Conservation Law Foundation v. Burke
| Decision Date | 17 September 1993 |
| Docket Number | No. 92-358,92-358 |
| Citation | 645 A.2d 495,162 Vt. 115 |
| Parties | CONSERVATION LAW FOUNDATION, et al. v. Timothy BURKE, Secretary of Agency of Natural Resources, et al. |
| Court | Vermont Supreme Court |
Lewis Milford and Jeanne Sole, Montpelier, for plaintiff-appellee Conservation Law Foundation.
William M. O'Brien of O'Brien Law Offices, Winooski, for intervenor-appellee City of Winooski.
Dennis R. Pearson and Charles T. Shea of Gravel and Shea, Burlington, for defendant-appellant Safety Medical Systems, Inc.
Jeffrey L. Amestoy, Atty. Gen., and John H. Hasen, Asst. Atty. Gen., Montpelier, for amicus curiae Agency of Natural Resources.
Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.
Safety Medical Systems, Inc. (SMS) appeals from a decision of the Chittenden Superior Court denying it an air pollution control permit to operate a medical waste incinerator because the operation will emit excessive levels of certain toxic substances. The parties opposing the permit are Conservation Law Foundation (CLF), Raymond Gonda, Timothy Kasten, Coca-Cola Bottling Company of New England, Inc., Seventh Generation, Inc., Little Red Wagon Daycare, Inc. and the City of Winooski. 1 Safety Medical Systems argues that the action of the Vermont Agency of Natural Resources (ANR), which granted the permit, was supported by the record and the applicable regulations and should have been affirmed. 2 Specifically, SMS argues that the ANR decision must be affirmed on theories of "de minimis" impact or offsetting benefits. 3 We affirm in part, and reverse in part.
In September 1989, Safety Medical Systems applied for an air pollution control permit to operate a medical waste incineration facility in Colchester. The facility includes two incinerators, each capable of incinerating 1,000 pounds of medical waste per hour. After further submissions, the application was deemed complete in July 1990. After a public hearing, ANR granted Safety Medical Systems' application and issued a permit.
The ANR decision was subsequently appealed to the superior court. While the appeal was pending, Safety Medical Systems completed the facility and gained all other required approvals. Because the permit contained a ninety-day waiting period between the time the facility was ready to operate and the date of first operation, Safety Medical Systems requested a remand to ANR to seek a permit modification. The remand was granted, and ANR held another public hearing, primarily on modifications to the permit. ANR reaffirmed its original decision but made three amendments to the permit, including elimination of the ninety-day waiting period. The matter again went to superior court, which, on Conservation Law Foundation's motion for summary judgment, held that ANR acted in violation of the applicable regulations in granting the permit.
The case is controlled by air pollution control regulations adopted by ANR pursuant to 10 V.S.A. § 554(2). 4 These regulations employ a three-step process to determine whether the emission of hazardous air contaminants will be authorized. For each hazardous air contaminant, ANR must first determine whether the emission rate will exceed the action level specified in the regulations for that contaminant. Vermont Agency of Natural Resources, Environmental Protection Regulations (EPR) § 5-261(1). If the emission does not exceed the action level, there is no further regulation of that contaminant. Id. If the emission does exceed the action level, the second regulatory step requires the source, in this case Safety Medical Systems, to use control technologies "to achieve the hazardous most stringent emission rate (HMSER)." Id. § 5-261(2). Finally, even if the second step is met, ANR may not issue a permit allowing the discharge of hazardous air contaminants "which cause or contribute to ambient air concentrations in excess of any Hazard Limiting Value." Id. § 5-261(3). The regulations contain hazard limiting values for each of the hazardous air contaminants. Id. Ch. 5 Appendix C.
According to the data supplied by Safety Medical Systems, the medical waste incinerator will emit cadmium, chromium, dioxin and nitric oxide at a rate that exceeds the action level for each contaminant. For example, the action level for chromium is 0.0000071 pounds per eight-hour period; the SMS incinerator will emit 0.000018 pounds of chromium in the same period. Because the SMS incinerator met the first step for regulation, ANR then found that Safety Medical Systems must use control technologies to achieve the most stringent emission rate (HMSER) for each of the contaminants. It further found that Safety Medical Systems proposed to use sufficient control technologies to meet this requirement.
