Environmental Court of Vermont State of Vermont

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Montpelier WWTF Discharge Permit Do cket No. 22-2-08 Vtec Project: Montpelier Wastewater Treatment Facili ty Applicant: City of Montpelier (Appeal from ANR determination on disc harge permit application)

Title: Motion in Limine Re Testimony of Michael Rap acz, (Motion No. 10) Filed by: Mark L. Lucas, Attorney for Natural Resou rces Board/WR Panel Filed: November 3, 2008 Title: Motion in Limine Re Testimony of Michael Rap acz, (Motion No. 12) Filed by: Appellee Vermont Agency of Natural Resour ces Filed: November 10, 2008 Response in support filed on 11/11/08 by Appellee C ity of Montpelier Response in opposition filed on 12/30/08 by Appella nt Conservation Law Foundation Reply filed on 1/15/09 by Natural Resources Board/W ater 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-referenc ed 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 brie f recess and then delivered its determinations on the record of the June 24 hea ring. 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 m ay call in rebuttal to witness(es) offered in support of the pending ap plication 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 qualit y laws and regulations. For this reason, the motions in limin e filed by the Water Panel and ANR to exclude Mr. Rapacz as an expert wi tness are DENIED.

2. The Water Panel and ANR have provided multiple chal lenges to Mr. Rapacz’s qualifications and testimony. These chall enges may call into question the credibility of some of Mr. Rapacz’s of fered testimony and opinion, but they go to the weight and credibility of that testimony and are not sufficient to support an absolute exclu sion of all of Mr. Rapacz’s testimony at this time. The pending motio ns 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 refere nces 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 f rom the record allMontpelier 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 L oading Model”, including those references in his affidavit in supp ort of CLF’s motion for summary judgment. Mr. Rapacz is also hereby re stricted 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

=================================================== ============================= Date copies sent: ____________ Clerk 's Initials _______ Copies sent to: Attorneys Anthony L. Iarrapino and John L. Dave nport 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 Reso urces Board/Water Resources Panel Attorney Steven F. Stitzel for Appellee City of Montpelier