State v. Ben-Mont Corp.

STATE_V_BEN-MONT_CORP.91-487; 163 Vt 53; 652 A.2d 1004

[Filed 18-Nov-1994]


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. 91-487


State of Vermont                          Supreme Court

                                          On Appeal from
     v.                                    District Court of Vermont
                                           Unit No. 1, Bennington  Circuit

Ben-Mont Corporation                      September Term, 1994


Arthur J. O'Dea, J.

Jeffrey L. Amestoy, Attorney General, Ron Shems and Susan R. Harritt,
 Assistant Attorneys General, and Debbie Kerzner, Law Clerk (On the Brief),
 Montpelier, for plaintiff-appellee 

Raymond G. Bolton, Bennington, and Michael J. O'Neill and Paul J. Leikhim,
 Boston, Massachusetts, for defendant-appellant 


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


     ALLEN, C.J.   Defendant appeals from a superior court judgment denying
its pretrial motion to dismiss the information for failure to charge a crime
under Vermont's Waste Management Act, 10 V.S.A.  6601-6632.  Defendant
also appeals the criminal fines as excessive.  We affirm. 

     Defendant, a Massachusetts corporation, operated a manufacturing
facility in Bennington, Vermont which made Christmas wrapping paper. 
Officials from the Agency of Natural Resources (ANR) inspected defendant's
facility eight times between February 1986 and November 1988.  During the
inspections, ANR collected and tested samples of ink wash and alkaline
stripping solution used to clean defendant's printing equipment.  ANR
determined the water-based ink wash to be a hazardous waste because of its
ignitability.  ANR identified the by-product of the alkaline solution as a
highly corrosive sludge, also a hazardous waste by definition.  Because
defendant did not obtain the required certification, ANR concluded that
defendant had improperly generated and stored hazardous waste. 

 

     ANR issued four separate Notices of Violation to defendant for violating
Vermont's Waste Management Act and several rules promulgated by ANR pursuant
to the Act.  In November 1988, due to defendant's failure to comply
voluntarily, ANR referred the matter to the Attorney General's office.  That
office conducted an inspection and confirmed that hazardous wastes were
improperly stored on defendant's premises. 

     In June 1990, the Attorney General charged defendant with twenty-four
misdemeanor counts of improperly managing its hazardous wastes in violation
of 10 V.S.A.  6606(a) and other specified regulations under Vermont's
Hazardous Waste Management Rules (VHWMR). Defendant moved for dismissal on
seventeen of the counts on grounds that the information failed to charge an
offense.  Defendant argued that 10 V.S.A.  6612(a), which provides criminal
penalties for "violations of rules promulgated herein," applied only to rules
contained within the Waste Management Act; therefore, the rules promulgated
by ANR were unenforceable under  6612(a).  The court denied defendant's
motion. 

     The parties entered into a plea agreement in which defendant pled guilty
to four counts and reserved the right to appeal the court's denial of its
pretrial motion, if the fines exceeded $40,000.  The State agreed to
recommend fines of not less than $5,000 and not more than $20,000 for each
count and to dismiss all remaining charges with prejudice.  Defendant entered
a guilty plea pursuant to the agreement.  At sentencing, the trial court
imposed fines totalling $65,000 for the four counts.  This appeal followed. 

     Defendant raises three issues on appeal.  First, it claims the trial
court erred when it denied defendant's motion to dismiss the information for
failure to charge a crime.  In support of its position, defendant challenges
as erroneous the trial court's construction of  6612(a). Second, defendant
contends that  6612 is unconstitutional.  Third, defendant claims the fines
were excessive because  6612(b) limits civil fines to $10,000 for each
violation. 

     Defendant's first claim is that the trial court erred when it concluded
that 10 V.S.A.  6612(a) authorized criminal prosecutions for violations of
ANR regulations promulgated 

 

pursuant to Vermont's Waste Management Act. Section 6612 provides in relevant
part: 


     (a) Any person who violates any provision of this chapter, the
     rules promulgated herein or the terms or conditions of any order
     of certification granted by the secretary, shall be subject to a
     criminal penalty not to exceed $25,000.00 or imprisonment for not
     more than six months, or both.

     (b) Any person who violates any provision of this chapter relating
     to solid or hazardous waste management, the regulations
     promulgated thereunder, or the terms or conditions of any order
     relating to solid or hazardous waste management or . . . facility
     certification, shall be subject to a civil penalty not to exceed
     $10,000.00.

