Agency of Natural Resources v. Towns

Agency of Natural Resources v. Towns (2000-009); 173 Vt. 552; 790 A.2d 450

[Filed 26-Sep-2001]

[Motion for Reargument Denied 16-Jan-2002]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-009

                             JANUARY TERM, 2001


Agency of Natural Resources	       }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Environmental Court
                                       }	
Richard F. Towns	               }
                                       }	DOCKET NO. 162-10-96 Vtec

                                                Trial Judge: Merideth Wright

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


       Defendant Richard F. Towns appeals from a decision of the
  Environmental Court affirming a  determination by the Secretary of the
  Agency of Natural Resources (Agency) that Towns had  operated a solid waste
  management facility without proper certification in violation of 10 V.S.A.
  §  6605(a).  Towns argues that he was engaged in recovery and reuse of
  materials, not solid waste  disposal, and that the Agency had no authority
  to issue an administrative order directing Towns to  clean up the site.  He
  also contends that the Agency's action was barred by the statute of
  limitations.   We affirm.

       This case has a lengthy history.  In 1972 Towns purchased a parcel of
  land in the Town of  Johnson and built a home there.  The rear foundation
  of the home was laid next to a steep  embankment. To create a useable
  backyard, he filled the space with construction and demolition  waste along
  with solid waste.  He also filled a hole in his front yard with similar
  materials.   Incidental to his normal course of business as a trash hauler,
  Towns continued to dump materials on  the property until he sold it to
  James and Christine Wilkens in June of 1987.

       Before he sold the property, Towns informed the Wilkenses of the
  existence of the fill.  He  assured them that it was "safe and legal," but
  they remained concerned.  Within a few weeks of  purchasing the property in
  1987, Mrs. Wilkens contacted the Attorney General's office, hoping to 
  receive some assistance.  She testified that she spoke with someone in the
  office, though she could  not identify that person.  In that conversation,
  she identified herself and her property and explained  her concern over the
  fill that Towns had dumped in her back and front yards.  Based on her
  responses  to several questions about the condition of the site, she was
  told that such dumping was a common  occurrence in Vermont, and that the
  State had no authority to remedy the problem because the fill  was covered,
  was not visible from the road, and was not leaching into water.  

 

  There is also some  evidence that Mrs. Wilkens attempted to contact the
  Attorney General's office second time in 1989,  but again the office took
  no action.

       In 1992, the Wilkenses attempted to sell the property purchased from
  Towns.  A prospective  purchaser, concerned over the contents of the fill,
  arranged to have test pits dug to determine the fill's  content.  A friend
  of the prospective purchaser contacted an environmental enforcement officer
  for  the Agency, who then observed the dig.  Each of the test pits revealed
  solid waste.

       In 1996, the Agency issued an administrative order pursuant to 10
  V.S.A. § 8008, alleging that  Towns had constructed and operated a solid
  waste disposal facility without the proper certification in  violation of
  10 V.S.A. § 6605(a).  The order required Towns to hire a consultant to
  develop a site  remediation plan, remove the solid waste, and restore the
  site with clean fill.  Towns appealed the  Agency's order to the
  Environmental Court, which affirmed the Agency's determination that Towns 
  violated 10 V.S.A. § 6605(a) but vacated and remanded the administrative
  order to clarify the  remediation section.

       In Agency of Natural Resources v. Towns, 168 Vt. 449, 724 A.2d 1022
  (1998) (Towns I),  Towns advanced several arguments, including claims that
  there was no violation under applicable  law, that the Agency had no power
  to issue the order, and that the action was time-barred.  We  reversed and
  remanded for additional findings based solely on Towns's statute of
  limitations claim  and declined at that point to address his other claims. 
  The Environmental Court has determined that  the action was indeed timely,
  and now Towns appeals that determination and renews each of his  original
  claims for relief.

