### Diverging Diamond Interchange SW Permit Diverging Diamond Interchange Act 250 Permit

ENTRY REGARDING MOTION

ANR Storm Water Permit (50-6-16 Vtec) Act 250 Land Use Permit (169-12-16 Vtec)

Title: Motion in Limine Filer: Agency of Transportation Attorney: Justin E. Kolber Filed Date: February 16, 2018

No response filed

The motion is DENIED. The Vermont Agency of Transportation’s (VTrans) mot ion in limine seeks to preclude R.L. Vallee, Inc (Vallee) from introducing expert testim ony regarding an alternative stormwater system. Vallee opposes the motion.

I. Background

VTrans proposes to manage stormwater discharge for the underlying project in part by applying the Agency of Natural Resources (ANR) Site Balancing Procedure for the Discharge of Stormwater Runoff from the Expansion or Redevelopme nt of Impervious Surfaces (the Site Balancing Procedure). According to the Site Bala ncing Procedure,

The concept of “site balancing” may be utilized in treating runoff from limited portions of expanded and redeveloped impervious sur faces when it is demonstrated that control and/or treatment of this runoff is impracticable due to

site constraints.

Site Balancing Procedure at 2.

Vallee challenges the use of site balancing in Sto rmwater Appeal (50-6-16 Vtec) Question 2, which asks whether the project meets the require ments of the Site Balancing Procedure, and Question 3, which asks whether it is practicable fo r VTrans to meet the required treatment standards in the Vermont Stormwater Management Manu al without relying on the Site Balancing
Procedure.

Vallee intends to offer an expert witness, Andres Torizzo, to testify that direct treatment, without resort to the Site Balancing Procedure, is practicable. Mr. Torizzo will also present evidence of an alternative stormwater system for th e project that does not rely on the Site Balancing Procedure. 

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## V ERMONT

SUPERIOR COURT ENVIRONMENTAL DIVISION Docket Nos. 50-6-16 Vtec

169-12-16 VtecDiverging Diamond Interchange Act 250 and SW Permit s, No. 169-12-16, 50-6-16 Vtec (EO on Motion in Limi ne) Page 2 of 4

II. Discussion

In order to be admissible, expert testimony must be both relevant and reliable. State v. Scott, 2013 VT 103, ¶ 9, 195 Vt. 330 (citations omi tted). VTrans argues that Vallee’s proposed expert testimony is neither relevant nor reliable.

We recently explained, in another decision in these matters, that because we conduct bench trials, we are generally liberal in allowing relevant evidence to be admitted. Diverging Diamond Interchange A250 and SW Permits, Nos. 169-1 2-16, 50-6-16 Vtec, slip op. at 1–2 (Vt. Super. Ct. Envtl. Div. Feb. 8, 2018) (Walsh, J.) (c iting The Van Sicklen Ltd. P’ship, No. 4C1013R-EB, slip op. at 1 (Vt. Env. Bd. Sep. 28, 2001)). Unlik e a jury, we are unlikely to be “unduly swayed by a questionable evidentiary offering.” Id. Once re levant evidence is admitted, we afford it the weight it deserves, if any. Id.; In re Application of Lathrop Ltd. P’ship I, 2015 VT 49, ¶ 90, 199 Vt

. 19.

a. Whether evidence of an alternative stormwater desig n is relevant

VTrans argues that alternative stormwater designs a re not relevant to the permit applications here. VTrans points to two cases to s upport this proposition: an Act 250 appeal, In re N. E. Materials Grp., LLC, 2017 VT 43, (May 26, 2017), and a stormwater permit appeal, Re: CCCH Stormwater Discharge Permits, Nos. WQ-02-11, W Q-03-05, -06, -07 (Wat. Res. Bd. Oct. 4, 2004).

While these cases are informative, they are not pre cisely on point.

In Northeast Materials, the Court held that as long as the proposed project complies with the Act 250 criterion in question, the trial court did not err by declining to impose “the alternative means of ensuring compliance with [the criterion] t hat neighbors’ expert suggested.” 2017 VT 43, ¶ 25. The Court did not hold—as VTrans would h ave us do here—that the expert testimony on alternative compliance measures should be exclud ed altogether on relevancy grounds. Id.

Likewise, in CCCH Stormwater, an opponent of a VTra ns project offered witnesses who testified that “there are more effective [Best Mana gement Practices] and other practices for achieving higher sediment removal ratings than thos e contained in the 2002 [Stormwater Management] Manual and proposed by VTrans.” Nos. W Q-02-11, WQ-03-05, -06, -07, at 31 (Oct. 4, 2004). The Water Resources Board did not conclu de that this was irrelevant or inadmissible. Id. Instead, the Board found this offer unpersuasi ve because it was made in isolation and failed to consider the project design as proposed. Id.

In short, neither case concludes that expert testim ony on alternative systems is irrelevant in Act 250 and stormwater permitting appeals. Inst ead, Northeast Materials shows that the trial court does not have to adopt proposed alternatives, and CCCH Stormwater shows that proposed alternatives will have little persuasive value if t hey fail to account for the project design as proposed.

We therefore decline to read these cases as precede nt that evidence of an alternative stormwater system is irrelevant per se.

