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United States v. Metropolitan District Commission

United States District Court, D. Massachusetts

July 11, 2016

UNITED STATES OF AMERICA
v.
METROPOLITAN DISTRICT COMMISSION, et al. CONSERVATION LAW FOUNDATION OF NEW ENGLAND, INC.
v.
METROPOLITAN DISTRICT COMMISSION

          SCHEDULE SEVEN COMPLIANCE ORDER NUMBER 239

          RICHARD G. STEARNS, UNITED STATES DISTRICT JUDGE

         This is the two hundred and thirty-ninth Compliance Order that has issued over the course of this litigation. On June 15, 2015, the Massachusetts Water Resources Authority (MWRA) filed its (now) Biannual Compliance and Progress Report. The United States and the Conservation Law Foundation have since declined to file a response.

         Schedule Seven

         Of special note among the scheduled activities of the past six months was a special court hearing convened on March 18, 2016. At the hearing, MWRA Executive Director Frederick A. Laskey made a formal presentation of the Combined Sewer Overflow (CSO) Annual Progress Report for 2015. The Report marked the completion by the MWRA and the Boston Water and Sewer Commission (BWSC) of the Reserved Channel sewer separation project, and in partnership with the City of Cambridge, the CAM004 sewer separation project. With these two milestones met (on time and under budget), the construction phase of the Long-Term CSO Plan is now finished. The magnitude of this multi-decade achievement was underscored by Director Laskey who noted that the 184 CSO-related milestones set by the court required the MWRA to undertake or negotiate 35 separate construction projects, 125 design contracts, 82 oversight contracts, 10 planning and technical support contracts, and 5 host community agreements. The court will post this Order and the official transcript of the hearing on the District Court's public web site as a tribute to the thousands of people, including the ratepayers, who in the apt words of Peter Shelley, speaking on behalf of the Conservation Law Foundation, "collectively rolled up their sleeves and made it happen."

         As Director Laskey's cautioned at the hearing, much work remains to be done. Two milestones are still to be completed, including the three-year post-construction monitoring program and performance assessment that will begin in 2018. In the meantime, over $600 million has been budgeted for upgrades and improvements in the wastewater system between now and the anticipated expiration of the consent decree implementing Schedule Seven in December 0f 2020.

         Combined Sewer Overflow (CSO) Program

         a. CSO Water Quality Standards Variances

         The MWRA, the Massachusetts Department of Environment Protection (DEP), and the United States Environmental Protection Agency (EPA), are discussing the extension to 2019 of the existing variances to the water quality standards for CSO discharges to the Lower Charles River/Charles Basin and the Alewife Brook/Upper Mystic River. The variances, which were first approved by the DEP in 1998 and 1999, are expected to be granted (as was agreed among the MWRA, DEP, and EPA in 2006 when the current Long-Term CSO Control Plan was approved by the court). The MWRA believes that the forthcoming performance assessment, in conjunction with modifications to the existing water quality monitoring program, will enhance the value of the data provided to support DEP's future CSO and water quality standards determinations. DEP will hold a public hearing on the requested variance extensions on July 27, 2016.

         b. CSO Post-Construction Monitoring

         The MWRA has begun planning the implementation of the CSO post-construction monitoring program and performance assessment that will begin in January of 2018 in compliance with Schedule Seven.

         c. Mystic River Report Card

         On May 31, 2016, the EPA issued its annual report card on the Mystic River and its tributaries based on a three-year rolling accumulation of testing data. Working with the Mystic River Watershed Association, the EPA issued separate grades for each of the 14 component areas of the watershed. The grades show consistent improvement in water quality in most segments, with the Mystic River and Chelsea River receiving overall grades of A-. The D grade for Alewife Brook is disappointing, but as yet the rolling averages have not captured the benefits expected from the completion of the CAM004 sewer separation project in December of 2015.

         d. Deer Island Cross Harbor Cable

         The MWRA has called the court's attention to a dispute that has its origins in an order issued by my predecessor, Judge Mazzone, in 1989, establishing an October 1990 deadline for securing a suitable power supply for the then-proposed Deer Island Waste Water Treatment Plant. The MWRA and the Army Corps of Engineers question whether the (now) Eversource Energy subsidiary, Harbor Electric Energy Company (the owner of the cable), complied fully with the depth requirements of the cable-laying permit issued by the ACoE. The Inner Harbor dredging that will be undertaken by the Boston Harbor Deep Draft Navigational Improvement Project will likely impact the cable, which is critical to operations at Deer Island. Because of the litigation-related aspects of the dispute, the court will refrain from any comment on the issue.

