ANR v. Earth Construction, Inc.

Secretary v. Earth Construction, Inc.  (93-427); 165 Vt 160; 676 A.2d 769

[Opinion Filed 12-Jan-1996]

[Motion for Reargument Denied 6-Mar-1996]

[Motion for Reconsideration Denied 29-Mar-1996]

  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. 93-427


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

Earth Construction, Inc.                     September Term, 1995
and Rodney Jordan


Merideth Wright, J.

  Christine Melicharek, Waterbury, for plaintiff-appellee

  Rodney Jordan, Groton, pro se and for defendant-appellant Earth
  Construction, Inc.


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


       GIBSON, J.   Defendants Earth Construction, Inc. and Rodney Jordan
  appeal two orders of the Environmental Law Division (ELD) imposing
  penalties for the renovation, expansion and use of an access road and
  portions of their gravel pit in East Montpelier in violation of Act 250 and
  the Vermont Wetland Rules.  We affirm.

       Rodney Jordan is the president and executive officer of Earth
  Construction.  In February 1992, Earth Construction purchased a
  seventy-five-acre tract containing a gravel pit in East Montpelier, with a
  plan to continue extracting gravel.  That same month, Earth Construction
  began to improve the access road from Route 2 that descends into the gravel
  pit and forks around the western and southern borders of an area that the
  National Wetlands Inventory map identifies as a Class Two Wetland.  Under
  Jordan's supervision, Earth Construction cut trees and levelled a
  54-by-102-foot turnaround area for trucks, removed a clay bank that
  obstructed the planned path of the road, applied gravel to 115 feet of the
  road, paved a seventy-three-foot section of the road at the intersection
  with Route 2, and installed eight cubic yards of asphalt to

 

  the edge of the gravel pit to facilitate truck passage.  Defendants did not
  apply for a permit to improve the access road or for conditional use
  approval for filling, excavating and grading activities that occurred
  within fifty feet of the wetland.  Nor did they apply for reclassification
  of the wetland to Class Three status so that it would not require
  protection.  During the spring of 1992, after defendants started to remove
  part of a clay berm on the edge of the gravel pit, 200 cubic yards of clay
  slid down the slope of the pit into the wetland.  Defendants removed most
  of the clay with a backhoe, but were unable fully to restore the wetland to
  its previous condition.

       In March 1992, the District 5 Environmental Coordinator asked
  defendants to submit information that would enable the Board to determine
  whether the activities on the site were preexisting and therefore exempt
  from Act 250 jurisdiction.  Defendants responded, but did not provide
  enough information for the Board to make the determination.  On April 17,
  1992, the District Coordinator issued an advisory opinion that, because a
  substantial change had taken place on the property, an Act 250 permit was
  required for the entire site.  Later, after inspecting the site, the Agency
  of Natural Resources (ANR) Enforcement Division served a Notice of Alleged
  Violation on defendants advising them to obtain Act 250 approval before
  continuing any aspect of the gravel pit operation.  In May 1992, defendants
  sought an advisory opinion from the Executive Officer of the Environmental
  Board as to whether there was Act 250 jurisdiction over the project, and
  continued to operate.

       While the Board deliberated the jurisdiction question, the Secretary
  of ANR, on June 3, 1992, served defendants with an Administrative Order
  citing violations of Act 250 and the Vermont Wetland Rules, ordering that
  certain activities cease and remedial actions be taken, requiring
  defendants to apply for an Act 250 permit, and assessing a penalty. 
  Defendants continued to operate without an Act 250 permit, however, until
  an Emergency Order issued from the ELD on June 17, 1992.  Defendants
  requested a hearing before the ELD regarding the Administrative Order.  The
  ELD held hearings on September 9 and 11, and October 22, 1992,

 

  and then continued the hearings at defendants' request to await the Board's
  ruling regarding Act 250 jurisdiction.  Pending receipt of the Board's
  jurisdictional decision, the ELD ruled on February 9, 1993 that defendants
  had violated the wetland rules.

       On October 1, 1992, on behalf of the Executive Officer of the
  Environmental Board, Board counsel issued an advisory opinion, concluding
  that Act 250 jurisdiction did extend over the disputed site.  On November
  9, 1992, defendants petitioned the Board for a declaratory ruling on the
  opinion, but the Board dismissed the petition as untimely on March 16,
  1993.

