Randolph Village Water System - Decision on Motions ( 2019 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Environmental Division Unit Docket No. 97-9-18 Vtec
Randolph Village Water System DECISION ON MOTIONS
The present action is an appeal of “Public Community Water System Permit to Operate,”
permit # 5179-18.0 (the Permit), issued by the Agency of Natural Resources (ANR) to the Town
of Randolph (Town) to operate its water system. In relevant part, the Permit imposed a condition
requiring the system to contain manganese concentrations of less than 0.3 milligrams per liter
(mg/L), to be measured at the entry point to the distribution system. The Town timely appealed
the Permit to this Court challenging the manganese condition. Presently before the Court are
the parties’ cross-motions for summary judgment.
The Town is represented in this matter by Paul Gillies, Esq., and Nicholas Low, Esq. ANR
is represented by Diane Sherman, Esq.
Legal Standard
The Court will grant a motion for summary judgment “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” V.R.C.P. 56(a), applicable here through V.R.E.C.P. 5(a)(2). When presented with cross-
motions for summary judgment, we consider each motion individually and give the opposing
party the benefit of all reasonable doubts and inferences. City of Burlington v. Fairpoint
Commc’ns, Inc., 2009 VT 59, ¶ 5, 186 Vt. 332.
Factual Background
We recite the following factual findings solely for the purpose of deciding the pending
motions.
1. The Town owns and operates the Randolph Village Water System (the Water System).
2. The Water System is a public water system that is subject to the Vermont Water Supply
Rule (VWSR).
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3. Five wells supply the Water System: four Pinnacle Wells located west of Route 12, and
the Pearl Street Well, located in the Village area. Storage is provided by both the North and South
Reservoirs, which provide 1.5 million gallons and 1.0 million gallons of storage respectively.
4. Both the federal regulations and the VWSR set a manganese secondary standard at 0.05
mg/L. See 40 C.F.R. § 143.3; VWSR Table 6-2.
5. The federal regulations define the 0.05 mg/L manganese secondary standard in terms of
the end-user.
6. There is no primary standard for manganese in either federal law or the VWSR.
7. The Vermont Department of Health (VDH) has issued a manganese drinking water health
advisory level of 0.3 mg/L.
8. On August 9, 2018, ANR issued the Permit to the Town to operate the Water System
pursuant to 10 V.S.A. Chapter 56 and the VWSR.
9. The Permit requires the Town to meet a manganese concentration of less than 0.3 mg/L
to be measured at the distribution entry point.
10. ANR asserts that contaminant monitoring is typically done at this location.
11. Samples collected at the distribution entry point for the Pearl Street Treatment Facility
indicate that the water coming from the Pearl Street Well currently contains manganese
concentrations greater than 0.3 mg/L.
12. The Town timely appealed the Permit to this Court.
Legal Framework
The Permit was issued pursuant 10 V.S.A. Chapter 56, governing public water supplies in
Vermont, and the VWSR. The stated purpose of the VWSR “is to protect the public health by
assuring safe, affordable drinking water from Public and Non-Public water systems, and to
implement and enforce the provisions of the Federal Safe Drinking Water Act and Vermont
Statutes.” VWSR § 1.2.
Further, the VWSR both refers to and adopts the authority of the Federal Safe Drinking
Water Act (SDWA). Id. § 1.1; see also 42 U.S.C. 300 f. et. seq. It further adopts and incorporates
by reference the National Primary Drinking Water Regulations, 40 C.F.R. § 141, and the National
Secondary Drinking Water Regulations, 40 C.F.R. § 143. Id. This was done through an agreement
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with the United States Environmental Protection Agency (EPA) and results in the State of
Vermont having primary enforcement authority in Vermont for the Safe Drinking Water Act. Id.Accordingly, both the SDWA and the VWSR have “primary” and “secondary” drinking
water standards. The VWSR defines a “primary drinking water standard” as a standard which
“applies to contaminants which may have an adverse effect on the health of persons” and sets
maximum contaminant levels (MCLs) or treatment techniques to manage contaminants. VWSR
§ 2.2.
