Secretary, Agency of Natural Resources v. Upper Valley Regional Landfill, Corp.

Secretary, ANR v. Upper Valley Regional Landfill Corp.  (96-369); 
167 Vt. 228; 705 A.2d 1001

[Filed 7-Nov-1997]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 96-369


Secretary, Agency of Natural                 Supreme Court
Resources
                                             On Appeal from
    v.                                       Agency of Natural Resources

Upper Valley Regional Landfill               March Term, 1997
Corporation, Barker Sargent
Corporation, Inc., Frank L. Barker,
Jr., and Robert MacNeil

TRASH2O, Intervenor

Barbara G. Ripley, Secretary

       Jeffrey L. Amestoy, Attorney General, J. Wallace Malley, Jr., Acting
  Attorney General, John W. Kessler, Assistant Attorney General, and Victoria
  R. Parra, Law Clerk (On the Brief), Montpelier, for plaintiff-appellee

       Robert E. Manchester, Manchester Law Offices, P.C., Burlington, for
  defendants-appellants

       Joe Bivins, Post Mills, for intervenor-appellee and cross-appellant,
  TRASH2O


PRESENT:  Gibson, Dooley, Morse and Johnson, JJ., and Allen, C.J.
          (Ret.), Specially Assigned


       GIBSON, J.   Defendants Upper Valley Regional Landfill Corporation,
  Barker Sargent Corporation, Inc., Frank L. Barker and Robert MacNeil appeal
  from an order issued by the Secretary of the Agency of Natural Resources
  (ANR) that directed corporate defendants to perform closure and
  post-closure operations at its landfill in Post Mills, Vermont.  Defendants
  contend that (1) the hearing officer erred by denying defendants' motion
  for his disqualification based on a conflict of interest, and (2) the
  Secretary does not have subject-matter jurisdiction because the Attorney
  General had previously instituted enforcement proceedings in superior
  court.  Intervenor TRASH2O (Thetford Residents Advocating Safe H2O), a
  citizen environmental group, cross-appeals, arguing that the Secretary
  erred by (1) ruling that contingent sanctions are

 

  not available under 10 V.S.A. § 6610a(c)(1), (2) failing to rule on all the
  parties' proposed findings as required by 3 V.S.A. § 812(a), (3) providing
  less protection than previous land use permits in violation of 1993, No.
  208 (Adj. Sess.), § 8, and (4) improperly dismissing individual defendants
  Frank L. Barker and Robert MacNeil.  We affirm (1) the order denying the
  motion for disqualification of the hearing officer, (2) the holding that
  ANR has concurrent jurisdiction to pursue enforcement proceedings, (3) the
  ruling that contingent sanctions are not available under 10 V.S.A. §
  6610(c)(1), and (4) the dismissal of Robert MacNeil.  Because the Secretary
  failed to consider and rule on the findings proposed by the State and
  intervenor, and because such findings could have an impact on the remaining
  issues, we vacate the remaining portions of the Secretary's order and
  remand the matter for rulings on those findings and entry of a new order.

       In 1971, Barker Sargent Corporation was granted an Act 250 permit that
  authorized construction and operation of a landfill in Post Mills, Vermont. 
  The landfill began operation in 1974.  The Act 250 permit expired in
  January 1986, but the landfill continued operating without a permit until
  1989 when the district commission denied its application for a new permit.
  The Attorney General then obtained a consent order requiring the landfill
  to cease operations, and the landfill has not operated since September
  1989.  Subsequently, the landfill applied for but was denied an Act 250
  permit in 1991; it has filed no new application since that time.

       Legislation enacted in 1977 required landfills to obtain
  disposal-facility certification from the Agency of Environmental
  Conservation (AEC), the predecessor to ANR.  See 1977, No. 106 § 1
  (codified at 10 V.S.A. § 6605).  In 1981, the landfill obtained
  certification, requiring it to provide an alternative water supply for
  neighbors whose water supply had been contaminated by the landfill and to
  have the new system completed by 1984.  The new water supply was not
  operational until 1988, however, and two households that requested
  connection to the system have not yet been connected.  The AEC
  certification expired in 1986.

