                                    STATE OF VERMONT

                                  ENVIRONMENTAL COURT

            Secretary, Vermont Agency of
            Natural Resources, Plaintiff,      }
                                               }   Docket No. 41-2-02 Vtec
            v.                                 }
                                               }   (Stage II Vapor Recovery)
            Mountain Valley Marketing, Inc., , }
            Respondents




            Secretary, Vermont Agency of
            Natural Resources, Plaintiff,      }
                                               }   Docket No. 278-12-02 Vtec
            v.                                 }
                                               }    (Stage II Vapor Recovery)
            Premium Petroleum, Inc.,           }
            Respondents




            Secretary, Vermont Agency of
            Natural Resources, Plaintiff,
                                              }
                                              }    Docket No. 176-8-02 Vtec
            v.
                                              }
                                              }     (Stage I Vapor Recovery)
            Premium Petroleum, Inc, Odessa }
            Corp., Timberlake Associates, and
            Wesco, Inc., Respondents




            Secretary, Vermont Agency of
            Natural Resources, Plaintiff,
                                              }    Docket No. 175-8-02 Vtec
                                              }
            v.
                                              }
                                              }    (Hazardous Waste
            Premium Petroleum, Inc, Odessa }       Management Regulations)
            Corp., Timberlake Associates, and
            Wesco, Inc., Respondents

                           Decision and Order on Motions to Compel

In Docket No. 41-2-02 Vtec on January 24, 2002, the Secretary of the Vermont Agency of Natural
Resources (ANR) issued an administrative order pursuant to 10 V.S.A. ' 8008 regarding
Respondent Mountain Valley Marketing, Inc., which timely requested a hearing in Environmental
Court. This administrative order alleged violations of the Air Pollution Control Regulations
regarding Stage II Vapor Recovery. In Docket No. 278-12-02 Vtec on November 26, 2002, the
Secretary of the Vermont Agency of Natural Resources (ANR) issued another administrative
order pursuant to 10 V.S.A. ' 8008 also alleging violations of the Stage II Vapor Recovery
Regulations regarding Respondent Premium Petroleum, Inc., which also timely requested a
hearing in Environmental Court.

In Docket No. 176-8-02 Vtec, on July 31, 2002 the Secretary of the Vermont Agency of Natural
Resources (ANR) issued an administrative order pursuant to 10 V.S.A. ' 8008 regarding
Respondents Premium Petroleum, Inc, Odessa Corp., Timberlake Associates, and Wesco, Inc.,
which timely requested a hearing in Environmental Court. This administrative order alleged
violations of the Air Pollution Control Regulations regarding Stage I Vapor Recovery.

In Docket No. 175-8-02 Vtec, on July 31, 2002 the Secretary of the Vermont Agency of Natural
Resources (ANR) issued an administrative order pursuant to 10 V.S.A. ' 8008 regarding
Respondents Premium Petroleum, Inc, Odessa Corp., Timberlake Associates, and Wesco, Inc.,
which timely requested a hearing in Environmental Court. This administrative order alleged
violations of the Hazardous Waste Management Regulations regarding exempt and small-
quantity generators of hazardous waste.

In all the above-captioned cases, all Respondents (which are all related corporations or entities)
are represented by Jon Anderson, Esq., William E. Simendinger, Esq. and Kathryn Sarvak; and
the Agency of Natural Resources is represented by Catherine Gjessing, Esq.

Respondents seek discovery in aid of their argument that they have been unconstitutionally
singled out for enforcement. As stated in today= s ruling on their Motion for Summary Judgment
on that issue, to succeed in an argument of selective enforcement, particularly in a civil case, they
must satisfy both prongs of a two-part test, as reiterated by the Vermont Supreme Court in In re
Appeals of Letourneau 168 Vt. 539, 549 (1998, as corrected 1999), first, that A the person,
compared with others similarly situated, was selectively treated;@ and, second, that the A
selective treatment was based on impermissible considerations such as . . . intent to inhibit or
punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.@
We ruled that material facts are in dispute as to whether they were A similarly situated@ in
comparison with all the other entities regulated under the Vapor Recovery and Hazardous Waste
Management Regulations.

The discovery sought goes to both prongs of the above test: Respondents= attempts to obtain
information about the Agency= s treatment of other regulated entities, and Respondents=
attempts to obtain information going to the motivation of the Agency and its personnel in this
particular instance.

Respondents seek an order under 4 V.S.A. ' 1004 that the information is necessary to a full and
fair determination of the above-captioned proceedings.

With respect to the motivation of the Agency and its personnel, ordinarily, at least in criminal
cases in which a defendant argues selective or vindictive prosecution, the claimants must make
out a prima facie case of selective prosecution before being allowed discovery of the basis for a
prosecution. That is, Respondents must come forward with some evidence of actual animus or
actual intent to punish the exercise of constitutional rights, not merely the potential for such
animus or the opportunity for vindictiveness. Generally this is to avoid the chilling effect on law
enforcement that would result from subjecting the prosecutor= s motive and decisionmaking to
outside inquiry, and to avoid undermining prosecutorial effectiveness by revealing governmental
enforcement policy. See, e.g., United States v. Armstrong, 517 U.S. 456, 463-64 (1996).
Respondents argue in return that the > whistleblowing= nature of the testimony alleged as the
basis for the retaliatory enforcement represents a fundamental public interest in protecting
speech on matters of public concern, to be balanced against the relatively minor burden of
                                                           th
disclosure, citing Prager v. LaFaver, 180 F. 3d 1185 (10 Cir. 1999). However, we will not
address Respondents= claim for information going to the motivation of the Agency and its
personnel until and unless Respondents make a prima facie case on the other prong of showing
the other entities that were similarly situated, because if Respondents cannot reach that threshold
showing, they will have no need to show motivation.

With respect to discovery as to cases brought against other members of the regulated
community, that is, as to evidence of whether others are > similarly situated,= Respondents
should be entitled to discovery of any materials generated in connection with orders, assurances
of discontinuance, or court proceedings under 10 V.S.A. Chapter 201 as of or after November 2,
      1
1990 , which materials are public records and would be available under Vermont= s Access to
Public Records law absent the pendency of this litigation. While it is not information relative to the
violation under 4 V.S.A. ' 1004(a), it is information necessary to a full and fair determination of
these proceedings in connection with Respondents= effort to defend against the proceedings by
asserting a selective enforcement defense.

Please note that this order is less extensive than the discovery demand in several respects. It
does not order the production of any litigation records any earlier than November 2, 1990 or any
records in proceedings brought other than under the Uniform Environmental Enforcement Act. It
does not cover settlement discussions or any privileged investigative material that is not a public
record subject to the Access to Public Records law.

Accordingly, based on the foregoing, it is hereby ORDERED and ADJUDGED that Respondents=
motion to compel is GRANTED, subject to the above limitations, and without prejudice to future
discovery requests being made under 4 V.S.A. ' 1004(a) upon a showing of the need for that
additional material.

                                th
Done at Barre, Vermont, this 7 day of July, 2003.




___________________
Merideth Wright
Environmental Judge




                                             Footnotes



1.
   The date that the Uniform Environmental Enforcement Act took effect with the appointment of
the environmental judge and the commencement of the Environmental Court.
