1 STATE OF VERMONT

ENVIRONMENTAL COURT

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

Decision on Request for Interlocutory Appeal

This Court’s June 30, 2009 Decision on Cross-Motion s for Summary Judgment (“Decision”) granted summary judgment in favor of A ppellant Conservation Law Foundation (“CLF”). Specifically, we held that the permit tha t the Vermont Agency of Natural Resources (“ANR”) issued to the Montpelier Wastewater Treatme nt Facility (“WWTF” or “Facility”) was invalid, and therefore vacated that permit. We the n remanded the appeal to ANR to engage in a site-specific and time-specific analysis regarding the appropriate phosphorus discharge level for the Facility: “where ANR is yet to engage at all in the analysis that the Clean Water Act requires, the proper recourse is to remand the case to ANR to engage in that analysis in the first instance.” Decision at 22–23 (citing In re Stormwater NPDES Pe tition , 2006 VT 91, ¶ 30, 180 Vt. 261. Given that we remanded this case, rather than issui ng a final judgment, ANR and the

Water Resources Panel of the Vermont Natural Resour ces Board (“Water Panel”) have filed a joint motion requesting permission to take an inter locutory appeal to the Vermont Supreme Court. See generally In re Cliffside Leasing Co. , 167 Vt. 569 (1997) (holding that a party must request interlocutory review before the Vermont Sup reme Court can hear an appeal of a nonfinal Environmental Court decision). No party has opposed the joint motion that was file d by ANR and the Water Panel. Rather, the City of Montpelier (“City”) has filed a memorandum in support of that motion, and CLF has filed a brief statement indicating that it takes no position on the request for interlocutory

review. We evaluate this unopposed motion under Rule 5(b)(1 ) of the Vermont Rules of Appellate Procedure. See V.R.E.C.P. 5(a)(2) (notin g that applicable Vermont Rules of Appellate Procedure “govern all proceedings” before this Cour t). 1 Rule 5(b)(1) states three requirements for interlocutory review: (1) the order or ruling m ust “involve[] a controlling question of law”;

1 Because the pending motion only requests interlo cutory review under Rule 5(b)(1), we do not reach w hether interlocutory review would be appropriate under Rul e 5.1.2

(2) there must be “substantial ground for differenc e of opinion” regarding that question; and (3) “an immediate appeal may materially advance the ter mination of the litigation.” Although the Supreme Court has noted that there is only “a narrow class of cases in which interlocutory review is . . . advisable,” In re Pyramid Co. of Burlington , 141 Vt. 294, 301 (1982), we find this to be a situation where interl ocutory review is appropriate. In particular, we

find that the Decision at issue here meets all thre e of the requirements listed in V.R.A.P. 5(b)(1).

I. Controlling Question of Law The Decision “involves a controlling question of la w” regarding the federal Clean Water Act and its implementing regulations. V.R.A.P. 5(b )(1). This dispute centers on the proper process for determining a wastewater treatment faci lity’s permit limit for a pollutant that will discharge into an impaired waterway. In 2002, the Lake Champlain Phosphorus Total Maximum Daily Load (“TMDL”) set maximum limits for phosphor us discharges into all of Lake Champlain from both point and non-point sources. T he Champlain TMDL also established specific maximum levels of phosphorus pollution (re ferred to as wasteload allocations) that could be discharged from each identified point sour ce, including the Montpelier WWTF. Six years later, when ANR granted a new discharge permi t for the Montpelier WWTF, ANR simply imported the maximum wasteload allocation establish ed in the Champlain TMDL—without further analysis—as the amount of phosphorus that t he Facility could discharge from 2008 through 2013. 2 ANR and the Water Panel maintain that as a matter of law this process in all cases complies with the federal Clean Water Act and its implementing regulations. We held

