Sheffield Wind Project ( 2009 )

STATE OF VERMONT
ENVIRONMENTAL COURT
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In re Sheffield Wind Project } Docket No. 252-10-08 Vtec
(Appeal of Brouha et al.) }
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Decision and Order on Pending Motions
Appellants Carol Brouha, Paul Brouha, Greg Bryant, Don Gregory, the King
George School, Linda Lavalle, Jane Rollins, Robert Tuthill, and David Zimmerman
initially appealed from a decision of the Vermont Agency of Natural Resources (ANR)
issuing individual stormwater discharge permit (No. 5535-INDC), covering the
construction of the Sheffield Wind Project in Sheffield, Vermont. In late May of 2009,
Appellants filed a notice of appeal from the amended individual stormwater discharge
permit (No. 5535-INDC.A) for the same project. The parties agreed that the amended
permit superseded the original one, and that it would be most efficient to incorporate
the appeal of the amended permit in the ongoing case, allowing the parties to
supplement their motion memoranda to address all issues from both appeals that still
pertain to the amended permit
Appellants are represented by Stephanie J. Kaplan, Esq.; Appellee-Applicants
Signal Wind Energy, LLC and Vermont Wind, LLC are represented by Ronald A.
Shems, Esq., Andrew N. Raubvogel, Esq., and Geoffrey H. Hand, Esq. The Vermont
Agency of Natural Resources is represented by Judith L. Dillon, Esq. Appellee-
Applicants have moved to dismiss certain questions in the statement of questions. Both
parties have moved for summary judgment. The facts stated in this decision are
undisputed unless otherwise noted.
1
Standards Applicable to the Present Motions
Summary judgment is appropriate “only where, taking the allegations of the
nonmoving party as true, it is evident that there exist no genuine issues of material fact
and the movant is entitled to judgment as a matter of law.” Fritzeen v. Trudell
Consulting Engineers, 170 Vt. 632, 633 (2000) (mem.). When presented with cross-
motions for summary judgment, the Court considers each motion independently and
“afford[s] all reasonable doubts and inferences to the party opposing the particular
motion under consideration.” In re Chimney Ridge Road Merged Parcels, No. 208-9-08
Vtec, slip op. at 2 (Vt. Envtl. Ct. July 31, 2009) (Durkin, J.) (citing DeBartolo v.
Underwriters at Lloyd’s of London, 2007 VT 31, ¶ 8, 181 Vt. 609).
In considering a motion for summary judgment, the trial court’s function is “not
to make findings on disputed factual issues.” Blake v. Nationwide Ins. Co., 2006 VT 48,
¶ 21, 180 Vt. 14; Gettis v. Green Mountain Economic Development Corp., 2005 VT 117,
¶ 19, 179 Vt. 117. In the context of summary judgment, the court does not adjudicate
the credibility of the parties or their witnesses or the weight of the facts offered through
the affidavits submitted on summary judgment. Provost v. Fletcher Allen Health Care,
Inc., 2005 VT 115, ¶ 15, 179 Vt. 545 (stating that summary judgment is not warranted
simply because a movant offers facts that appear more plausible than those tendered in
opposition, or if the opposing party appears unlikely to prevail at trial.)1
Trial courts are cautioned that summary judgment “is not a substitute for a
determination on the merits, so long as evidence has been presented which creates an
issue of material fact, no matter what view the court may take of the relative weight of
that evidence.” Fritzeen, 170 Vt. at 633 (internal citation omitted).
1
No responses to requests to admit have been submitted in the present case. See
Gallipo v. City of Rutland, 2005 VT 83, ¶¶ 20–22, 178 Vt. 244 (citing Freed v. Plastic
Packaging Materials, Inc., 66 F.R.D. 550, 552 (E.D. Pa. 1975) (facts in a request to admit
that are deemed admitted become undisputed and can serve as a basis for summary
judgment).
