Northeast Res. Recovery Ass’n et. al. v. State of Vermont Agency of Natural Res., No. 595-9-13 Wncv (Toor, J., Oct. 10, 2013).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]



                                                     VERMONT SUPERIOR COURT
                                                        WASHINGTON UNIT
                                                         CIVIL DIVISION

                                                                         │
NORTHEAST RESOURCE RECOVERY                                              │
ASSOCIATION, and AMERICAN                                                │
RETROWORKS, INC., d/b/a GOOD POINT                                       │
RECYCLING,                                                               │
 Plaintiffs                                                              │
                                                                         │
    v.                                                                   │      Docket No. 595-9-13 Wncv
                                                                         │
STATE OF VERMONT AGENCY OF                                               │
NATURAL RESOURCES,                                                       │
 Defendant                                                               │
                                                                         │


                               RULING ON DEFENDANT’S MOTION TO DISMISS

           This case is brought by a non-profit entity, Northeast Resource Recovery Association,

which until this month had the contract for a statutorily mandated consumer electronic waste

recycling program in the State of Vermont.1The other plaintiff, Good Point Recycling, is the

subcontractor that actually carried out the recycling work. As of October 1, the State awarded the

contract in question to a different entity, Casella Waste Systems. This case seeks to unravel that

contract, alleging that the State failed to comply with legal requirements in awarding it.

           Plaintiffs filed a motion for preliminary injunction on September 30, the day before the

new contract was to take effect. A hearing was held on that motion on October 3. The State

requested an opportunity to file a memorandum of law. Until briefing could be completed, then,

the court issued a temporary order maintaining the status quo that existed at the time the motion

was filed.


1
    “Electronic waste” as used here refers to used computers, computer monitors, televisions and the like.
       The State filed a motion to dismiss this case in its entirety, arguing that only the

Environmental Division has jurisdiction. Plaintiffs have responded to that motion, and the State

has filed a reply. In addition, Casella Waste Systems filed a motion to intervene on October 9.

Plaintiffs were given until October 11 to respond to that motion.

       Because the court concludes that the motion to dismiss disposes of the entire case,

making the other motions moot, it is ruling without waiting for tomorrow’s deadline for

additional filings on the other motions.

                                             Background

       Chapter 166 of Title 10 is the source of the legal requirement for the electronic waste

recycling program at issue in this case. 10 V.S.A. § 7552 (mandating a plan for electronic waste

recycling by January 1, 2011). The Agency of Natural Resources (“ANR” or “the State”) is

required to establish and review a state-wide program providing for free recycling for

households, charities, schools, and businesses with less than eleven employees. Id. § 7552, 7559

and 7551(9). A plan went into effect in 2010. The plan is paid for by imposing fees on

manufacturers of electronic devices. Id. § 7553. The statute allows ANR to contract out the

administration of the recycling program, which is what it has done. Id. § 7560.

                                           Findings of Fact

       The court finds the following facts established by a preponderance of the evidence. For

the first two years of the program, ANR awarded the administration of the recycling contract to

Northeast Resource Recovery Association (“NRRA” or “Northeast”). Northeast is a non-profit

entity that serves numerous municipalities around New England. Its mission is to increase and

improve recycling, and to assist municipalities in obtaining the best contracts for doing so.

Northeast subcontracted with Good Point for the actual collection, transportation and recycling




                                                  2
work in Vermont. Good Point is based in Middlebury, Vermont. It is run by the former head of

the Massachusetts Department of Environmental Protection, Robin Ingenthron, who has also

been a leader in the recycling field. He appears deeply committed to the principle of recycling,

not merely as a business proposition but as an environmental ethic.

       The second year of the Northeast contract was set to expire on September 30, 2013. In

June, after a formal bidding process, ANR told Northeast its bid had been “conditionally selected

. . . pending contract negotiations.” Ex. E. Negotiations began with regard to the exact terms of

the contract. On July 3, ANR emailed Northeast what it termed its “final offer with regard to the

payment of the collection/transportation/recycling of covered electronic devices.” Ex.            F

(emphasis in original). The “final offer,” however, was not a draft contract. Rather, it was a brief

list of six items relating to compensation to Northeast and to local collection centers. The email

demanded a response by July 8.

