Moretown Landfill Recertification

State of Vermont
Superior Court—Environmental Division
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ENTRY REGARDING MOTION
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In re Moretown Landfill Cell Three Reclassification Docket No. 37-3-13 Vtec
Title: Motion for Declaratory Judgment
Filed: 4/2/2013
Filed By: Applicant-Appellant Moretown Landfill, Inc.
Response in Opposition filed 4/8/13 by Interested Persons Scott Baughman and Lisa Ransom
Response in Opposition filed 4/11/13 by Interested Person Martha Douglass
Response in Opposition filed 4/11/13 by the Vermont Agency of Natural Resources through
the Vermont Attorney General
Reply filed 4/12/13 by Applicant-Appellant
___ Granted ___ Denied X Other
Applicant-Appellant Moretown Landfill, Inc. (Applicant) operates a solid waste facility
located at 187 Palisades Park in Moretown, Vermont. On March 14, 2013, the Vermont Agency
of Natural Resources (ANR) denied recertification of the landfill for failure to control odor and
landfill gas emissions and for the facility’s contribution to violations of groundwater quality
standards. The decision allowed Applicant to continue operating its facility under its prior
certification for 30 days; that is, until April 15, 2013. Applicant appealed the denial to this Court
on March 29, 2013. Now before us is Applicant’s motion requesting a declaratory judgment on
the question of whether Applicant’s prior certification may remain in effect during the
pendency of its appeal, rather than expiring on April 15, 2013.
ANR filed a memorandum in opposition through the Vermont Attorney General.
Neighbors Scott Baughman and Lisa Ransom (Neighbors) filed a memorandum in opposition
through their attorney James Dumont, Esq. Moretown resident Martha Douglas, appearing pro
se, filed a memorandum in opposition to Applicant’s motion, and Ronald Doyle and Dianne
Doyle filed short statements in opposition as well. Applicant filed a reply. Applicant is
represented by Brian Dunkiel, Esq., Andrew Raubvogel, Esq., and Erik Nielsen, Esq.; Appellee
Vermont Agency of Natural Resources is represented by Matthew Chapman, Esq., Gavin J.
Boyles, Esq., and Nicholas F. Persampieri, Esq.; and Martha Douglas, Thomas Douglas, Dianne
Doyle, Ronald Doyle, Christine F. Belanger, David Belanger, and Mark Fischer appear pro se as
interested parties.
Applicant argues that the following provision of the Vermont Administrative
Procedures Act (VAPA) controls this permit renewal situation:
When a licensee has made timely and sufficient application for the renewal of a
license or a new license with reference to any activity of a continuing nature, the
existing license does not expire until the application has been finally determined
by the agency, and, in case the application is denied or the terms of the new
In re Moretown Landfill Cell Three Reclassification, No. 37-3-13 Vtec (EO on Decl. J.) (04-12-13) Pg. 2 of 4.
license limited, until the last day for seeking review of the agency order or a later
date fixed by order of the reviewing court.
3 V.S.A. § 814(b). Parties do not dispute that the landfill activity is of a continuing nature, and
nothing in the record indicates that the recertification application was untimely or insufficient
for the purposes of allowing the DEC to consider whether to approve it (although some parties
contend that the application is insufficient to obtain approval, a separate issue). Rather,
Applicant reasons that its application has not “been finally determined by the agency” until this
Court completes its de novo review; Applicant asserts that the landfill may therefore continue
operating under its prior license throughout the pendency of the instant appeal. Moreover,
Applicant claims that it has a constitutionally protected property interest in continuing
operation under its prior permit throughout the pendency of this appeal.
ANR and Neighbors first contend that this permit renewal situation is governed not by
the general provisions in VAPA, but by the more recent 10 V.S.A. § 8504, governing appeals to
the Environmental Division. Specifically, they argue that Applicant has failed to show that it is
entitled to a stay of ANR’s decision under 10 V.S.A. § 8504(f)(2).1 Further, they argue that to the
extent that VAPA is relevant, ANR’s decision denying recertification constitutes a final
determination by the relevant agency, and that therefore the language of VAPA allows the
landfill to operate under its prior permit only “until the last day for seeking review of the
agency order or a later date fixed by” this Court in our discretion. Finally, they argue that
Applicant has no constitutionally protected property interest in continued operation of its
facility and that, even if it did, Applicant has been afforded ample due process and, in any case,
that Applicant waived this argument by failing to request a hearing at any time during the
nearly four years when its recertification application was pending.
I. 3 V.S.A. § 814(b) does not entitle Applicant’s prior certification to remain in effect
during the pendency of its appeal.
Applicant’s argument that 3 V.S.A. § 814(b) requires the landfill’s previous license to
remain in effect until this Court has completed its de novo review contravenes the statute’s plain
language. In § 814(b), the Legislature clearly distinguished between “the agency” and “the
reviewing court,” providing that when an agency denies an application, the existing license
lasts “until the last day for seeking review of the agency order or a later date fixed by order of
the reviewing court.” Moreover, VAPA contemplates the scenario in the instant case where
“the final decision of an agency is expressly provided by law to be reviewable in superior
court,” (3 V.S.A. § 815(c) (emphasis added)); here, ANR’s final determination is reviewable by
the Superior Court’s Environmental Division. We see no reason for deviating from the plain
meaning of the statute simply because we review the instant appeal de novo.
In sum, as applied to this case, the phrase “finally determined by the agency”
unambiguously refers to ANR’s March 14, 2013 denial of Applicant’s request for recertification.2
1 “Upon petition by a party or upon its own motion for a stay of an act or decision, the environmental
division shall perform the initial review of the request and may grant a stay. Any decision under this
subsection to issue a stay shall be subject to appeal to the supreme court according to the Rules of
Appellate Procedure.” 10 V.S.A. § 8504(f)(2).