2
In interpreting and applying administrative rules or regulations, such as the
provisions of the Vermont Water Quality Standards (VWQS) at issue in this case, the
Court approaches regulatory construction in the same manner as statutory
interpretation. In re Williston Inn Group, 2008 VT 47, ¶ 14, 183 Vt. 621 (citing
Conservation Law Found. v. Burke, 162 Vt. 115, 121 (1993)). The Court’s “overall goal is
to discern the intent of the drafters,” first and foremost “by reference to the plain
meaning of the regulatory language.” Id. (citing Slocum v. Dep’t of Soc. Welfare, 154
Vt. 474, 478 (1990)). The other tools of statutory construction are also available “should
the plain-meaning rule prove unavailing.” Id.Section 1-05 of the Vermont Water Quality Standards also addresses the issue of
their interpretation. That provision recognizes that ordinarily the Secretary of the ANR
will apply and interpret the regulations in permit proceedings, but specifically states
that:
[w]here a de novo appeal is taken from the Secretary’s decision, the
appellate decision-maker must make determinations and interpretations
under these rules to achieve the purposes of both state and federal law.
The decision-maker in a de novo appeal is not bound by any
determinations or interpretations of these rules made by the Secretary
relative to an application, provided that review of such determinations is
within the scope of the appeal.
VWQS § 1-05 (emphasis added).
Although the Court is not bound by the Agency’s determinations or
interpretations of the VWQS “relative to [a particular] application,” as in In re: Unified
Buddhist Church, Inc., No. 253-10-06 Vtec, slip op. at 3 (Vt. Envtl. Ct. Jan. 25, 2008)
(Wright, J.), “deference is to be given to the interpretation of regulations and to the
construction of a statute by the agency responsible for its execution.” Id. (citing In re
Appeal of Electronic Industries Alliance, 2005 VT 111, ¶7, 179 Vt. 539).
3
References to the Numbering of Questions in the Statements of Questions
Unfortunately, Appellants did not use a consistent numbering system between
the statement of questions pertaining to the original permit (Statement of Questions
filed January 5, 2009) and the statement of questions pertaining to the amended permit
(Statement of Questions filed June 18, 2009). This decision will refer to the questions
from the June Statement of Questions simply as “Question #,” and will refer to any
distinctions between the questions from the January and June Statements of Questions
as “January Question #” or “June Question #,” as necessary to minimize confusion.
Issues That Are Moot or Otherwise Have Been Resolved
January Question 2, regarding the project’s compliance with the provisions of
federal regulation 40 CFR § 131.12, was not included in the June Statement of Questions.
Accordingly, Applicants’ motions to dismiss or for summary judgment as to that
question are moot. Question 2 from the January Statement of Questions is not an issue
in the appeal from the amended permit, and will not be further discussed.
January Question 13, regarding whether the project’s “plan to bury 3.1 miles of
electricity collection cables complies with the acceptable practices in the Vermont
Stormwater Management Manual,” was withdrawn by Appellants on May 11, 2009.
Given that Appellants did not contest Applicants’ argument that the Stormwater
Management Manual only applies to operational permits, and therefore does not apply
to this construction permit, the reiteration of this question as June Question 12 seems to
have been an inadvertent error. If it was intended to be included, summary judgment
must be granted in favor of Applicants as to June Question 12 because Appellants have
not put forth any evidence to contest Applicants’ factual contentions on this issue, as
required for summary judgment.
January Question 14, regarding whether Applicants “should be required to
stabilize and protect from erosion and sedimentation all areas of earth disturbance
4
immediately in anticipation of storm events[,] and in any event within 24 hours,” was
not included in the June Statement of Questions. Accordingly, Applicants’ motion for
summary judgment as to that question is moot. Question 14 from the January
Statement of Questions is not raised as a separate issue in the appeal from the amended
permit, and will not be further discussed.
January Question 15 duplicated January Question 10; the June Statement of
Questions eliminated the duplicate question and listed the issue as Question 9.
Accordingly, any arguments originally submitted with reference to January Questions
10 or 15 will be addressed in this decision with respect to June Question 9.
January Question 16, regarding whether Applicants “can demonstrate that
construction of the project will create no adverse impact to the Class III wetlands on the
site,” as well as to all surface waters in the state, was not included in the June Statement
of Questions. Accordingly, Applicants’ motions to dismiss or for summary judgment as
to that question are moot. Question 16 from the January Statement of Questions is not
an issue in the appeal from the amended permit, and will not be further discussed.
