US v. Metropolitan Dist. Com'n, Civ. A. No. 85-0489-MA

• Decision Date: 25 February 1991
• Docket Number: 83-1614-MA.,Civ. A. No. 85-0489-MA
• Citation: 757 F. Supp. 121
• Parties: UNITED STATES of America, Plaintiff, v. METROPOLITAN DISTRICT COMMISSION, et al., Defendants. CONSERVATION LAW FOUNDATION OF NEW ENGLAND, Plaintiff, v. METROPOLITAN DISTRICT COMMISSION, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

757 F. Supp. 121

UNITED STATES of America, Plaintiff, v. METROPOLITAN DISTRICT COMMISSION, et al., Defendants.

CONSERVATION LAW FOUNDATION OF NEW ENGLAND, Plaintiff, v. METROPOLITAN DISTRICT COMMISSION, et al., Defendants.

Civ. A. Nos. 85-0489-MA, 83-1614-MA.

United States District Court, D. Massachusetts.

February 25, 1991.

Andrew S. Hogeland, Asst. U.S. Atty., Karen F. Green, Sp. Asst. U.S. Atty., Hale & Dorr, J.W. McCormack, Boston, Mass., Ralph J. McGovern, Environmental Enforcement Section and Natural Resources Div. U.S. Dept. of Justice, Washington, D.C., for plaintiff.

Anne Crocker Phillips, Ropes & Gray, Boston, Mass., for Compliance Monitor.

Catherine L. Farrell, Gen. Counsel, M.W. R.A., Boston, Mass., for MWRA.

Murphy, Demarco & O'Neil, Boston, Mass., for City of Quincy.

E. Michael Sloman, Asst. Atty. Gen., Boston, Mass., for State defendants.

Laura Steinberg, Sullivan & Worcester, Boston, Mass., for Boston Water & Sewer Authority.

John Stevens, Foley, Hoag & Eliot, Boston, Mass., for Mass. Water Resources Authority.

Bradford S. Gentry, Samuel Hoar, Jeffrey C. Bates, Goodwin, Proctor & Hoar, Boston, Mass., for Conservation Law Foundation of New England.

MEMORANDUM AND ORDER

MAZZONE, District Judge.

This matter is before me on plaintiff the United States's motion to compel the defendant Commonwealth of Massachusetts to transfer ownership of a parcel of state-owned land located in Walpole, Massachusetts, to the Massachusetts Water Resources Authority ("MWRA") for use as a residuals landfill site as part of this court's remedial orders relating to the Boston Harbor clean-up project. In the alternative, the United States seeks an order banning new sewer hook-ups in the MWRA service area (with exceptions for residential and public health uses) until the MWRA is in compliance with the scheduling order previously issued by this court in this matter. A hearing regarding this motion was held on January 10, 1991. Counsel appeared for plaintiffs the United States and the Conservation Law Foundation, for defendants MWRA and the Commonwealth, and, as amicus, for the Towns of Walpole and Norfolk. For the reasons discussed below, I hereby allow the motion and enter an order banning new sewer hook-ups in the MWRA service area.

I. HISTORY

A. Summary of the Case

A brief summary of this case to date is helpful in understanding the context in which this motion was filed. In June, 1983, the Conservation Law Foundation ("CLF") filed suit in this court against the Metropolitan District Commission ("MDC") and the United States Environmental Protection Agency ("EPA"). CLF's suit sought remedies for violations of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1377 (the "Act"), resulting from massive, ongoing discharges of sewage into Boston Harbor by the state agency responsible for wastewater treatment in the greater Boston area. In January, 1985, the United States filed a similar suit, and the cases were consolidated. In September, 1985, this court found the MDC and the MWRA, its successor agency, to be in violation of the Act, of the permits issued to the MDC and the MWRA under the Act, and of a 1980 administrative compliance order issued by the EPA. United States v. Metropolitan Dist. Comm'n, 23 Env't Rep.Cas. (BNA) 1350, 16 Envtl.L.Rep. (Envtl.L.Inst.) 20621, 1985 WL 9071 (D.Mass. Sept. 5, 1985).

Following the entry of the order determining liability for violations of the Act, this court held a further hearing at which the parties presented expert and technical testimony regarding a remedial schedule. After hearing, an elaborate construction schedule and reporting process were imposed as part of the remedial order. The remedial order calls for the construction of a new $6 billion sewage treatment system for the metropolitan Boston area and requires the MWRA to file monthly compliance reports. Sixty-one compliance reports have been filed, and this court has entered corresponding compliance orders based on those reports since November, 1985. The monthly compliance orders are supplemented from time to time with specific orders designed to elaborate on particular scheduling requirements.

