ATTORNEY GENERAL LYNCH v. RHODE ISLAND DEPARTMENT OF ENVIRONMENTAL MANAGEMENT
Attorney General Patrick C. Lynch,
v.
Rhode Island Department of Environmental Management et al.
Nos. 2008-235-M.P, 2009-57-Appeal, (PC 08-735).
Supreme Court of Rhode Island.
May 5, 2010.
Terrence J. Tierney, Department of Attorney General, for Plaintiff.
John A. Langlois, Sr., Esq., Department of Environmental Management Melody A. Alger, Esq., for Defendant.
Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.
OPINIONJustice Robinson for the Court.
This appeal ultimately derives from a decision by the Department of Environmental Management (DEM) in 2003 to issue a license to operate a refuse facility in the City of East Providence. We are called upon to determine whether the administrative appeal of the plaintiff, Attorney General Patrick C. Lynch, from the issuance of that 2003 license has been rendered moot by the expiration of, subsequent renewal of, and later transfer of said license.1 For the reasons set forth herein, it is our opinion that the issue of the validity (vel non) of the 2003 license is not moot. Accordingly, we grant the Attorney General's petition for certiorari and quash the judgment of the Superior Court.
IFacts and TravelPond View Recycling, Inc., the predecessor in interest to defendant TLA-Providence LLC (TLA),2 operated a refuse facility in East Providence that was allowed to receive up to 150 tons per day of construction and demolition debris.3 Between August of 2000 and July of 2002, Pond View began the process of applying for a DEM license pursuant to which it would be able to operate at a 500 tons per day capacity. See G.L. 1956 § 23-18.9-9.
1. We wish to thank the amici curiae for the helpful briefs that they submitted to this Court.
2. The sale of the assets of Pond View Recycling, Inc. to TLA-Providence LLC is discussed later in this "Facts and Travel" section.
3. It should be noted that, pursuant to G.L. 1956 § 23-18.9-8(c), "[p]rocessing facilities that accept less than one hundred and fifty (150) tons per day of construction and demolition debris (C&D) are exempt from the requirement of obtaining a solid waste management facility license * * *." Such facilities are, however, subject to the other requirements, rules, and regulations that are set forth in that statute.
4. After the Attorney General's appeal was filed, but prior to the commencement of the AAD hearings, the parties made attempts to reach a mutually acceptable resolution through voluntary mediation. However, such attempts proved fruitless, and discovery continued thereafter.
5. The following excerpt from the transcript of the AAD hearing, on May 14, 2004, provides the context of the evidentiary objection at issue:
"[Attorney General]: Do you employ or have occasion to consult the Department's promulgated rules and regulations?
"[Witness]: Yes.
"[Attorney General]: And which rules and regulations are we referring to that you use?
"[Witness]: For what?
"[Attorney General]: For decisions and recommendations that you make relative to licensing and permitting in the solid waste area of the duties within your office.
"[Witness]: It would be primarily the solid waste rules and regulations, at least the rules and regulations for solid waste, management facilities, compost facilities.
"[Attorney General]: And do those regulations contain provisions relative to construction, demolition, and debris processing facilities?
"[DEM counsel]: Objection. Calls for expert testimony. "* * * "[Hearing Officer]: My ruling is what is being elicited right now, what this question is asking is not expert testimony. Overruled. * * * The witness may answer. I have your objection on the record * * *. It is noted. [Witness], you may answer the question.
"* * *
"[DEM counsel]: I'm instructing my client not to answer the question, please."
6. In May of 2005, while the declaratory judgment action was still pending in Superior Court, the Attorney General filed a petition with the director of DEM for a declaratory ruling on the underlying evidentiary issue (viz., the type of questions which DEM employees would be required to answer). The director thereafter issued an order requiring DEM witnesses to answer only "fact-specific, `non-opinion' inquiries." The Attorney General subsequently appealed that order to the Superior Court. The December 31, 2007 Superior Court order referenced in the text is the product of the Attorney General's appeal of the order of the director of DEM.
