                                  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.)                      }

                     Entry Order on Motion for Summary Judgment

       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 (2006) to Appellee-Applicant Unified Buddhist Church, Inc. (Unified Buddhist).

Appellants were represented by David Grayck, Esq. with respect to this motion; the

substitution of appearance by Kimberly B. Cheney, Esq. and Austin R. Grey, Esq. was filed

with the Court on January 24, 2008. Appellee-Applicant is represented by Hans Huessy,

Esq.; the Vermont Agency of Natural Resources (ANR) is represented by Catherine

Gjessing, Esq.; and intervenor Vermont Natural Resources Council (VNRC) is represented

by Jon Groveman, Esq.



       Even in a case such as this one in which the merits of the application are considered

de novo, deference is to be given to the interpretation of regulations and to the

construction of a statute by the agency responsible for its execution. In re Appeal of

Electronic Industries Alliance, 2005 VT 111, ¶7, 179 Vt. 539, 541. The policy justifications

for this rule have been described as “agency expertise,” and “familiarity with the purpose

of the regulation,” as well as “the express delegation of legislative authority to promulgate

regulations” on the subject. Bacon v. Lascelles, 165 Vt. 214, 218–19 (1996). We therefore

give deference to the ANR’s interpretation of the statute and of the Indirect Discharge

rules, absent “compelling indications of error.” In re S.M., 2003 VT 41, ¶6, 175 Vt. 524,


                                             1
525–26 (citation omitted).

       On the other hand, the Vermont Water Quality Standards (VWQS1), were

promulgated by the former Water Resources Board, not the ANR. They recognize that the

ANR will have the primary initial role in their interpretation, but contain the specific

provision in Section 1-05 that the “decision-maker in a de novo appeal is not bound by any

determinations or interpretations of [the VWQS] made by the [ANR] relative to an

application, provided that review of such determinations is within the scope of the appeal.”

       Moreover, the Vermont Supreme Court has noted, with regard to statutory and

regulatory construction, that “[w]hen courts interpret [administrative] rules in conjunction

with a statute, they should construe the rules together with the statute to make, if possible,

an effective piece of legislation in harmony with common sense and sound reason.” In re

Green Crow Corp., 2007 VT 137, ¶17 (citation and quotation omitted).



       The problem in the present case is created by the circularity of cross-references

among the Water Pollution Control statute (in particular, 10 V.S.A. § 1259(e)(4)), the

Vermont Water Quality Standards (in particular, §1-04(A)(2)), and the Indirect Discharge

Rules (in particular, §14-103(a)(1)). Section 1259(e)(4) of the statute requires an applicant

for an indirect discharge of sewage to demonstrate by clear and convincing evidence, that,

among other things, “the discharge . . . will not cause a violation of water quality

standards.”

       The parties have not provided the legislative history that would allow the Court to


       1
          The parties did not provide a complete copy of the Vermont Water Quality
Standards. For the purposes of the present analysis, which had to be completed before the
commencement of the scheduled trial on January 30, 2008, the Court has referred to a copy
of the 2006 VWQS filed in an unrelated case. If any party believes that a different version
of the VWQS should have been used and would make a difference in this analysis, that
party may provide it and request reconsideration at trial.

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determine whether the phrase “water quality standards” as used in 10 V.S.A. § 1259 was

contemporaneous with the section of the statute (10 V.S.A. § 1252(e)) requiring the WRB

to “adopt standards of water quality to achieve the purposes” of the classification of

Vermont surface waters. Section 1252(e) contemplated the adoption of technical water

quality criteria, using “numerical values,” “biological parameters,” and “narrative

descriptions” for listed pollutants and “any other water quality parameters deemed

necessary” by the WRB. If the two sections were contemporaneous, then the requirement

of § 1259(e)(4) that a new indirect discharge “will not cause a violation” of those water

quality parameters did not incorporate by reference any policy statements also contained

in the Vermont Water Quality Standards later adopted by the WRB. Rather, § 1259(e)(4)

should be read as holding indirect discharges to at least the same standard as direct

discharges in this respect: that they “not cause a violation” of the required quality of the

receiving water.

       However, the Vermont Water Quality Standards as later adopted by the WRB under

the authority of § 1252(e) contain not only the technical water quality standards governing

the quality of the receiving waters, they also contain policies established by the WRB for

the ANR’s administration of the programs aimed at achieving those water quality

standards in the waters of Vermont, including in particular the water pollution control

permitting program governing discharges as provided in 10 V.S.A. § 1263.

       The title of Chapter 1 of the Vermont Water Quality Standards is “General Policy.”

Section 1-01 provides definitions of terms, Section 1-02 covers “General Policy,” Section 1-

03 covers “Anti-Degradation Policy” governing existing discharges and existing high

quality waters, and Section 1-04 covers “Discharge Policy” for new discharges, setting out

criteria to be met in the process of allowing a new discharge of waste. These policies and

criteria are set out to guide the Agency of Natural Resources in administering its water

pollution control programs.

