Town of Norfolk v. U.S. Army Corps of Engineers, 91-2215

• Decision Date: 04 March 1992
• Docket Number: No. 91-2215,91-2215
• Parties: , 22 Envtl. L. Rep. 21,337 TOWN OF NORFOLK and Town of Walpole, Plaintiffs, Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1438

968 F.2d 1438

35 ERC 1013, 22 Envtl. L. Rep. 21,337

TOWN OF NORFOLK and Town of Walpole, Plaintiffs, Appellants, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants, Appellees.

No. 91-2215.

United States Court of Appeals, First Circuit.

Heard March 4, 1992.

Decided July 15, 1992.

Stephen D. Anderson, Cambridge, Mass., for plaintiff, appellant Town of Norfolk.

John W. Giorgio, for plaintiff, appellant Town of Walpole, with whom Leonard Kopelman, Kopelman and Paige, P.C., Boston, Mass., Anderson & Kreiger, Cambridge, Mass., Christopher H. Little and Tillinghast, Collins & Graham, Providence, R.I., were on brief.

George B. Henderson, II, Asst. U.S. Atty., Boston, Mass., with whom Barry M. Hartman, Acting Asst. Atty. Gen., Environment and Natural Resources Div., Washington, D.C., Wayne A. Budd, U.S. Atty., Boston, Mass., William B. Lazarus, Stephen L. Samuels, Elizabeth Yu, Attys., Dept. of Justice, Washington, D.C., Steven H. Goldberg, Boston, Mass., of counsel; Gary Pasternak, Asst. Dist. Counsel, Dept. of the Army, Corps of Engineers, Washington, D.C., were on joint brief, for defendants, appellees U.S. Army Corps of Engineers and Massachusetts Water Resources Authority.

Before TORRUELLA, Circuit Judge, CAMPBELL and BOWNES, Senior Circuit Judges.

TORRUELLA, Circuit Judge.

On this appeal, the Towns of Walpole and Norfolk challenge the decision of the U.S. Army Corps of Engineers ("Corps") to issue a permit under Section 404 of the Clean Water Act ¹ to allow the Massachusetts Water Resources Authority ("MWRA") to place fill in an artificial wetland located in the Town of Walpole and adjacent to the Town of Norfolk. ² The district court, in a comprehensive opinion, found that the Corps' determinations under Section 404 were not arbitrary, capricious or otherwise not in accordance with law and therefore it granted summary judgment in favor of the Corps, its district engineer for New England, and the MWRA (collectively referred to herein as defendants). Norfolk & Walpole v. U.S. Army Corps of Engineers, 772 F.Supp. 680 (D.Mass.1991).

In addition, the Towns challenge (1) the district court's decision to allow a motion by defendants to quash subpoenas and for a protective order to prevent discovery of certain documents ³ and (2) the district court judge's denial of the Towns' motion for his recusal pursuant to 28 U.S.C. § 455(a). ⁴ We affirm the rulings and decisions of the district court for the reasons that follow.

I

A. Factual Background

This appeal is an offspring of the colossal effort to clean up Boston Harbor. This particular controversy--involving the issuance of a permit to construct and operate a landfill in Walpole--has been described elsewhere in detail. ⁵ We therefore summarize the facts pertinent to this appeal.

Pursuant to a compliance plan approved by the District Court for the District of Massachusetts to abate the discharge of inadequately treated wastewater and sewage sludge and other residuals into Boston Harbor, the MWRA was required, among other remedies, to construct and operate a landfill by March 1994 to hold grit, screenings and, if necessary, digested or heat-dried sludge from its wastewater treatment facilities. See generally United States v. Metropolitan Dist. Comm'n, 23 Env't Rep.Cas. 1350, 1985 WL 9071 (D.Mass.1985). In 1986 the MWRA began to work closely with the U.S. Environmental Protection Agency (EPA) to find possible alternatives for both sludge management technologies and potential sites for the landfill. Eventually four technologies and ten potential sites were identified from a field of 299 sites.

Additional evaluation was conducted to further screen the potential sites for detailed analysis. The criteria used at this stage of the screening included environmental standards, such as ecology and air quality and potential groundwater effects, and non-environmental criteria, such as cost and the extent to which potential communities were already hosting permanent wastewater treatment facilities. This screening stage eliminated four sites on environmental and other grounds. Of the remaining six sites, four were further evaluated for sludge processing, while two sites--Rowe Quarry and MCI-Walpole--were further evaluated for a landfill operation.

