In re: Appeal of Town of Cabot, Docket No. WQ-2000-04 (Sept. 8, 2000)

State of Vermont

WATER RESOURCES BOARD

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER

RE: Town of Cabot Docket No. WQ-2000-04

P.O. Box 36 (Appeal of DEC Permit #3-1440)

Cabot, Vermont 05647 NPDES# VT0101257

As set forth in more detail herein, the Water Resources Board ("Board") concludes that the Town of Cabot's proposed wastewater treatment facility ("WWTF" or "Project") will meet all applicable requirements of the Vermont Water Quality Standards ("VWQS") and 10 V.S.A. Chapter 47. Accordingly, pursuant to the authority of 10 V.S.A. 1269 the Board affirms the Agency of Natural Resources' ("ANR") issuance of NPDES Discharge Permit #3-1440.

I. BACKGROUND

ANR, through its Department of Environmental Conservation ("DEC") issued Discharge Permit #3-1440 ("Permit") to the Town of Cabot on April 11, 2000. On May 9, 2000, Stephen Gregg ("Appellant") filed an appeal seeking review of the Permit. The appeal was timely filed pursuant to 10 V.S.A. 1269 which provides that any person or party in interest aggrieved by an act or decision of the secretary of ANR pursuant to [10 V.S.A. Ch. 47, Subchapter 1] may appeal to the Board within thirty days. The Permit under appeal was issued by ANR pursuant to 10 V.S.A. 1263 and Section 402 of the federal Clean Water Act. The Permit authorizes the Town of Cabot to discharge treated effluent from the Town of Cabot's proposed WWTF to the Winooski River in accordance with the terms of the Permit. Such terms include design and engineering specifications and limitations on both the characteristics and volume of the treated effluent.

Section B. of the Permit contains an approved modification of what DEC characterizes as an "existing waste management zone in the Winooski River which currently extends from Cabot Village to the confluence of Marshfield Pond Brook." In contrast, Appellant characterized the approved WMZ as a new WMZ that may be established only after following the procedures established in 10 V.S.A. 1252(d). Appellant alleged that such procedures were not followed by DEC. The Board reviewed the parties' written memoranda on this question and, on Wednesday, June 28, 2000, heard oral argument concerning the WMZ issue. By a Memorandum of Decision dated July 11, 2000, the Board concluded that the WMZ, as modified in conjunction with the issuance of the Town of Cabot's Permit, is an existing WMZ. Accordingly, there was no requirement for ANR to conduct the public review process set forth at 10 V.S.A. 1252(d)(1)-(8) for new or expanded WMZs.

The portion of the Winooski River that will receive the discharge ("Receiving Waters") constitutes waters of the United States and is classified by the Board as Class B waters. As such, the Receiving Waters must comply with the VWQS. The VWQS that govern this proceeding are those which became effective on April 21, 1997.

II. DISCUSSION

A. BURDEN OF PROOF

As stated in the Prehearing Conference Report and Order dated June 16, 2000, the burden of proof is upon the permit applicant. The general rule in administrative proceedings is that the applicant or petitioner bears the burden of proof. 73A C.J.S. Public Administrative Law And Procedure 128 (1983). This general rule has been followed by both the Vermont Supreme Court and the Board. Petition of Lyndonville Village, 121 Vt. 185, 190-191 (1959); In re: Champlain Oil Company, Docket No. CUD-94-11, Findings of Fact, Conclusions of Law, and Order (Oct. 4, 1995, revised Nov. 1, 1995) at 11. The Town of Cabot is the applicant in this proceeding and, therefore, it bears the burden of proof.

The burden of proof is generally considered to include both the burden of production and the burden of persuasion. The burden of production, in this de novo appeal, means the burden of producing sufficient evidence upon which the Board can make positive findings that the Project complies with the applicable provisions of 10 V.S.A. 1263 and with the VWQS effective April 21, 1997.

The burden of persuasion refers to the burden of persuading the Board that certain facts are true. See Re: Killington, Ltd. and International Paper Realty Corp., #1R0584-EB-1, Findings of Fact and Conclusions of Law and Order (Revised) at 21 (Sep. 21, 1990). Generally, the party with the burden of persuasion must establish the elements of its case by a preponderance of the evidence. That generally occurs when the fact finder is satisfied that a proposition is more likely to be true than not true. 29 Am. Jur. 2d Evidence 157 (1994). The Vermont Supreme Court has provided further guidance with respect to the allocation of the burden of proof, specifically the risk of non-persuasion in an administrative proceeding. "The fact that a party has the burden of proof does not mean that he must necessarily shoulder it alone; it simply means that he, and not the other party, bears the risk of non-persuasion." In re Quechee Lakes Corporation, 154 Vt. 543, 553 (1989). Here, as in Quechee Lakes Corp., the Board is at liberty to consider all of the evidence, including that garnered from parties other than the Town of Cabot and by the Board itself during its site visit, in determining whether the applicant has met its burden of persuasion.

