Appeal from Superior Court, Washington Unit, Civil Division
Mary Miles Teachout, J.
Miles Teachout, J. Thomas J. Donovan, Jr., Attorney General,
and Nicholas F. Persampieri, Assistant Attorney General,
Montpelier, for Plaintiff-Appellee.
Bradford Fawley, Bruce C. Palmer and Timothy C. Doherty, Jr.,
Brattleboro, for Defendants-Appellants Richard S. Daniels and
Hazen Street Holdings, Inc.
PRESENT: Skoglund, Robinson and Eaton, JJ., and Dooley, J.
(Ret.), and Morris, Supr. J. (Ret.), Specially Assigned
1. This matter arises from a trial court order finding
defendant-appellant Richard Daniels liable for the release of
hazardous waste on his property, granting summary judgment in
favor of the State, and issuing an injunction compelling
defendant to investigate and conduct remedial action on the
property site. On appeal, defendant contests the award of
summary judgment to the State and the scope of the injunction
ordered by the court, and he contends the court erred in
denying his motion to revisit his statute-of-limitations
defense. We affirm.
2. The trial court considered the proceedings at issue in two
phases, first addressing the parties' motions for summary
judgment and later addressing the issue of remedies. The
facts, based on the undisputed facts before the court during
the summary-judgment proceedings and the factual findings
later made by the court during the hearing on damages and
injunctive relief, are as follows. Parkway Cleaners was a
dry-cleaning business in Hartford, Vermont from the late
1970s to the late 1980s. Perchloroethylene (PERC) was a
chemical used in dry-cleaning operations at the time and is
now a known human carcinogen and hazardous-waste material. At
some point, PERC was dumped at the Parkway Cleaners site or
released from the dry-cleaning equipment. The State first
became aware of contamination problems in the area in 1987.
In 1989, the State found PERC on a property adjacent to the
Parkway Cleaners property. From 1987 until 2006, the Agency
of Natural Resources (ANR) attempted to determine the extent
of PERC contamination in the area. Defendant purchased the
former Parkway Cleaners dry-cleaning facility through a tax
sale in 1995. Starting in 2002, ANR communicated with
defendant regarding potential PERC contamination on the
former Parkway Cleaners property.
3. In the fall of 2005, the State requested defendant conduct
a Phase II environmental assessment for the property, which
he did. Sampling results generated from that
assessment linked the Parkway Cleaners lot to PERC
contamination. The sampling results showed PERC in
groundwater, soil, and soil gas-the spaces between the drier
soil above the groundwater level. Soil gas sampling results
sent to ANR in June 2006 showed high PERC concentrations in
soil vapor between six and ten feet underground, which
indicated PERC could enter basements of nearby residences and
affect indoor air quality, thereby presenting a risk to human
4. The State sent a "first letter" to RSD Trucking
(RSD), a company owned by defendant, stating that RSD as
owner of the Parkway Cleaners lot was a potentially
responsible party. The letter requested that RSD: determine
if indoor air at nearby residences was contaminated;
determine the extent of contamination of soil, soil gas, and
groundwater; and assess potential impacts to sensitive
receptors, including basements of nearby buildings, nearby
surface water, and any nearby drinking water sources,
wetlands, or sensitive ecological areas. The State sent the
letter to RSD because it mistakenly believed the property was
owned by RSD, rather than defendant. In June 2006, the State
learned that defendant owned the property in his individual
capacity, notified him of that fact, and informed him that
the State was seeking to hold him personally responsible for
addressing the PERC contamination. Defendant expressed
surprise that he owned the property and stated that he
thought the property was owned by RSD.
5. In October 2006, defendant conveyed title to the property
to Hazen Street Holdings, Inc. (HSH). At the time of the
transfer: (1) defendant was president and director of HSH;
(2) there was no consideration for the transfer; (3) the
property had a listed value of $23, 100, and HSH had no other
assets; (4) defendant had expressed concern that having to
pay for the cleanup might ruin him financially; and (5) HSH
had no business records other than the deed to the property
and documents related to the investigation and
cleanup. By the fall of 2006, after transferring
the property to HSH, defendant stopped cooperating with the
State. The State continued efforts to address the indoor-air
contamination of nearby residences without defendant.
According to the State, PERC remains in the groundwater,
soil, and soil gas at the property, and has migrated to
nearby properties and, potentially, to the White River. The
extent of the PERC contamination is not yet known.