June Question 5 (January Question 6), regarding any earth disturbance associated
with modifications to access roads off the site, has also become moot. The off-site road
improvements (other than improvements to Duck Pond Road along the frontage of the
project property, which are in fact addressed in the permit) are the subject of a separate
authorization (NOI Authorization 5535-9020.2) under General Permit 3-9020, which has
become final without appeal, rendering Question 5 moot. Moreover, Appellants have
not cited any section in the applicable statutes or regulations that would require off-site
work to be covered by the same stormwater construction permit that covers the on-site
construction work for this project.
Prior to submission of the June Statement of Questions, while only the January
Statement of Questions was pending, Appellants moved to amend January Question 8
to clarify that the question related to the compliance of the project’s Erosion Prevention
5
and Sediment Control Plan with the state Standards and Specifications for Erosion
Prevention and Sediment Control. The equivalent question in the June Statement of
Questions, Question 7, contains the clarification. Accordingly, to the extent necessary,
Appellants’ motion to amend January Question 8 is granted. However, as discussed
above, the appeal will proceed as to the amended permit under the June Statement of
Questions, and the Question will be addressed in this decision with respect to June
Question 7.
Issue Preclusion from PSB Decision
Applicants argue that June Questions 1, 2, and 3 have been conclusively resolved
by the Public Service Board’s (PSB) decision regarding the project’s Certificate of Public
Good,2 and therefore those issues are barred by the doctrine of issue preclusion.
Issue preclusion, or collateral estoppel, bars relitigation of an issue that has
already been litigated and decided. Trickett v. Ochs, 2003 VT 91, ¶ 10, 176 Vt. 89. Issue
preclusion is appropriate where: “(1) preclusion is asserted against one who was a party
in the prior action; (2) the same issue was raised in the prior action; (3) the issue was
resolved by a final judgment on the merits; (4) there was a full and fair opportunity to
litigate the issue in the prior action; and (5) applying preclusion is fair.” In re Hartland
Group North Ave. Permit, 2009 VT 92, ¶ 7 (citing Trickett, 2003 VT 91, ¶ 10).
Administrative decisions, like those made by the Public Service Board, “can have
preclusive effect in judicial proceedings when the administrative body has acted in a
judicial capacity, resolving disputed issues of fact, and providing the parties with an
adequate opportunity to litigate.” In re Hartland Group, 2009 VT 92, ¶ 8 (citing
Trickett, 2003 VT 91, ¶ 11). However, that does not hold true in this instance.
2 On August 8, 2007, the Vermont Public Service Board, pursuant to 30 V.S.A. § 248,
issued a Certificate of Public Good authorizing the construction of the Sheffield Wind
Project.
6
Ridge Protectors, Inc. was a party to the PSB’s Certificate of Public Good
proceedings. Although some, but not all, of the Appellants were members of or active
in Ridge Protectors, Inc., Applicants have not shown that the parties were sufficiently
the same or that there was a full and fair opportunity to litigate the issues raised in this
appeal. In particular, five of the Appellants in this case were not members of Ridge
Protectors, Inc., and therefore were not parties or members of a party before the PSB.
Furthermore, there was not a full and fair opportunity to litigate the issues raised
in this appeal. In particular, the applicability of the presumption of compliance found
under 10 V.S.A. § 1246 and the overall effect that presumption has on compliance with
the VWQS as a whole, including the anti-degradation policy, were issues not before the
PSB. Accordingly, Applicants motion to dismiss based on the doctrine of issue
preclusion must be denied.
Motion for Summary Judgment as to Question 4
Question 4 relates to whether there will be discharges to tributaries of streams
over 2,500 feet in elevation, and, if so, whether the application complies with the
Vermont Water Quality Standards (VWQS)3 § 1-03(C) as to such waters, which are
classified as Class A under 10 V.S.A. § 1253.
