03-0055 Mews v. Wisconsin Department of Commerce

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This is because, under the statutory definition of “occurrence,” there was no clean, unimpacted place that had been discovered between the two excavations. Thus, without an area of unimpacted, “no detects,” the occurrence never ended and the two contamination sources met.

And, even though some of the soil between the two excavation sites tested “below the DNR clean-up levels” and there was clean soil between the excavation sites according to applicable DNR standards, this does not eliminate the fact that commingling can still occur resulting in one occurrence per the PECFA program.

“The DNR administers an enforcement program, focused on numerical values to determine if cleanup is needed. The PECFA program is a reimbursement program with a more strict focus on the presence or absence of contamination. While Mews satisfied the DNR’s clean-up standards, he did not meet the DOC’s eligibility standard for two separate occurrences.”

Finally, even though the DOC initially treated the excavation of the waste oil tank and excavation of the two diesel tanks as two occurrences, the initial review and final review of a remediation do not necessarily produce the same results.

“We recognize that Mews cooperated completely with all remediation efforts demanded by the DNR. We also recognize that Mews made several attempts to ask for and receive clarification from the DNR and the DOC. The law, however, supports the DOC in this matter. The definition of a PECFA ‘occurrence’ is published and unambiguous, and there is sufficient evidence in the record to support the DOC’s application of the definition to Mews’s claims. The conflicting standards used by the DNR and the DOC to determine “clean soil” arise from the distinct roles the agencies play in the remediation of contaminated sites. The failure to convene a meeting for purposes of interdepartmental coordination violated a legislative directive, but was not a fatal flaw in the process of reviewing Mews’s claims for PECFA eligibility. Finally, we conclude that Mews’s claim of equitable estoppel fails because his reliance was not reasonable in light of documented representations by the DNR and the DOC that the contaminated sites had intermingled and become one occurrence.”

Order affirmed.

Recommended for publication in the official reports.

Dist II, Waukesha County, Dreyfus, J., Snyder, J.

Attorneys:

For Appellant: Pamela H. Schaefer, Waukesha; Carolyn A. Sullivan, Milwaukee

For Respondent: Steven B. Wickland, Madison