International Paper Co. v. Town of Jay

• Decision Date: 06 October 1995
• Docket Number: No. 7417,Docket No. P,7417
• Citation: 665 A.2d 998
• Parties: INTERNATIONAL PAPER COMPANY v. TOWN OF JAY, et al. DecisionLawen-94-838.
• Court: Maine Supreme Court

Page 998

665 A.2d 998

41 ERC 1988

INTERNATIONAL PAPER COMPANY v. TOWN OF JAY, et al.

Decision No. 7417.

Law Docket No. Pen-94-838.

Supreme Judicial Court of Maine.

Argued June 22, 1995.

Decided Oct. 6, 1995.

James T. Kilbreth (orally), S. Carter Friend, Verrill & Dana, Portland, for Plaintiff.

Christopher J. Hall, Augusta, Todd S. Brilliant, Stephen S. Ostrach, New England Legal Foundation, Boston, MA, for Amici Curiae.

Gerald F. Petruccelli (orally), Linda C. Russell, Petruccelli & Martin, Portland, for Town of Jay.

Andrew Ketterer, Attorney General, Jon H. Edwards (orally), Sarah Roberts Walton, Assistant Attorneys General, Natural Resources Division, Augusta, for Defendants.

Before WATHEN, C.J. and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN and LIPEZ, JJ.

LIPEZ, Justice.

The Town of Jay appeals from the judgment entered in the Superior Court (Franklin County, Alexander, J.) vacating, in part, the decision of the Jay Planning Board imposing penalties on International Paper Company (IP) for violating town air emissions standards. IP cross-appeals from the judgment of the Superior Court affirming the balance of the planning board's decision and dismissing or granting a summary judgment on independent claims filed with the 80B appeal. We affirm the judgment.

On May 21, 1988, Jay enacted the Jay Environmental Control and Improvement Ordinance. See Jay, Me., Environmental Control and Improvement Ordinance (Mar. 16, 1992). The ordinance provides a comprehensive plan for protecting and enhancing public health and the environment in the town, and, relevant to this action, prohibits emission of air pollutants without a permit issued by the Jay Planning Board. IP owns and operates a paper mill in Jay that emits air contaminants.

The planning board issued IP an air emissions permit on September 24, 1991 which became final after reconsideration on January 28, 1992. The permit established certain record keeping and reporting requirements and expressly defined acceptable emissions levels both in terms of grains per dry standard cubic foot (gr/dscf) and pounds per hour of particulate leaving the kiln (lb/hr). These limits placed on IP more burdensome emissions requirements than those imposed by the permit issued by the State Department of Environmental Protection.

During four days ¹ between November 1991 and June 1992, IP conducted stack testing to establish compliance with town and state emissions levels. On each occasion, IP exceeded either or both of the acceptable town limitations. IP failed to report these excesses to the town code enforcement officer (CEO) within the time specified by its permit.

On June 15, 1992, the State issued to IP a notice of violation (NOV) for two violations of the state permit. Although IP orally notified the CEO of the state NOV, IP did not furnish a written copy of the NOV to the planning board. The action filed by the State against IP for these violations has been stayed pending the outcome of this appeal from the town enforcement action.

On April 12, 1993, the Town issued its own NOV to IP for its failure to comply with the town permit during each of the stack tests. ² At the conclusion of a hearing before the planning board, the board concluded that it could infer violations of the emissions limits for every day of stack operation above a certain lime mud feed rate. ³ On this basis, the board found that IP had violated the emissions levels on 113 non-stack test days plus the four days on which stack tests indicated excessive emissions. The board also found that IP failed to provide written notice of the state NOV to the CEO, failed to report the stack test results in three quarterly reports, and violated the general source standard. As a result, the board imposed penalties totalling $394,000. ⁴

IP challenged the board's decision in a five count complaint. Count I was an 80B appeal. ⁵ IP further asserted in four independent claims, see M.R.Civ.P. 80B(i), that (a) the ordinance was preempted by state law (count II); (b) the ordinance as applied to IP violated guarantees of due process (count III); (c) the board made its decision in violation of the Freedom of Access law, 1 M.R.S.A. §§ 401-410 (1989 & Supp.1994) (count IV); and (d) enforcement of the ordinance violated IP's right to equal protection of the laws (count V). The State intervened as an interested party.

In response to a motion filed by the Town seeking dismissal of or a summary judgment on the independent claims, the trial court dismissed count II (preemption) and granted a summary judgment in favor of Jay on counts III and V (due process and equal protection). Although the court denied the town's motion to dismiss count IV, it subsequently ruled, following a hearing on the merits, that the Town was entitled to a judgment on the freedom of access claim.

