                                   STATE OF VERMONT

                                ENVIRONMENTAL COURT


                                                   }
Vermont Environmental Board,                       }
(by the Secretary of the                           }
Vermont Agency of Natural Resources),                     }
      Plaintiff,                                   }
                                                   }
       v.                                          }      Docket No. 192-10-99 Vtec
                                                   }
Estate of Lincoln W. Haynes,                       }
Catherine Haynes, co-executor,                     }
and Timothy J. O=Connor, co-executor,              }
       Respondents.                                }
                                                   }


             Decision and Order on Cross-Motions for Summary Judgment

       In the present case, the Secretary of Natural Resources, acting on behalf of the
Board, issued an Administrative Order on September 24, 1999. The Order requires
Respondents to file a Acomplete Act 250 Land Use Permit application for the gravel pit
(whether for the continued operation of the pit or for closure of the pit)@ and to pay a $5,000
monetary penalty. Respondents timely requested a hearing on the Administrative Order in
this Court. The parties requested that the time schedule for a hearing in 10 V.S.A. Chapter
201 be postponed to allow the filing of motions for summary judgment.
       The Vermont Environmental Board is represented by its General Counsel, John H.
Hasen, Esq.; Respondents are represented by Gwendolyn W. Harris, Esq. The parties
have filed cross-motions for summary judgment as to whether an Act 250 permit is or was
required for cessation of operations at the gravel pit, and whether the statute of limitations
bars any action at this time to require application for such a permit.
       The following facts are not in dispute. On September 25, 1987, the Vermont
Environmental Board issued Declaratory Ruling #192, regarding the operation of a gravel
pit then owned by L.W. Haynes, Inc. in Marlboro, Vermont (Athe Haynes gravel pit@).


                                              1
Declaratory Ruling #192 was issued both in response to a petition filed by Ellen and Dan
Darrow to confirm the District Coordinator=s Advisory Opinion #2-30 that the gravel pit had
exceeded its historic level of operation and that an Act 250 permit was required, and in
response to Lincoln W. Haynes= petition for a Declaratory Ruling that no Act 250 permit
was required.
       In Declaratory Ruling #192 the Environmental Board also denied Mr. Haynes=
request that the pit be allowed to operate without a permit at least through December 1,
1987. The AOrder@ section of Declaratory Ruling #192 stated in full that:
       In view of the Board=s conclusion that a substantial change has occurred, a land use
       permit pursuant to 10 V.S.A. '6081(a) must be secured from the District #2
       Environmental Commission and all extraction operations on this property shall
       cease until such a permit is obtained. The gate shall be locked immediately upon
       receipt of this decision and no further activity related to the operation of the gravel
       pit shall be permitted until an Act 250 permit is secured.

It is important to note that the language does not give the owner the option of either
obtaining a permit or ceasing operations. Rather, it states first that a permit must be
obtained, and second, that until a permit is obtained, extraction operations must cease.
       The Haynes gravel pit ceased operating in 1987, within days after the owner=s
receipt of Declaratory Ruling #192. By that action, the owner complied with the second
requirement of the Declaratory Ruling Order that extraction operations must cease until a
permit is obtained. But cessation of operations did not bring the pit in compliance with the
first requirement, to obtain a permit.
       The Vermont Supreme Court affirmed Declaratory Ruling #192 in 1988, in In re L.W.
Haynes, Inc., Declaratory Ruling, 150 Vt. 572 (1988). The opening sentence of the
Supreme Court=s opinion characterized the appeal as being of Aan Environmental Board
ruling that an Act 250 permit is required to continue [L.W. Haynes, Inc.]=s present
operations,@ but did not otherwise address the scope of the Declaratory Ruling.
       The Estate of Lincoln W. Haynes is the successor in title to the Haynes gravel pit.
Catherine Haynes and Timothy J. O=Connor are its co-executors. Neither Lincoln W.
Haynes, the Estate of Lincoln W. Haynes, or either of its co-executors has applied for or
received an Act 250 permit for the Haynes gravel pit.