       We address first the statute of limitations issue.  Under 10 V.S.A. §
  8015, an environmental  enforcement action must be "commenced within the
  latter of: (1) six years from the date the violation  is or reasonably
  should have been discovered; or (2) six years from the date a continuing
  violation  ceases."  The trial court determined that the violation ceased
  when Towns sold the property, and the  Agency has not challenged this
  finding.  Accordingly, in Towns I we held the sole issue was whether  the
  Agency's enforcement action was brought within six years from the date the
  violation was or  reasonably should have been discovered.  Thus, applying
  principles of agency and notice, we held  that if Mrs. Wilkens's 1987
  communication to the Attorney General's office was sufficient reasonably 
  to have triggered an investigation, the action would be barred by the
  statute of limitations, even if the  Agency did not know of the
  communication.  Id. at 454, 724 A.2d  at 1025.

       The Environmental Court, however, failed to make critical findings on
  the identity of the  person with whom Mrs. Wilkens had spoken and the
  nature and content of the information she had  conveyed.  The court also
  failed to draw any conclusions "as to whether that information should 
  reasonably have triggered an investigation that would have disclosed the
  alleged violation and  prompted an enforcement action."  Id.  We remanded
  this case to the Environmental Court for further  proceedings to address
  these factual and legal issues, keeping in mind that the burden of
  establishing  a statute-of-limitations defense rests with the party
  pleading it, here Towns.

 

       Upon remand, both parties agreed that no further evidentiary hearing
  was necessary and  submitted requests for findings based on evidence
  already in the record.  After further review of the  existing evidence, the
  Environmental Court found that there was insufficient evidence in the
  record  to make findings as to the identity of the person in the Attorney
  General's office with whom Mrs.  Wilkens had spoken, this person's area of
  responsibility or whether that person was an attorney.  On  the subject
  matter of the conversation, the court found that Mrs. Wilkens did not
  provide sufficient  information to prompt any further investigation into
  whether the fill material, its source, or its extent  constituted illegal
  disposal.  The court also found that she contacted the solid waste district
  in 1989,  but did not again contact the Attorney General's office.  Based
  on these findings and its earlier  findings, the Environmental Court
  concluded that the violation was not discovered, nor was it  reasonable
  that it should have been discovered, until 1992 when an environmental
  enforcement  officer observed the drilling of the test pits on the
  property.  Thus, the court concluded, the 1996  administrative order is not
  barred by the statute of limitations.  See 10 V.S.A. § 8015.

       In Towns I, we held that the statute of limitations, 10 V.S.A. § 8015,
  accrues upon the  "'discovery of facts constituting the basis of the cause
  of action or the existence of facts sufficient to  put a person of ordinary
  intelligence and prudence on inquiry which, if pursued, would lead to the 
  discovery.'" 168 Vt. at 452, 724 A.2d  at 1024 (quoting Union Sch. Dist. v.
  Lench, 134 Vt. 424, 427,  365 A.2d 508, 511 (1976)); see also Lillicrap v.
  Martin, 156 Vt. 165, 176, 591 A.2d 41, 47 (1989)  ("'only when a plaintiff
  discovers or reasonably should discover the injury, its cause, and the 
  existence of a cause of action'") (quoting Ware v. Gifford Memorial Hosp.,
  664 F. Supp. 169, 171  (D. Vt. 1987)).  The issues upon which we directed
  the court to make findings in Towns I are all  relevant in determining
  whether a person of ordinary intelligence and prudence should have been put 
  on inquiry which, if it had been pursued, would have led to discovery.

       On remand, the Environmental Court concluded that Towns failed to meet
  the applicable  standard in two respects: (1) the content of the
  conversation did not provide sufficient information to  prompt further
  investigation into whether the fill material constituted an illegal
  disposal, and (2) the  court could not identify the position of the person
  to whom Mrs. Wilkens spoke.  We agree.  With  respect to the content of the
  conversation, findings will stand if there is any reasonable and credible 
  evidence to support them, even if contrary evidence exists.  Conclusions
  must be supported by the  court's findings.  Cmty. Feed Store v.
  Northeastern Culvert Corp., 151 Vt. 152, 155, 559 A.2d 1068,  1069
  (1989).The findings the court made are supported by the evidence and
  support the court's  conclusion that discovery did not occur and trigger
  the statute of limitations.