       In 1987, new legislation required AEC to conduct a comprehensive
  assessment of all

 

  existing landfills prior to issuing any new disposal-facility
  certifications.  See 1987, No. 78 § 9.  The landfill obtained a
  Transitional Operational Authorization (TOA) in 1987, allowing it to
  continue operation under the terms of the previous certification. 
  Following several amendments to the TOA during 1988 and 1989, the landfill
  ceased accepting waste in September 1989 under the terms of the consent
  order issued by Washington Superior Court.

       In 1990, the landfill obtained an AEC Interim Certification
  authorizing it to operate until no later than July 1, 1992, in order to
  generate funds for closure and post-closure expenditures. The Interim
  Certification required the landfill to monitor the existing alternative
  water supply and to develop a new water supply meeting Public Community
  Water Supply standards, to replace the existing alternative water supply. 
  The landfill never reopened, however, because its Act 250 application was
  denied in November 1991.  The Interim Certification expired in 1992, and
  the landfill never developed the new water supply.

       In 1992, the landfill received an advisory opinion from the
  Environmental Board, which concluded that an Act 250 permit was required to
  install the replacement water supply and to cap and close the landfill. 
  Nevertheless, the landfill filed no permit application following receipt of
  this opinion.

       In 1993, the case was referred to the Attorney General, who brought a
  complaint in Washington Superior Court alleging violations of several
  environmental laws.  The complaint requested the court to order the
  landfill to submit a closure plan to ANR, to submit an Act 250 application
  to the district commission, and to implement the approved closure plan on
  schedule. It also requested civil fines.  The landfill filed a counterclaim
  against the State and a third-party action against thirteen entities
  including ANR for contribution for the cost of closure and post-closure
  operations.

       In 1994, the Legislature amended Act 250 to provide: "No permit or
  permit amendment is required for closure operations at an unlined landfill
  which began disposal operations prior to July 1, 1992 and which has been
  ordered closed under section 6610a . . . ."  1993, No. 208

 

  (Adj. Sess.), § 4 (codified at 10 V.S.A. § 6081(h)).  Simultaneously, the
  Legislature amended 10 V.S.A. § 6610a to allow the Secretary of ANR to take
  action against a disposal facility that "has failed to perform closure and
  post-closure operations as deemed necessary by the secretary to preserve
  and protect the air, groundwater, surface water, public health and the
  environment." 1993, No. 208 (Adj. Sess.), § 4 (codified at 10 V.S.A. §
  6610a(c)).

       In July 1995, the Department of Environmental Conservation (DEC)
  initiated the action that is the subject of this appeal.  It issued a
  proposed order under § 6610a(c), alleging violations of various
  environmental laws and requiring closure, post-closure monitoring, and
  development of an alternative water supply.  Defendants moved for a stay of
  the administrative proceedings on the ground that the superior court had
  exclusive subject-matter jurisdiction over the enforcement action.  The
  stay was denied by the hearing officer in the administrative tribunal, and
  defendants' request for disqualification of the hearing officer was also
  denied.  In July 1996, the Secretary issued her final order, from which
  defendants have taken this appeal.

                                     I.

       In their brief, defendants argue that the hearing officer erred by
  denying their motion for his disqualification.  They maintain that the
  hearing officer, as an employee of ANR, had an impermissible conflict of
  interest because the outcome of the administrative proceeding could affect
  ANR's liability in the related superior court case.  At oral argument,
  defendants acknowledged that the Secretary, also employed by ANR, has the
  same interest in the outcome of the administrative proceeding as the
  hearing officer.  Defendants then argued that the Secretary should also be
  disqualified, and indeed, that ANR should not be permitted to pursue
  administrative enforcement while the complaint against ANR was pending in
  superior court.

       Defendants claim that the alleged conflict of interest arising from
  ANR's role in the two proceedings violates their due process rights under
  the United States and Vermont Constitutions as well as their rights under
  12 V.S.A. § 61(a) and the Vermont Code of Judicial Conduct, Administrative
  Order No. 10.  To the extent that defendants rely on Chapter II, § 28 of
  the

 

  Vermont Constitution (justice shall be impartially administered) and the
  Code of Judicial Conduct, A.O. 10, we have previously held that neither one
  applies to proceedings conducted by the executive branch.  In re Crushed
  Rock, Inc., 150 Vt. 613, 623, 557 A.2d 84, 89-90 (1988).  Thus, we examine
  only the claims brought under the federal Due Process Clause and 12 V.S.A.
  § 61(a).