         Comments

         The court repeats its congratulations to the MWRA, the BWSC, the City of Cambridge, and everyone else involved in achieving completion of the construction phase of Long-Term CSO Control Plan. I look forward to what I expect will be the final celebratory hearing in January of 2021.

         ORDER

         Consistent with the court's revised Scheduling Order, the MWRA will submit Compliance Report No. 240 on or before December 31, 2016.

         SO ORDERED.

         Repleted Cases No. 90-CV-I1086-ADM 90-CV-11286-ADM 91-CV-10771-ADM 93-CV-10883-ADM

         BEFORE THE HONORABLE RICHARD G. STEARNS UNITED STATES DISTRICT JUDGE SPECIAL PRESENTATION Re: FINAL REPORT on the COMBINED SEWER OVERFLOW CONTROL PLAN

         March 18, 2016

         Courtroom No. 211 Courthouse Way Boston, Massachusetts 02210

         JAMES P. GIBBONS, RPR/RMR Official Court Reporter 1 Courthouse Way, Suite 7205 Boston, Massachusetts 02210 jmsgibbons@yahoo.com

         UNITED STATES ATTORNEY'S OFFICE, (By AUSA Susan M. Poswistilo), 1 Courthouse Way, Suite 9200, Boston, Massachusetts 02210, on behalf of the Plaintiff, United States of America

         CONSERVATION LAW FOUNDATION NEW ENGLAND, INC., (By Peter Shelley, Esq.), 62 Summer Street, Boston, Massachusetts 02110, on behalf of Plaintiff Conservation Law Foundation

         FOLEY HOAG, LLP, (By John M. Stevens, Jr., Esq., and Jonathan M. Ettinger, Esq.), 155 Seaport Boulevard, Boston, Massachusetts 02210-2600, on behalf of Defendant Massachusetts Water Resources Authority

         MASSACHUSETTS WATER RESOURCES AUTHORITY, (By Steven A. Remsberg, Esq.), Building 39, 100 First Avenue, Charlestown, Massachusetts 02129, on behalf of Defendant Massachusetts Water Resources Authority

         OFFICE OF THE ATTORNEY GENERAL OF MASSACHUSETTS, (By AAG Pierce O. Cray, Esq.), One Ashburton Place, Boston, Massachusetts 02108-1698, on behalf of Defendant Commonwealth of Massachusetts

         ALSO PRESENT:

         FREDERICK A. LASKEY, EXECUTIVE DIRECTOR Massachusetts Water Resources Authority

         THE CLERK: All rise. Court is open. You may be seated.

         This is Civil Action No. 85-00489, United States of America versus the Metropolitan District Commission.

         If counsel who will be addressing the Court can please introduce themselves.

         MR. SHELLEY: Peter Shelley, Conservation Law Foundation.

         MS. POSWISTILO: Good afternoon. Susan Poswistilo on behalf of the United States.

         MR. STEVENS: John Stevens from the Water Resources Authority.

         THE COURT: Welcome back, Mr. Stevens.

         MR. STEVENS: Thank you, your Honor.

         MR. ETTINGER: Good afternoon, your Honor. Jonathan Ettinger for the MWRA.

         MR. CRAY: Good afternoon, your Honor. Pierce Cray, Assistant Attorney General, for the Commonwealth.

         MR. REMSBERG: Steven Remsberg, MWRA.

         MR. LASKEY: Frederick Laskey, MWRA.

         THE COURT: Thank you all for be being here. Just two things to begin. You will note from the case caption, 85-0489, that this may be the oldest active case in the Federal District Court in Massachusetts. (Laughter.)

         THE COURT: The second thing I would say is that this is probably the first time something happy has happened in this courtroom - (Laughter, )

         THE COURT: -- at least for everyone involved. I would like to shortly begin the formal proceeding, and I realize we are anticipating the presentation of the final report on the CSO program, but a few minutes ago I received a lovely letter from Mr. Shelley, which was not really addressed to me, but addressed to those of you who are here in the audience.

         Mr. Shelley, if you will permit me, I am go to have Marsha read the letter.

         MR. SHELLEY: Please.

         THE COURT: Marsha Zierk, as most of you know, has been my career law clerk since I began literally as a federal judge, and she has been at my side throughout the entire litigation of this case, beginning in 2000 when I was first introduced to the MWRA by Mr. Stevens, among others. And I do remember an Easter Sunday when she stayed with me in the office trying to finish the opinion before the 1st of April, having been warned, I believe by Mr. Stevens, that every day of delay after April 1 is going to cost the taxpayers a million dollars in delayed construction charges. (Laughter.)