This definition is highly similar to the definition of a “primary drinking water regulation”
set forth in the SDWA. 42 U.S.C. § 300f(1)(A)—(D).
The VWSR defines a “secondary drinking water standard” as setting the MCLs which, in
the judgment of the Secretary of ANR, are necessary to protect the public welfare. VWSR § 2.2.
These standards apply to contaminants in drinking water that may “(a) adversely affect the odor
or appearance of such water and consequently may cause a substantial number of persons
served by the Public water system providing such water to discontinue its use, or (b) otherwise
adversely affect the public welfare.” Id. Secondary standards are explicitly not primary
standards. Id.
This definition is highly similar to the definition of a “secondary drinking water regulation”
set forth in the SDWA and the applicable federal regulations. 42 U.S.C. § 300f(2). Federal
regulations state that secondary MCLs are “the maximum permissible level of a contaminant in
water which is delivered to the free flowing outlet of the ultimate user of [a] public water
system.” 40 C.F.R. § 143.2(f).
The federal secondary drinking water standards, and related regulations, “are not
Federally enforceable but are intended as guidelines for the States.” 40 C.F.R. § 143.1. The VWSR
allows for some discretionary enforcement of secondary standards. VWSR § 6.13 (“water
systems may be required to monitor and company with Secondary Standards” when the
Secretary of ANR deems necessary.”) (emphasis added).
Discussion
The Town has filed a Statement of Questions which contains two Questions. Question 1
asks at what point in the distribution system manganese testing must take place. Question 2 asks
what the basis is for ANR requiring a 0.3 mg/L standard.
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I. Whether manganese may be tested at the entry point to the distribution system
The Permit states that manganese testing will occur at the entry point to the distribution
system. The Town argues that this is improper, and that manganese should be tested at the free
flowing outlet of the end user.
ANR argues that it has the authority to require water systems to conduct manganese
monitoring at locations protective of the public welfare. It asserts that it properly exercised this
authority by requiring monitoring at the entry point to the distribution system. It asserts that
this is where most contaminants in water systems are monitored.
We begin by noting that the Court owes deference to an agency’s interpretation of policy
terms when: (1) that agency is statutorily authorized to provide such guidance; (2) complex
methodologies are applied; or (3) such decisions are within the agency’s “area of expertise.” See
Plum Creek Me. Timberlands, LLC v. Vt. Dep’t of Forests, Parks & Rec., 2016 VT 103, ¶ 25, 20 Vt.
197. Deference owed to an agency is not absolute, however. In re Korrow Real Estate, LLC Act
250 Permit Amendment Application, 2018 VT 39, ¶ 21 (citations omitted). An agency’s authority
to define terms within its statutory purview, here the VWSR, are afforded deference unless that
authority is applied “arbitrarily and capriciously” such that it “give[s] rise to a violation of due
process.” Woodford Packers, Inc., 2003 VT 60, ¶ 17, 175 Vt. 579. 1
There is no explicit provision of the VWSR that denotes where the sampling of water to
assess compliance with primary or secondary water standards should take place. This is
problematic in large part because a standard, specifically a concentration limit, without a defined
sampling location is ambiguous.
While the SDWA and its associated regulations do not specifically set a sampling point,
they do provide guidance.2 The National Secondary Drinking Water Regulations state that
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An agency’s interpretation of federal law, even if it is related to its underlying authority, is not entitled to
deference. In re Stormwater NPDES Petition, 2006 VT 91, ¶ 13 n. 2, 180 Vt. 261.
