By the Court. —The appeals decision the court of reversed cause remanded circuit court for a new trial. ; Inc. Door Decade,
Wisconsin’s Environmental County Inc.; Council, The Gibraltar Property Township Association, Inc.; Owners Petitioners-Respondents,† Michigan Federation, Inc., Lake v
. Department Industry, Relations, Labor & Human Wisconsin, Appellant.
State
Supreme Court Argued No. October 1981. Decided December 81-954. 1981.
(Also reported 749.) in 312 N.W.2d denied, costs, January Motion reconsideration † without II,1982. Abrahamson, J., part. took no *2 appellant by For the there Arvid were briefs A. Sather argu- Michael, and Best of Madison, Friedrich & oral by ment Mr. Sather. joint respondents
For the there was a brief Kath- Falk, Madison, leen M. Wisconsin’s Inc., Decade, Brady Follette, C. Williamson and La Sinykin, Madison, Anderson & Munson of for other re- argument by spondents, with oral Ms. Falk Mr. Wil- liamson. Englund
Amicus Curiae brief was filed Eric Madison, Society for Wisconsin of Architects and others. joint
A amicus brief R. curiae was filed Donald Grant, Cohen, Zuidmulder, Naze Zuidmulder & *3 Gazely, Ltd., Ray, League Green for of Voters Women Appleton, others, Peter A. Peshek and Madison, Thomas J. Dawson of for Public Wisconsin Intervenor.
Amicus Curiae Uelmen, brief was filed David Leo Goldberg, Frederick Perillo Previant, Uelman, Gratz, Miller, Levy Brueggeman, S.C., Milwaukee, & for Mil- Building wáukee and Construction Trades Council.
DAY, This J. is a review of an order the circuit county, court for Dane JONES, P. presiding. CHARLES The issue in this case is whether the Wisconsin En- Policy (WEPA), vironmental 1979, Act sec. 1.11, Stats. requires Department of Industry, Labor and Human (DILHR), Relations to take environmental factors into reviewing plans account when building project of a compliance. for code that, We conclude while re- quires DILHR to consider environmental factors when promulgating building codes, apply WEPA does not approval individual code decisions. 1978, Building Corporation
In the James (James) an- plans nounced to build one hundred condominium units unincorporated village Creek, in Fish an in Door Coun- ty, provided sewage plans for a Wisconsin. treat- Bay. facility empty This ment which would into Green system required permits Depart- a number of from the Resources, (DNR). prepared an ment of Natural DNR screening (EASW) worksheet environmental assessment im- project on that an environmental and concluded necessary. pact (EIS) was not statement including opposed project, some of the
Persons to the action, respondents a lawsuit in this commenced seeking county court, de- Door circuit to have the DNR county Door circuit court issued cision reversed. The project stay ordering proceedings DNR halt all stay re- on the merits. That until reached decision mains in effect. 1980, plans September submitted James
On holding providing 186,750-gallon tank as for a DILHR holding sewage disposal. A method alternative temporarily. sewage, not but stores it tank does treat Holding 62-63, H Wis. must chs. tanks comply require Code, approval. Adm. but do DNR not initially plans, but, re- approved after DILHR objections including ceiving parties re- from interested holding approval tank rescinded its since the spondents, require- plain was in a but did meet code flood holding plains. in flood submit- for tanks James ments 250,000-gallon plans, providing for a ted new placed plain, of the flood on October tank to be outside petitioned Respondents declara- 1980. *4 tory ruling compliance applied to code that WEPA hearing. DILHR a contested case decision and asked for 11, 1980, ap- requests on November denied these proved 17,1980. plans James’ on November 10, petition in 1980, respondents filed a
On December county approv- DILHR’s court review of Dane circuit for January 6, 1981, a motion filed plans, al of the on plans. stay approval On Janu- for of DILHR’s Judge county P. Charles 16, 1981, circuit court ary Dane halting The cir- granted stay, construction. Jones 644
cuit court issued its memorandum decision and
order
April 20,1981, holding
apply
did
to DILHR’s
WEPA
compliance
remanding
code
review and
the case to
compliance.
petitioned
DILHR for
WEPA
this
bypass
court
appeals,
808.05(1),
court
sec.
granted
petition
by
Stats. 1979-80. The
was
court.
this
DILHR’s decision not to conduct an environmental
in-
quiry
reviewing
project’s
plans
when
tank
compliance
policy
apply-
code
was a result of its
ing
rulemaking process
to its
but not to
code
its
Interpretation
review
stat-
decisions.
by
agency
ute
an administrative
conclusion
law
may
independently
supreme
reviewed
Bucyrus-Erie
Dept.,
court.
Co. v. ILHR
90 Wis. 2d
However,
(1979).
The test as to impact study whether an environmental essentially should be conducted is one of reasonableness good faith, Wisconsin’s Environmental Decade v. Public Commission, Service 409, 421-423, 79 Wis. 2d (1977). Accordingly, N.W.2d 149 the method which an administrative comply chooses to WEPA’s mandate that take environmental factors into undertaking statutory account when its duties should light if that affirmed method is a reasonable one *5 645 agency’s purposes functions and and the the WEPA duties. agencies the environ- requires that state review significant- may consequences of decisions which
mental ly quality of human environment.1 affect the the impact. of environmental “1.11. Governmental consideration pos legislature that, extent to the fullest authorizes and directs : sible interpreted policies regulations “(1) and ad- shall and policies set forth in this section in accordance with the ministered 1; chapter and and laws of section agencies Except provided 145.022, “(2) of the state in s. all as shall: report proposals “(c) every Include in recommendation major significantly affecting legislation the and other actions statement, quality environment, substan- of the human a detailed tially following guidelines council issued the United States 4331, by quality 91-190, on environmental under P.L. 42 U.S.C. responsible official on: impact proposed action; “1. The environmental of the Any “2. environmental which cannot be avoided adverse effects proposal implemented; should the proposed action; “3. Alternatives to the relationship “4. The local en- between short-term use man’s long-term vironment maintenance and enhancement of productivity; and Any “5. irreversible and irretrievable commitments resources proposed imple- would be involved action should it be ; mented “6. Such statement shall also contain details of the benefit aspects proposed project, long term, both short term and advantages disadvantages proposal. the economic “(d) any making statement, responsible Prior to detailed any official shall consult with and obtain the comments of jurisdiction special expertise respect which has Copies involved. of such statement appropriate agencies, comments and views which are au- develop thorized and enforce environmental standards shall be governor, department made available to the of natural re- public. Every proposal sources legislation and to the other than for public hearing shall receive a before a final decision is made. Holding public hearing required by as another statute fulfills public hearing this no section. If required, respon- otherwise *6 order, Order,
In an executive Revised 1976, entitled Implementation The Wisconsin Guidelines For Of Policy Act, (Feb- Environmental Order 26 Executive No. categor- ruary 1976), agencies 12, all to instructed state according to the they ize the make decisions which they require their review of en- will likelihood consequences. vironmental mandate, apply fulfill DILHR decided to
