Sheffield Wind Project ( 2010 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 252-10-08 Vtec
}
In re Sheffield Wind Project }
Amended Individual Stormwater Permit } Docket No. 252-10-08 Vtec
(No. 5535-INDC.A) }
(Appeal of Brouha et al.) }
}
Decision and Order on Motion for Stay
The Court issued a decision on August 26, 2010, approving an amended
individual construction stormwater discharge permit; this permit is applicable only to
the period during construction of the Sheffield Wind Project (the Project) in Sheffield,
Vermont.1 Appellants moved for reconsideration of that decision. While that motion
was pending, Vermont Wind proceeded with the logging work that the Court had ruled
was not governed by the individual construction stormwater permit, and began
construction of the project. Appellants have now moved to stay construction of the
project pending the Court’s ruling on the motion for reconsideration and pending
Appellants’ filing of an appeal to the Supreme Court. If the motion for stay is denied,
Appellants request the Court to “at least require more frequent and unannounced
inspections by ANR” and to “order First Wind and ANR to continue to disclose to
Appellants all documentation of activities at the site, including changes to the EPSC
Plan.”
Appellants are represented by Stephanie J. Kaplan, Esq., and Jared M. Margolis
1
The permitting status quo of this project is that it holds other permits and approvals
from the Public Service Board and the Vermont Agency of Natural Resources (ANR)
that were not appealed, including the ANR’s approval of the project’s operational
stormwater discharge management system.
1
Esq.; Appellee-Applicants Signal Wind Energy, LLC and Vermont Wind, LLC (referred
to in the singular as “Vermont Wind” or “First Wind”) are represented by Ronald A.
Shems, Esq., Andrew N. Raubvogel, Esq., Geoffrey H. Hand, Esq., and Elizabeth H.
Catlin, Esq. The Vermont Agency of Natural Resources (ANR) is represented by Judith
L. Dillon, Esq.
Vermont Wind, LLC proposes to construct and operate a wind electrical
generating facility (the Project) on property on Granby Mountain and Libby Hill in
Sheffield, Vermont, near the headwaters of small unnamed tributaries of Calendar
Brook, Nation Brook, Annis Brook, Willoughby Brook, and Clark Brook.
The Project consists of an array of sixteen wind turbines, each located on a
concrete pad, along a 16-foot-wide access roadway. The project also includes a
permanent meteorological tower, which appears on the project plans and narrative but
was not specifically at issue during trial. During construction, the access roadways will
be constructed to the 25-foot width necessary for crane access for the equipment used to
erect the wind turbine structures; at the conclusion of the need for crane access, the
Project’s permanent roadways will be reduced to the 16-foot width by seeding and
mulching the areas outside that width.
An electrical substation and a small operations and maintenance building are
also proposed as part of the Project. They are located on the lower portion of the
property, on either side of the project access road, near the public roadway. Electricity
will be conducted by underground and above-ground transmission lines from the
turbines down to the electrical substation. The Project is located adjacent to and will tie
into an existing VELCO electrical transmission line. The overall property on which the
Project is located consists of approximately three thousand acres leased from
Meadowsend Timberlands, some of which has been logged in the past. The Project is
proposed to follow the path of existing logging roads and to use already-cleared areas
2
to the greatest extent possible.
The permanent operational stormwater system for the project was approved in a
separate permit and was not appealed. This consists of a system of berms, channels,
check dams, detention ponds, and other stormwater control features designed to direct
and slow the flow of stormwater from the site, to prevent sediment and contaminants
from reaching streams.
As described more fully in the August 26, 2010 Decision and Order, in the
present application for approval of an erosion prevention and sediment control plan to
control discharges due to stormwater during the construction of the project, Applicant
proposed to construct and install the permanent stormwater control features approved
for the project’s operation in advance of construction of each segment of the project that
would drain into those features. In addition to these permanent engineering features,
Applicant proposed temporary features, such as silt fencing, and proposed a series of
methodologies to minimize the risk of erosion and sediment transport during
construction, including limitations on the construction area open at any time,
limitations on the length of time an area may remain open, and monitoring techniques
that require additional measures to be taken, including stopping construction, if
sediment in stormwater runoff is not successfully controlled using the required
engineering features and other techniques.
Standards for Issuing a Stay
Under V.R.E.C.P. § 5(e), when a stay is not automatically issued under 10 V.S.A.
§ 8504(f)(1), the Court, on its own motion or the motion of a party, may issue a stay to
preserve the rights of the parties “upon such terms and conditions as are just.” The
3
present case is not automatically stayed under the provisions of 10 V.S.A. § 8504(f)(1)2,
nor is it an appeal of a municipal land use or zoning permit subject to an automatic stay
under 24 V.S.A. § 4449. Appellants also did not request a stay of the ANR-issued
permit during the twenty-two months that the ANR-issued permit was in effect and the
litigation was pending before this Court.
Appellants’ current motion for an emergency stay now seeks to stay the permit
as issued by the Court, first, during the pendency of Appellants’ motion to alter under
V.R.C.P. § 59(e) and, if that motion is denied, pending the outcome of their appeal to the
Supreme Court.
