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.
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.
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.
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
IV. CONCLUSIONS OF LAW
The Project under review has been selected from a number of alternatives and has been determined by both ANR and the Town of Cabot to be the most practicable alternative among those available. Although the Board finds consideration of appropriate alternatives to be essential to refining the ultimate proposal for which a discharge permit is sought, the Board focuses its inquiry on the consideration of the project before it. See for example, Re: Killington, Ltd., Docket Nos. MLP-97-09 and WQC-97-10, Findings of Fact, Conclusions of Law, and Order (August 14, 1998) at 51 ("the Board's role in a §401 proceeding is to assess the impacts of whatever alternative is ultimately selected by an applicant relative to water quality as measured by the VWQS and other applicable law.) This rationale is applicable equally in the application for a NPDES permit pursuant to §402 of the Clean Water Act and 10 V.S.A. §1263. Accordingly, the Board reviews the Project as it has been described in the application. As set forth in more detail below, if constructed pursuant to the terms of the DEC's Discharge Permit #3-1440, the Project will conform to the applicable provisions of the VWQS including the anti-degradation policy at §1-03. The Project will address all outstanding concerns raised by the February 18, 1999 §1277 Order and the provisions of 10 V.S.A. Chapter 47. Moreover, Phelps Engineering has designed this Project for the Town of Cabot in a manner that will not only meet the applicable minimum requirements of the VWQS and Chapter 47, but based on uncontroverted testimony and documentation in support of the Project, it will enhance the water quality of the affected segment of the upper Winooski River.
A. BURDEN OF PROOF
Appeals filed pursuant to 10 V.S.A. § 1269 are heard de novo. The permit applicant has the burden of proof and persuasion in proving that the applicant is entitled to a permit applying the standards set forth in 10 V.S.A. § 1263 and the applicable provisions of the Vermont Water Quality Standards (effective April 21, 1997). Cabot, as permit applicant, has satisfactorily met its burden of production (i.e. producing sufficient evidence upon which the Board can reach affirmative findings relative to each of the statutory provisions and regulations).
B. THE EXISTING CONDITION OF THE RIVER AND THE §1277 ORDER
At present there are unpermitted discharges to waters of the State occurring in Cabot Village and Lower Cabot in violation of 10 V.S.A. Chapter 47. These discharges are causing violations of the VWQS and must be abated. Pursuant to the Secretary's authority under 10 V.S.A. §1277, an Order was issued compelling Cabot to remedy existing violations as described in Findings 5 through 8. The consequences of this Order, described in Findings 9 and 10, among other things, have compelled Cabot to construct a system to abate water pollution problems in the Cabot vicinity.
As conditioned in the attached Permit, the Project satisfactorily addresses the concerns raised in the February 18, 1999 Amended §1277 Order.
C. USE OF THE EXISTING WASTE MANAGEMENT ZONE
The WMZ required for the proposed WWTF is in fact an existing one, and consequently ANR was not and is not required to conduct the statutory process specified in 10 V.S.A. §1252(d). As the Board ruled in its Memorandum of Decision dated July 11, 2000:
The 1 mile WMZ authorized in conjunction with the permit is an
existing WMZ that has not been expanded. Accordingly, the ANR
was not and is not required to conduct the process specified in
statute at 10 V.S.A. §1252(d).
Re: Town of Cabot, Memorandum of Decision (July 11, 2000) at 7. The reduction in size of the WMZ is commensurate with the potential increase in risk associated with the discharge authorized by the Permit. As defined in 10 V.S.A. § 1251 (16), the WMZ in this reach of the Winooski River is identified as a zone of increased risk due to the discharge of wastes that, prior to treatment, contained organisms pathogenic to human beings. Even though this reach of receiving waters is designated as a WMZ, compliance with all applicable water quality criteria is required by the VWQS. The Board concludes that based on the testimony received and the documentation in support of the Project, the Project will comply with all applicable water quality criteria within the resized, existing WMZ.