To WEPA’s necessary, review, including and, if an EASW hearing hold Notice of sible shall the area affected. notice, hearing given by publishing 1 ch. class under shall covering days prior 986, newspaper hearing at least 16 proposal significance, If area. has state-wide affected published newspaper; notice shall be in the official state “(e) develop, appropriate Study, describe and alternatives any proposal recommended courses of action which involves un- concerning conflicts re- resolved alternative uses of available ; sources “(h) ecological planning Initiate and utilize information in the development projects. and of resource-oriented “(3) agencies statutory present All state shall review their au- thority, regulations, policies proce- administrative and current and purpose determining any dures for the whether there are defi- prohibit ciencies inconsistencies therein which full purposes provisions chapter 274, with and of this section and propose laws 1 governor section and shall to the not later July 1, 1972, may necessary than bring such measures as authority policies their conformity intent, pur- into with the poses, procedures set chapter 274, forth in this section and laws of section 1. “(4) Nothing specific in this section statutory affects the obli- gations any agency; “(a) comply To criteria standards of environmental quality; “(b) To coordinate any or consult with other state or federal agency; or “(c) act, To acting contingent or refrain from upon the recom- mendations or certification of other agency. state or federal “(6) policies goals set forth supple- in this section are mentary to set existing those forth in agencies.” authorization of
647 process promulgation but not to code EIS, code to the compliance review.2 adoption and enforce- responsible for the
DILHR is electrical, ventilation, heating, air con- building, ment of ditioning 145.01 plumbing Pursuant to secs. codes.3 permits per 12,000-building approximately DILHR reviews passed WEPA, provided year. legislature no addi When agencies appropriations func fulfill their WEPA tional to state attempts agencies get funding Subsequent for WEPA tions. Hanson, Agency proved De- J. duties have also cisionmaking unsuccessful. See Policy Act, Under The Wisconsin 126-128, Ill, Wis. L. Rev. 159-161. *7 dispute, asserted, respondents did not and building applied con- promulgation codes. EASWs to its of was cerning plumbing apply were tanks the codes which 63, by 1980, concerning prepared 9, ch. H Wis. DILHR on June (1980) September concern- DH&SS on Code and Adm. ing 62.20, (1975). sec. H Adm. Wis. Code 3 jurisdiction department. Powers, of It shall “101.02. duties and jurisdic duty power, department, be the of the and it have shall authority: tion and adopt regulations “(1) proper rela- To and rules and reasonable powers proper rules tive to the exercise of its and authorities and govern proceedings regulate of its mode manner and to the and investigations hearings. all and . . . “(15) (a) department supervision every The such em- has of ployment, place employment public building of and in state as this necessary adequately to enforce and administer all laws and all requiring employment, employment lawful place orders such or of public building safe, life, requiring protection to be and the of health, safety every employe employment and welfare of in such- or place employment every frequenter place of employ- and of such of safety public ment any public and the or tenants in such building. . . . “(j) ascertain, To standards, fix and order such reasonable rules regulations or repair construction, for the and maintenance of places employment public buildings, of and as shall them render safe.” Approval inspection public buildings places “101.12 and of and employment components. of (1) department and require The shall drawings, the submission specifications of essential calculations and public public buildings, for places employment. structures and . . of responsible
(5) 145.02, 1979-80, and DILHR is Stats. general supervision plumbing construction, instal- for of 145.02(3) (d) authorizes lation and maintenance.4 Sec. “(2) components buildings, be and shall of said structures Plans department and a examined with for the rules designer and owner statement of examination returned Nothing before construction is in this section relieve shall started. designer building, responsibility designing a safe component.” structure or Promulgation plumbers’ plumbing “145.13 code. The state adopted by department code and amendments thereto have as applica- form the effect of law in the standards state-wide public, apply types buildings, private tion and or shall urban, to all including buildings rural or political owned the state plumbing subdivision thereof. All shall so installations practicable far as made conform such code.” building, heating, air-conditioning The ventilation and are codes 50-64, in Chs. E. Ind. Wis. Admin. Code. The electrical code is .1-145, plumbing sec. Chs. Admin. Wis. Code code is con- 62-63, tained in HChs. Wis. Admin. Code. Department. ‘Department’ (5) “145.01. Definitions. ... department industry, means the labor and human relations.” department. construction, (1) “145.02. Powers of installa- plumbing buildings tion and maintenance of in connection with all state, including buildings any political this owned state thereof, safe, sanitary subdivision shall as to and such safe- guard public health. “(2) department general supervision shall have of all such plumbing public shall hearing prescribe after publish *8 enforce reasonable standards therefor which shall be uniform and practicable. of Any state-wide concern employe desig- so far as department may department nated act for the public hearing. such “(3) department may The powers exercise such as are reason- ably necessary carry provisions chapter. out the may, of this It among things: other . . . “(d) Prepare printed and cause to codes, such bulletins or may necessary other documents as copies and furnish thereof to engaged plumbing those request. in the public upon business and to the . . . “(f) special directing Issue orders requiring and with the department and rules standards of the promulgated under chapter whenever, judgment this department, or rules standards violation, are threatened with being are vio-
649 plumbing promulgate codes. codes DILHR When the adopted revised, applies man- are the WEPA part process review as a dated environmental rulemaking pursuant procedure which it undertakes 227, ch. Stats. 227.011-227.029, Stats., provide comprehensive
Secs. rulemaking. may Persons for administrative framework petition adopt, repeal or revise a rule.5 prepared,6 are and the rule is submit Fiscal estimates legislative form, validity.7 and council for need ted to Hearings held,8 proper are for which notice must be governed by given9 of which is statute.10 the conduct legisla to the proposed rules then submitted The are 11 go they published12 into effect. before ture rulemaking procedures seem to administrative The hearing consultation, provision parallel of notice organizations opinions as to with Persons WEPA.13 views of a rule can make their effect rulemaking procedure body, ch. 227 and the known to the any county where The circuit court for lated or have been violated. jurisdiction to enforce the of such an order occurs has violation attorney injunctive appropriate other relief. order county general attorney of where the violation or the district bring shall action for its enforcement. of the order occurs department may paragraph issue an order under this to abate violation s. 146.13 or 146.14. “(g) rule, approval plans By fix fees for examination and systems plumbing collect the same.” April 29, 1980, 221, Prior to the effective date of ch. Laws 1979, relating plumbing functions to the rested the De- code partment Services, (DH&SS), see Health and Social ch. section Laws of 1979. 227.015, 1979-80. 5 Section Stats. 6 227.019, Section Stats. 1979-80. 7 227.029, Section Stats. 1979-80. 8 227.02, Section Stats. 1979-80. 9 227.021, Section Stats. 1979-80. 1 0 227.022, Section Stats. 1979-80. 1 1 227.018, Section Stats. 1979-80. 227.025, Section Stats. 1979-80. . 1.11(2) (d), section Stats. See 1979-80 *9 650
provides comprehensive a framework for consideration of environmental factors.