2In its reply brief, Applicant argues that this conclusion would contravene “precedent” set by the Water
Resources Board in a footnote to a Prehearing Conference and Order in 2002. (Applicant’s Reply Brief at
In re Moretown Landfill Cell Three Reclassification, No. 37-3-13 Vtec (EO on Decl. J.) (04-12-13) Pg. 3 of 4.
Thus, Applicant’s prior certification does not remain in effect during the pendency of its appeal
under 3 V.S.A. § 814(b). Rather, since the ANR denied the recertification, the existing license
expires on the last day for seeking review of the agency order or a later date fixed by order of
this Court.
3 V.S.A. § 814(b) grants this Court, in its discretion, the authority to fix an expiration
date for a permit that ANR has declined to renew. The statute does not establish criteria under
which a reviewing court may extend the expiration date of a permit, however, and we have
found no case law establishing such standards.
Accordingly, we consider the equity of the matter before us. Here, Applicant has argued
that it will suffer appreciable financial losses if this Court allows its permit to expire on April 15,
within 30 days of ANR’s denial of recertification. Applicant argues that the context of a landfill
is somewhat unique in that closure involves not merely cessation of activity, but a series of steps
to cap off the landfill that, if ANR’s order were to be reversed on appeal, would have to be
undone and redone at the final closure of the facility.3 While we appreciate the harms alleged
by Neighbors and the State attributable to Applicant’s continued operation of Cell 3 of the
facility, under the unique circumstances of this case, we extend, pursuant to 3 V.S.A. § 814(b),
ANR’s March 14, 2013 Order that “[t]he facility shall cease accepting waste on Monday, April
15, 2013” an additional 90 days, or until July 15, 2013. The remainder of ANR’s March 14, 2013
Order remains unmodified.
II. Alternatively, this Court may temporarily authorize continued operations in the
interest of justice.
ANR and Neighbors are correct that 10 V.S.A. § 8504(f) addresses the topic of stays in
the context of appeals to the Environmental Division. First, 10 V.S.A. § 8504(f)(1) enumerates
two circumstances where stays are automatic; those circumstances do not apply to the case
before us. This Court has the ability to issue stays upon petition by a party or upon its own
motion. 10 V.S.A. § 8504(f)(2). This Court’s own rules of procedure regarding stays harmonize
with the statute, providing that:
Unless the act or decision appealed from is automatically stayed pursuant to 10
V.S.A. § 8504(f)(1) by the filing of the appeal . . . the court, after the notice of
appeal has been filed may, on its own motion, or on motion of a party, stay the
act or decision and make such other orders as are necessary to preserve the rights
of the parties upon such terms and conditions as are just.
V.R.E.C.P. 5(e). The Reporter’s Notes state that this Court will ordinarily make such a decision
after notice and hearing, but that, for the purpose of preserving the rights of the parties on
terms and conditions that are fair to all, this Court may “issue a temporary stay ex parte while
determining whether to issue a permanent stay.” See Reporter’s Notes, V.R.E.C.P. 5(e). At this
time, however, Applicant has not submitted evidence sufficient for this Court to issue a stay of
ANR’s final determination for the pendency of this appeal.
Based upon the foregoing, we ORDER that ANR’s March 14, 2013 Order that “[t]he
facility shall cease accepting waste on Monday, April 15, 2013” is extended an additional 90
2, filed Apr. 12, 2013.) We have reviewed this footnote; its interpretation of 3 V.S.A. § 814 remains
unclear, and we do not find it binding.
3 Applicant also challenges ANR’s order on constitutional grounds; we address that claim below.
In re Moretown Landfill Cell Three Reclassification, No. 37-3-13 Vtec (EO on Decl. J.) (04-12-13) Pg. 4 of 4.
days, or until July 15, 2013. The remainder of ANR’s March 14, 2013 Order remains
unmodified. Further, pursuant to V.R.E.C.P. Rules 1 and 2, we ORDER the following.
1. If Applicant wishes to move for a stay of ANR’s March 14, 2013 Order, as modified
by this Order, Applicant must file, if at all, on or before May 3, 2012.
2. If Applicant so files, all parties shall file with the Court on or before May 10, 2013,
in writing their dates of unavailability for the weeks of June 17 and June 24, 201 for a
half day hearing on the motion.
3. Lastly, if Applicant so files, all pleadings in reply to Applicant’s motion shall be filed
on or before May 31, 2013.
In light of our decision granting a temporary extension of ANR’s March 14, 2013 Order
that “[t]he facility shall cease accepting waste on Monday, April 15, 2013” an additional 90 days,
we decline at this time to address the constitutional claims that Applicant raised in its filings.
_________________________________________ April 12, 2013
Thomas G. Walsh, Judge Date
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Date copies sent: ___________ Clerk's Initials ______
Copies sent to:
Attorney Brian Dunkiel for Applicant-Appellant Moretown Landfill, Inc.
Attorneys Andrew Raubvogel and Erik Nielsen, Co-Counsel for Applicant-Appellant
Attorney Matthew Chapman for Appellee Vermont Agency of Natural Resources
Attorneys Gavin J. Boyles and Nicholas F. Persampieri, Co-Counsel for Appellee
Attorney James Allen Dumont for Interested Persons Scott Baughman and Lisa Ransom
Interested Persons Martha Douglas, Thomas Douglas, Dianne Doyle, Ronald Doyle, Christine F. Belanger, David
Belanger, and Mark Fischer.