The permit does not authorize any discharges above 2,500 feet in elevation. It is
undisputed, however, that elements of the project will be constructed above 2,500 feet
in elevation. Applicants claim that there will be no discharges into waters above 2,500
feet despite the construction above this elevation. However, Appellants raise a
disputed issue of fact as to whether a discharge from the construction of a project
3 The parties did not provide a copy of the Vermont Water Quality Standards; the
Court has used the electronic version of the VWQS available at:
http://www.nrb.state.vt.us/wrp/publications/wqs.pdf.
7
element at 2,535 feet will occur. Because this fact is disputed, summary judgment is not
appropriate.
Motion for Summary Judgment as to Question 6
Question 6 relates to whether the proposed culvert replacement and the
installation of new culverts must be reviewed as part of the application for this permit.
The parties do not dispute that the proposed culvert replacement and installation of
new culverts were in fact reviewed as part of the application for this permit. Question 6
is therefore resolved in the affirmative by summary judgment.
Motion for Summary Judgment as to Question 8
Question 8 relates to whether the On-Site Plan Coordinator required by the
permit should be “independent” rather than “under the control of” the Applicants. The
Amended Permit, as well as the statute and regulations, provides for ANR inspection
and monitoring as well as the oversight provided by the On-Site Plan Coordinator and
the EPSC Specialist. In addition, the ANR has independent inspection and investigation
authority under 10 V.S.A. § 8005. Appellants have not shown as a matter of law that
requiring or allowing the On-Site Plan Coordinator to be selected by Applicants will
cause the project to violate the VWQS.
Motion for Summary Judgment as to Question 9
Question 9 asks whether the permit must provide for “public involvement in
monitoring compliance and in enforcing permit conditions.” Appellants, like any
members of the public, are entitled to public access to all monitoring reports and
records. The federal statute, 33 U.S.C. § 1251(e), requires public participation in the
“development, revision, and enforcement” of regulations, standards, effluent
limitations, plans, and programs. It does not on its face provide for public participation
8
in monitoring, nor is such a provision found in state statute or regulations. Because 33
U.S.C. § 1251(e) does require public participation in enforcement, it would be up to
other appropriate proceedings to determine if the prerequisites for a federal Clean
Water Act citizen suit are met, in the absence of such state provisions. As in ANR v.
Montagne & Branon, No. 291-12-07 Vtec, slip op. at 10 (Vt. Envtl. Ct Apr. 9, 2008)
(Durkin, J.), it is not for this Court to create a provision that does not exist in state
statutes or regulations.
Motion for Summary Judgment as to Question 10
Question 10 asks whether Applicants should be required to post a bond to
ensure that remediation and restoration funds will be available in the event that
discharge from the construction of the project results in significant damages. Unlike
under other environmental statutes, such as Act 250,4 or the Waste Management
statute,5 Appellants have cited no specific statutory authority under the Water Pollution
Control statute to require a bond as a condition of permit approval.
However, at this time it would be an impermissible advisory opinion to
determine whether a bond could be required under the language that “the permit shall
contain additional conditions, requirements, and restrictions as the secretary deems
necessary to achieve compliance” with the VWQS. 10 V.S.A. § 1264(e), (h).
Motion for Summary Judgment as to Question 3
Under 10 V.S.A. § 1264(g)(1), “[i]n any appeal under this chapter an individual
permit meeting the requirements of [10 V.S.A. § 1264(f), providing for, among other
4
10 V.S.A. § 6068(c) (“A permit may contain such requirements and conditions . . .
including . . . the filing of bonds to insure compliance.”).
5 10 V.S.A. § 6611(a) (operator of waste management facility “shall provide evidence of
. . . financial responsibility” to cover remedial work upon closure of the facility).
9
things, best management practices or BMPs], shall have a rebuttable presumption in
favor of the permittee that the discharge does not cause or contribute to a violation of
the Vermont water quality standards for the receiving waters with respect to the
discharge of regulated stormwater runoff.” Under the final sentence of § 1264(g)(1), this
presumption only applies to permits allowing discharge into impaired waters that are
impaired for reasons other than regulated stormwater runoff.