Assuming, deciding, without that DILHR has au- thority apply compliance to WEPA considerations to code reviews,14 question complied Has is: with applying provisions only promul- its its code WEPA gation functions. DILHR has in focused effect its en- program policy vironmental review on the level rather specific project analysis than the level. mode of This provides review, scale, on a broad decisions individually might which be overlooked as environmental- insignificant.15 ly It also assures that environmental significant considerations are taken into account before expended project. resources are on a compel DILHR, conclude WEPA does not
We which complied rulemaking process, has WEPA apply compliance also review to code WEPA decisions. Building codes are contained INd. Chs. 50-64 and 62-63, They H Adm. Wis. Code. contain detailed and comprehensive specifications which must be adhered to permit may provides before 50.14 issued.. Sec. INd. permit construction, may for an interim to start which department upon submission, prior be issued but approval, plans. While someone who starts upon permit construction based the interim runs the risk department may approve not plans, this specificity risk is minimized codes, enable the builder has diligently incorporated who provisions plans work, code into his to start confident plans approved. will authority legis Such would seem to be inconsistent with the delegate lative authorization for DILHR to code review government, subject function local units of which are matter, infra, opinion. WEPA. See discussion this in this Hanson, Agency WEPA, Decisions See J. Under L. 1977 Wis. 166-179, Ill, program- Rev. which advocates an use increased specific project rather than wide review.
651 12,000- has DILHR estimated that makes around year. compliance Respondents a did not code decisions issue with on such a scale take this assessment. Review possible of the is because detail codes. by
straight
nondiscretionary process
which
forward and
plans
compliance was
are reviewed for code
commented
190-191,
State,
v.
by
181,
this court Dunn
in
125
Wis.
(1905)
that the Pabst permit bottling exercise involved no a of erect this house building inspector. by discretion the accused as Pabst, upon trial, that the informed He Mr. insisted grant for, permit applied the because he could building specifications obviously plans and violated regulations in that floor areas within city, per- largely of what specified walls in was were excess by regulations; nor does the mitted and such allowed plaintiff fact, build tions submitted. Under dispute in that such was the error claim but granted to permit properly be and that no could specifica- pursuant plans and the structure to the circumstances these facts and question apparent it is no of discretion arose that passing upon building, application permit erect this . .” . jurisdictions person have held who re- Other building plumbing permit fused a is entitled to a writ compelling permit if of mandamus issuance project complied applicable shows he This reflects the role of as detailed norms codes.16 codes incorporate project a builder into a rather must guide policy than as nebulous indicators social 16 Stenman, 543, v. App. 67, Munns 76 Cal. 2d 314 P.2d 152 Chotkowski, 266, 286, v. Supp. Timko (1957); 26 220 Conn. A.2d Dept. Walker, Health (1966); 512, State v. 238 Md. 209 A.2d 289 Fellsway Realty Corp. Building Med (1965); v. Comr. 555, 561 Berry Embrey, ford, v. 471, (1955); Mass. 125 N.E.2d 238 332 791 Vagnoni Brady, 819, 165, v. (1960); Pa. 120 2d 168 420 Miss. So. generally, Zoning C.J.S., (1976). See A.2d 101A 218 237 Planning, McQuillin, Law Munici (1979); Land Section 295b Corporations (3rd ed.), pal 26.206, (1978). Sections 26.221 determining
quasi-adjudicative maker decision building project. worth aof policy by DILHR,
Incorporation of social values such promul WEPA, is here done code as those reflected gation policy compliance than review. This rather code 50.21-22, Code reflected Sections INd. Adm. Wis. delegated (1980),17 has code wherein municipalities. by its terms review certain agencies. Local deci applies only decisions state *11 city approval. Draw examination and “INd. First class 60.21 buildings ings, specifications struc for and and calculations all tures, except structures, buildings to be con state-owned and city to of shall be structed within the limits Milwaukee submitted Milwaukee, ap inspector buildings, and the proval.” for examination approval. Draw- “INd. 50.22 examination and Certified cities specifications buildings ings, all and and calculations for new containing 50,000 structures volume less than cubic feet total and buildings containing 100,000 alterations than feet to cubic less volume, except structures, buildings total state-owned and shall be by department to submitted approval according for cities certified examination and requirements speci- Drawings, to of this code. fications and calculations to submitted said cities for examination approval department. and not need be submitted to The build- ings city city.” must be located within the limits of the certified authority delegate by provided DILHR’s this function is for 101.12(3) (a) (b), Sec. and Stats. which reads: Approval inspection public “101.12. buildings places and and employment components. (3) department and ... shall: “(a) Accept the drawings, examination of essential calculations specifications performed in (1) accordance with sub. cities provided of the 1st class ap- the same are examined in a manner proved by department. “(b) Accept the drawings, examination of essential calculations specifications (1) buildings accordance with for sub. con- taining 50,000 less than cubic feet of volume and alterations to buildings containing 100,000 less per- than cubic feet of volume formed provided cities of the 2nd and 3rd class the same are approved examined a manner department. depart- ment shall certify determine competency of all such ex- aminers.” 65.25(2) Section (d), H (1979), provides Wis. Admin. Code for a delegation similar plumbing compliance code review. scope. sions are outside of its If were in WEPA terpreted apply compliance process, to the code review applicants building permits municipalities in the delegated review, whom DILHR code would be sub not jected provisions.18 to its This would defeat the state goal underlying building uniformity wide the state code,19 Policy envisioned compliance In Act. contrast to code review, all code promulgation is at done the statewide level and considera tion of at not uni WEPA this level would undermine formity. application promulgation
DILHR’s code compliance review and not code is consistent prior interpretations of Environ- In Wisconsin’s WEPA. Decade, supra,
mental did not re- we held that WEPA quire specific program one mode of and that merely wide, generic, ac- statements were ceptable, may preferable but certain situations. possibility are not insensitive to the “[W]e may complex
environmental comprehensive sume considerable issues in fact be and that might issues con- consideration of these time. We have indicated *12 18 plumbing code, 63.18(2), (1980), H The See. Wis. Adm. Code permits prohibit government local units to construction of holding tanks within their boundaries. holding Holding “H 63.18 tanks. (2) ... PROHIBITING tanks. Holding may county prohibited by for new tanks construction be county holding If the ordinance. allows the new use of tanks for construction, may by city, prohibited village, then such use or governmental prohibits holding town ordinance. If a unit tanks construction, governmental for new provide then the unit shall an appeal procedure prohibition. county board, city to this The coun- cil, village designated or board town board or committee governmental may unit, grant such variances their tank prohibition. county, city, village or town shall inform the de- partment writing in of each variance.” 19 See, Building Reducing Diversity Note: Codes: And Facilitat ing Amending Process, Legis. (1968) 5 Harv. J. 587 for dis statewide, building cussion of the local, benefits of rather than codes.
