RE: Kelly Green Recycling Facility, Declaratory Ruling #293, Memorandum of Decision April 15, 1994 VERMONT ENVIRONMENTAL BOARD 10 V.S.A. Chapter 151 RE: Kelly Green Recycling Facility Declaratory Ruling by Law Office of #293 Jonathan L. Springer, P.C. 54 Main Street, Room 302 P.O. Box 245 Windsor, VT 05089-0245 MEMORANDUM OF DECISION This Memorandum of Decision pertains to a request for a stay and 28 separate requests for party status. As is explained below, the Board denies the stay, and grants 13 of the 28 party status requests and denies the remaining 15. I. BACKGROUND On November 30, 1993, a petition for a declaratory ruling was filed with the Vermont Environmental Board by Frank Anthony (the Petitioner), from Advisory Opinion #EO-93-293. Advisory Opinion #EO-93-293 concerns whether there is Act 250 jurisdiction over the proposed Kelly Green Recycling Facility (the Respondent) in the Town of Windsor, Vermont. Counsel to the Board concluded in Advisory Opinion #EO-93-293 that the use of the former Goodyear plant as the site for a proposed recycling facility would not constitute a substantial change to a pre-existing development and, therefore, would not be subject to Act 250 jurisdiction. On January 18, 1994, Environmental Board Associate General Counsel David L. Grayck convened a prehearing conference in Windsor. On February 16, 1994, Board Chair Courtney issued a Prehearing Conference Report and Order. On February 16, 1994, Board Chair Courtney appointed Board member John Ewing as Acting Chair in this proceeding. The Board deliberated on the party status requests and request for a stay on March 17, 1994. II. PARTY STATUS At the prehearing conference, there were twenty-one separate requests for party status. The Respondent objected to all of the requests. Therefore, the Respondent and those persons seeking party status agreed that any person seeking party status would do so by written submission to the Board on or before Wednesday, February 2, 1994. Subsequent to the prehearing conference, an additional seven requests for party status were made to the Board, for a total of twenty-eight requests. The Board has broken down the twenty-eight requests into three categories. A. Category 1: the five who asked, but who did not file a written request. At the prehearing conference, the following persons requested party status: Marvin Theetqe Kenny Chaffee Nicholas J. Grano Virginia A. Smith Bill Newman The aforementioned persons did not follow up their requests with a written submission to the Board as required by Board Rule 14. Therefore, the Board denies the aforementioned persons party status. B. Category 2: the 11 who asked, filed a written request, and to whom the Respondent does not object. The following 11 persons filed written requests for party status: Melvin and Grace Quigley Carl Colburn Mr. and Mrs. Norman Bridge Douglas Birkett Sharon Place Debra Langhans Douglas Punt Cheryl Chase Leon F. Lemieux The Respondent does not object to these 11 persons being granted party status. After considering their written requests for party status, the Board concludes that Melvin and Grace Quigley, Carl Colburn, and Sharon Place are entitled to party status pursuant to Board Rule 14(A)(3) as they are adjoining landowners who have demonstrated that the proposed recycling center may have a direct effect on their property under criteria 1 (air) and (water), 1(B) (waste disposal), 1(D) (floodways), 5 (traffic), or 8 (aesthetics) or (historic sites). After considering their written requests for party status, the Board concludes that Mr. and Mrs. Norman Bridge, Douglas Birkett, Debra Langhans, Douglas Punt, Cheryl Chase, and Leon F. Lemieux are also entitled to party status pursuant to Board Rule 14(B)(1)(a) as they have demonstrated that the proposed recycling center may have an effect on their property under the aforementioned criteria. Therefore, the persons in category 2 are granted party status pursuant to Board Rule 14(A)(3) and Board Rule 14(B)(1)(a), respectively. C. Category 3: the 12 who asked, filed a written request, and to whom the Respondent objects. The following 12 persons also filed written requests for party status pursuant to Board Rule 14(B)(1)(a): Thomas Baker Eleanor Wishinski Clifton and Marion Southard Marguerite Tewksbury Larry Bowser Laurie Kendall Susanne Pearl Donald A. Whitcomb William Ballantyne Donna Sweaney Susan Anthony The Respondent objects to these 12 persons being granted party status. Under Board Rule 14(B), the grant of party status is discretionary. See Re: Okemo Mountain, Inc., #2S0351-10B-EB, Memorandum of Decision at 4 (Jan. 15, 1993). After considering their written requests for party status, the Board grants Larry Bowser and Susan Anthony party status pursuant to Board Rule 14(B)(1)(a), but denies the requests made by Thomas Baker, Eleanor Wishinski, Clifton and Marion Southard, Marguerite Tewksbury, Laurie Kendall, Susanne Pearl, Donald A. Whitcomb, William Ballantyne, and Donna Sweaney. Mr. Bowser has demonstrated that the proposed recycling center may have an effect on his property with respect to criteria 5 (traffic) and 8 (aesthetics) or (historic sites). Ms. Anthony has demonstrated that the proposed recycling center may have an effect on her property with respect to criteria 1 (air) and (water), 1(B) (waste disposal), 1(D) (floodways), 5 (traffic), and 8 (aesthetics) or (historic sites). The Board denies the remaining requests for party status because we are not persuaded by the written submissions that the proposed recycling center will have an effect on the property owners. The Board notes, however, that its denial of party status does not preclude those persons denied party status from being granted party status before the district commission if the Board rules that the Respondent must obtain an Act 250 