STATE OF VERMONT
ENVIRONMENTAL COURT
}
In re: Unified Buddhist Church, Inc., }
Indirect Discharge Permit } Docket No. 253-10-06 Vtec
(Appeal of Lull’s Brook Watershed }
Association, et al.) }
Decision and Order on Motion in Limine
Appellants Lull’s Brook Watershed Association, John Zelig, Amy Zelig, Peter
Gordon, Sterling R. Monk, Marion Monk, and Heidi Luquer (Appellants) appealed from
a decision of the Agency of Natural Resources to grant renewal Indirect Discharge Permit
ID-9-0271 (20061) to Appellee-Applicant Unified Buddhist Church, Inc. (Unified Buddhist).
Appellants are represented by David Grayck, Esq.; Appellee-Applicant is represented by
Hans Huessy, Esq.; the Vermont Agency of Natural Resources (ANR) is represented by
Catherine Gjessing, Esq.; and amicus curiae2 Vermont Natural Resources Council (VNRC)
is represented by Jon Groveman, Esq.
Procedural History
The proposed disposal system and the procedural history of the prior permits is
1
Because the renewal permits carry the same number as the original permits,
without any distinguishing factor such as the –1, –2 series of suffix numbers used for
permit amendments, this decision will use the year of issuance to distinguish them. The
renewal permit that is the subject of this appeal was issued on October 4, 2006.
2
VNRC has filed a motion to alter or amend the Court’s May 11, 2007 decision
conferring amicus status on VNRC, asserting additional grounds for intervenor party
status; that motion will be addressed in a separate decision.
1
discussed extensively in a decision of the Supreme Court relating to an earlier permit
amendment: In re Unified Buddhist Church, Inc., 2006 VT 50, ¶3-9.
In 2001, the ANR issued the original Indirect Discharge Permit ID-9-0271 (the 2001
Permit) to Unified Buddhist, effective until June 30, 2006, approving a discharge from the
Green Mountain Dharma Center of 15,000 gallons per day, from a sewage treatment
system, with an indirect discharge into Lull’s Brook, a tributary of the Connecticut River.
No appeal was taken from the initial Indirect Discharge Permit; the system authorized by
that permit was not constructed.
In 2003, the ANR issued amended Indirect Discharge Permit ID-9-0271-1, approving
the indirect discharge of 9,500 gallons per day from a sewage treatment system. No appeal
was taken from the first amended permit; the system authorized by that permit
amendment was not constructed. In late 2004, the ANR issued second amended Indirect
Discharge Permit ID-9-0271-2, also approving an indirect discharge of 9,500 gallons per
day. The Vermont Supreme Court affirmed the Water Resources Board’s dismissal of the
appeal of this permit. In re Unified Buddhist Church, Inc., 2006 VT 50, ¶1. The system
authorized by that permit was not constructed.
In late 2006, after the public notice and public hearing required by the statute and
rules applicable to its Indirect Discharge program, the ANR issued a renewal permit, which
we will refer to as Indirect Discharge Permit ID-9-0271 (2006) or “the renewal permit,”
effective until June 30, 2011. This is the permit on appeal in the present case, Docket No.
253-10-06 Vtec. This permit approved the indirect discharge of 9,500 gallons per day from
a new proposed sewage treatment system, including septic tankage, pump stations and
leach field. The leach field consists of a trench absorption design of sixteen three-trench
cells for 100% dual alternation. No construction has begun on the sewage treatment
system.
2
Motion in Limine re Scope of Appeal
Appellee-Applicant Unified Buddhist has moved in limine to exclude, from the
present appeal of the renewal permit, all issues that were addressed during the issuance
of its original Indirect Discharge Permit No. ID-9-0271 (2001), or in the first or second
amendments to that permit in 2003 and 2004. Unified Buddhist argues that Appellants
should be precluded from litigating any issues that were, or could have been, litigated in
any of the prior proceedings, based on the doctrine of res judicata.3
Res judicata, or claim preclusion, is “founded upon the judicial economy and
fairness of litigating and disposing of all issues involved in a legal dispute where the
parties, subject matter and causes of action are identical or substantially identical.” Cupola
Golf Course, Inc. v. Dooley, 2006 VT 25, ¶10, 179 Vt. 427, 430 (citing Lamb v. Geovjian, 165
Vt. 375, 379-80 (1996)). “The doctrine of claim preclusion advances the efficient and fair
administration of justice because it serves ‘(1) to conserve the resources of courts and
litigants by protecting them against piecemeal or repetitive litigation; (2) to prevent
vexatious litigation; (3) to promote the finality of judgments and encourage reliance on
judicial decisions; and (4) to decrease the chances of inconsistent adjudication.’” Faulkner
v. Caledonia County Fair Ass’n, 2004 VT 123, ¶9, 178 Vt. 51, 54-55 (quoting In re Cent. Vt.