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ANR asserts that its regulation of manganese is not bound by federal law because the authority to regulate
public drinking water does not come from federal law but from Vermont law. Citing 10 V.S.A. ch. 56. It asserts that
Chapter 56 provides a broader scope of authority than the SDWA. Specifically, Chapter 56 provides that ANR “may
establish by rule standards or requirements for . . . [d]rinking water quality” which must be “at least as stringent as
the most recent national primary drinking water regulations” issued pursuant to the SDWA. 10 V.S.A. § 1672(b)—
(1). It further notes other aspects of Chapter 56 that are without a federal corollary. It then asserts that we should
only consult Vermont-specific law in conducting our analysis.
ANR is correct in noting that the SDWA and its associated regulations set the floor for states when regulating
public drinking water systems. However, to the extent ANR asserts that we should not consult or reference federal
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secondary MCLs are “the maximum permissible level of a contaminant in water which is delivered
to the free flowing outlet of the ultimate user of [a] public water system.” 40 C.F.R. § 143.2(f).
This frames secondary standards in terms of the free flowing outlet as opposed to the entry point.
Cf. 40 C.F.R. § 141.23(a)(1) (requiring monitoring of groundwater systems under the National
Primary Drinking Water Regulations to occur at the entry point to the distribution system)
(emphasis added). Therefore, the federal secondary standards define the relevant MCLs, like the
0.05 mg/L MCL for manganese, by reference to the location of the free flowing outlet of the end
user. As above noted, a numerical concentration limit has little regulatory value without
reference to a specific location where that limit needs to be enforced. The federal standards
provide that reference.
As stated above, the VWSR refers to and adopts the SDWA. VWSR § 1.1. It further adopts
and incorporates by reference both the National Primary Drinking Water Regulations and the
National Secondary Drinking Water Regulations. Id. In doing so, Vermont became the “primacy,”
or lead regulatory authority, for the SDWA instead of the EPA in Vermont. See also VWSR
Introduction (“Public water systems are also subject to regulation under the federal Safe Drinking
Water Act. By enacting this rule, the federal regulations will be administered by the Department
of Environmental Conservation when it has ‘primacy,’ or primary administrative and enforcement
authority.”). While the VWSR was adopted pursuant to other Vermont-specific authority, and
may contain provisions unrelated to the SDWA, the primary and secondary standard regulatory
framework in the VWSR is mirrored in federal law and is not mentioned or created by Vermont
law.3
We further note that ANR states that Vermont has not independently evaluated the
necessity of the manganese MCL. While the VWSR did not explicitly define a testing location, it
did draw from the federal regulations in setting the standard. As the federal regulations based
the standard on the end user location, and a standard without a location, it is therefore
law when considering the present appeal, such an assertion is unfounded. Because federal law is, at least in part,
the authority to regulate drinking water and, for the reasons stated below, the basis of the primary and secondary
standards distinction, we may consult it in this action.
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Chapter 56 of Title 10 does mention the national primary standards when establishing the Secretary of
ANR’s authority to establish standards or requirements for drinking water quality by rule. 10 V.S.A. § 1672(b).
Primary or secondary standards are not mentioned at any other point in Chapter 56 or the other cited authority for
the enactment of the VWSR. See 10 V.S.A. ch. 48; 10 V.S.A. ch. 56; 10 V.S.A. ch. 61; 18 V.S.A. § 1218.
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appropriate for us to consult and rely upon this related federal law when applying the VWSR in
this matter.
Secondary standards and their related regulations are intended as guidelines for the
states and are not federally enforceable. 40 C.F.R. § 143.1. We can find no reason why Vermont
could not have adopted the SDWA and its related regulations, retained primacy over those
regulations, but deviated from them by requiring monitoring for secondary standards in the
VWSR to occur at the entry point to the distribution system. ANR did not do so. Instead, it
effectively adopted the federal regulations’ secondary standards without explicitly defining an
alternative location where secondary contaminants should be monitored. As stated above, a
contaminant concentration level without a testing location is an ambiguous standard. However,
federal guidance sets secondary standards at the free flowing outlet and the VWSR adopted that
guidance.
