Department of Environmental Protection v. Emerson

• Decision Date: 27 July 1989
• Citation: 563 A.2d 762
• Parties: DEPARTMENT OF ENVIRONMENTAL PROTECTION et al. v. John EMERSON.
• Court: Maine Supreme Court

Page 762

563 A.2d 762

DEPARTMENT OF ENVIRONMENTAL PROTECTION et al. v. John EMERSON.

Supreme Judicial Court of Maine.

Argued June 13, 1989.

Decided July 27, 1989.

James E. Tierney, Atty. Gen., Phylis Gardiner (orally), Asst. Atty. Gen., Augusta, for plaintiffs.

Jack H. Simmons, Kaighn Smith, Jr. (orally), Berman, Simmons & Goldberg, P.A., Lewiston, for defendant.

Before McKUSICK, C.J., and WATHEN, GLASSMAN, CLIFFORD, HORNBY and COLLINS, JJ.

McKUSICK, Chief Justice.

Defendant John Emerson owns and operates a tire storage and disposal facility in Durham. This case involves the efforts by the Department of Environmental Protection (DEP) and the State of Maine (collectively referred to as the State) to enforce environmental and fire safety laws against Emerson. On appeal Emerson challenges three orders of the Superior Court (Androscoggin County, Alexander, J.), entered December 22, 1988, in which the court: 1) incorporated and added to the terms of the preliminary injunction entered October 23, 1987; 2) appointed a receiver to ensure no further unauthorized acceptance of tires and to approve contracts for removal of tires; and 3) approved an attachment against Emerson's property in the amount of $20,000. This appeal raises important questions about the final judgment rule and about the allowable scope of a preliminary injunction. We hold the court's December 22, 1988, orders appealable and find no error in any of them.

I. Facts and Procedural History

John Emerson owns 90 acres of land in Durham on which he operates both a municipal landfill for the Town of Durham and the tire storage and disposal facility that is the subject of this appeal. Emerson has been accepting tires at this facility since about 1960, and estimates that he has some 9 million tires on the property. Some of the tires are located near Newell Brook, a classified ¹ body of water that passes through the property.

After inspecting Emerson's property in October of 1986, DEP notified Emerson that his facility was in violation of the waste management, fire protection, and water quality laws, and that he had expanded the facility without a permit in violation of 38 M.R.S.A. § 1306(1) (1989). DEP directed Emerson not to accept any more tires except those delivered pursuant to a contract he has with the Town of Durham. Nevertheless, Emerson continued accepting truckloads of tires, and further DEP inspections in April and August of 1987 confirmed that the tire piles had expanded. In addition, in May of 1986 a representative of the Department of Conservation's Bureau of Forestry inspected Emerson's tire facility and ordered that no further tires be accepted because the site was in violation of the hazard clearance law, 12 M.R.S.A. § 9301 (1981).

On September 16, 1987, the State filed a complaint for injunctive relief and for civil penalties alleging that Emerson was operating the municipal landfill and the tire storage and disposal facility in violation of the Hazardous Waste, Septage and Solid Waste Management Act, 38 M.R.S.A. §§ 1301 to 1319-U (1989); the DEP's Solid Waste Management Rules, chapters 400-405 (Dec. 5, 1983) and 406 (Feb. 24, 1987), reprinted in 06-096 C.M.R. 400-406 (1986); the Open Burning Law, 38 M.R.S.A. § 599 (1989); the 300-foot law, 38 M.R.S.A. § 421 (1989); and the hazard clearance law, 12 M.R.S.A. § 9301. The State's complaint also alleged that Emerson was creating a public nuisance in violation of 17 M.R.S.A. § 2802 (1983). The thrust of Emerson's defense is that his facility is grandfathered and not subject to the requirements of those laws.

Based on affidavits establishing that Emerson was continuing to accept tires, the Superior Court (Delahanty, J.) after a hearing granted the State's motion for a temporary restraining order on October 1, 1987. By the TRO, the court ordered Emerson to stop accepting tires other than those delivered pursuant to his contract with the Town of Durham. Following an evidentiary hearing on October 23, 1987, the court granted the State's motion for preliminary injunction. The court found that the tires were being handled in violation of the solid waste management laws and the forest fire control law so as to create a significant fire hazard. The court continued the restrictions contained in the TRO and ordered Emerson to take affirmative steps to reduce the fire hazard and bring his facility into compliance with the operating requirements of DEP's Solid Waste Management Rules. Specifically, the court ordered Emerson to:

a. Remove all tires from wooded areas on his property and from all areas within 300 feet of Newell Brook;

b. Clear a strip at least 50 feet wide to mineral soil on all sides of all tire piles on the property;

c. Remov[e] all grass, weeds, slash, brush, debris and other flammable material from within the tire piles and in all directions for a distance of 100 feet outside the 50 foot mineral strip; and

d. Reposition the tires into distinct piles covering no greater than 10,000 square feet of ground area and separated from adjacent tire piles by mineral soil strips measuring no less than 35 feet in width to permit access by firefighting equipment.

