OAG 8-14

DNE

(See PDF for image)     STATE OF WISCONSIN

    DEPARTMENT OF JUSTICE



J.B. VAN HOLLEN

ATTORNEY GENERAL

Kevin M. St. John

Deputy Attorney General

114 East, State Capitol

P.O. Box 7857

Madison, WI 53707-7857

608/266-1221

TTY 1-800-947-3529

December 16, 2014       OAG—08—14

Mr. Matt Moroney

Deputy Secretary

Department of Natural Resources

101 South Webster Street

Box 7921

Madison, WI 53707-7921

Dear Mr. Moroney:

¶ 1.

A “responsible unit” (RU) is the governmental entity that develops and implements recycling programs established under Wis. Stat. § 287.09. You have asked the following questions related to responsible units: (1) can a municipality member of a county RU leave the RU and establish itself as an independent RU more than ninety days after the date the county passed its resolution forming the county RU? (2) can a county RU dissolve, returning RU status to individual municipalities? and (3) if procedures for leaving an RU or dissolution are not defined by statute, should the Department of Natural Resources (“DNR”) or a local unit of government implement procedures for these changes through rulemaking or ordinance?

¶ 2.

With regard to questions one and two, I conclude that the answer is no. Because the answers to questions one and two are no, I conclude with respect to question three that neither DNR nor local governments may establish procedures for RU withdrawal or dissolution.

¶ 3.

Analysis begins with the plain language of the statute. Rusk Cnty. Dep’t of Health & Human Servs. v. Thorson, 2005 WI App 37, ¶ 4, 278 Wis. 2d 638, 693 N.W.2d 318. Section 287.09 first establishes, at subsection (1)(a), that each municipality is an RU except as otherwise provided in the statute:

(1)

Designation of responsible units. (a) Except as provided in pars. (b) to (d), each municipality is a responsible unit.

¶ 4.

Section 287.09(1)(b) then explains how a county may become an RU that includes municipalities within the county:

(b) A county board of supervisors may adopt a resolution designating the county a responsible unit. Except as provided in pars. (c) and (d), a county that has adopted such a resolution is the responsible unit for the entire county.

Section 287.09(1)(b) contains no provision for the dissolution of such RU after it has been established.

¶ 5.

Section 287.09(1)(c) provides an opt-out procedure for municipalities that do not wish to become part of a county RU. A municipality may opt out of a county RU by adopting a resolution retaining its independent RU status within 90 days after the adoption of the county resolution creating the county RU:

(c) Within 90 days after the county board of supervisors adopts a resolution under par. (b), the governing body of a municipality that is located in part or in whole in the county may adopt a resolution retaining the municipality’s status as a responsible unit.

Wis. Stat. § 287.09(1)(c). This is the sole authority governing opting out of an RU. However, Wis. Stat. § 287.09(1)(d) addresses the practical effect of the absence of alternative opt-out procedures. An RU that later wishes to not administer the recycling program for its geographical territory may contract with another unit of government, federally recognized Indian tribe or band, or a solid waste management system created under Wis. Stat. § 59.70(2) to perform recycling functions:

(d) The governing body of a responsible unit designated under par. (a), (b) or (c) may by contract under s. 66.0301 designate another unit of government, including a federally recognized Indian tribe or band in this state, or a solid waste management system created under s. 59.70(2) to be the responsible unit in lieu of the responsible unit designated under par. (a), (b) or (c). The contract shall cover all functions required under sub. (2), including provisions for financing and enforcing the recycling or other solid waste management program.

Wis. Stat. § 287.09(1)(d).

¶ 6.

So the plain language of the statute includes specific provisions for (1) initially designating municipalities as RUs, (2) allowing a county to become an RU, (3) permitting municipalities to opt out of a county RU, and (4) sharing and shifting of RU duties by contract. In contrast to these specific procedures, there is no provision for a municipality to opt out of a county RU, and no provision through which a county may dissolve a county RU.

¶ 7.

Where a statutory scheme specifically enumerates specific powers and procedures, the absence of provision for additional powers is evidence of legislative intent not to confer those powers. See State ex rel. Harris v. Larson, 64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974); Gottlieb v. City of Milwaukee, 90 Wis. 2d 86, 95, 279 N.W.2d 479 (Ct. App. 1979) (“The rule is that if a statute provides one thing, a negative of all others is implied.”). Here, under that canon, the specific procedures for the creation of RUs and the time limit to opt out of an RU indicate legislative intent not to permit opt-out at a later date. Interpreting the statute to include alternative procedures would render the 90-day time limit meaningless.

¶ 8.

This conclusion is also supported by practical implications of RU designation. Complying with chapter 287 of the Wisconsin Statutes may require construction of expensive infrastructure. Allowing a municipality to withdraw after the 90-day statutory limit could seriously interfere with the county’s budgeting and planning. Likewise, allowing dissolution of a county RU could leave municipalities within that RU unexpectedly without a facility to handle their waste management needs.

¶ 9.

This reading is consistent with interpretive commentary by DNR near the time the statute was enacted. While such interpretive commentary is not in itself a dispositive as to a statute’s meaning, the Wisconsin Supreme Court has favorably considered interpretive commentary from DNR on matters within its sphere of administrative authority when consistent with a statute’s plain meaning and statutory history. See Heritage Farms, Inc. v. Markel Ins. Co., 2009 WI 27, ¶ 17, 316 Wis. 2d 47, 762 N.W.2d 652 (giving weight to DNR’s interpretation of a forest fire statute). DNR is vested with authority relating to implementation of the recycling requirements of chapter 287 of the Wisconsin Statutes. See, e.g., Wis. Stat. § 287.03 (including rulemaking, research, technical assistance, and educational programs).

¶ 10.

In 1990, DNR published guidance on forming an RU, specifically addressing whether a county may dissolve one: