COMMONWEALTH OF MASSACHUSETTS

DIVISION OF ADMINISTRATIVE LAW APPEALS

Docket No. 2000-091
DEP File No. 0-677



In the Matter of TOWN OF PLYMOUTH


RECOMMENDED FINAL DECISION

Appearance for Petitioners:

Eel River Watershed Association, Ltd. and Mettie Whipple:

Anne Bingham, Esq.,

59 Pond St., Suite A, Sharon, MA 02067


Appearance for Applicant

Town of Plymouth:

John W. Giorgio, Esq., George X. Pucci, Esq., and Jason R. Talerman, Esq.,

Kopelman & Paige, P.C., 31 St. James Ave., Boston, MA 02116-4102


Appearance for Intervenor

Ten Citizens Group [fn. 1] ):

Laurien Enos

80 Russell Mill Rd., Plymouth, MA 02360


Appearance for Respondent

Department of Environmental Protection:

Rebecca Cutting, Esq., Senior Counsel, and Richard Lehan, Esq., Deputy General Counsel,

Department of Environmental Protection, Office of General Counsel,

1 Winter St., 3rd Fl.,

Boston, Ma 02108


Administrative Magistrate:

Mark L. Silverstein, Esq.


Summary of Decision

Appeal by petitioners Eel River Watershed Association, Ltd. and Mettie Whipple challenging the Department of Environmental Protection's issuance, on May 26, 2000, of a permit pursuant to M.G.L. c. 21, §§26-53 allowing the discharge of treated effluent to groundwater by the Town of Plymouth's municipal wastewater treatment facility at 131 Camelot Drive.

Motion by the Department of Environmental Protection and the Town of Plymouth to dismiss appeal for mootness, in view of the issuance on June 24, 2008 of a new groundwater discharge permit.

Motion granted, and appeal dismissed as moot without a merits determination and without prejudice to the prosecution and adjudication of claims asserted in a separate pending appeal challenging the 2008 permit.

Background


In this water pollution discharge permit appeal, petitioners Eel River Watershed Association, Ltd. and Mettie Whipple and intervenor ten citizens group challenge a permit issued by the Department of Environmental Protection (DEP) on May 26, 2000 pursuant to M.G.L. c. 21, §§ 26-52 (the Massachusetts Clean Waters Act) allowing the discharge to groundwater of treated effluent from the Town of Plymouth's municipal wastewater treatment facility at 131 Camelot Drive (the 2000 permit). That facility, under construction when the 2000 permit was issued, was intended to replace an older wastewater treatment plant that discharged effluent to Plymouth Harbor. The older facility's effluent discharges exceeded what the town's surface water discharge permit allowed and prompted the Commonwealth to bring suit against the town under the Massachusetts Clean Waters Act in 1987. The final judgment in that action, approved by the Plymouth Superior Court in 1992, required that the town plan, design and construct new wastewater treatment facilities by November 1, 2001. See Town of Plymouth's opposition to request for stay of permit (July 31, 2000), at 2-3.

The 2000 permit allowed, over its five-year term, a maximum daily groundwater discharge from the new Camelot Street wastewater treatment facility of 3.45 million gallons per day (MGD), not to exceed an annual discharge volume of 275 million gallons, which was "the difference between the maximum day design value for the wastewater treatment plant of 5.2 MGD and the 1.75 MGD which will be discharged through the [plant's] ocean outfall." 2000 Permit at 2, nn. 1 and 2. The permit provided that the effluent discharge "shall not result in any demonstrable adverse effect on the groundwater or violate any water quality standard that has been promulgated." Id. at 2; special condition A(a). The permit also required that the town monitor, record, and report to DEP the quality and quantity of both the wastewater treatment facility's influent waste stream and effluent from the facility at the point of discharge to its leaching infiltration basins, as well as the quality of water in monitoring wells in the surrounding watershed. Id. at 3-4; special conditions B(1)-(3). Supplemental conditions included in the 2000 permit required that the town prepare a nutrient management plan "to address nutrient impacts to the Eel River system from the various sources within the Eel River Watershed." Id. at 5; supplemental condition C(1). DEP reserved the right to modify the 2000 permit following its review and approval of the nutrient management plan. Id. at 5, supplemental condition (2).

