1 In 2003, the “Department” of Agriculture was “elev ated” to a State “Agency,” so

that the position of “Commissioner” of the Departme nt became that of “Secretary” of the Agency. 3 V.S.A. § 2350(a).

1 STATE OF VERMONT

ENVIRONMENTAL COURT

} In re: Lawson Farms LFO Permit Amendment } Docket No. 278-12-07 Vtec (Appeal of Lawson) } }

Decision and Order on Motion to Dismiss for Lack of Jurisdiction Appellants George Lawson, Robert Lawson, and Janet Lawson, doing business as Lawson Farms (Lawson Farms), appealed from an order of the Secretary of the Vermont Agency 1 of Agriculture, Food and Markets (‘Agency of Agric ulture’ or ‘Agency’) that amended the conditions of the Lawson Farms’ Large F arm Operation (LFO) Permit. Appellant Lawson Farms is represented by Duncan Fre y Kilmartin, Esq.; and the Agency is represented by Michael O. Duane, Esq., Assistant A ttorney General. The Agency has moved to dismiss the appeal, arguing that the Environmental Court lacks subject matter jurisdiction. Lawson Farms is located in Irasburg; the parties do not dispute that it is of a size to require a Large Farm Operation permit under 6 V.S.A . § 4851(a). Lawson Farms applied for and received a LFO permit in 2002. An appeal o f that original issuance of the LFO permit would have been appealable to this court at that time under 6 V.S.A. § 4855. No party appealed, and the 2002 LFO Permit became fina l. The Agency has not claimed that Lawson Farms failed to comply with its 2002 LFO Per mit. However, after several years of Lawson Farms’ opera tion under the 2002 LFO Permit, the Agency of Agriculture discovered that g roundwater in the area of Lawson2The LFO Rules were amended in 2007; the rules reg arding amendments and

modifications of LFO permits are now found in subch apter 8, §A. The references in this decision are to the 1999 LFO Rules unless otherwise noted.

3 Finding 2 of the 2006 LFO Permit Amendment Order described this rule as providing “the Secretary with authority to amend anexisting LFO permit if it has been determined that waters of the state have not been a dequately protected to meet Accepted Agricutural Practices (AAPs).” The substance of § 5.3(b)(1) of the 1999 LFO Rules, in effect at the time of the filing of this appeal, is now fou nd in § 8(A)(4) of the 2007 LFO Rules.

2 Farms was contaminated with nitrates and that the c ontamination was likely to be caused by a source other than (or in addition to) the manu re pit regulated under the 2002 LFO
Permit. On January 31, 2006, the Secretary of the Agency i ssued a unilateral order (the 2006 LFO Permit Amendment Order), adopting a hearing officer’s findings and conclusions, and amending the conditions of the 2002 LFO Permit purs uant to the authority of LFO Rule 2 5.3(b)(1). 3The 2006 LFO Permit Amendment Order found that th e level of nitrates in the groundwater and drinking water in and around the La wson Farm “substantially exceed[s]” the state and federal safe drinking water standard, and therefore violated the Accepted Agriculture Practices (AAPs). Although the 2002 L FO Permit conditions could require the manure pit to be upgraded and lined if it was not m eeting performance standards, the 2006 LFO Permit Amendment Order determined that the prob able source of the nitrate contamination was from a source other than (or in a ddition to) the manure pit. The 2006 LFO Permit Amendment Order therefore required Appel lants to “actively pursue
elucidation and remediation” of the sources of elev ated levels of nitrates, and by March 22, 2006 to submit to the Agency a management plan for elimination of groundwater
contamination. The 2006 LFO Permit Amendment Order required the management plan to address at a minimum agricultural field practice s, waste storage structures, feed storage structures, and animal housing.3

