ELR Citation: ELR 20264
No(s). s. 90-11086-MA, -11286-MA (D. Mass. Apr 5, 1991)

The court holds that the U.S. Environmental Protection Agency's (EPA's) supplemental environmental impact statement (EIS) for the sewage residuals landfill portion of the cleanup remedy for Boston Harbor was adequate under the National Environmental Policy Act (NEPA). Two Massachusetts towns challenged the EIS for the landfill, which is part of a $6 billion sewage treatment system for Boston Harbor. The court initially holds that the towns are not entitled to discovery beyond the administrative record. The court next holds that the administrative record on which EPA based the EIS is available to the court. The administrative record need not contain all documents on which the Massachusetts Water Resources Authority (MWRA) relied to create the documents on which EPA relied. Turning to the groundwater issues, the court holds that EPA's original determination that the landfill does not lie within the recharge area of a town's sole-source aquifer was not arbitrary, capricious, or in bad faith. Judicial review of whether EPA should supplement its EIS based on the towns' new evidence about the location of the groundwater divide is premature, because EPA has concluded that additional information is needed to assess the new evidence. The court holds that EPA adequately responded to the towns' comments concerning EPA's delineation of the Zone II recharge area for four wells that supply water to a prison in the town of Walpole. Although EPA did a poor job of incorporating by reference the MWRA's studies of the Zone II delineation and groundwater divide, this did not compromise the adequacy of the EIS. The towns' asserted new evidence on this issue does not require the court to look beyond the administrative record. The court holds that EPA's decision not to include in the EIS a detailed discussion of the possible fractures in bedrock near the landfill was not unreasonable in light of the many factors involved in the bedrock near the landfill was not unreasonable in light of the many factors involved in Zone II boundary delineation. EPA's decision was also made in good faith. Evidence that MWRA monitoring wells were incorrectly mapped is irrelevant because these wells were installed after the EIS was issued. The court holds that EPA adequately calculated the time it would take any released contaminant to travel to drinking water sources. The court holds that EPA's choice of chemicals in its analysis of leachate contents was reasonable. EPA rationally decided not to analyze volatile organic compounds (VOCs) based on its conclusion that VOCs were extremely unlikely to be present in the residuals.

The court holds that the required discussion of alternatives need not appear in the final EIS if it appears in the draft EIS. The court holds that it was procedurally permissible and reasonable for EPA to rely on the MWRA's initial screening of alternatives to narrow the set of alternatives to 12, and then to eliminate two under its own criteria. The court holds that EPA did not violate NEPA regulations by failing to include in the EIS a brief discussion of why each of the 290 sites evaluated by the MWRA in the preliminary screening was eliminated. The court holds that the 10 sites ultimately considered encompassed a sufficient range of reasonable aternatives to satisfy NEPA. The court next holds that EPA's discussion of alternatives was reasonable. EPA reasonably discussed and rejected the no-action alternative because it would have resulted in the resumption of sludge dumping in Boston Harbor. The court holds that a memorandum submitted to the MWRA from a public relations firm describing public acceptance strategies for the landfill does not show that the site-selection process was conducted in bad faith.

The court holds that the EIS adequately discusses the impact of the landfill on possible expansion of the Walpole prison. The court holds that EPA's limitation of the criteria for equitable distribution of regional responsibilities to include only wastewater treatment facilities, and not other public facilities such as the Walpole prison, was procedurally adequate. The court holds that EPA adequately discussed the air quality and odor impacts of the landfill on the population of two nearby prisons. The court holds that EPA did not improperly elevate economic costs over environmental effects in choosing the Walpole site over an alternative site. The court holds that EPA adequately discussed the socioeconomic impact of a landfill site in Walpole. EPA reasonably refrained from putting a dollar value on the projected decrease in property values and reduction in property taxes caused by the landfill. The court holds that EPA's discussion of mitigation measures was adequate. EPA concluded that the landfill would not interfere with any planned prison expansion, so there is no land use conflict to mitigate. The EIS' discussion of mitigation for the destruction of prime agricultural land and groundwater contamination was sufficient. The court holds that EPA's consideration of the landfill's impact on agricultural land, although not as complete as may be desired, was not arbitrary and capricious. The court holds that the EIS adequately considered the landfill's impact on wetlands. EPA reasonably concluded that the landfill's drainage impacts can be mitigated, reasonably failed to discuss compliance with Walpole's wetland protection by law, and adequately analyzed potential water quality degradation. The court holds that the EIS correctly applied Resource Conservation and Recovery Act regulations in establishing that the sludge that might have to be landfilled on an emergency basis is not hazardous waste. The court holds that EPA's discussion of the estimated dimensions and capacity of the landfill was not arbitrary and capricious nor in bad faith. The court holds that the EIS' treatment of the transportation access to the site was reasonable. Finally, the court holds that the EIS reasonably considered the landfill's impact on Walpole's water and sewer system.

Counsel for Plaintiff
Stephen D. Anderson, Arthur P. Kreiger
Anderson & Kreiger
33 Mt. Vernon St., Cambridge MA 02141
(617) 252-6575

Christopher H. Little, Judith C. Kapuscinski
Tillinghast, Collins & Grahams
1 Old Stone Sq., Providence RI 02903
(401) 456-1200

Counsel for Defendants
George B. Henderson II, Ass't U.S. Attorney
1107 John W. McCormack Federal Bldg., U.S. P.O. & Courthouse, Boston MA 02109
(617) 223-9400

Madelyn N. Morris
Massachusetts Attorney General's Office
1 Ashburton Pl., Boston MA 02108
(617) 727-2200