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July 26, 1983


Appeal from a judgment of the Circuit Court for Portage County: Nathan E. Wiese, Judge.

Petition to Review Denied.

Gartzke, P.j., Dykman, J. and W.l. Jackman, Reserve Judge.

The opinion of the court was delivered by: Gartzke

The state appeals from a judgment dismissing its complaint against Joerns Furniture. The complaint charged Joerns with violating sec. NR 151.03, Wis. Admin. Code 1981, *fn1 by disposing of solid waste at an unlicensed solid waste disposal facility. The state sought a forfeiture and other relief. The trial court held that because Joerns turned its hazardous wastes over to a solid waste collecting and transporting service licensed by the DNR, Joerns did not improperly dispose of those wastes under sec. NR 151.03. *fn2 We reverse.

The facts are uncontroverted on appeal. In November 1980 a DNR forest ranger found barrels of lacquer and paint thinner in a field belonging to Bob Wanta. Leonard Firkus and Art Wanta had hauled the barrels marked "flammable" from Joerns Furniture to the Wanta property in 1977. Bob Wanta does not hold a license to operate a solid waste disposal facility. Firkus held a DNR license to haul garbage, wood matter and noncombustible material, but not "chemical wastes" or "flammable materials." Art Wanta holds no DNR license. Joerns' wastes contain several toxic and highly flammable substances. Joerns' management did not know where the barrels were taken.

The case was tried to a jury. At the close of the state's case, Joerns moved for a directed verdict on grounds that under sec. NR 151.03, Wis. Admin. Code 1981, Joerns was relieved of its responsibility for the storage, collection and transportation of its hazardous wastes after having arranged for their disposal with Firkus, "a collecting and transporting service holding a license from the department." The court found that the material was in closed containers and that Joerns had no reason to believe it was not being properly disposed of by Firkus. The court concluded that under those circumstances, Joerns could not be held liable for the forfeiture as a matter of law.

Sections NR 151.03 and 151.08(4) (b), Wis. Admin. Code 1981, were promulgated under sec. 144.43, Stats. 1973. *fn3 A person violating an administrative rule promulgated under ch. 144, Stats., is liable for a forfeiture of not less than $10 nor more than $5000 for each day of a violation. Sec. 144.99, Stats. Conduct punishable only by a forfeiture is not a crime. Sec. 939.12, Stats. The rules of civil procedure apply to forfeiture actions. Neenah v. Alsteen, 30 Wis. 2d 596, 601, 142 N.W.2d 232, 236 (1966).

The proper motion attacking the sufficiency of the evidence at the close of the plaintiffs' case is to dismiss. Christianson v. Downs, 90 Wis. 2d 332, 334, 279 N.W.2d 918, 919 (1979). That defendant misdesignated its motion as one for a directed verdict is immaterial. Under sec. 805.14(2) (b), Stats., if a party mistakenly designates a motion to dismiss as a motion for a directed verdict, "the court shall treat the motion as if there had been a proper designation."

Our analysis is the same as the trial court's. Household Utilities, Inc. v. Andrews Co., 71 Wis. 2d 17, 23, 236 N.W.2d 663, 666 (1976). A motion to dismiss must be denied unless no jury could disagree on the facts or the inferences to be drawn from the facts and no credible evidence exists to support a verdict for the plaintiff. 71 Wis. 2d at 24, 236 N.W.2d at 667.

Because the trial court's Conclusion that Joerns could not be liable is based on undisputed facts, the Conclusion is one of law. Compton v. Shopko Stores, Inc., 93 Wis. 2d 613, 616, 287 N.W.2d 720, 721 (1980). We are not bound by the trial court's Conclusions of law. Ritchie v. Clappier, 109 Wis. 2d 399, 403, 326 N.W.2d 131, 133 (Ct. App. 1982).

1. Solid Waste

Chapter NR 151, Wis. Admin. Code 1981, is entitled "Solid Waste Management." We ordered additional briefing on whether sec. NR 151.03, Wis. Admin. Code 1981, applies to liquid wastes stored in solid containers. We conclude that Joerns' liquid wastes, lacquers and paint thinners, held in solid containers are "solid waste" under ch. NR 151, Wis. Admin. Code 1981.

Section NR 151.02(17), Wis. Admin. Code 1981, defines "solid waste" as "garbage, refuse and all other discarded or salvageable solid materials, including solid waste materials resulting from industrial, commercial, and agricultural operations, and from domestic use and public service activities, but does not include solids or dissolved material in waste water effluents or other common water pollutants."

Section NR 151.02(23), Wis. Admin. Code 1981, defines "toxic or hazardous wastes" as " solid wastes such as pesticides, acids, caustics, pathological wastes, radioactive materials, flammable or explosive materials, and similar chemicals and harmful wastes which require special handling ...

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