D. REMAINING ISSUES
The Board concludes that the primary basis for the Appellant's Notice of Appeal was the legitimate question of whether the discharge associated with this Project was into a new or an existing WMZ. Having resolved that matter in favor of the Applicant, the limited issues under consideration are largely defined by the evidence offered by the Appellant as rebuttal to the Town and ANR's supporting documentation for the Project. Such evidence has focused on three discrete issues, each will be addressed in turn below: Has there been an adequate consideration of, and will the Project afford the requisite protection for existing uses?; Will the Project operate reliably?; Have the Applicant and ANR adequately considered the impacts of the Project when flows are lower than the statistical 7Q10 flow?
a. CONSIDERATION OF EXISTING USES
Vermont's anti-degradation policy under Section 1-03 of the VWQS requires that existing uses and the level of water quality necessary to protect those existing uses shall be protected and maintained. Determinations of what constitutes an existing use on a particular waterbody are made on a case by case basis by the Secretary of ANR (or in cases where the presence of existing uses is in controversy, by the Board on appeal). These determinations typically require a field assessment and public participation to help determine the presence/absence of existing uses. In conducting a field assessment, the DEC looks at the following information:
1. Evidence that people have access to the affected waters for contact recreation
2. Physical evidence of attractive contact recreation (swimming) sites in/along the affected waters
3. Evidence that there is more than incidental contact recreation use of the affected waters.
The applicable VWQS are those effective April 21, 1997. Therein, at Section 1-03 B.1., the VWQS provide that existing water uses and the level of water quality necessary to protect those existing uses shall be maintained and protected. Determinations of what constitutes an existing water use on a particular water body shall be made on a case-by-case basis. With regard to recreational uses, the VWQS provide, at 1-03 B.1.d., that the Secretary shall consider the beneficial values or uses for that water body and "The use of the water body for recreation in or on the water, fishing, water supply, or commercial activity that depends directly on the preservation of an existing level of water quality. Use of the water body to receive or transport discharges of waste is not considered an existing use for purposes of this anti-degradation policy;"
Analysis of this provision involves four questions:
1. ARE THE USES IDENTIFIED BY APPELLANT, INCIDENTAL AND PRIMARY CONTACT RECREATION, USES THAT ARE CONTEMPLATED AS EXISTING USES?
The answer to this question is yes. The uses described by Appellant are uses that merit consideration. The mere presence of an existing use, however, is not determinative of the question before the Board, as Appellant implies in his argument. The protection of existing uses set forth in the Clean Water Act and contained within the Anti-degradation policy of the VWQS clearly gives the Secretary of ANR (and the Board) the discretion to determine whether the degree of use is such that it should be protected, to the exclusion of any change in water quality.
Incidental contact recreation takes place on nearly all of Vermont's waters. If all such use was absolutely protected the regulatory scheme providing for issuance of direct discharge permits to municipal waste water treatment plants would be greatly frustrated since towns and municipalities (many of which are trying to remedy existing pollution sources such as that which is present in Cabot) would typically be precluded by such pervasive statewide recreational use. For example, in a recent case where a discharge permit had been issued by ANR and not appealed, the Environmental Board nonetheless rebutted the presumption afforded by the discharge permit under Criterion 1(B) of 10 V.S.A. §6086, in part based upon a strict reading of the protection of existing uses, even where the proposed Project, like this one, was intended to remedy existing pollution. Re: Town of Stowe, Application #100035-9-EB, Findings of Fact, Conclusions of Law, and Order (May 22, 1998) at 43. In this case, the Board is charged with reviewing the application before it de novo and in all respects is better suited than the Environmental Board to judge the propriety of discharge permit issuance. The Board looks not only to the presence of an existing use, but more importantly upon how (and to what extent) the proposed activity will affect that use.
2. WILL THERE BE AN ADVERSE CHANGE IN WATER QUALITY?
The evidence introduced in this matter is that the quality of effluent produced by the plant will, at all times, meet the applicable criteria and support all designated uses associated with Class B waters. This treatment system will produce a quality of water entering the river which exceeds the standards set for Class B waters. There are redundant safety systems in the plant to avoid unintended discharges of untreated effluent. The treated effluent will be fit for recreational uses now existing in the river - swimming, tubing, rafting, fishing, just as it flows from the outfall pipe. No contradictory evidence was introduced that would demonstrate that there would be a reduction of water quality which would impair the ability of the Appellant, or any other person, from continuing his use of the waters.
Even if there is some degree of change in the stream resulting from the introduction of the effluent, such change will not alter the characteristics of the stream or the ability of the citizens of the state to continue using it just as they have in the past. It will simply be, overall, a cleaner stream.
