VT Agency of Natural Resources v. Holland

 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. 91-380


 Vermont Agency of                            Supreme Court
   Natural Resources
                                              On Appeal from
      v.                                      Environmental Law Division

 Harry Holland                                May Term, 1991



 Merideth Wright, J.

 Anne F. Whiteley, Waterbury, for plaintiff-appellee

 John C. Candon, Norwich, for defendant-appellant



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



      GIBSON, J.     Defendant Harry Holland appeals an order of the
 Environmental Law Division denying his motion to dismiss an administrative
 order issued by the Secretary of the Agency of Natural Resources.  We
 reverse.
      On April 26, 1990, defendant and plaintiff Vermont Agency of Natural
 Resources entered into a consent order in superior court requiring defendant
 to construct a new septic system by October 15, 1990.  The consent order
 made no provision for the assessment of a penalty if defendant failed to
 comply.  On June 6, 1991, the Secretary issued an administrative order pur-
 suant to the Uniform Environmental Law Enforcement Act, 10 V.S.A. {{ 8001-
 8017. The order found that defendant had violated several provisions of the
 consent order, assessed a penalty of $20,000, and required defendant to
 construct a septic system within twenty days.
      Under 10 V.S.A. { 8008(a), "[t]he secretary may issue an administrative
 order when the secretary determines that a violation exists."  A violation
 is defined as "noncompliance with one or more of the statutes specified in
 section 8003 of this title, or any related rules, permits, assurances, or
 orders." Id. { 8002(9).
      Defendant requested a hearing before the Environmental Law Division and
 moved to dismiss the administrative order on jurisdictional grounds.  The
 Environmental Law Division denied defendant's motion, concluding that the
 term "orders" in { 8002(9) is not limited to administrative orders or to
 assurances and orders issued by the Environmental Law Division, but also
 includes orders of a superior court.  The division concluded that it was
 within the jurisdiction of the Secretary of the Agency of Natural Resources
 to issue an administrative order for noncompliance with a superior court
 consent order.
      4 V.S.A. { 113 states, "The superior court shall also have exclusive
 jurisdiction to hear and dispose of any requests to modify or enforce any
 orders in civil cases issued by the superior or district court other than
 orders relating to those actions listed in sections 437 and 454 of this
 title."  (Emphasis added.)  Defendant argues and plaintiff concedes that the
 superior court has exclusive jurisdiction to enforce or modify the outstand-
 ing consent order.  Plaintiff argues, however, that it is not seeking to
 enforce the consent order but that it has initiated a new cause of action
 based on violations of a consent order related to the statutes specified in
 { 8003(a).
      We do not agree that the administrative order constitutes a new cause
 of action.  Plaintiff does not allege any new environmental violations.  See
 10 V.S.A. { 8003(a) (itemizing statutes that secretary may take action to
 enforce).  Rather, the administrative order tracks the consent order and
 cites violations thereof.  Plaintiff is seeking, in effect, to enforce the
 consent order through an administrative order, a procedure not authorized
 under 4 V.S.A. { 113.  Where two statutory provisions conflict, interpre-
 tations that harmonize and give effect to both are favored.  Lomberg v.
 Crowley, 138 Vt. 420, 423, 415 A.2d 1324, 1326 (1980).  Accordingly, we
 conclude that the term "orders" as used in 10 V.S.A. { 8002(9) does not
 include orders of the superior court.
      Reversed and remanded to the Environmental Law Division with
 instructions to grant defendant's motion to dismiss the administrative
 order.



                                    FOR THE COURT:



                                    Ernest W. Gibson III, Associate Justice