654 1.11, Stats., inherently obligations imposed sec. are not discretionary However, we think an or flexible. possesses precise as a reasonable amount of discretion compliance think mode is effected. We developing a such discretion includes the Commission’s generic proceedings. ‘programmatic’ In- for rate EIS case-by-case approach project-by-project deed, the required question the threshold of whether an EIS is may En- in certain areas too limited.” Wisconsin’s Decade, supra, vironmental 79 2d at 439. Wis. Agency in discretion its mode of WEPA Krause, DNR, emphasized was Inc. v. 85 Holtz & Wis. (1978), 2d in which court N.W.2d this an in- found no where DNR conducted WEPA violation equivalent” quiry which EIS. was the “functional applying We hold that DILHR in to its code promulgation com- function not to individual code pliance requirements review to the conforms Policy conclude that DILHR Act. We sewage approving was not in act in violation of that holding tank at issue here.
By the remanded Court. —Order reversed cause complaint. directions dismiss the J., Abrahamson, part. took no (dissenting). respectfully
HEFFERNAN, I dis- J. reversing agree majority in with the conclusion of the By doing judgment it vitiates court. so of the trial 1.11, Stats.) (sec. Act the Environmental Protection sorry Depart- approves record of Wisconsin (DILHR) Human Relations Industry, Labor and ment of legislative mandates, refusing with the to conform designed protect orders, guidelines executive act. administration and to facilitate environment were ludicrous position fatuous as to be is so DILHR’s *13 appears to have convinced it not fact that it for the majority is lawful. that lawlessness question
The basic is whether DILHR can to refuse any make assessment of the environmental effect large sewage-holding construction of tank on the asser- tion, by findings unsupported the trial court’s or the record, that relevant environmental were con- factors plumbing sidered at the time the code was formulated duty that, therefore, and it case has no the individual particular to determine whether a action or construction only project upon has effect the environment but has assuring compliance duty the ministerial that there is position plumbing baldly code. states its It respect plans of this construc- the consideration of sewage holding tion, largest proposed tank ever stating: state, by in this approval specifications is plans and “DILHR’s totally is the construction ... de- unrelated to whether community impact . . will . what it have on the sirable environment, available. what alternatives are only matters local concern .... These are reviewing plans
performs the narrow function they specifications are in to assure building pertinent with the codes.” opinion, DILHR’s flout- its sanctions majority, ing approves DILHR’s blatant refusal of the law and consider, permits, it issues even at the time major proposed on the environment. construction every DILHR, other state I would conclude Policy agency, required Wisconsin give to all (WEPA) consideration individual Act affecting environ- major significantly human actions doing respect to duty of so and is relieved of ment categorized only or classified actions if has other individually or prior “which do consideration actions human significant on the cumulatively effect have a exempt re- from therefore environment and which are impact state- prepare an quirements categorization man- (p). This ment.” 1500.4 40 CFR *14 656 1.11(2) 1500, (c), Stats.,
dated sec. and as CFR further set forth in Executive Order 26 Governor Lucey February 12, Patrick dated and other J. executive orders.
Although appearing in the statement of facts majority opinion incorrect, is not it fails to with state complete holding-tank adequacy project the nature of the proposed and the circumstances under which it was Building built. The record that in shows 1978 the James Corporation condomin- announced its intention build County. variously units, ium units in Door The stated 100, 85, in the at Fish record to be were to be built village Creek, unincorporated County, an an in Door which, geology peninsula, area Door because of the of the water-quality sewage-disposal prob- has had serious lems. original sewage plans provided
The treatment discharge facility directly that into would effluent Bay. Sewage Green treatment are under facilities jurisdiction Department of Natural Resources agency’s (DNR), approval required. and that Fol- lowing plans, intra-agency the submission of there was disagreement Impact an over whether (EIS) prepared. Subsequently, Statement should prepared DNR an Environmental Assessment Screen- ing (EASW) Worksheet and determined that EIS required. was petitioners present action, some of whom County area,
live the Door commenced an action in County challenging the Door Circuit Court DNR’s deci- County sion. The Door Circuit Court ordered the DNR to stay Building Corporation’s further action on the James project condominium until a decision could be reached stay on the circuit merits. The was ordered because the court determined that there a reasonable likelihood was petitioners that would be successful on the merits action, i.e., their probability that there con- was sewage system “sig- major struction of the was a action affecting nificantly quality the human environ- ment.” conclusion, DNR, preliminary faced findings
acquiesced in and conclusions Door County stipulation Court, and it entered into Circuit *15 petitioners, the with withdrew the basis of EASW on its impact initially environmental which it an had concluded needed, joined not the United statement was Agency (EPA) pre- in Protection States impact the paring an for entire environmental statement including site of County, middle third of Door Building Corporation’s proposed condominium. James prepared impact to statement was be environmental The secondary analyzing purpose of the direct and for major facilities impacts various alternatives designed problems in being plan to solve waste-water reducing develop area, and also to methods the entire ground used for on the water drinking Michi- supply waters of Lake public and the gan, Bay, and local Green harbors. delay attempt con- to condominium
In avoid circuit ensue as a result of the struction which would EIS, stay proposed the James and the DNR’s court’s Building Corporation plans a DILHR for submitted to holding approved 186,750-gallon plan finally tank. The contemplates 250,000-gallon tank is tank. This enor- largest mous, proposed ever in the State Wisconsin. tank feet 70 feet and are 45 dimensions height. proposed erected It is it be feet 141/2 Bay in an area of the waters of Green a few feet
within only the surface. two feet below the water table where holding designed not tank is shows that record permanently pur- used for that to an installation as intended, approval can if DNR pose, is rather but sewage facility portion treatment obtained, be a give approval. its declined now the DNR has Holding sewage tanks do not treat only but store it temporarily. They periodically emptied must be and the transported contents disposal DNR, site. The in its prepared initial EASW to assess the condominium’s sewage facility, treatment holding concluded that a tank appropriate was not an type of construction and acceptable not an alternative because the waste must be hauled disposal. off-site for pointed The DNR’s EASW out disposal land sites are County limited Door due to the soil and bedrock conditions. 144.04, Stats., Under jurisdiction sec. the DNR has
grant deny permits sewage treatment facilities. However, jurisdiction under 145.20(3), private sec. over sewage systems given 145.01(14) to DILHR. Sec. de- private sewage system fines including as “a tank,” sewage system; hence, but is not an alternative it is exception 145.022(5). within the of sec. Al- though grant authority this appears to DILHR to be plenary inconsistent authority with the upon conferred DNR 144.025, argued sec. proceeding it is not in this *16 power that approve the disapprove holding tanks jurisdiction not within the of DILHR. provisions Because the Stats., of sec. 145.01(14), its terms, were July 1980, not to 1, become effective until adopted emergency DILHR an rule, which became effec- 21, tive on 1980, expired June and 19, on October 1980. Initially, Building Corporation the James submitted its holding plans September tank 8, 1980, they on were approved by day. Shortly DILHR on the same thereafter petitioners, by the objections letter, raised a number of approval They to DILHR’s plans. of the stated that comply emergency DILHR had failed to with its own rule, and stated what has become the essence of this proceeding DILHR, granting approval, its had —that any way failed to evaluate in the con- sequences project. petitioners pointed of the out that holding plain impinged the erection of tank in flood the upon jurisdiction the DNR. the acquiesced objection by peti- latter
DILHR the the pro- approval, its tioners and rescinded because posed plain. also location flood It advised the Building that, Corporation unless tank was James the area, plain approval moved out of the flood the of DNR required that, would the DNR was under be because stay order, only tank. the alternative was to move the Building 1980, Corporation 21, On October James showing holding-tank plan the location submitted new plain flood area. this out While immediate plan delay pending, requested new was DILHR to EPA preparing plan it on and stated that was action involving the entire an environmental statement 6, 1980, DNR told DILHR area. November On rescinding required, was was that an its decision EIS decision DILHR to defer both DNR and EPA asked open options keeping for the in the interests all problems. waste-water solution of area’s had, emergency 1980, By rule 19, DILHR’s October terms, Nevertheless, Novem- expired. its own DILHR plan. tank approved new ber acknowledges emergency was not rule plan approval was new but that its effect asserts Code, H subject to the rules of the Administrative old 62.20(9) promulgated 62.20(9). H was a rule (DH&SS) in Department of Health and Social Services “Holding con- that, tanks shall provides It 1975. basis.”
