In re Putney Paper Co., Inc.

In re Putney Paper Co., Inc.  (97-081); 168 Vt. 608; 714 A.2d 644

[Opinion Filed 23-Jun-1998]
[Motion for Reargument Denied 9-Sep-1998]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-081

                             FEBRUARY TERM, 1998

In re Putney Paper Company, Inc.      }   APPEALED FROM:
                                      }
                                      }
                                      }     Waste Facility Panel of the
                                      }     Vermont Environmental Board
                                      }
                                      }     DOCKET NOS. WH-600-WFP &
                                                        ID-9-0257-WFP

       In the above-entitled cause, the Clerk will enter:

       Appellant Nathaniel Hendricks appeals an order of the Waste Facility
  Panel (Panel) of the Vermont Environmental Board issuing an amended Solid
  Waste Certification permitting Putney Paper Company to operate an unlined
  landfill cell, and an Indirect Discharge Permit authorizing the indirect
  discharge of leachate into the Connecticut River from the cell. Hendricks
  contends that (1) the Panel's findings concerning the flow of groundwater
  are not supported by the evidence; (2) the Panel improperly applied the
  Water Quality Standards; (3) the Panel's findings are contrary to the
  Ground Water Protection Rule and Strategy; and (4) the Panel improperly
  relied on an expired variance.  Appellee Putney Paper cross-appeals,
  arguing that Hendricks cannot establish party status and therefore has no
  right to appeal the Panel's decision.  We affirm.

       The Agency of Natural Resources (ANR) issued a Solid Waste
  Certification (Certification) to Putney Paper on September 15, 1995,
  authorizing it to construct a new unlined paper sludge landfill cell.  ANR
  separately issued Putney Paper an Indirect Discharge Permit (Permit) on
  January 10, 1996, authorizing the discharge of leachate from the new cell.
  Hendricks, who owns a parcel adjoining the landfill cell to the west,
  separately appealed the Certification and the Permit to the Panel.  Putney
  Paper responded to each of Hendricks's appeals by challenging his party
  status.  The Panel granted Hendricks party status to challenge both the
  Certification and the Permit and ordered the appeals consolidated.  On
  November 8, 1996, the Panel issued Findings of Fact, Conclusions of Law,
  Order, an amended Certification, and an amended Permit authorizing Putney
  Paper to operate the new cell.  Both parties filed motions to alter the
  Panel's decision, which were denied.  This appeal followed.

       We first consider Putney Paper's argument that Hendricks does not have
  party status to appeal either the Permit or the Certification.  The Panel
  originally granted party status to Hendricks under 10 V.S.A. § 6102(b) and
  (c), permitting him to challenge the Certification, and subsequently the
  Permit.  Section 6102(b) provides that adjoining property owners are
  entitled to party status "to the extent that the waste facility would have
  a direct effect on [their] property."  Putney Paper asserts that Hendricks
  was not entitled to party status under § 6102(b) because the Panel's
  ultimate findings demonstrate that the new cell will have no impact on
  Hendricks's property.

       With respect to the Certification, the Panel found that volatile
  organic compounds, semi-volatile organic compounds, and polychlorinated
  biphenyls (PCBs), along with "dioxin, iron, and manganese will leach from
  the sludge."  The Panel recognized the harmful nature of some of the
  leachate, even though the amounts would not be above detectable limits. 
  The Panel granted Hendricks party status, concluding that "[g]iven the
  proximity of Appellant's drinking wells, the

 

  Panel concludes that the Appellant has demonstrated that the Project will
  have some effect on his property."  Relying on similar findings, the Panel
  also granted Hendricks party status to appeal the Permit.

       After the Panel rendered its decision on the merits, Putney Paper
  moved to alter the Panel's finding that Hendricks was entitled to party
  status.  In support of its motion, Putney Paper argued that, having
  concluded that the landfill will have no effect on Hendricks's property,
  the Panel should revise its prior determinations and rule that Hendricks is
  not entitled to party status under § 6102(b).  The Panel affirmed its prior
  determinations, and Putney Paper appeals.

