                                 STATE OF VERMONT
SUPERIOR COURT                                                ENVIRONMENTAL DIVISION
Vermont Unit                                                   Docket No. 139-10-13 Vtec
SUPERIOR COURT                                                             CIVIL DIVISION
Washington Unit                                                 Docket No. 307-5-06 Wncv

                            Bradford Oil Property "CAP"
                  State of Vermont vs. Bradford Oil Company, Inc.

                            ENTRY REGARDING MOTIONS

Title:       Motion to Dismiss Appeals (Motion 2)
Filer:       Agency of Natural Resources
Attorney:    Mark J. DiStefano
Filed Date:  October 29, 2013
Docket No. 139-10-13 Vtec

Response filed on 10/31/2013 by Attorney George McNaughton for Cross Appellant Springfield
Reg. Dev. Corp.
Response in opposition filed on 11/15/2013 by Attorney W. Scott Fewell for Appellant Bradford
Oil Company
Reply filed on 12/03/2013 by Attorney Mark J. DiStefano for Agency of Natural Resources

The motion is DENIED.

Title:        Motion to Consolidate w/ Civil Div. Case (Motion 1) (No. 139-10-13 Vtec); Motion
to Consolidate w/ Env. Div. Appeal (Motion 51) (No. 307-5-06 Wncv)
Filer:        Springfield Reg. Dev. Corp.
Attorney:     George McNaughton
Filed Date:   October 24, 2013 (Vtec); October 28, 2013 (Wncv)

Response in opposition filed on 11/12/2013 by Attorney Mark J. DiStefano for Agency of
Natural Resources
Response in opposition filed on 11/12/2013 by Attorney W. Scott Fewell for Appellant Bradford
Oil Company
Reply filed on 11/14/2013 by Attorney George McNaughton for Cross Appellant Springfield Reg.
Dev. Corp.

The motion is DENIED.
In re Bradford Oil “CAP”, No. 139-10-13 Vtec (Entry Order on Mot to Dismiss) (03-6-14)   Pg. 2 of 4.

                                     Motion to Dismiss Appeals
       Bradford Oil Company (Bradford) appeals the “Final Corrective Action Plan” (the CAP)
issued by the Agency of Natural Resources (ANR or the Agency) relating to environmental
contamination on Bradford’s property in Springfield, Vermont. The Springfield Regional
Development Corporation (SRDC), the owner of property affected by the CAP, also challenges
the CAP in a cross-appeal.
        In a related civil enforcement matter, Bradford was found liable under 10 V.S.A. § 6615
for the contamination. State v. Bradford Oil Co., No. 307-5-06 Wncv, slip op at 6–7 (Vt. Super.
Ct. Oct. 25, 2012) (Teachout, J.), available at https://www.vermontjudiciary.org/
20112015%20Tcdecisioncvl/2012-10-26-5.pdf. The only remaining issue in that case is the
court’s determination of the appropriate remedy. The civil matter has been specially assigned
to the undersigned in order to coordinate a fair and efficient resolution of both the CAP appeals
and the remedy determination in the civil matter.
        The Agency has filed a motion to dismiss the two Environmental Division CAP appeals as
being outside the subject matter jurisdiction of this Court. Bradford and SRDC seek review of
the CAP under 10 V.S.A. § 8504(a) which allows any person aggrieved by an act or decision of
the Secretary of the Agency of Natural resources to appeal that act or decision to the
Environmental Division. The Agency argues that the CAP is expressly exempted by 10 V.S.A. §
8503(a). Section 8503(a) excludes enforcement actions under Title 10 Chapters 201
(administrative enforcement) or 211 (civil enforcement) from § 8503(a) jurisdiction. Thus,
enforcement actions themselves are not appealable to the Environmental Division. The Agency
argues that because the CAP relates to the remedy sought in the ongoing civil enforcement
action, this Court does not have jurisdiction to hear an appeal of the CAP. Bradford argues that
the approval and issuance of the Final Corrective Action Plan was an act or decision of the
Agency separate from the enforcement action.
        Section 8503(a) states that Chapter 220 “shall govern all appeals of an act or decision of
the secretary, excluding enforcement actions under chapters 201 and 211 of this title and
rulemaking, under [a list of] authorities” including “chapter 159 (waste management).” 10
V.S.A. § 8503(a), (a)(1)(N). The Superior Court, Washington Unit Civil Division, recently
interpreted the scope of Title 10 Chapter 220. Ne. Res. Recovery Ass’n v. Agency of Natural
Res., No. 595-9-13 Wncv, slip op. at 5–6 (Vt. Super. Ct. Oct. 10, 2013) (Toor, J.), available at
https://www.vermontjudiciary.org/20112015%20Tcdecisioncvl/2014-2-11-12.pdf. There, the
Court noted that “[o]n 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.” Id. at 6. The Court further recognized that the terms
“act” and “decision” are to be given their common meaning. Id. at 6–7. “A ‘decision’ has been
defined as ‘a determination or result arrived at after consideration . . . .’” Town of Bennington
v. Hanson-Walbridge Funeral Home, Inc., 139 Vt. 288, 292–93 (1981) (quoting Webster’s New
International Dictionary 2d ed. (1955)). “Act” is defined as “[s]omething done or performed,
esp. voluntarily; a deed.” Black’s Law Dictionary (9th ed. 2009).
In re Bradford Oil “CAP”, No. 139-10-13 Vtec (Entry Order on Mot to Dismiss) (03-6-14)   Pg. 3 of 4.