                                             3
       The criterion set out in §1-04(A)(2) is that:

       There is neither an alternative method of waste disposal, nor an alternative
       location for waste disposal, that would have a lesser impact on water quality
       including the quality of groundwater, or if there is such an alternative
       method or location, it would be clearly unreasonable to require its use.

The ANR requires this so-called ‘alternatives analysis’ for discharges covered by its water

pollution control permitting program,2 but not for indirect discharges.3 Appellants argue

that even though the alternatives analysis is not required by the Indirect Discharge Rules,

the statutory requirement of 10 V.S.A. § 1259(e)(4) that a proposed indirect discharge “will

not cause a violation of water quality standards” functions to incorporate the alternatives

analysis by reference from VWQS §1-04(A)(2). The ANR takes the position that the Indirect

Discharge Rules are more protective of the receiving waters than the direct discharge rules

would have been, making a formal alternatives analysis unnecessary. That is, the ANR

would require a proposed direct discharge to consider whether an indirect discharge

would be a viable alternative, and therefore finds it unnecessary to ask a proposed indirect

discharge to consider such alternatives.

       In the present case, summary judgment must be denied in any event because the

necessary legislative history has not been provided. If the statutory language of 10 V.S.A.


       2
          The parties have not provided the regulations pertaining to those permits; it is
therefore not possible for the Court to determine whether there is any required level of
detail or comprehensiveness for the “alternatives analysis” under that program. Even if
some level of alternatives analysis were required by VWQS § 1-04(A)(2) for indirect
discharges, nothing that has been brought to the attention of the Court would require any
particular level of detail or comprehensiveness for such an analysis.
       3
         To the extent that it has been the practice of ANR not to apply VWQS § 1-04(A)(2)
to indirect discharges, the ANR is free to state that practice in a written policy or procedure
under the Vermont Administrative Procedure Act, but no party has suggested that such
action has been requested 3 V.S.A. §831(b).


                                              4
§§ 1252(e) and 1259 is contemporaneous, and if VWQS §1-04(A)(2) was not in existence at

the time of the statute’s adoption, it appears to be possible to harmonize the statute and

the regulations by examining the specific statutory language. If the phrase “water quality

standards” as used in 10 V.S.A. § 1259(e)(4) refers only to the standards the receiving

waters must meet, and not to the additional process of alternatives analysis in VWQS §1-

04(A)(2), the statute can be harmonized with the regulation. That is, the statute reasonably

prohibits indirect discharges from “causing a violation” of the quality standards for the

receiving water. On the other hand, an indirect discharge cannot itself “cause a violation”

of the process by which the ANR assures itself that no reasonable and preferable alternative

methods or locations of waste disposal exist.

       This interpretation is reinforced by the use of similar language in 10 V.S.A. § 1263(f),

which is the separate statutory requirement for existing indirect discharges. The secretary

is directed to grant a permit for existing indirect discharges unless the discharge “violates

the water quality standards.” This could not have been meant to import the alternatives

analysis requirement from the VWQS , as such an existing indirect discharge would already

have been in place in its existing location. Rather, reading the Indirect Discharge rules

together with the VWQS and the statute as a coherent whole, the purpose of the extensive

requirements of the Indirect Discharge rules is to achieve the levels of protection of the

receiving waters and of groundwater that are required by the statute and the VWQS. See

Indirect Discharge Rules §14-103.

       Moreover, even if an alternatives analysis were required for the indirect discharge

in this case, it would remain for the trial de novo before this Court whether the alternatives

analysis conducted by Appellee-Applicant was sufficient to satisfy VWQS §1-04(A)(2). No

remand is required.



       Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that

                                              5
Appellants’ Motion for Summary Judgment is DENIED. The trial will proceed as

scheduled next week, beginning on January 30, 2008 and continuing as necessary on

January 31, 2008 and February 1, 2008. In their post-hearing memoranda, the parties may

include any additional legislative history or other argument on the issues raised in the

present motion.



       In addition, please note that the final decision in the related Act 250 case, Docket No.

191-9-05 Vtec, was issued on January 2, 2008. No judgment order was issued at that time;

the parties were asked to consider whether they wish to suspend the issuance of a final

judgment order in the case until the conclusion of the present Indirect Discharge Renewal

Permit appeal. Unless the parties request that suspension on or before the second day of

trial, January 31, 2008, the final judgment order in the Act 250 case will be issued by the

Court effective at 4:00 p.m. on January 31, 2008.


       Done at Berlin, Vermont, this 25th day of January, 2008.




                             _________________________________________________
                                   Merideth Wright
                                   Environmental Judge




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