In February of 1989, the MWRA issued its Draft Environmental Impact Report and Draft Residuals Management Facilities Plan ("DEIR"). The MWRA proposed to process sludge at the Fore River Staging Area in Quincy, Massachusetts and to landfill the residuals at the MCI-Walpole site. In May of 1989, EPA issued a Draft Supplemental Environmental Impact Statement ("DSEIS"). In its analysis of the proposed landfill at Walpole, EPA identified two major critical groundwater supplies. First, the Massachusetts Department of Corrections maintains a number of public water supply wells located in the Charles River Watershed Aquifer to the west of the proposed landfill. These wells supply drinking water to the MCI-Norfolk and MCI-Walpole prison facilities. Second, to the east of the landfill site is the Head of the Neponset Sole Source Aquifer. ⁶ This sole source aquifer serves several wells that are the only source of drinking water to the residents of the Town of Walpole. ⁷ EPA concluded that the nearest of these wells is located more than two miles from the landfill site and is separated from the landfill by soils of low permeability. In March 30, 1990, EPA formally approved the construction and operation of the landfill at the Walpole site.

Pursuant to Section 404 of the Clean Water Act, ⁸ the Corps is required to review permit applications for proposals to dredge and fill wetlands under the standards set forth in 33 C.F.R. § 320.4(a)(1) and 40 C.F.R. § 230. In May 1990, the MWRA submitted a revised permit application describing all of its proposed projects to clean Boston Harbor, including the Walpole landfill. ⁹

On July 12, 1990, the Corps issued a public notice concerning the MWRA's application, which proposed to set aside forty-six acres of a ninety-four acre plot located in the Town of Walpole and adjacent to the Town of Norfolk. Under the MWRA's proposal, a 600 square foot area of man-made wetland located in the center of the proposed project would be filled. This wetland, also known as Wetland E, was created by the Massachusetts Department of Corrections as an obstacle course for training prison guards. The National Marine Fisheries Service and the U.S. Fish and Wildlife Service submitted a comment form indicating no objection to the project. EPA and the MWRA submitted comments in support of the proposed landfill. However, the Towns of Norfolk and Walpole submitted detailed objections to the MWRA proposal.

The Towns objected to the proposed landfill essentially on four grounds. First, the Towns claimed that the MWRA had failed to demonstrate that no practicable alternative having less adverse impact on the aquatic ecosystem existed as required under 40 C.F.R. § 230.10(a). Second, the Towns argued that the landfill would eliminate over fifty percent of the surface water supply to a portion of an adjacent wetland thus allegedly causing substantial disruption to the overall wetland resource, including a significant adverse impact on a vernal pool ¹⁰ located within 100 to 150 feet of the landfill footprint. Third, the Towns alleged that the proposed landfill would adversely impact wildlife habitats for the great blue heron and the pied-billed grebe. Fourth, the Towns claim that the MWRA disregarded the adverse impact the proposed landfill would have on groundwater resources.

David H. Killoy, a branch supervisor of the Corps' Regulatory Division, also opposed the MWRA's application to construct and operate the landfill in Walpole. In a draft memorandum dated December 24, 1990, Mr. Killoy found two unique conditions which, in his opinion, required that the permit be denied because it failed "two parts of the 404(b)(1) guidelines and it is contrary to the public interest." ¹¹ First, the MWRA had failed to demonstrate the nonexistence of a practicable alternative to the landfill which would have less adverse impact on the aquatic ecosystem. Mr. Killoy concluded that even a small threat to the Neponset Sole Source Aquifer in the area constituted a significant adverse environmental consequence. Second, the discharge of fill may contribute to a significant degradation of the waters of the United States, in this instance, the wells which supply drinking water. Mr. Killoy also noted that in the Corps' review of the Central Artery and Tunnel Project, he had identified a "wide range of sites which were available for land fill." ¹²

In light of the claims by Mr. Killoy and the Towns, the Corps' Regulatory Branch requested its Hydraulics and Water Quality Branch, Water Control Division to examine the available reports and data on groundwater impacts and to prepare a technical report on the potential risk for contamination of the water supplies. The ensuing report recommended that the monitoring system be expanded to include at least one monitoring well to detect any leachate ¹³ escaping towards the Neponset Sole Source Aquifer. The report concluded "that the risk to drinking water supplies from [the Walpole] landfill is minor." ¹⁴

On January 23, 1991, Mr. Killoy submitted a final memorandum summarizing his continued opposition to the Walpole landfill. Mr. Killoy asserted that the MWRA had not clearly demonstrated that Walpole was the "least environmentally damaging practicable alternative" for the following three reasons. First, if groundwater flow contributed substantially to the nearby down gradient wetlands, then "the removal of 46 acres of groundwater recharge area, high on the groundwater divide, by capping could deplete the wetlands water supply causing a long term degradation." ¹⁵ Second, the application contained too little information on the location of bedrock and its properties. Third, the investigation ...