Justices to decide lake case
By SUSAN ALLEN STAFF WRITER | March 18,2010
SOUTH ROYALTON – The battle over a permit for Montpelier's wastewater treatment plant – a skirmish that could impact every community that discharges treated water into rivers and streams feeding Lake Champlain – was waged during a special hearing Wednesday before the Vermont Supreme Court.
On one side were attorneys for the Conservation Law Foundation, who successfully sued in Environmental Court to have Montpelier's discharge permit thrown out, arguing it would allow the plant to release too much polluting phosphorous into the Winooski River and ultimately into Lake Champlain.
On the other side, attorneys for the state who defended the permit, and the Vermont League of Cities and Towns argued that municipalities are appropriately reducing their polluting discharge and shouldn't have to deal with the uncertainty of complex permit revocations.
The arguments were held in a large, filled-to-capacity hall at Vermont Law School before four justices.
Associate Justice Denise Johnson was home with the flu, but will listen to a recording of the hearing and help decide the case. Chief Justice Paul Reiber recused himself from the hearing and was replaced by Judge William Cohen.
No one, including the justices, disagreed that the lake is suffering from phosphorous pollution, which feeds and fuels large algae blooms in the water. Associate Justice Marilyn Skoglund called it a "despicable situation" at one point in the hearing.
It was also clear to all parties that the largest culprit for the overload of phosphorous in the lake is farm runoff and other so-called "nonpoint" sources of pollution – those that do not flow into the lake from a single point or pipe.
That's where the consensus ended.
CLF attorney Anthony Iarrapino argued before the court that Montpelier's permit would allow the city to discharge more pollutants into the water than is currently being dumped.
Here's how he arrived at that position: The city is currently allowed to discharge 4.3 metric tons of pollutants per year, an amount that was cut 25 percent under the disputed permit to 3.2 metric tons. But, Iarrapino said, Montpelier actually emits far less than the allowed amount (about 1 metric ton) – and the permit should reflect that by reducing the allowable amount even more than 25 percent.
If approved, the new permit would allow the city to emit three times its current pollution output, he said.
"It would allow 3.3 metric tons per year of actual pollution to come out of this pipe," he told the justices. Nonpoint sources of pollution are difficult to regulate, while sources like water plants are easier.
But two associate justices – Skoglund and Brian Burgess – appeared to wrestle with the concept that nonpoint sources of pollution like farms are causing the real problems, but point sources like Montpelier's water plant are forced to reduce discharge even further to compensate.
And, they asked, will every water treatment plant now have to go through this same lengthy process to get permitted?
"It's not only one tail wagging the dog, but it's many tails wagging one dog," said Burgess of all the various sources of phosphorous discharging into the lake. "They (municipal plants) could always pollute less, but it's not going to fix the (pollution) problem."
"We all hope nonpoint sources will improve," Iarrapino said.
"In 15 years it's gotten twice as bad as hoped," Burgess responded. He later added, "Each treatment plant is going to carry the entire burden of reducing pollution to Lake Champlain, yet they're never going to achieve it. You can't clean up Lake Champlain by cleaning up Montpelier, right?"
"I disagree with that," the attorney responded.
Skoglund speculated that the Environmental Court, in supporting CLF's call to revoke Montpelier's wastewater permit, was less concerned with the specific permit.
"The Environmental Court is just really unhappy with the (pollution standards)," she said.
Assistant Attorney General Michael Duane said the permit was appropriately issued to Montpelier. He said the city was reducing its allowable discharge by a significant amount – as have most municipal wastewater plants. He said if the Montpelier permit is sent back to the Agency of Natural Resources for review, the process of researching all the factors that play into phosphorous reduction to the lake and re-determining discharge levels would be onerous.
Will Dodge, an attorney for the Vermont League of Cities and Towns, said municipalities need a predictable permitting process. He said 11 communities have reduced their pollution output in recent years.
"Point sources are contributing less now than in 2002 when the (pollution output standards) came out," Dodge said.
The court will consider the case and issue a finding.