sidered on individual pending, DILHR de- approval plan was While ruling request declaratory for a petitioners’ nied the one” was “a contested that the case denied a declaration *17 Following Act. Procedure the Administrative under peti- plan, the holding tank approval the new DILHR’s of for in the Circuit Court this tioners commenced action County asking Dane (1) a review of: DILHR’s denial of petitioner’s request declaratory ruling, (2) for hearing, DILHR’s denial of a (8) contested case approval holding DILHR’s plan. tank the County, Circuit Court for Dane in which this brought, found, action was as had the Circuit Court for County Door respect action, earlier to DNR that there petitioners was a likelihood that the would succeed on the merits because DILHR had made no environmental prepared assessment and had even an EASW on the holding permit. tank disposi- The court that a concluded probably tion on the merits would result a decision holding major project significantly tank awas affecting quality the hdifian environment and require would an environmental statement. The court April concluding entered its 20,1981, final order on comply requirements that DILHR had failed of WEPA, proceedings and it remanded the to DILHR with the law. state majority indicates, granted opinion
As we bypass Appeals. DILHR’s motion to Court record, it, as we received demonstrates that have gave no consideration whatsoever en- respect approval vironmental factors with to plan holding however, DILHR, for the tank. does not conclude, argue, even that its is not environ- decision significant. mentally hardly argue so Indeed, could given by EPA, DNR, the conclusions reached County. County the Circuit Courts for Door and Dane Its argument imperatives is that all environmental were complied holding applying with at the the rules time adopted tanks were 1975 and in 1980. Its argument that, plans simplistically if the con- stated is respect form to the codes in to the details of the con- required, tanks, struction is all that codes, by promul- because the methods used in their gation, incorporated appropriate all standards *18 necessary protect WEPA, the environment under and merely was function the one hence DILHR’s ministerial alongside laying plans specifications the the of of the conformity. to determine code their validity argument depends upon DILHR’s of sev- given scrutiny underpinnings, none of were
eral which argument majority opinion. on DILHR’s rests premise imposed that the duties WEPA can be discharged building-code-formulation stage, even at a might though types of structures actions that encompass building may a wide result under the codes variety situations, of from the most trivial those that substantially major could would constitute actions which assumption It rests on the affect the environment. also implicit proposition sweep first the broad factors and as a matter law correct given adequate when were indeed consideration is a particular question There code in was formulated. majority ancillary proposition to which the
third analysis all, not at and that whether itself addresses was in effect the time of DILHR’s there code at proposition first. approval last I address the decision. responsibil- facts, the statement of As set forth Stats., plumbing were 145, in ch. codes ities various April 1980. transferred from the to DILHR DH&SS However, chs. 34 certain revisions to ch. 145 1, July 1979, were effective Laws of to become imposed responsibilities statutory the new 1980. Because yet effective, repealed, upon DILHR were not existing acceptable rule-promulgation procedure, emergency adopted 63 as Rule H H DH&SS 62.20 emergency purpose effect rule. This rule had the expiration repealing pre-existing rule. DH&SS hundred emergency after one provisions H twenty days law, emer- terminated the as a matter of re- “The gency 227.03, provides that, Stats., rule. Sec. previously had peal a rule not revive a rule does repealed.” Hence, been there no were administrative governing plan approval rules codes DILHR’s following expiration emergency tank *19 19, January 1, on rule October until H when properly promulgated regu- 63 became effective as a and larly adopted rule. proposition
If that is correct —and I believe it to be— guided DILHR was and no controlled effective rule approved at holding plan. time tank It was relying upon simply longer a rule which no continued my to exist. I do not proposition, rest dissent on that however, for if even we are to assume that Hold 62.20 approved plan, was when effect there is support proposition no duty for that under DILHR’s may discharged be the blanket consideration of codes, plumbing given no consideration magnitude respect particular project to the of a or to geo- or where what under circumstances under what logical might conditions tank In be installed. addition, nothing course, there is record to show adequately environmental considerations were taken into promulgated account when H was even 62.20 finally adopted regular when H 63 was aas rule of DILHR. 1.11(2) (c), agencies Stats., requires
Sec. of the all state, to possible, the fullest extent to: “(c) every Include report recommendation or proposals legislation signifi- major and other actions cantly affecting quality environment, of the human statement, substantially following detailed guidelines issued the United States council on environmental quality . . . .” required
The detailed statement is to include: “1. The proposed action; of the Any “2. adverse environmental effects which cannot proposal be avoided should the implemented; “3. proposed action; Alternatives relationship “4. local uses between short-term of man’s and the and enhance- environment maintenance long-term productivity; ment of Any “5. commitments irreversible irretrievable proposed resources which would be involved implemented; action it be should “6. statement shall contain details of Such also project, aspects proposed short beneficial term and both advantages long term, and the economic disadvantages proposal.” important It is note also that the statute Wisconsin requires substantially agencies all state follow the guidelines of on Environmental the United States Council Quality Accordingly, guidelines, (CEQ). extent its they followed, of law con- can be have the effect agencies. trol the actions all state Stats., interpreting 1.11, has ex-
In this court sec. agency’s prepare an pressly not to that an decision held *20 by the is reviewable statement Inc., v. Decade, Pub- courts. Environmental Wisconsin’s Comm., N.W.2d 149 lic Service 2d 79 Wis.
