In re Unified Buddhist Church, Inc.
Annotate this Case
In re Unified Buddhist Church, Inc. (2005-205); 180 Vt. 515; 904 A.2d 1139
2006 VT 50
[File 09-Jun-2006]
ENTRY ORDER
2006 VT 50
SUPREME COURT DOCKET NO. 2005-205
DECEMBER TERM, 2005
In re Unified Buddhist Church, Inc. } APPEALED FROM:
}
}
} Water Resources Board
}
}
} DOCKET NO. WQ-04-06
In the above-entitled cause, the Clerk will enter:
¶ 1. The Lull's Brook Watershed Association, Inc., Sterling and
Marion Monk, and Peter Gordon, (FN1) collectively appellants, appeal from
an order of the Water Resources Board affirming the issuance of an amended
indirect discharge permit for a new sewage treatment system to applicant
Unified Buddhist Church, Inc. ("UBC") by the Agency of Natural Resources.
Appellants argue that the Board erred in dismissing their appeal because a
genuine issue of material fact remains as to whether UBC's amended permit
application raises water quality impact issues that the Board should have
addressed. We hold that the Board properly granted summary judgment and
affirm.
¶ 2. An indirect discharge is "any discharge to groundwater." 10
V.S.A. § 1251(15). An indirect discharge of more than 6,500 gallons per
day requires a permit from ANR. See id. §§ 1259(e), 1263(a). This case
involves three ANR indirect discharge permits, an original permit and two
amendments. Only the second amendment was appealed to the Board. All the
permits relate to a UBC project to build a monastery and meditation center,
together called the Dharma Center, on its property in Hartland, Vermont.
The permits authorize UBC "to indirectly discharge treated domestic sewage
from a wastewater system serving the Dharma Center to the ground water and
indirectly into Lull's Brook."
¶ 3. The basic permit for the waste disposal system, Indirect
Discharge Permit No. ID 9 0271, was issued on July 31, 2001. The system
was designed to treat "domestic sewage" and was equipped to handle a
disposal capacity of 15,000 gallons per day. The system was described as
"consisting of septic tankage, a recirculating textile coupon filter
pretreatment system, pump station and a leachfield disposal area." It was
designed in accordance with the Treatment Index Method, a method
specifically authorized by the ANR Indirect Discharge Rules § 14-903(a)(1),
7 Code of Vermont Rules 12 033 003-52 (July 2003). The Treatment Index
Method "is a presumptive method of demonstration that a proposed subsurface
disposal system that complies with the required treatment index is presumed
to comply with the Aquatic Permitting Criteria and the Vermont Water
Quality Standards." Id. The permit stated that "[c]ompliance with the
Aquatic Permitting Criteria was demonstrated by using the Treatment Index
Method."
¶ 4. The system was designed by an approved engineer and the
permit required that it be constructed as designed. The permit did not
regulate the Dharma Center facilities that generated the waste, but the
record indicates that UBC intended to use flush toilets in its buildings.
The permit did, however, require UBC to obtain a "Water Supply and
Wastewater Disposal Permit . . . for all buildings." See 10 V.S.A. §§
1971-80 (providing applicability and requirements of potable Water Supply
and Wastewater Disposal Permit).
¶ 5. The indirect discharge permit required the system to be
operated
in a manner that will (1) not permit the discharge of sewage onto
the surface of the ground; (2) not result in the surfacing of
sewage; (3) not result in the direct discharge of sewage into the
waters of the State; (4) not result in a violation of the Water
Quality Standards; and (5) not result in a significant alteration
of the aquatic biota (SAAB).
The permit also required UBC to employ a certified wastewater facility
operator and to regularly sample the waterflow at various points in the
system and in Lull's Brook for numerous characteristics and chemicals.
These data must be regularly submitted to ANR.
