Re Chittenden Recycling Services

RE_CHITTENDEN_RECYCLING_SERVICES.93-419; 162 Vt. 84; 643 A.2d 1204

[Opinion Filed May 27, 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. 93-419


 Re Chittenden Recycling Services             Supreme Court
 and Chittenden Solid Waste District
 (Casella Waste Management, Inc.,
 Appellant)
                                              On Appeal from
                                              Waste Facility Panel

                                              March Term, 1994



 Elizabeth Courtney, Chair

 Charles F. Storrow of Kimbell & Storrow, Montpelier for appellant

 Jon T. Anderson and Andrew H. Montroll of Burak & Anderson, Burlington, for
   appellee

 Jeffrey L. Amestoy, Attorney General, and John W. Kessler, Assistant
    Attorney General, Montpelier, for amicus curiae State



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



      JOHNSON, J.   Casella Waste Management, Inc. appeals from an order of the
 Environmental Board Waste Facility Panel denying it party status in proceedings
 under Act 250 and Act 78 to permit and certify a materials recovery facility 
 proposed by the Chittenden Solid Waste District (District).  We affirm.
      The District is a union municipal district, formed in 1987 to comply with
 Act 78 and representing all of the organized municipalities in Chittenden 
 County except Bolton and Underhill.  Its purpose is to provide for the 
 management of solid waste generated by its member municipalities.  To advance

 

 its recycling program, the District planned a recycling center
 called a material recovery facility (MRF), designed to accept and process
 recyclables in mixed rather than in presorted form, which, according to the
 District, offers benefits to consumers and haulers.
      The District applied for two permits to operate the MRF, an Act 78
 interim certification from the Agency of Natural Resources (Agency) and an
 Act 250 land use permit from the District #4 Environmental Commission.
 Casella opposed interim certification of the MRF under Act 78, as proposed
 by the secretary of the Agency.  When interim certification was granted,
 Casella sought party status as an appellant before the Waste Facility Panel,
 arguing that under 10 V.S.A. { 6102(c), "a person shall be entitled to
 participate as a party under the standards for party status in [V.R.C.P.
 24]" and that it qualified.  The Panel denied Casella party status.
      Casella also moved to intervene as a party in the Act 250 permitting
 process.  The Commission allowed Casella to participate as a provisional
 party, postponing a final ruling until after the hearing.  At that time the
 Commission denied party status, concluding that Casella "failed to show how
 its property interest would be affected by the project," and that it "failed
 to show how it could materially assist the Commission by providing testimony
 or cross-examination."  The Commission issued the Act 250 Permit to the
 District, and Casella appealed to the Waste Facility Panel of the Environ-
 mental Board.(FN1)

 

      The Waste Facility Panel consolidated Casella's appeals and concluded
 that its interests were insufficient to support party status in either the
 Act 78 or the Act 250 proceeding.  The present appeals followed and are
 consolidated for review.
                                 I.  Act 78
      Casella argues that it was entitled to party status in the Act 78
 interim certification process of the Agency under 10 V.S.A. { 6102(c), which
 provides in part that "a person shall be entitled to participate as a party
 under the standards for party status in [V.R.C.P. 24]."(FN2) Casella argues
 that it qualifies under Rule 24(a)(2).  To qualify under that rule, Casella
 had to establish that (1) it had "an interest relating to the property or
 transaction which is the subject of the action," (2) the disposition of the
 proceeding before the Panel might "impair or impede [its] ability to protect
 that interest," and (3) its interest was not adequately represented by
 existing parties.
      The Panel concluded that Casella did not meet the Rule 24(a)(2)
 elements and denied Casella party status as to the Agency's certification.
 The Panel reasoned:
           [A]ppellant's interest in preventing illegal flow
           control does not constitute an interest in the MRF or
           Certification for purposes of V.R.C.P. 24(a)(2).  The
           Appellant is not financially liable in any respect for
           the MRF or its operation pursuant to the terms and con-
           ditions of the Certification and Permit.  While the
           Appellant has an economic interest at stake as a com-

 

           petition to the Permittees, it is not one which gives
           rise to an interest in the Certification or MRF.