Appellants initially appealed the 2006 LFO Permit A mendment Order to the Orleans Superior Court under V.R.C.P. 74 or 75, but later s ought a ruling that jurisdiction of the appeal was instead with the Environmental Court. I n December of 2007, the Orleans Superior Court granted the motion, ruling that the E nvironmental Court has jurisdiction over this matter because the Agency-initiated amend ment to the LFO Permit “effectively put [Appellants] on the same playing field as an in itial applicant.” Lawson v. Vermont Agency of Agriculture , Docket No. 44-2-06 Oscv, slip op. at 2 (Orleans S uper. Ct. Dec. 13, 2007). Although the Agency did not appeal the superior cou rt decision to the Vermont Supreme Court, it has now moved to dismiss the appe al in Environmental Court, claiming that jurisdiction was properly before the superior court under V.R.C.P. 75 and, essentially, that the appeal should not have been transferred to Environmental Court.

The state statute governing “Agricultural Water Qua lity,” 6 V.S.A. Ch. 215, gives authority to the Agency of Agriculture to protect w ater quality from pollution by agricultural animal wastes. 6 V.S.A. § 4801. The statute directs the Secretary of the Agency to coordinate with the Agency of Natural Resources (ANR), 6 V.S.A. § 4810(b), regarding discharges to the waters of the state from concentr ated animal feeding operations, but otherwise the state regulatory authority over large agricultural operations is with the Agency of Agriculture as laid out in subchapter 4 o f Chapter 215, entitled “Regulation of Large Farm Operations.” To receive a LFO permit, a n applicant must demonstrate that the farm has “an adequately sized manure managementsystem to accommodate the wastes generated” and that it has “a nutrient management p lan to dispose of wastes in accordance with accepted agricultural practices adopted under” Chapter 215. 6 V.S.A. § 4851(b). A “person seeking a permit” who is “aggrieved by a final decision of the secretary” may appeal that decision to the Environmental Courtpursuant to 6 V.S.A. § 4855; that4No statutory revocation process is provided other than the requirement in 6 V.S.A.

§ 2705 for “due notice and hearing.” In any event, jurisdiction of LFO permit revocation is not assigned by statute to environmental court. Compare, Act 250 permit revocation. 4 V.S.A. § 1001(b); V.R.E.C.P. 3(1).

4 appeal is de novo . Presumably, a permittee who wishes to apply for a n amendment to the terms or conditions of a LFO permit may do so, and would thereby be “a person seeking a permit” who would be entitled to appeal the Secre tary’s final decision regarding the amendment to Environmental Court pursuant to § 485 5. V.R.E.C.P. 5(a)(1). The issue before the court arises from the language “a person seeking a permit” in § 4855, together with the fact that the statute doe s not specifically provide for the Agency
to initiate a modification or amendment to an exist ing LFO permit. The Agency adopted regulations governing large farmoperations pursuant to 6 V.S.A. § 4852. Section 5.3(b) of the 1999 LFO Rule s states that the Secretary of the Agency “may decide to amend an existing LFO permit on his or her own initiative,” for several reasons, including “a determination by the [Secreta ry] that waters have not been adequately protected to meet AAPs.” Section 5.3(b) (1) provides that the “permit amendment may include additional measures and limit ations and may also include a compliance schedule.” By contrast, § 4854 gives the Secretary other spec ific authority over LFO permit revocation and over enforcement regarding large far m operations. Under that section, the secretary may revoke a LFO permit by following the process 4used to revoke a milk handler’s license under 6 V.S.A. § 2705. Section 4854 also gives the Secretary authority to “seek enforcement remedies” under 6 V.S.A. §§ 1, 12, 13, 16, and 17, as well as to “assess [] administrative penalt[ies]” under 6 V.S.A. § 15, for failure to apply for a required LFO permit or for violation of “the terms and condition s of a [LFO] permit.”
The referenced enforcement sections are found in Ch apter 1 of the agriculture5

