Opinion No. Oag 16-88, (1988) , 77 Op. Att'y Gen. 81 ( 1988 )

CAL W. KORNSTEDT, Corporation Counsel Dane County

You have requested my opinion on the meaning of section 144.44 (2)(nm)4., Stats., relating to the application of the so-called "needs" determination to the replacement of existing municipal solid waste disposal facilities. Specifically. you ask whether a municipality is exempt from the needs determination if it is applying for a facility to replace an existing facility. It is my opinion that proposed municipal solid waste disposal facilities are not exempt from the needs determination. It is further my opinion that the Department of Natural Resources may approve a municipal facility whose need is not otherwise justified if it is needed to replace an existing facility, but that the mere showing that the proposed facility will replace an existing facility is not sufficient justification.

Section 144.44 (2)(nm) provides:

(nm) Determination of need; issues considered. A feasibility report shall contain an evaluation to justify the need for the proposed facility unless the facility is exempt under par. (nr). The department shall consider the following issues in evaluating the need for the proposed facility:

1. An approximate service area for the proposed facility which takes into account the economics of waste collection, transportation and disposal.

2. The quantity of waste suitable for disposal at the proposed facility generated within the anticipated service area.

3. The design capacity of the following facilities located within the anticipated service area of the proposed facility:

a. Approved facilities, as defined under s. 144.441 (2)(a)1, including the potential for expansion of those facilities on contiguous property already owned or controlled by the applicant.

b. Nonapproved facilities, as defined under s. 144.442 (1)(c), which are environmentally sound. It is presumed that a nonapproved facility is not environmentally sound unless evidence to the contrary is produced.

c. Other proposed facilities for which feasibility reports are submitted and determined to be complete by the department.

d. Facilities for the recycling of solid waste or for the recovery of resources from solid waste which are licensed by the department.

e. Proposed facilities for the recycling of solid waste or for the recovery of resources from solid waste which have plans of operation which are approved by the department.

f. Solid waste incinerators licensed by the department.

g. Proposed solid waste incinerators which have plans of operation which are approved by the department.

4. If the need for a proposed municipal facility cannot be established under subds. I to 3, the extent to which the proposed facility is needed to replace other facilities of that municipality at the time those facilities are projected to be closed in the plans of operation.

In construing a statute, it must be given its plain and unambiguous meaning. State v. Wittrock, 119 Wis. 2d 664, 670,350 N.W.2d 647 (1984). Resort to legislative history is appropriate only when the statute is ambiguous and subject to alternative reasonable interpretations. State v. Engler, 80 Wis. 2d 402, 406,259 N.W.2d 97 (1977); In Matter of Estate of Johnson,113 Wis. 2d 126, 133, 334 N.W.2d 574 (Ct. APP. 1983). Additionally, a statute must be read in pari materia with related statutes. State v.Wagner, 136 Wis. 2d 1, 5, 400 N.W.2d 519 (Ct.App. 1986).

I find that section 144.44 (2)(nm)4. is clear and unambiguous, particularly when read in conjunction with related statutes, and that it does not exempt municipal replacement facilities from the needs determination. The Legislature has specifically exempted certain facilities from the needs determination in section 144.44 (2)(nr). Since municipal replacement facilities are not expressly included in section 144.44 (2)(nr), they are excluded under the rule expressio unius est exclusio alterus. State ex rel. Harrisv. Larson, 64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974); State v.Smith, 103 Wis. 2d 361, 366, 309 N.W.2d 7 (Ct.App. 1981) aff'd106 Wis. 2d 17, 315 N.W.2d 343 (1982). Moreover, section 144.44 (2)(om) states that "[e]xcept for a facility which is exempt under par. (nr), the department shall issue a determination of need . . . ."

The language of section 144.44 (2)(nm) clearly indicates that whether the facility is needed to replace an existing facility is but one factor to be evaluated in a needs determination for a proposed municipal facility. The statute's opening paragraph provides that "[t]he department shall consider the following issues in evaluating the need for a proposed facility . . . ." (Emphasis added.) It then lists those factors which must be considered, including the projected service area, potential waste volumes and specific categories of existing, proposed or potentially expanded facilities. Sec. 144.44 (2)(nm)1.-3., Stats. Section 144.44 (2)(nm)4. only requires the department to consider whether "the proposed facility is needed to replace other facilities of that municipality . . ." if the need for the proposal "cannot be established under subds. 1 to 3 . . . ." Thus, the Legislature has, in essence, created a separate factor which must be evaluated under limited circumstances.

As a final matter, the statute does not require the department to find that the facility is needed merely because it is a replacement facility. Such an interpretation would create an effective exemption, which is inconsistent with the structure of the statute as well as section 144.44 (2)(nr) and (om). It would also render meaningless the language in section 144.44 (2)(nm)4. which requires the department to evaluate whether the proposed facility is "needed" to replace existing facilities.

It is therefore my opinion that municipal replacement facilities are not exempted from the needs determination. The need for a replacement facility must be considered by the department to the same extent as those categories of facilities listed in section 144.44 (2)(nm)3., except that this factor must be considered only if need cannot otherwise be established. Finally, there is nothing in the statute which mandates that the department determine that the facility is needed solely because it is a replacement facility.

DJH:CAS.