For all of these above reasons, we conclude that the SDWA, its associated regulations,
and the VWSR define secondary standards in terms of the free flowing outlet at the ultimate user,
such that testing for secondary standards must occur at that point.
II. Whether ANR may impose a 0.3 mg/L standard for manganese
Having reached the above conclusion, we turn to whether ANR may impose a 0.3 mg/L
secondary standard for manganese. ANR asserts it is within its authority to impose a 0.3 mg/L
manganese concentration limit that is based on a VDH health advisory level. The Town disagrees,
asserting that ANR is effectively regulating manganese as a primary standard because it does not
follow the stated secondary standard in the VWSR of 0.05 mg/L and seeks to address health
concerns with the 0.3 mg/L standard that are improper when imposing secondary standards.
ANR asserts that issues related to health may be regulated through the use of secondary
standards because health concerns fall within the typical meaning of the phrase “public welfare.”
It further notes that there is no definition of “public welfare” or “public health” within the VWSR.
In interpreting and applying administrative rules and regulations, such as the VWSR, the
Court approaches regulatory construction in the same manner as statutory interpretation. In re
Williston Inn Grp., 2008 VT 47, ¶ 14, 183 Vt. 621 (citing Conservation Law Found. v. Burke, 162
Vt. 115, 121 (1993)). We first “construe words according to their plain and ordinary meaning,
giving effect to the whole and every part of the [rule].” In re Appeal of Trahan, 2008 VT 90, ¶ 19,
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184 Vt. 262. It is our “paramount goal” to implement the intent of the drafters. Colwell v. Allstate
Ins. Co., 2003 VT 5, ¶ 7, 175 Vt. 61. We will therefore “adopt a construction that implements the
[rule’s] . . . purpose and, in any event, will apply common sense.” In re Laberge Moto-Cross Track,
2011 VT 1, ¶ 8, 189 Vt. 578 (quotations omitted); see also In re Bjerke Zoning Permit Denial, 2014
VT 13, ¶ 22 (quoting Lubinsky v. Fair Haven Zoning Bd., 148 Vt. 47, 49 (1986)).
Primary standards are those meant to protect public health. VWSR § 2.2. Secondary
standards are those used to address issues related to drinking water’s odor and color, as well as
to regulate contaminants that “otherwise adversely affect the public welfare.” Id. Importantly,
secondary standards are “not primary standards.” Id.
We note that the use of “public health” with respect to primary standards and “public
welfare” with respect to secondary standards provides an indication that the two phrases are not
effectively the same. See State v. DeRosa, 161 Vt. 78, 80 (1993) (“[W]e presume the [drafters]
used the language [in the statute] advisedly.”); State v. Camolli, 156 Vt. 208, 213 (1991) (same).
If ANR sought to regulate public health concerns through both primary and secondary standards
there does not appear to be anything stopping it from including the term in both provisions.
Instead, the VWSR explicitly states that secondary standards are not primary standards. VWSR
§ 2.1. This reflects an intention for primary standards to regulate health concerns and secondary
standards to regulate a distinct set of welfare concerns. See Camolli, 156 Vt. at 213 (“Had the
Legislature intended to distinguish between specific tests, it would have used specific test names
rather than the generic term ‘test.’”).
This is further supported by the tenet of statutory construction directing the Court to
avoid an interpretation that would result in mere surplusage. In re Bove Demolition/Constr.
Application, 2015 VT 123, ¶ 13, 200 Vt. 452 (citing In re Lunde, 166 Vt. 167, 171 (1997)). If the
Court were to interpret “public health” to be included in “public welfare” the distinction between
primary and secondary standards would become vague. This is because primary standards could
be unnecessary if secondary standards could also be used to regulate both health concerns as
well as other welfare issues. Further, this would permit ANR to avoid the more stringent review
process necessary to create or modify a primary standard by regulating all concerns through the
less-formalized secondary standards.