statutes and are applicable to all Agency programs, not just to the LFO program. Their terms are analogous to the provisions of the Unifor m Environmental Enforcement Act, 10 V.S.A. Chapter 201, available to the ANR. The refe renced statutory sections provide authority for injunctive relief, administrative sea rch warrants, assurances of discontinuance, and assessment of administrative mo netary penalties. Under this Agency of Agriculture enforcement statute, the filing of a ssurances of discontinuance and the appeals of orders assessing administrative monetarypenalties are in superior court, not environmental court. 6 V.S.A. §§ 13(b), 15(e). The present case involves neither the failure to ap ply for a required LFO permit nor the violation of the terms or conditions of a LFO p ermit. 6 V.S.A. § 4854. Rather, it is an attempted appeal under § 4855 from the Agency’s uni lateral amendment of the conditions of the 2002 LFO Permit, based on the Agency’s findings that the conditions of the 2002 LFO Permit were insufficient to protect the groundwater and drinking water from nitrate
contamination. Had the Agency found that Appellants violated a con dition of the 2002 LFO Permit, it would have had authority to take enforcement mea sures or to revoke the 2002 LFO Permit, pursuant to § 4854, which would result in j urisdiction in superior court. In the present case, the Agency did not seek to enforce a condition of the permit and therefore the enforcement remedies referenced in § 4854 were not available to it. Rather, the Agency found the 2002 LFO Permit condit ions insufficient to protect the groundwater and unilaterally amended the permit acc ordingly. As much as the original issuance of the 2002 LFO Permit, the 2006 LFO PermitAmendment Order was a final permit decision, appealable to Environmental Court under 6 V.S.A. § 4855, LFO Rule 5(a)–(c); V.R.E.C.P. 5(a)(1). The Agency argues that the statute is silent regard ing an appeal route for the Agency’s unilateral amendment of an LFO permit, as distinguished from the clear appeal6

route for the Agency’s issuance of the initial LFO permit, and that the absence of a separate appeal provision for permit amendments forecloses a ppeal to Environmental Court. The Agency bases this interpretation upon the use of th e phrase “person seeking a permit” in the statute. The Agency argues that, while a farm o wner is the “person seeking a permit” in the initial permit proceedings (or, presumably, if it is the farm owner who has initiated amendment proceedings), there is no “person seekinga permit” if it is the Agency that unilaterally initiates the amendment. Such an interpretation would create an absurd resul t, which courts are cautioned to avoid. Bergeron v. Boyle , 2003 VT 89, ¶ 11, 176 Vt. 78, 83 n.1. Under this interpretation the Agency could initially issue a permit with provisio ns that were acceptable to and would not be appealed by a permittee, and then would be ab le unilaterally to amend it without the right of appeal to the court that would have ha d jurisdiction of a de novo appeal of the initial permit conditions. This interpretation wou ld be contrary to the evident legislative intent to provide for such permits to be reviewed d e novo in environmental court. 6 V.S.A. § 4855. Cf . Vincent v. Vt. State Ret. Bd. , 148 Vt. 531, 534 n.2 (1987) (court is hesitant to interpret arguably ambiguous legislation as foreclo sing judicial review of administrative agency decisions.)

Accordingly, based on the foregoing, it is hereby O RDERED and ADJUDGED that the Agency of Agriculture’s Motion to Dismiss is DE NIED.

Because this matter was not initially filed in Envi ronmental Court, although Appellant did initially file both a complaint and a statement of questions, and because it has been nearly two-and-a-half years since the cont ested permit amendment was issued, the Statement of Questions should be amended, both t o comply with V.R.E.C.P. 5(f) and5 And see In re Britting Wastewater/Water Supply Perm it, Docket No. 259-11-07 Vtec

(Vt. Envtl. Ct. April 7, 2008) (discussion of the d istinction between constitutionality as applied and constitutionality of regulations on the ir face).

7 to clarify the questions remaining 5 for this Court’s determination. Accordingly, an amended Statement of Questions shall be filed on or before June 17, 2008. A telephone conference has been scheduled (see encl osed notice) to discuss mediation and to discuss setting this matter for tr ial. In particular, please also be prepared to discuss whether any supervening changes in circu mstances as a practical matter may have affected this litigation, and, if so, whether either party will be requesting a remand. V.R.C.P. 5(i).

Done at Berlin, Vermont, this 16 thday of May, 2008.

_________________________________________________ Merideth Wright Environmental Judge