Further, one of the issues before us is whether it is impracticable for the proposed project
to meet treatment standards without using the Site Balancing Procedure. In order to determi ne whether the project can meet standards without usin g site balancing, it is relevant to the Court’sDiverging Diamond Interchange Act 250 and SW Permit s, No. 169-12-16, 50-6-16 Vtec (EO on Motion in Limi ne) Page 3 of 4

consideration of alternative permutations of the pr oposed project that demonstrate how stormwater treatment might function without site ba lancing.

For these reasons, we decline to conclude that evid ence of an alternative system would
be irrelevant.

b. Whether the model used by Vallee’s experts is relia ble and relevant

VTrans next argues that the model used by Vallee’s experts is irrelevant and unreliable.

“Reliable expert testimony is ‘sufficiently rooted in scientific knowledge,’ that is, grounded in scientific methods and procedures rathe r than mere ‘subjective belief or unsupported speculation.’” State v. Scott, 2013 VT 103, ¶ 10, 195 Vt. 330 (quoting State v. Streich, 163 Vt. 331, 343 (1995)). Courts may appl y four non-exclusive factors to assess reliability: “(1) whether the applicable theory or technique can be tested; (2) whether it has been subjected to peer review and publication; (3) its known or po tential error rate; and (4) whether it has been generally accepted by the scientific community.” I d.

VTrans notes that Vallee attempted to introduce a W inSLAMM model produced by Mr. Torrizo in a separate case. In re Costco Stormwate r Discharge Permit, 2016 VT 86, ¶ 35, 202 Vt. 564. In that case, “[b]ased on extensive testimony from a number of environmental analysts,” we found “that the WinSLAMM computer model was not designed to ‘accurately predict
stormwater infiltration rates within a wetland’ and that [Vallee] had not shown ‘comparable use’
of the model within Vermont or elsewhere.” Id. We therefore excluded the testimony (and, later, a related exhibit). Id.

While trial courts can in some cases evaluate the r eliability and relevance of expert evidence based on similar decisions in other cases, the responsibility for determining the admissibility of expert evidence remains with the t rial judge. State v. Forty, 2009 VT 118, ¶ 38, 187 Vt. 79 (quoting State v. Kinney, 171 Vt. 239, 2 49 (2000)). Our exclusion of the WinSLAMM evidence in Costco was based on the evidence presen ted in that case and based on the unique
facts of that case. We we are reluctant to extend that conclusion here.

VTrans further argues that the Vermont Stormwater M anagement Program does not recognize the WinSLAMM model as an acceptable model ling method. With a supporting affidavit by Mr. Torrizo, Vallee counters that ANR has accept ed WinSLAMM modeling several times in the past. Citing a supporting affidavit by Dr. Robert Pitt, the main developer of the WinSLAMM model, Vallee argues that the model has been extens ively used internationally, nationally, and in

Vermont.

Finally, VTrans argues that the WinSLAMM model deve loped for this case is flawed because it excludes important data or is technicall y deficient in various ways. 1 Vallee challenges this critique and argues that the model is accurate and reliable, again drawing support from Mr.
Torrizo’s affidavit.

1 VTrans argues that (1) the WinSLAMM model has no mo dule for gravel wetlands, even though that is the main component of Vallee’s expert’s design; (2) the model fails to consider rainfall data for November– April, although the Vermont Stormwater Management Manual re quires models to consider annual runoff, including snowmelt; (3) the model uses rainfall data from 200 0–2005, although winter thaw and rainfall patterns have changed in more recent years; (4) the model makes several e rroneous assumptions.Diverging Diamond Interchange Act 250 and SW Permit s, No. 169-12-16, 50-6-16 Vtec (EO on Motion in Limi ne) Page 4 of 4

In light of Vallee’s response and affidavits, whic h offer that the WinSLAMM model is reliable in general and as applied in this case, we will not exclude evidence related to the model at this point in the proceedings.

III. Conclusion

For the above reasons, VTrans’ motion to exclude is DENIED . We are generally inclined to allow Vallee to introduce testimony at trial rel ated to its WinSLAMM model. We will then give that evidence whatever weight it merits in renderin g our decision. Furthermore, this decision is not intended to preclude VTrans, or other parties, from challenging this evidence through cross examination and the testimony of other witnesses.

So ordered.

Electronically signed on March 14, 2018 at 11:37 AM pursuant to V.R.E.F. 7(d).

_________________________________________ Thomas G. Walsh, Judge Superior Court, Environmental Division

Notifications: Jon T. Anderson (ERN 1856), Attorney for Appellant R.L. Vallee, Inc. Alexander J. LaRosa (ERN 5814), Attorney for party 2 Co-counsel Justin E. Kolber (ERN 4303), Attorney for Appellee Agency of Transportation David L. Grayck (ERN 4510), Attorney for Interested Person Timberlake Associates, LLP Elena M. Mihaly (ERN 8101), Attorney for Intervenor Conservation Law Foundation John K. Dunleavy (ERN 1949), Attorney for party 5 C o-counsel Gregory J. Boulbol (ERN 1712), Attorney for For Inf ormational Purposes Only Natural Resources
Board Mark G. Hall (ERN 2537), Attorney for Intervenor Co stco Wholesale Corp. Peter J. Gill (ERN 4158), Attorney for For Informat ional Purposes Only Natural Resources Board Jenny Ronis (ERN 9185), Attorney for party 5 Co-cou nsel Kane H. Smart (ERN 4770), Attorney for party 17 Co- counsel Hannah W. Smith (ERN 6759), Attorney for Interested Person Agency of Natural Resources

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