In appealing the 2000 permit, the petitioners and intervenors claimed that the allowed groundwater discharges would reach the western branch of the Eel River (less than two miles to the northeast of the wastewater treatment facility), degrade water quality within the river's watershed, and increase the river's nutrient load, generating, as a consequence, increases in phytoplankton growth and blooms and changes in the diversity and distribution of the watershed's plant and animal communities. See, e.g., Request for adjudicatory hearing (Jun. 26, 2000), at 3-4, §§ 14-15. The relief they sought included, among other things, a decision requiring the performance of a nutrient management study to assess the Eel River's capacity to assimilate nitrogen without water quality degradation before the wastewater treatment facility was permitted to discharge effluent to groundwater, rather than after the permit was issued. See, e.g., Prefiled direct testimony of Peter Shanahan, Ph.D., P.E., sworn-to Aug. 13, 2001, at 14-15.

DEP and Plymouth move jointly to dismiss this appeal as moot, asserting that the 2000 permit is no longer in effect and that a new five-year permit authorizing discharges of effluent to groundwater from the Camelot Street wastewater treatment facility was issued by DEP to Plymouth on June 24, 2008 and became effective on July 24, 2008 ("the 2008 permit"), citing Matter of Edgartown Wastewater Commission, Docket No. 96-084, Final Decision, 7 DEPR 73-74 (June 21, 2000)(an appeal challenging an interim DEP groundwater discharge permit for a wastewater treatment facility issued in 1996 became moot, and was therefore dismissed, when, following the completion of a nitrogen-loading study, DEP issued in 1999 a new five-year permit allowing the facility to discharge a greater volume of effluent to groundwater and the earlier permit ceased to exist as a consequence).

The motion papers disclose that the Eel River Watershed Association, Ltd., one of the petitioners here, is challenging the 2008 permit in a separate administrative proceeding before DEP and has moved, in that proceeding, to consolidate both permit appeals because (in its view) neither the 2000 permit nor the 2008 permit included "any analysis providing a scientific basis for a waste load allocation permit to protect the water quality in the Eel River watershed." Petitioners' response to joint motion to dismiss Docket No. 2000-091 (Sept. 18, 2008), at 2. The Association asserts that the record of the 2000 permit appeal supports this and other claims it has asserted in challenging the 2008 permit. The Association also asserts its intention "to use every legal angle and avenue available and necessary to preserve [its] position that the impact of the current discharge must be measured against the status quo ante, not the current day." Id. It argues, as well, that Edgartown is inapposite because both the earlier and later-issued discharge permits in that matter "contained comprehensive waste-load allocation provisions" based upon a prior nutrient management study (such as the petitioners sought in challenging the 2000 permit) and, as well, upon a nutrient management plan that limited the concentrations of specific nutrients in effluent discharged to receiving waters.


Discussion


The Association views the 2000 and 2008 permit appeals as raising common factual and legal issues. Although it does not assert that the 2000 permit remains legally viable, the Association clearly opposes dismissal of the 2000 permit appeal if this would preclude it from proving its claim that the 2008 permit is not based upon a sound allocation of nutrient loads among various effluent dischargers, including the Camelot Street wastewater treatment facility, and therefore allows the facility to degrade the quality of effluent-receiving waters.

Although the Association views both permits as suffering from common omissions, the 2000 and 2008 permits and the claims challenging each of them are neither factually congruent nor legally intertwined. The appeal challenging the 2000 permit may be dismissed as moot, therefore, without precluding the litigation of claims asserted in the separate proceeding challenging the 2008 permit.

1. In referring to the 2008 permit as a "permit renewal" (at 1), the joint motion suggests, perhaps inadvertently, that the 2000 and 2008 permits comprise a single permit package that must be appealed as such, and that the dismissal of claims addressing the earlier permit as moot would operate as a merits dismissal precluding claims challenging the current one. The 2008 permit does not describe itself, however, as a permit renewal or, for that matter, as the modification or amendment of an earlier permit, even though the 2008 permit appears to allow no greater discharge volumes than did the 2000 permit. Entitled "Discharge Permit," as was the 2000 permit that preceded it, the 2008 permit recites all of its conditions and other terms, and it incorporates no provisions of an earlier discharge permit by reference. The 2008 permit superseded the 2000 permit in all respects, thus, and left no portion of the 2000 permit in effect, a fact that DEP and the town acknowledge in their joint motion to dismiss (e.g., at 2; reference to the 2008 permit as a "new permit" and to the 2000 permit as having been rendered "no longer effective" and with "no legal effect" after the 2008 permit became final following the expiration of the 30-day public comment period without any request that the permit's terms be stayed).