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The distinction between public health and public welfare concerns mirrors that made in
the SDWA and its associated regulations. 42 U.S.C. § 300f (1)—(2); see also 40 C.F.R. § 141; 40
C.F.R. § 142; 40 C.F.R. § 143. EPA states that secondary standards are “established as guidelines
to assist public water systems in managing their drinking water for aesthetic considerations, such
as taste, color, and odor. These contaminants are not considered to present a risk to human
health at the [secondary ]MCL.” U.S. EPA, SECONDARY DRINKING WATER STANDARDS: GUIDANCE FOR
NUISANCE CHEMICALS, https://www.epa.gov/dwstandardsregulations/secondary-drinking-water-
standards-guidance-nuisance-chemicals.4 EPA states that it regulates contaminants through
secondary standards because it:
[B]elieves that if these contaminants are present in your water at levels above these
standards, the contaminants may cause the water to appear cloudy or colored, or to taste
or smell bad. This may cause a great number of people to stop using water from their
public water system even though the water is actually safe to drink.”
Id.Federal case law interpreting this distinction supports EPA’s statements that secondary
standards address cosmetic and aesthetic issues, not health-related concerns. See, e.g., Nat. Res.
Def. Council v. E.P.A., 812 F.2d 721, 724—25 (D.C. Cir. 1987) (upholding EPA’s conclusion that the
contaminant had a cosmetic impact affecting public welfare, not an impact affecting public
health, and was therefore subject to a secondary, not primary, standard). This federal case law
further reflects the distinction between public health and welfare in the regulation of drinking
water.5
ANR asserts that it is entitled to deference for its interpretation that “public welfare”
includes health concerns. ANR, however, does not explain how its conflation of the terms is
compatible with the plain language and operation of the regulatory scheme. See In re
Conservation Law Found., 2018 VT 42, ¶ 16 (citing In re Verburg, 159 Vt. 161, 165 (1992)
4
We note that this literature was not submitted as an exhibit by either party in connection with the present
motions. The Town, however, has cited this website and directed both the Court and the parties to this source.
5
We note that federal law uses the primary and secondary standard distinction in the Clean Air Act as well.
See 42 U.S.C. § 7409(b) (Clean Air Act). In this context, primary standards are those intended to protect public health
and secondary standards are those intended to protect public welfare. Id. Federal law has noted and upheld the
distinction between public health and welfare in this context. See, e.g., Union Elec. Co. v. E.P.A., 427 U.S. 246, 246
(1976); S. Terminal Corp. v. E.P.A., 504 F.2d 646 (1st Cir. 1974). While this law is not controlling in the present matter,
we find it instructive in our present analysis.
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(affording an agency’s interpretation no deference when unreasonable results ensue);
Conservation Law Found. v. Burke, 162 Vt. 115, 121 (1993) (affording an agency’s interpretation
no deference when it demonstrates compelling indications of error). In light of the above, we
conclude that ANR’s proffered interpretation is contrary to the principles of interpretation,
particularly with respect to our paramount goal of implementing the regulatory intent, and the
relevant law interpreting these terms.
We therefore conclude that secondary standards are not intended to regulate public
health. Therefore, consideration of health concerns would be improper when setting or imposing
secondary standards. Having reached this conclusion, we turn to whether ANR may impose a 0.3
mg/L manganese secondary standard.
The VWSR states that “water systems may be required to monitor and comply with the
Secondary Standards contained in 40 CFR, Part 143 when, in the judgment of the Secretary [of
ANR], compliance is necessary to protect the public welfare.” VWSR § 6.13(b). As discussed in
the preceding section, both the federal regulations and the VWSR set the manganese secondary
standard at 0.05 mg/L. See 40 C.F.R. § 143.3; VWSR Table 6-2.
ANR asserts that it has not determined whether a 0.05 mg/L standard is necessary to
protect the public welfare. It has, however, concluded with VDH that a 0.3 mg/L standard or less
is necessary to protect public health, which it included in its definition of public welfare.
