Town of Norfolk v. USEPA

• Decision Date: 05 April 1991
• Docket Number: 90-11286-MA.,Civ. A. No. 90-11086-MA
• Citation: 761 F. Supp. 867
• Parties: TOWN OF NORFOLK, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and the Massachusetts Water Resources Authority, Defendants. TOWN OF WALPOLE, Plaintiff, v. William REILLY, in his official capacity as Administrator of the United States Environmental Protection Agency, and the Massachusetts Water Resources Authority, Defendants.
• Court: U.S. District Court — District of Massachusetts

761 F. Supp. 867

TOWN OF NORFOLK, Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and the Massachusetts Water Resources Authority, Defendants.

TOWN OF WALPOLE, Plaintiff, v. William REILLY, in his official capacity as Administrator of the United States Environmental Protection Agency, and the Massachusetts Water Resources Authority, Defendants.

Civ. A. Nos. 90-11086-MA, 90-11286-MA.

United States District Court, D. Massachusetts.

April 5, 1991.

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Stephen Daniel Anderson, Arthur Paul Kreiger, Anderson & Kreiger, Boston, Mass., Christopher Little, Judith C. Kapuscinski, Tillinghast, Collins & Grahams, Providence, R.I., for Town of Norfolk.

George B. Henderson, II, Asst. U.S. Atty., Boston, Mass., for U.S. E.P.A.

Madelyn N. Morris, Mass. Dept. of Atty. Gen., Steven H. Goldberg, Mass. Water Res. Authority, Kathleen A. Scruton, Boston, Mass., for Massachusetts Water Resources Authority.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

In September, 1985, this court entered a finding of liability against the Metropolitan District Commission of Massachusetts and its successor agency, the Massachusetts Water Resources Authority ("MWRA"), for polluting Boston Harbor with untreated sewage from the greater metropolitan Boston area in violation of the Water Pollution Control Act, 33 U.S.C. §§ 1251-1377. United States v. Metropolitan Dist. Comm'n, 23 Env't Rep.Cas. (BNA) 1350, 16 Envtl.L.Rep. (Envtl.L.Inst.) 20621, (D.Mass. Sept. 5, 1985). After the finding of liability, MWRA began cooperating with the United States Environmental Protection Agency ("EPA") in planning and organizing the construction of a new $6 billion sewage treatment system necessary to comply with federal law. This court has overseen and continues to oversee the parties' progress in completing this project. MWRA has filed monthly compliance reports, and this court has entered corresponding compliance orders based on those reports, since November, 1985.

On the basis of my involvement in the Boston Harbor case, the two instant actions were assigned to me as "related civil cases" pursuant to Local Rule 40.1(e). The cases were subsequently consolidated. In them, the Towns of Walpole and Norfolk, Massachusetts ("the Towns"), challenge the adequacy of EPA's Supplemental Environmental Impact Statement for Long-Term Residuals Management for Metropolitan Boston (the "EIS") under the National Environmental Protection Act (NEPA), 42 U.S.C. §§ 4321-4347. The reason for the Towns' challenge is that one component of the proposed residuals management program is the construction of a residuals landfill at a site adjacent to the Massachusetts Correctional Institute at Cedar Junction in Walpole, near the Town of Norfolk (the "Walpole site"). The injury is made all the more acute by the fact that the Towns are outside of the area serviced by MWRA. The Towns seek an adjudication that the EIS does not comply with NEPA and the regulations promulgated thereunder, a remand to EPA to reconsider the landfill siting decision and to revise the EIS, and an injunction to prevent MWRA from taking any further action regarding the Walpole site. The cases are before me now on the defendants' motion for summary judgment.

I

A brief summary of the Boston Harbor clean-up project is necessary to place the present litigation in context. According to present plans, sewage from MWRA's member communities will continue to be processed at Deer Island in Winthrop, where new primary and secondary sewage treatment plants will be built. Treated liquid effluent will be pumped from Deer Island out approximately nine miles by underwater tunnel to a point in Massachusetts Bay. The solid portion of the sewage will be separated into two primary components: (1) grit and screenings and (2) sludge. The sludge will be piped by underwater tunnel from Deer Island to the Fore River Staging Facility in Quincy, where MWRA is constructing a residuals management facility. At this facility, the sludge will be processed into pelletized form. MWRA's residuals management plan calls for market distribution of the pellets as commercial fertilizer. The grit and screenings will be transferred to a landfill to be constructed at the Walpole site. In the event MWRA is unable to market or otherwise legally dispose of the pelletized sludge, it will be deposited in the landfill as well.

