                         Environmental Court of Vermont
                                State of Vermont

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                    E N T R Y R E G A R D I N G M O T I O N
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Montpelier WWTF Discharge Permit                 Docket No. 22-2-08 Vtec
Project:     Montpelier Wastewater Treatment Facility
Applicant:   City of Montpelier
             (Appeal from ANR determination on discharge permit application)

Title: Motion in Limine Re Testimony of Michael Rapacz, (Motion No. 10)
Filed by: Mark L. Lucas, Attorney for Natural Resources Board/WR Panel
Filed: November 3, 2008
Title: Motion in Limine Re Testimony of Michael Rapacz, (Motion No. 12)
Filed by: Appellee Vermont Agency of Natural Resources
Filed: November 10, 2008
Response in support filed on 11/11/08 by Appellee City of Montpelier
Response in opposition filed on 12/30/08 by Appellant Conservation Law
   Foundation
Reply filed on 1/15/09 by Natural Resources Board/Water Resources Panel

_X_ Granted (as to expert’s model);   _X_ Denied (as to expert qualification and
other testimony)


      The Court conducted a hearing on the above-referenced motions over a
period of two days (June 23 and 24, 2009).      At the close of the taking of
evidence and legal arguments, the Court took a brief recess and then delivered
its determinations on the record of the June 24 hearing. References to case law
and procedural rule precedent (including V.R.E 401, 403, 702, and 703) may be
found in the full hearing record. In summary, the Court concluded that:
   1.    The witness (Michael Rapacz) that CLF proposes it may call in rebuttal
         to witness(es) offered in support of the pending application has
         provided a sufficient foundation of his education, experience, and
         research to allow him to be qualified as an expert in the fields of
         water quality and the instances that contribute to its degradation and
         non-conformance with federal and state water quality laws and
         regulations. For this reason, the motions in limine filed by the Water
         Panel and ANR to exclude Mr. Rapacz as an expert witness are DENIED.
   2.    The Water Panel and ANR have provided multiple challenges to Mr.
         Rapacz’s qualifications and testimony. These challenges may call into
         question the credibility of some of Mr. Rapacz’s offered testimony and
         opinion, but they go to the weight and credibility of that testimony
         and are not sufficient to support an absolute exclusion of all of Mr.
         Rapacz’s testimony at this time.    The pending motions in limine are
         therefore DENIED on this basis as well.
   3.    The Water Panel and ANR have provided a sufficient evidentiary
         foundation for excluding all of Mr. Rapacz’s references to the “model”
         (actually a simple mathematical equation, a copy of which was
         introduced at hearing as NRB Exhibit DD) he created to aid the Court in
         understanding his testimony. We therefore STRIKE from the record all
Montpelier WWTF Discharge Permit, No. 22-2-08 Vtec, EO on Mots in Limine   Page 2 of 2



          references by Mr. Rapacz to his “Simple Aggregate Loading Model”,
          including those references in his affidavit in support of CLF’s motion
          for summary judgment. Mr. Rapacz is also hereby restricted from making
          any reference to his Simple Aggregate Loading Model, should he be
          called upon to testify in any subsequent proceeding in this appeal. In
          this regard, ANR’s and the Water Panel’s motions in limine are hereby
          GRANTED.




___________________________________________           __June 25, 2009__
      Thomas S. Durkin, Judge                               Date
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Date copies sent: ____________                    Clerk's Initials _______
Copies sent to:
    Attorneys Anthony L. Iarrapino and John L. Davenport for Appellant
      Conservation Law Foundation
    Attorneys Warren T. Coleman and Michael Steeves for Appellee Vermont Agency
      of Natural Resources
    Attorney Mark L. Lucas for Vermont Natural Resources Board/Water Resources
      Panel
    Attorney Steven F. Stitzel for Appellee City of Montpelier