       A fair trial before an impartial decisionmaker is a basic requirement
  of due process, applicable to administrative agencies as well as to the
  courts.  Withrow v. Larkin, 421 U.S. 35, 46 (1975).  There is a presumption
  of honesty and integrity in those serving as administrative adjudicators. 
  See id. at 47; see also Crushed Rock, 150 Vt. at 622, 557 A.2d  at 89
  (applying Withrow presumption of honesty and integrity).  Defendants have
  the burden of overcoming the presumption by establishing an interest that
  requires disqualification.  See Withrow, 421 U.S.  at 47; see also
  Wolkenstein v. Reville, 694 F.2d 35, 42 (2d Cir. 1982), cert. denied, 462 U.S. 1105 (1983) (burden of showing disqualifying interest rests on party
  asserting bias).

       Defendants rely on Tumey v. Ohio, 273 U.S. 510 (1927), in which the
  United States Supreme Court concluded that either a personal or an
  institutional pecuniary interest in the outcome of a proceeding may be
  sufficient to require disqualification of the adjudicator.  In Tumey, the
  defendant was convicted in a "Mayor's Court," under the state's prohibition
  statute, for unlawfully possessing liquor.  The statute provided that
  one-half of the fines imposed in such courts were retained by the village. 
  These funds were used to hire attorneys and detectives to enforce the
  prohibition law and to pay for village improvements.  The village ordinance
  establishing the Mayor's Court provided compensation, in addition to a
  regular salary, to the mayor for hearing these cases.  The mayor received
  no compensation for holding court, however, unless the defendant was
  convicted.

       The Tumey Court concluded that the procedure violated due process on
  two grounds. First, the mayor "had a direct, personal, pecuniary interest
  in convicting the defendant who came before him for trial" because he was
  compensated only for convictions.  Id. at 523.

 

  Moreover, the amount the mayor received could not be considered an
  insignificant interest.  Id. at 532.  Second, the Court held that, as chief
  executive of the village with responsibility for the financial condition of
  the village, the mayor also had an impermissible institutional interest or
  "official motive" in helping the village financially.  Id. at 533, 535. 
  Accordingly, the Court reversed the conviction.

       The institutional-interest rationale in Tumey was clarified in Dugan
  v. Ohio, 277 U.S. 61 (1928), which involved another conviction under the
  state prohibition law for possessing liquor.  In Dugan, the mayor received
  a fixed salary that did not depend on whether he convicted or acquitted the
  defendant.  Thus, he had no individual pecuniary interest in the outcome of
  the trial.  Also, the mayor was one of five commissioners who exercised the
  legislative powers of the city, whereas the city manager exercised all the
  executive powers. Consequently, the Court concluded that the mayor's
  institutional pecuniary interest in the outcome of his trials was too
  "remote" to violate due process.  Id. at 65.

       More recently, the Court examined a state statute that authorized
  mayors to adjudicate ordinance and traffic violations.  In Ward v. Village
  of Monroeville, 409 U.S. 57 (1972), the fines derived from the Mayor's
  Court constituted a major part of the village income, in some years up to
  fifty percent of the budget.  In addition, the mayor, who had convicted and
  fined the defendant, had wide executive powers and was responsible for
  overall supervision of village affairs.  The Court reversed two traffic
  convictions, concluding that the scheme in Ward was similar to that in
  Tumey and "wholly unlike that in Dugan."  Id. at 60, 62.  Thus, the mayor's
  executive responsibilities for village finances created an impermissible
  bias in favor of imposing fines in the Mayor's Court.

