Wastewater Treatment Facility Cases - Entry Regarding Motion for Oral Argument ( 2018 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Montpelier (Dog River Road) Wastewater
Docket No. 138-10-17 Vtec
Treatment Facility (Permit #3-1207)
Alburgh (US Route 2) Wastewater
Docket No. 139-10-17 Vtec
Treatment Facility (Permit #3-1180)
St. Albans (NW Correctional Facility)
Wastewater Treatment Facility Docket No. 140-10-17 Vtec
(Permit #3-1260)
S. Burlington (Bartlett Bay) Wastewater
Docket No. 141-10-17 Vtec
Treatment Facility (Permit #3-1284)
St. Albans (Rewes Drive) Wastewater
Docket No. 145-10-17 Vtec
Treatment Facility (Permit #3-1279)
Shelburne #1 (Crown Road) Wastewater
Docket No. 146-10-17 Vtec
Treatment Facility (Permit #3-1289)
Shelburne #2 (Harbor Road) Wastewater
Docket No. 4-1-18 Vtec
Treatment Facility (Permit #3-1304)
Williamstown Wastewater Treatment
Docket No. 5-1-18 Vtec
Facility (Permit #3-1176)
Hinesburg (Lagoon Road) Wastewater
Docket No. 17-2-18 Vtec
Treatment Facility (Permit #3-1172)
ENTRY REGARDING MOTION
Title: Motion for Oral Argument (Motion 7)
Filer: Conservation Law Foundation
Attorney: Elena M. Mihaly
Filed Date: May 21, 2018
No response filed
The Motion is GRANTED.
Currently pending before the Court are multiple pre-trial motions by which multiple
parties have requested the entry of judgment in each of the above referenced Dockets. Within
its reply memorandum in support of its summary judgment motion and in opposition to the
adverse parties’ motions, Appellant Conservation Law Foundation (“CLF”) requested that the
Court schedule oral arguments on the pending motions.
In re Multiple WWTF Appeals, Nos. 138-10-17 Vtec, et. al. (EO on Oral Argument Request) (07-11-2018) Page 2 of 3.
The Court has completed its review of all pending motions and the initial draft of a
response to those motions. Having completed that initial review, we agree that oral arguments
would help the Court fully understand and appreciate all the legal arguments presented by all
the parties. The Court therefore requests that all parties prepare to address all legal issues raised
in all pending motions. A Notice of Hearing accompanies this Entry Order.
The Court invites the parties to discuss and come to an agreement on the proper order of
their respective presentations. It would appear that one possible order of presentation would to
first have the Agency of Natural Resources (“ANR”) offer its arguments in support of the permit
determinations that have been challenged in these various appeals, joined by any municipality
that wishes to join ANR is offering arguments in support of the challenged permit determinations.
Then, CLF and any municipality that wishes may offer their respective legal arguments in support
of the challenges to the appealed permit terms.
We do have a few specific queries that we ask the parties to prepare to clarify at the
hearing. First, we have had some difficulty in interpreting CLF Exhibit 16 and its data. We ask
that CLF clarify who authored this table and from where the author collected the data. It would
be helpful if the data was reported using one measure, be it pounds per year or fractions of metric
tons per year.
Second, in evaluating the water quality-based effluent limitations (“WQBELs”) that ANR
established for the various facilities, we have collected the data, using a common measurement
of pounds per year (“lbs/yr”). We ask the parties to determine whether we have properly
understood and collected the data in the following graph:
Prior permit limit New permit limit Actual discharge
Facility
(lbs/yr) lbs/yr (2017) lbs/yr
Montpelier ~9,672 2,418 1032.59
Alburgh 238 238
St. Albans (NWCF) 61 18 6.2
South Burlington 1,935 760 108.3
St. Albans City 6,089 2,436 3252
Shelburne #1 767 269 314.77
Shelburne #2 1,095 401 244.646
Williamstown 2,283 366 974.05
Hinesburg 608 152 237.87
We have left blank the amount of lbs/yr of actual discharge for the Alburgh Facility
because we could not discern that amount from either CLF Exhibits 16 or 17. We ask the parties
to clarify this point for us.
Next, we note that in a decision concerning a prior appeal from the permit issued to the
Montpelier Facility, we spoke to the proper deference that may or should be afforded water
quality or limitation determinations made by ANR and the federal Environmental Protection
Agency (“EPA”). See In re Montpelier WWTF Discharge Permit, No. 22-2-08 Vtec, slip op. at 5–7
In re Multiple WWTF Appeals, Nos. 138-10-17 Vtec, et. al. (EO on Oral Argument Request) (07-11-2018) Page 3 of 3.
(Vt. Envtl. Ct. June 30, 2009) (Durkin, J.). It appears that some facts may or may not be similar
between that appeal and one or more of the pending appeals. We ask the parties to prepare to
speak at hearing about the proper deference that should be afforded to determinations made in
the pending appeals. See also In re Korrow, 2018 VT 39.
Lastly, we understand that each of the wastewater treatment facilities whose permits are
being challenged in the pending appeals are currently operating, and part of their operation may
include improvements that could impact the amount of phosphorus or other pollutants that are
discharged into their receiving waters. We wonder what levels of discharge the Court should
consider when evaluating the pending motions, or the facts presented at trial, should a trial be
necessary. We ask the parties to be prepared to address at hearing whether this reality should
be considered by the Court and, if so, how.
So Ordered.
Electronically signed on July 12, 2018 at Newfane, Vermont, pursuant to V.R.E.F. 7(d).
________________________________
Thomas S. Durkin, Superior Judge
Environmental Division
Notifications:
Elena M. Mihaly (ERN 8101), Attorney for Appellant Conservation Law Foundation
Joseph S. McLean (ERN 2100), Attorney for the City of Montpelier
Joseph S. McLean, (ERN 2100), Attorney for the Town of Hinesburg
Laura Bucher Murphy (ERN 5042), Attorney for the Vermont Agency of Natural Resources
Douglas M. Brines and Robert C. Roesler, Attorneys for the Village of Alburgh
Brian S. Dunkiel and Jonathan T. Rose, Attorneys for the City of St. Albans
Andrew Bolduc, Attorney for the City of South Burlington
Brian P. Monaghan and James F. Conway, III, Attorneys for the Town of Shelburne
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