(1977). question whether an for a to decide is court agency’s prepare was reasonable not to an EIS decision under the circumstances. Wisconsin’s obligation supra However, at the first Decade, 421. seeking agency discharged to avoid
which must be develop: preparation to the of an EIS reflecting preliminary “. . record a reviewable . investigation covering of an relevant areas the
factual depth permit a to environmental concern sufficient judgment of the en- reasonably preliminary informed Environ- .” consequences .. . . Wisconsin’s vironmental supra 425. Decadei, mental at agency pointed out that the case We also same negative and justification decision its EIS must for show subject the to court’s should be such a conclusion agency the took “searching inquiry” to see whether “hard problem look” at opposed as to bald conclu- sions. recognize
I agency original of an difficulties whose legislative purpose primarily was not environmentally It oriented. is clear in the instant case that DILHR sees principal as its function the facilitation building projects throughout construction various possible industry state —to make it per- for to labor form they society. the functions which serve in this It legis- correct have to those concerns. The lature, however, by 1.11(5), Stats., sec. pointed out that policies goals of the Wisconsin Environmental Policy “supplementary were Act set forth in those existing agencies.” Accordingly, authorization of responsibilities Policy under the Environmental Act are agency primarily addition those for which the was and, by legislative fiat, formed been made have all-pervading importance. matter of problem which it is a one DILHR faces —and real segments
for that and for the innumerable public rely upon discharge which its services —is to its duties under the environmental while statutes at processing applications, permits, same time thousands of plans. appropriate necessary It is therefore facilitate accomplish act. administration One method agencies categorize types this is for various of actions needing needing as either or not environmental assess- methodology guidelines ments. This is set forth in the Quality Federal Council on Environmental *21 agencies upon 1.11, are mandated state sec. Stats. guidelines agencies upon The are mandated state also Lucey. CEQ the executive Governor orders guidelines of those are be found in CFR 1500. One guidelines may agencies the time directs reduce preparation involved in the of environmental statements by: paperwork and shall reduce excess Using categorical (p) to define “1500.4 exclusions categories individually do or cumula- of actions which not tively significant environ- have effect on the human requirements exempt from ment and which to therefore are impact prepare an environmental statement.” imperative, This if environ- which must be followed impact prepared mental statements are not to be on implemented projects, explained and trivial was further Lucey’s 69, dated Governor Executive Order No. December revised November 1975 and as April guidelines, explanatory of which are 1977. These every agency’s Stats., require 1.11, under sec. duties agencies categorize types are of actions which the obligations likely jurisdiction. to come under their agencies by (2) on imposed upon are also based sec. 1.11 given In- interpretations to it the statute Committee, teragency Coordinating is com- which WEPA agency affected. posed representatives state of each facilitating guidelines purpose of were for These cost under to reduce administrative decisions delays guidelines, were issued involved. These classify orders, require as each state executive following types of it makes into the three decisions actions: major clearly . . and . “(1) Type I are actions impact always state- require will environmental
thus major may ments; significantly Type may (2) II not actions environ- quality of the human affect case, and depending particular ment on facts of impact may require statement not thus preparation; environmental ones (3) Type are III actions .... major . thus will . . and the action not be where require could Guidelines statements.” Implementation Environmental the Wisconsin for Policy Executive (November 1975), Governor’s Act Order, p. 5. Thus, apparent the National Council Quality, as well as the WEPA Coordinat- *22 ing recognized Committee, problems has that DILHR faces and has appropriate devised and mandated an dealing guidelines of method with them. These are effec- by tive effect, virtue irrespective of the act and are in of purported repeal Lucey’s directives, of Governor be- guidelines CEQ cause explanatory guide- these are lines, 1.11, which are mandated sec. Stats. These guidelines, Coordinating formulated the WEPA Com- mittee, constitute the consensus for administrative in- terpretation agencies of all of the Wisconsin which are obliged struggle problem with with It agencies WEPA. uncontradicted most have specifically incorporated guidelines into their agencies directly rules. Two concerned with environ- pollution, PSC, mental incorpo- the DNR and the have guidelines. rated these Sec. NR 150 and 2.90. In PSC contrast, prom- the record reveals that DILHR has never ulgated any incorporate attempted rules or ever guidelines. judicial
The record and matters of we can take long sorry notice history show that DILHR has had a dragging noncompliance foot with In WEPA. response Lucey’s importunings office, of Governor the then chairman of DILHR that DILHR stated had guidelines expected not internal established but de- partment personnel good judgment. See, to exercise Agency Decisionmaking under Environ- the Wisconsin Policy Ill, mental Law 129 n. Act, 77 Wisconsin 83. Rev. Subsequently, guidelines the 1975 issued after were reported order, executive the chairman of DILHR to the “ governor that, spent $24,000, would if it t have had [I] complied Implementation WEPA.” WEPA: Report Lucey, App., to Governor November Sum- Questionnaire mary Manpower Funding WEPA p. Results, 2. This clear DILHR did admission that requirements. not conform to fact legislature separately fund *23 did WEPA activities does agencies not exonerate DILHR from its duties. Other funding. possible special found it to do so without prolonged It is clear DILHR that has demonstrated conforming in recalcitrance with environmental stan- circumstances, although a dards. these court Under good presume part an and does faith on the of should agency, re- accept is difficult to DILHR’s in it actions spect being to instant situation than a sub- as other terfuge only spirit avoid to not letter but the of protection environmental law. pur-
Returning question DILHR’s to the of whether ported promulga- application of to WEPA standards categorization adequately satisfies the tion rules order, by by actions executive mandated the statute apparent it that it not. is does originally which were we look to the rules
Whether to H 63 adopted by in we look or whether DH&SS categoriza- finally adopted it as in is clear that employed. methodology If look to was never we tion screening the DH& worksheet utilized 62.20, upon which DILHR H in its 1975 revision of SS holding relies, readily apparent says that it it is now before, As stated not mentioned at all. tanks were prepare an environ- not when determines statement, must impact a reviewable record mental placed have a voluminous we the court. While before nothing documents, in the is there collection of irrelevant given any holding con- tanks were record to show Moreover, the format at that time. sideration whatsoever screening worksheet assessment of the environmental relies, upon used DH&SS completely form itself is the document shows types of categorization various inappropriate to the single apply clearly intended actions. It was subsequently and, as it was used DH&SS action by DILHR, completely unilluminating respect why impact an environmental pre- statement was not pared completely silent on whether not impact upon tanks and their the environment were even thought about at the time the environmental assessment screening prepared. worksheet was
Although DILHR in its brief uses this sheet demon- strate promulgation revisions, showing code it rather has the effect of non- compliance or at least an conclusion in re- unreasoned spect to whether an environmental state- prepared. Judge Jones, ment should be in his circuit opinion, correctly court pre- concluded that the EASW pared at promulgation the time code in 1975 was *24 completely holding any irrelevant to whether or not any tanks had effect whatsoever the environment. They simply were not mentioned. recently adopted by
The more prepared EASW proposed when equally recreated H 63 was in 1980 is any of suggest devoid information that which would any attempt DILHR made rational to conclude whether holding categorized requir- tanks as not should ing impact lengthy an environmental statement. The statement, purports support position to DILHR’s prepared which was in October of is devoted entirely disposal system almost to an alternate use —the only holding mounds. The mention of tanks is in re- gard comparative study costs, and the silent in is respect impact holding environmental tanks. screening The environmental it- assessment worksheet however, self, holding and, by implica- refers to tanks tion, they creating indicates that are environmental problems. example, For the statement is made: holding develop properties “The use of tanks to new becoming creating quite problems widespread in rela- disposal proposed tive to the final of the waste. The utilizing changes regulations developments make holding places responsibil- more difficult and more tanks government ity proper maintenance and on local operation of such facilities.”
