[T]he Conservation Law Foundation this week asked to join a gas station owner’s lawsuit against the state over water pollution caused by reconstruction of a highway exit in Colchester.
The Agency of Natural Resources should not have given a stormwater permit to the Department of Transportation’s $10 million project overhauling Interstate 89’s Exit 16, Conservation Law Foundation attorneys argue in a motion filed Wednesday.
As designed, the project will add chloride and phosphorus to Sunnyside Brook, which is illegal under state law, said Chris Kilian, the director of the environmental advocacy group’s Vermont operation.
The Transportation Department is already polluting Sunnyside Brook with enough chloride from road salt that the waterway is listed as “impaired” under federal statute, CLF staff attorney Elena Mihaly wrote in the motion.
Runoff from the roadway also sends phosphorus into state waters, Mihaly said. Lake Champlain contains so much phosphorus that the federal government recently ordered Vermont to reduce those levels.
The changes to Exit 16 will only worsen these conditions by increasing and channeling storm runoff flowing into Sunnyside Brook, CLF argues. State law forbids sending any pollutants into state waters, and channeling water increases its velocity and further erodes streambanks, worsening existing water quality violations, Mihaly wrote.
CLF wants to join a legal action that Rodolphe “Skip” Vallee, owner of the Maplefields chain of gas stations and convenience stores, brought against the ANR in Vermont Environmental Court.
Vallee has been accused of bringing legal actions against Vermont agencies in an attempt to quash competition from Costco, which hopes to begin selling gasoline at its Colchester location near Exit 16. He has responded that it’s a matter of holding everyone to the same standards.
Vallee had asked the agency in June to require additional clean water permits from the Transportation Agency, claiming that existing runoff caused by the “Exit 16 corridor” violates federal clean water laws.
The agency declined to require the permits, and Vallee sued the agency Nov. 5.
The state’s missteps don’t end there, according to Kilian. Natural Resources Secretary Deb Markowitz has violated state law by failing to decide one way or the other on the petition within 90 days, Kilian said.
In her response to Vallee’s petition, Markowitz denies her agency improperly authorized the project’s stormwater plan, but she stops short of making a decision for or against what the petition seeks.
In part, Markowitz wrote, her refusal to make a determination on the petition stems from its failure to positively identify the Transportation Agency as the source of Sunnyside Brook’s chloride pollution. She also wrote that the brook suffers from enough pollution that the state in October listed it as “impaired,” meaning it will soon require a comprehensive pollution control regime known as a total maximum daily load, or TMDL, similar to what was enacted recently for Lake Champlain.
“Given the complexity of the request, the current stormwater controls in place in the watershed, and the absence of site-specific data regarding the potential pollutant contribution from each discharge site within the watershed, the agency is neither granting nor denying the petition at this time,” Markowitz wrote in her Oct. 5 response to Vallee’s petition.
Kilian said he doesn’t buy it.
“Sunnyside Brook has well-documented excess levels of chloride,” he said. “The state can’t issue a permit for anybody that would cause an increase in water standards violations, whether there’s a TMDL or not. It’s a total red herring.”
Kilian said Vallee raises substantive issues.
Vallee’s attorneys argued he would suffer as a result of the exit project. He owns property abutting Sunnyside Brook and would have to help reduce the phosphorus flowing into it if the Transportation Agency isn’t forced to control its own contribution to the problem, they argued.
Vallee’s attorney Jon Anderson, of Burlington-based Burak, Anderson & Melloni, did not return a call for comment on this story.
Agency of Natural Resources staffers hadn’t had time to fully review CLF’s motion Thursday, said agency general counsel Jen Duggan in an email.
The agency offered this statement: “The operational stormwater permit for the Agency of Transportation’s Diverging Diamond Interchange (DDI) at the I-89 Exit 16 corridor fully complies with the requirements of the Vermont Stormwater Management Manual, including the phosphorus removal standards. The operational stormwater permit also includes a chloride management plan submitted as part of the application. All new impervious surfaces proposed as part of the DDI construction project were taken into account when calculating the areas requiring treatment under the operational permit issued by ANR.”
Correction, Dec. 23, 10:32 a.m.: The chemical from road salt runoff is chloride, not chlorine as stated in an earlier version of this story.