       On July 8, Northeast responded as follows, also by email: “Given the stated position of

the Agency, demanding an unequivocal acceptance of this brand new proposed compensation

approach for the payment of collection services to which NRRA/GPR is not allowed the

opportunity to discuss interpretation nor ramifications such as unintended consequences, we have

no choice but to accept the offer.” Ex. G. The email requested a copy of the draft contract to

review. However, despite repeated requests from Northeast, ANR did not send Northeast any

drafts of a contract until over two weeks later, on July 23.

       After receipt of the draft contract, the parties had ongoing discussions. Northeast hired a

New Hampshire attorney to assist with negotiations. On August 2, the attorney sent a letter to

ANR in which he stated that Northeast had “a number of serous concerns that are obstacles to

concluding a satisfactory agreement.” Ex. I. The letter listed a number of concerns and requested




                                                  3
a meeting to discuss them. A meeting or meetings were held and emails were exchanged. On

August 13, one of ANR’s staff told Northeast to send over some specific language reflecting its

proposal. Northeast did so the next day. Ex. J. It received no substantive response to the

proposal. Instead, on August 20 ANR sent an email stating that it had reviewed the proposed

language and that “[i]n consideration of the status of negotiations at this point in time, and in

light of the current time limitations, the Division has decided to suspend the current negotiations

with NRRA and pursue an agreement with a second contractor/bidder.” Ex. K.

           The Solid Waste Program Manager, Cathy Jamieson, testified that ANR was concerned

that the negotiations were taking too long, and that Northeast was not agreeing to one of ANR’s

key requirements, a 7 cents per pound payment to collection centers. However, ANR never told

Northeast that was a non-negotiable, required component of the contract. Rather than sending

back a counterproposal, stating that Northeast’s proposal was rejected unless certain terms were

agreed to, or even clarifying that certain terms were non-negotiable, ANR unilaterally suspended

negotiations and started negotiating with another bidder, Casella Waste Systems. On September

24, the Commissioner of the Department of Environmental Conservation signed a contract with

Casella.

       ANR never actually notified Northeast that it was being denied the contract. Nor did

ANR ever send Northeast anything in writing after the email suspending negotiations. Northeast

learned of the Casella contract on September 26 when it was at a meeting in connection with

completion of the 2012-13 contract terms.

       Plaintiffs assert a Rule 75 claim in this case, arguing that ANR failed to comply with (1)

mandated contracting procedures for state agencies, and (2) the Request for Proposal itself.




                                                4
According to Plaintiffs, these acts were an abuse of discretion. The complaint seeks an order

requiring ANR to rebid the project and properly apply the mandated procedures.

           Northeast planned to subcontract to Good Point again if it was awarded the 2013-14

contract. Good Point ramped up its staff in reaction to winning the state contract in 2010, and

will have to downsize if it is not awarded the contract this year. Although it has a number of

other clients in other states, with contracts worth several hundred thousand dollars, it allegedly

cannot meet its mortgage payments on its plant in Middlebury without this contract. The owner

testified that the business will likely close if it loses the Vermont contract, and will be unable to

reopen in the future because it will no longer be credit-worthy. Thus, Good Point argues that it

will suffer irreparable harm in the absence of a preliminary injunction maintaining Northeast’s

contract while this case proceeds.

                                                    Motion to Dismiss

           The State argues that this court lacks jurisdiction because all claims against the State

relating to recycling of electronic waste must by law be heard in the Environmental Division of

the Superior Court (formerly the “Environmental Court”), rather than the Civil Division.

Specifically, 10 V.S.A. § 8503 states that Chapter 220 of Title 10 “shall govern all appeals of an

act or decision of the secretary, excluding enforcement actions . . . and rulemaking, under the

following authorities…” (emphasis added).2 The list that follows includes Chapter 166, entitled

“Collection and Recycling of Electronic Devices.”3 Title 10 further states that “any person

aggrieved by an act or decision of the secretary . . . may appeal to the environmental division,”

with an exception not applicable here. 10 V.S.A. § 8504(a).

2
 The statute makes clear that “the secretary” means the Secretary of the Agency of Natural Resources or his or her
delegate. Id. § 8502(8). The definition expressly includes the Commissioner of the Department of Environmental
Conservation. Id.
3
    The court will refer to this as the “Ewaste statute.”