       We review the Panel's decisions regarding party status for abuse of
  discretion.  See In re Chittenden Recycling Servs., 162 Vt. 84, 88, 643 A.2d 1204, 1205-06 (1994).  We will uphold the Panel's decision absent a
  showing that the Panel "`withheld its discretion entirely or that it was
  exercised for clearly untenable reasons or to a clearly untenable extent.'" 
  Id. (quoting Vermont Nat'l Bank v. Clark, 156 Vt. 143, 145, 588 A.2d 621,
  622 (1991)).  The Panel concluded that enough uncertainty existed regarding
  the effect of the leachate on Hendricks's property that it imposed an
  additional condition in the Certification requiring "Putney Paper to
  install observation wells to determine the extent of the westerly flow
  component to further protect the public's health."  In light of this
  uncertainty, we conclude the Panel did not abuse its discretion by
  affirming its finding that Hendricks is entitled to party status.  Having
  determined that Hendricks is entitled to party status pursuant to 10 V.S.A.
  § 6102(b), we decline to consider whether he was also entitled to party
  status under § 6102(c), and we turn to his arguments on appeal.

       Hendricks first argues the Panel erroneously determined that the
  groundwater flows in a southerly direction with a "minimal, intermittent
  westerly flow component" before discharging into the Connecticut River.  He
  contends this finding is not supported by the evidence and must be
  reversed.

       We review the Panel's findings of fact pursuant to 10 V.S.A. §
  6089,(FN1) which provides that the Panel's findings shall be conclusive "if
  supported by substantial evidence on the record as a whole."  Id. §
  6089(c).  Substantial evidence "is evidence properly before the board that
  is relevant and which a reasonable person might accept as adequate to
  support a conclusion." In re Denio, 158 Vt. 230, 236, 608 A.2d 1166, 1170
  (1992).

       A review of the record indicates that there was ample evidence before
  the Panel to support its finding.  A professional hydrogeologist testified
  that the groundwater flows in "a generally southerly direction towards the
  Connecticut River in a slight westerly component on the westerly side of
  the landfill."  A professional engineer also testified that "the regional
  flow of groundwater is clearly towards the river and slightly in a westerly
  direction at the west end of the site."  An environmental engineer for the
  ANR also gave substantially similar testimony. We conclude that the Panel's
  finding is supported by substantial evidence.

       Hendricks next argues that the Panel improperly applied § 1-04 A. 2 of
  the Water Quality Standards (WQS), 6 Code of Vermont Rules 12004052-11
  (1997), and that its findings and

 

  conclusions lack support in the record.  WQS § 1-04 A. 2 requires a finding
  that "[t]here is no alternative method of, or location for, waste disposal
  that would have a lesser impact on water quality including the quality of
  groundwater, or if there is such an alternative method or location, it
  would be clearly unreasonable to require its use."

       The Panel found that Putney Paper owns no other location for the
  disposal of its paper sludge.  Testimony established the only alternative
  methods would be to ship it off-site to a lined landfill at an approximate
  cost of $576,000 per year, or to require Putney Paper to line the New Cell
  at a cost of approximately $3,000,000.  Other evidence showed that at least
  eleven years of monitoring has demonstrated that the discharge from an
  existing cell has not adversely affected the groundwater.  Although
  Hendricks points to other evidence in the record that supports his argument
  that an alternative site would be preferable, matters regarding the weight
  and sufficiency of the evidence are for the Panel and not this Court.  See
  In re Quechee Lakes Corp., 154 Vt. 543, 554-55, 580 A.2d 957, 963-64
  (1990).  Having satisfied itself that the New Cell otherwise complies with
  the WQS, the Panel concluded that there is no reasonable alternative method
  or location available.  The Panel's findings are supported by the evidence,
  and its conclusions supported by the findings.  There is no error.

