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.