2008 VT 59





In re Appeal of LiCausi (2006-312)
 
2008 VT 59
 
[Filed 02-May-2008]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 109
  State Street, Montpelier, Vermont05609-0801
of any errors in order that corrections may be made before this opinion goes to
press.




 
 

2008 VT 59

 

No. 2006-312

 

In re Appeal of LiCausi


Supreme Court


 


 


 


On Appeal from


 


Environmental Court


 


 


 


September Term, 2007


 


 


 


 


Merideth Wright, J.

 
Edward V. Schwiebert and David R.
Cooper of Kenlan, Schwiebert
& Facey, P.C., Rutland, for 
  Appellant.
 
Gale M. LiCausi, Pro Se, Clarendon, Appellee.
 
William H. Sorrell, Attorney General, and Kevin Leske, Assistant Attorney General, Montpelier,
  for Amicus Curiae State of Vermont. 
 
PRESENT:  Dooley, Johnson, Skoglund
and Burgess, JJ., and Katz, Supr. J., Specially
Assigned
 
 
¶ 1.            
BURGESS, J.   Appellant Crushed Rock, Inc. appeals the
decision of the Environmental Court adding a condition to an air-pollution
permit for the operation of an asphalt plant.  Appellee
LiCausi, a neighboring resident of Clarendon,
cross-appeals from approval of the permit.  The court upheld the
determination by the Agency of Natural Resources (ANR) to award the permit, but
appended a new condition mandating that Crushed Rock collect on-site meteorological
data for six months.  Because we have been shown neither statutory
authority nor findings authorizing such a condition, we strike the condition
while affirming the issuance of the permit itself.    
¶ 2.            
The facts are undisputed.  In 2003, Crushed Rock applied to renew a
permit from the Air Pollution Control Division of ANR authorizing the
construction and operation of an asphalt “hot-mix batch” plant in Clarendon.
 Crushed Rock’s predecessor company was granted a permit to begin a similar
operation on the site in 1998.  State law mandates that asphalt plants,
among other stationary sources of air pollution, acquire a permit from the
Secretary of ANR before they may commence operations.  10 V.S.A. § 556(a)
(“No person shall construct or install any air contaminant source . . . without
. . . obtaining a permit from . . . [ANR] pursuant to this section.”); Air
Pollution Control § 5-401(2), 7 Code of Vermont Rules 12 031 001-39 (APCR). 
¶ 3.            
Upon review of Crushed Rock’s application, ANR found that the data used
was “valid,” and demonstrated that there would be “no violations of ambient air
quality standards resulting from this project.”  Accordingly, on May 11,
2004, ANR issued the requested permit.  Pursuant to 10 V.S.A. § 562(d),[1] several neighbors appealed this
determination to the Environmental Court, complaining, among other things,
that: (1) the 2004 permit application contained outdated data that did not
accurately represent the equipment to be used on site; (2) ANR failed to
include the impact of a nearby asphalt plant in its analysis; and (3) the data
used in the permit’s modeling were not representative of the Clarendon Valley,
where the plant was to be operated.  Not persuaded by neighbors’
arguments, the court found that the data presented by Crushed Rock was
“consistent with [ANR] guidelines,” and that Crushed Rock’s meteorological
“modeling was conducted following the required guidelines and showed that the
operation of the facility will not result in the violation of any air
standard.”  Nevertheless, and without any rationale except a generalized
concern about the representational quality of the data and the “possibility”
that actual weather in plant area might differ from the weather reflected in
the modeling, the court added the following condition: 
[Crushed Rock]
shall collect the local surface meteorological data . . . during
the first May 1 through November 1 period of operation, to be used to determine
whether the [data used in the permit application] is “representative” for this
valley or whether any conditions should be adjusted to conform to the local
conditions. 
  
