Thursday, July 9, 2009

Environmental Court vacates Montpelier Waste Water Plant's Clean Water Act Permit

The Burlington Free Press reports on Environmental Court Judge Durkin's June 30, 2009 decision granting the Conservation Law Foundation's (CLF) motion for summary judgment and vacating the Clean Water Act discharge permit for the waste water treatment facility in Montpelier. The decision could impact 60 other similar permits held by other waste water treatment facilities that must be renewed in the near future. [Disclosure: SDRS represents the City of St. Albans in the CLF appeal against the St. Albans waste water treatment facility]. The June 30th decision is the most recent in a series of Judge Durkin decisions rejecting the Agency of Natural Resource's administration of the Clean Water Act as it pertains to cleaning up Lake Champlain.

The decision has several key aspects:

  1. In reviewing ANR's interpretation of the Clean Water Act regulations promulgated by the Environmental Protection Agency, but administered in Vermont by ANR, Judge Durkin determined that deference to EPA and ANR's interpretation of the Clean Water Act regulations is not warranted.

  2. ANR's process to adopt a water quality effluent limitation for phosphorus for the waste water facility based solely on the total maximum daily load (TMDL) set for the main section of Lake Champlain for phosphorus violates the Clean Water Act. The facts of the case show that ANR adopted the permit without analysis of the historical discharges for the Facility, improvements that may be had through advances in technology, offset opportunities within the applicable watershed, the levels of phosphorus currently entering the watershed from other sources, or whether this particular discharge will cause or contribute to a violation of water quality standards.

  3. The Clean Water Act regulations require that before issuing a permit ANR must analyze whether past TMDL assumptions have some impact upon the discharge application being considered. The facts of the Montpelier case show that ANR issued the permit without first reviewing whether the numerous assumptions contained in the Lake Champlain TMDL were still accurate.
What happens next is not exactly clear. The Environmental Court vacated the permit and remanded the case back to ANR. One option is that ANR can restart its review of the permit application and attempt to reissue a permit consistent with the June 30th decision. Another possibility is that Montpelier and ANR can seek to pursue an interlocutory appeal of the Environmental Court's decision to the Vermont Supreme Court.