       With respect to the identity of the person in the Attorney General's
  office, because Towns has  the burden of establishing the
  statute-of-limitations defense, the inability to make findings essential 
  to that defense defeats it.  See Capital Candy Co. v. Savard, 135 Vt. 9,
  12, 369 A.2d 1361, 1362  (1976) (trial court's inability to make finding on
  issue is equivalent of making finding against party  with burden of proof
  on issue); Monti v. Granite Savings Bank & Trust Co., 133 Vt. 204, 209, 333 A.2d 106, 109 (1975) (defendant has burden of establishing
  statute-of-limitations defense).  The  equivocal nature of the evidence
  supports the court's inability to make findings on some of the issues 
  specified in the order to remand, specifically whom Mrs. Wilkens contacted
  at the Attorney 

 

  General's office, that person's area of responsibility, and whether that
  person was an attorney.  Thus,  without the court's findings Towns has
  failed to meet his burden.

       Second, Towns argues that he was engaged in the recovery and reuse of
  construction and  demolition materials for landfill, and not the disposal
  or discarding of solid waste in a solid waste  disposal facility.  At the
  time of the alleged disposal, "Solid waste" was defined as "any garbage, 
  refuse, . . . and other discarded material including solid . . . materials
  resulting from . . . commercial .  . . operations."  1977, No. 106, § 1,
  adding 10 V.S.A. § 6602(2).  "Disposal" was defined as "the  ultimate and
  final deposition of any waste on the land."  Id. § 6602(12). (FN1)  A
  "disposal facility"  was defined as "a location at which waste is disposed
  of."  Id. § 6602(13).  Towns was a commercial  trash hauler by trade, and
  the material he used to fill the yard behind his house was garbage and 
  refuse he obtained through his commercial enterprise.  After he picked up
  the discarded material, he  dumped it into his back and front yards with
  the intent that it remain there permanently.  

       Although we acknowledge the dispute over whether construction and
  demolition debris was  treated as solid waste by the Agency, the evidence
  supports the court's conclusion that the material  placed in the yard
  included other refuse clearly falling within the definition of solid waste: 
  hot water  heaters, plastic, insulation, metal strapping, buckets, a rubber
  boot, a bowling ball, venetian blinds, a  ski boot, a container labeled
  paint thinner, a leaking can of paint stain, old skis, an engine block, 
  plastic sheets, metal barrels, and even a kitchen sink.

       Towns's actions are governed by the statutory definition of disposal. 
  He argues, however, that  his actions fit better within the 1989 Solid
  Waste Management Rules definition of  "reuse" as "the  use of a material or
  product more than once before . . . discarded into the waste stream."  
  This  argument is creative, but contrary to the clear meaning of the
  language of the statute and rules.  By  dumping the refuse into his
  backyard, Towns discarded the material into the waste stream by finally 
  disposing of it there.  Even if we were to accept his argument that he
  reused the waste by using it to  create a level backyard, and did not
  intend to create a solid waste disposal facility, his actions fall 
  squarely within the language of the statute.

       Finally, Towns argues that the Agency had no authority to issue an
  administrative order  directing him to clean up the site because the order
  violates the prohibition against retroactive laws  contained in 1 V.S.A. §
  214(b).  Towns makes this argument because the Uniform Environmental 
  Enforcement Act (UEEA), under which the Agency and court acted, became
  effective on July 1,  1989, well after Towns sold the property.  As we held
  in Agency of Natural Resources v. Godnick,  162 Vt. 588, 594, 652 A.2d 988,
  992 (1994), Vermont statutory law and case law normally prohibit 
  retrospective application of new and amended statutes.  1 V.S.A. §§ 213,
  214.  "Retrospective laws  are defined as those which take away or impair
  vested rights acquired under existing laws, or create 

 

  a new obligation, impose a new duty, or attach a new disability in respect
  to transactions or  considerations already past."  Godnick, 162 Vt. at 595,
  652 A.2d  at 992 (internal citation and  punctuation omitted).

       The Environmental Court found that Towns violated 10 V.S.A. § 6605(a)
  by operating a solid  waste management facility without a certificate from
  the Agency.  In evaluating Towns's argument,  we emphasize that this
  statute, which defines the substantive violation, has not changed
  substantially  up until the time at which the Agency issued the
  administrative order, 10 V.S.A. § 6605(a) (in effect  in 1996). (FN2)  
  What changed is the enforcement regime.  UEEA seeks to increase enforcement 
  efficiency of Chapter 159, Vermont's waste management statute.  In 10
  V.S.A. §§  8003(a)(12) and  8008, the UEEA authorizes the Agency to issue
  administrative orders to enforce Vermont's solid  waste management and
  disposal law, including 10 V.S.A. § 6605(a). 

