State of Vermont Superior Court—Environmental Division

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In re Moretown Landfill Cell Three Reclassification Docket No. 37-3-13 Vtec
Title: Motion for Declaratory Judgment Filed: 4/2/2013 Filed By: Applicant-Appellant Moretown Landfill, In c. Response in Opposition filed 4/8/13 by Interested P ersons Scott Baughman and Lisa Ransom Response in Opposition filed 4/11/13 by Interested Person Martha Douglass Response in Opposition filed 4/11/13 by the Vermont Agency of Natural Resources through the Vermont Attorney General Reply filed 4/12/13 by Applicant-Appellant

___ Granted ___ Denied X O ther

Applicant-Appellant Moretown Landfill, Inc. (Applic ant) operates a solid waste facility located at 187 Palisades Park in Moretown, Vermont. On March 14, 2013, the Vermont Agency of Natural Resources (ANR) denied recertification o f the landfill for failure to control odor and landfill gas emissions and for the facility’s contr ibution to violations of groundwater quality standards. The decision allowed Applicant to conti nue operating its facility under its prior certification for 30 days; that is, until April 15, 2013. Applicant appealed the denial to this Court on March 29, 2013. Now before us is Applicant’s mo tion requesting a declaratory judgment on the question of whether Applicant’s prior certifica tion may remain in effect during the pendency of its appeal, rather than expiring on Apr il 15, 2013.
ANR filed a memorandum in opposition through the Ve rmont Attorney General. Neighbors Scott Baughman and Lisa Ransom (Neighbors ) filed a memorandum in opposition through their attorney James Dumont, Esq. Moretown resident Martha Douglas, appearing pro se, filed a memorandum in opposition to Applicant’s motion, and Ronald Doyle and Dianne Doyle filed short statements in opposition as well. Applicant filed a reply. Applicant is represented by Brian Dunkiel, Esq., Andrew Raubvoge l, Esq., and Erik Nielsen, Esq.; Appellee Vermont Agency of Natural Resources is represented by Matthew Chapman, Esq., Gavin J. Boyles, Esq., and Nicholas F. Persampieri, Esq.; an d Martha Douglas, Thomas Douglas, Dianne Doyle, Ronald Doyle, Christine F. Belanger, David B elanger, and Mark Fischer appear pro se as interested parties.
Applicant argues that the following provision of th e Vermont Administrative Procedures Act (VAPA) controls this permit renewal situation:
When a licensee has made timely and sufficient appl ication for the renewal of a license or a new license with reference to any acti vity of a continuing nature, the existing license does not expire until the applicat ion has been finally determined by the agency, and, in case the application is deni ed or the terms of the newIn re Moretown Landfill Cell Three Reclassification , No. 37-3-13 Vtec (EO on Decl. J.) (04-12-13) Pg. 2 of 4.

license limited, until the last day for seeking rev iew of the agency order or a later date fixed by order of the reviewing court.
3 V.S.A. § 814(b). Parties do not dispute that the landfill activity is of a continuing nature, and nothing in the record indicates that the recertific ation application was untimely or insufficient for the purposes of allowing the DEC to consider whether to approve it (although some parties contend that the application is insufficient to obtain approval, a separate issue). Rather, Applicant reasons that its application has not “bee n finally determined by the agency” until this Court completes its de novo review; Applicant asserts that the landfill may th erefore continue operating under its prior license throughout the pe ndency of the instant appeal. Moreover, Applicant claims that it has a constitutionally pro tected property interest in continuing operation under its prior permit throughout the pen dency of this appeal.
ANR and Neighbors first contend that this permit re newal situation is governed not by the general provisions in VAPA, but by the more rec ent 10 V.S.A. § 8504, governing appeals to the Environmental Division. Specifically, they arg ue that Applicant has failed to show that it is entitled to a stay of ANR’s decision under 10 V.S.A . § 8504(f)(2). 1 Further, they argue that to the extent that VAPA is relevant, ANR’s decision denyin g recertification constitutes a final determination by the relevant agency, and that ther efore the language of VAPA allows the landfill to operate under its prior permit only “un til the last day for seeking review of the agency order or a later date fixed by” this Court i n our discretion. Finally, they argue that Applicant has no constitutionally protected propert y interest in continued operation of its facility and that, even if it did, Applicant has be en afforded ample due process and, in any case, that Applicant waived this argument by failing to r equest a hearing at any time during the nearly four years when its recertification applicat ion was pending.

I. 3 V.S.A. § 814(b) does not entitle Applicant’s prio r certification to remain in effect during the pendency of its appeal.
Applicant’s argument that 3 V.S.A. § 814(b) require s the landfill’s previous license to remain in effect until this Court has completed its de novo review contravenes the statute’s plain language. In § 814(b), the Legislature clearly dis tinguished between “the agency” and “the reviewing court,” providing that when an agency den ies an application, the existing license lasts “until the last day for seeking review of the agency order or a later date fixed by order of the reviewing court.” Moreover, VAPA contemplates the scenario in the instant case where “the final decision of an agency is expressly provi ded by law to be reviewable in superior court,” (3 V.S.A. § 815(c) (emphasis added)); here, ANR’s final determination is reviewable by the Superior Court’s Environmental Division. We se e no reason for deviating from the plain meaning of the statute simply because we review the instant appeal de novo

. In sum, as applied to this case, the phrase “finall y determined by the agency” unambiguously refers to ANR’s March 14, 2013 denial of Applicant’s request for recertification. 2

1 “Upon petition by a party or upon its own motion fo r a stay of an act or decision, the environmental division shall perform the initial review of the re quest and may grant a stay. Any decision under this subsection to issue a stay shall be subject to appe al to the supreme court according to the Rules of Appellate Procedure.” 10 V.S.A. § 8504(f)(2).

