Long-Running Case Goes to High Court
Edgartown Wastewater Treatment Plant Under Legal Seige for Ten Years Over Its Discharge Permit
By IAN FEIN
A decade-long legal battle examining the environmental merits of the Edgartown sewer system and wastewater treatment plant came before the Massachusetts Supreme Judicial Court last week.
The court heard arguments on the case last Thursday and will likely issue a decision sometime this spring.
Brought by two citizen groups citing environmental concerns in the Edgartown Great Pond, the case challenges whether the Massachusetts Department of Environmental Protection (DEP) followed appropriate standards when it granted permits for the plant to discharge treated wastewater into the great pond watershed.
The Edgartown wastewater commission and the DEP, which are both listed as defendants in the case, argue that the plant is part of the solution - and not the problem - to water quality concerns in Edgartown ponds.
The legal battle has grown to become a long and costly fight for those involved. As of mid-December, prior to the most recent arguments before the state's highest court, the town had spent roughly $325,000 defending the plant's operation.
Cambridge attorney Douglas Wilkins, who is representing one of the citizen groups, said he took the case pro-bono through the Massachusetts Environmental Justice Assistance Network. He estimated that his work on the case over the last five years has cost tens of thousands of dollars.
Boston attorney Lisa Goodheart, who has assisted Edgartown town counsel Ronald H. Rappaport with the case since 1996, said this week that she believes the money in the case could have been better spent elsewhere.
"From my point of view, it's disappointing that in the name of environmental protection they're continuing to wage what is a very expensive battle against the town," Ms. Goodheart said. "If you're concerned about protecting Edgartown Great Pond, your energy would be better directed at limiting other sources of nitrogen in the pond."
Mr. Wilkins said he hopes that through the case the courts will require the DEP to regulate those other sources. "There are probably lots of ways for the department to protect the pond," Mr. Wilkins said. "And that's what we want."
The case challenges a five-year operating permit that was issued to the plant by the DEP in 1999 and has already expired, though the supreme court decision may also resolve a subsequent appeal of the most recent permit issued in April 2004.
The citizen groups have filed a series of lawsuits and appeals since the plant underwent a $13.5 million upgrade in 1996; to date all of the legal challenges have been found in favor of the DEP and town.
The state supreme court decided on its own accord last year to pluck the most recent appeal directly from a lower court's docket. Neither side knows why the court chose to take case, though the decision indicates that the case could have implications beyond Edgartown.
Ms. Goodheart said the case, as framed by the petitioners, could potentially affect other treatment plants in the commonwealth permitted by the DEP.
Massachusetts assistant attorney general Siu Tip Lam is representing the DEP in the case, and Hingham attorney Michael Nuesse is representing the second citizen group.
Once abundant in shellfish and herring, Edgartown Great Pond has in the last 15 years seen an overall decline in health.
The central issue in the case is nitrogen loading in the pond. Nitrogen is a natural byproduct of acid rain, fertilizers and wastewater, which feeds plant growth in ponds and chokes off other pond life such as eel grass and shellfish.
The citizen groups claim that the DEP failed to protect the pond's water quality when it allowed the treatment plant to discharge nitrogen - much of it sewered there from outside the watershed - into groundwater that will eventually make its way into the pond.
The town and DEP argue that the plant enhances overall water quality because it discharges lower concentrations of nitrogen than traditional septic systems.
Prior to 1973, wastewater in downtown Edgartown seeped into the ground through septic systems and flowed almost untreated into the harbor. To protect the harbor the town built the treatment plant off the West Tisbury Road in 1973 and sewered much of the densely built downtown area.
Nitrogen loading was not a hot-button issue at the time, nor was the technology well advanced for sewage treatment. First designed for primary treatment, the plant discharged wastewater with high concentrations of nitrogen. This nitrogen-rich effluent still lies in an underground plume, and is slowly making its way into the pond.
The town, after learning more about nitrogen impacts, spent $13.5 million to upgrade and renovate the plant in 1996, installing state-of-the-art denitrification capabilities.
Despite some complaints - particularly related to odors - the upgraded plant has been a success by most accounts. In 1999 the Edgartown plant received an award from the Environmental Protection Agency for having the best facility of its kind in the nation. The plant is designed and licensed to handle 750,000 gallons of wastewater per day; on its busiest summer days last year the flow peaked at roughly half that capacity.
The effluent now discharged by the plant has small traces of nitrogen - less than what is found in brand name bottled water, according to attorneys for the town.
The citizen groups - one of which is led by Hye Road resident Jay Guest, a frequent critic of the plant, and the other by Michael Picciandra of Westport Point - argue that the DEP should not have allowed the plant to contribute any nitrogen to the pond, no matter how small an amount. Mr. Wilkins said this week that because the plant is bringing in nitrogen from outside the watershed, and the DEP is not simultaneously regulating other sources nearby, the permit will likely result in overabundance of nitrogen in Edgartown Great Pond.
It remains unclear exactly what the citizen groups are seeking in the case - specifically, whether they want the treatment plant shut down. Possible solutions listed by Mr. Wilkins in his brief include limiting the plant's intake of sewage from outside the watershed, reducing its permitted discharge amount, and conditioning its permit to require regulation of other nitrogen sources.
The case relies heavily on a 1998 report drafted at the behest of the DEP by William Wilcox, water resource planner for the Martha's Vineyard Commission. Mr. Wilcox in the report found that acid rain is responsible for 45 per cent of the nitrogen in the Edgartown Great Pond watershed and septic systems add 35 per cent, while the treatment plant contributes only eight per cent.
Mr. Wilcox in the report estimated different scenarios of future growth in the watershed, and found that in the most probable scenario the treatment plant would not contribute to water quality violations, according to a brief authored by the town's attorney.
The report also recommended that the plant sewer some 300 houses within the watershed to limit nitrogen loading from their current septic systems.