       In this case, defendants acknowledge that neither the Secretary nor
  the hearing officer

 

  has a personal interest in the administrative enforcement proceeding.(FN1) 
  They urge the Court to hold that ANR's institutional pecuniary interest is
  sufficient to require its disqualification under Tumey and Ward.  "In both
  Tumey and Ward the Court put great emphasis on the fact that the revenues
  generated by the Mayor's Court were very substantial and vitally important
  to the village's fiscal well-being."  Wolkenstein, 694 F.2d  at 43.  In this
  case, however, defendants allege mere possibilities.  They claim the
  findings in the enforcement proceeding could have preclusive effect in
  superior court or otherwise affect the decision in superior court, that ANR
  may be found liable in superior court but not have insurance adequate to
  cover its potential liability, and consequently, that ANR has a significant
  financial stake in the outcome of the enforcement proceeding, creating an
  impermissible bias on its part.

       It is highly improbable that decisions made in the enforcement
  proceeding would be distorted by some expectation that this sequence of
  contingencies could affect the financial security of ANR.  Cf. Marshall v.
  Jerrico, Inc., 446 U.S. 238, 252 (1980) ("[I]t is exceedingly improbable
  that . . . enforcement decisions would be distorted by some expectation
  that all of these contingencies would . . . come to fruition.").  Unlike
  Tumey and Ward, there is no statute or regulation that would allow the
  outcome herein to affect ANR's budget as opposed to the general fund of the
  state.  See 32 V.S.A. § 502 (money received by all administrative
  departments shall be paid into state treasury unless otherwise provided). 
  Indeed, defendants have failed to make any connection between ANR's
  potential liability in superior court and ANR's fiscal well-being.  A
  realistic appraisal of the facts herein shows no risk of actual bias by ANR
  in this case.  Cf. Withrow, 421 U.S.  at 47 ("realistic appraisal of
  psychological tendencies and human weakness" must indicate "a risk of
  actual bias" to violate due process).

       Cases applying the Tumey/Ward due process analysis also indicate that
  defendants here

 

  have failed to show any institutional interest requiring disqualification. 
  Compare Wolkenstein, 694 F.2d  at 42 (superintendent had no disqualifying
  interest in deciding whether teacher's objections to notice of illegal
  strike participation were legally sufficient; superintendent is not
  responsible for raising money to run schools and strike-penalty provisions
  did not raise significant revenue), with United Church of the Medical Ctr.
  v. Medical Ctr. Comm'n, 689 F.2d 693, 699 (7th Cir. 1982) (violation of due
  process for commission to determine whether reverter provisions in deed
  revested property in commission because commission had direct pecuniary
  interest in outcome); Meyers v. Niles Township, 477 F. Supp. 357, 362 (N.D.
  Ill. 1979) (plaintiff denied fair hearing where Public Aid Committee that
  denied her medical benefits was panel of township supervisors responsible
  for township funds from which benefits would have been paid).  We conclude
  that Tumey and Ward are not applicable because defendants have failed to
  show that ANR has any prospect of institutional gain or loss resulting from
  the outcome of the enforcement proceeding.

       Finally, we reject defendants' contention that they may prevent
  administrative enforcement of environmental laws by filing suit against
  ANR.  "A judge cannot be disqualified merely because a litigant sues or
  threatens to sue him or her."  In re Vermont Sup. Ct. Admin. Directive No.
  17, 154 Vt. 217, 226, 576 A.2d 127, 132 (1990); see also In re Illuzzi, 164
  Vt. 623, 624, 670 A.2d 1264, 1265 (1995) (requiring disqualification when
  litigant sues or threatens to sue judge would allow manipulation of courts
  and judge shopping).  The Constitution does not impose stricter due process
  requirements in administrative proceedings than in the courts. See Withrow,
  421 U.S.  at 49.  Thus, defendants' suit against ANR does not disqualify ANR
  employees from pursuing enforcement actions.  Cf. Crushed Rock, 150 Vt. at
  622, 557 A.2d  at 89 (presumption of honesty and integrity in Withrow cannot
  be lightly overcome, especially if disqualification of environmental board
  means no administrative proceeding can go forward).

       Defendants make the same argument under 12 V.S.A. § 61(a) that they
  make under the Due Process Clause, and they rely on the same cases to
  illustrate the concept of institutional

 

  pecuniary interest.  Because defendants have failed to show that ANR or any
  of its employees had any institutional pecuniary interest as defined by
  Tumey/Ward and applied in Wolkenstein, we need not decide whether to
  recognize an institutional pecuniary interest as a ground for
  disqualification under § 61(a).(FN2)

                                     II.