MWRA's proposed residuals management program was required to undergo environmental review at both the state and federal levels. MWRA and EPA worked together in the environmental review process; EPA describes its EIS as a "piggyback" document, building on MWRA's reports. MWRA issued its state-mandated Draft Environmental Impact Report (the "DEIR") in February, 1989. In May, 1989, EPA published its Draft Supplemental Environmental Impact Statement (the "DSEIS"), as required by NEPA.¹ Following the formal public comment period, MWRA's Final Environmental Impact Report (the "FEIR") and EPA's Final Supplemental Environmental Impact Statement (the "FSEIS") were issued in August and November of 1989, respectively.

On November 20, 1989, the Massachusetts Secretary of the Executive Office of Environmental Affairs issued a certificate accepting MWRA's FEIR, which designated the Walpole site as the preferred site for a residuals landfill. In January, 1990, the Towns of Norfolk and Walpole filed actions in state court challenging the state environmental review process. These cases have been joined and are pending in Suffolk County Superior Court. On March 30, 1990, after additional public comment, EPA issued its Record of Decision (the "ROD") accepting MWRA's long-term residuals management plan, including selection of the Walpole site. Soon thereafter, the Towns filed the instant suits.

II

The proper scope of judicial review of NEPA cases is well established. The Supreme Court, in a recent NEPA case, described the purpose of NEPA as follows:

The sweeping policy goals ... of NEPA are ... "realized through a set of `action-forcing' procedures that require that agencies take a `"hard look" at environmental consequences,' and that provide for broad dissemination of relevant environmental information. Although these procedures are almost certain to affect the agency's substantive decision, it is now well settled that NEPA itself does not mandate particular results, but simply prescribes the necessary process. If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs."

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351 (1989) (citations omitted). Similarly, the First Circuit has stated,

NEPA is not designed to prevent all possible harm to the environment; it foresees that decisionmakers may choose to inflict such harm, for perfectly good reasons. Rather, NEPA is designed to influence the decisionmaking process; its aim is to make government officials notice environmental considerations and take them into account.

Commonwealth of Massachusetts v. Watt, 716 F.2d 946, 952 (1st Cir.1983). See also Grazing Fields Farm v. Goldschmidt, 626 F.2d 1068, 1072 (1st Cir.1980) ("This substantive review ... is quite narrow in scope. The court should only assure itself that the agency has given good faith consideration to the environmental consequences of its actions and should not pass judgment on the balance struck by the agency among competing concerns."). Thus it is clear that the reviewing court's function is not to second-guess the choices made by government officials, but rather to assess their process of arriving at those choices.

The court's review of an agency decision under NEPA encompasses two aspects. First, the court must conduct a substantive review of the agency's action under the Administrative Procedure Act (APA), 5 U.S.C. § 706, "to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary and capricious." Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97-98, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983). Accord Grazing Fields Farm, 626 F.2d at 1072.

Second, "a reviewing court must assess the agency's compliance with the duties NEPA places upon it." Id. Expanding on the content of this review, the First Circuit has stated,

In a typical case, a reviewing court, in answering this legal question, looks first and foremost at the record before the agency. That is because one cannot ordinarily expect an agency to do more than make reasonable efforts to gather relevant information and then to evaluate that information in light of the comments interested parties have made. The relevant legal question therefore is normally whether the Statement is "adequate" in light of the information and comments before the agency at the time it produced the Statement.

Valley Citizens for a Safe Environment v. Aldridge, 886 F.2d 458, 460 (1st Cir.1989) (citations omitted).

Summary judgment is issued when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R. Civ.P. 56(c). In a NEPA case, "summary judgment ... is appropriate unless plaintiffs raised a genuine issue of material fact as to whether the agency's substantive decision was arbitrary and capricious or an abuse of discretion." Concerned Citizens on I-190 v. Secretary of Transp., 641 F.2d 1, 7 (1st Cir.1981).

The Towns' and EPA's submissions in connection with this motion present a variety of issues and "factual claims that diverge so widely that one is tempted to think some `material' factual issue must be in dispute." Aldridge, 886 F.2d at 460. In reviewing this motion, I have closely read the briefs and have endeavored "to track...