¶ 6. The basic permit was not appealed, and the facilities
that were to use the wastewater disposal system were not constructed. UBC
subsequently filed an application to amend the basic permit to reduce the
total allowed waste flow from 15,000 to 9,500 gallons per day and to make
other modifications to the waste disposal system because of the lesser
flow. Apparently in order to reduce the quantity of waste sufficiently,
UBC planned to use composting toilets in place of flush toilets. The
record indicates that the wastewater volume can be reduced by forty percent
if the toilets are composting.
¶ 7. The Agency issued the amended permit, Indirect Discharge
Permit No. ID-9-0271-1, on May 20, 2003. The amended permit differs from
the basic permit only in the disposal quantity and the description of the
system, which was changed to "sewage treatment system consisting of septic
tankage, pump stations and a leachfield disposal area." Again, the permit
was not appealed, and again the facilities linked to the permit were not
constructed.
¶ 8. On August 17, 2004, UBC filed an application to amend the
amended permit. On December 2, 2004, ANR issued the second amended permit,
Indirect Discharge Permit No. ID 9 0271-2. The second amended permit
states that it is a "permit amendment," that ANR approved a change to the
location and an increase in size of the Main House septic tank, and that
"[n]o other substantive changes have been made to the permit." It also
references the history in part, stating that compliance with Aquatic
Permitting Criteria had been demonstrated in the earlier permit review by
using the Treatment Index Method, but that there had been a review of
engineering plans for this amendment under the technical design standards
of the indirect discharge rules. In all other relevant respects, the
second amended permit is identical to the first amended permit.
¶ 9. Although the second amended permit authorized a waste volume
of 9,500 gallons per day, the same volume as the first amended permit, UBC
intended to stay under the volume level by eliminating some camp sites and
thereby lowering the guest capacity of the center, rather than using
composting toilets. This change is at the heart of the appeal to the Board
and this Court. ANR consistently took the position that the use of flush,
rather than composting, toilets was irrelevant to its review of the second
permit amendment. Appellants asserted that the change in type of toilet
was significant because a wastewater system servicing composting toilets
would treat only "gray water," commonly defined as wastewater from sinks,
showers, laundry, etc., whereas a system servicing flush toilets would
treat both gray water and "black water," commonly defined as wastewater
containing human waste. As a result, appellants argue that UBC's toilet
conversion will have a negative impact on the pollution flowing into the
groundwater, and eventually into Lull's Brook, and that ANR was required to
evaluate this impact in deciding whether to issue the permit.
¶ 10. Appellants appealed the issuance of the second amended permit
to the Board. They claimed that the change from composting toilets to
flush toilets required ANR to do a new complete review of UBC's proposal to
ensure that the proposed system will comply with the Vermont Water Quality
Standards. They sought denial of the amended permit application or a
remand to ANR for proper review. ANR moved to limit the scope of appeal,
and UBC moved for partial summary judgment pursuant to Water Resources
Board Rule of Procedure 36. Both ANR and UBC asserted that since the only
change to the system from the first amended permit to the second was the
change in size and location of one of the septic tanks, the scope of the
appeal should be limited to that change, and that appellants could not
challenge the permit based on components that were approved, and not
appealed, in the issuance of the earlier permits.
¶ 11. The Board granted both motions. The Board concluded that
"design capacity and other design features of the septic system," which
were approved in the earlier permits and unchanged in the appealed permit,
were not reviewable anew. It further concluded that the make-up of the
effluent as it entered the sewage disposal system was not material to the
amended permit since the permits allowed discharge of "sewage" and did not
differentiate between gray and black water. Because appellants had already
expressed in a prehearing conference that they would have no interest in
pursuing an appeal limited to consideration of the septic tank
modifications, the Board dismissed the appeal. Appellants here appeal the
Board's grant of the motion to limit the scope of appeal and the motion for
partial summary judgment.
