Summary
In Norway v. State Board of Health (1966), 32 Wis.2d 362, 370, 145 N.W.2d 790, this court said: "... The pollution of public waters is a matter of great public concern and inimical to public health...."
Summary of this case from State ex rel. Hammermill Paper Co. v. La PlanteOpinion
October 4, 1966. —
November 1, 1966.
APPEAL from judgments of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Reversed, with directions.
For the appellant there were briefs by Lawton Cates of Madison, and oral argument by Richard L. Cates.
For the respondents the cause was argued by James H. McDermott, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
The town of Norway (Norway) appeals from two judgments of the circuit court. One affirmed an approval given on April 9, 1965, by the respondent Committee on Water Pollution (committee) of a revised plan for the construction of a sewage-treatment facility by the town of Muskego and the other affirmed an approval of said plan on April 13th by the respondent State Board of Health (board) which approval was ratified by the committee. The circuit court held the board and committee did not act in excess of their statutory authority and jurisdiction in failing to make detailed findings of fact with respect to the structural soundness of the sewerage facility and further held Norway did not exhaust its administrative remedies before resorting to judicial review.
In 1961, the board requested the town of Muskego (Muskego) to correct a sewage problem caused by the malfunctioning of private septic tanks in an area between Little Muskego lake and Big Muskego lake. This area is now part of the city of Muskego. Several meetings were held before the committee concerning the necessity of the facility because this area was to be serviced by a metropolitan sewerage district in 1968 or 1969. However, a plan for a temporary two-unit stabilization pond was submitted to the committee. This plan provided for two lagoons formed by embankments or dikes lying in an area northwest of Big Muskego lake. The treated effluent from this sewerage facility would empty into Muskego creek and flow downstream to Big Muskego lake, which is connected by a canal to Wind lake to the south in the town of Norway. This plan was discussed at subsequent meetings and was vigorously objected to by Norway as being structurally inadequate to prevent the pollution of Big Muskego lake and eventually Wind lake. On August 27, 1963, the plan for the stabilization ponds was approved by the committee. Norway filed a petition for judicial review of this decision and continued to object to the plan. Apparently this judicial review was not consummated.
Thereafter Muskego on October 26, 1964, submitted a revised plan to the committee. Further meetings were held and engineers and soil experts heard. At a meeting on November 17, 1964, the committee decided to refer the plan to the staff of the board for review and recommendations. Further meetings were held and on April 8, 1965, Muskego furnished a second revised plan. This plan provided for' three stabilization ponds or lagoons, the largest covering approximately eight acres and in a different location than in the previous plan. There was apparently no objection to this pond or its structural soundness. The second and third treatment ponds were to cover approximately four acres each and be constructed on marshy land which had peat subsoil. The sewage-treatment facility had a capacity of 28 million gallons of sewage. Objection by Norway to this plan was made on the grounds the second and third ponds were not structurally sound, that the embankments or dikes forming the ponds would likely break and that raw sewage would escape from the ponds by seeping through the peat causing deterioration of the dikes.
On April 9th the committee withdrew its approval of the original plan and approved the revised plan, apparently upon the erroneous belief that the engineers for Norway were satisfied with the plan. Four days later on April 13th the staff of the board recommended approval upon a set of conditions and the board approved the plan. This approval was endorsed by the committee and contained the reservation, "[t]he plans and specifications have not been reviewed to determine structural soundness . . . ."
Norway then filed a motion with the committee to set aside the decision and approval of April 9th. This motion included affidavits of counsel and two engineers pointing out the likely failure of the embankments of the proposed pools. A meeting at which the parties and their experts were heard was held by the committee on May 3d, but after the hearing the committee took no action to rescind its approval. Norway then sought a review by the circuit court and brings this appeal.
Norway contends the board and committee acted in excess of their statutory authority and jurisdiction in approving the plan in the proceeding under sec. 144.04, Stats. 1963, because it failed to make a determination of the structural soundness of the proposed stabilization ponds. Norway also contends the agencies exceeded their authority under the Administrative Procedure Act, ch. 227, in failing to make a finding on a disputed issue of fact. We agree with the first contention but not with the second.
"144.04 Approval of plans. Every owner within the time prescribed by the board, shall file with the board a certified copy of complete plans of a proposed system or plant or extension thereof, in scope and detail satisfactory to the board, and, if required, of existing systems or plants, and such other information concerning maintenance operation and other details as the board requires. Material changes with a statement of the reasons shall be likewise submitted. Before plans are drawn a statement concerning the improvement may be made to the board and the board shall, if requested, outline generally what it will require. The board shall examine plans and conditions without delay, and, as soon as possible approve or disapprove or state what it will require. Approval may be subject to modification by the board upon due notice. Construction or material change shall be according to approved plans only."
The approvals of April 9th and 13th were made in a proceeding under sec. 144.04, Stats., which did not constitute a contested case within the meaning of ch. 227 requiring the making of findings of fact. In Ashwaubenon v. Public Service Comm. (1963), 22 Wis.2d 38, 125 N.W.2d 647, 126 N.W.2d 567, and in Nick v. State Highway Comm. (1963), 21 Wis.2d 489, 124 N.W.2d 574, we pointed out a contested case before an agency is one in which a hearing is required by law or by constitutional provisions of due process. The approval of plans for a proposed sewage-treatment system under sec. 144.04 does not depend upon a requirement of a prior hearing, nor have the agencies promulgated a rule which requires a hearing as a condition precedent in a proceeding for the approval of such plans. Sec. 144.04 requires the board to examine the plans and conditions without delay and as soon as possible approve or disapprove or state what it will require. In performing this function the agency may and in this instance did hold gratuitous hearings. But gratuitous hearings do not change the nature of a legislative type of hearing in an administrative proceeding to a "contested case." It is not the fact but the requirement of a hearing which is the test. Milwaukee v. Public Service Comm. (1960), 11 Wis.2d 111, 104 N.W.2d 167; Park Bldg. Corp. v. Industrial Comm. (1960), 9 Wis.2d 78, 100 N.W.2d 571.