The issue in this case arises with respect to ANR's handling of the final regulatory step dealing with the impact of the SMS incinerator output on ambient air concentrations of cadmium, chromium, dioxin and nitric oxide. As authorized by its regulations, ANR gave Safety Medical Systems the option of determining the actual ambient air concentrations at the site through a year of testing or of using preexisting data generated off-site for the four contaminants. Safety Medical Systems chose the latter option.
The only data for cadmium and chromium were collected at Randolph, Vermont between 1980 and 1985. For each contaminant, the data showed that the average level in the air exceeded the applicable hazard limiting value (HLV). No data were available for levels of dioxin or nitric oxide in the air in Vermont. The nearest place surveyed to determine ambient air levels of dioxin was in Connecticut. The Connecticut data registered levels of dioxin above the Vermont hazard limiting value. As for the lack of data on nitric oxide, ANR assumed that nitric oxide converts rapidly to nitrogen dioxide, so that existing levels of nitric oxide should be considered to be negligible.
ANR discounted the ambient air level findings for the four contaminants and issued the permit to Safety Medical Systems despite indications from the available data that the SMS incinerator would emit contaminants in excess of ANR's hazard limiting values. ANR did so because it found the amount of the emissions to be de minimis and because the addition of contaminants from the SMS incinerator would be offset by a greater reduction in emissions of those contaminants in other incinerator facilities. On remand, it added that the Randolph and Connecticut data were unreliable. The superior court rejected each reason. We agree with respect to the first two reasons but conclude that analysis of the third reason is flawed because of inadequacies in the record. We now treat these three points of contention in succession.
The superior court first found fault with ANR's application of a "de minimis" test when judging the impact of the increased ambient air concentration of the four contaminants against each contaminant's hazard limiting value. As part of the permitting process, ANR required Safety Medical Systems to show the extent to which its discharge would increase the ambient air level for each of the pollutants within 200 meters of the point of discharge. The results showed that the SMS incinerator discharges would increase the ambient air level of cadmium 3.3%; of chromium, 1.4%; of dioxin, 3.6%; and of nitric oxide, 0.6%. As noted previously, these increases were over and above existing concentrations which the data used showed to be in excess of the hazard limiting values. Nonetheless, based on the discharge test findings, ANR concluded that Safety Medical Systems's contribution to concentrations of contaminants would be de minimis so that "human health and safety is adequately protected." Then, as a first basis for its decision to grant the permit, ANR ruled that a de minimis violation of the prohibition on contributing to ambient air concentrations above a hazard limiting value was allowable.
Conservation Law Foundation argues, and the superior court accepted, that EPR § 5-261 can not be read to allow a de minimis violation. The crux of this position is that in the first step of the analysis, the comparison of the proposed discharge amounts to predetermined action levels, the regulations already determine when a discharge is significant enough to be considered. The superior court agreed and held that the regulations do not contain such a "de minimis" exception and that ANR therefore could not sustain granting the permit on this basis.
This issue involves a question of the proper interpretation of an agency's regulations. In interpreting regulations, our overall goal is to discern the intent of the drafters. In re Verburg, 159 Vt. 161, 164, 616 A.2d 237, 239 (1992). We employ a deferential standard of review of an agency's interpretation of its own regulations. See id. at 165, 616 A.2d at 239. Its interpretation may be overcome only by compelling indications of error. Id. (quoting Rogers v. Watson, 156 Vt. 483, 489, 594 A.2d 409, 412 (1991)).
We must view the hazardous air contaminant regulations as a whole. Id. at 165-66, 616 A.2d at 239. If they require that no discharge of a hazardous air contaminant shall cause or contribute to ambient air levels above a hazard limiting value, the ANR position would not be sustainable. To consider whether an emission is de minimis after it is known that the level of a contaminant in the ambient air exceeds a hazard limiting value is inconsistent with the structure and obvious intent of the regulation. Similarly, we have declined to read a de minimis exception into a zoning ordinance or the zoning enabling statute. In re Cumberland Farms, Inc., 151 Vt. 59, 64, 557 A.2d 486, 489 (1989). If the Agency wishes to include an additional de minimis exception, it must do so explicitly.
The superior court also found fault with ANR's reasoning that the discharge from the SMS...
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