On the 80B appeal, the court ruled that the board erred in finding that IP violated the town permit levels on the non-stack test days and vacated the penalties for those 113 days. The court further ruled that the ordinance did not require IP to report the state NOV in writing, and vacated the board's assessment of $10,000 for that alleged failure. The court upheld the penalties for the three quarterly reporting violations and for violation of the general source standard. It remanded the case to the board for reconsideration of the appropriate level of penalties assessed for the four stack test violations. Both IP and Jay have appealed from those portions of the court's decision unfavorable to their positions. ⁶

Preemption

IP argues that the Jay ordinance is preempted by state law because enforcement would frustrate the purpose of the state statute on air quality control. IP's challenge to the board's authority to regulate air quality contests the board's jurisdiction to impose penalties at all. See City of South Portland v. State, 476 A.2d 690, 696 (Me.1984) (municipality only has such powers as the legislature has either expressly or implicitly conferred upon it); Clark v. State Employees Appeals Bd., 363 A.2d 735, 736 (Me.1976) (authority of administrative body limited to the framework established for them by the Legislature); RESTATEMENT (SECOND) OF JUDGMENTS § 11 (1982) ("A judgment may properly be rendered against a party only if the court has authority to adjudicate the type of controversy involved in the action."). Subject matter jurisdiction is always subject to our scrutiny. Dowey v. Sanford Housing Auth., 516 A.2d 957, 959 (Me.1986).

Pursuant to the broad home rule authority set forth in 30-A M.R.S.A. § 3001 (Pamph.1994), the Legislature has conveyed a plenary grant of the state's police power to municipalities, subject only to express or implied limitations supplied by the Legislature. School Comm. of Town of York v. Town of York, 626 A.2d 935, 938 (Me.1993). The home rule statute provides in pertinent part:

Any municipality, by adoption, amendment or repeal of ordinances or bylaws, may exercise any power or function which the Legislature has power to confer upon it, which is not denied either expressly or by clear implication, and exercise any power or function granted to the municipality by the Constitution of Maine, general law or charter.... The Legislature shall not be held to have implicitly denied any power granted to municipalities under this section unless the municipal ordinance in question would frustrate the purpose of any state law.

30-A M.R.S.A. § 3001. Municipal legislation will be invalidated, therefore, only when the Legislature has expressly prohibited local regulation, or when the Legislature has intended to occupy the field and the municipal legislation would frustrate the purpose of a state law. School Committee of Town of York, 626 A.2d at 939. See Tisei v. Town of Ogunquit, 491 A.2d 564, 570 (Me.1985); James v. Town of West Bath, 437 A.2d 863, 865 (Me.1981). See generally Comment, Home Rule and The Pre-emption Doctrine: The Relationship Between State and Local Government in Maine, 37 Me.L.Rev. 313 (1985).

Here, the relevant state statute does not expressly deny municipalities the authority to enact air quality legislation. Rather, the language of the statute plainly authorizes municipalities to adopt ordinances to control air pollution:

Nothing in this chapter shall be construed as a preemption of the field of air pollution study and control on the part of the State. Municipalities may study air pollution and adopt and enforce air pollution control and abatement ordinances, to the extent that these ordinances are not less stringent than this chapter or than any standard, order or other action promulgated pursuant to this chapter....

38 M.R.S.A. § 597 (1989). The Legislature could not state more clearly its intention not to occupy the field of air pollution control.

The Jay ordinance does not frustrate the purpose of the state statute. The state statute on air protection and improvement, 38 M.R.S.A. §§ 581-608-A (1989 & Supp.1994), provides as its purpose:

The Legislature by this chapter intends to exercise the police power of the State in a coordinated state-wide program to control present and future sources of emission of air contaminants to the end that air pollution activities of every type shall be regulated in a manner that reasonably insures the continued health, safety and general welfare of all of the citizens of the State; protects property values and protects plant and animal life.

38 M.R.S.A. § 581 (1989). To the extent that the Jay ordinance compels a more stringent level of emissions compliance than state standards, it shares and advances the same purposes and concerns expressed by the state law. See Central Maine Power Co. v. Town of Lebanon, 571 A.2d 1189, 1194-95 (Me.1990) (when local law requires a more stringent standard, both state and local law advance the same purpose, and thus, purpose of state law is not frustrated by enforcement of local law). Jay is free to enact and enforce air quality...