otherwise in our Decision: In summary, we find that ANR must engage in an anal ysis, prior to the issuance of the discharge permit applied for here, to determ ine whether the wasteload allocation in the [Lake] Champlain [Phosphorus] TMD L is protective enough of state water quality standards to be adopted as a [W ater Quality Based Effluent Limitation] or whether a more stringent limitation is required [by the federal Clean Water Act and its implementing regulations]. We conclude that such an application review process is required as a matter of law, so that a [Water Quality Based Effluent Limitation] meets the five-year limi tation on permits required by 33 U.S.C. § 1342(b)(1)(B), and so that a [Water Qua lity Based Effluent Limitation] is “consistent with the assumptions and requirements of any available wasteload allocation” in an approved TMDL, pursuant to 40 C.F.R. § 122.44(d)(1)(vii)(B).

2 The Clean Water Act limits the term of each permi t to no more than five years. 33 U.S.C. § 1342(b)( 1)(B).3

Decision at 22. On this basis, we denied requests from ANR and the Water Panel to grant summary judgment in their favor, and we granted summary jud gment in favor of CLF and held that the permit that ANR issued to the Montpelier WWTF was i nvalid and therefore void. Id . We then remanded the appeal to ANR to engage in a site-spec ific and time-specific analysis of the proper phosphorus discharge limit for the ensuing five yea r term. Id . at 22–23. As we noted in our Decision, in interpreting the Cl ean Water Act and its implementing regulations, the Court was “presented with a purely legal question” involving “statutory interpretation.” Id . at 3. Thus, this is not a situation where the “b enefit of factual findings” would aid in reaching a final determination on the legal issues addressed in the Decision. In re Pyramid , 141 Vt. at 301. Unlike In re Pyramid , where the controlling nature of certain legal questions was “completely dependent upon the factua l record developed at trial,” the purely legal issues resolved by the Decision here are “capable o f accurate resolution by an appellate court

without the benefit of a factual record.” Id . at 304. Further, the legal issues addressed in the Decision are controlling because “reversal would have a substantial impact on the litigation, either by saving substantial litigation time, or by significantly narrowing the range of issues, cla ims, or defenses at trial.” Id . at 303. If the Vermont Supreme Court were to hold that ANR and the Water Panel are correct that the process that ANR followed here—as a matter of law—always co mplies with the Clean Water Act and its implementing regulations, it would either end this litigation or at least “significantly narrow[] the range of issues . . . at trial.” Id . Indeed, this Court dedicated a large part of our Decision to pointing out just some of the potential issues rega rding whether the permit limitation here is “consistent with the assumptions and requirements o f any available wasteload allocation” in an approved TMDL, as is required by 40 C.F.R. § 122.44 (d)(1)(vii)(B). See Decision at 14–19. Those issues would all go away if the Supreme Court were to reverse this Court and hold as a matter of law that any permit limitation that comes directly from a wasteload allocation in all cases meets the requirements of 40 C.F.R. § 122.44( d)(1)(vii)(B).

II. Substantial Grounds for Difference of Opinion Although subsequent reviews of our Decision have on ly reinforced our belief of its soundness, we agree that a “substantial ground for difference of opinion” exists regarding these legal issues. V.R.A.P. 5(b)(1). ANR and the Water Panel are correct that it appears as if no4

court or other adjudicatory body has addressed the exact issues presented in this appeal. These are difficult issues of statutory interpretation, a nd they require an in-depth analysis of various provisions of federal law and the underlying intent of those provisions. Further, to the extent that

the former Vermont Water Resources Board addressed a similar issue in 2004, it reached a different outcome. See Re: Village of Enosburg Fal ls , No. WQ-03-03, Memorandum of Decision (Apr. 21, 2004), available at http://www.nrb.state.vt.us/wrp/decisions/wrbdecisi ons/ 2004/wq-03-03mod.pdf. We therefore agree that “rea sonable appellate judge[s] could vote for reversal of the challenged order.” In re Pyramid , 141 Vt. at 307 (quotation omitted).