     We note at the outset that the standard of review in this matter is
 abuse of discretion.  Conservation Law Found. of New England, Inc. v.
 Mosbacher, 966 F.2d 39, 41 (1st Cir. 1992) (construing parallel federal
 rule).  Abuse of discretion requires a showing that the Panel "withheld its
 discretion entirely or that it was exercised for clearly untenable reasons
 or to a clearly untenable extent."  Vermont Nat'l Bank v. Clark, 156 Vt.
 143, 145, 588 A.2d 621, 622 (1991).  Casella has failed establish that the
 Panel abused its discretion.
      As to the first element required for intervention under Rule 24(a)(2),
 we agree that Casella has no interest in either the "property" comprising
 the MRF or the "transaction" involving interim certification of MRF.
 Casella claims no ownership interest, mortgage, liens or attachments or any
 other similar interest in the property in question.  Neither does Casella
 demonstrate a greater interest in the subject matter of the interim certi-
 fication -- preventing illegal flow control -- than any other member of the
 public.  Casella's memorandum of law before the Panel acknowledged as much,
 stating as follows:
           Casella's pre-existing recycling enterprise will be
           directly impacted by the interim certification of the
           District's recycling facility because operation of the
           District's recycling facility will be in direct com-
           petition with Casella's facility.  At a minimum, Casella
           has an interest in assuring that any interim certifi-
           cation that might be issued by the Panel be conditioned
           to prohibit the exercise of illegal flow control by the
           District in the operation of the facility.

 The first sentence of the memorandum indicates only that Casella has an
 "interest" in its own facility, and the second states an "interest" that

 

 Casella shares with members of the public who might be affected by the
 results of any illegal flow control activities by MRF.
               It is true that 10 V.S.A. { 6605b(b)(1) and (2) set forth
 certification criteria that touch on economics:
             (b) The secretary shall not issue an interim certifi-
              cation without affirmatively finding:

              (1) that the operation of the solid waste manage-
              ment facility is necessary and will result in some
              public benefit;

              (2) that there is no present, reasonable, alter-
              native means for waste disposal; . . . .

 It is also true that the existence of Casella's facilities bears on this
 determination.  But these economic issues look to the protection of the
 general public, not to competitors of the MRF.  Cf. In re Vt. Pub. Power
 Supply Auth., 140 Vt. 424, 432, 440 A.2d 140, 143 (1982) (ratepayers'
 liability for repayment of loan being financed entitled them to intervene as
 matter of right).  Unlike the ratepayers in In re Vt. Pub. Power Supply
 Auth., Casella will not have to underwrite the costs of a facility whose
 construction and operation results in no public benefit or is built in the
 face of cheaper, reasonable alternatives.  Casella may be hurt
 competitively, but for it to argue that self-interest is to ask the Agency,
 the Panel, and this Court to ignore the very purposes of 10 V.S.A. {
 6605b(b) (1) and (2) in favor of private economic interests.
     The Panel also found that Casella did not meet the second element for
 intervention because it failed to establish that disposition of the
 proceeding before the Panel would impair Casella's ability to protect its
 interests.  Instead, the Panel found that the lawsuit Casella brought
 against the MRF regarding illegal flow control, which is now pending before

 

 the Chittenden Superior Court, is "another available remedy."  Casella
 argues that this conclusion is erroneous because it might not win its law-
 suit.  Although this is true, it does not undermine the Panel's conclusion
 that Casella's intervention in the Act 78 proceeding was unnecessary because
 Casella had another forum in which to protect its "interest."
                               II.  Act 250
     Casella also argues that it was entitled to intervene in the Act 250
 permitting process as a party under Board Rule 14(B)(1)(a), which states:
           (B) Parties by permission

           (1) The board or a district commission may allow as
           parties to a proceeding individuals or groups, including
           adjoining property owners, not otherwise accorded party
           status by statute upon petition if it finds that the
           petitioner has adequately demonstrated:

           (a) That a proposed development or subdivision
           may affect his interest under any of the provisions of
           section 6086(a) . . . .

 Casella identified criteria under 10 V.S.A. { 6086(a)(1)(B) (waste disposal)
 and (a)(10) (conformity with local or regional plan or capital program under
 chapter 117 of Title 24) as interests affected by the proposed facility.
     In denying Casella party status in the Act 250 proceeding, the Waste
 Facility Panel stated:
                   [T]he Appellant claims that the interest affected in
                   this proceeding is the protection of a pre-existing
                   investment, that is, the Appellant's competing
                   recycling facilities in Chittenden and Addison counties.
                   This is not a criterion under 10 V.S.A. 6086(a).  The
                   Panel concludes that the Appellant has failed to demon-
                   strate that the MRF may affect its interest under any of
                   the Act 250 criteria.