       Defendants next argue that the superior court has exclusive
  subject-matter jurisdiction over the enforcement matter, and therefore,
  this Court should vacate the Secretary's order.  To support this assertion,
  defendants contend that (1) 4 V.S.A. § 113 grants exclusive jurisdiction
  over civil actions to the superior court, and (2) the common-law principle
  of priority grants exclusive jurisdiction to the first tribunal to acquire
  jurisdiction, in this case the superior court. Nonetheless, as defendants
  acknowledge, both proceedings were brought under 10 V.S.A. § 6610a (waste
  management enforcement), and thus we begin by examining the statute.

       "Absent a compelling indication that an agency has misinterpreted the
  statute it has been charged to execute, we will defer to the agency's
  judgment." Lemieux v. Tri-State Lotto Comm'n, 164 Vt. 110, 112-13, 666 A.2d 1170, 1172 (1995).  We are "reluctant to substitute our judgment for the
  experience and expertise of an agency."  Id. at 112, 666 A.2d  at 1172.
  Thus, as we have consistently held, agency actions enjoy a presumption of
  validity.  Id. at 113, 666 A.2d  at 1172.

       The superior court action was filed under § 6610a(a), which provides:
  "The action the secretary may take includes, but is not limited to: (1) . .
  . issuing an order directing . . . such steps as are necessary," including
  "permanent or temporary cessation of operation; and (2) requesting that the
  attorney general . . . commence an action for injunctive relief, or for the
  imposition of penalties and fines."  (Emphasis added.)  The administrative
  enforcement action

 

  was brought under § 6610a(c), which parallels the language of subsection
  (a) but applies only to those waste management facilities that are exempt
  from having to obtain an Act 250 permit for closure operations.

       Both subsections (a) and (c) grant the Secretary authority to take
  such action as she deems necessary and request that the Attorney General
  take appropriate action.  We find no language supporting defendants'
  contention that the Secretary must choose one avenue of enforcement or the
  other, nor do we find any ambiguity.  The plain, ordinary meaning of the
  statute allows concurrent jurisdiction.  See Burlington Elec. Dep't v.
  Vermont Dep't of Taxes, 154 Vt. 332, 335-36, 576 A.2d 450, 452 (1990)
  (Court will enforce plain meaning of statute because we presume Legislature
  intended language to carry its plain, ordinary meaning).  We find no
  compelling indication that the agency has misinterpreted the statute.

       Defendants argue that by granting the superior court "plenary powers"
  in § 6610a(a)(2), the Legislature intended to grant the superior court
  exclusive jurisdiction.  Defendants' construction is contrary to the plain
  meaning of "plenary," which means "complete" and "unqualified," not
  exclusive.  See Black's Law Dictionary 1038 (5th ed. 1979).  We also reject
  defendants' argument that 4 V.S.A. § 113 grants exclusive jurisdiction over
  this matter to the superior court.  Section 113 gives the superior court
  "original and exclusive jurisdiction of all original civil actions," except
  those actions specifically designated to the district, family,
  environmental and supreme courts.  This is an administrative action,
  however, not a "civil action" as that term is commonly understood.  See
  Black's Law Dictionary 222 (5th ed. 1979) (civil action includes all
  actions in equity and at law); id. at 42 (administrative hearing contrasted
  with civil and criminal trials).  Carrying defendants' argument to its
  logical extreme would mean that § 113 grants the superior court exclusive
  jurisdiction over all Vermont administrative actions, a notion that would
  be absurd.  As part of Title 4 pertaining to the judiciary, § 113 addresses
  only the jurisdiction of the respective courts; it does not address
  jurisdiction of the administrative agencies.

