SJC will hear the Edgartown treatment plant discharge case

By Nelson Sigelman - February 9, 2006

After more than a decade of legal battles that have already cost the town of Edgartown almost $400,000 in legal fees, a dispute over a discharge permit issued to the Edgartown Wastewater Treatment Facility (EWTF) in 1999 (and since expired) is scheduled to be heard today by the state Supreme Judicial Court.

Boiled down, the legal arguments address the short- and long-term effects of treated wastewater, which contains nitrogen, that is discharged from the plant and eventually moves through the groundwater to end up in Edgartown Great Pond, especially in light of the amount of water the plant treats.

Opponents have argued that the state Department of Environmental Protection (DEP) was wrong to issue a five-year discharge permit in 1999, because the levels of nitrogen that would be introduced into the groundwater would be detrimental to the health of the pond.

The barrier beach that separates Edgartown Great Pond from the Atlantic Ocean is opened several times a year to allow an exchange of water. MV Times file photo

Representatives of the town and the state have said that the DEP met all of the applicable water quality standards in granting a permit to what is an award-winning state-of-the-art facility that is a benefit to the surrounding environment and the pond.

The SJC decided to take the case directly, rather than let it first go to an appeals court. Observers close to the case could only speculate as to the reasons why.

"It pleased and stymied us," said Jay Guest of Edgartown, one of the leaders of two ad hoc citizens groups that are appealing the permit. "At the same time we can't figure out why the SJC decided to take it."

Joe Alosso, wastewater plant manager, said he is also pleased that the case went straight to the state's highest court. He said bypassing the appeals court will save legal costs, and he speculated that the SJC expected to get the case and so decided to act sooner rather than later.

An appeal of a second permit issued in 2004 is currently on hold pending the outcome of the current case and the results of an estuary study now being completed by the Univ. of Massachusetts at Dartmouth.

Mr. Guest, a long-time opponent of town wastewater policies, heads up a 10-citizen group represented by attorney Michael Nuesse of Hingham.

The other group, Friends and Fishers of the Edgartown Great Pond is led by Michael Picciandra of Westport Point. The group is receiving free legal representation from attorney Doug Wilkins of Cambridge, a member of the Massachusetts Environmental Justice Assistance Network, a network of more than 100 attorneys, public health professionals, and environmental consultants, who provide pro bono assistance to groups throughout the state.

Explaining his involvement, Mr. Wilkins said that in his view this is an environmental case, and that the expressed goal of the court action is to limit discharge, and the expressed purpose is to limit nitrogen going into the pond. He said no one really knows how to bring a pond back once it has been severely damaged.

In a telephone conversation Monday evening, Mr. Guest said the plant should not be used to treat wastewater brought in from homes and businesses outside the approximately 5,000-acre Great Pond watershed. In his view, the plant is being used to allow developments that would not otherwise be permitted, or that would have to provide on-site wastewater systems.

Mr. Guest said he was encouraged by the recent publication of The Island Blue Pages, a guide to protecting Martha's Vineyard waters that was printed by a consortium of Island conservation groups to focus attention on water quality issues. He had no clear explanation for why these same local conservation groups have not publicly supported his efforts. Mr. Guest said that ultimately he would like to see DEP limit the amount of wastewater treated by the plant.

Attorneys for the Edgartown wastewater commission and the state Department of Environmental Protection (DEP) argue that the plant is not a main contributor of nitrogen to the pond and is in fact helping to improve water quality.

The town is represented by town attorney Ronald Rappaport of Reynolds, Rappaport and Kaplan, and Lisa Goodheart of the Boston firm of Sugarman, Rogers, Barshak & Cohen. The DEP decision will also be defended by Siu Tip Lam, an assistant attorney general from the office of Thomas Reilly, the Massachusetts attorney general.

In a summary of argument presented to the court, the state attorney general argued that DEP "considered the pond's nitrogen loading limits, the sources of the contribution of nitrogen, and the impact of future growth on the pond, and set conditions and limits that it reasonably concluded will ensure compliance with surface water quality standards."

Attorneys for the town argued that DEP "reasonably interpreted" its own regulations in issuing an unusually restrictive permit for the wastewater treatment plant.

The summary of argument stated: "By contrast, the citizen groups' competing interpretation of the regulations would lead to the absurd and unreasonable conclusion that the fragile condition of the pond forbids the operation of an award-winning, state-of-the-art, and much needed facility under terms and conditions that will in fact benefit the pond."

Nitrogen is an unavoidable component of the degradation of human and animal waste. Nitrogen is not in and of itself a toxic substance. But when elevated levels of nitrogen are discharged into a closed water system, the element triggers a process known as "eutrophication." In the process, nitrogen encourages algae growth, to the detriment of other life in the water, and the pond can eventually choke to death, metaphorically speaking.

The current Edgartown treatment facility, which went on-line in 1996, reduces nitrogen in the wastewater delivered to the plant by the town's sewer system to a level well below permit limits set by the DEP. The plant removes the nitrogen, as well as other pollutants and waste solids, without adding any chemicals to the wastewater.

Prior to current plant operations, the previous treatment facility, at the site until 1995, did not have the technology to remove nitrogen from the town's wastewater and did not have the capacity to deal with the rapid increases in wastewater loads that the town produced in the 80s and early 90s. Consequently, the old plant dumped treated but nitrogen-rich effluent straight into the groundwater of the pond's watershed.

Despite the fact that the citizens' groups are suing the town on current plant permits, they say the wastewater commission is responsible for the residual effects of the old plant's dumping, as well as the new plant's operations. They point to a "plume," or a large underground body of this nitrogen-rich water, that is slowly migrating toward the great pond. By current estimates, this nitrogen discharge by the current plant's predecessor will not fully drain out of the watershed until some time between 2011 to 2021.

Opponents to the EWTF also contend that, because the treatment plant discharges its currently clean effluent behind the plume, it makes the plume move more quickly toward the pond.