Supreme Judicial Court Soundly Upholds Town Sewage Plant Practices

By IAN FEIN

In a resounding victory for the town of Edgartown, the Massachusetts Supreme Judicial Court ruled yesterday that the Edgartown wastewater treatment plant is part of the solution - and not the problem - to water quality pollution in Edgartown Great Pond.

The decision upheld a 1999 Massachusetts Department of Environmental Protection permit that allowed the Edgartown plant to discharge treated wastewater into the great pond watershed. The plaintiffs in the case, two citizen groups citing environmental concerns, challenged whether the department followed appropriate standards when it granted the permit.

The state\'s highest court in its unanimous ruling acknowledged that wastewater has had a negative impact on the health of the pond, but found that the $13.5-million treatment plant upgrade will help restore it.

\"As the department concluded, and we agree, the pond will ultimately benefit from the operation of the upgraded facility,\" the Hon. Roderick L. Ireland wrote in the straightforward, 11-page decision.

\"We conclude that the correct legal standards were applied, and that the discharge permit comports with the agency\'s statutory mandate to protect the environment,\" Justice Ireland wrote.

The town wastewater commission and state department of environmental protection have weathered a series of court battles since the Edgartown plant was upgraded in 1996. To date, all of the legal challenges have been found in favor of the town, but yesterday\'s decision - which arose after the supreme court decided on its own accord last year to take the case for review from a lower court\'s docket - is by far the most significant.

\"It\'s been a long 10 years, and I\'m glad it\'s behind us,\" declared plant superintendent Joseph Alosso yesterday. \"The town of Edgartown should be proud of what it\'s done in building this facility. It\'s a cutting-edge plant, and I think this decision shows we\'re doing a great job of protecting the environment,\" he added.

\"This is a total, one hundred per cent victory for the town,\" said town counsel Ronald H. Rappaport, who has defended the town at every turn in the protracted legal battle. Mr. Rappaport said the court recognized that the town has taken steps, by upgrading the plant and adopting three-acre zoning, to protect the Great Pond and sensitive south shore areas. He also said bluntly that the nearly $400,000 in legal fees the town has incurred on the case could have been better spent elsewhere.

\"The money that has been spent on lawyers could have been much better spent on sewering additional areas within the watershed or helping to upgrade septic systems or other environmental enhancements,\" Mr. Rappaport said. \"That\'s what\'s too bad about this.\"

Because the case involves only state laws, the plaintiffs cannot appeal the latest decision into the federal courts. But they are pursuing a subsequent appeal of a 2004 discharge permit for the Edgartown treatment plant, which took effect after the expiration of the five-year permit granted in 1999. It is unclear what precedent the supreme judicial court decision will have over the 2004 appeal.

Hye Road resident Jay Guest, the leader of one of the citizen groups, said yesterday that he will continue to challenge the treatment plant through the courts. He suggested that new data from the Massachusetts Estuaries Project will show that the Edgartown Great Pond is in a more dire state than previously assumed.

\"This is just another skirmish in a battle that will be ongoing until both the town of Edgartown and the department of environmental protection create a prescription for protecting that pond,\" Mr. Guest said. \"We will have a lot more arrows in our quiver the next time we get into court.\"

Cambridge attorney Douglas H. Wilkins, who represented the other citizen group and took the case pro-bono through the Massachusetts Environmental Justice Assistance Network, and Massachusetts assistant attorney general Siu Tip Lam, who represented the department of environmental protection, could not be reached for comment yesterday.

Boston attorney Lisa C. Goodheart, who has assisted Mr. Rappaport with the town\'s defense since 1996, said the supreme court decision thoroughly deflated all of the arguments raised by the plaintiffs. \"It\'s a pretty comprehensive, conclusive and careful opinion,\" Ms. Goodheart said.

The ruling found that the historically healthy 890-acre Great Pond suffers from nutrient pollution of excess nitrogen, a natural byproduct that promotes plant growth in ponds but deprives the water and other species of necessary oxygen.

The town in 1973 built the original treatment plant off West Tisbury Road in an attempt to protect the Edgartown harbor, because sewage from downtown Edgartown previously flowed untreated into the harbor, but the treatment plant for the next two decades discharged high concentrations of nitrogen into the groundwater. The nitrogen-rich effluent, which still lies underground in a large plume, is slowly making its way into the Great Pond.

The supreme court decision this week acknowledged that the current condition of the pond is a result of nitrogen loading, but noted that the upgraded treatment plant, which was built in 1996, reduces the nitrogen concentration in its effluent by a factor of 10 - releasing three milligrams of nitrogen per liter, instead of the 30 milligrams discharged by the original plant. \"And, as the department and commission aptly point out,\" Justice Ireland wrote, \"this level of nitrogen in the plant\'s effluent equals that of bottled waters like Evian and Perrier.\"

The ruling also noted that the Edgartown plant has been lauded for its environmental efforts - receiving a first-place national award from the Environmental Protection Agency in 1999.

The supreme court in its decision deferred to the expertise of the department of environmental protection, and found that it had fulfilled its statutory obligation to protect water quality. The department relied heavily on a 1998 scientific study of the pond, drafted by Martha\'s Vineyard Commission water resource planner William Wilcox, which the superior court decision called a \"comprehensive and undisputed report.\"

Justice Ireland also dismissed the plaintiffs\' argument that, earlier in the appeals process, an administrative law judge erroneously excluded relevant evidence related to limiting additional sources of nitrogen to the pond.

\"The administrative law judge concluded, and we agree, that the testimony would have added little to the administrative record,\" Justice Ireland wrote. \"Because there was no denial of substantial justice, we will not disturb his evidentiary ruling.\"