                                                            5
        On its face, Title 10 appears to require that all challenges to any act of the Secretary of

ANR or the Commissioner of the Department of Environmental Conservation be brought in the

Environmental Division. The contract awarded to Casella was signed by the Commissioner.

Thus, this challenge to that award appears to be within that statutory requirement, depriving this

court of jurisdiction.

        Northeast and Good Point argue, however, that Title 10 does not apply for various

reasons. First, they assert that it merely consolidates existing appeal rights rather than creating

any. The court is not persuaded. Section 8504 states that a person aggrieved “may appeal to the

environmental division.” The court has trouble construing that as not expressly creating a right to

appeal.4

        Plaintiffs also argue that this is not an “appeal” because there is no formal written

decision here denying them the contract, and no express statutory provision in the Ewaste statute

defining a process for such decision-making. They are correct that the action taken by the

Secretary here differs from the more formal denial sent to Good Point rejecting their proposal for

an “Opt-Out” recycling program under the very same statute. Ex. A to Plaintiffs’ Opposition.

ANR’s failure to send any written denial of the bid here certainly complicates the court’s

analysis and is somewhat puzzling. However, the court finds nothing in the statute requiring that

something must be written and formal to be an “act or decision.”

        Nor have the parties pointed to any law suggesting that the terms “act” and “decision”

have anything other than their obvious meanings. See, e.g., Town of Bennington v. Hanson-

4
  Northeast and Good Point also argue correctly that Rule 5 of the Environmental Rules does not seem to neatly fit
this sort of case. For example, it requires an appellant to state the address or location of “the property or
development with which the appeal is concerned.” V.R.E.C.P. 5(b)(3). That obviously makes no sense here.
However, the fact that the rules may not have been amended to match changes in the statute is not a ground on
which to reject the clear language of the statute. The court notes, for example, that the title of the Environmental
Rules also has not yet been amended to delete the outdated reference to the Environmental Court, but the law
changing that court’s name is still effective.



                                                         6
Walbridge Funeral Home, Inc., 139 Vt. 288, 292-93 (1981)(“A ‘decision’ has been defined as ‘a

determination or result arrived at after consideration’”)(citation omitted); Brown v. Standard

Casket Mfg. Co., 175 So. 358, 364 (Ala. 1937)(“Webster’s New International Dictionary defines

act, primarily as ‘that which is done or doing; the exercise of power, or the effect of which power

exerted is the cause; a performance; a deed.’”)(citations omitted). While the court has found one

case in which the Water Resources Board apparently argued that “act or decision” meant a

“contested case” as statutorily defined, the Court did not analyze or address that question. In re

Stormwater NPDES Petition, 2006 VT 91, ¶ 16, 180 Vt. 261. Even if the requirement for “final”

agency action is imported from federal administrative law, it would appear to have been met

once the Casella contract was signed. See, e.g., Federal Procedure, Lawyer’s Edition, 2 Fed Proc.

L. Ed. § 2:318 (West, Westlaw though Sept. 2013)(“To be judicially reviewable under the

Administrative Procedure Act (APA), agency action must be ‘final.’. . . The core questions, for

purposes of determining finality, are whether the agency has completed its decision-making

process, and whether the result of that process is one that will directly affect other parties.”).

          The court concludes that this case does involve an “act or decision” made “under”

Chapter 166 in that ANR’s powers to issue contracts such as the one at issue here flow directly

from Chapter 166. That Chapter expressly gives ANR the power to “contract for implementation

and administration of” the mandated recycling program. 10 V.S.A. § 7560. That is precisely

what this case is about. For this reason, the court concludes that it lacks jurisdiction to hear this

case. 5



5
  If truly any “act” of the Secretary related to the Ewaste statute can be appealed, it could lead to absurd results. Can
someone appeal to the Environmental Division the personnel actions of the Secretary related to staff working on the
Ewaste program, or the paint color for an office for such staff? Surely that was not intended, but “any act” would
arguably include such matters. Here, however, the contract in dispute is something expressly referenced in the
statute. Thus, the court does not find the outer reach of the statute to be an issue that must be resolved today.


                                                           7
                                             Order

       The court grants the State’s motion to dismiss this case for lack of jurisdiction. The

temporary preliminary injunction is hereby vacated.

       Dated at Montpelier this 10th day of October, 2013.



                                                             _____________________________
                                                             Helen M. Toor
                                                             Superior Court Judge




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