Sheffield Wind Project

Opinion

STATE OF VERMONT

ENVIRONMENTAL COURT

} In re Sheffield Wind Project } Docket No. 252-10-08 Vtec (Appeal of Brouha et al.) } }

Decision and Order on Pending Motions

Appellants Carol Brouha, Paul Brouha, Greg Bryant, Don Gregory, the King

George School, Linda Lavalle, Jane Rollins, Robert Tuthill, and David Zimmerman are

represented by Stephanie J. Kaplan, Esq.; Appellee-Applicants Signal Wind Energy,

LLC and Vermont Wind, LLC are represented by Ronald A. Shems, Esq., Andrew N.

Raubvogel, Esq., and Geoffrey H. Hand, Esq. The Vermont Agency of Natural

Resources is represented by Judith L. Dillon, Esq. Appellants Carol Brouha, Paul

Brouha, Greg Bryant, Don Gregory, the King George School, Linda Lavalle, Jane

Rollins, Robert Tuthill, and David Zimmerman have filed a Motion to Remand and a

Motion for Continuance and Reasonable Discovery Schedule.

Motion to Remand

Appellants have moved to “remand this appeal so that the Agency of Natural

Resources (ANR) can determine and analyze the existing uses and other baseline data

required by the Anti-Degradation [Policy] of the Vermont Water Quality Standards

(VWQS) and review the application in light of this information.” Motion to Remand at

1.

The Court’s September 29, 2009 decision on summary judgment determined that

the rebuttable presumption of compliance with the VWQS applies to the anti-

degradation provisions of the VWQS. In the proceedings on this permit on appeal,

1 “that presumption can be rebutted by evidence brought forward by Appellants.” In re:

Sheffield Wind Project, No. 252-10-08 Vtec, slip op. at 12 (Vt. Envtl. Ct. Sept. 29, 2009)

(Wright, J.). In order to analyze the evidence brought forward by Appellants, the Court

explained that “an agreed or otherwise established benchmark of the existing uses and

existing quality of the receiving waters is necessary against which to measure that

evidence.” Id. The Court anticipates that the parties will present evidence of the

existing uses and existing quality of the receiving waters at trial, as well as presenting

evidence as to any permit conditions necessary to enable Applicants to meet the

standards required by the statute and regulations, on the remaining questions in the

Statement of Questions.

Unlike the case analyzed by the Vermont Supreme Court in In re Stormwater

NPDES Petition, 2006 VT 91, 180 Vt. 261, it is neither necessary nor appropriate to

remand this matter to the ANR. The permit on appeal in the present case was issued by

the ANR on a case-specific basis, and is before the Court in this de novo appeal to

determine, among other things, what are the existing uses and existing water quality of

the receiving waters in the present case, and to determine if the proposed permit

conditions will meet the VWQS, including the anti-degradation sections of the VWQS.

By contrast, in the Stormwater NPDES Petition case, the Vermont Supreme Court found

that ANR had failed to exercise its residual authority under federal law to determine on

a case-by-case basis whether certain discharges required a NPDES permit. Id. at ¶ 29.

Because ANR had not acted in the first instance, the Supreme Court remanded the case

to the ANR to make that case-by-case determination. Id.

It is not necessary to remand the permit that is the subject of this appeal to the

ANR to make a determination regarding the existing uses and water quality of the

receiving waters. Appellants’ Motion to Remand is DENIED.

2 Motion for Continuance

Appellants’ Motion for Continuance and Reasonable Discovery Schedule asks

the Court to “continue the hearing until January 2010 and establish a reasonable

discovery schedule that will allow for adequate time to prepare for trial.” Motion for

Continuance at 1. Appellants argue that “there is insufficient time for the Appellants to

be prepared to address either part of Question 7 on November 5” and “there is

insufficient time for the Appellants to engage in discovery and prepare for a December

2 trial.” Id.

The trial scheduled for November was rescheduled in part for December due to

the timing of the Court’s decision on the summary judgment motions. The November 5

trial date was retained for Question 11 and for the portion of Question 7 involving the

comparison between the Applicants’ Erosion Prevention and Sediment Control Plan

and the applicable state standards, which were not provided to the Court with the

summary judgment motions on this topic. As both issues were presented to the Court

on summary judgment with expert affidavits, Appellants have not shown that trial on

either of these issues should be delayed.

On the issues relating to Question 3 and the second half of Question 7, trial has

already been continued from November to be heard on December 2, 3, and 4 if needed,

to allow the parties additional time to prepare those issues for trial. The issues resulting

from Appellants’ prevailing on summary judgment on Question 3 are not a surprise to

any of the parties. Applicants and perhaps the ANR will have to come forward with

evidence on the existing uses and existing water quality applicable to the receiving

water; Appellants will have the opportunity to present countering evidence.

This case has been pending since October of 2008; the parties had to prepare

expert affidavits for the summary judgment motions. Appellants have not shown that

the two months from the decision on summary judgment to the new trial dates on

3 Questions 3 and the second half of Question 7 are an unreasonable amount of time for

the parties to prepare for trial.

Appellants’ Motion for Continuance is DENIED.

Discovery Schedules

The proposed discovery schedule towards the December trial dates will make all

written discovery available to Appellants, including the proposed data or other

information on existing uses and existing water quality of the receiving waters, by

November 12. The proposed discovery schedule gives adequate time for Appellants

expert witnesses to review and analyze that information.

The proposed discovery schedule towards the November 5 trial date, filed by

Vermont Wind on October 5 and discussed and amended by the parties at the October

12 telephone conference, is hereby ordered by the Court, except that the initial date of

October 19 for disclosure of witnesses and serving of written discovery requests is

hereby extended to tomorrow, October 20. Applicants shall provide a copy of this

proposed discovery schedule in electronic form to the Court, together with the

proposed discovery schedule towards the December trial dates, for issuance as a court

order. The parties shall discuss any changes to the dates in the discovery and pretrial

schedules with each other before bringing them to the attention of the Court.

Done at Berlin, Vermont, this 19th day of October, 2009.

_________________________________________________ Merideth Wright Environmental Judge