III. Material Advancement of the Litigation The requirement in Rule 5(b)(1) that “an immediate appeal may materially advance the termination of the litigation” presents a more diff icult issue, but we nonetheless conclude that this requirement is met. Unlike In re Pyramid , where “neither affirmance nor reversal offered much prospect of advancing the ultimate termination of this litigation,” 141 Vt. at 306, the ultimate resolution of this appeal at least has the prospect of being advanced by a final ruling on the legal issues addressed in the Decision.

We note that this issue is difficult because we dou bt that interlocutory review will put an end to the litigation in this matter. The parties in this appeal have staked out relatively disparate positions: ANR, the Water Panel, and the City belie ve that the Montpelier WWTF is entitled to a discharge permit that allows more than double the a mount of phosphorus that this Facility has historically discharged in any given year, while CL F believes that future permits may only allow a net zero discharge of phosphorus. Each side beli eves that its position is the only proper interpretation of the Clean Water Act and its imple menting regulations. Thus, if the Supreme Court affirms our Decision, litigation might contin ue once ANR completes the analysis that has been ordered—whether it is CLF appealing because th e permit limitation is not stringent enough, or whether it is the City appealing because it is t oo stringent. If, on the other hand, the Supreme Court reverses our Decision, CLF could still bring further litigation and argue that even if not required by law, ANR (and this Court exercising de novo review) should exercise its discretion to impose more stringent limitations than the minim um requirements of the Clean Water Act. See Decision at 7 (noting that the EPA has explicit ly stated that “agencies like ANR can impose more stringent permit limitations where needed” (ci ting In re City of Moscow, Idaho , NPDES Appeal #00-10, 10 E.A.D. 135, 148 (EPA Envtl. Appea ls Bd. July 27, 2001)).5

In other words, it is unlikely that this appeal, ev en if allowed to proceed to our Supreme Court, will mark the end of litigation concerning t his legal issue. That said, interlocutory review of the Decision issued here certainly has the possi bility of materially advancing this specific litigation. See V.R.A.P. 5(b)(1). For instance, i f the Supreme Court reverses our Decision, it might end this litigation altogether. That possibi lity in itself suffices to meet the third requirement of Rule 5(b)(1). Further, given that n o party to this appeal has objected to the request for interlocutory review, it appears that t he parties themselves recognize that interlocutory review could expedite a final resolut ion of this matter. In addition, the Court is aware that our Decision h as ramifications not only for the Montpelier WWTF, but also potential ramifications f or a number of other wastewater treatment facilities that discharge into the Lake Champlain B asin. In fact, this Court already has at least one other appeal that we have concluded is best sta yed pending the final outcome of this appeal. See In re St. Albans Waste Water Treatment Facility (Permit #3-1279) , No. 253-10-08 Vtec. We expect that many more appeals concerning other indi vidual wastewater treatment facilities could follow until a final decision is reached regarding ANR’s duties under the Clean Water Act and its implementing regulations. A final decision regardi ng the legal issues that were addressed in our Decision in this appeal would expedite the resoluti on of those appeals as well.

Conclusion and Questions Certified for Review For all the reasons more fully discussed above, we GRANT the request from ANR and the Water Panel to allow interlocutory review of th is Court’s June 30, 2009 Decision. We hereby certify the following legal questions for re view by our Supreme Court:

1. Does the Clean Water Act’s five-year limitation on permits in 33 U.S.C.

§ 1342(b)(1)(B) preclude a state agency from basing a subsequent wastewater discharge permit solely upon a maximum wasteload al location that is more than five years old?

2. Does 40 C.F.R. § 122.44(d)(1)(vii)(B) require any f urther analysis of the 2002 Champlain TMDL wasteload allocation for the Montpel ier Facility to determine whether a more stringent limitation is ne eded in a future permit to meet the federal Clean Water Act’s requirement of p rotecting state waters, pursuant to state-established water quality standar ds?6

Done at Berlin, Vermont, this 10th day of August 20 09.

___________________________________ Thomas S. Durkin, Environmental Judge