State SJC finds for Edgartown in wastewater plant dispute

By Nelson Sigelman - June 8, 2006

In a ruling issued June 1, the state Supreme Judicial Court upheld on direct appeal a Superior Court decision in favor of a discharge permit issued to the Edgartown Wastewater Treatment Facility (EWTF).

The decision upheld none of the arguments made by lawyers representing two citizen groups led by Jay Guest of Edgartown and Michael Picciandra of Westport Point, both long-time opponents of town wastewater policies.

Boiled down, the legal arguments addressed the short- and long-term effects of treated wastewater, which contains nitrogen that is discharged from the facility 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 of the discharge permit, that has since expired, 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 court concluded in part: "There is no dispute that the waters of the Edgartown Great Pond are already stressed.... However, it was reasonable for the department to conclude that the substantially upgraded plant itself will not contribute to a condition in violation of the groundwater or surface water quality regulations if it remains within its allocated nitrogen discharge limit. Moreover, the possibility that the condition of the recharge area might change in fifteen to twenty years did not foreclose the agency's reasonable decision, based on scientific projections, to grant a discharge permit to the substantially upgraded facility, which contributes effluent that currently meets all of the applicable groundwater and surface water quality standards and will eventually enhance the over-all quality of the Pond."

The town was 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 was defended by Siu Tip Lam, an assistant attorney general from the office of Thomas Reilly, the Massachusetts attorney general.

Mr. Guest's 10-citizen group was represented by attorney Michael Nuesse of Hingham. Friends and Fishers of the Edgartown Great Pond, led by Mr. Picciandra received 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.

Lawyers for the town and the state 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 legal battle, which has dragged on more than a decade, began at the administrative level of the DEP and continued on through Superior Court up to the SJC. The victory cost the town approximately $400,000 in legal fees.

Mr. Rappaport said the decision was a "total win for the town" and recognition that the town and DEP have taken reasonable steps to protect the Edgartown Great Pond. "The court also recognized that the town has taken a series of other steps to protect the Great Pond, including three-acre zoning," he said.

Mr. Rappaport said the SJC decision provides a legal roadmap for a pending appeal of by the same group of a permit issued in 2004. "The town has spent an enormous amount of money in legal fees," he said, "and frankly that money could have been much better spent in taking steps to sewer additional areas and environmental enhancement measures."

Joe Alosso, wastewater plant manager, said he was very pleased with a decision that mirrored all of the other decisions handed down over the course of the long legal battle. He said he looked forward to continuing with a watershed approach designed to protect all of Edgartown Great pond. "Hopefully these types of lawsuits will stop and the taxpayers money can be used on better projects than just defending lawsuits that have no merit," said Mr. Alosso.

This week, Mr. Guest said he would not cease his legal and administrative assaults against the Edgartown Wastewater plant and town sewering policies irrespective of the ruling by the SJC. "That is just one of many battles in a war that will continue in order to protect the Edgartown Great Pond from nitrogen contamination from a wastewater treatment facility that continues to sewer outside its watershed," he said.

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. He expects an ongoing current study of the pond, as part of the Massachusetts Estuary Project, to bolster his long-standing arguments that the pond is in poor condition.

Mr. Guest argues that the correct approach would be to sewer only those homes and businesses with septic systems only with within and not outside the Great Pond watershed. He said that as long as the town is unwilling to arbitrate and open the issue to public debate he would continue to file lawsuits.

Mr. Picciandra called the SJC decision dangerous. "I think it is a dangerous precedent to allow a wastewater treat facility to destroy a pond," he said, "and I think the thing that bothers me the most is that DEP and the town are both aware of the problem and they don't seem to really care."

Mr. Picciandra said he and other fishermen were once able to earn a living from the pond. Today, he said that is impossible. "There was once thousands of dollars coming out of the pond and today there is nothing," he said. "That says to me something is wrong."

Mr. Picciandra said he is unconcerned with the legal cost incurred by town taxpayers or any resentment that might foster. "Personally I could care less what taxpayers of Edgartown think, I care about the fish," he said.

Mr. Picciandra said he plans to ask the SJC to reconsider its decision, an unlikely prospect. His next step, he said, is federal court.

Nitrogen is the focus

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 1980s 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.