B. ISSUES PRESENTED

In the Memorandum of Decision, the Board addressed all issues pertaining to the WMZ and reserved for the merits hearing only the following:

The Board will limit its review of the Permit to those matters not addressed by this preliminary ruling and which were identified in the Appellant's Notice of Appeal. A detailed statement of such issues is contained within Subsections (B) and (C) of Section III [of the June 16, 2000 Prehearing Conference Report and Order].

The remaining issues in this appeal, although not clearly defined by Appellant, effectively amount to the question of whether the Town of Cabot's Project complies with the VWQS, the provisions of 10 V.S.A. 1263 and any other applicable statutes and regulations. As framed by the June 16, 2000 Prehearing Conference Report and Order, the Board will address the following specific issues:

B. Other legal issues

(1) Whether the Discharge Permit should issue to the Town of Cabot based on the statutory criteria for issuance of such permit and the requirements of the Vermont Water Quality Standards effective April 21, 1997.

a. Specifically, whether, as permitted, the discharge of treated effluent in to the receiving waters will degrade the quality of the water in a manner inconsistent with the applicable requirements of the Vermont Water Quality Standards effective April 21, 1997.

(2) Whether there is adequate data and supporting documentation to accurately describe the present water quality conditions in the river, and if so, what is that condition.

C. Issues concerning process

(1) Appellant alleges that he has had "no opportunity to present evidence in support of [his] claims or to discuss water quality issues." Whether the alleged lack of such opportunity was unlawful or whether ANR complied with all applicable requirements to provide public notice and an opportunity to be heard.

(2) Even if there was a lack of opportunity to pursue Appellant's claims of error or to discuss water quality issues, whether Appellant's participation this de novo appeal renders such concerns moot.

Re: Town of Cabot, Docket No. WQ-00-04, Prehearing Conference Report and Order (June 16, 2000), p. 4.

C. ANALYSIS

The questions presented to the Board in this matter are essentially these two: (1) whether ANR followed an adequate public process and allowed the Appellant to participate in such process to the extent required by law; and (2) whether the Town of Cabot's proposed WWTF (previously defined as the "Project") meets the statutory and regulatory requirements for issuance of a National Pollutant Discharge Elimination System or "NPDES" permit. The U.S. Environmental Protection Agency ("EPA") has delegated to Vermont the authority to issue NPDES permits provided that such permits conform with applicable state law and with state water quality standards that have been reviewed and approved by EPA. The April 21, 1997 VWQS have been so approved.

Relative to the public process issue, the Board by a Memorandum of Decision issued on July 11, 2000, determined that the public process outlined in 10 V.S.A. 1252(d) was inapplicable to the Project because the proposed discharge is into an existing WMZ. With respect to the assertion contained in the Notice of Appeal that Appellant had "no opportunity to present evidence in support of [his] claims or to discuss water quality issues [before ANR]", the Board finds such a claim unavailing. Among the principal reasons for the Legislature's provision of a de novo review standard in 10 V.S.A. 1269 is to ensure that the Board take a "fresh look" at the issues within the scope of appeal and to allow an Appellant (or any party) another chance to weigh in relative to matters from which their standing (or party status) derives. Even if Appellant is correct in his assertion that he had no opportunity to present evidence in support of [his] claims or to discuss water quality issues [before ANR], he has been provided such an opportunity in this proceeding.

The only remaining issue, therefore, is whether the Permit should issue to the Town of Cabot based on the statutory criteria for issuance of such permit and the requirements of the VWQS effective April 21, 1997.

The evidence presented in favor of the Project by the Town of Cabot, and to some extent, by ANR is comprehensive, highly credible, and has largely been unrebutted. Accordingly, the Board makes the following findings of fact. To the extent that any proposed findings of fact and conclusions of law are explicitly approved below, they are granted; otherwise, they are denied. Petition of Village of Hardwick Electric Department, 143 Vt. 437, 445 (1983).

III. FINDINGS OF FACT