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Dinse Attorneys Win Transfer of Jurisdiction Over ANR Corrective Action Plan from Civil Division to Environmental Division

Dinse represents Bradford Oil Company, Inc. in a civil enforcement action (Docket No. 307-5-06 Wncv) brought by the State of Vermont with respect to the release of hazardous materials on property owned by Bradford Oil in Springfield, Vermont. The property at issue was used as a manufactured gas plant between 1906 and 1951. The MGP caused significant contamination of which the State was aware as early as 1991. Bradford Oil purchased the long-abandoned property in 1998 and built a convenience store and gas station. Shortly after acquiring the property, the Agency of Natural Resources ordered Bradford Oil to remediate both its property and the adjoining Jones and Lamson property with respect to contamination associated with the manufactured gas plant. The State filed an enforcement action in the Civil Division and the case has been in active litigation since 2006.

On May 1, 2013, the Agency of Natural Resources released its Corrective Action Plan for the site. Bradford Oil appealed the Agency’s decision to the Environmental Division pursuant to 10 V.S.A. 8503 (Docket No. 139-10-13 Vtec) The State of Vermont moved to dismiss the Environmental Division action on the ground that the Civil Division had exclusive jurisdiction over enforcement actions under 10 V.S.A. § 8221 and that the CAP was part of the pending enforcement action. Bradford Oil objected to these arguments and reasoned that the CAP was an independent process initiated by the Agency subject to appeal via the ordinary course of other Chapter 159 decisions. Since Bradford Oil had not refused to comply with the CAP, but merely sought to test the merits of ANR’s determination, the CAP was not yet ripe for enforcement under § 8221.

On December 20, 2013, the Civil Division (Teachout, J.), without deciding the jurisdictional question, held that the CAP appeal should be heard in the Environmental Division because it had primary jurisdiction with respect to the subject matter and Judge Walsh was specifically assigned pursuant to V.R.C.P. 16.1. The Civil Division observed that the Environmental Division had specific expertise related to environmental contamination issues, and that issues of standing of non-parties was more easily addressed under Environmental Division rules. The Civil Division also held that a final determination with respect to a remedy was necessary before an enforcement action was ripe in the case.

The State has filed a motion to vacate the Civil Division’s order or, in the alternative, request permission to file an interlocutory appeal. Significant issues with respect to court and agency jurisdiction, as well as the scope of constitutional due process protections afforded to parties, are in play. We will keep you apprised of developments as they unfold.

Please contact Scott Fewell or Joe Wonderly for additional information.