Pub. Serv. Corp., 172 Vt. 14, 20 (2001)).
The doctrine of res judicata is distinct from the concept of finality of an unappealed
3
Appellants had also moved to strike ANR’s memorandum regarding res judicata
or, in the alternative, had requested leave to respond to it. Appellants argued that the
ANR’s memorandum was untimely when it was filed on January 22, 2007, in response to
the motion in limine filed by Unified Buddhist on December 19, 2006. However, at the
telephone conference held on January 12, 2007, the Court ordered that responses to all
then-pending motions be filed by January 22, 2007. The ANR memorandum was timely
based on that order; Appellants’ motion to strike the ANR memorandum is therefore
DENIED. Appellants did file a response to the ANR memorandum on January 26, 2007;
their request for additional time to respond has become moot.
3
permit. Compare Faulkner, 2004 VT 123, ¶9, 178 Vt. at 54-55 with In re Unified Buddhist
Church, Inc., 2006 VT 50, ¶13. The former concerns prior litigation, or prior trial-type
administrative adjudication,4 in which the parties had a full and fair opportunity to litigate
all claims. The latter is implicated when a party fails to appeal a final permit, in particular
if a statute or case law has established the finality of an unappealed permit in the particular
permit program. See, e.g., 24 V.S.A. §4472; Levy v. Town of St. Albans Zoning Bd. of
Adjustment, 152 Vt. 139, 142 (1989) (as to municipal zoning permits); In re Taft Corners
Assocs., Inc., 160 Vt. 583, 593 (1993) (as to Act 250).
The issue in the present case is the extent to which the doctrine also should be
applied in the context of an application for a so-called “renewal permit” in the Vermont
state indirect discharge permit regulatory system. In a de novo appeal of any ANR
decision, such as the issuance of the renewal indirect discharge permit at issue in the
present case, this Court is required by statute to apply “the substantive standards that were
applicable before the tribunal appealed from.” 10 V.S.A. § 8504(h). The Agency’s own
practices may assist the Court in interpreting and applying the substantive standards, but
the Court’s basic obligation is to apply anew the substantive legal standards to the facts the
Court finds from the evidence presented in the de novo proceedings.
Indirect discharge permits are governed generally by 10 V.S.A. §1259(e), which
provides that “[e]xcept for on-site disposal of sewage from systems of less than 6,500 gpd
4
In this context, we note that the ANR process resulting in the issuance of a
discharge permit is a notice-and-comment type of proceeding, in which public comments
are taken at a hearing held after the issuance of a draft permit by the Agency, rather than
a trial type of proceeding, such as before the District Commissions under Act 250, in which
parties may, for example, cross-examine witnesses and present evidence. Accordingly,
although participation in the proceedings below is now a prerequisite for bringing an
appeal of a municipal or an Act 250 permit, 10 V.S.A. §8504 (b) and (d), there is no such
requirement for appeals from ANR permit decisions.
4
capacity that are either exempt from or comply with the environmental protection rules,
no person shall cause any new or increased indirect discharge of wastes into Class B waters
without a permit under section 1263.” Section 1259(e) further provides that:
The secretary shall not issue a permit for on-site disposal of sewage that
discharges into Class B waters, unless the applicant demonstrates by clear
and convincing evidence, and the secretary finds, that the discharge: (1) will
not significantly alter the aquatic biota in the receiving waters; (2) will not
pose more than a negligible risk to public health; (3) will be consistent with
existing and potential beneficial uses of the waters; and (4) will not cause a
violation of water quality standards.
The Vermont Indirect Discharge Rules (IDR), §14-601(c), provide that, “[f]or a new indirect
discharge of sewage, an applicant must show by clear and convincing evidence that the
discharge will meet the statutory requirements for obtaining an indirect discharge permit.
The standards and requirements of these rules, when met, provide the evidence necessary
to meet this statutory requirement.”
Like discharge permits issued pursuant to the National Pollutant Discharge
Elimination System created by the federal Clean Water Act, 33 U.S.C. § 1342, state-issued
indirect discharge5 permits are valid for a term “not to exceed five years,” 10 V.S.A.
§1263(d)(4), may be renewed “from time to time upon application to the secretary,” and
“shall be issued following all determinations and procedures required for initial permit
application.” Id. §1263(e).
If an indirect discharge permit has been issued, authorizing construction of a sewage
system and setting standards and conditions for the discharge from that system, and that
permit is not appealed, the permit holder has the right to rely on the permit during its five-
year term. If any amendments are sought to the permit during its five-year term, the scope
5
Indirect discharges of the type on appeal, from a source other than a publicly
owned treatment works, are not regulated by the federal Clean Water Act. 33 U.S.C. §
1311(b)(1).