Although screening the environmental assessment recognizes problems the environment worksheet disposal, is almost as a result of waste the document entirely by study; apparently supported the mound holding size, location, geo- tanks, irrespective all together. graphic factors, lumped problems are created them are off the conclusion brushed that problems disposal of their environmental created municipalities. upon placed contents individual will be study recognizes the environmental To conclude that this holding holding impact particular tank —or even group review of would obviate tanks as a hence —and most, upon At the projects, its face. individual is absurd DILHR, was involved it to the extent DH&SS merely lip promulgation, paid service in the code meaningless problems and filled out gullibly conclude form, which us counsel now would have compliance with It does not. demonstrates WEPA. although from
Additionally, clear Wisconsin’s supra that a reviewable Decade, at nothing to re- the record required, record is there is holding or a respect particular tank view contemplated here. or location of that tank of the size an environmental of DILHR The conclusion *25 cloth. whole required out of not is fabricated is statement nothing has ever examined that it There is show environ- holding code in terms standard or tank nothing that this certainly to show there is ment wa&wkey;everconsidered particular of excrement colossus been that have protecting the values purpose of with the Policy Act. by the Environmental mandated categorization permissible though is Thus, even —in prepared mandatory to be is not if an EIS fact —it holding tanks, now categorization, apparent that any way comport asserted DILHR does not in guidelines. holding Common sense that dictates tanks of various sizes to be located in different areas disparate lumped and under circumstances cannot be together and be the of the irrational that basis conclusion fragile none of them is hazardous to a environment. simply application There was no rational of WEPA possible environmental standards and there was no categorization. attempt above, at As DILHR it- stated holding creating self commented that en- tanks were problems disposal vironmental final relative to the impel waste but made no rational decision that could subsequent prepared. conclusion that an need not be EIS holding Moreover, 63.18(1), ap- code, when the H tank Assembly provals, proposed was to the submitted Noll, Committee, Resources that wrote Mr. committee secretary DILHR, stating: then portion “We believe that should be this of the Rule holding redrafted, policy establish clear state sewage only system approved private will tanks be as a government of last and the resort. All of local units Department Industry, Labor and Human Relations should in each determine case that a conventional private sewage system alternative fore This be- cannot be installed permission granted holding will tank. be to install policy sup- (Emphasis should . . . .” be adhered to
plied.) 63.18, holding tanks, subsequently H When was adopted, provide: “(1) Approval. it continued to use of tank will considered on installations an individual . . basis. .” apparent legislative
It committee DILHR, adopted rule, when it this concluded that a hold- ing merely tank not to installed was because com- ported plumbing mere with a code. It was to be a alongside laying plans ministerial review of code, but was rather to be determined the basis *26 appropriate whether it was under the circumstances. meaning fails to the its own
DILHR either understand of callously disregard has them and rules or endeavored to disregard expressed legislative to the com- will mittee. majority
I earlier the fact have alluded to the deferred, believe, in- inappropriately has I to DILHR’s terpretation implemented. It is of how tois WEPA true, course, frequently an ad- of defer to courts agency’s interpretation when it ministrative of a statute contrary spirit the reasonable and is not to law or amply I think above the law. that what has been said unwillingness comply with demonstrates DILHR’s Pro- spirit either the letter are Moreover, applicable here tection Act. the statutes solely jurisdiction within the administrative 1.11(2), Stats., applicable DILHR. makes act Sec. Interagency given
all agencies, to the state and it was guidelines Coordinating develop WEPA Committee procedures administrative for the which would facilitate guidelines, I making as Those decision under the law. categorization above, contemplated a reasoned stated categories actions actions, delineating those in tiers might, and always required EIS, an those that require PSC an those that never would EIS. following law, interpretation their
DNR, in categorization pro- guidelines, adopted rational have cedure. gen- contrary conduct, to the taken
DILHR’s aberrant exemp- construction, erally as accepted administrative agencies represented consensus of all of lified weight under committee, entitled no the WEPA has department which present A circumstances. guidelines to avoid demonstrated intent by the imposed action upon and the constraints in- have court a rational statute cannot he held *27 terpreted obligations its reasonably. WEPA plain meaning of interpretative guidelines the statute and the CEQ of both Coordinating the WEPA Committee given primacy, should be and the prac- administrative agencies tice of other state guidelines which follow the and whose considerably records are better greater are weight. entitled to much clearly poses problem a difficult for DILHR
and for all agencies, state but as we said in have Wis- consin’s Decade, supra, WEPA intended existing obligations add to the and burdens of state agencies purpose and its is “to effect an across-the-board adjustment priorities decision-making proces- agencies government.” ses of (p. 416) WEPA, of state like its counterpart, national is a statute an extra- ordinarily sweep, though by broad qualified it is phrase, “to possible,” the fullest extent this court has made it phrase high clear that sets a standard for state agencies, by legis- which has been mandated lature —a standard which will rigorously enforced by the phrase courts —and that cannot be used as an escape foot-dragging agency. hatch for a We said Wisconsin’s supra relying Environmental Decade, at upon Coordinating Calvert AEC, v. Committee 449 Cliffs 1109,1115 (D.C. 1971) F.2d Cir. : comply] pos- “[Failure with WEPA to the fullest . by sible extent merely is not excused considerations of difficulty, expense delay.” administrative Appeals The Wisconsin Court Wisconsin’s En Inc., vironmental DNR, 263, 272, Decade, v. 94 Wis.2d “ (1979), stated, N.W.2d 168 dministrative con [A] venience or applicant connivance or with an cannot sidestep compliance be used to with WEPA.” proposition urged by basic that, DILHR enacting building codes, deprived it has itself apply discretion environmental standards in an in- suggests, proves, dividual case. It but never that dis- cretionary applied were at standards building-code-promulgation stage. The record demon- strates this assertion false. When an deprive legislatively imposed contrives to itself of dis- cretionary responsibility, it to its it ill excuse behooves duty neglect only claim ministerial performed. guidelines function remains to be As the demonstrate, in an could been exercised discretion have categorization process; appropriate but a hard search record, even when that was made with search *28 good compliance by hope that reveal faith the it would agency, shows in was not exercised. that fact discretion attempt there been a to exercise Even had reasonable code-promulgation stage, all at it defies discretion rationality types of or to that structures conclude all be, in all of tanks could concluded advance any plan submission, in all free of detrimental instances impact. argument would of discretion The that exercise misunderstanding of infringe upon home rule reveals the home rule amendment the Wisconsin Constitution. Policy concern. Act is of state-wide
The agencies. implementation to stated has been entrusted Its that home in the sense not a matter local concern It is agencies supplant supersede permit local rule would responsibilities the state itself. building been that, code has once a DILHR asserts always promulgated, ministerial application is its trigger agency But assertion discretion. this can never discretionary decisions all is not substantiated. Were stage and code-promulgation reasonably exercised at the truly stage discretionary that at decisions were those ap- particular project, ministerial to a a mere relevant demonstrated, might appropriate. I have As lication ex- was however, discretion reasoned no substantial stage. must al- Discretion promulgation at the ercised ways light hypo- be exercised facts actual or on a thesis that will conform later determined actual facts. The not record does demonstrate exercise of discre- promulgation tion at code which would enable reviewing or a say, court “This is fact situation that clearly contemplated was and a reasoned decision was promulgation made at the time code that either required.” was or EIS was additionally
It should
that
be noted
the authorities
building
always
proposition
cited for the
that
codes are
applied
to be
ain ministerial
fashion all
antedate
passage
They
protection
of the environmental
do
laws.
