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United States v. Metropolitan Dist. Comm'n

ELR Citation: 18 ELR 20807
Nos. Nos. 85-0489-MA, 83-1614-MA, 679 F. Supp. 1154/27 ERC 1330/(D. Mass., 02/08/1988) Petition for intervention denied

The court rules that a citizen may not intervene in a suit under §505 of the Federal Water Pollution Control Act (FWPCA) that does not involve the enforcement of an effluent limitation or a related administrative order, and holds that the attempt to intervene in this case is not timely. Plaintiffs sued local authorities in Boston, alleging that defendants were discharging sewage into Boston Harbor in violation of the FWPCA. The court found for plaintiffs on the issue of liability, and defendants are now considering construction of an outfall at Massachusetts Bay to remedy the FWPCA violations. Petitioners are towns located near the proposed outfall who seek to intervene in the lawsuit. The court first rules that while the right to intervene under a §505 suit is unconditional, intervention is only allowable wherealleged violations of an effluent limitation or order are at issue. Congress did not intend to create a right to intervene in a citizen suit that is more extensive than the right to commence one. The court holds that intervention in this case is not appropriate under §505, since defendants' FWPCA violations are no longer at issue. In addition, petitioners have failed to show, beyond merely speculating, that the new outfall would cause further FWPCA violations.

The court holds that even if the proposed outfall causes violations in the future, petitioners' motion is nevertheless untimely. Petitioners' interest in the enforcement of effluent standards in the Bay arose well before consideration of the placement of the proposed outfall. Moreover, petitioners' desire to relitigate settled issues would clearly prejudice the existing parties in the case. Petitioners have also failed to demonstrate that they would be prejudiced by their inability to intervene at this point. Without showing that the outfall will result in further FWPCA violations, the petitioners have no right to intervene. Section 505 only provides citizens with a means of enforcing effluent limitations and orders, and is not intended to allow citizens to affect general policy decisions made by administrative agencies and others. The importance of controlling the pollution in the Harbor as soon as possible weighs against bringing in new parties that would fundamentally change the dynamics of the processes at work in the case.

Counsel for Plaintiffs
Andrew S. Hogeland, Ass't U.S. Attorney
1107 John W. McCormack Fed'l Bldg., U.S. P.O. & Cthse., Boston MA 02109
(617) 223-9400
Elizabeth Yu
Environmental Enforcement Section
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Counsel for Defendants
Douglas Wilkins, Ass't Attorney General
One Ashburton Place, Boston MA 02108
(617) 727-3688