Nevertheless, the presumption also applies to the permit at issue in this appeal
by virtue of § 1264(g)(2), which applies the presumption to individual construction
permits issued under the federal NPDES program,6 and § 1264(h), which applies the
presumption to unimpaired waters or “waters that meet the water quality standards of
the state.” See also Re: CCCH Stormwater Discharge Permits, Permit Nos. WQ-02-11,
WQ-03-05, WQ-03-06, & WQ-03-07, Findings of Fact, Concl. of Law, & Order, at 27 (Vt.
Water Res. Bd. Oct. 4, 2004).
Under both the federal Clean Water Act and Vermont law, discharge permits
must comply with the VWQS. See 33 U.S.C. § 1313(a); 10 V.S.A. § 1264(e)(1). The
Vermont Water Quality Standards include an anti-degradation policy in § 1-03.7
Vermont’s anti-degradation policy requires that “[e]xisting uses of waters and the level
of water quality necessary to protect those existing uses shall be maintained and
6
However, the presumption applies to NPDES permits “only to the extent allowed
under federal law.” 10 V.S.A. § 1264(g)(2). For example, EPA has withdrawn approval
for a provision of the VWQS, the limited duration activity (LDA) provision, as being
inconsistent with federal law. See Letter from Stephen S. Perkins, Director, Office of
Ecosystem Protection, U.S. EPA, to Peter Young, Chair, Vermont Natural Resources
Board (July 11, 2007). Under the LDA provision, certain short-term exceedances of the
VWQS associated with construction projects were permitted. EPA “disapprove[ed] the
LDA provision as being inconsistent with federal law . . . [because] that provision had
the effect of allowing variances from water quality standards to be granted without the
safeguards essential to be consistent with federal law.” Id.
7 See 40 C.F.R. § 131.6(d) (requiring states to include “[a]n antidegradation policy
consistent with Section 131.12,” which contains EPA’s federal policy).
10
protected regardless of the water’s classification.” VWQS § 1-03(B)(1). Since the VWQS
include the state’s anti-degradation policy, the statutory presumption extends to a
permittee’s compliance with the anti-degradation policy. See Re: CCCH at 40, n.10.
Because the presumption applies to VWQS § 1-03, in this appeal the Appellants
bear the burden of rebutting the presumption that compliance with the permit will
ensure that all VWQS standards have been met, including the anti-degradation policy’s
requirements that existing uses and water quality of the receiving waters will be
maintained and protected. 10 V.S.A. § 1264(g), (h); Re: CCCH at 40, n.10. 8
However, the conclusion that the presumption is applicable does not resolve the
issue in Question 3 as to whether the baseline determination of existing uses and
existing water quality is required, pursuant to VWQS § 1-03(B)(1). Because the waters
receiving discharge under this permit are high quality waters, § 1-03(C) requires that
“such waters shall be managed to maintain and protect the higher water quality and
minimize risk to existing and designated uses.”
8
Section 1264(e) “requires that any permit issued for a new stormwater discharge by
the Secretary of ANR must, at a minimum, be consistent with the 2002 [Stormwater]
Manual, as amended from time to time, by rule.” Re: CCCH at 30. Once it is shown
that the permit is consistent with the Manual, which sets forth BMPs that can be used
for a project, the presumption of compliance with all VWQS is applied. Id. The parties
have not provided the documentation showing that the Vermont Standards and
Specifications for Erosion Prevention and Sediment Control (Vermont EPSC Standards)
have been adopted by rule as the Stormwater Manual for the construction phase of a
project, but the ANR, which is charged with administering this program, states that to
be the case in its memorandum. If the Vermont EPSC Standards establish the BMPs for
construction permits, as the 2002 Manual establishes the BMPs for operational permits,
then consistency with the Vermont EPSC Standards for construction-phase permits
creates the statutory presumption of compliance with all VWQS. See Vermont Agency
of Natural Resources Opposition to Appellants’ Motion for Summary Judgment, at 12
(Mar. 17, 2009).
