[O]n the second day of Vermont’s official Clean Water Week, the Agency of Natural Resources found itself in court defending permits it issued to a class of Lake Champlain polluters that has received unflattering attention this summer: municipal wastewater treatment plants.
The Conservation Law Foundation has appealed nine permits issued by the ANR to treatment plants in Montpelier, Alburgh, St. Albans, South Burlington, Hinesburg, Shelburne and Williamstown.
Six of the permits allow towns to increase the amount of phosphorus they release into the lake, according to a motion filed by CLF.
“This case is the latest in a long string of cases before this court that have to do with the phosphorus pollution crisis in Lake Champlain,” said CLF attorney Elena Mihaly at an environmental court hearing on Monday for summary judgment on the permits.
She said the permits are contrary to the “fundamental principles of ecology and common sense on which the (clean water) act is based,” and were the latest example of the state not meeting its obligation to reduce phosphorus being loaded into Lake Champlain.
“This summer has been one of the hottest summers on record,” said Mihaly, “and when people are going to their favorite beaches to go swimming, they’re being met with signs that say ‘sorry, the hazards for health are too high because of these phosphorus driven blue-green algae outbreaks.”
The state of Vermont is tasked with enforcing the federal Clean Water Act, which includes a requirement to issue permits for wastewater treatment plants and other sources of “point source pollution.”
CLF sued the EPA in 2008 to set stricter limits for phosphorus runoff — a major cause of cyanobacteria blooms — into Lake Champlain. The EPA required Vermont to issue a new plan, called a total maximum daily load (TMDL), that sets lower phosphorus levels from wastewater treatment facilities and other contributors to lake pollution, including farms and developers.
Wastewater treatment plants contribute an estimated 3 percent of total phosphorus pollution into the lake, according to the TMDL.
The phosphorus limits, or “wasteload allocations,” laid out in the TMDL are predicated on significant nutrient reductions from non-municipal polluters, Mihaly said.
“That’s what this case is about, is making sure that we don’t authorize permits that allow for increases of actual discharges,” she said.
“So if ANR is allowed to go forward with this flawed interpretation of the clean water act in allowing more phosphorus into the lake, when we apply that to all 50 permits … that would amount to an additional 45,000 pounds of phosphorus into Lake Champlain per year,” she said.
The state’s attorney, Laura Murphy, argued before Judge Thomas Durkin that the state only has the authority to decide on the legality of the permits, not how they contribute to the broader problem. “The only question in this case is whether these permits comply with the Clean Water Act,” she said.
Because the state used wasteload allocations outlined in the EPA-approved TMDL for the permits, she argued, the limits do not violate the act.
Murphy agreed with CLF that the the phosphorus limits set for wastewater treatment plants in the TMDL are contingent upon reduced phosphorus from other polluters. But she said the EPA acknowledges in the revised plan that those reductions will not happen overnight.
So the waste load allocations are appropriate “unless and until we’re not seeing adequate progress in the other sectors,” Murphy said. “CLF is asking the court to read into the TMDL assumptions that simply are not there.”
CLF attorney Chris Kilian, who has filed over 20 lawsuits against the EPA, the state and individual polluters related to cleaning up Lake Champlain, did not hide his exasperation at once again finding himself in court over phosphorus pollution.
“We’re all, I’m sure, everyone in the room, invested in this TMDL, and the implementation plan that ANR has crafted, working,” he said. “I know I am. It has to work.”
The state has missed multiple clean water milestones, said Kilian, including failing to establish a long-term clean water funding source, as evidenced by the provisional pass the state received in its report card from the EPA this April.
Murphy responded that the state and Legislature have made progress on all Lake Champlain TMDL milestones, citing a law passed last session requiring ANR Secretary Julie Moore to write permit rules requiring developers to abate runoff from parking lots covering three or more acres.
Attorneys for St. Albans and South Burlington argued that the towns have made significant progress in reducing phosphorus pollution from stormwater runoff and other sources.
Mihaly said that these efforts show how capable municipalities are of coming up with innovative ways to reduce pollution. “There’s no right to pollute just because you have a wasteload allocation that allows you to do so,” she said.
Judge Durkin, who acknowledged earlier in the hearing that the state of the lake was a “grave concern” overshadowing the permit dispute, reminded all parties at the close of the hearing that he must adhere “narrowly to the law” in his decision.
He advised representatives from CLF, the state, and towns present in the courtroom to continue talking to reach a compromise on the permits that might avoid future litigation.
“You folks can get a whole lot more creative,” he said.
