US v. METROPOLITAN DIST. COM'N, Civ. A. No. 85-0489-MA
| Decision Date | 07 January 1991 |
| Docket Number | Civ. A. No. 85-0489-MA,83-1614-MA. |
| Citation | 754 F. Supp. 935 |
| Parties | UNITED STATES of America, Plaintiff, v. METROPOLITAN DISTRICT COMMISSION, et al., Defendants. CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC., Plaintiff, v. METROPOLITAN DISTRICT COMMISSION, et al., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Andrew S. Hogeland, Asst. U.S. Atty., Karen F. Green, Sp. Asst. Atty., Hale & Dorr, Boston, Mass., Joseph J. McGovern, Environmental Enforcement Section, Land and Natural Resources Div., U.S. Dept. of Justice, Washington D.C., for plaintiff.
Anne Crocker Phillips, Ropes & Gray, Boston, Mass., for compliance Monitor.
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.
Catherine L. Farrell, Gen. Counsel, M.W. R.A., Boston, Mass., for MWRA.
Murphy, DeMarco & O'Neill, Boston, Mass., for City of Quincy.
This matter is before me on the joint motion of The Town of Norfolk, Massachusetts and the Town of Walpole, Massachusetts (the "Towns") to intervene for a limited purpose in this action. The Towns seek to intervene as of right pursuant to Rule 24(a) Fed.R.Civ.P. or, alternatively, pursuant to Rule 24(b). The Massachusetts Water Resources Authority (the "MWRA") has filed an opposition to the motion, as has the United States.
A brief summary of this case to date is helpful in understanding the context in which the motion has been filed. In June, 1983, the Conservation Law Foundation ("CLF") filed suit in this Court against the Metropolitan District Commission (the "MDC") and the United States Environmental Protection Agency ("EPA"). CLF's suit sought remedies for violations of the Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251 et seq. (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, a similar suit was filed by the United States, and the cases were consolidated. In the spring and summer of 1985, the Town of Winthrop and the City of Quincy moved for and were allowed to intervene in the case. In September, 1985, this Court found the MDC and its successor agency, the MWRA, to be in violation of the Act, the permits issued to the MDC and the MWRA under the Act, and a 1980 administrative compliance order issued by the EPA.
Following the entry of the order determining liability for violations of the Act, an elaborate construction schedule and reporting process were imposed as part of this Court's remedial order. The construction effort entails the construction of a $6 billion new sewage treatment system for the Metropolitan Boston area. The remedial order requires the MWRA to file monthly compliance reports. Sixty compliance reports have been filed and corresponding compliance orders based on those reports have been entered by this Court 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 flows 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: grit and screenings, and 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, the sludge will be deposited in the landfill as well. It is the proposed siting in Walpole of this residuals landfill that has led to the pending motion.
The MWRA's proposed residuals management program was required to undergo environmental review at both the state and federal level. A site in Walpole near the Town of Norfolk was identified by the MWRA in 1987 as a potential site, and the Towns participated in the state environmental review process regarding this matter. See Complaint in Intervention at ¶¶ 9-10. On January 17, 1989, the MWRA filed with the Court its compliance report for the December, 1988 period, which included a report that the MWRA's Board of Directors had determined that the Walpole site was the preferred site. 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.
On January 8, 1990, the Town of Norfolk filed an action in the state court challenging the state environmental review process resulting in the selection of the Walpole site, and on January 10, 1990, the Town of Walpole filed a similar case. These cases have been joined and transferred to Suffolk Superior Court.
On March 30, 1990, EPA issued its record of decision accepting the MWRA's final Environmental Impact Statement including the selection of the Walpole site. On April 30, 1990 and May 14, 1990, respectively, the Towns of Norfolk and Walpole filed suit in this court challenging EPA's review of the siting decision.
In May, 1989, I issued a long-term scheduling order, which included a requirement that a schedule be developed for construction of the long-term residuals management facilities. On October 31, 1990, I issued a long-term residuals management scheduling order requiring completion of design of the landfill by November, 1991 and commencement of construction no later than September, 1992.
The Walpole site is currently owned by the Massachusetts Department of Corrections. Extensive delays have plagued the MWRA's longstanding effort to obtain legislative approval to obtain title to the site. Those efforts culminated recently in a vote by the Massachusetts House of Representatives denying a bill that would have authorized the land transfer. Prompted by this and similar delays, the United States has filed two alternative motions seeking both an order requiring the Commonwealth to transfer the land and the imposition of sanctions. The Towns expressly seek to participate in the resolution of these motions.
The Towns claim a right to intervene in this case pursuant to Rule 24(a) for the limited purpose of commenting on any proposed scheduling orders that would "force the MWRA to acquire, develop and/or use" the Walpole site for the landfill and thus "unjustly foreclose the Town's possibility of succeeding in the underlying environmental litigation." The Towns suggest that any scheduling orders referring to the landfill may fuel a "bureaucratic steamroller" that will effectively prejudge the underlying litigation. The Towns further argue that neither the MWRA or the EPA will represent the Towns' interest in the underlying litigation. The Towns also claim that their interests relate not only to the preservation of the groundwater resources threatened by the proposed landfill but also to the "integrity of the state and federal processes established to review the decision of EPA and MWRA to site the landfill in Walpole."
Alternatively, the Towns argue that they should be permitted to intervene under Rule 24(b), because the underlying state and federal cases have a question of fact in common with the current case, namely, the suitability of the Walpole site for the proposed landfill and the advisability of ordering any transfer of the land. The Towns claim that their participation will not interfere with the time frames previously established by the Court.
The United States has filed an opposition to the motion to intervene. The United States claims that the Towns are not entitled to intervene as of right under Rule 24(a) because the motion is untimely and because the Towns have not shown a legally protectable interest sufficient to entitle them to intervention. The United States also argues that it would be prejudicial to the parties to change the schedule previously negotiated by the parties and entered by the Court. The United States claims that acquisition of the Walpole site and limited geotechnical testing will not result in irreparable harm to the Towns and that the availability of judicial review under state environmental law should give the Towns an adequate forum in which to assert such a claim. The United States also argues that the magnitude and importance of the case militates against intervention.
The United States suggests that permissive intervention under Rule 24(b) should be denied because there is no question of law or fact in common between the current case and the underlying state and federal litigation. The United States suggests that the Towns' request to be heard on the motion concerning transfer of the Walpole site can be accommodated by allowing the Towns to participate on an amicus basis.
The MWRA has filed an opposition to the motion to intervene, arguing that the Towns do not meet the legal requirements for intervention as of right or permissive-intervention and...
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US v. Metropolitan Dist. Com'n, Civ. A. No. 85-0489-MA
...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 Because the construction of the residuals landfill is a crucial element ......