Environmental Court of Vermont 

State of Vermont 

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E N T R Y R E G A R D I N G M O T I O N 

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Montpelier WWTF Discharge Permit Docket No. 22-2-08 Vtec 

Project: Montpelier Wastewater Treatment Facility 

Applicant: City of Montpelier 

 (Appeal from ANR determination on discharge permit application) 

Title: Motion in Limine Re Testimony of Michael Rapacz, (Motion No. 10) 

Filed by: Mark L. Lucas, Attorney for Natural Resources Board/WR Panel 

Filed: November 3, 2008 

Title: Motion in Limine Re Testimony of Michael Rapacz, (Motion No. 12) 

Filed by: Appellee Vermont Agency of Natural Resources 

Filed: November 10, 2008 

Response in support filed on 11/11/08 by Appellee City of Montpelier 

Response in opposition filed on 12/30/08 by Appellant Conservation Law 

 Foundation 

Reply filed on 1/15/09 by Natural Resources Board/Water Resources Panel 

_X_ Granted (as to expert’s model); _X_ Denied (as to expert qualification and 

other testimony) 

The Court conducted a hearing on the above-referenced motions over a 

period of two days (June 23 and 24, 2009). At the close of the taking of 

evidence and legal arguments, the Court took a brief recess and then delivered 

its determinations on the record of the June 24 hearing. References to case law 

and procedural rule precedent (including V.R.E 401, 403, 702, and 703) may be 

found in the full hearing record. In summary, the Court concluded that: 

1. The witness (Michael Rapacz) that CLF proposes it may call in rebuttal 

to witness(es) offered in support of the pending application has 

provided a sufficient foundation of his education, experience, and 

research to allow him to be qualified as an expert in the fields of 

water quality and the instances that contribute to its degradation and 

non-conformance with federal and state water quality laws and 

regulations. For this reason, the motions in limine filed by the Water 

Panel and ANR to exclude Mr. Rapacz as an expert witness are DENIED. 

2. The Water Panel and ANR have provided multiple challenges to Mr. 

Rapacz’s qualifications and testimony. These challenges may call into 

question the credibility of some of Mr. Rapacz’s offered testimony and 

opinion, but they go to the weight and credibility of that testimony 

and are not sufficient to support an absolute exclusion of all of Mr. 

Rapacz’s testimony at this time. The pending motions in limine are 

therefore DENIED on this basis as well. 

3. The Water Panel and ANR have provided a sufficient evidentiary 

foundation for excluding all of Mr. Rapacz’s references to the “model” 

(actually a simple mathematical equation, a copy of which was 

introduced at hearing as NRB Exhibit DD) he created to aid the Court in 

understanding his testimony. We therefore STRIKE from the record all 
Montpelier WWTF Discharge Permit, No. 22-2-08 Vtec, EO on Mots in Limine Page 2 of 2

references by Mr. Rapacz to his “Simple Aggregate Loading Model”, 

including those references in his affidavit in support of CLF’s motion 

for summary judgment. Mr. Rapacz is also hereby restricted from making 

any reference to his Simple Aggregate Loading Model, should he be 

called upon to testify in any subsequent proceeding in this appeal. In 

this regard, ANR’s and the Water Panel’s motions in limine are hereby 

GRANTED. 

___________________________________________ __June 25, 2009__ 

 Thomas S. Durkin, Judge Date 

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Date copies sent: ____________ Clerk's Initials _______ 

Copies sent to: 

 Attorneys Anthony L. Iarrapino and John L. Davenport for Appellant 

Conservation Law Foundation 

 Attorneys Warren T. Coleman and Michael Steeves for Appellee Vermont Agency 

of Natural Resources 

 Attorney Mark L. Lucas for Vermont Natural Resources Board/Water Resources 

Panel 

 Attorney Steven F. Stitzel for Appellee City of Montpelier