6. In July 2010, the State filed a complaint against
defendant, asserting that he was liable for the release of
PERC on the property. In January 2014, defendant moved for
summary judgment, asserting that he was not liable because
the State had not demonstrated that there was a release or
threatened release of hazardous material during the time
defendant owned the property. The State cross-moved for
summary judgment and sought injunctive relief requiring
defendant to undertake all investigation, removal, and
remediation actions necessary to abate the release and
threatened release of hazardous materials at the facility and
surrounding properties, as well as past-response costs.
Although the statute of limitations was listed as an
affirmative defense in the answer to the complaint,
defendant's counsel at the time did not raise the statute
of limitations in response to the State's
summary-judgment motion and failed to support the defense
with factual materials to show that there was a material
issue of fact with respect to the defense or that he should
prevail as a matter of law based on undisputed facts.
7. The court granted the State's motion for summary
judgment, holding defendant liable as a current owner under
10 V.S.A. § 6615(a)(1). As to injunctive relief, the
court determined that "the State is entitled to an
injunction requiring defendant to undertake such further
'investigation, removal and remedial action' as is
reasonable and necessary." However, the court did not
approve the specific terms of the injunctive relief sought by
the State in the summary-judgment ruling, stating that the
State "has not provided language for the injunction that
is 'specific in terms.'" The court declined to
enter summary judgment on past-response costs, permitted
discovery on the amount of response costs, and scheduled a
hearing "to permit [defendant] to challenge the
8. In October 2015, a notice of substitution of counsel for
defendant was filed, and defendant moved to reopen discovery.
In June 2016, the court approved the substitution of counsel
and denied the motion for additional discovery. Later in June
2016, defendant moved to reopen the court's
summary-judgment ruling in order to pursue the
statute-of-limitations defense that had not been pursued by
defendant's former counsel. The court denied the motion.
9. The court held a trial regarding the issues of damages and
the scope of injunctive relief in April and June 2017. In
January 2018, the court issued a written order. On the
State's request for injunctive relief, the court ruled
that because defendant was liable under § 6615 as a
current owner and had not taken the necessary steps to assume
his legal responsibilities and investigate the extent of the
PERC hazard, the State was entitled "to an order
requiring [defendant] to undertake 'remedial actions . .
. to mitigate hazard to human health or the
environment'" pursuant to 10 V.S.A. §
8221(b)(2). On the State's request for past costs, the
court ruled that defendant must reimburse the State for
certain response costs related to investigation of the site
but denied the State's request for reimbursement of the
bulk of its past-response costs. At the court's request,
the State submitted a proposed form of judgment and gave
defendant the opportunity to file any objections, which he
did. Following briefing on the objections, the court entered
judgment in the form presented by the State in April 2018.
Defendant now appeals to this Court regarding the judgment
granted to the State, the final injunction, and the denial of
the motion to reopen the summary-judgment determination to
allow him to assert his statute-of-limitations defense.
10. On appeal, defendant argues: (1) that a release or
threatened release during the ownership period is required
for current-owner liability under 10 V.S.A. §
6615(a)(1); (2) the trial court lacked authority to issue an
injunction requiring an investigation; and (3) the court
abused its discretion in declining to reopen. The State
argues that: (1) defendant failed to preserve his arguments
regarding the applicability of § 6615(a)(1) and the
scope of the injunction for appeal; (2) even if these
arguments were preserved, the plain language of §
6615(a) confers current-ownership liability on defendant and
multiple statutes authorize an injunction requiring
investigation, including §§ 6615, 6615b, and 8221;
and (3) the court did not abuse its discretion in declining
to reopen the motion for summary judgment to consider
defendant's statute-of-limitations defense.
11. This Court reviews summary-judgment rulings de novo,
applying the same standard as the court applies in the first
instance-summary judgment is appropriate if there is no
genuine issue of material fact and a party is entitled to
judgment as a matter of law. Farrell v. Vt. Elec. Power
Co., 2012 VT 96, ¶ 9, 193 Vt. 307, 68 A.3d 1111;
V.R.C.P. 56(a). "The party opposing summary judgment is
given the benefit of all reasonable doubts and
inferences." Farrell, 2012 VT 96, ¶ 9.