5
of the amendment decision, and the scope of the appeal of any amendment decision, is
limited to the changes proposed by the amendment. Buddhist, 2006 VT 50, ¶10,¶20.
At least after an applicant has constructed6 the system authorized by a final original
permit, it is the ANR’s practice to apply principles of issue preclusion or vested rights so
as not to revisit design and construction issues in a renewal permit, but rather to assess the
system’s operation and compliance with the permit’s conditions and performance
standards. Regardless of whether this practice has been adopted as a formal procedure,
3 V.S.A. §§801(7), 801(8), 831(b), 835; or whether it forms part of the “substantive
standards” applicable before the Agency, this approach is a sensible one. However, the
Court declines to apply it in a situation in which construction of the project authorized by
the original permit has not commenced prior to the expiration of that permit.
The fact that the ANR does not require an applicant to provide as much information
to the agency in a renewal application as in the original application does not change this
result. Regardless of the filing requirements, an applicant has the burden of making the
same showing of compliance with the statute and rules in a renewal application as in an
original application. As well as the statutory requirement, §14-602 of the Indirect Discharge
Rules provides that previously-permitted indirect discharges “must comply with the
current Water Quality Standards in effect at the time of permit renewal, including [with]
any revisions [to the WQS] which have occurred since the permit was issued.” In the
present case, it is not possible to review the compliance of the facility with its existing
permit, in the context of determining whether to issue a renewal permit, as it is not in
operation. See IDR § 14-406(e). All that is available to review is its design and
construction. See also IDR § 14-201(a) (noting that each permit is valid for five years,
6
The question of how much construction or preparation may be sufficient to trigger
this practice is beyond the scope of the present motion, as no argument has been made that
construction has commenced.
6
despite intervening regulatory changes, but that each renewal application is viewed in light
of regulatory changes since last five-year permit was issued).
In the context of a renewal permit appeal, the statute requires the Court to consider
“all determinations and procedures required for initial permit application” in deciding
whether a renewal permit should be issued, if those issues are properly appealed, 10 V.S.A.
§1263(e), regardless of whether the same issues were considered in issuing the original
permit and intervening amendments. Thus, in an appeal of a renewal permit, as opposed
to that of an amendment of an unappealed permit, the Court may consider anew any issues
authorized by §1263(e) or the Indirect Discharge Rules, including issues that may have been
addressed in the context of prior permitting decisions. See Re: City of South Burlington
(Bartlett Bay Wastewater Treatment Facility), No. WQ-01-04 Second Prehearing Conf.
Report and Order, pp. 5-6 (Water Res. Bd.7, Apr. 18, 2002)
Neither the statutory and regulatory mandates, nor the doctrine of res judicata, bars
Appellants from introducing evidence or legal arguments related to issues that were, or
could have been, previously litigated in prior permit proceedings. This result is the same
whether it is reached under the statutory scheme or by applying the common law res
judicata principles. Both the statute and the rules contemplate a necessary review of
previously-litigated issues. See §1263(e); IDR §14-602.
Even the logic of limiting indirect discharge permits to a term of “no more than five
years” must allow the analysis of any issues related to the previously-issued permit, the
facility’s compliance with it, any changes in the facility’s operation, and how those affect
water quality. §1263(e); IDR § 14-406(e). Otherwise the five-year term of indirect discharge
permits would be mere surplusage. DeBartolo v. Underwriters at Lloyd’s of London, 2007
7
Pursuant to 10 V.S.A. § 8504(m), decisions of the Water Resources Board are given
the same weight as those of this Court.
7
VT 31, ¶16 (citing Vt. State Colls. Staff Fed’n v. Vt. State Colls., 157 Vt. 645, 646 (1991)
(statutory constructions that render provisions surplusage should be avoided). Similarly,
if parties were barred from revisiting issues raised in prior permit proceedings, there would
be no difference between a permit amendment proceeding and a renewal permit
proceeding, which would render the provisions specifically governing renewal as
surplusage. DeBartolo, 2007 VT 31, ¶16 (citing Vt. State Colls. Staff Fed’n, 157 Vt. at 646.
Because this comprehensive review is expressly contemplated by the statutory and
regulatory structure, an appeal of a renewal permit is far from the type of “vexatious”
litigation which the doctrine of res judicata is designed to prohibit. See Faulkner, 2004 VT
123, ¶9. As construction of the system approved in the expired 2001 Permit has not
commenced, issues related to the design of the system, as well as operating issues, may be
raised in the renewal permit proceedings.
Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that
Unified Buddhist’s Motion in Limine is DENIED.
Done at Berlin, Vermont, this 31st day of July, 2007.
_________________________________________________
Merideth Wright
Environmental Judge
8