     . . .

     (d) Any person who commits any of the following in violation of
     any provision of this chapter, the rules adopted under this chapter,
     or the terms and conditions of any order or certification under this
     title shall be subject to a criminal penalty not to exceed
     $250,000.00, or imprisonment for not more than five years, or
     both ...

10 V.S.A.  6612 (emphasis added).

     Defendant urges us to apply literal meaning to the word "herein," and
hold that in  6612(a), the phrase "rules promulgated herein" refers only to
rules actually located within chapter 159.  To buttress this argument,
defendant contends the three different references to rules within  6612 are
intended to have distinct meanings.  Defendant also suggests that the use of
different words when referring to rules makes it clear that the Legislature
reserved for itself the sole authority to define crimes.  Therefore,
defendant concludes that the State cannot prosecute ANR violations. 

     In contrast, the State argues that it is obvious from the statute as a
whole that the phrase "rules promulgated herein" refers to rules adopted
under chapter 159.  Such a construction, argues the State, would promote the
Legislature's intent to criminalize violations of all regulations and to
ensure that Vermont's Waste Management Act is compatible with the Resource
Conservation and Recovery Act (RCRA) and its attendant regulations.  We agree
with 

 

the State. 

     In cases of statutory construction, our task is to discern the
Legislature's intent and give effect to that intent.  Spears v. Town of
Enosburg, 153 Vt. 259, 261, 571 A.2d 604, 605 (1989).  In determining the
legislative intent, we may review the entire statutory scheme.  Id. at 262,
571 A.2d  at 605-06 ("Statutory construction compels the court to look beyond
the language of a particular section standing alone, to the whole statute,
the subject matter, its effects and consequences and the reason and the
spirit of the law").  Our interpretation must further fair, rational results,
id. at 261, 571 A.2d  at 605, and if possible, give meaning and effect to all
the  statutory language, State v. Baldwin, 140 Vt. 501, 512, 438 A.2d 1135,
1141 (1981).  The history and framework of chapter 159 reflect the
Legislature's intent to criminalize violations of ANR rules promulgated
pursuant to the Waste Management Act. 

     Vermont's Waste Management Act, 10 V.S.A. chapter 159, was enacted to
address the increasingly complex social, economic and legal problems of
managing solid and hazardous wastes.  10 V.S.A.  6601; see also Note, Solid
Waste Source Reduction and the Product Ban: A Commerce Clause Violation?, 13
Vt. L. Rev. 691, 696-98 (1989) (describing history of Vermont's solid waste
management legislation).  Chapter 159 was modeled after and enacted to comply
with the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C.
 6901-6991, chapter 82 (Solid Waste Disposal).  See Note, supra, at 696
(discussing enactment of chapter 159 in response to RCRA).  Like RCRA,
chapter 159 outlines a comprehensive cradle- to-grave scheme for managing the
generation, treatment, storage, transportation and disposal of waste.  See
United States v. Johnson & Towers, Inc., 741 F.2d 662, 666 (3rd Cir. 1984)
(describing scope and purpose of RCRA).  Both RCRA and chapter 159 rely
heavily on environmental agencies to implement their statutory goals. 
Compare 10 V.S.A.  6603(1) (secretary has authority to promulgate rules to
implement purpose of statute) with 42 U.S.C.  6907 (same); and 10 V.S.A. 
6610 (secretary of agency authorized to enforce compliance) with 42 U.S.C. 
6928(a) (same). 

 

     Like RCRA, Vermont's Waste Management Act initially provided for only
misdemeanor penalties.  See Johnson & Towers, 741 F.2d  at 667 (prior to 1978,
RCRA authorized only misdemeanor penalties); 1977, No. 106,  1, codified at
10 V.S.A.  6612 (providing misdemeanor penalties only).  Amendments to RCRA
in 1978 authorized felony prosecutions and expanded the scope of the criminal
provisions.  See Johnson & Towers, 741 F.2d  at 667. Civil penalties were
added to RCRA in 1980.  42 U.S.C.  6928(g) (amended 1980).  In 1983, the
Vermont Legislature expanded the scope of  6612, adding subsection (b) to
institute civil penalties for violations of hazardous waste provisions and
regulations.  1983, No. 148 (Adj. Sess.),  8.  In 1987, Act 78 extended the
civil penalties to violations of solid waste provisions and regulations. 
1987, No. 78,  15.  Finally, in 1990, the Legislature added a felony
provision, 10 V.S.A.  6612(d).  1990, No. 286 (Adj. Sess.),  5. 