12. Defendant's first argument raises a question of
statutory construction. This Court reviews issues of law or
statutory interpretation de novo. In re Village Assocs.
Act 250 Land Use Permit, 2010 VT 42A, ¶ 7, 188 Vt.
113, 998 A.2d 712.
13. His second argument raises the propriety of an injunction
and its terms. We review a grant of injunctive relief for
abuse of discretion and "will not set aside factual
findings unless there is no credible evidence in the record
to support them." Obolensky v. Trombley, 2015
VT 34, ¶ 18, 198 Vt. 401, 115 A.3d 1016. We also review
a trial court's decision not to reopen a ruling awarding
summary judgment for abuse of discretion. See Bostock v.
City of Burlington, 2011 VT 89, ¶ 14, 190 Vt. 582,
30 A.3d 651 (mem.); Fragoso v. Lopez, 991 F.2d 878,
888 (1st Cir. 1993) (explaining that where summary-judgment
motion granted, trial court has substantial discretion in
deciding whether to reopen proceedings to allow unsuccessful
party to introduce new material or argue new theory).
14. First, we address defendant's arguments regarding the
applicability of 10 V.S.A. § 6615(a)(1). The trial court
determined that defendant was liable as the current owner of
the former Parkway Cleaners property under § 6615(a)(1).
Defendant argues that even though he is the current owner of
the property, he is not liable under § 6615(a)(1)
because no release or threatened release of PERC occurred on
the property during his ownership. He contends that
any release of PERC on the property occurred under prior
ownership, and therefore the court erred in granting summary
judgment in favor of the State. The State asserts that
defendant's argument on this point is incorrect based on
the plain language of the statute and that it was not
preserved because it was not timely raised in opposition to
the State's motion for summary judgment.
15. We do not address whether defendant properly preserved
his argument regarding his liability as the current owner
under 10 V.S.A. § 6615(a)(1) because even if the
argument was preserved for appeal, based on our
interpretation of the statute we find it to be meritless.
According to the plain language of § 6615(a)(1), as the
current owner, defendant was liable for the release of PERC
at the property prior to his ownership.
16. When construing a statute, our first goal is to
effectuate the Legislature's intent. Springfield
Terminal Ry. Co. v. Agency of Transp., 174 Vt. 341, 346,
816 A.2d 448, 453 (2002). In doing so, we look first to the
plain language of the statute. Id. Where the
language of the statute is challenged, "we must
ascertain legislative intent through consideration of the
entire statute, including its subject matter, effects and
consequences, as well as the reason and spirit of the
law." In re Estate of Cote, 2004 VT 17, ¶
10, 176 Vt. 293, 848 A.2d. 264. "All relevant parts of
the applicable statutory scheme are to be construed together
to create, if possible, a harmonious whole."
Id. We have held that "[r]emedial statutes
ought to be liberally construed" to accomplish their
remedial purposes. Wilk v. Wilk, 173 Vt. 343, 346,
795 A.2d 1191, 1193 (2002).
17. Section 6615 of Title 10 is part of Vermont's Waste
Management Act, which parallels its federal counterpart the
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. § 9607, "in many
relevant aspects." See Hardwick Recycling &
Salvage, Inc. v. Acadia Ins., 2004 VT 124, ¶ 28,
177 Vt. 421, 869 A.2d 82; see also State v. Howe
Cleaners, Inc., 2010 VT 70, ¶ 61, 188 Vt. 303, 9
A.3d 276 (Johnson J., dissenting in part, and concurring in
part) ("The purpose and statutory scheme of the [Vermont
Waste Management Act], and its federal counterpart [CERCLA],
indicate that the remedial goals of these statutes were
intended to be quite broad and that the exceptions to
liability quite narrow."). Section 6615, at issue here,
is based on § 9607 of CERCLA and its purpose, like
§ 9607, is to protect public health and the environment
by facilitating the cleanup of hazardous-waste sites.
Hardwick Recycling & Salvage, Inc.,
2004 VT 124, ¶ 28; see also Carson Harbor Vill. v.
Unocal Corp., 270 F.3d 863, 880 (9th Cir. 2001)
("CERCLA was enacted to protect and preserve public
health and the environment by facilitating the expeditious
and efficient cleanup of hazardous waste sites."
18. Relevant to our analysis, § 6615(a) outlines four
categories of individuals who are liable for the release or