RE: Putney Paper Company (Appeal of Discharge Permit #3-1128), Dismissal Order, Docket No. WQ-98-03 (Apr. 27, 1999)

State of Vermont

WATER RESOURCES BOARD

RE: Putney Paper Company

Docket No. WQ-98-03 Statutory Authority:

(Appeal of Discharge Permit #3-1128) 10 V.S.A. §1269

DISMISSAL ORDER

I. BACKGROUND

On May 19, 1998, Nathaniel Hendricks ("Appellant") filed an appeal of the Agency of Natural Resources' ("ANR") issuance of Discharge Permit #3-1128 ("Permit") to the Putney Paper Company ("Putney Paper") with the Vermont Water Resources Board ("Board"). Prior to convening the prehearing conference, Board Chair William Boyd Davies requested that Appellant "review the Notice of Appeal and frame the issues and concerns stated therein with reference to the Vermont Water Pollution Control Act, the Vermont Water Quality Standards effective April 21, 1997, the federal Clean Water Act and its implementing regulations applicable to the National Pollutant Discharge Elimination System ("NPDES"), any applicable ANR regulations, or other appropriate legal authorities." See Order Requiring Confirmation of Notice and Revised Statement of Issues, Docket No. WQ-98-03, (June 22, 1998). The reason for this request was to sharpen the focus of the appeal to those issues for which there was adequate legal authority and to expedite the identification of issues at the prehearing conference. A deadline of July 7, 1998 was established so that other parties would have an opportunity to review and file comments on the revised statement of issues prior to the prehearing conference.

On July 7, 1998, the Appellant sought and was granted an extension to file the revised Notice of Appeal over Putney's objection. A new deadline of July 21, 1998 was established. On July 21, 1998, Appellant again sought an extension for the filing of a revised Notice of Appeal. Both Putney and ANR filed objections to the request and in addition, Putney filed a Motion to Dismiss the appeal. By an Order dated July 28, 1998, Chair Davies denied Appellant's second request to extend the filing deadline and declined to rule on the Motion to Dismiss until the legal issues had been more clearly identified and Appellant's standing, and the extent of his party status, had been more fully evaluated at the prehearing conference.

On July 30, 1998, Appellant filed his "Preliminary Review of Notice of Appeal" in which he failed to more succinctly limit the 87 "comments" raised in the initial Notice of Appeal and continued to provide citations to legal authority only sporadically throughout the Notice of Appeal and, as a result, continued to create confusion as to the Board's legal authority to consider each of the 87 comments in the context of a de novo appeal. On August 11, 1998, Putney filed an objection to the Appellant's filing as untimely and sought an opportunity to respond if the Board were to accept the Appellant's filing.

On August 21, 1998, Chair Davies convened the initial prehearing conference relative to this matter. The following persons participated in the August 21, 1998 prehearing conference:

Appellant, pro se;

ANR, through Jon Groveman, Esq.; and

Putney Paper, through Peter Van Oot, Esq.

The participants discussed the Appellant's lengthy Notice of Appeal without concluding which of the "comments" constituted discrete legal issues upon which the Board had legal authority to review. The participants also discussed the Appellant's July 30, 1998 "Preliminary Review of Notice of Appeal" and for the most part agreed that it did not provide much guidance beyond what Appellant had filed in the first instance. Accordingly, Chair Davies adjourned the conference and ordered Appellant to file not later than August 28, 1998 both: (1) a written request for party status stating why he has standing to bring the appeal; and (2) a list of citations corresponding to each of the "comments" raised in Appellant's Notice of Appeal that was filed on May 19, 1998. See Order Requiring Revised Statement of Issues with Citations and Party Standing Request, WQ-98-03, August 24, 1998.