     Section 6612 imposes felony and civil penalties within RCRA's
guidelines.  See 42 U.S.C.  6929 (prohibiting less stringent state
requirements); compare 10 V.S.A.  6612 (b), (c) and (d) (providing civil
and criminal penalties, each day of violation constitutes a separate
violation) with 42 U.S.C.  6928 (same).  In addition,  6612(a) imposes
misdemeanor penalties which are permissible under 40 C.F.R. 271.1(i)(1)
(1993) (authorizing stricter penalties and requiring minimum civil and felony
penalties).  Although 42 U.S.C.  6928 does not explicitly authorize
criminal enforcement of RCRA's underlying regulations, the case law makes
clear that violations of RCRA regulations may constitute criminal violations
of RCRA.  See, e.g., United States v. Baytank, 934 F.2d 599, 602 (5th Cir.
1991) (violations of storage rules subjected defendant to criminal
liability).  The Vermont Legislature's effort to mirror RCRA and its
enforcement provisions reflects a legislative intent to criminalize
violations of ANR rules. 

     The framework of chapter 159 further evinces the Legislature's intent to
criminalize violations of ANR rules.  The Legislature relied on the expertise
of ANR and its rule-making authority to give full effect to the Act's purpose
and goals.  See 10 V.S.A.  6603 (authorizing secretary pursuant to the
Administrative Procedures Act to adopt, amend and repeal rules to 

 

implement the provisions of chapter 159).  The only rules contemplated
pursuant to chapter 159 are ANR rules or other agency rules promulgated in
conjunction with ANR.  See 10 V.S.A.  6603 (authorizing ANR rules); id. 
6607 (authorizing Agency of Transportation to promulgate rules in conjunction
with ANR); id.  6608a (authorizing Commissioner of Agriculture to
promulgate rules in conjunction with ANR). 

     In light of  6612's legislative history and the Legislature's intent
to delegate to ANR the responsibility for implementing chapter 159, it is
only logical that the rules promulgated by ANR be enforced through chapter
159's penalty provision.  Therefore, we hold that in the context of chapter
159, the phrase "rules promulgated herein" in  6612(a) means the rules
promulgated pursuant to chapter 159.  Criminalizing violations of ANR
regulations gives chapter 159 its intended effect -- a comprehensive
cradle-to-grave waste management system with guidelines and incentives to
ensure individual responsibility.  See 10 V.S.A.  6601 ("overall problems
of solid waste management . . . necessitate state action through . . .
regulation . . . and the implementation of a program . . . which is
environmentally sound and encourages innovation and individual
responsibility").  Our interpretation also gives full effect to the
Legislature's effort to mirror RCRA enforcement. 

     While we agree with defendant that "herein" literally means within or
in, we do not agree that a literal meaning should necessarily be applied to
the phrase at issue.  We will not confine ourselves to the literal meaning of
a statute when it contradicts the legislative intent.  See, e.g., Baldwin,
140 Vt. at 511, 438 A.2d  at 1140 (to avoid frustrating legislative intent,
statutory definitions located in separate chapter without enabling provisions
will not be made inoperative by unartful legislative drafting).  Likewise,
defendant's second argument that  6612(a)'s language was deliberately
inserted and should be given its distinctive meaning would normally be
persuasive, but for its ultimate result.  See Russello v. United States, 464 U.S. 16, 21 (1983) (differing language in different subsections concluded not
to have same meaning and not to be result of simple mistake in draftsmanship;
"[w]here Congress includes particular language in one 

 

section of a statute but omits it in another section of the same act, it is
generally presumed that Congress acts intentionally and purposely") (emphasis
added).  While the Legislature's frequent and distinctive references to
"rules" within  6612, and throughout chapter 159, suggests a distinctive
interpretation,(FN1) we will not construe a statute in a way that renders a
significant part of it surplusage.  Trombley v. Bellows Fall Union High
School, 160 Vt. 101, 104, 624 A.2d 857, 860 (1993).  Because there are no
rules contained in chapter 159, defendant's reading of "herein" makes the
phrase wholly inoperative and leaves a gaping hole in the statute's
enforcement.  Moreover, it would be illogical to allow for misdemeanor
enforcement of the terms and conditions of a permit granted by the secretary
of ANR, but not for the regulations that give those permits effect.  We
cannot endorse an interpretation which leads to meaningless or incongruous
results.  See Town of Enosburg, 153 Vt. at 262, 571 A.2d  at 606 (incongruous
construction should be avoided); Baldwin, 140 Vt. at 511, 438 A.2d  at 1140
(presumption that enactment of meaningless legislation is not intended).  Our
construction of  6612(a) gives effect to every phrase and is in harmony
with the spirit of the law.  Baldwin, 140 Vt. at 511, 438 A.2d  at 1140. 

