A Superior Court judge has denied the Town of Marion’s request to dismiss the Buzzards Bay Coalition’s lawsuit against the Town, and also denied both parties’ requests for Summary Judgment.
In a memorandum of decision and order dated August 21, Justice Debra Squires-Lee explained that, in order to dismiss the case, she would have to find that the BBC’s motion did not demonstrate that the negative impact to the environment as a result of the wastewater treatment plant lagoons was “insignificant;” however, she wrote, she could not make such a determination.
“The Town contends that the Coalition’s allegation that the lagoons leak up to 50,000 gallons per day is factually inaccurate and based on a deeply flawed study. However … this Court must assume the truth of that assertion,” the Justice wrote. “The Town further argues that the complaint is conclusory and lacks detailed facts to show how the alleged harm is more than ‘insignificant’. … But, the complaint alleges that leaching of nitrogen from the unlined lagoons pollutes the groundwater and contributes to pollution of Aucoot Cove, Sippican Harbor, and the Sippican River.
“In this Court’s view, the Coalition has pleaded significant facts to plausibly suggest Clean Water Act violations that would entitle it to declaratory and injunctive relief,” the memo continues. “The motion to dismiss must be denied.”
As for the Town of Marion’s motion for summary judgment and the BBC’s cross-motion for summary judgment, both were denied.
The Town of Marion contends that it is entitled to judgment as a matter of law, asserting that the statute of limitations on a citizens’ suit, 30 days, has expired.
Along with the BBC, ten private citizens and all members of the board of the BBC, appear as plaintiffs on the complaint.
However, Justice Squires-Lee explained why she was not persuaded that the Coalition’s suit is based on an opposition to the NPDES permit issued by the Environmental Protection Agency, “in accordance with the time limit for setting aside an agency decision.”
“The Coalition alleges that the continuing environmental harm is being caused by the Facility’s ongoing discharge of pollutants into the groundwater withouta permit issued by the DEP,” the Justice wrote. “The crux of the compliant is that the Town must obtain a groundwater discharge permit from the DEP which would entail compliance with the rigorous requirements of the regulations. Accordingly, the Town has not demonstrated that the Coalition’s complaint is time-barred.”
The EPA issued the Town of Marion a NPDES (National Pollutant Discharge Elimination System) permit dated December 1, 2017 after the Town appealed the initial NPDES permit from 2014, which required the lining of all three lagoons, and settled the appeal in November 2017.
Furthermore, the Justice states that there is a general issue of material fact pertaining to the EPA’s Consent Order requiring the lining of lagoon 1 to mitigate groundwater contamination, since it may or may not seek to remedy the very violations alleged in the lawsuit.
“It is true that the Consent Order requires the lining of lagoon 1. … However, those mitigation measures were agreed to by the Town after it expressly challenged EPA’s authority under the Federal Clean Water Act,” the Justice wrote. “Indeed, the First Circuit held that the EPA lacks the authority to regulate groundwater. … [The] NPDES permit was intended to and authorized the discharge of pollutants into surface waters, not into the groundwater.”
What the Coalition et al. seeks is to compel the Town of Marion to comply with Massachusetts law and regulations governing groundwater discharge, and so the EPA’s Consent Order does not preclude the citizens’ suit to enforce the state’s groundwater standards.
The Coalition’s request for summary judgment was denied because the Court could not find that the Coalition demonstrated an absence of genuine issue of fact pertaining to the environmental harm the lagoons cause because the Town’s engineer’s and the Coalition’s engineer of its own study present conflicting information as to the degree of environmental impact.
“Within twenty days, the parties are directed to submit a joint revised tracking order to advance this matter for a speedy trial,” the Justice ordered.
On August 29, the Town of Marion submitted a motion to supplement the record to include the Lagoon Optimization Plan, of which the Town has begun the process to complete by December 2019, the NPDES permit jointly issued by the EPA and MassDEP, and a July 11, 2018 order from the hearing officer in the state appeal that denies the Coalition’s motion to intervene.
The Buzzards Bay Coalition, in response, filed its own motion to deny the Town’s request.
The BBC filed its complaint against the Town of Marion on February 5, 2018 claiming that the Town is in violation of the Clean Waters Act from the leeching of nitrogen and other pollutants from the wastewater treatment plant’s three unlined lagoons that span a total of 20 acres off Benson Brook Road, and insist the Town must apply for a groundwater discharge permit with MassDEP.
The Town alleges that Coalition’s study, which provides the basis of their argument, is flawed.
Although both parties’ studies produce data showing some discharge into the groundwater, there is a wide discrepancy in the degree of the environmental impact.
According to the BBC’s study, the lagoons contribute 33,400 pounds of nitrogen each year and an estimated leakage of 543,000 gallons of wastewater annually, allowing for fluctuation.
The DEP requires a groundwater discharge permit for over 10,000 gallons per day.
The Town of Marion asserts that the Coalition did not factor into its results the impacts from septic systems and agricultural fertilizers, including those from an active nearby cranberry bog. The engineer alleged that, if the lagoons were leaking at a rate determined by the Coalition, the lagoons would be dry most of the time.
Voters at the Marion Annual Town Meeting approved $2 million for the lining of lagoon 1, and the project which will go out for bid in the late fall.
By Jean Perry