October 15, 2003

PI sewer extension appeal on hold

By JILL ANDERSON

Staff Writer

PLUM ISLAND -- Dealing a blow to opponents of the Plum Island water and sewer project, a state administrative law judge removed a key claim regarding a sewer extension permit appeal last week.

The permit would allow Newburyport to pump wastewater from the island, including Newbury properties, to its treatment plant. The permit is the last of several components of the project that is being contested by opponents. All other disputes have been settled or dismissed.

The opponents, including the Island Futures Group. filed an appeal citing two legal issues, including adding a sewer's maximum daily flow to the permit and questioning whether the state's Department of Environmental Protection (DEP) could set conditions on the city's wastewater treatment plant's permit.

Administrative Law Judge James Rooney ruled Friday that the state couldn't set limits on the wastewater treatment plant under this permit. "The department lacks authority to impose conditions on the operation of wastewater treatment facilities in a sewer extension permit, as petitioner seeks, therefore I decide this issue in favor of the city and department," Rooney wrote in his ruling.

"It's extremely positive for the city and project," said Barry Fogel, an attorney with the firm of Keegan, Werlin & Pabian of Boston, who represents the city and town. "Now, we can put our energy into trying to reach an agreement about what the maximum flow will be. Our goal is to have a number that's acceptable to all parties so there's no further hearing."

"We're extremely satisfied with the results of the ruling," said Newburyport Sewer Superintendent Brendan O'Regan. "Essentially we couldn't ask for a better response."

"The judge's ruling reflects what I take to be a fundamental misunderstanding of our issues and the outcome that is written, doesn't seem to comport with current laws and requirements," said Island Futures Group President Maria Eigerman. "The important question raised by this ruling is whether this judge really understood what our argument was."

Eigerman said they were seeking special conditions on the permit -- not the treatment plant -- which she calls a routine process. Eigerman said they are looking "very hard at our options." However, Eigerman wouldn't give any further details on what those options are other than to say, "there are always options."

Rooney also ruled the maximum daily flow figure could be added to the permit, but requested both parties determine what that amount will be by Nov. 14. As a result, Rooney asked that all filing of testimony and hearing dates on the permit be stayed. A hearing on the sewer extension permit was slated to begin Nov. 18.

In August, the city filed a motion to dismiss the appeal filed by opponents based on lack of standing, which is a term used to describe a person or group's legal right to sue or appeal a decision.

"The motion to dismiss is denied because petitioners have standing to appeal as aggrieved persons," Rooney wrote.

Over the next few weeks, the parties will focus on the issue surrounding the maximum daily flow rate.

"He wants the number determined by Nov. 14," Fogel said. "The city has calculations for the maximum day flow. We've been in touch with the opponents attorney about what their thoughts are on the number. Over the next few weeks, we will try to work out what that figure should be and bring it back to the judge."

Fogel said if everyone can agree on what that maximum day figure is going to be, it will be added to the permit.

"The case will be over," Fogel said if an agreement can be reached. "If for some reason, they dispute the calculation and the DEP consents -- that may be a topic of a hearing in this case."

Last month, a previous appeal on the Chapter 91 waterways permit issued by the DEP was settled by adding a condition to the license. That condition requires contractors, who will put water and sewer lines 20 feet beneath the bed of Plum Island River and the Plum Island Basin, to monitor and ensure that no subterranean mud or fluid seeps into the river during construction.

Chapter 91 protects waterways and tidelands and requires licensing for projects -- such as laying pipes beneath riverbeds -- that could potentially impact waterways.

Rooney presided over both appeals.

Extending sewer and water service to the island is intended to remedy non-compliance with state septic system regulations known as Title 5.

Newburyport and Newbury entered into an agreement with the state DEP two years ago to bring water and sewer service to the island. Newburyport's water and sewer services would be extended to the island at an estimated cost of $22.9 million. The project would be financed by betterment charges on the island's approximately 1,200 properties, costing each household about $20,000 over 20 to 30 years.

For more than four months, the opponents, the city and the town had tried to reach a comprehensive settlement negotiation under the guidance of a state administrative law judge. However, in mid-April, Newbury and Newburyport withdrew from the negotiations.