       The Vermont Supreme Court has noted that judicial review of agency action requires
that the action be final, “even where the authorizing statute does not expressly so state.”
Jordan v. Agency of Transp., 166 Vt. 509, 513 (1997).
        As a general matter, two conditions must be satisfied for agency action to be
        “final”: First, the action must mark the “consummation” of the agency's
        decisionmaking process—it must not be of a merely tentative or interlocutory
        nature. And second, the action must be one by which “rights or obligations have
        been determined,” or from which “legal consequences will flow.”
Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (internal citations omitted).
       The CAP fits within the common definitions of “act” or “decision.” The Agency
promulgated a draft CAP and received comments on that document from Bradford and SRDC.
The Agency then issued the “Final” CAP. This indicates a consummation of the decision making
process regarding the corrective action the Agency determined was required at the property.
Second, the CAP sets forth Bradford’s obligations for corrective action as determined by the
Agency through its technical expertise.
         The Agency argues that despite this process and its possible consequences, the CAP is
expressly exempted because it relates to the remedy in the ongoing Chapter 211 civil
enforcement matter. Subjecting decisions made in the ordinary course of ongoing civil
enforcement litigation to de novo review in the Environmental Division would undermine the
purpose of the exemption and lead to absurd results. It is not clear to Bradford, SRDC, or this
Court, however, that the CAP is solely part of the civil enforcement matter. Given the extensive
powers granted to the Agency to enforce environmental statutes, we are reluctant to read the
exemption broadly to apply to any act or decision that “relates” to a civil enforcement action. If
the Agency intended to offer the CAP only as a proposed remedy in the enforcement matter, it
could have clearly stated so. Instead, the Agency issued the “Final Corrective Action Plan” with
little indication that it was meant only as a proposal to the Civil Division. Because the statute’s
plain language provides a broad right of appeal of the Agency’s acts or decisions, and the
Agency’s act or decision is not clearly part of the exempted civil enforcement matter, we
cannot proscribe Bradford’s and SRDC’s right to appeal. Moreover, without concurrent
jurisdiction, the principle of priority does not apply. The Environmental Division has exclusive
jurisdiction over appeals of acts or decisions of the Agency. For these reasons, the Agency’s
motion to dismiss the CAP appeals is DENIED.
                                       Motion to Consolidate
         We now turn to SRDC’s Motion to Defer, Coordinate, and Consolidate. As the parties
correctly note, the two matters cannot be consolidated into one action without the consent of
the parties. V.R.C.P. 42(a). Under that Rule, however, “[w]hen actions involving a common
question of law or fact are pending before the court, it may order a joint hearing or trial of any
or all the matters in issue in the actions . . . .” Id. Such joint proceedings are equivalent to the
“coordinated” proceedings specifically allowed by the Vermont Rules for Environmental Court
Proceedings. V.R.E.C.P. 2(b). The Rules of Evidence, which allow the court to dictate the order
and manner in which evidence is presented, also support the trial court’s discretion to hold a
In re Bradford Oil “CAP”, No. 139-10-13 Vtec (Entry Order on Mot to Dismiss) (03-6-14)   Pg. 4 of 4.

joint evidentiary hearing. V.R.E. 611(a). Because both the Rules of Civil Procedure and the
Rules for Environmental Court Proceedings allow for a joint trial, and due to the special
assignment of the undersigned judge to both matters, the Court has the discretion to hold a
joint evidentiary hearing on related matters. Both the CAP appeal and the remedy
determination in the civil enforcement action have a common factual and legal foundation and
therefore the Court will hold a single hearing for both matters.
       The two matters will not be consolidated into one single matter and therefore SRDC’s
motion to consolidate is DENIED. The evidence for the two separate matters will, however, be
taken at one hearing in order to ensure “the just, speedy, and inexpensive determination” of
the two matters. V.R.C.P. 1; see also V.R.E.C.P. 1 (“The rules shall be construed and
administered to ensure summary and expedited proceedings consistent with a full and fair
determination in every matter coming before the court.”). The joint hearing on these matters
has been set for June 9, 10, and 11, 2014 with June 12, 2014 reserved, to be held at the
Environmental Division in Berlin, Vermont.




___________________________________________                                       March 6, 2014
Thomas G. Walsh, Judge                                                    Date




Notifications:
W. Scott Fewell (ERN 3414), Attorney for Appellant Bradford Oil Company
Mark J. DiStefano (ERN 2510), Attorney for Interested Person Agency of Natural Resources
George McNaughton (ERN 3713), Attorney for Cross Appellant Springfield Reg. Dev. Corp.
Stephen S. Ankuda (ERN 3546), Attorney for Interested Person Town of Springfield

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