11
While the rebuttable presumption establishes that the BMPs in place in the
permit will achieve the requirements of § 1-03(C), that presumption can be rebutted by
evidence brought forward by Appellants. However, an agreed or otherwise established
benchmark of the existing uses and existing quality of the receiving waters is necessary
against which to measure that evidence. Such a benchmark is also necessary to
determine during the life of the permit whether the requirements of the permit and the
anti-degradation policy are being met. See Amended Permit, § J.
The anti-degradation policy creates a three-tiered system of protection. See
§ 1-03(B)–(D); Re: CCCH at 39; In re: Stormwater NPDES Petition, No. 14-1-07 Vtec, slip
op. at 16 (Vt. Envtl. Ct. Aug. 28, 2008) (Durkin, J.); see also 40 C.F.R. § 131.12. The first
of these, § 1-03(B), requires that existing uses of all waters be maintained and protected,
whether the waters are impaired or unimpaired, and lays out the factors to be
considered in making the “existing uses” determination. Section 1-03(B) allows the
determination of existing uses to be made either on a case-by-case basis during the
permit process or during the basin planning process.9 The third tier, § 1-03(D), protects
“outstanding resource waters,” not applicable to this appeal.
The second tier, found in § 1-03(C), addresses “Protection and Maintenance of
High Quality Waters,” which are waters “the existing quality of which exceeds any
applicable water quality criteria.” For such unimpaired waters, the anti-degradation
policy requires that, except as provided in § 1-03(C)(2), “such waters shall be managed
to maintain and protect the higher water quality and minimize risk to existing and
designated uses.” § 1-03(C)(1). Section 1-03(C)(2) allows a “limited reduction in the
existing higher quality of such waters,” under certain circumstances, but not so far as to
jeopardize the maintenance of “the level of water quality necessary to maintain and
protect all existing uses as well as applicable water quality criteria” required to be
9 No party has argued that the determination of existing uses was done during a basin
planning process in the present case.
12
maintained “in all cases” by the final sentence of § 1-03(C)(1). See also In re:
Stormwater NPDES Petition at 16.
Thus, for such high quality waters, the plain language of the anti-degradation
policy found in § 1-03(C) requires that the existing higher level of water quality be
maintained, unless a § 1-03(C)(2) reduction in existing quality has been allowed. Even if
a reduction is allowed, the plain language of the anti-degradation policy requires in all
cases both that whatever level of higher water quality necessary to protect existing uses
must be maintained and that the applicable water quality criteria in Chapter 3 of the
VWQS must continue to be met.
Section 1-03 “does not include an implementation procedure explaining how and
under what circumstances anti-degradation review of a proposed discharge [is to] be
undertaken.” Re: CCCH at 39. The VWQS do not define whether all discharges must
undergo anti-degradation analysis, or “whether a distinction can be drawn between
construction-phase and operational-phase discharges or between impaired and
unimpaired receiving waters.” RE: CCCH at 39–40. Until a rule or procedure is
adopted that clarifies how the anti-degradation policy should be implemented and to
which types of discharges it applies,10 this Court can only determine what is required by
the plain language of the statute and applicable regulations, including the VWQS,
applying the recognized rules of statutory construction.
10 The former Water Resources Board noted that “an anti-degradation implementation
procedure . . . could help clarify when careful inventory and assessment of a receiving
water’s existing uses and the imposition of additional terms and conditions to monitor
and modify projects to assure compliance with all provisions of the VWQS, not just
numerical criteria, is required.” Id. at 32 (emphasis in original). The Board expressed
its concern over the potential “danger that water quality in . . . now un-impaired waters
may be incrementally degraded over time if the . . . ANR relies solely on [the use of
BMPs] to authorize additional new discharges of collected stormwater into these
waters.” Id.
13
Motion for Summary Judgment as to Question 7
Question 7 presents two separate issues. It first asks whether the Applicants’
Erosion Prevention and Sediment Control Plan (EPSC Plan) complies with specific
sections of the Vermont Standards and Specifications for Erosion Prevention and
Sediment Control (Vermont EPSC Standards).11 The specific sections of the Vermont
EPSC Standards listed in Question 7 are Section A on page 3.7, Section 3 on page 3.8,
and Section 3.3 on pages 3.19–3.21. Material facts are in dispute, or at least have not
been provided to the Court, to allow the Court to determine whether the EPSC Plan
complies with the EPSC Standards, as the Standards were not provided either
electronically or in hard copy. See footnote 11 below.