         THE COURT: Looking -- and I did take a sneak peak at the report -- there is a map that shows the principal locations that the program has touched. I believe, Mr. Laskey, that Marsha and I, with your guidance, have been at every significant site that I see on that map over the course of the last ten years.

         So, Marsha, would you begin the proceeding by reading Mr. Shelley's letter into the record.

         MS. ZIERK: This is Docket No. 1831 in this case.

         "I am writing this letter as our final formal correspondence in this matter. Conservation Law Foundation (CLF) filed rts 60-day notice letter pursuant to Section 505(a)(1) of the Clean Water Act in the summer of 1983, expressing its intention to bring federal legal action against the Commonwealth of Massachusetts, the Metropolitan District Commission, and the U.S. Environmental Protection Agency for chronic violations of the Clear Water Act from Boston's metropolitan sewerage system.

         "I can say with confidence that CLF had no idea at the time how deep the underlying infrastructure and institutional problems were that produced the desperate contamination situation we all faced back then when 70 tons of raw sludge and 350, 000 mgd of poorly treated wastewater were being discharged into the harbor every day. And looking today at the results of the past 33 years' activities, it is easy to gloss over the truly herculean, multi-rnstitutional effort that ultimately materialized in response to that 60-day notice of violation. Somehow, almost miraculously, the entire wholesale sewerage and water system for metropolitan Boston has been rebuilt -in many cases from scratch - while metropolitan life continued on without a hitch on the surface.

         "On behalf of CLF's Board of Directors, membership, and staff, I would like to put on the record CLF's profound and lasting appreciation for the many efforts - small and large - that produced such notable achievements: a clean and thriving harbor; a new federal park featuring Boston harbor; an unforeseeable explosion of public and private investments along the harbor and in the City's future clean beaches that residents and visitors to Boston can use with confidence; and so many more wonderful outcomes.

         "In particular, we need to point out several prominent players in this multi-decadal effort. First, the federal court rose to the significant challenge of overseeing and prodding the engineering, legal, and political processes along with great wisdom and purpose. Boston is fortunate to have such a capable judiciary and jurists. Second, we want to note our appreciation to the Massachusetts Water Resources Authority, an agency that arose from the ashes of the non-functional MDC to become one of the preeminent water and sewerage agencies in the world. The MWRA, its staff, and its boards showed what was possible for a public works project in Massachusetts, bringing the vital new systems on line on schedule and under budget. CLF would also like to commend the U.S. Environmental Protection Agency, who started off as a defendant in this case but quickly became the lead plaintiff and ensured that the system that was being built would get the job done and quickly recognized and addressed the importance of addressing the combined sewerage system overflows as well as the more prominent outfalls at the end of the lines.

         "Of course, these institutions did nothing. It was the people in the institutions who worked the impossibly long and difficult hours on this project over the past 33 years who produced these results. They are too numerous to mention. And while the leaders involved in the case were all remarkable, their efforts would have fallen flat if it weren't for the engineers, accountants, law clerks, trades people, lawyers, financiers, and the hundreds of other specialty walks of life that collectively rolled up their sleeves and made it happen.

         "Finally, we would like to thank the thousands of business and household ratepayers. This was not an easy 33 years for anyone watching the ever-mounting water and sewer bills and there is no question that many families and businesses struggled to keep up. But the MWRA's ratepayers, who were well served by the MWRA Advisory Board, supported the vision for a better future for Boston harbor and its surroundings and got the job done. Future generations will never fully appreciate the scale of the effort that produced a clean harbor but with continued dedication and vigilance, they will enjoy the fruit of those labors.

         "To everyone involved and on behalf of all the beneficiaries of those efforts that have no voice - the fish and the marine mammals and all the other biological components of Boston's now shining harbor - thank you.

         "Sincerely, "Peter Shelley" THE COURT: Thank you, Mr. Shelley. You said everything that I could have said and said it better.

         Mr. Ettinger, I believe you have a report that you would like to present?

         MR. ETTINGER: I do, your Honor.

         On behalf of the Massachusetts Water Resources Authority, it is with great pleasure and honor that I present the 20th and final Combined Sewer Overflow Control Plan Annual Progress Report.

         May I approach the bench?

         THE COURT: You may.

         (Document ...


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