We further note that, during the period of more than two years that transpired between the posing of the objected-to question at the AAD hearing and the Superior Court's eventual ruling, the parties appeared in the Superior Court on several occasions and before various justices of the Superior Court. The parties were repeatedly encouraged by said justices to pursue settlement— although in the end that pursuit was unsuccessful.
7. We pause to note that the December 31, 2007 order of the Superior Court has neither been appealed to this Court, nor is it the subject of the present appeal before this Court. We therefore consider that order to be unaffected by this decision and to remain in full force and effect.
8. The Attorney General's original complaint named DEM as the only defendant. He subsequently filed an amended complaint, approximately one week later, in which he added Pond View as a defendant.
9. DEM agency regulations provide that, when a change of ownership of a facility takes place, a license transfer occurs and DEM is to issue the transferee "a full term [i.e., three year] renewal license." 12-030-021 R.I. Code R. § 1.6.03(a)(3); G.L. 1956 § 23-18.9-9(c).
10. In January of 2009, TLA filed an application with DEM whereby it sought permission to expand its facility and to allow it to process additional tonnage of refuse per day. Pursuant to the licensing statute, expansion of an existing facility requires a new license; accordingly, the procedural steps relative to the issuance of such a license must be adhered to. See § 23-18.99-(a)(1). As of the time of oral argument before this Court, the application for the new license remained under review.
11. The Superior Court justice concluded his decision with the following blunt admonition:
"[When the Superior Court] issues orders, they are not to be ignored. In the event that end runs are going to be attempted around them, the Court through appropriate motion practice ought to be made aware of it before it happens."
It should go without saying that we unequivocally share in the displeasure voiced by the Superior Court justice.
12. The mootness issue is properly before us as a result of our having granted the Attorney General's petition for a writ of certiorari; and, given our holding as to the mootness issue, we need not address the competing arguments of the parties as to the appropriateness of the Superior Court's entry of partial final judgment pursuant to Rule 54(b) of the Superior Court Rules of Civil Procedure.
13. Although it is by no means dispositive of the issue of whether the 2006 and 2008 licenses are in actuality closely related offshoots of the original 2003 license, it is worth noting that each of the licenses bears the same "64" license number.
14. We further consider to be persuasive the Attorney General's argument that, if the 2006 and 2008 licenses were indeed "new" (as DEM and TLA contend they were), then there was not compliance with the above-referenced statutory requirements before those licenses were issued.
15. We note that our analysis is similar to that conducted by the Supreme Court of Texas in the case of Harris County Bail Bond Board v. Blackwood, 41 S.W.3d 123 (Tex. 2001). In Blackwood, the court noted that it had "long held that the expiration of a license will not moot the controversy if the appeal arises from the renewal or refusal to renew a license under a statutory scheme that contemplates a continuous cycle of license renewals." Id. at 126 n.2. 16. DEM regulations provide an opportunity for hearing for "[a]ny person whose application for a registration, registration renewal, license, license renewal, other approval, or a variance hasbeen denied by the Department, acting through the Office of Waste Management * * *." 12-0300-21 R.I. Code R. § 1.11.01 (emphasis added). Such person "may appeal to the Administrative Adjudication Division for review of the decision on which the denial is based." Id.Our reading of this regulation leads us to conclude that, had Pond View or TLA been denied either a renewal or a transfer of the license, the entity so denied would have had the opportunity to appeal the denial through the AAD hearing process. However, it is our view that the provision provides no mechanism for the Attorney General, or other interested parties, to object to or appeal the issuance of a renewal or transfer.
17. With respect to a transferred license, DEM regulations provide that a change in ownership which entails "significant amendments and/or revisions to the operating plan or facility will require the issuance of a new license or registration (versus renewal)." 12-030-021 R.I. Code R. § 1.6.03(a)(2) (emphasis added).
18. Although it is certainly regrettable that a controversy about the issuance of a license in 2003 still remains unresolved, we perceive nothing in the present record that would support a successful invocation of the doctrine of laches. SeeCavanagh v. Bostitch, Inc., 91 R.I. 239, 253, 162 A.2d 785, 792 (1960).