permit for the proposed recycling center. III. REQUEST FOR STAY On February 1, 1994, the Petitioner filed a Motion to Stay requesting that the Petitioner be restrained from entering the Goodyear building for the purpose of doing business. Board Rule 42 provides, in part: Any party aggrieved by a final order of the board or a district commission may request a stay by written motion filed with the board identifying the order or portion thereof for which a stay is sought and stating in detail the grounds for the request. The Respondent contends that since this is an appeal of an advisory opinion and not a final order of the board or district commission, the Petitioner's request for a stay must be denied under the express language of Board Rule 42. In Re: Ko/Wong Subdivision, DR #287, Memorandum of Decision at 3 (Sept. 9, 1993), the Board denied a request to stay the "effectiveness" of an advisory opinion precisely because there had been no final order issued by the district commission or board. Advisory opinions are not binding jurisdictional determinations. Re: H.A. Manosh Corp., Declaratory Ruling Request #247, Memorandum of Decision at 2 (July 2, 1991); Re: Esprit, Inc., Declaratory Ruling #181 at 3 (June 3, 1987); Re: Joseph Gagnon, Declaratory Ruling Request #173, Memorandum of Decision at 3 (July 3, 1986). The Board denies the Petitioner's request for a stay since Advisory Opinion #EO-93-293 is neither a decision nor order which can be stayed under Board Rule 42. IV. ORDER 1. The following persons' requests for party status are denied: Marvin Theetqe Kenny Chaffee Nicholas J. Grano Virginia A. Smith Bill Newman Thomas Baker Eleanor Wishinski Clifton and Marion Southard Marguerite Tewksbury Laurie Kendall Susanne Pearl Donald A. Whitcomb William Ballantyne Donna Sweaney 2. The following persons' requests for party status are granted pursuant to Board Rule 14(A)(3): Melvin and Grace Quigley Carl Colburn Sharon Place 3. The following persons' requests for party status are granted pursuant to Board Rule 14(B)(1)(a): Debra Langhans Douglas Punt Cheryl Chase Leon F. Lemieux Larry Bowser Mr. and Mrs. Norman Bridge Douglas Birkett Susan Anthony 4. The Petitioner's request for a stay is denied. 5. No individual may be called as a witness in this matter if he or she has not been identified in a witness list filed in compliance with this order. All reports and other documents that constitute substantive testimony must be filed with the prefiled testimony. If prefiled testimony has not been submitted by the dates specified in the February 16, 1994 Prehearing Conference Report and Order, then the witness will not be permitted to testify. Instructions for filing prefiled testimony are attached. 6. The Board may waive the filing requirements upon a showing of good cause, unless such waiver would unfairly prejudice the rights of other parties. 7. Parties shall file an original and ten copies of prefiled testimony, legal memoranda, all exhibits which are 8« by 11 inches or smaller, and any other documents with the Board, and mail one copy to each of the parties listed on the attached Certificate of Service, except that Melvin and Grace Quigley, Carl Colburn, Sharon Place, Debra Langhans, Cheryl Chase, Leon F. Lemieux, Mr. and Mrs. Norman Bridge, Douglas Birkett, and Susan Anthony have designated the Petitioner as being their agent for the receipt of copies. Parties are required to file only lists identifying exhibits which are larger than 8« by 11 inches that they intend to present, rather than the exhibits themselves. Exhibits must be made available for inspection and copying by any party prior to the hearing. 8. To save time at the evidentiary hearing, the Board will require that parties label their prefiled testimony and exhibits themselves and submit lists of exhibits which the Board can use to keep track of exhibits during the hearing. It is vital that all parties carefully adhere to the following directions with regard to the submission of prefiled testimony. Each party must label their prefiled testimony so that it can be readily identified. Each party shall label his or her prefiled testimony with his or her last name in capitals. For example, the Petitioner should label his prefiled testimony ANTHONY, and the Respondent should label his prefiled testimony KELLY. Prefiled testimony and exhibits shall be assigned consecutive numbers: for example, the Petitioner will number its exhibits ANTHONY1, ANTHONY2, ANTHONY3, etc. If an exhibit consists of more than one piece (such as a site plan with multiple sheets), letters will be used for each piece, i.e. ANTHONY2A, ANTHONY2B, etc. The labels on the exhibits must contain the words ENVIRONMENTAL BOARD, Re: Kelly Green Recycling Facility, DR #293, the number of the exhibit, and a space for the Board to mark whether the exhibit has been admitted and to mark the date of admission. Label stickers which can be used by the parties are available from the Board on request; parties must complete the information sought on the stickers prior to the hearing. Concerning preparation of lists of exhibits, each list must state the full name of the party at the top and the Board's case number. There must be three columns, from left to right: NUMBER, DESCRIPTION, and STATUS. The list must include exhibits and prefiled testimony. An example is as follows: ANTHONY LIST OF EXHIBITS RE: KELLY GREEN RECYCLING FACILITY, DR#293 Number Description Status ANTHONY1 Prefiled testimony of Smith ANTHONY2A1-A4 Plan dated 6/4/93, sheets A1 through A4 The Board will use the status column to mark whether the exhibit has been admitted. Dated at Montpelier, Vermont, this 15th day of April, 1994. ENVIRONMENTAL BOARD s/s/John Ewing John Ewing, Acting Chair Lixi Fortna Arthur Gibb Samuel Lloyd William Martinez Steve Wright c:\mod\dr293.pss (d5)