¶ 12. A motion for summary judgment pursuant to Water Resources
Board Rule of Procedure 36 is similar to one for summary judgment under the
Vermont Rules of Civil Procedure. See Water Resources Board Rule of
Procedure 36(D), 6 Code of Vermont Rules 12 004 001-32 (Feb. 2002) (stating
that summary judgment is granted if "pleadings, admissions on file, and
affidavits, if any, show that there is no genuine issue as to any material
fact and that any party is entitled to a judgment as a matter of law");
V.R.C.P. 56(c)(3) (stating summary judgment standard); In re Morehouse
Brook, Englesby Brook, Centennial Brook, & Bartlett Brook, Nos. WQ-02-04,
WQ 02-05, WQ 02 06, WQ-02-07, at 2-3 (Dec. 19, 2002), available at
http://www.nrb.state.vt.us/wrp/decisions/wrbdecisions/2002/wq02 04mod.pdf.
This Court reviews a grant of summary judgment de novo and will affirm if
there are no genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Springfield Terminal Ry. Co. v.
Agency of Transp., 174 Vt. 341, 344, 816 A.2d 448, 452 (2002). We accord
substantial deference to the Board's expertise in the area of water quality
control. In re Appeal of Clyde River Hydroelectric Project, 2006 VT 11,
10, 17 Vt. L. Wk. 22, 895 A.2d 736 (mem.). Thus, we review the Board's
decision to determine "whether the Board acted arbitrarily, unreasonably,
or contrary to law." In re Lyon, 2005 VT 63, ¶ 15, 178 Vt. 232, 882 A.2d 1143. Blending the standards together, we review the Board's grant of
summary judgment de novo, but with deference to its expertise in the area
of water quality control.
¶ 13. The Board decided this case on claim preclusion, ruling that
"design capacity and other design features" that were approved in prior
permits could not be relitigated in this amendment proceeding. It relied
upon its holding in another proceeding that "a party may not litigate
through a permit amendment proceeding a matter finally decided in a prior
permit." In re Town of Shoreham Wastewater Treatment Facility, No.
WQ-00-11, at 7 (May 2, 2001), available at
http://www.nrb.state.vt.us/wrp/decisions/wrbdecisions/2001/wq00 11 mod.pdf.
That decision in turn relied upon our decision in In re Taft Corners
Associates, Inc., 160 Vt. 583, 632 A.2d 649 (1993) in which we held that
final permits cannot be collaterally attacked: "Because neither the 1987 .
. . permit nor the 1988 amendment was appealed to the Board, the findings,
conclusions and permits are final and are not subject to attack in a
subsequent application proceeding, whether or not they were properly
granted in the first instance." Id. at 593, 632 A.2d at 654. Thus, the
Board held that the question of whether UBC's sewage disposal system met
regulatory standards was determined in the earlier permit amendment for a
wastewater volume of 9,500 gallons per day, and could not be relitigated.
We agree that the Board's conclusion is commanded by In re Taft Corners.
¶ 14. Appellants have two arguments against the application of
claim preclusion in this case. Appellants' main argument is that the
change from composting toilets to flush toilets, which changes the
resulting wastewater from only gray water to gray water and black water, is
a substantive change in wastewater quality so that a full review of the
environmental impact would not represent a collateral attack on either of
the earlier permits. The Board found that the extent to which the
wastewater entering the sewage disposal system contains black water is not
a valid basis for distinguishing the earlier permit.
¶ 15. In rejecting appellants' argument, the Board relied primarily
on the definition of "sewage" in the Indirect Discharge Rules because each
of the permits authorized applicant to treat and indirectly discharge
"sewage." The definition of sewage is "waste containing human fecal
coliform and other potential pathogenic organisms from sanitary waste and
used water from any building, including but not limited to carriage water,
shower and wash water, but does not include stormwater." Indirect
Discharge Rules 14-300(a)(32), 7 Code of Vermont Rules 12 033 003-16
(July 2003). The Board found that this definition includes both black and
gray water. Thus, the first amended permit was not limited to the disposal
of only gray water even though UBC intended to use it that way. Since the
first amended permit authorized the use of the permitted system for
disposal of black water up to the same volume limit, the Board found that
relitigating the environmental impacts in this case would be a collateral
attack on that permit.