The overall construction project may be summarized as follows. Sewage from the MWRA's member communities will continue to be processed at Deer Island in Winthrop, where a new primary and secondary sewage treatment plant 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 the MWRA is constructing a residuals management facility. At this facility, the sludge will be converted into pelletized form. The 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. In the event the MWRA is unable to market or otherwise legally dispose of the pelletized sludge, it will be deposited in the landfill as well. The selection of a site for the landfill is a crucial aspect of the overall completion of the plan.

The process of selecting a landfill site began in 1986. Nearly 300 potential sites within the MWRA service area were evaluated for use as a residuals management facility. The list was eventually narrowed to twelve candidate sites, located in Boston, Lynn, Quincy/Braintree, Stoughton, Walpole, Wilmington, Ashland, Bedford, and Malden/Revere. In January, 1989, the MWRA's Board of Directors determined that a site adjacent to the Massachusetts Correctional Institute at Cedar Junction in Walpole, near the Town of Norfolk (the "Walpole site"), was the preferred site; Rowe Quarry on the Malden-Revere line was chosen as an alternative site. The Walpole site is currently owned by the Massachusetts Department of Corrections and has been considered as a site for prison expansion. Under Massachusetts law, an act of the legislature is required to transfer the site to the MWRA for use as a landfill. See Memorandum of the United States in Support of the Motions Regarding Acquisition of the Walpole Site at 10 n. 4. Similarly, the Rowe Quarry site is privately owned and legislation would be required to enable the MWRA to acquire the site by eminent domain.

The MWRA's proposed residuals management program was required to undergo environmental review at both the state and federal levels. On November 20, 1989, the Massachusetts Secretary of the Executive Office of Environmental Affairs issued a certificate accepting the MWRA's final Environmental Impact Report on the long-term residuals management plan, which included designation of the Walpole site as the preferred residuals landfill. In January, 1990, the Towns of Norfolk and Walpole filed actions in state court challenging the state environmental review process that resulted in the selection of the Walpole site. These cases have been joined and are pending in Suffolk County Superior Court. On March 30, 1990, the EPA issued its record of decision accepting the MWRA's final Environmental Impact Statement, including selection of the Walpole site. Soon thereafter, the Towns filed suits in this court challenging the EPA's review of the siting decision.

In May, 1989, this court issued a long-term scheduling order, which included a requirement that the parties develop a schedule for construction of the long-term residuals management facilities. On October 31, 1990, this court issued a long-term residuals management scheduling order. That order requires completion of the design of the landfill by November, 1991, commencement of construction no later than September, 1992, and operation of the landfill by March, 1994.

Extensive delays have plagued the MWRA's longstanding effort to obtain legislative approval for transfer of the Walpole site. Those efforts culminated recently in a vote by the Massachusetts House of Representatives defeating a bill that would have authorized the transfer. Prompted by this and similar delays, the United States filed the present motion. This court denied a motion filed by the Towns of Walpole and Norfolk to intervene in the resolution of the present motion; however, I did allow the Towns to participate on an amicus basis. Memorandum and Order, United States v. Metropolitan Dist. Comm'n, 754 F.Supp. 935 (D.Mass.1991).

B. Delays in Obtaining the Landfill Site

Because the construction of the residuals landfill is a crucial element of the entire clean-up plan, I have closely monitored the progress of this aspect of the schedule for the last two years. In this court's Schedule Two Compliance Order No. 37 (Jan. 25, 1989), I noted that the MWRA had approved the Walpole site as the preferred site for the landfill. At that time I stated,

We are all aware that these are hard choices which will certainly face local opposition. But as with all hard choices, they will be examined in relation to applicable planning criteria and concerns relating to coordination with other major projects that will occur in the harbor area, to ensure all that environmental and due process considerations are addressed. The MWRA is reminded, however, that regardless of whether the selected method of disposal involves incineration, pelletizing, or other methods of disposal, the one site that will not be available for residuals disposal is Boston Harbor.

Id. at 4.

In Schedule Two Compliance Order No. 41 (May 23, 1989), I granted the EPA's request to require the MWRA to report on the status of the legislation needed to transfer title to the Walpole site to the MWRA. At that time I noted, "In view of the importance of this matter to the sufficiency of the overall plan, the suggestion is adopted, and the MWRA is hereby ordered to file such a report...." Id. at 10...