On August 28, 1998, Appellant filed another Motion for Enlargement of Time, and also filed his Request for Party Status and "Preliminary Response to Chair Davies Order of August 24, 1998 Requiring Revised Statement of Issues with Citations." In this filing, Appellant merged the 87 comments filed in the May 19, 1998 Notice of Appeal into 44 issues. Appellant, to a greater extent than his previous filings, provided some citations to legal authority. However, there remains a question as to which of the issues were appropriate for consideration in the context of this appeal. On September 11, 1998, both Putney Paper and ANR filed responses to the Appellant's filing. In addition, Putney Paper renewed its pending Motion to Dismiss and provided supporting documentation which challenged the Appellant's party standing. In order to finally establish the issues in this appeal, Chair Davies established the date of the second prehearing conference, November 2, 1998, as the date certain by which the Appellant was required to demonstrate: (1) how each of the Appellant's comments or issues is related to protection of the Appellant's substantial interest in his water supply wells; and (2) the legal rationale, supported by a citation to an applicable law or regulation, for including the comment as an issue in this appeal. See Chair's Rulings on Party Standing and Notice of Prehearing Conference, dated October 22, 1998.

Putney Paper and ANR participated in the second prehearing conference. The Appellant did not attend the conference, nor did he inform the Board or its staff that he would not attend.

By an Order dated November 13, 1998, Chair Davies provided a background of the Appellant's previous attempts to clearly state the grounds for his appeal. The November 13, 1998 Order stated specifically that: "if the Appellant is unsuccessful in clearly linking the comments he has raised to applicable legal authority by providing specific citations, or if, with respect to those issues for which a citation or legal nexus is provided, he fails to demonstrate how they relate to the substantial interest he seeks to protect in this proceeding, such comments will be dismissed from consideration in this appeal." Also in the November 13, 1998 Order, Chair Davies scheduled the third prehearing conference in this matter for December 7, 1998. Shortly thereafter, Appellant filed objections to both the Chair's Ruling on Party Status, and the November 13, 1998 Order requiring the written summary of issues. Because the Chair's previous orders were subject to review and potential changes, the December 7, 1998 prehearing was cancelled, and oral argument was scheduled before the full Board on January 5, 1999.

On January 5, 1999, the Board convened oral argument relative to the Appellant's objections to Chair Davies' Rulings on Party Status, and the November 13, 1998 Order Requiring a Revised Statement of Issues, as well as Putney's Motion to Dismiss. The following persons participated in the oral argument:

Putney Paper, by Peter Van Oot, Esq; and

Nathaniel Hendricks, pro se

By its Order dated February 18, 1999, the Board declined to grant the Motion to Dismiss and explicitly limited Appellant's participation in this appeal to those "issues for which the Appellant has not only provided adequate citations to legal authority, but also has sufficiently explained (at the re-scheduled third prehearing conference) how such issues are necessary for inclusion in this de novo appeal to protect Appellant's water supply wells from the potential impacts of Putney's activities." See Order Affirming the Chair's Rulings on Party Status and Scope of Review and Order Denying Putney's Motion to Dismiss, Docket No. WQ-98-03 (February 18, 1999). This amounted to a conditional grant of party status. Chair Davies convened the re-scheduled third prehearing conference on March 23, 1999. Only Peter Van Oot, Esq, on behalf of Putney Paper participated in the prehearing conference. Because Appellant declined to attend or participate in the third prehearing conference, the prerequisite of participating further in this appeal has not been met. Appellant failed to establish a relationship between comments and concerns he has raised relative to Putney's project and the specific "substantial interests" from which his standing in this proceeding derives.

Appellant's failure to attend the third prehearing conference manifests his general lack of diligence in pursuing this appeal. Appellant declined to attend two prehearing conferences without providing notice to the Board or its staff in either instance. With respect to the most recent absence, Appellant provided no reason for failing to attend. Through the course of this proceeding, Appellant has sought several filing extensions and as of the date of the Order, has nevertheless failed to comply with what I believe to be a very straightforward order to state the issues in this appeal as they pertain to his water supply wells.

II. ORDER

For the above stated reasons, the appeal is hereby dismissed. As provided for in Water Resources Board Rule of Procedure 21 this ruling is subject to review by the Board. If such review is sought by any party, such party shall file a request for full Board review not later than 4:30 p.m. on Thursday, May 27, 1999.

It is so ordered.

Dated at Montpelier, Vermont on this 27th day of April, 1999.

WATER RESOURCES BOARD

/s/ William Boyd Davies

William Boyd Davies

Chair