protection
not consider whether or not environmental
general
acts affect
The
conclusion.
authorities cited
proposition.
are therefore irrelevant
to DILHR’s
Washington
are, however,
The
cases cited
DILHR
assumption,
instructive.
ministerial
supported
group Washington cases,
asserts is
does
They
support
not find
point,
in those cases.
are indeed on
they
Court,
Washington Supreme
but
that the
indicate
construing
act,
protection
state’s environmental
urged
precisely
opposite
reached
from that
conclusion
Washington Supreme
DILHR.
Court
concluded
might
past
actions which
have been considered
*29
as
discretionary
ministerial
in nature became
after
passage of the Environmental Protection Act. The Wash
ington
754,
Yantis,
court
in Loveless v.
82 Wash. 2d
764,
(1973),
this the process renewal that discretion department is bound and in its limited considerations permit claim provisions renewal code. Seattle rejected Stempel Such was raised and [Stem pel Department 109, v. Resources, Water 82 Wash. 2d 508 (1973)] P.2d .’ 166 . . 82 2d at 492 Wn. [Eastlake
675 475, Assoc., 492, Roanoke 513 Com. Coun. v. 82 Wash. 2d (1973)].” P.2d 36 Bay City Valley Community also See Juanita Asso. v. Kirkland, (1973), 73, App. 59, P.2d 1140 9 510 Wash. which stated: brought change in about “The law substantive SEPA into the mak- introduces an element of discretion
ing formerly ministerial, such of decisions that were arguendo, that even if the issuance of assume, we grading permit was, prior SEPA, ministerial, non- discretionary legislative dis- act, it makes SEPA cretionary.” addition, accept canard In even were we to DILHR’s plan approval always ministerial, it has held been significantly under EPA action which that ministerial “major ac may the environment be considered affects triggering re environmental-impact-statement tion” quirements See, act. State South the national 1980) ; (8th Dakota v. 614 Cir. Andrus, F.2d 1190 (3rd Center, F.2d Inc., 619 N.A.A.C.P. v. Medical 584 1978). Cir. CEQ guidelines adopted the WEPA
While and the urged categorization to save in order committee have delays adopting environmental paperwork and the statements, cases are numerous there though recognize that, even United courts which States major ac classification, where there is for the may may appropriate have tions occurred project. In Wisconsin’s specific to look to Decade, 2d Inc., 79 Wis. recognized persuasive (1977), we have N.W.2d In act. national authority decided under cases AEC, 449 v. Coordinating Committee Calvert Cliffs 1109, 1115 stated: (1971), it was F.2d procedurally without reached was the decision “[I]f balancing of environ- consideration
individualized *30 676
mental is the fully good factors —conducted and in faith —it responsibility of the courts to reverse.”
The same case stated that: “Compliance to possible extent would seem ‘fullest’ to demand that environmental issues be considered at every important stage making in action —at process the decision concerning particular every stage where an balancing overall al factors of environmental and nonenvironment- appropriate might and where alterations proposed made in the action to minimize environmental course, costs. Of entirely dupli- consideration which is necessarily cative is not required.” (P. 1118) Here, course, permit-granting action taken at the stage is not duplicative, because, as the record demon- strates, given there was never initial consideration ato magnitude tank of the involved in instant case.
In a case decided the United States District Court for the Wisconsin, Eastern District of State Wis Butz, consin Supp. v. (E.D. 1975), F. Wis. regional the court held that environmental discussing statement sprays effect herbicide by making “only national forests one limited reference to the National 1068) Forests in (p. Wisconsin” was insufficient mandate of EPA and required injunction that an preventing be issued spraying of specifically Wisconsin forests until an EIS focusing on prepared. Wisconsin had been In National Council, Morton, Resources Inc. v. Defense Supp. single 388 F. 829 (1974), programmatic overall impact study inadequate was found for the Management’s Bureau of grazing Land pro- livestock gram geo- due to its failure to take into account local graphic conditions. court, too, recognized that, though
This has even there study, categorization, has been an overall clas- *31 sification, program, signifi may nevertheless there cant considered; environmental effects that were not circumstances, may and that, agency in such the re quired update study prepare its a new EIS a particular action. See, Wisconsin’s Environmental Decade, supra, 79 2d at Wis. 439. very apparent
It thought-out is hence that even a well generic classification, program may categorization, or proceed not be sufficient to allow with a particular Certainly, procedures by action. utilized regard holding DILHR —and before it—in DH&SS demonstrably thought tanks were not well out. There is nothing promulgators in them to indicate that the contemplated holding codes ever that a tank of im- mensity proposed approved the one would be as ministerial matter. DILHR in this case claim to cannot prepared thoughtful categorization have or reasonable taking problems into account even routine occasioned fact, the installation of In that assertion tanks. contrary very recognition holding-tank prob- to the screening
lems described the environmental assessment rationality support I worksheet. find no in the law or in comply for DILHR’s failure to in this case. apparent approval plan
It is that DILHR’s stay this case is “action” which but for issued possible major project by circuit court makes the James Building Corporation might significantly af- well County. fect the I affirm environment of Door would remanding County order the ac- Dane Circuit Court’s application appropriate tion to DILHR for standards mandated Wisconsin
Policy Act. Beilfuss
I am Justice authorized state Chief joins in this dissent.