3. WILL THE PROJECT RESULT IN SIGNIFICANT DEGRADATION OF THE EXISTING USE?
In the context of considering impacts upon existing uses, the Board looks to the specific language of §1-03.B.2.b. of the VWQS and asks whether:
Where the existing water use involves use of the water body for recreation in or on the water, fishing, water supply or commercial enterprises that depend directly on the preservation of an existing level of water quality, the proposed activity would not result in significant degradation of the existing use.
Even if the effluent resulted in a minor diminishment of water quality in the areas used by Appellant, the Board's focus is upon whether such diminishment would effect a significant degradation of the existing use. In this case it is not certain that the Project will result in any diminishment of water quality in violation of the VWQS. In fact the evidence shows conclusively that existing uses such as those identified by the Appellant will be better protected as a result of the treated discharge than under the present condition of the Receiving Waters or under any of the proposed alternatives.
4. ARE THESE HIGH QUALITY WATERS?
Finally, the Board looks to the provisions of the Anti-degradation policy to determine whether the waters in question are high quality waters thereby implicating the provisions of Section 1-03.C.
Section 1-03.C. addresses the protection of high quality waters. For the particular use that Appellant has argued to be protected, the most relevant criterion is that which is established for Escherichia Coli or "E.Coli." No party has conclusively established that the waters in question are high quality waters relative to this, or any other criterion. In view of the Amended §1277 Order issued on February 18, 1999 and particularly in light of the Appellant's own introduction of E.Coli samples that demonstrate exceedence of the applicable Class B criterion, the Board concludes that the existing and resized WMZ is not a high quality water and finds §1-03 of the VWQS to be inapplicable.
b. Will the Project operate reliably?
Appellant has alleged that the potential of a failure or breakthrough of pollutants at the WWTF jeopardizes his use and enjoyment of the Winooski River and that because of the potential of a catastrophic failure or operational oversights, the Project should be denied. Appellant presented some oral testimony questioning the ANR reporting requirements and recent experiences in a plant in the St. Albans area. However, Appellant presented no credible evidence to rebut the Town of Cabot's and ANR's testimony regarding the extremely reliable nature of this Project. It is not only fully redundant in all relevant respects but it utilizes two state of the art technologies in tandem: the Zenon microfiltration process which is highly regarded and not particularly susceptible to either machinery-based or human-based error as well as standards ultraviolet radiation treatment. This Project is a well-crafted and very thoughtful solution to Cabot's persistent wastewater pollution problems. It is clear that the Board relies heavily upon the representations made by Phelps Engineering and the Town of Cabot relative to the design and operation of the Project, respectively. Those representations and the presentation of testimony has been extremely clear and highly credible. The Applicant's testimony relative to the reliability of this system had largely been unrebutted.
Moreover, while both the Applicant and ANR have openly acknowledged that although no system is 100 percent reliable, the numerous monitoring and reporting requirements ensure that the Permit will be closely watched. In addition a full-time operator will enhance the WWTF's reliability and ensure prompt corrective action if and when necessary.
c. Have the Applicant and ANR adequately considered the impacts of low flows on the ASCAP models and water quality, particularly those flows lower than the statistical 7Q10 flow?
Under Section 2-02(A) of the VWQS, compliance with the applicable water quality criteria is determined on the basis of 7Q10 flow values. The proposed discharge from the WWTF, as permitted, will meet the provisions of the VWQS, including the anti-degradation requirements, at the applied standard for 7Q10 for in-stream flows. Should the WWTF fail to perform as designed and permitted, the ANR has enforcement authority to initiate action against Cabot to correct any violations of the Permit conditions or the VWQS.
Whether the Appellant and his neighbors will choose to continue making recreational use of the river is not a relevant consideration. Rather, the Board considers whether, even with the approved discharge the Receiving Waters will be suitable for such use. As discussed above, the waters will continue to support all designated uses associated with Class B waters and will support the existing recreational use without significant, if any, degradation.
Cabot has provided ample evidence that its Project will not only meet the minimum requirements but that it will perform significantly better than the applicable minima and will greatly improve the existing quality of waters in Cabot.
1. Based on the Findings of Fact and Conclusions of Law set forth above, DEC Permit #3-1440 is hereby affirmed.
2. Jurisdiction is returned to the Agency of Natural Resources.
Dated at Montpelier, Vermont on this 8th day of September, 2000.
WATER RESOURCES BOARD
/s/ David J. Blythe
David J. Blythe, Chairman
John D.E. Roberts