A contested case is defined in sec. 227.01 (2), Stats. 1963, as a proceeding before an agency in which after hearing required by law the legal rights, duties or privileges of a party to the proceeding are determined or directly affected by a decision or order and in which proceeding the assertion by one party of such right, duty or privilege is denied or controverted. The fact a contest or dispute arose in the instant case over the plan and particularly over structural soundness. of the embankments of the ponds did not change the legislative nature of the hearing into a contested case. A contest in fact or a dispute in a layman's sense does not satisfy the definition of a contested case in sec. 227.01(2) unless the hearing in which such contest arose was required to be held. We hold there was no requirement by virtue of sec. 227.13 to make a finding of structural soundness in the proceeding under sec. 144.04.
However, we think the board and committee acted in excess of their statutory authority and jurisdiction in approving the plan without making a determination, whether expressed in a finding or not, that the sewage-treatment facility would be reasonably structurally sound. We are told the committee has a standing practice of not passing on structural soundness but we find no statutory authority for such practice. Perhaps structural soundness can be assumed in a plan submitted by licensed engineers when the issue is not raised, but when the issue is raised before the committee in any proceeding and the testimony is in conflict we think the agency vested with the power of approving such plans must give consideration to the issue and resolve it. Here, the plan was approved with an express reservation that structural soundness was not passed upon. In effect, the agencies have approved a plan for a facility designed to treat sewage so as not to pollute public waters without determining the facility will structurally perform.
It is true, as pointed out by the agencies, sec. 144.04, Stats., relating to the approval of plans for sewerage systems or plants does not expressly require approval of structural soundness. But we think the whole purpose of requiring approval is frustrated if the agency approves a plan without determining whether it will in fact accomplish its objective. By sec. 144.03 the board has general supervision and control over sewage disposal in order to protect public health. In the exercise of this power it is implied the board shall make a determination that a proposed facility will be effective in preventing pollution. This was a duty of both agencies because the committee by sec. 144.53(5), Stats. 1963, has the same power to approve plans as the board. The determination under review is not justified because the proposed sewerage facility was to be temporary in nature and one of the conditions of the approval was the immediate discontinuance of the use of the facility upon the availability of the metropolitan sewerage system to the area. We think the agencies abdicated their duty and thus acted in excess of their authority and jurisdiction in approving the plan.
The trial court thought these approvals were probably orders and therefore subject to administrative review under secs. 144.10 and 144.56, Stats. We think these sections refer to an order in a technical sense because the review provided is limited to the necessity for and the reasonableness of the order. These sections are companion sections; sec. 144.10 provides a review from the order of the board while sec. 144.56 provides a review from the committee. In both instances the determination on the review is subject to a judicial review under ch. 227. See also sec. 144.537. We think the approval of the plans is subject to direct judicial review under secs. 227.15 and 227.16, as an administrative decision.
It is contended Norway is not a "person aggrieved" by the approval and therefore has no standing on judicial review. Sec. 227.16(1), Stats., provides any person aggrieved by a decision specified in sec. 227.15 and directly affected thereby is entitled to a judicial review. The agencies rely on Greenfield v. Joint County School Comm. (1955), 271 Wis. 442, 73 N.W.2d 580, for the proposition that to be an aggrieved party one must have an interest recognized by law in the subject matter which is injuriously affected by the judgment. It is conceded Norway has no riparian interest in Wind lake but by authority of sec. 60.18(12), it passed a resolution in 1962 authorizing the town board of Norway to exercise the powers of a village board. These powers include the right to manage and control navigable water and to act for the health, safety, welfare and convenience of the public. Sec. 61.34(1). The pollution of public waters is matter of great public concern and inimical to public health. State ex rel. Martin v. Juneau (1941), 238 Wis. 564, 572, 300 N.W. 187. This concern is not exclusively that of the board and the committee. We think this governmental right in the town board of Norway to prevent and control the pollution of waters is sufficient legal interest to constitute Norway an aggrieved person. It is true the power is vested in the board rather than in the town as an entity, but Norway as a town can only act through its board and its board can only act for it. In this respect the instant facts are essentially different than in Milwaukee v. Milwaukee County School Comm. (1959), 8 Wis.2d 226, 99 N.W.2d 186, where it was held the city of Milwaukee and the Milwaukee board of school directors did not have a legal interest because they had no power over school matters in the area involved. Significantly here, the town of Muskego, not its town board, was ordered to present plans to eliminate the nuisance caused by sewage seepage.
We note by ch. 614, Laws of 1965, that ch. 144, Stats., has been extensively revised and the department of resource development, so far as the facts of this case are concerned, now has the powers and duties previously vested in the board and committee to pass upon the plan under review.
By the Court. — Judgments are reversed, with directions to set aside the approvals and to remand the cases to the department of resource development for further proceedings not inconsistent with this opinion.