 

       We also conclude that the principle of priority does not apply in this
  case.  "In general, as between two tribunals with concurrent subject matter
  jurisdiction, the one which first acquires such jurisdiction should
  exercise it, and the second in point of time should defer to the first."
  City of Burlington v. Vermont Elec. Power Co., 133 Vt. 438, 443, 344 A.2d 19, 22 (1975). There is an exception to this rule, however, where the
  second tribunal may offer relief not available in the first.  In re
  Pfenning, 136 Vt. 92, 94, 385 A.2d 1070, 1072 (1978).  The exception to the
  general rule applies here because the two forums do not provide the same
  relief. As a result of Act 208 in 1994, certain landfills are subject to
  closure by order of the Secretary without requiring an Act 250 permit.  See
  10 V.S.A. § 6081(h).  The Act 250 exemption applies to the landfill here,
  and the Secretary has ordered closure without an Act 250 permit.  This
  relief the superior court cannot provide.

                                    III.

       Intervenor cross-appeals, claiming the Secretary erred by ruling that
  stipulated penalties are not available under § 6610a(c)(1).  The proposed
  order, issued by DEC in July 1995, provided that defendants "shall pay a
  stipulated penalty in the amount of $1000 per day after September 30, 1995
  that the Facility remains unclosed."  Similar provisions provided
  stipulated penalties for failure to perform water quality monitoring.  The
  final order of the Secretary holds, however, that § 6610a(c)(1) provides
  only for injunctive relief and does not authorize her to assess
  administrative penalties.  The Secretary maintains that she must refer the
  matter to the Attorney General under subsection (b) to pursue civil fines
  or penalties; thus, the provisions for stipulated penalties are absent from
  her final order.

       Intervenor argues that the language of subsection (c) -- "the
  secretary may take such action as the secretary determines to be necessary
  . . . to preserve and protect the air, groundwater, surface water, public
  health and the environment" -- authorizes the Secretary to impose
  stipulated penalties.  To support this interpretation, intervenor maintains
  that (1) the landfill has a long history of noncompliance with
  environmental laws, permits and orders; (2)

 

  stipulated penalties may be avoided by timely compliance, and consequently,
  are appropriate where noncompliance has been a problem in the past; (3)
  stipulated penalties further the purpose of the statute to protect the
  health of the people and the environment; and (4) the landfill has no
  incentive to comply in a timely manner without the sanctions for future
  noncompliance.

       Although intervenor has a strong argument, our primary task in
  construing a statute is to give effect to the intent of the Legislature. 
  State v. Ben-Mont Corp., 163 Vt. 53, 57, 652 A.2d 1004, 1007 (1994).  To
  determine legislative intent, we review the history and the entire
  framework of the statute.  Id.  Absent a compelling indication that the
  agency has misinterpreted a statute it has been charged to execute, we will
  defer to the agency's judgment.  Lemieux, 164 Vt. at 112-13, 666 A.2d  at
  1172.

       Vermont's Waste Management Act, 10 V.S.A. §§ 6601-6632, was enacted to
  comply with the federal Resource Conservation and Recovery Act of 1976
  (RCRA), 42 U.S.C. §§ 6901-6991.  Ben-Mont, 163 Vt. at 58, 652 A.2d  at
  1007.  Like RCRA, Vermont initially authorized only criminal penalties, see
  id., and the penalty provisions could be implemented by requesting the
  Attorney General or state's attorney to bring a court action.  In 1980,
  amendments to RCRA authorized the courts to impose civil penalties, see 42
  U.S.C. § 6928(g), and following the federal lead, the Vermont Legislature
  in 1984 authorized our courts to impose civil penalties by amending the
  penalty provision of the Waste Management Act, § 6612.  See 1983, No. 148
  (Adj. Sess.), § 8.  At the same time, § 6610a was amended to authorize the
  Attorney General or appropriate state's attorney to bring an action for
  "penalties and fines as provided in section 6612."  Id. §§ 7, 8.

       In 1984, amendments to RCRA authorized the Administrator of the
  Environmental Protection Agency to impose civil penalties.  See 98 Stat.
  3272 (1984), codified at 42 U.S.C. §§ 6928(a)(1).  The Vermont Legislature,
  however, has never authorized the Secretary of ANR to impose such
  penalties.  Unlike RCRA, the Waste Management Act provides for civil
  penalties only in actions brought by the Attorney General or the
  appropriate state's attorney.  Thus, the

 

  Secretary may order injunctive-type relief only, not civil penalties under
  § 6612.  Cf. 10 V.S.A. § 8010 (providing explicitly for administrative
  penalties in administrative orders issued under §§ 8008 or 8009(a), (c)).

