ELR Citation: ELR 20955
No(s). s. 85-0489-MA, 83-1614-MA (D. Mass. Jan 7, 1991)

The court holds that two Massachusetts towns are not entitled to intervene in a Federal Water Pollution Control Act (FWPCA) enforcement action concerning the massive discharges of sewage into Boston Harbor by the state agency responsible for wastewater treatment. The court issued a remedial order requiring construction of a new $6 billion sewage treatment system, which includes construction of a residuals landfill in Walpole. The court first holds that the towns of Norfolk and Walpole are not entitled to intervene as of right under Federal Rule of Civil Procedure (FRCP) 24(a) to challenge the Environmental Protection Agency's review of the siting decision for the landfill. While the towns have a substantial interest in assuring that a landfill that may affect their water supply receives adequate environmental review, this interest is not directly implicated by this litigation, which involves an effort to remedy the ongoing pollution of Boston Harbor. The court holds that the towns also are not entitled to permissive intervention under FRCP 24(b). There are no common questions of law between the federal government's FWPCA action and the towns' complaint, which is brought primarily under the Massachusetts Environmental Policy Act and the National Environmental Policy Act. The cases also do not share any common questions of fact because the substantive decisions concerning the siting of particular components of the remedial plan are not before the court. The court also holds that the towns' intervention motion is untimely. The towns have known for at least three years that the Walpole site was a possibility and have known with certainty for almost two years that it was the state agency's preferred location.

Counsel for Plaintiffs
Andrew S. Hogeland, Ass't U.S. Attorney
1107 John McCormack Post Office & Courthouse, Boston MA 02109-4583
(617) 223-9400

Ralph J. McGovern
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

John M. Stevens
Foley, Hoag & Eliot
One Post Office Sq., Boston MA 02109
(617) 482-1390

Counsel for Defendant
Bradford S. Gentry, Samuel Hoar, Jeffrey C. Bates
Goodwin, Proctor & Hoar
Exchange Place, Boston MA 02109
(617) 570-1000