2 In its reply brief, Applicant argues that this co nclusion would contravene “precedent” set by the Wa ter Resources Board in a footnote to a Prehearing Confe rence and Order in 2002. (Applicant’s Reply Brief atIn re Moretown Landfill Cell Three Reclassification , No. 37-3-13 Vtec (EO on Decl. J.) (04-12-13) Pg. 3 of 4.

Thus, Applicant’s prior certification does not rem ain in effect during the pendency of its appeal under 3 V.S.A. § 814(b). Rather, since the ANR den ied the recertification, the existing license expires on the last day for seeking review of the a gency order or a later date fixed by order of
this Court.
3 V.S.A. § 814(b) grants this Court, in its discret ion, the authority to fix an expiration date for a permit that ANR has declined to renew. The statute does not establish criteria under which a reviewing court may extend the expiration d ate of a permit, however, and we have found no case law establishing such standards.
Accordingly, we consider the equity of the matter b efore us. Here, Applicant has argued that it will suffer appreciable financial losses if this Court allows its permit to expire on April 15

, within 30 days of ANR’s denial of recertification. Applicant argues that the context of a landfill is somewhat unique in that closure involves not mer ely cessation of activity, but a series of steps to cap off the landfill that, if ANR’s order were t o be reversed on appeal, would have to be
undone and redone at the final closure of the facil ity. 3 While we appreciate the harms alleged by Neighbors and the State attributable to Applican t’s continued operation of Cell 3 of the facility, under the unique circumstances of this ca se, we extend, pursuant to 3 V.S.A. § 814(b), ANR’s March 14, 2013 Order that “[t]he facility sha ll cease accepting waste on Monday, April 15, 2013” an additional 90 days, or until July 15, 2013. The remainder of ANR’s March 14, 2013
Order remains unmodified.

II. Alternatively, this Court may temporarily authorize continued operations in the interest of justice.
ANR and Neighbors are correct that 10 V.S.A. § 8504 (f) addresses the topic of stays in the context of appeals to the Environmental Divisio n. First, 10 V.S.A. § 8504(f)(1) enumerates two circumstances where stays are automatic; those circumstances do not apply to the case before us. This Court has the ability to issue sta ys upon petition by a party or upon its own motion. 10 V.S.A. § 8504(f)(2). This Court’s own rules of procedure regarding stays harmonize with the statute, providing that:
Unless the act or decision appealed from is automat ically stayed pursuant to 10 V.S.A. § 8504(f)(1) by the filing of the appeal . . . the court, after the notice of appeal has been filed may, on its own motion, or on motion of a party, stay the
act or decision and make such other orders as are n ecessary to preserve the rights of the parties upon such terms and conditions as ar e just.
V.R.E.C.P. 5(e). The Reporter’s Notes state that t his Court will ordinarily make such a decision after notice and hearing, but that, for the purpose of preserving the rights of the parties on terms and conditions that are fair to all, this Cou rt may “issue a temporary stay ex parte while determining whether to issue a permanent stay.” Se e Reporter’s Notes, V.R.E.C.P. 5(e). At this time, however, Applicant has not submitted evidence sufficient for this Court to issue a stay of ANR’s final determination for the pendency of this appeal.
Based upon the foregoing, we ORDER that ANR’s March 14, 2013 Order that “[t]he facility shall cease accepting waste on Monday, Apr il 15, 2013” is extended an additional 90

2, filed Apr. 12, 2013.) We have reviewed this foo tnote; its interpretation of 3 V.S.A. § 814 remains unclear, and we do not find it binding.

3 Applicant also challenges ANR’s order on constitut ional grounds; we address that claim below.In re Moretown Landfill Cell Three Reclassification , No. 37-3-13 Vtec (EO on Decl. J.) (04-12-13) Pg. 4 of 4.

days, or until July 15, 2013. The remainder of ANR ’s March 14, 2013 Order remains unmodified. Further, pursuant to V.R.E.C.P. Rules 1 and 2, we ORDER the following.

1. If Applicant wishes to move for a stay of ANR’s Mar ch 14, 2013 Order, as modified by this Order, Applicant must file, if at all, on o r before May 3, 2012.

2. If Applicant so files, all parties shall file with the Court on or before May 10, 2013, in writing their dates of unavailability for the we eks of June 17 and June 24, 201 for a half day hearing on the motion.

3. Lastly, if Applicant so files, all pleadings in rep ly to Applicant’s motion shall be filed on or before May 31, 2013.
In light of our decision granting a temporary exten sion of ANR’s March 14, 2013 Order that “[t]he facility shall cease accepting waste on Monday, April 15, 2013” an additional 90 days,
we decline at this time to address the constitution al claims that Applicant raised in its filings.

_________________________________________ April 12, 2013 Thomas G. Walsh, Judge Date

=================================================== =================== Date copies sent: ___________ Clerk's Initials ______
Copies sent to: Attorney Brian Dunkiel for Applicant-Appellant Moretown Landfill, Inc. Attorneys Andrew Raubvogel and Erik Nielsen, Co- Counsel for Applicant-Appellant Attorney Matthew Chapman for Appellee Vermont A gency of Natural Resources Attorneys Gavin J. Boyles and Nicholas F. Persa mpieri, Co-Counsel for Appellee Attorney James Allen Dumont for Interested Pers ons Scott Baughman and Lisa Ransom Interested Persons Martha Douglas, Thomas Dougl as, Dianne Doyle, Ronald Doyle, Christine F. Belange r, David Belanger, and Mark Fischer.