       At the close of the ELD hearings, defendants moved to dismiss,
  claiming the State had not presented sufficient evidence to support either
  a wetland or an Act 250 violation.  In its order of February 9, 1993, the
  ELD denied the motion, determined that defendants had violated the Vermont
  Wetland Rules, and imposed a penalty of $3,500.  On July 6, 1993, after
  receiving notice of the Board's March 16 dismissal of defendants' petition,
  the ELD reviewed the jurisdictional issue, and determined that defendants'
  activities had brought them under Act 250 jurisdiction.  It held that
  defendants had violated Act 250, and imposed a penalty of $36,497.

       We give deference to the Environmental Board's interpretations of Act
  250 and its own rules, Vermont Agency of Natural Resources v. Duranleau,
  159 Vt. 233, 237, 617 A.2d 143, 146 (1992), and to the Board's specialized
  knowledge in the environmental field.  In re Sherman Hollow, Inc., 160 Vt.
  627, 628, 641 A.2d 753, 755 (1993) (mem.).  We also defer to the
  conclusions of the ELD, in recognition of the ELD's "expertise in
  environmental enforcement," Vermont Agency of Natural Resources v. Handy
  Family Enters., ___ Vt. ___, ___, 660 A.2d 309, 313 (1995), and will affirm
  the ELD if the record supports its findings and the findings support its
  conclusions.  Id. at ___, 660 A.2d  at 314.

                                     I.

                                     A.

       With respect to the Act 250 violation, defendants argue that their
  project is exempt from

 

  Act 250 under the so-called "grandfather" provisions of 10 V.S.A. §
  6081(b).(FN1)  Section 6081(b) exempts certain preexisting uses, but also
  states that permits are required for any "substantial change" in otherwise
  exempt developments.  We have upheld the Environmental Board's two-pronged
  test used to determine whether a substantial change has occurred at a
  preexisting development.  In re H.A. Manosh Corp., 147 Vt. 367, 369-70, 518 A.2d 18, 20 (1986).  Under that test, the Board must determine whether a
  "cognizable physical change" to the preexisting development has occurred,
  id. at 370, 518 A.2d  at 20, and if so, whether it would have potential
  significant impact on the Act 250 criteria in 10 V.S.A. § 6086(a)(1)-(10). 
  In re Barlow, 160 Vt. 513, 521-22, 631 A.2d 853, 858-59 (1993).

       Defendants argue that there was insufficient evidence to support the
  ELD's finding that, since 1970, there had been substantial change at the
  site.  Inasmuch as the ELD assessed an Act 250 penalty only for defendants'
  expansion of the Route 2 access road, we need decide only whether the
  record contains evidence that this portion of defendants' project resulted
  in a substantial change to the preexisting development.  The evidence shows
  that the clearing of trees and excavation of the turnaround, the
  application of gravel to 115 feet of the road, the paving of a larger
  portion of the road, the paving of an apron on the access road, and a
  direct rather than oblique access down into the pit had the potential to
  cause significant impacts.  The possible impacts include air and noise
  pollution from the changed routing of truck traffic (§ 6086(a)(1)), soil
  erosion where the access road entered the pit and at the perimeter of the
  site (§ 6086(a)(4)), reduced highway safety due to a more direct truck
  entrance onto Route 2 (§ 6086(a)(5)), and degradation of the aesthetics of
  the surrounding area (§ 6086(a)(8)).  The evidence supports the ELD's
  findings; consequently, defendants' project comes within Act 250
  jurisdiction.

       Defendants contend, however, that a Memorandum of Understanding
  between the

 

  Environmental Board and the Vermont Agency of Transportation defeats Act
  250 jurisdiction, or, in the alternative, that the Act 250 enforcement
  action is barred by an undefined "Statute of Limitations."  These claims
  were not presented to the ELD and are not preserved for our review.  See
  Dunning v. Meaney, 161 Vt. 287, 292, 640 A.2d 3, 6 (1993) (supreme court
  will not address issues not raised in trial court).  Defendants also assert
  that their improvements of the access road are exempt from Act 250 "Road
  Rule" jurisdiction, under Environmental Board Rule 2(A)(6), because the
  road is not more than 800 feet long and will not provide access to more
  than five parcels of property.  They make this argument for the first time
  in their reply brief; thus, they have not properly presented the issue for
  our review.  See Maynard v. Travelers Ins. Co., 149 Vt. 158, 160, 540 A.2d 1032, 1033 (1987) (issues not raised in appellant's original brief may not
  be raised for first time in reply brief).

                                     B.