                                              2
        The Board takes the position that, after Declaratory Ruling #192, an Act 250 permit
was required for the cessation of operations at the Haynes gravel pit, as well as for any
continued operation of the pit. Respondents argue that the Administrative Order is barred
by the statute of limitations, that Declaratory Ruling #192 only required an Act 250 permit
for continuation of the pit=s operations, not for cessation of those operations, and that this
Court lacks jurisdiction to Arewrite@ Declaratory Ruling #192.
        In making this latter argument, Respondents may misunderstand the nature of the
administrative order in the present case. The Vermont Environmental Court certainly lacks
jurisdiction to amend or alter Declaratory Ruling #192. It does, however, have jurisdiction
of administrative orders issued under the Uniform Environmental Enforcement Act, 10
V.S.A. Chapter 201, if a timely request for hearing has been filed, to enforce Act 250 or the
Declaratory Ruling according to its terms. The violation claimed in the administrative order
in this case is a violation of 10 V.S.A. '6081, by failure to apply for a permit after the pit
had lost its pre-existing status, regardless of whether that asserted violation is also claimed
to violate the Order section of Declaratory Ruling #192.
        In Declaratory Ruling #192, the Board found that commercial gravel extraction
operations had been performed at the pit since long before the passage of Act 250 in
1970, and had continued to the date of the Declaratory Ruling, making the gravel extraction
operations a Apre-existing development.@ An Act 250 permit was not required for the pre-
existing operation of the gravel pit, until or unless a Asubstantial change@ to that preexisting
operation should have occurred. Based on evidence that a marked increase occurred
between 1984 and 1986 in the extraction rates, size of exposed pit area, noise level,
number of truck trips per day, and installation of permanent crusher equipment at the pit,
the Board concluded that a Asubstantial change@ had occurred. Because of that change,
Act 250 jurisdiction attached to the Haynes gravel pit as of at least the extraction season of
1986.
        This is not an instance of a prospective applicant seeking a declaratory ruling and
then declining to undertake activity because the ruling stated that the activity would trigger
Act 250 jurisdiction. Such a choice does not subject the prospective project to Act 250
jurisdiction. However, once Act 250 jurisdiction has attached to a project or activity, which

                                               3
occurred with respect to the Haynes gravel pit at least by the summer of 1986, the owner
cannot simply avoid any enforcement or the requirement of obtaining a permit merely by
later ceasing the activity. Even remedial work1 to cure a violation may require a permit,
once jurisdiction attaches.
       As of September 1987, when Declaratory Ruling #192 was issued, the Board could
have sought enforcement action under then-existing law from the date the substantial
change had occurred, which was the date on which Act 250 jurisdiction attached and a
permit should have been obtained. However, the Uniform Environmental Enforcement Act
(under which the present administrative order was issued) was adopted in 1989, and fully
took effect on November 2, 1990. The Supreme Court has ruled that administrative orders
may be issued under that statute for actions which took place prior to its effective date.
Agency of Natural Resources v. Godnick, 162 Vt. 588, 594 (1994). Accordingly, at any
time after November 2, 1990, the Board could have issued an administrative order
requiring Respondents or their predecessors to obtain the required permit, and assessing
penalties for their failure to do so.
       Respondents argue that the administrative order in the present case is barred by the
six-year statute of limitations found in 10 V.S.A. '8015. That section requires an action to
       1
        Thus, under 10 V.S.A. '6086(a)(9)(E), the grant of an Act 250 permit Afor the
extraction or processing@ of earth resources such as gravel, depends upon the
applicant=s demonstrating that A . . . in addition to all other applicable criteria, the
extraction or processing operation and the disposal of waste will not have an unduly
harmful impact upon the environment or surrounding land uses and development;@ and
upon approval of A. . . a site rehabilitation plan which insures that upon completion of
the extracting or processing operation the site will be left by the applicant in a condition
suited for an approved alternative use or development.@




                                             4
be commenced within the latter of either six years from the date the violation is or
reasonably should have been discovered or six years from the date a continuing violation
ceases. This violation was Adiscovered@ at the very latest on December 9, 1988 when the
Supreme Court upheld Declaratory Ruling #192. Under the first prong of the statute of
limitations, the administrative order should have issued by December 9, 1994.
       However, under the second prong of the statute of limitations, as the failure to
obtain a permit is a continuing violation, and had not ceased as of the date the
administrative order was issued, the statute of limitations had not expired. Of course, even
if not barred by the statute of limitations, the question of whether and how much of a
penalty should attach for the failure to obtain a permit for closure of the pit must be
analyzed under all the criteria for penalty assessment in 10 V.S.A. '8010(b), including any
unreasonable delay in enforcement. '8010(b)(2). No evidence has been presented on
this portion of the case and we make no findings as to this portion of the case at this time.




       Accordingly, based on the foregoing, the Environmental Board=s            Motion for
Summary Judgment is GRANTED and Respondents= Motion for Summary Judgment is
DENIED. The matter must be set for a hearing on at least the penalty portion of the
administrative order, unless the parties wish to put that portion of the case in abeyance
while the permit application is made.
       We will hold a telephone conference on Wednesday, May 17, 2000 at 1:30 p.m. to
determine the parties= preferences, and could schedule the merits hearing as early as May
22 or May 23, if a courtroom is available in Windham county or another location as agreed
by the parties. On May 17, Judge Wright will be in trial at the Addison Superior Court in
Middlebury; the parties should make arrangements in advance of that date with the Clerk of
that Court to call in for the conference.

       Done at Barre, Vermont, this 8th day of May, 2000.




                                             5
_________________________________________________
     Merideth Wright
     Environmental Judge




             6
