930 F.2d 132 (1st Cir. 1991), 91-1337, United States v. Metropolitan Dist. Com'n

Docket Nº:91-1337.
Citation:930 F.2d 132
Party Name:UNITED STATES of America, et al., Plaintiffs, Appellees, v. METROPOLITAN DISTRICT COMMISSION, et al., Defendants, Appellants.
Case Date:April 22, 1991
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 132

930 F.2d 132 (1st Cir. 1991)

UNITED STATES of America, et al., Plaintiffs, Appellees,

v.

METROPOLITAN DISTRICT COMMISSION, et al., Defendants, Appellants.

No. 91-1337.

United States Court of Appeals, First Circuit

April 22, 1991

        Heard April 16, 1991.

Page 133

        Douglas H. Wilkins, Asst. Atty. Gen., with whom Scott Harshbarger, Atty. Gen., was on motion for a stay pending appeal and memorandum in support thereof.

        George B. Henderson, II, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., and Jeffry Fowley, Associate Regional Counsel for Water, were on memorandum in opposition to motion for a stay for appellee, U.S.E.P.A.

        John M. Stevens, with whom Foley, Hoag & Eliot, Catherine L. Farrell, Gen. Counsel, Steven H. Goldberg, Associate Gen. Counsel, and Virginia S. Renick, Sr. Staff Counsel, were on memorandum for Massachusetts Water Resources Authority.

        Before BREYER, Chief Judge, TORRUELLA and CYR, Circuit Judges.

        BREYER, Chief Judge.

        On February 25, 1991, the district court entered an order in the Boston Harbor Clean-up case that, in effect, says that the Commonwealth 1) must give the Massachusetts Water Resources Authority (MWRA) the power "to acquire a ... suitable ... landfill" site, and 2) may not hook up any new sewer lines emptying into Boston Harbor until it does so. The Commonwealth appeals, arguing that the order (along with the court's April 5 refusal to modify the order) is unreasonable. For that reason, it says, the court's actions are unlawful. We have expedited proceedings in the appeal. After holding oral argument, reading the briefs, and examining the record, we decide that the orders are reasonable and, consequently, lawful. We therefore affirm the orders and deny, as moot, the Commonwealth's motion for a stay pending appeal.

        I

Background

        To appreciate the basis for the district court's orders, and for other reasons, the reader must understand something of the history of this case. We have set out a chronology of the case in an Appendix. We shall summarize the key matters that the chronology reveals.

        1) The Commonwealth, for more than fourteen years, has unlawfully discharged sewage into Boston Harbor, in violation of the Federal Clean Water Act. 33 U.S.C. Secs. 1251 et seq. The Conservation Law Foundation, in 1983, and the United States, in 1985, brought separate suits (later consolidated) to stop this discharge. On September 5, 1985, the district court found that the Commonwealth was guilty of "persistent and severe violations of the Act." United States v. Metropolitan District Commission, 23 Env't.Rep.Cas. (BNA) 1350, 1358, 1985 WL 9071 (D.Mass.1985).

        2) The district court, in developing a remedy for the violations of law, did not enjoin the further discharge of pollutants, although the statute made this remedy available. See 33 U.S.C. Sec. 1342(h) (authorizing ban on new sewer hook-ups). Rather, together with the parties, the court developed a 15-year Compliance Plan. The Plan calls for the construction, by December 1999, of a new $6 billion sewage treatment system for the metropolitan Boston area. The detailed remedial schedule contains specific deadlines for the building and opening of numerous facilities. Among other things, it requires that the MWRA build a plant that will turn sludge into fertilizer, which it may then sell. It also requires construction of a "landfill" to hold grit and sediment, as well as any sludge that is not sold as fertilizer. The MWRA is to oversee, and to implement, the plan.

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        3) The landfill is a key element of the remedial program. The plan requires the MWRA to prepare a final landfill design by November 1991, to begin construction by September 1992, and to commence operation of the landfill (in coordination with the opening of a new sludge-into-fertilizer plant) by March 1994.

        4) In 1986, the MWRA began a five-year effort to find a suitable landfill location. It surveyed 299 potential sites and eventually narrowed the number to two: Walpole, the preferred site, and Rowe Quarry in Malden/Revere. By late 1990 and early 1991, the MWRA had obtained all needed environmental approvals, and all other necessary action from various state and federal agencies, with respect to the Walpole site, with one exception (discussed in the next paragraph). The MWRA so far has spent $10 million on this site-selection process.

        5) Under state law, the state legislature must approve any transfer of the Walpole site to the MWRA from its current owner, the Department of Correction. See, e.g., Mass.Gen.Laws ch. 7, Secs. 40E-40J. In December 1990, the legislature voted not to approve a bill that would have given the MWRA the authority needed to obtain the site. Thus, as far as state law is concerned, the MWRA cannot begin to build the needed landfill at Walpole or anywhere else.

        6) Ever since May 1989, when the MWRA designated its landfill alternatives, the court has pointed out that timely acquisition of a site is essential. In July 1990, when the legislature deferred action on the necessary legislation for six months, the court expressly warned that it might have to forbid additional new sewer discharges into the harbor, in order to avoid jeopardizing the schedule, and (in the absence of scheduling certainty) to prevent added pollution. In December 1990, in response to the legislature's rejection of a transfer bill, the United States asked the court 1) to order the transfer of the Walpole site to the MWRA directly, and to enjoin enforcement of state law to the contrary; 2) to order the Commonwealth to approve the transfer itself; or 3) to order the Commonwealth not to connect new sewer hook-ups to the Harbor discharge system until the MWRA had authority to acquire a suitable landfill site. The court chose this last option, entering its "ban or transfer" order on February 25, 1991.

        7) On April 1, 1991, the Commonwealth established a Commission to look for alternative landfill sites. The Commission is to report within 120 days. If...

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