Specifically, ANR and VDH concluded that the 0.3 mg/L standard is necessary to protect the health
of infants and children under the age of 1 due to neurological concerns posed by exposure above
that amount.
ANR concedes that the 0.05 mg/L standard was established due to manganese’s aesthetic
impacts on water above this level. Above 0.05 mg/L manganese can cause water to have a black
or brown color, can cause black staining, and can result in water having a bitter, metallic taste.
See SECONDARY DRINKING WATER STANDARDS: GUIDANCE FOR NUISANCE CHEMICALS,
https://www.epa.gov/dwstandardsregulations/secondary-drinking-water-standards-guidance-
nuisance-chemicals. ANR asserts that this does not preclude a higher, and less strict, standard
when there are other welfare concerns, here health impacts.
For the reasons set forth above, the health impacts ANR is attempting to address are
improper to consider when imposing a secondary standard. Addressing such impacts is at odds
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with the definition of secondary standards, which are intended to limit contaminants which may
“adversely affect the odor or appearance of such water and consequently may cause a substantial
number of persons served by the Public water system providing such water to discontinue its
use.” VWSR § 2.1. Secondary standards are intended to regulate aesthetic and cosmetic impacts.
To impose a less stringent standard that is protective of public health, a concern to be addressed
by primary standards, but that would result in an adverse aesthetic impact to water as ANR
suggests is improper based on the definition of secondary standards.6
Further, the secondary standard in the VWSR for manganese is not a maximum that
permits ANR to impose contaminant limits up to the defined amount. Instead, the secondary
standard is defined as a specific limit. See VWSR Table 6-2. As the VWSR currently operates,
§ 6.13(b) states that when the Secretary determines that imposition of a secondary standard is
necessary to protect the public welfare, that determination activates the predetermined
secondary standard. VWSR § 6.13(b). It does not initiate a discretionary review by ANR of what
limits may be necessary. Here, such a determination by the Secretary would activate the specific
0.05 mg/L standard the VWSR define for manganese.
As such, we conclude that the 0.3 mg/L standard that ANR seeks to impose is not provided
for by the VWSR.7 Because ANR concedes aesthetic and cosmetic impacts were the basis for the
imposition of the 0.05 mg/L standard, and that such impacts will occur above the stated
secondary standard of 0.05 mg/L, it effectively concludes the public welfare requires imposition
of a secondary standard for manganese for reasons aside from public health, we impose this
standard on the Water System.
Conclusion
For the foregoing reasons, we conclude that, pursuant to the VWSR, and in light of the
SDWA and its associated regulations, secondary standards are to be sampled at the free flowing
outlet of the ultimate user. Further, because secondary standards are intended to protect
cosmetic and aesthetic impacts, it is improper for ANR to regulate health impacts when imposing
6
It is for this reason that we disagree with ANR’s assertion that disallowing it to impose a less stringent
secondary standard than that provided for in the VWSR is an absurd result.
7
Nothing in this decision affects ANR’s ability to adopt by formal rule a primary standard reflecting their
proffered standard. We further note that, as a practical matter, it appears that the health concerns ANR raises will
effectively be addressed by the more stringent secondary standard.
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a secondary standard. Also, the VWSR provides specific secondary standards, it does not permit
discretionary adjustment of standards on a case-by-case basis. Therefore, we conclude that ANR
cannot impose a 0.3 mg/L manganese secondary standard based on health concerns to be
measured at the entry point to the distribution system. Instead, we conclude that ANR was
limited to imposing a secondary standard for manganese of 0.05 mg/L, which would be measured
at the free flowing outlet of the ultimate user.
We therefore UPHOLD ANR’s grant of the permit presently on appeal, but REMAND this
matter back to ANR for the ministerial act of issuing a permit consistent with our above decision.
This concludes the matter before the Court. A Judgment Order accompanies this decision.
Electronically signed on May 17, 2019 at 09:45 AM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
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