To prevail on a motion for a stay, the movant must demonstrate: (1) a strong
likelihood of success on the merits; (2) irreparable injury if the stay is not granted; (3)
that the stay will not substantially harm other parties; and (4) that the stay will serve the
best interests of the public. Gilbert v. Gilbert, 163 Vt. 549, 560 (1995). Appellants must
demonstrate all four of these elements for the stay to be granted. See In re: Champlain
College, Inc., Docket No. 145-7-05 Vtec, slip op. at 2 (Vt. Envtl. Ct. Apr 17, 2007)
(Wright, J.); In re: Route 103 Quarry, Docket No. 205-10-05 Vtec, slip op. at 3 (Vt. Envtl.
Ct. Sept. 14, 2007) (Durkin, J.) aff’d In re: Route 103 Quarry, 2008 VT 88, 184 Vt. 283(citing Gilbert v. Gilbert, 163 Vt. 549, 560 (1995)). Under V.R.A.P. § 8(b), the granting of
a stay pending the outcome of an appeal to the Supreme Court may be conditioned
upon the filing of a bond with the trial court. Similarly, under V.R.E.C.P. § 5(e), the
Court may require Appellants to post a bond, under its authority to “make such other
orders as are necessary to preserve the rights of the parties.” Vermont Wind has
requested that the Court require such a bond in the event that the requested stay is
2
With regard to appeals from decisions of the ANR, 10 V.S.A. § 8504(f)(1) provides for
an automatic stay only in appeals of stream alteration permits and shoreline
encroachment permits. Section 8504(f)(1) also provides for automatic stays in appeals of
the denial of interested person status by a municipal panel. Otherwise, permits that
have been appealed are in effect unless the Court grants a stay under § 8504(f)(2).
4
granted.
Appellants have not demonstrated a strong likelihood of success on the merits.
or irreparable injury if the stay is not granted. The Court’s August 26, 2010 Decision
carefully analyzed all of the issues remaining in this appeal after trial, and concluded
that the issuance of the construction stormwater permit, substantially as it had been
issued by the ANR, was warranted. Although the Court’s ruling on the pending
motion for reconsideration may result in clarification or further analysis of certain
issues, it is not likely to result in a different outcome on the merits of the construction
stormwater permit.
Appellants have not demonstrated irreparable injury if the stay is not granted.
Given that the permanent unappealed stormwater features are incorporated into the
construction stormwater permit, the question is whether irreparable injury will result
during construction due to the temporary stormwater features and iterative monitoring
and adjustment process that appear in the permit on appeal. Based on the extensive
evidence as to how these features are designed to work during construction, and the
iterative process in which adjustments are made in the field if problems arise,
irreparable injury such as a catastrophic failure of the stormwater features is not likely
to occur.
Unlike a project that has been denied a permit and in which an applicant has
appealed, or even a project that has been granted permits but for which all the required
permits are within the scope of the appeal, in the present case the project holds all of its
required permits, and only its individual construction stormwater permit is the subject
of this appeal. That is, the “status quo” against which the Court must assess the motion
for stay is that the project holds unappealed permits allowing the project, including the
operational stormwater permit containing the stormwater detention ponds and other
features to manage stormwater after the project is built. Applicant has shown that a
stay of construction at this time would substantially harm it financially. Such harm
5
would not, of course, be irreparable, but could warrant a bond under V.R.A.P. 8 if a stay
were to be granted.
Finally, Appellants have not shown that the best interests of the public warrant a
stay. The project holds its required permits so that its existence is not at issue in this
appeal. The permit at issue in this litigation only governs the protection of the public
interest in the surrounding streams during construction. Based on the evidence
presented at trial, the Court is convinced that the best interests of the public require
strict adherence to the terms of the permit during construction, but do not warrant the
imposition of a stay.
Accordingly, based on the foregoing, Appellants’ motion to stay construction is
DENIED. Due to this decision, it is not necessary to address Vermont Wind’s request
for the posting of a bond. The Court will address the pending motion for
reconsideration as soon as possible.
Appellants’ request for continuing disclosure of documentation
As explained by the Vermont Supreme Court, during the pendency of litigation
the Legislature exempted disclosure of public documents relevant to the ongoing
litigation, reserving decisions regarding such disclosure to the trial judge in the pending
litigation to avoid giving litigants “an unwarranted advantage . . . in litigation with the
government.” Wesco, Inc. v. Sorrell, 2004 VT 102, ¶¶ 17–22, 177 Vt. 287 (quoting
Killington, Ltd. v. Lash, 153 Vt. 628, 646 (1990)). However, no further evidentiary
hearing will occur in the present litigation; it will be out of the purview of the trial court
as soon as the motion for reconsideration is addressed. As in this Court’s decision in
Agency of Natural Resources v. Mountain Valley Marketing, Inc., et al. , Docket Nos.
Docket Nos. 41-2-02, 278-12-02, 176-8-02, 175-8-02, Decision and Order on Motion to
Compel, slip op. at 3 (Vt. Envtl. Ct. July 7, 2003) (Wright, J.), to facilitate Appellants’
rights to monitor the implementation of permits in which they have a legitimate
6
interest, they are entitled to any information that would have been available to them
under Vermont’s Access to Public Records law had this litigation not been pending. In
particular, Appellants should be given (or be given access to) documentation of any
changes to the EPSC Plan made in the field during the construction process; such field
changes are specifically provided for in the permit. The parties shall comply with
V.R.C.P. 26(h) before bringing any further problems with such disclosure or access to
the attention of the Court.
Done at Berlin, Vermont, this 17th day of November, 2010.
_________________________________________________
Merideth Wright
Environmental Judge
7