Wastewater permit tossed out by judge
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BY Louis Porter VERMONT PRESS BUREAU - Published: July 9, 2009
MONTPELIER — In a repudiation of the state's handling of wastewater treatment plant permits, an environmental court judge has tossed out an approval granted to the Montpelier facility.
Judge Thomas Durkin, appointed by Gov. James Douglas, ruled that the Agency of Natural Resources had not done enough analysis of the impact of the plant on Lake Champlain before granting a permit renewal to the city.
"Stricter permit limitations may be needed," said Durkin, to reach the state goals for cleaning up Lake Champlain, which receives nearly twice as much phosphorous pollution as it would under those goals.
Phosphorous in Lake Champlain causes algae blooms, decreased oxygen and other problems.
The ruling in the suit, brought by the Conservation Law Foundation against the state, will have little immediate effect on Montpelier. The city will likely be able to keep operating its plant as the ruling is appealed to the Vermont Supreme Court or, barring that, as the analysis and study required by Durkin is undertaken by the state.
However, there are significant potential long-term implications for all wastewater treatment plants that discharge into the Lake Champlain watershed — which includes two-thirds of the state and the majority of Vermont cities from Rutland to Burlington.
That's because if the amount of phosphorous allowed into Lake Champlain from each wastewater plant under the Total Maximum Daily Load allowed (or TMDL rules) must be completely reviewed every five years when those permits come up, it could require large and expensive upgrades of those plants.
Montpelier City Manager William Frasier said that although it is the city's permit renewal at issue in this case, the real disagreement is between the state and the Conservation Law Foundation.
"We are kind of caught in the middle," Frasier said.
"If the result was that we need to process to a much higher standard to reduce phosphorous, unless there is state or federal funding, it could be quite a costly endeavor," he said. And it would not just be Capital City.
"I don't think it is unique to Montpelier," he said. "If that becomes the requirement, it will be for all municipalities."
Christopher Louras, the mayor of Rutland, another city with a wastewater plant in the Lake Champlain watershed, agreed.
"It is going to take a few days for us to digest the entire decision and see how it could impact Rutland going forward," he said. "If we are put in the position of having to do it, there are other things we could not do. That would be millions of dollars, potentially tens of millions of dollars that would not be spent on our antiquated sewage collection infrastructure."
Anthony Iarrapino, a lawyer for CLF, the environmental group that challenged the permit approval by the Agency of Natural Resources, said that Montpelier's wastewater plant was incidental to the real problem.
"This is not about one polluter. This is really about a deeply flawed permitting process at ANR that violates the Clean Water Act," he said. As for ANR's strategy of going after agricultural runoff, storm water runoff and other "non-point" sources of pollution, those need to be addressed as well, but not at the cost of ignoring wastewater plants, he said.
"The lake doesn't care about what the source of the pollution is. If we are over the target, we are over the target," Iarrapino said.
Agency of Natural Resources officials said they were under some constraints about what they could say, given that litigation may be still underway and because they are still reviewing the decision issued a week ago.
"We are still reviewing what it means," ANF Secretary Jonathan Wood said. But state officials are worried about what the decision could mean for municipalities and treatment facilities.
"That is a huge concern for us, what are the implications for that," Wood said.
"We think we are doing the right thing" he added.
He said the agency has not yet determined if it will appeal the decision.
The agency issued a written statement from Wood as well.
"The TMDL is a plan approved by U.S. Environmental Protection Agency to clean up phosphorus in Lake Champlain," Wood said in that statement. "The permit that we issued to Montpelier fell within the approved waste load allocation of the TMDL."
But Durkin in his decision seemed almost to anticipate that response. The Clean Water Act, the federal law that ultimately governs discharge permits for wastewater plants, does not mean that as long as the TMDL is met nothing else must be done to curb phosphorous pollution of the lake, Durkin wrote.
"As with budgetary decisions made every day, the imposition of one maximum (such as a credit line) does not mean that no additional limits are needed," Durkin wrote. In fact, the goal of the Clean Water Act was to eliminate those discharges entirely, not limit their growth, he noted.
Continuing his financial analogy, Durkin said treating the TMDL as the only necessary limit on pollution was like the banking crisis, "which appears to have been brought on in part by a practice of banks, creditors and debtors all concluding that the appropriate level of personal debt should equate to the maximum allowed levels of debt," Durkin wrote.
In his statement Wood said it does not make sense to give up on the agency's strategy.
"We are halfway through implementing the federally approved plan and have invested thousands of staff hours and more than $80 million," Wood said in his statement. "It seems unreasonable to dismiss that effort at this point."
But the court does not — and cannot — take into consideration how much complying with the law will cost the cities or the state, Durkin wrote in his decision.
"The decision that Congress made when it passed the Clean Water Act was that water quality takes priority over all other considerations, no matter how legitimate those considerations may be," Durkin wrote. "The costs — or even the feasibility — of such measures are not proper for our consideration."
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