Court rejects Montpelier's pollution permit

07/08/09 5:50PM By John Dillon
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(Host) A judge says the state was wrong when it allowed the city of Montpelier to more than double the amount of phosphorus pollution it could release from its sewage treatment plant.

The Environmental Court said the state's plans to clean up Lake Champlain are not working - and that additional pollution limits may be required.

VPR's John Dillon reports:

(Dillon) The court tossed out a pollution permit for Montpelier's sewage plant. The plant empties into the Winooski River, which flows west to Lake Champlain.

The waste contains phosphorus, a nutrient that feeds the toxic algae blooms in the big lake.

And Judge Thomas Durkin focused his decision on the health of the lake. He said - quote - "it appears to be undisputed that efforts to control or reduce phosphorus have not yet been successful."

(Iarrapino)  "The judge is saying that permits that allow an increase of pollution under these conditions violate the Clean Water Act."

(Dillon) Anthony Iarrapino is a lawyer with the Conservation Law Foundation, which challenged the Montpelier permit.  

He says the Agency of Natural Resources wanted to allow Montpelier to double the amount of phosphorus from the plant.

But the judge ordered the state to analyze whether additional pollution controls are needed.

(Iarrapinio) "And they have to go back and write a permit that's based on actual water quality and pollution loading conditions today. They can't just focus on wildly optimistic assumptions that are more than seven years old.'

(Dillon) The court's ruling only directly affects the Montpelier permit. But it has implications for municipal sewage treatment plants throughout the Lake Champlain basin.

That's because when it wrote a clean up plan for the lake in 2002, the state targeted the biggest source of phosphorus - run-off from farm fields and city streets. At the same time, the state planned to let sewage treatment plants release more phosphorus.

Durkin's ruling appears to challenge that strategy. Anthony Iarrapino:

(Iarrapino) "This is about more than just Montpelier. This is about a flawed methodology by the Agency of Natural Resources that is a violation of the Clean Water Act. And this case will apply to every permit that is based on that deeply flawed methodology."

(Dillon).The state Natural Resources Board sided with the Agency in the case. Attorney Mark Lucas disagreed with the judge's decision. Lucas says the ruling centers too much on the overall lake cleanup plan that lawyers refer to as TMDL, for total maximum daily load.

(Lucas) "We're concerned that the decision focuses on the Lake Champlain TMDL rather than the permit at issue. If the concerns are about the TMDL then that should be appealed in the proper forum. And in fact, CLF has appealed the Lake Champlain TMDL in federal court right now and they're litigating against the EPA on that issue."

(Dillon) The city of Montpelier and the Agency of Natural Resources have not decided whether to appeal Durkin's decision. Agency Secretary Jonathan Wood said in a prepared statement that the Montpelier permit fell within the pollution plan allowed by the state and the U.S. Environmental Protection Agency. Wood said the state has spent $80 million so far to clean up the lake and that it -quote - "seems unreasonable to dismiss that effort."

For VPR News, I'm John Dillon in Montpelier.

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