       Defendants further contend that the fine imposed by the ELD for the
  Act 250 violations was excessive under 10 V.S.A. § 8010(b).  They argue
  that the ELD did not calculate accurately the economic benefits gained from
  any infraction or, in the alternative, did not give sufficient weight to
  the violators' alleged lack of knowledge of the violation.  In reviewing
  penalties under 10 V.S.A. § 8012(b)(4), the ELD must apply the statutory
  criteria set forth at 10 V.S.A. § 8010(b)(1)-(8).  The record shows that
  the ELD reduced the $49,420 fine imposed in the Administrative Order after
  considering all of the statutory criteria.

       Defendants contend that the ELD should have based its evaluation of
  defendants' economic benefit from the Act 250 violation strictly on the
  cost of the raw material extracted from the gravel pit.  The ELD noted,
  however, in its conclusion that defendants also realized a profit from the
  sale of the extracted materials, and properly included this factor in its
  calculations.  In addition, the ELD, in its discretion, added an amount for
  deterrent effect.

       Earth Construction received notice of its violation in the advisory
  opinion of April 17, 1992, two months before receipt of the June 17, 1992
  Emergency Order.  Act 250 authorizes the

 

  imposition of a $25,000 fine for each violation and additional fines of up
  to $10,000 per day, with a maximum penalty of $100,000.  10 V.S.A. §
  8010(c).  The $36,497 fine issued in this case is reasonable considering
  defendants' continued activity for two months after receiving notification
  of their violation and is well within the parameters of the statute.

                                     II.

       With respect to the wetland violation, defendants argue that their
  project is an allowed use under Vermont Wetland Rules (V.W.R.) §§ 1.1,
  6.2(l) & 6.2(m).  We disagree.  Section 1.1(3) provides an exception for
  projects that are not subject to state permitting requirements regulating
  land use or the protection of wetlands.  Because defendants were required
  to obtain an Act 250 permit for the substantial changes they made to the
  Route 2 access road, their project does not fall within the exception.

       Defendants claim that they merely reconstructed, routinely repaired or
  added to structures and facilities that were in existence on February 23,
  1990, when they began making improvements to the site.  Such activities
  would be exempt from the Vermont Wetland Rules under § 6.2(l), which
  provides an exception for "the maintenance, reconstruction or routine
  repair of structures and facilities . . . in existence as of February 23,
  1990 or additions to such structures or facilities which does not involve
  substantial expansion or modification."  The ELD found, however, that the
  clay berm that slid into the wetland was not a "structure" or a "facility." 
  We agree.  See Handy Family Enters., ___ Vt. at ___, 660 A.2d  at 313 (Court
  defers to ELD's expertise in environmental enforcement matters).

       Defendants also contend that they were engaged in the routine
  maintenance of manmade sedimentation ponds and were therefore exempt under
  Vermont Wetland Rule § 6.2(m).  Section 6.2(m) provides an exception for
  "routine maintenance and upkeep, including the removal of vegetation or
  maintenance dredging, from manmade ponds less than two acres in size." 
  Here again, we defer to the expertise of the ELD and will affirm its
  conclusions if they are supported by the record.  Id. at ___, 660 A.2d  at
  314.  The ELD found that defendants had not maintained

 

  an active sedimentation pond on the site, but instead had engaged in
  filling, excavating and grading activities within fifty feet of the Class
  Two wetland without obtaining conditional use approval for those activities
  under V.W.R. § 6.3 or reclassification of the wetland under V.W.R. § 7. 
  Further, defendants did not take action to prevent the landslide of 200
  cubic yards of clay into the adjacent wetland.  The record supports the
  ELD's conclusion that a wetland violation had occurred.

       Finally, defendants claim that questions of fact and law were presumed
  against them in prior proceedings, violating their right to due process. 
  We will find bias only where it is clearly established by the record. 
  Sherman Hollow, 160 Vt. at 629, 641 A.2d  at 756.  The mere fact that a
  decision was rendered contrary to the wishes of a party does not denote
  bias.  Id. Defendants have failed to point to anything in the record to
  support their claim of bias and rely instead on a presumption of bias
  below.  We find no merit in these allegations.

       Affirmed.

                                  FOR THE COURT:



                                  _______________________________________
                                  Associate Justice

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                                  Footnotes

FN1.   Although defendants waived their statutory right to dispute
  jurisdiction by filing an untimely petition with the Board for a
  declaratory ruling, the ELD chose to rule on the issue so we will 
  review its determination.