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.\"