Question 7 also asks whether, even if the EPSC Plan does meet the Vermont
EPSC Standards, more stringent requirements should be imposed to meet the VWQS.
Material facts are in dispute as to whether any more stringent requirements are
necessary to meet the requirements of the VWQS. Appellants may present evidence at
trial both directed at overcoming the presumption, and as to the merits of whether any
more stringent requirement is necessary to meet any specific standard in the VWQS, as
referenced in the more specific statement of Question 2 required below.
Motion for Summary Judgment as to Question 11
Question 11 relates to whether restrictions imposed by the permit on
construction during the late fall/winter/spring period, which is a period defined as from
11
The parties did not provide a copy of the Vermont Standards and Specifications for
Erosion Prevention and Sediment Control. The Court attempted to access an electronic
copy available at: http://www.anr.state.vt.us/cleanandclear/erosion.htm. However, the
link provided brings up a notification that “this page cannot be found.”
14
October 15 to April 15, should be extended to May 15 because of the high elevations and
late spring snowmelt in the project area.
Material facts are in dispute as to whether the characteristics of the project area
warrant extending the late fall/winter/spring period restrictions of § G(2) of the
Amended Permit and of the Erosion Prevention and Sediment Control Plan to May 15.
Those restrictions include the potential for the Secretary to suspend or prohibit
construction activities if such construction “is determined to present a significant risk to
water quality.” Amended Permit, § G(2). Appellants may present evidence at trial both
directed at overcoming the presumption, and as to the merits of whether extending this
period to May 15 is necessary for compliance with the VWQS.
Motions to Dismiss12 or for Summary Judgment as to Questions 1 and 2
Appellee-Applicants are correct that the parties are entitled to “a statement of
questions that is not vague or ambiguous, but is sufficiently definite so that they are
able to know what issues to prepare for trial.” In re Unified Buddhist Church, Inc.
Indirect Discharge Permit, No. 253-10-06 Vtec, slip op. at 5 (Vt. Envtl. Ct. May 11, 2007)
(Wright, J.). Questions 1 and 2 pertaining to the Amended Permit are more specific
than the corresponding questions relating to the original permit, but they are still too
broad to allow the parties to prepare for trial.
On the other hand, to the extent that Questions 1 and 2 encompass the issues
raised in the other questions in the Statement of Questions, material facts are in dispute
at the present time to preclude summary judgment, except as to the following legal
issue embedded in Appellants’ Motion for Summary Judgment regarding the turbidity
12
Applicants initially moved to dismiss January Questions 1, 2, 3, 4, and 16; January
Questions 2 and 16 are no longer at issue in the present appeal. Therefore, only June
Questions 1, 2, and 3 (formerly January Questions 1, 3, and 4) remain. Question 3 was
addressed earlier in this decision.
15
standard in § 3-04(B)(1). Appellants have conflated the Amended Permit’s 25
nepholometric turbidity units (NTU) limit for stormwater as it leaves the construction
site with the § 3-04(B)(1) in-stream limit of 10 NTU. It will be for trial to determine
whether or not the action level set for the runoff at the construction site is sufficient to
achieve the in-stream turbidity standard.
Question 1 raises the project’s compliance with 10 V.S.A. §§ [1251],13 1263, and
1264. From the totality of the filings submitted by Appellants, the Court cannot
determine that Appellants actually challenge any aspects of the proposal’s compliance
with the Water Pollution Control statute, other than as raised by the more specific
Questions 3 through 12, which have been addressed above. Accordingly, on or before
October 9, 2009, Appellants shall file a more specific statement of Question 1, stating
specifically if the issues raised as to the project’s compliance with the three statutory
sections are limited to those raised by the other questions in the Statement of Questions.
