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Wastewater permit call reversed
Bagley: Judge 'exceded ... her authority'
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Forsyth County News


Forsyth County will get another chance to defend its wastewater permit, following a favorable ruling on its appeal from a Forsyth County Superior Court judge.

Judge Jeffrey S. Bagley reversed the previous decision of an administrative law judge and sent the matter back to that court for review.

Forsyth County received a wastewater permit in August 2010 from the state Environmental Protection Division allowing a discharge expansion. The Upper Chattahoochee Riverkeeper appealed the issuance that September, arguing that the allowable pollutant levels were “unnecessarily weak.”

Judge Kristin Miller of the Office of State Administrative Hearings agreed with Riverkeeper and set revised pollutant levels for a reissuance of the permit in June.

Forsyth County appealed the decision to the Forsyth County Superior Court, and a hearing was held in September.

Representatives of Riverkeeper and Forsyth County did not immediately return requests for comment.

In Bagley’s order, dated Friday, he wrote that Miller “exceeded the scope of her authority” and “erred by ordering the director of EPD to revise the discharge permit.”

The judge could have sent the permit back to the EPD for review, he wrote, but should not have set the limits for phosphorous and fecal coliform.

Miller pointed to the facility’s technical ability to discharge higher quality water and ruled that it is “economically feasible” for the county to do so.

Lower pollutant levels are allowed by law if necessary to accommodate for social or economic development, which the judge ruled does not apply in this case.

Bagley reversed the ruling based on his review of the EPD’s rules, stating that Miller had expanded upon them.

Bagley’s interpretation was that the social and economic clause only applies to compare whether a water discharge or a no-discharge alternative, such as land application, will be required.

“The court finds that the focus of the anti-degradation review and its feasibility analysis is targeted to the capacity of the additional wastewater, as a whole, and does not focus on the particular limits of certain chemicals,” Bagley wrote. “The effect of the [judge’s] actions resulted in an enhanced anti-degradation review.”

The case will now return to the administrative law judge to make a new ruling.

The permit granted the county the ability to release 6 million gallons per day of treated water from the Fowler wastewater facility into the Chattahoochee.

The plant currently holds a seasonal permit, which allows discharge during colder months of the year. As part of the discharge expansion request, the county also applied to receive a year-round permit.

While the year-round permit is on hold, the seasonal one won’t be affected by the court’s decision.

Though Riverkeeper launched the suit against the EPD, Forsyth County joined to defend its permit.

Law firm King & Spalding has represented the county for an authorized cost of up to $390,000.