With the 2000 permit superseded in all respects by the 2008 permit, the older permit is now an historic relic-academic, in other words, as are the claims challenging it. This appeal, which challenges the 2000 permit alone, is, therefore, as much a candidate for a mootness dismissal as was the superseded wastewater discharge permit challenged in Edgartown. There are no circumstances present that make a similar disposition inappropriate here. Even if the old and new permits indeed suffer from the same effluent limit-related deficiencies as the Eel River Watershed Association claims-a commonality of permit conditioning deficiencies that Edgartown did not address-those deficiencies are readily challenged and adjudicated in the appeal challenging the new permit alone and do not present any cause to maintain the appeal challenging the now-defunct 2000 permit.

I also note that neither the two permits nor the claims challenging them are congruent. For example, while the 2000 permit required that Plymouth prepare a nutrient management plan (the "after-the-fact" study that, per the claims asserted here, should have preceded permit issuance), the 2008 permit followed the nutrient management plan's completion and the plan's approval by DEP, and a supplemental condition of the 2008 permit recites the town's agreement to implement the plan. 2008 Permit at 5, supplemental condition C(1). The absence of such a plan prior to groundwater discharge was a core issue in the 2000 permit appeal; however, with a nutrient management plan completed, approved and referenced by the 2008 permit, the absence of such a plan is no longer a viable issue. Additionally, as the moving parties point out, claims regarding nutrient impacts and management were little more than projections in 2000, when the original permit was issued, because the wastewater management facility had not yet been completed and was not yet discharging effluent; in contrast, when the 2008 permit was issued, the facility had operated for several years and data was available regarding concentrations and other characteristics of the facility's effluent discharges, including monitoring well data. As to core claims and available proof, then, the appeals challenging the 2000 and 2008 permits are materially different even if, as the Association contends, the record of the 2000 permit appeal includes material that is relevant to the 2008 permit appeal.

2. With the appropriateness of a mootness dismissal established, there remains to be clarified only that the dismissal of the 2000 permit appeal for mootness does not preclude the litigation of claims raised in the pending 2008 permit appeal, a prospect that is of particular concern to the Association.

I have determined that this appeal is moot solely because the 2008 permit superseded the 2000 permit completely and rendered both the 2000 permit and claims asserted relative to it academic and unnecessary to decide here. The dismissal of the 2000 permit appeal reflects only this mootness and nothing more, and is not a merits determination. It is therefore both appropriate and accurate to specify that this appeal's dismissal for mootness is without prejudice to the prosecution or adjudication of claims asserted in the 2008 permit appeal.


Recommended Disposition


This appeal of the permit issued by DEP on May 26, 2000 pursuant to M.G.L. c. 21, §§ 26-52 allowing the discharge to groundwater of treated effluent from the Town of Plymouth's municipal wastewater treatment facility at 131 Camelot Drive is dismissed as moot, without determining the appeals's merits and without prejudice to the prosecution or adjudication of claims asserted in the 2008 permit appeal.

Notice

This decision is a recommended final decision of the Administrative Magistrate. It has been transmitted to the Commissioner of the Department of Environmental Protection for her final decision in this matter, including the issuance of a final order of conditions for the project at issue. This decision is therefore not a final decision subject to reconsideration, and may not be appealed to the Superior Court pursuant to M.G.L. c. 30A. The Commissioner's decision is subject to rights of reconsideration and court appeal and will contain a notice to that effect.

Because this matter has now been transmitted to the Commissioner, no party shall file a motion to renew or reargue this recommended final decision or any portion of it, and no party shall communicate with the Commissioner's office regarding this decision, unless the Commissioner, in her sole discretion, directs otherwise.

Mark L. Silverstein
Administrative Magistrate

August 12, 2009

Footnote

1/ The members of the ten citizens group are Laurien Enos, Mary Enos, Carla R. Gray, Darlene C. Nickerson, John R. Nickerson, Marjorie S. Nickerson, Patricia F. Hathaway, Robert L. Hathaway, Margaretta Bergiel, Raymond Bergiel, Gregory J. Bowles and Dorothea C. Bowles.