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Niagara of Wis. Paper Corp. v. Wisconsin Dep't of Natural Resources

Citation: 8 ELR 20739
No. Nos. 76-668, 77-326, 268 N.W.2d 153/11 ERC 2024/84 Wis. 2d 32, (Wis., 06/30/1978)

In consolidated cases challenging terms within discharge permits issued to petitioners under the Wisconsin Pollution Discharge Elimination System, the court affirms the opinion of the lower court that the terms are overly restrictive and invalid under state law. The state law parallels the Federal Water Pollution Control Act in requiring application of best practicable technology (BPT) to discharges no later than July 1, 1977, and prohibits defendant Department of Natural Resources (DNR) from adopting BPT effluent standards which exceed the BPT standards promulgated by the federal Environmental Protection Agency (EPA). Several years prior to the 1977 deadline, defendant issued permits to petitioners which set discharge limitations pegged to interim guidelines promulgated by EPA. During the course of judicial review of the terms within these permits, EPA promulgated, and DNR adopted, final BPT standards which were significantly less restrictive than the limitations within the petitioners' permits. The court finds that by refusing to amend the permits retroactively to reflect the newly relaxed federal and state BPT standards, the agency has subverted the policy of the state statute to assure that industries within the state shall not be subject to water pollution limitations more strict than the federal standards or those of neighboring states. DNR's asserted need for "finality" of permit terms in light of changing BPT standards flies in the face of the legislative command that polluters be bound only to the latest federal determination of BPT. Moreover, such rigidity would deny petitioners their due process right to an administrative rule making through which BPT standards are applied in their respective cases. The court rejects defendant's argument that any other result would constitute an invalid delegation of legislative functions to the agency. The statute is constitutional under the case law, notwithstanding the fact that it directs DNR to adopt BPT standards based on factual determinations of a federal agency. As to whether the phosphorous limitationswithin the petitioners' permits are invalid because there is no analogous federal BPT standard, the court remands the case. The state statute allows effluent limitations for which there is no federal counterpart or which are more restrictive than the federal counterpart, but only where shown necessary to achieve state ambient water quality standards. If on remand defendant can show the necessity for such conditions within petitioners' permits, they will be sustained.

Counsel for Petitioners-Appellees
Charles Q. Kamps, Andrew M. Barnes
Quarles & Brady
Marshall & Ilsley Bank Bldg., 780 N. Water St., Milwaukee WI 53202
(414) 273-3700

Irvin B. Charne, Raymond R. Krueger
Charne, Glassner, Tehan, Clancy & Taitelman, S.C.
211 W. Wisconsin Ave., Milwaukee WI 53202
(414) 273-2000

Counsel for Respondent-Appellant
Linda M. Clifford, Mary V. Bowman, Ass't Attorneys General; Bronson C. LaFollette, Attorney General
Department of Justice, 114 E. State Capitol, Madison WI 53702
(608) 266-1221

Counsel for Amicus Curiae United States
Sanford Sagalkin, Acting Ass't Attorney General; Donald W. Fowler
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2718

Joan Z. Bernstein, General Counsel; Alan W. Eckert, Deputy Associate General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511

Mary Bryant Kodani, Ass't Regional Counsel
Environmental Protection Agency, Region V, 230 S. Dearborn St., Chicago IL 60604
(312) 353-2016