       Hendricks next argues that the Panel incorrectly interpreted the
  requirements of the Ground Water Protection Rule and Strategy (GWPRS).(FN2) 
  The GWPRS, administered by the ANR, requires a point-of-standards
  application where an activity may affect groundwater. GWPRS § 12-707(1).  A
  point-of-standards application is defined as "the specific location, depth,
  or distance from an activity at which the concentration of a substance in
  ground water is measured for purposes of determining whether a preventive
  action limit or an enforcement standard has been exceeded."  GWPRS §
  12-201(13).  GWPRS § 12-707(3)(c) provides that there shall be a
  point-of-standards application at "any point at or beyond the boundary of
  the property on which the activity is located."

       During the hearings an engineer from ANR testified with respect to
  GWPRS § 12-707(3)(c) that, "[g]iven the direction of the groundwater flow
  for this project, the boundary of the project would be the bank of the
  Connecticut River. . . . Because groundwater becomes surface water at the
  boundary, there is no logical reason for determining whether or not the
  enforcement standards in the GWPRS are met at this point."  Based on this
  and other testimony in the record, the Panel found that the groundwater
  under the landfill site flows toward the Connecticut River, without flowing
  through any adjoining properties, including Hendricks's property. 
  Consequently, the Panel concluded that the landfill cell would not affect
  the appellant's groundwater and therefore that a point-of-standards
  application is not required under GWPRS § 12-707(3)(c).  We hold that the
  Panel's decision is supported by the evidence, and we therefore defer to
  its determination.  See Denio, 158 Vt. at 239, 608 A.2d  at 1171 (we presume
  decisions made within the expertise of an administrative agency are correct
  and we normally defer to an agency's determinations).

       Finally, Hendricks argues that in reaching its decision, the Panel
  improperly relied on a solid waste variance.  In a separate proceeding the
  Vermont Solid Waste and Air Quality Variance Board (Board) granted Putney
  Paper a variance from the Solid Waste Management rules authorizing them to
  maintain, construct, and operate the existing and proposed cells of its
  solid waste landfills.  Hendricks argues that the Board's decision
  impermissibly provided that

 

  the variance would last for the life of the landfill, rather than for a
  single year.  We need not address this issue because Hendricks did not
  preserve it for appeal.

       Hendricks appealed the variance to this Court, the Waste Facility
  Panel, the Environmental Board, the Water Resources Board, the
  Environmental Law Division, and the Windham Superior Court.  The Windham
  Superior Court, the only forum with jurisdiction to entertain the appeal,
  dismissed it for failure to prosecute pursuant to V.R.C.P. 41(b)(3),
  because Hendricks had failed to comply with three separate scheduling
  Orders.  The Dismissal Order operated as an adjudication upon the merits,
  and Hendricks never appealed it.  Furthermore, Hendricks's appeal to the
  superior court did not challenge the duration of the variance.  This
  argument has never been raised below, and we shall not entertain it here.

       Affirmed.


                              BY THE COURT:



                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn S. Skoglund, Associate Justice

                              _______________________________________
                              Ernest W. Gibson III, Associate Justice
                              Specially Assigned

                              _______________________________________
                              John P. Wesley, Superior Judge
                              Specially Assigned




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                                  Footnotes


FN1.  10 V.S.A. § 6107 provides two separate procedures for appealing
  a decision of the waste facility panel, depending on the source of the
  appellant's party status.  Having determined that Hendricks is entitled to
  party status pursuant to § 6102(b), we review the Panel's decision pursuant
  to 10 V.S.A. § 6089.  See 10 V.S.A. § 6107(1).

FN2.  The Ground Water Protection Rule and Strategy has since been
  amended and appears at 7 Code of Vermont Rules 12037001 (Jan. 1998).  All
  references in the text are to the 1988 version which governs the present
  case.