Conservation Law Foundation Appeal Complicates Montpelier Wastewater Plant Upgrade Plans

by Phil Dodd

While Montpelier contemplates an upgrade to its wastewater treatment plant, the city’s wastewater permit—and those of six other Vermont municipalities—are being challenged in court by the Conservation Law Foundation (CLF), which believes the permits allow too much dissolved phosphorous to flow into an already polluted Lake Champlain.

A state permit issued to Montpelier in 2017, while substantially cutting the amount of phosphorous the city can send into the Winooski River compared with its prior permit, would still allow the city’s plant to more than double its phosphorous output from 2017 levels.

City officials say the potential upgrade would not by itself cause increased phosphorous to be discharged, but a CLF victory in the lawsuit could complicate the city’s planning for the proposed $16.1 million wastewater plant Phase 1 upgrade and the $3.6 million Phase 2 upgrade, cumulatively referred to as the “Organics-to-Energy” project. The city Council will be deciding in September whether to propose a bond for Phase 1.

“If a new permit had more stringent limits on phosphorous, that might affect upgrade plans, although that is not a foregone conclusion,” said Joe McLean, the attorney representing Montpelier in the case.

City officials say reducing phosphorous from current levels would be expensive. One estimate put the cost of upgrades needed to cut the plant’s phosphorous output in half at $24 million, according to City Engineer Kurt Motyka. But CLF attorney Elena Mihaly indicated her group is not pushing for that kind of change. “Capping phosphorous at current levels would be one way to do it,” she said.

A cap based on current levels would mean that as flows increase from new development, the City might have to implement the best available treatment technology at the facility, according to a July 27 report to the city from Energy Systems Group, which is advising the city on the project

“This increased level of treatment would be required regardless of the Organics-to-Energy project, as reliable treatment to these [phosphorous] levels could not be achieved with the current treatment process,” the report states.

However, both the report and Mihaly suggested that, if it was required to limit phosphorous to current levels, Montpelier could take other steps to control phosphorous output rather than making changes at the plant. Specifically, the city could limit stormwater flows into the river—another source of phosphorous pollution—by changing parking lots to permeable pavement or gravel, or using retention ponds.  Of course, there could be a hefty price tag associated with that work, too. But Motyka noted that CLF’s openness to this type of alternative means “it is unlikely that we will need a separate upgrade regardless of the outcome of this particular permit appeal.”

Phosphorous levels were a key component of a lake clean-up plan agreed to by the federal EPA and the state in 2016. The plan—known as “total maximum daily load” (TMDL)—lays out a roadmap of changes that need to take place in Vermont over the next couple of decades.

Lake Champlain has suffered from high phosphorous levels for many years. The lake periodically experiences algal blooms, obnoxious odors, and impaired aquatic life. The TMDL obligates Vermont to reduce phosphorous loads from various contributing sectors, including municipal wastewater treatment facilities.

The 59 wastewater plants in the Lake Champlain basin account for only a small percentage (3.9 percent) of the phosphorous going into the lake now, according to the TMDL. Larger contributors include agriculture (41.5 percent); stream bank erosion (20.6 percent); developed land, such as stormwater from impervious surfaces (18.1 percent); and forested land, including run-off from timber harvesting (16 percent).

The Foundation argues that even though wastewater plants are small contributors to the problem, no additional phosphorous should be allowed in the lake from wastewater plants until reductions are obtained from other sources, a process that could take many years to accomplish. “No one has a vested right to pollute,” said CLF attorney Mihaly.

The legal argument between CLF on the one hand, and the state and municipalities on the other, turns on whether state permits for wastewater plants can legally allow the wastewater phosphorous discharges envisioned in the final TMDL, or only when progress has been made eliminating phosphorous from other sources.

Wastewater plants should only be able to “increase phosphorous discharges if corresponding phosphorous reductions are demonstrably and reliably occurring,” CLF said in one of its briefs.  The Foundation  believes Montpelier’s permit “illegally authorizes increased actual discharges of phosphorous.”

The state Agency of Natural Resources, represented by the Vermont Attorney General’s office, says the permits—based on the maximum amount of phosphorous each plant can discharge when the TMDL is fully in place—are appropriate “unless and until” it is shown that expected reductions from these other sources are not materializing. At that point, reductions in the permit levels could be considered, it says. Assistant Attorney General Laura Murphy said the permit issued to Montpelier is legal and is authorized under the TMDL.

All parties to the Montpelier lawsuit agree on the facts, and both sides have filed motions for summary judgment. A hearing on the motions was held July 30, which means the judge could make a decision relatively soon.  Once a ruling is issued, however, there is the real possibility of an appeal to the Vermont Supreme Court, which might take up to another year to both hear and decide the case.

In any event, no one is expecting major improvements in Lake Champlain in the near future. In response to comments filed when the TMDL was proposed, the EPA stated: “Most of the implementation actions Vermont has committed to will take at least 10‒15 years to complete through the basin, so it is reasonable to assume that it will be at a minimum, 10‒15 years before changes should be expected to be seen in the lake.”

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