                                       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-Motions for Summary Judgment
(“Decision”) granted summary judgment in favor of Appellant Conservation Law Foundation
(“CLF”). Specifically, we held that the permit that the Vermont Agency of Natural Resources
(“ANR”) issued to the Montpelier Wastewater Treatment Facility (“WWTF” or “Facility”) was
invalid, and therefore vacated that permit. We then 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 Petition, 2006 VT 91, ¶ 30, 180 Vt. 261.
          Given that we remanded this case, rather than issuing a final judgment, ANR and the
Water Resources Panel of the Vermont Natural Resources Board (“Water Panel”) have filed a
joint motion requesting permission to take an interlocutory 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 Supreme Court can hear an appeal of a non-
final Environmental Court decision).
          No party has opposed the joint motion that was filed 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) (noting that applicable Vermont Rules of Appellate
Procedure “govern all proceedings” before this Court).1 Rule 5(b)(1) states three requirements
for interlocutory review: (1) the order or ruling must “involve[] a controlling question of law”;

1
    Because the pending motion only requests interlocutory review under Rule 5(b)(1), we do not reach whether
interlocutory review would be appropriate under Rule 5.1.


                                                     1
(2) there must be “substantial ground for difference of opinion” regarding that question; and (3)
“an immediate appeal may materially advance the termination 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 interlocutory review is appropriate. In particular, we
find that the Decision at issue here meets all three of the requirements listed in V.R.A.P. 5(b)(1).

I.         Controlling Question of Law
           The Decision “involves a controlling question of law” 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 facility’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 phosphorus discharges into all of Lake
Champlain from both point and non-point sources. The Champlain TMDL also established
specific maximum levels of phosphorus pollution (referred to as wasteload allocations) that
could be discharged from each identified point source, including the Montpelier WWTF. Six
years later, when ANR granted a new discharge permit for the Montpelier WWTF, ANR simply
imported the maximum wasteload allocation established in the Champlain TMDL—without
further analysis—as the amount of phosphorus that the 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 analysis, prior to the issuance
           of the discharge permit applied for here, to determine whether the wasteload
           allocation in the [Lake] Champlain [Phosphorus] TMDL is protective enough of
           state water quality standards to be adopted as a [Water 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 limitation on permits required by
           33 U.S.C. § 1342(b)(1)(B), and so that a [Water Quality 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 permit to no more than five years. 33 U.S.C. § 1342(b)(1)(B).


                                                           2
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 judgment in favor of CLF and held that the
permit that ANR issued to the Montpelier WWTF was invalid and therefore void. Id. We then
remanded the appeal to ANR to engage in a site-specific and time-specific analysis of the proper
phosphorus discharge limit for the ensuing five year term. Id. at 22–23.
       As we noted in our Decision, in interpreting the Clean 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 “benefit 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 factual record developed at trial,” the purely legal
issues resolved by the Decision here are “capable of 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, claims, 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 complies 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 regarding whether the permit limitation here is
“consistent with the assumptions and requirements of 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 only 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 no


                                                  3
court or other adjudicatory body has addressed the exact issues presented in this appeal. These
are difficult issues of statutory interpretation, and 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 Falls, No. WQ-03-03, Memorandum of
Decision (Apr. 21, 2004), available at http://www.nrb.state.vt.us/wrp/decisions/wrbdecisions/
2004/wq-03-03mod.pdf. We therefore agree that “reasonable 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 difficult 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 doubt 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 believe that the Montpelier WWTF is entitled to a
discharge permit that allows more than double the amount of phosphorus that this Facility has
historically discharged in any given year, while CLF believes that future permits may only allow
a net zero discharge of phosphorus. Each side believes that its position is the only proper
interpretation of the Clean Water Act and its implementing regulations. Thus, if the Supreme
Court affirms our Decision, litigation might continue once ANR completes the analysis that has
been ordered—whether it is CLF appealing because the permit limitation is not stringent enough,
or whether it is the City appealing because it is too 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 minimum requirements of the Clean Water Act.
See Decision at 7 (noting that the EPA has explicitly stated that “agencies like ANR can impose
more stringent permit limitations where needed” (citing In re City of Moscow, Idaho, NPDES
Appeal #00-10, 10 E.A.D. 135, 148 (EPA Envtl. Appeals Bd. July 27, 2001)).


                                                 4
       In other words, it is unlikely that this appeal, even if allowed to proceed to our Supreme
Court, will mark the end of litigation concerning this legal issue. That said, interlocutory review
of the Decision issued here certainly has the possibility of materially advancing this specific
litigation. See V.R.A.P. 5(b)(1). For instance, if the Supreme Court reverses our Decision, it
might end this litigation altogether.     That possibility in itself suffices to meet the third
requirement of Rule 5(b)(1). Further, given that no party to this appeal has objected to the
request for interlocutory review, it appears that the parties themselves recognize that
interlocutory review could expedite a final resolution of this matter.
       In addition, the Court is aware that our Decision has ramifications not only for the
Montpelier WWTF, but also potential ramifications for a number of other wastewater treatment
facilities that discharge into the Lake Champlain Basin. In fact, this Court already has at least
one other appeal that we have concluded is best stayed 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 individual 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 regarding the legal issues that were addressed in our
Decision in this appeal would expedite the resolution 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 this Court’s June 30, 2009 Decision. We
hereby certify the following legal questions for review 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 allocation that is more
                   than five years old?
       2.          Does 40 C.F.R. § 122.44(d)(1)(vii)(B) require any further analysis of the 2002
                   Champlain TMDL wasteload allocation for the Montpelier Facility to
                   determine whether a more stringent limitation is needed in a future permit to
                   meet the federal Clean Water Act’s requirement of protecting state waters,
                   pursuant to state-established water quality standards?




                                                 5
Done at Berlin, Vermont, this 10th day of August 2009.



                                    ___________________________________
                                     Thomas S. Durkin, Environmental Judge




                                       6
