State v. Sirois

478 A.2d 1117, 1984 Me. LEXIS 743
CourtSupreme Judicial Court of Maine
DecidedJuly 17, 1984
StatusPublished
Cited by6 cases

This text of 478 A.2d 1117 (State v. Sirois) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Sirois, 478 A.2d 1117, 1984 Me. LEXIS 743 (Me. 1984).

Opinion

McKUSICK, Chief Justice.

Defendant Roland Sirois appeals from the December 7, 1983, judgment of the Superior Court (Aroostook County) ordering him to comply with the terms of a wastewater discharge license issued to him by the Department of Environmental Protection (the Department). He contends [1119]*1119that the grant of injunctive relief was improper because his discharge license was no longer in effect at the time the Superior Court entered the injunction. We hold that the grant of injunctive relief was proper regardless of whether the license remained in effect. We find, however, that the Superior Court’s order for continued operation of the waste disposal system should have been limited to preventing any future violation of the environmental protection statute by defendant Sirois.

I.

The facts relevant to the issues presented on appeal are simply stated. In 1975 Mr. Sirois acquired a parcel of land upon which he developed the Queen Village subdivision, a housing development in French-ville. To serve the anticipated needs of the subdivision, defendant constructed a sewer line connecting individual lots with a holding pond or “lagoon.” The lagoon was in turn connected to a chlorinator that discharged into a storm ditch running to the nearby St. John River. Properly operated, the system first would oxidize the waterborne wastes in the lagoon through aeration and bacterial action and then, before discharging the wastewater, would destroy the carryover microflora through chlorination.

Although the Town of Frenchville obtained a wastewater discharge license for the system from the Department in 1975, it was determined through subsequent litigation between Mr. Sirois and the Town that the Town was under no legal obligation to operate and maintain the treatment facility. See Sirois v. Town of Frenchville, 441 A.2d 291 (Me.1982). In early 1979 defendant applied for transfer to him of the license issued to the Town. By an order dated March 14, 1979, the Board of Environmental Protection granted defendant a license expiring by its terms on March 14, 1984. See 38 M.R.S.A. § 414, repealed, and replaced by P.L. 1979, ch. 444. That license authorized defendant to discharge 9,200 gallons per day of treated wastewa-ter from the housing subdivision to the St. John River, subject to specific limitations on the content of the discharged wastewa-ter and also subject to the requirement that

[t]he licensee shall at all times maintain in good working order and operate at maximum efficiency all wastewater treatment and/or control facilities.

By a letter dated May 3, 1979, Mr. Sirois attempted to surrender the license to the Department. The Department rejected the attempted surrender and returned the license to him later that month. Then, on June 27, 1979, defendant conveyed the treatment facility and surrounding land to Roland Sirois Home Construction, Inc., a corporation owned by him and his immediate family.

After several unsuccessful attempts by the Department to induce Mr. Sirois to comply with the terms of the license, the State commenced the present action in July of 1983, seeking a declaration that he had violated the discharge license and also in-junctive relief pursuant to 38 M.R.S.A. § 348 (1978).1 On October 4, 1983, a full hearing was held, from which the trial justice was justified in finding the following facts. Although the treatment facility operated properly when it first became functional in 1977, it was not operated as intended from 1979 through the date of the hearing. Mr. Sirois took out the chlorinator, disconnected electrical service to the aerator, and plugged the discharge pipe to the storm ditch. Notwithstanding the non-[1120]*1120operability of the aerator and the chlorinator, Mr. Sirois has continued to allow sewage to flow through the system. For about four years prior to the hearing, raw sewage flowed into the lagoon and then was discharged from the lagoon by simply spilling over onto the surrounding land, seeping into the soil. At the time of the hearing, at least ten houses, all owned by persons other than Mr. Sirois, were connected to the system.

By judgment entered on December 7, 1983, the Superior Court found Mr. Sirois in violation of his obligations under the license and ordered him to return the system, including the chlorinator, aerator, and discharge pipe, to working order on or before December 31, 1983. The court further ordered Mr. Sirois to operate the system in accordance with the license until relieved of that responsibility by the Department. Defendant took a timely appeal to the Law Court from the Superior Court’s injunction.

II.

Defendant attacks the injunction on the ground that the discharge license, upon which the injunction was based, was rendered ineffective as to him by his attempted surrender of the license to the Department. He contends that by returning the license to the Department accompanied by a letter stating that he no longer wanted it, he was released from his obligations under the license. In support of this contention he cites authority stating that a license is the extension of a privilege to do that which would otherwise be unlawful and may be terminated by surrender or abandonment. See, e.g., Shemeth v. Selectmen of Holden, 317 Mass. 278, 280, 58 N.E.2d 6, 7 (1944) (building permit); 53 C.J.S. Licenses §§ 1, 43 (1948); see also Wolfe v. Runnels, 90 Me. 253, 38 A. 100 (1897) (vendor’s license).

Defendant gains nothing by this argument. Even if defendant’s attempted surrender of the license to the Department successfully released him from his license obligations, he would find himself in the position of one who, without a license, discharges pollutants into the waters of the state and maintains a surface waste water disposal system. Both of those activities are unlawful unless licensed by the Board of Environmental Protection. See 38 M.R. S.A. § 413(1),2 (1-A)3 (1978). Furthermore, 38 M.R.S.A. § 348(1) authorizes the Attorney General to seek an injunction to redress “a violation of any provision of the laws administered by the Department of Environmental Protection,”4 including those provisions prohibiting defendant’s conduct unless duly licensed.

The evidence showed that at all pertinent times prior to the hearing defendant continued to receive raw sewage in his [1121]*1121holding pond and to allow that sewage to spill over the banks of the holding pond and flow onto the surrounding land. The fact that defendant effected his discharge by allowing the overflow from the holding pond to seep into the water table through the soil rather than by discharging treated effluent directly into the St. John River in accordance with the license made his activity no less a “discharge,” which is defined in the statute to include indirect addition of pollutants to the subsurface waters of the State. See 38 M.R.S.A. § 361-A(1), (4-A), (7) (1978). It is uncontrovertible that defendant has also continued to “operate or maintain a surface waste water disposal system,” another activity for which a license is required. 38 M.R.S.A. § 413(1-A).

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Bluebook (online)
478 A.2d 1117, 1984 Me. LEXIS 743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sirois-me-1984.