¶ 16. The Board's reasoning is further supported by the fact that
there is no mention of gray water or black water in any of the three
permits issued to UBC. Moreover, the Treatment Index Method of
demonstrating compliance with environmental standards is described in
detail in the rules, and it is not dependent on the make-up of the sewage
sent through the disposal system. See id. § 14 903, 7 Code of Vermont
Rules at 12033003-52 to -56. Thus, ANR has found that a system that meets
Treatment Index Method requirements is valid for any mix of gray and black
water input.
¶ 17. We uphold the Board's construction of the indirect discharge
regulations as consistent with their plain meaning, In re 1650 Cases of
Seized Liquor, 168 Vt. 314, 319, 721 A.2d 100, 104 (1998), and within the
Board's expertise, In re Appeal of Clyde River, 2006 VT 11, 10.
Accordingly, we affirm its decision that the change in the make-up of the
waste flowing into the disposal system is not grounds for a full review of
the new system.
¶ 18. Appellants' second reason that claim preclusion does not
apply is that a specific rule requires a full new review of the system for
the permit amendment sought. Again, appellants rely on the conversion from
composting to flush toilets and the effect of this change on the waste
entering the disposal system. For this argument, they rely upon the
language of the Indirect Discharge Rules on permit amendments:
Major revisions to existing permits shall be processed as permit
amendments by the Secretary. Examples of when a permit amendment
is required include an increase in discharge volume or substantive
change in the quality of the wastewater discharged, a substantial
change in the treatment system for the indirect discharge or other
changes which, in the opinion of the Secretary, change the nature,
capacity or potential impact of the system. The Secretary will
advise the applicant of the information that must be submitted for
a complete application for permit amendment.
Indirect Discharge Rules 14-407(a), 7 Code of Vermont Rules 12 033 003-32
(July 2003) (emphasis added). Appellants argue that the change from
composting toilets to flush toilets constitutes a "change in the quality of
the wastewater discharged" because of the change from all gray water to
gray water and black water. They then argue that a "major revision" under
14-407(a) requires a more searching review under 14-402, as if the
amendment were an application for new indirect discharge. They point out
that ANR treated the second permit amendment as a major revision under §
14-407(a).
¶ 19. There are two flaws in appellants' argument. First, whatever
the significance of the label "major revision," nothing in § 14-407(a) or
other rules requires that a major revision be reviewed as a new indirect
discharge. Instead, the language of 14-407(a) states that when a permit
amendment is considered a major revision, "[t]he Secretary will advise the
applicant of the information that must be submitted." Id. The rule gives
the Secretary broad discretion to determine what information is required to
process the amendment, and does not mandate review as a new indirect
discharge as appellants argue. Second, the Board's response to appellants'
first argument for why claim preclusion does not apply is also relevant to
appellants' second argument. The overall policy of the rules is that a
change in the nature of the sewage entering the disposal system does not
affect the discharge. Thus, there is no "substantive change in the quality
of the wastewater discharged" as those words are used in § 14-407(a) of the
rules.
¶ 20. The Board correctly ruled that there are no genuine issues of
material fact bearing on whether claim preclusion prevents appellants from
relitigating whether UBC's waste disposal system will have prohibited
environmental impacts. We also affirm that claim preclusion applies.
Since appellants rejected the limited review that was available for issues
not precluded, the Board properly dismissed the appeal.
Affirmed.
BY THE COURT:
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Denise R. Johnson, Associate Justice
_______________________________________
Marilyn S. Skoglund, Associate Justice
_______________________________________
Brian L. Burgess, Associate Justice
_______________________________________
Alan W. Cook, District Judge (Ret.),
Specially Assigned
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Footnotes
FN1. According to the notice of appeal to the Water Resources Board, the
Monks and Peter Gordon own land abutting that of the United Buddhist
Church, Inc., and along Lull's Brook downstream from the development in
issue in this appeal. The Lull's Brook Watershed Association, Inc. is a
non-profit corporation, whose purpose "is to work towards protecting,
improving, and maintaining the health of Lull's Brook watershed."
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