Question 2 raises the project’s compliance with §§ 1-02, 1-03, 1-04, 3-01, 3-02, and
3-04 of the VWQS. From the totality of the filings submitted by Appellants, the Court
cannot determine that Appellants actually challenge any aspects of the proposal’s
compliance with §§ 1-02, 1-03, or 1-04, other than as raised by the more specific
Questions 3 through 12, which have been addressed above. As to the Water Quality
Criteria found in §§ 3-01, 3-02, and 3-04, many of those criteria are inapplicable to the
present proposal, but it is up to Appellants to specify which, if any, are the subject of
the appeal. It is not for the Court or the other parties to make assumptions about which
ones are of concern. Accordingly, on or before October 9, 2009, Appellants shall file a
more specific statement of Question 2, stating specifically if the issues raised as to the
project’s compliance with §§ 1-02, 1-03, and 1-04 are limited to those raised by the other
questions in the Statement of Questions, and, stating with specificity the subsections of
13 There is no § 1250; § 1251 contains the statutory definitions.
16
§§ 3-01, 3-02, and 3-04 that are asserted to be at issue in this appeal, and on which
Appellants propose to present evidence.
Appellee-Applicants’ motions to dismiss Questions 1 and 2 are DENIED at this
time, with leave to renew after the more specific filings have been made.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED as
follows:
As discussed above, January Questions 2, 14, and 16, and June Questions 5 and
12, are moot. Appellee-Applicants’ motions to dismiss Questions 1 and 2 are DENIED
at this time, with leave to renew, as discussed above.
Summary judgment is DENIED as to Questions 1, 2, 4, 7, and 11, as material facts
are in dispute. Summary judgment is DENIED as to Question 10, as it calls for an
impermissible advisory opinion in the present posture of the case.
Summary judgment is GRANTED to both parties as to Question 6, in that the
proposed culvert replacement and the installation of new culverts must be reviewed as
part of the application for this permit, but also that the proposed culvert replacement
and the installation of new culverts have in fact been reviewed in connection with the
application for this permit.
Summary judgment is DENIED to Appellants, and is GRANTED to Appellee-
Applicants, as to Questions 8 and 9.
Summary judgment is GRANTED in part to Appellee-Applicants as to Question
3, in that the rebuttable presumption of compliance with the VWQS applies to the anti-
degradation policy components of the VWQS, but is GRANTED in part to Appellants as
to Question 3, in that the existing uses, and the existing water quality (if higher than the
VWQS), must be established in this case for the receiving waters at issue in this permit.
Please be prepared to discuss at the scheduled conference this task and whether any
facts are in dispute as to it.
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This matter is set for trial on October 15 and 16, to continue on November 5 if
necessary. Given those trial dates, ordinarily the Court would give the parties until
approximately November 17 to file requests for findings and memoranda of law, and,
given the Thanksgiving weekend, would give the parties until approximately December
1 to file any responses. Appellants have moved to extend the trial dates due to the
timing of this decision on the pending motions. That motion will be argued and
decided at the conference now scheduled for October 5 (see enclosed notice).
If the trial dates are extended, the Court will establish a schedule to avoid any
corresponding delay in the issuance of the Court’s decision, by requiring the parties’
requests for findings and memoranda of law to be filed by November 17, and by
requiring any responses and supplemental requests to be filed by December 1 or by
three business days after the final trial date, whichever occurs later. At the conference
already scheduled for October 5, 2009, the parties should be prepared to discuss the
following dates, which are available in the Court’s schedule: November 5 (already
scheduled), 12*, 13, 19, and 20*, and December 2, 3, 4, 8, 9, and 10. The Court recognizes
that the dates in November marked with an asterisk were not available in certain of the
parties’ calendars as of the date the trial was originally scheduled, but has listed them
for the parties’ information as being available in the Court’s schedule.
Please be prepared to discuss which dates are available for specific witnesses, as
the Court may schedule specific dates for witnesses on specific topics, including the use
of some of the originally scheduled trial dates if appropriate. By the time of the October
5 conference, the Court should be able to advise the parties as to which of those dates
are available in St. Johnsbury and which are available in Berlin.
Done at Berlin, Vermont, this 29th day of September, 2009.
_________________________________________________
Merideth Wright
Environmental Judge
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