       We turn to Towns's two main arguments why the Agency's administrative
  order is barred as  retroactive under 1 V.S.A. § 214(b): (1) it seeks
  retrospectively to apply the current § 6605(a), and  not the law in effect
  when Towns committed his violation; and (2) § 8008 grants the Agency 
  injunctive power, which Towns argues the Agency did not have from 1980 to
  1987.  The first  argument is necessarily rejected in our conclusion that §
  6605(a) has not changed in any material  respect.  Towns never had a vested
  right to operate the facility without certification, and he has the  same
  duty to obtain certification now as he had during the period of violation. 
  Therefore, the  Agency has not applied § 6605(a) retrospectively.

       Towns further argues that the order is retroactive because the Agency
  is exercising powers  granted him in 1989 to remedy a violation that
  terminated two years prior, in 1987.  In essence,  Towns argues that under
  the enforcement provisions of the solid waste management law in effect 
  before § 8008 was enacted, the Agency had no power to issue administrative
  orders under the  section.  We must, however, evaluate the Agency's current
  enforcement powers in relation to the  enforcement powers present when
  Towns committed the violation.  The earlier enforcement  provisions
  authorized the Agency to "[i]ssue compliance orders as may be necessary to
  effectuate the  purposes of [Chapter 159]."  10 V.S.A. § 6603(2).  To
  supplement this power, the Agency was  granted broad power to remedy any
  imminent and substantial health or environmental hazards.   1977, No. 106,
  § 1, adding 10 V.S.A. § 6610 (repealed 1987).  The Agency could also
  request that  the attorney general or a state's attorney seek to enjoin
  such activities.  Id. § 6610(2).  Under the more  efficient procedural
  framework of the UEEA, the Agency's powers have been consolidated.  

 

  Now, the Agency has the direct authority to issue administrative orders
  when it determines there has  been a violation of any of a specified list
  of environmental statutes, including the solid waste  management law.  Id.
  § 8003(a).  This consolidated authority supplements any authority to
  initiate  criminal or civil proceedings.  Id. § 8003(b).

       "Statutory changes that are procedural in nature, as opposed to those
  that affect preexisting  rights and obligations," we said in Godnick, "may
  be applied retrospectively."  162 Vt. at 595-96,  652 A.2d  at 993. 
  "Enforcement efficiency may have improved under an improved procedural 
  framework, but defendant has no preexisting right in a less efficient
  enforcement scheme as long as  the same substantive standards are used." 
  Id. at 596, 652 A.2d  at 993.  In this case, the substantive  standards are
  the same and the enforcement regime is more efficient but no more powerful
  than what  existed when Towns's violations occurred.  Enforcement of the
  Agency's order does not violate our  prohibition on retrospective
  application of new statutes.

       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Matthew I. Katz, Superior Judge
                                       Specially Assigned

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.)
                                       Specially Assigned

                                       _______________________________________
                                       Ernest W. Gibson III, Associate 
                                       Justice (Ret.) Specially Assigned



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                                  Footnotes


FN1.  In 1981, the Legislature expanded the definition of "disposal" and
  added a definition of  "facility." 1981, No. 102, § 2, amending 10 V.S.A. §
  6602(10), (12).  Neither change affects the  disposition of this case.

FN2.  The original language prohibited the operation of "any treatment or
  disposal facility"  without a certificate.  1977, No. 106, § 1, adding 10
  V.S.A. § 6605(a).  In 1987, the language was  modified to require
  certification of a "solid waste management facility."  1987, No. 78, § 8, 
  amending 10 V.S.A. § 6605(a).  The term "solid waste management facility"
  is undefined in statute,  but the regulation definition of "solid waste
  management" includes "activities that result . . . in the  disposal of
  solid waste."  8 Code of Vermont Rules 12 036 003-11 (1999).  We conclude
  that the  change in terminology did not change Towns's substantive
  violation in any material respect.