     Defendant's constitutional challenges to  6612 also fail.  On appeal,
defendant argues that if  6612(a) criminalizes violations of ANR
regulations, then  6612(a) by itself, and  6612(a) and (b) together, are
unconstitutional under the Equal Protection and Due Process Clauses of both
the United States and Vermont Constitutions.  In addition, defendant contends
that because the ANR regulations are not contained within the statute,
criminal prosecutions of such regulations lack fair warning, and could lead
to arbitrary and discriminatory enforcement. In its pretrial motion,
defendant challenged the Attorney General's information as violative of the
Separation of Powers Clause of the Vermont Constitution and the Due Process
Clause of the 

 

United States Constitution.  Defendant also claimed the State's investigation
and proceedings pursuant to 13 V.S.A.  5131-5137 were fundamentally
unfair and violative of due process. Defendant, however, did not challenge 
6612(a) on any constitutional basis in its pretrial motion. Defendant cannot
introduce a different constitutional challenge for the first time on appeal
on the pretext that it made a constitutional challenge below. See  State v.
Lettieri, 149 Vt. 340, 344, 543 A.2d 683, 685 (1988) (party precluded from
raising objection on appeal on grounds different from those raised below). 

     Next, defendant contends the quotation it used in its pretrial motion
from United States v. Bass, 404 U.S. 336, 347 (1971), discussing the policy
of requiring fair warning in criminal statutes, was sufficient to preserve a
due process challenge on appeal.  To properly preserve an issue for appeal a
party must present the issue with specificity and clarity in a manner which
gives the trial court a fair opportunity to rule on it.  See State v. Emmi,
160 Vt. 377, 380, 628 A.2d 939, 941 (1993) (Court will not consider
constitutional theory not offered before trial court).  Defendant cited Bass
for the proposition that courts should construe criminal statutes narrowly
and resolve ambiguities in favor of defendants.  The mere mention of
fairness, especially when buried in an unrelated argument regarding statutory
construction, lacks the specificity and clarity necessary to preserve the
claim now being made.  Because of our disposition regarding the statutory
construction of  6612(a), defendant's plain error argument also fails.  We
decline to entertain defendant's due process and equal protection claims
because they were not properly preserved. 

     Finally, defendant argues that the court abused its discretion by
imposing excessive fines and also suggests that the $20,000 fine for each
count was excessive as a matter of law.  Based on our construction of
6612(a), defendant's claim that the fines impermissibly exceeded the
$10,000 limit of the civil sanctions, 10 V.S.A.  6612(b), is unavailing.  
The fines imposed were within the permissible limits, because  6612(a)
authorizes fines up to $25,000 for each violation. 

 

     Defendant's claim that the trial court abused its discretion by imposing
excessive fines is likewise unavailing.  Defendant merely alleges the fines
were excessive, but fails to identify any factual error or prejudice below. 
See State v. Chambers, 144 Vt. 377, 384, 477 A.2d 974, 979 (1984) (absent
showing of contradictory evidence by defendant of material inaccuracy,
allegations of inaccuracy in presentence investigation report does not amount
to error).  The record, which includes defendant's own admission that it
knowingly and repeatedly stored hazardous waste in violation of ANR
regulations, amply supports the court's determination.  The court's
sentencing statement also reflects a thoughtful discussion and resolution of
both parties' objections to the presentence investigation report and other
information taken into account, as required by V.R.Cr.P. 32(4)(c).  In
delivering the sentence, the court noted that each of the offenses was an
egregious violation of the rights of the citizens of this state to a clean
environment.  The fines were within the bounds of the court's discretion. 

Affirmed.


                              FOR THE COURT:



                              _______________________________________
                              Chief Justice


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                             Footnotes

FN1.   Cf.  6608a (rules promulgated by the Secretary)  6610a (rules
 promulgated thereunder);  6612(a) (rules promulgated herein);  6612(b)
 (rules promulgated thereunder);  6612(d) (rules adopted under this
 chapter).