 Accordingly, the Panel denied Casella's request for party status under Board
 Rule 14(B)(l)(a).

 

     When reviewing Environmental Board interpretations of Act 250 and of
 its own rules, we accord the Board a high level of deference.  Vermont
 Agency of Natural Resources v. Duranleau, 159 Vt. 233, 237, 617 A.2d 143,
 146 (1992).  Absent compelling indications of error, this Court will sustain
 its interpretations on appeal.  In re Capital Inv., Inc., 150 Vt. 478, 482,
 554 A.2d 662, 665 (1988).  Rulings of administrative agencies on party
 status in Act 250 proceedings "are infused with a presumption of validity
 and cannot be overcome unless clear and convincing evidence is presented."
 In re Great E. Bldg. Co., 132 Vt. 610, 612, 326 A.2d 152, 153 (1974).
      Casella fails to offer a reason against deference in this case.
 Despite invoking two provisions of { 6086, its only argument with the grant
 of an Act 250 permit to the District was protection of its own business from
 competition.  Casella argued that this interest implicates Act 250 criterion
 1(B) (10 V.S.A. { 6086(a)(1)(B)), which states:
                   A permit will be granted whenever it is demonstrated by
                   the applicant that, in addition to all other applicable
                   criteria, the development or subdivision will meet any
                   applicable health and environmental conservation depart-
                   ment regulations regarding the disposal of wastes, and
                   will not involve the injection of waste materials or
                   any harmful or toxic substances into ground water or
                   wells.

 Casella then argues that the Environmental Conservation Department
 Regulations referred to in criterion 1(B) include the Solid Waste Management
 Rules promulgated by the Department of Environmental Conservation.  Solid
 Waste Management Rule 6-306(a) incorporates 10 V.S.A. { 6605(b) -- the same
 statute at issue in the Act 78 proceedings discussed in part I.(FN3) Casella

 

 thus claims an interest because the District must show that the facility is
 necessary and that Casella's own facilities are not a reasonable alternative
 to the MRF.
      Casella's argument fares no better in this context than it did in the
 Act 78 context.  Nowhere does criterion 1(B) speak of the competitive
 marketplace, nor is there even a hint that the District's facility or
 operations should be subject to utility-like regulation or that any provider
 of similar services should be able to achieve the status of a regulated
 monopoly.  Rather, "[t]he nature and purpose of Act 250 is to protect and
 conserve the environment of the State and to insure that lands slated for
 development are devoted to uses which are not detrimental to the public
 welfare and interest."  In re Great E. Bldg. Co., 132 Vt. at 614, 326 A.2d 
 at 154.  Any economic issues implicated by Act 250 and 10 V.S.A. {
 6605(b)(1) and (2) are for the protection of the general public.  Thus,
 Casella was properly denied party status because its interests are no
 different from those of the general public.  See id. (property owners were
 properly denied party status, as their interests in traffic flow were
 "subsumed by those of the larger unit, the municipality").
     Affirmed.

                                   FOR THE COURT:



                                   _______________________________
                                   Associate Justice

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                               Footnotes


FN1.  The Waste Facility Panel of the Environmental Board was created by the
 Legislature.  1989, No. 218 (Adj. Sess.), {3, codified at 10 V.S.A. { 6101(a).
 The Panel has "exclusive jurisdiction to review decisions and hear and
 determine appeals" from Agency decisions concerning solid waste management
 facilities.  10 V.S.A. {{ 6101(b), 6104.  Appeals from the Panel are treated
 like appeals from the Environmental Board and are made directly to the Supreme
 Court.  10 V.S.A. { 6107.


FN2.  The District argues on appeal that it does not require an Act 78 interim
 certification permit to operate its recycling center because it is not a solid
 waste management facility.  Accordingly, the District contends that Casella's
 claims to party status in that proceeding are moot.  If the District ever
 raised this issue before the Agency or the Panel, it did not elect to appeal
 the clear, if implicit, determination by the Agency and the Panel that interim
 certification was required.  Thus this issue is not before the Court.

FN3.  The Solid Waste Management Rules exempt all recycling except: "(A)
 [r]ecyclable materials that are stored for six (6) months, [and] (B)
 [r]ecyclable materials that the Secretary determines pose a risk to public
 health and safety, the environment or may cause a nuisance."  Solid Waste
 Management Rule 6-301(b)(4).  Because the Panel made no findings on these
 questions, we shall assume the Rules apply.