                                     IV.

       Next, intervenor argues that the Secretary's order fails to indicate
  that any consideration was given to intervenor's proposed findings of fact,
  and therefore, was in violation of 3 V.S.A. § 812.  Section 812 provides
  that, in contested cases, "the decision shall include a ruling upon each
  proposed finding."  The Secretary is not required to rule individually on
  each request but her opinion must at least show that she considered and
  ruled upon each proposed finding.  See In re Village of Hardwick Elec.
  Dep't, 143 Vt. 437, 445, 466 A.2d 1180, 1184 (1983).  The purpose of this
  requirement "is to make a clear statement to the litigants, and to this
  Court if an appeal is taken, of what was decided and how the decision was
  reached."  Louis Anthony Corp. v. Department of Liquor Control, 139 Vt.
  570, 573, 432 A.2d 1186, 1188 (1981).  All parties agree that the order
  omits any reference to any proposed findings other than those submitted by
  defendants, and therefore, does not comply with § 812.

       Moreover, we are unable to address many of intervenor's remaining
  arguments because the Secretary has not ruled on these proposed findings. 
  Cf. Roy v. Mugford, 161 Vt. 501, 507, 642 A.2d 688, 692 (1994) (when
  requested, court must make findings essential to disposition of issues
  properly before it).  For example, intervenor argues that the water supply
  provisions of the 1996 order (1) do not meet the requirements of 1993, No.
  208 (Adj. Sess.), § 8, and (2) are not supported by the record.  Section 8
  of Act 208 states: "Conditions included in existing or expired land use
  permits shall not be preempted by any closure order and shall be duplicated
  in any order issued under 10 V.S.A. § 6610a(c), unless the secretary
  determines that different conditions are necessary to provide equal or
  greater protections."  (Emphasis added.)  Although the Secretary
  acknowledged Act 208 § 8, she made no findings to address it and failed to
  rule on whether the conditions of the 1996 order satisfy its requirements. 
  Similarly, without rulings

 

  on the proposed findings, we are unable to determine what the Secretary
  decided about intervenor's objections to multiple replacement wells in lieu
  of a single community system. Intervenor proposed that no evidence
  supported a multiple-well system, while four witnesses testified in favor
  of a public community system.

       We will remand if we are left in a position where we must speculate as
  to the basis of the decision reached, Rossetti v. Chittenden County Transp.
  Auth., ___ Vt. ___, ___, 674 A.2d 1284, 1289 (1996), or if a claim has been
  left unaddressed.  See Lewis v. Cohen, 157 Vt. 564, 572, 603 A.2d 352, 356
  (1991) (where trial court failed to rule on claim, proper remedy is to
  remand).  Accordingly, we do not decide whether the Secretary's order
  complies with Act 208, § 8, nor do we decide whether the record supports
  the conditions allowing (1) a financial responsibility instrument, or (2)
  multiple replacement water systems as alternatives to a single water system
  that meets Public Community Water Supply standards.  Because the decision
  on the replacement water system leaves doubts as to what was decided and
  how it was decided, we must remand for the Secretary to issue a decision in
  compliance with § 812.

                                     V.

       Intervenor also contends that the Secretary improperly dismissed the
  individual defendants, Frank L. Barker, Jr. and Robert MacNeil.  The
  Secretary held that the individual defendants could not be subject to her
  order because "no evidence was presented regarding the liability of either
  Frank L. Barker, Jr., or Robert MacNeil as responsible corporate officers
  of the respective corporations."  Intervenor contends that the Secretary
  erred because (1) the individual defendants' liability was not a contested
  issue and intervenor had no burden to produce such evidence, and (2) even
  if it had such a burden, the record contains evidence of liability.