Recognizing that Emerson could not accomplish these tasks immediately, the court directed that Emerson "make all good faith efforts" to bring his property into compliance as soon as possible, and especially to take steps to reduce the fire hazard. The court ordered the parties to meet to establish a timetable for complying with the terms of the preliminary injunction, and report to the court by November 16, 1987. Finally, the court for good cause shown waived the requirement for security pursuant to M.R.Civ.P. 65(c).

On November 24, 1987, Emerson's counsel reported to the Superior Court that the parties had not agreed to a timetable for compliance and that although he was removing tires and clearing trees, Emerson was "financially incapable of having most of the necessary work done." Following a pretrial conference on December 11, 1987, the court ordered Emerson to submit a detailed plan for compliance with the preliminary injunction by December 21, 1987.

On January 5, 1988, with Emerson having submitted no plan, the State filed a motion for contempt. The parties stipulated for purposes of that motion that Emerson had gotten an estimate that it would cost $12,000 to prepare a plan for compliance with the preliminary injunction. After a hearing, the court (Perkins, J.) on March 16, 1988, found Emerson in contempt, finding that he had not made a good faith effort to bring his facility into compliance with the preliminary injunction as amended by the pretrial order of December 11, 1987. The contempt order provided that Emerson could purge himself of the contempt if he: 1) immediately complied with the provisions of the preliminary injunction stated in paragraphs (a) through (c) above; 2) immediately retained a consultant to prepare a comprehensive plan for bringing the facility into compliance with all the conditions of the preliminary injunction; 3) submitted that comprehensive plan by June 1, 1988; 4) maintained a daily log describing all work done in response to the contempt order; and 5) reimbursed the State for its costs and reasonable attorney fees in connection with the contempt motion. ² On June 2, 1988, Emerson filed a "plan" in which he proposed using a bulldozer and a cherry picker to bring his property into compliance, and made some other proposals regarding possible contracts for shredding and removal of tires. The State responded that Emerson's plan did not satisfy the requirements of the court's contempt order and urged the court to reject it.

During the fall of 1988 the State became aware that in addition to his failure to take the affirmative steps set forth in the preliminary injunction, Emerson was violating the preliminary injunction's requirement that he not accept delivery of any more tires from outside Durham. Based on uncontested affidavits establishing that Emerson had violated that express order in the preliminary injunction by accepting numerous truckloads of tires at his facility, the State on October 28, 1988, moved to modify the preliminary injunction. By an amended motion filed on November 18, 1988, the State requested, inter alia, the appointment of a receiver and the placing of a lien on Emerson's property to secure clean-up costs.

After a hearing on the State's motion, the court (Alexander, J.) on December 22, 1988, filed an order: 1) authorizing DEP to erect barriers to block further tire deliveries; 2) appointing a receiver to prevent tire deliveries and to approve contracts for removal of tires; 3) approving an attachment, including an attachment on trustee process, against Emerson's property in the amount of $20,000 to secure any judgment against Emerson; 4) requiring that all payments on the Town's contract for the municipal landfill and all proceeds of tire sales be paid into an escrow account pending final judgment; ³ 5) limiting tire deliveries from Durham residents to four tires per vehicle; and 6) in all other respects continuing in effect the preliminary injunction of October 23, 1987. The court also issued separate, more detailed orders approving the attachment and appointing a receiver. On January 20, 1989, new counsel entered an appearance on behalf of Emerson and filed a notice of appeal to the Law Court.

II. The Final Judgment Rule

On this appeal Emerson challenges the three orders of the Superior Court entered on December 22, 1988. Specifically, he challenges the preliminary injunction entered on December 22, 1988, which incorporates and adds to the original preliminary injunction of October 23, 1987. He also challenges the order appointing a receiver to oversee operations at the tire disposal facility and the order approving the attachment.

In general, an appeal to this court lies only from a final judgment and interlocutory orders are not immediately appealable...