¶ 4.            
Crushed Rock’s post-trial motion to remove the condition was denied, and
this appeal followed.  On appeal, Crushed Rock contests the imposition of
the on-site data-collection condition.  In her cross-appeal, the remaining
neighbor challenges the condition as inadequate, and argues that it was error
to approve the permit for three reasons: (1) Crushed Rock’s application was
inaccurate because it relied on outdated meteorological data and topographical
maps; (2) the application failed to include an older asphalt plant’s impact on air
pollution in the region; and (3) the information contained in the application
was the same as that submitted for the 1998 permit, and was thus out of date. 
I.
¶ 5.            
We first address the condition added to the permit by the Environmental
Court.  Crushed Rock argues that the court erred by failing to defer to ANR’s determination that the meteorological data used was
sufficient for purposes of the permit application.  Neighbor counters that
the court erred when it required only six months of monitoring.  She
claims that ANR regulations require that one year of data be collected on
site.  “Our review of the Environmental Court’s decision is
deferential.”  In re Shaw, 2008 VT 29, ¶ 7, __ Vt. __, __ A.2d
__.  
¶ 6.            
Vermont’s air-quality-permitting scheme is governed by 10 V.S.A. §§
551-579, which delegate to the Secretary of ANR authority to grant permits to
control air-pollution sources.  Id. §§ 556, 556a(a).  Permit
applications must contain “such plans, specifications, and other information as
the secretary deems necessary” to evaluate the request.  Id. §
556(a).  ANR  promulgated the Vermont Air Pollution Control
Regulations (APCRs) to implement the permitting
provisions of Title 10.  Section 5-502 of these Regulations requires that
an applicant’s Ambient Air Quality Impact Evaluation (evaluation) be “prepared
in accordance with procedures acceptable to the Secretary.”  APCR §
5-502(4)(e).  Acceptable procedures are set forth in the Air Quality
Impact Evaluation Guidelines (Guidelines).  
¶ 7.            
At issue here is Crushed Rock’s proffer of meteorological data in
support of its application.  Section 7.2 of the Guidelines requires that
an applicant’s model use:
actual
meteorological data from a representative weather station or on[-]site data
collection.  The . . . data should contain the five (5) most recent,
consecutive years of hourly surface meteorological data
combined            with
five (5) years of concurrent mixing height upper air observations . . . . In
Vermont, upper air sounding from Albany, NY may be used with Burlington, VT
meteorological data for most of the state.  
 
With its permit
application, Crushed Rock submitted an evaluation containing computer modeling
based on meteorological data taken from official weather stations in Burlington
(for surface data) and Albany, NY (for upper air). 
¶ 8.            
In its decision, the Environmental
  Court found that the use of data from the Burlington and Albany
weather stations was “consistent with the [G]uidelines,”
and actually produced “conservative modeling assumptions” of the temperature
inversions in the valley.[2] 
The court further found that the modeling conducted using this data “follow[ed] the required [G]uidelines and showed that the operation of the facility
will not result in the violation of any air standard.”  Thus, the court
concluded: 




if
the project is constructed and operated as proposed . . . it will not cause or contribute
to violation of any National Ambient Air Quality Standard, will comply with the
Secondary Ambient Air Pollution Standards . . . and will not cause a
significant deterioration of the air quality in the vicinity.  
 
¶ 9.            
Despite these findings and conclusions in support of the permit, the
court ordered Crushed Rock to collect an additional six months of surface
meteorological data at the plant site.  This condition is unsupported by
any findings of the court.  While the Environmental Court opined that
on-site data “may be necessary to determine whether the [data
used by Crushed Rock] is ‘representative’,” and that it would “consider
requiring [Crushed Rock] to collect the local equivalent . . . data” due to the
“possibility that the localized weather behaves differently from that
used for the modeling,” these abstract concerns never evolved past the point of
speculation.  (Emphasis added.)  There were no findings to the effect
that the data were not representative, that local weather was substantially
different from the Burlington or Albany sampling, or that ANR acted
unreasonably in relying on its Guidelines.  The musings of the
Environmental Court were ultimately resolved by its finding that the data
submitted was consistent with the Guidelines requiring that the data be
representative, and that the modeling both complied with the Guidelines and
demonstrated that no air-quality standard would be violated by plant
operations.  Because nothing in the court’s findings and conclusions
supports the requirement of ongoing local weather monitoring, that condition
must be struck from the permit.[3]

