Judge Finds No Pollution Threat at Plant

By ALEXIS TONTI

Marking one more win for the town of Edgartown in a long running
legal battle, a superior court judge this month ruled that discharge
from the municipal wastewater treatment plant does not threaten the
water quality in the Edgartown Great Pond.

The Hon. Joseph M. Walker 3rd, an associate justice of the superior
court, rejected a challenge to the Edgartown wastewater treatment
plant's operating permit, which was granted by the Massachusetts
Department of Environmental Protection (DEP) in 1999.

The ruling was issued Sept. 1.

The superior court case was an appeal of a decision by an
administrative law judge that upheld the 1999 permit.

Several citizen groups have been fighting for more than eight years
to stop the treatment plant's operation, citing environmental
concerns associated with groundwater discharge. The opposition came in
the form of challenges to two separate operating permits. The first
challenge was to a temporary permit issued by the DEP in 1996; the
second was to a five-year permit issued in 1999.

The previous decision by the administrative law judge relied heavily
upon a report drafted by Bill Wilcox, water resources planner for the
Martha's Vineyard Commission. Judge Walker also gave credit to the
MVC study, which concerned the effects of nitrogen loading on Edgartown
Great Pond.

"This court finds no reason to substitute its judgment for the
obvious expertise evident in the Wilcox study and report, or for the
studied judgment rendered by the [administrative law judge] and the
DEP," Judge Walker wrote in the 14-page ruling.

Mr. Wilcox found that acid rain contributes 45 per cent of the
nitrogen to Edgartown Great Pond, while septic systems account for
roughly 35 per cent. Another 14 per cent of the nitrogen is contributed
by area farms, while lawns and gardens contribute three per cent.

The wastewater treatment plant accounts for only eight per cent of
the pond's nitrogen, according to the report.

"Based on the record, ‘substantial evidence'
supports the DEP's decision that operation of the new wastewater
plant under the terms of the permit will, in fact, enhance the overall
water quality at [the Edgartown Great Pond] because the plant, itself,
discharges lower concentrations of nitrogen, and affords the opportunity
for a significant number of man-made pollution sources, that is to say,
watershed area septic systems, to be removed as a significant nitrogen
source," Judge Walker wrote.

"This decision says to the town that the wastewater treatment
plant is operating as it should within strict environmental
constraints," Edgartown town counsel Ronald H. Rappaport said
yesterday.

"A superior court judge as well as an administrative law judge
as well as a study undertaken by the Martha's Vineyard Commission
- every regulatory agency that has looked at it - says this
is a good plan, and we are grateful to have the superior court agree
with that," Mr. Rappaport said.

The litigation has cost the town more than $100,000 in legal
expenses.

The case initially came about after the new wastewater treatment
plant began operating in 1996 under a temporary permit granted by the
state DEP.

At the time officials were grappling with fresh evidence of a
nitrate plume flowing toward the Edgartown Great Pond. Although the old
plant did not have denitrification capabilities - and was known to
have contributed in some degree to the nitrogen loading in the pond
– the upgraded plant was designed to minimize the nutrients being
discharged.

But a group of neighbors argued that the new plant was funneling an
excessive amount of nitrogen into Edgartown Great Pond and challenged
the temporary permit.

While that case was advancing through the courts, the state in 1999
granted a new five-year permit to the plant, prompting the same citizen
groups to initiate another challenge.

The Massachusetts Appeals Court threw out the challenge to the
temporary permit this past January.

The superior court decision on the five-year permit can be appealed
to the Massachusetts Appeals Court.

The Edgartown treatment plant is designed and licensed to handle
750,000 gallons of wastewater a day. At peak times in the summer, flow
hits a high around 400,000 per day.