       Vermont has recognized that a corporate officer may be held liable for
  a tort in which the officer personally participated even though the
  corporation may also be held liable.  New England Acceptance Corp. v.
  Nichols, 110 Vt. 478, 488, 8 A.2d 665, 670 (1939); see Stuart

 

  v. Federal Energy Sys., 596 F. Supp. 458, 461 (D. Vt. 1984) (under Vermont
  law corporate officer may be "held liable for tort in which he personally
  participated" although corporation may also be liable); cf. United States
  v. Conservation Chem. Co. of Illinois, 733 F. Supp. 1215, 1221 (N.D. Ind.
  1989) (corporate officer may be held liable under RCRA "as long as he was
  actively involved in the alleged violative activity");

       Under a preliminary order, the hearing officer ruled that defendants
  had waived their opportunity to raise issues with the proposed order
  through prefiled testimony.  The hearing officer also held that the "issues
  at the hearing will be limited to those issues that were identified by
  [the] parties in response to [an earlier order] and were also addressed in
  prefiled direct testimony."  Intervenor maintains that the issue of the
  liability of the individual defendants was not addressed in prefiled
  testimony and thus, under the order, was not a contested issue at the
  hearing.  We disagree.  Although defendants failed to prefile direct
  testimony on this issue, they had no obligation to do so because the burden
  of proof lay on DEC.  The hearing officer so stated at the beginning of the
  hearing.  We reject intervenor's contention that defendants' failure to
  prefile direct testimony could shift the burden to defendants.

       We agree with intervenor, however, that the Secretary erred in
  concluding that no evidence was presented regarding the liability of the
  individual defendants.  Evidence of Barker's liability included a district
  court record of his criminal conviction for failure to cover a landfill,
  wherein it was stated that Barker's occupation is landfill operator, and an
  affidavit from an employee of AEC stating that Barker violated AEC
  regulations "[d]espite repeated promises by Frank Barker to perform
  covering on a daily basis."  The record also includes an assurance of
  discontinuance issued by AEC, finding that "Frank Barker operates a solid
  waste disposal facility located off of Route 113 in the Town of Thetford." 
  The assurance also states that "[t]he privileges extended by this Assurance
  are personal to Frank Barker and are not transferable." Accordingly, we
  conclude that the finding that no evidence supports Barker's individual
  liability

 

  is clearly erroneous.(FN3)  See Bigelow v. Department of Taxes, 163 Vt. 33,
  35, 652 A.2d 985, 986 (1994) ("we will not set aside an administrative
  agency's findings unless clearly erroneous"). We agree, however, that DEC
  failed to produce any evidence of MacNeil's liability, and therefore he was
  properly dismissed.  On remand, the Secretary shall consider whether the
  evidence was sufficient to establish Barker's liability.

       We affirm (1) the order denying the motion for disqualification of the
  hearing officer, (2) the holding that ANR has concurrent jurisdiction to
  pursue enforcement proceedings, (3) the ruling that contingent sanctions
  are not available under 10 V.S.A. § 6610(c)(1), and (4) the dismissal of
  Robert MacNeil; remainder of order vacated and cause remanded for rulings
  on all proposed findings and entry of a new order consistent with the
  amended findings.


                              FOR THE COURT:



                              _______________________________________
                              Associate Justice



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                                  Footnotes



FN1.  The parties' reliance on Gibson v. Berryhill, 411 U.S. 564
  (1973) and Aetna Life Ins. Co v. Lavoie, 475 U.S. 813 (1986), is misplaced. 
  These cases are not applicable because they both involve personal pecuniary
  interest as the grounds alleged for disqualification.

FN2.  Defendants also rely on R.L. Augustine Constr. Co. v. Peoria
  Unified Sch. Dist., 904 P.2d 462, 466 (Ariz. Ct. App. 1995).  The Supreme
  Court of Arizona vacated this decision ruling that the case could be
  decided without reaching the constitutional issue.  R.L. Augustine Constr.
  v. Peoria Unified Sch. Dist., 936 P.2d 554, 557 (Ariz. 1997).

FN3.  Also clearly erroneous is the finding that defendants'
  allegations about who owned and operated the landfill during the years
  1973-1996 has not been disputed.  Defendants alleged that Barker Sargent
  Corporation has been the operator continuously since 1973, yet the
  Secretary's findings indicate that all permits and certifications were
  issued to Upper Valley Regional Landfill after its incorporation in 1988.