II.
¶ 10.        
We next address neighbor’s claims that the 2004 permit application
contained outdated, and therefore inaccurate, information.  Neighbor
argues that Crushed Rock presented expired meteorological data and
topographical maps, failed to assess the pollution impact from an existing
asphalt plant located within the region, and merely resubmitted materials from
its original 1998 permit which, by the time of its 2004 application for
renewal, was out of date.  
¶ 11.        
As discussed in ¶ 6, supra, ANR has the authority to set
air-pollution standards and to enforce those standards through a permitting
system designed and controlled by the agency.  See 10 V.S.A. §§ 554-556
(secretary of ANR has broad powers to “[a]dopt, amend
and repeal rules,” id. § 554(2); “[i]ssue orders as may be necessary to effectuate [the control
of air pollution],” id. § 554(4); enforce these orders, id.; “[e]stablish ambient air quality standards for the state,” id.
§ 554(11); “classify air contaminant sources,” id. § 555(a); and require
applicants for permits to submit all information the “secretary deems necessary
in order to determine whether the proposed construction . . . will be in
compliance,” id. § 556(a)).  Pursuant to this authority, the
secretary has promulgated a number of Regulations and Guidelines that
applicants must follow when applying for a permit.  Section 5-502 of these
Regulations requires applicants seeking to construct a “major stationary
source”—a source whose allowable emissions of any air contaminant are equal to
or greater than fifty tons per year—to submit an evaluation.  APCR
§§ 5-502, 5-101.  For applicant sources that do not meet this
fifty-ton threshold, ANR may, but need not, require the applicant to submit an
evaluation.  APCR § 5-406.  Guideline 2.0 specifies further that an
evaluation “may be required for . . . sources proposing allowable
emissions of ten (10) tons per year . . . of [certain] air
contaminants.”   
¶ 12.        
Further regulations guide the content of an applicant’s
evaluation.  Guideline 7.2, which addresses the meteorological data used
in an evaluation, requires that applicants use “the five (5) most recent,
consecutive years of hourly surface meteorological data.”  Regulation §
5-101 addresses when an applicant must include the impact of existing sources
when conducting its evaluation:  a source “that exceeds the significance
level of a pollutant [under § 5-101] may be required to include other near-by
sources [in its evaluation].”  
¶ 13.        
Neighbor is correct that the meteorological data used in the 2004 permit
application is “more than [sixteen] years old.”  Crushed Rock was not,
however, required to submit an updated evaluation with its 2004 permit
application.  No emission from the proposed asphalt plant exceeds fifty
tons per year, so § 5-502’s mandate does not apply.  Guideline 2.0
indicates that ANR may require an evaluation for emissions of greater than ten
tons per year.  Here, the only air contaminant for which emissions will
increase beyond this threshold as a result of the 2004 permit is carbon
monoxide, but this increase will not cause the plant to exceed the regulatory
significant level for this particular contaminant.  Because “there [had]
been no change in background criteria pollutants that would cause a violation
of National Ambient Air Quality Standards,” ANR did not require Crushed Rock to
submit a revised evaluation.  We accordingly reject
neighbor’s challenge to the age of the data used.[4] 
¶ 14.        
With respect to topographic information, the Guidelines do not require
that maps be of “a particular vintage”; whether a map appropriately represents
the terrain in question is left to the discretion of ANR officials reviewing
the application.  Crushed Rock similarly followed ANR rules regarding when
pollution from other local sources must be taken into account.  ANR
Regulation § 5-101 establishes “significance levels” for various pollutants,
and proposed sources that exceed the § 5-101 “significance level” for any
pollutant may be required to include the impact of nearby sources in their air
quality evaluation.  Here, because the projected emissions of the proposed
asphalt plant “do not include any pollutant in excess of the respective
significance level,” Crushed Rock was not required by ANR regulations to
include the impact of nearby sources in its evaluation.  Because neighbor
does not challenge the sufficiency of the guidelines or regulations themselves,
we need not reach the issue of whether these requirements properly comport with
ANR’s statutory mandate under Title 10.
¶ 15.        
As for neighbor’s contention that a substantial portion of the
information contained in Crushed Rock’s 2004 permit application mirrored that
submitted with its 1998 application, and was thus outdated, testimony presented
at trial demonstrated that much of the 1998 data was still accurate in 2004,
and that the information that had changed in the interim had been properly
updated.  An environmental engineer employed by ANR explained that Crushed
Rock’s 2004 pollution modeling was based on updated emissions data “us[ing] the new equipment . . . new fuel limits, [and]
production limits.”  Crushed Rock’s expert further testified to the
“emissions factors” and fuel and asphalt capacity limits that had changed
between 1998 and 2004, and how these changes had been incorporated into the
2004 application.  While some of the information in the 2004 application
was the same as that submitted in 1998, an ANR employee testified that “[w]e
don’t require someone to re-submit information if it’s identical to what has
already been submitted.”  Based on the information submitted, both old and
new, the agency was able to “completely re-review[] as a new project” the 2004
permit application.  
           
The condition requiring six months of on-site monitoring is struck from the
permit, which is in all other ways affirmed. 
 
 
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
Section 562 has since been amended.  Subsection (d), among others, was
deleted, and appeals are now governed by 10 V.S.A. §§ 8501-8505.  2003 No.
115 (Adj. Sess.), § 14, eff.
Jan 31, 2005.  


[2] One of neighbor’s major concerns was whether
the Burlington and Albany data would sufficiently represent
temperature inversions, a weather pattern that can affect the amount of
pollution that concentrates in an area.  The Clarendon Valley has
different topographic features than the flatter plains at the Burlington
Airport and in Albany, but ANR found that data from the latter was sufficiently
“representative” for purposes of the application.  


[3]  Neighbor’s argument that the condition
should be revised upward, requiring Crushed Rock to collect one year of on-site
data instead of six months, is equally unsupported by the court’s findings, and
thus must be rejected.  We note that our conclusion keeps us from having
to reach the issue of what level of deference the Environmental Court must
accord ANR’s interpretation of its regulations. 
Additionally, our decision to strike the condition is unaffected by the fact
that an evaluation appears not to have been required at all in this case. 
See infra, ¶ 13.  


[4]  It is possible that the data used in
the 1998 permit was outdated when the application for this permit was
submitted, but neighbor is now barred from raising this claim due to res judicata.



