Agency of Natural Resources v. Towns

• Decision Date: 26 September 2001
• Docket Number: No. 00-009.,00-009.
• Parties: AGENCY OF NATURAL RESOURCES v. Richard F. TOWNS.
• Court: Vermont Supreme Court

790 A.2d 450

AGENCY OF NATURAL RESOURCES v. Richard F. TOWNS.

No. 00-009.

Supreme Court of Vermont.

Motion for Reargument Denied January 16, 2002.

September 26, 2001.

Present: DOOLEY, MORSE, JJ., and KATZ, Superior Judge, Specially Assigned, ALLEN, C.J. (Ret.) Specially Assigned, and GIBSON, J. (Ret.) Specially Assigned.

ENTRY ORDER

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...