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United States v. Metropolitan Dist. Comm'n

ELR Citation: 16 ELR 20621
Nos. Nos. 85-0489-MA, 83-1614-MA, 23 ERC 1350/(D. Mass., 09/05/1985)

In consolidated cases brought by the Environmental Protection Agency (EPA) and the Conservation Law Foundation alleging that defendant sewer authority violated its national pollutant discharge elimination system (NPDES) permit by discharging improperly treated and raw sewage into Boston Harbor, the court holds that defendant is liable under the Federal Water Pollution Control Act (FWPCA) for the violations and that defendant's successor is liable for defendant's violations. The court initially determines that it must reach the liability issue. The court rejects defendant's request for more time to reach a negotiated solution because it is not convinced that the voluntary efforts of the parties will succeed without a decision on liability.

The court first holds that a 1980 administrative order issued by EPA did not modify the effluent standards in defendant's 1976 NPDES permit. The proper regulatory steps required for a permit modification were not taken. Also, the language of the order makes it clear that it was issued to enforce, not modify, existing limits. Further, the order provides that it does not preclude citizen enforcement of the permit; citizen suits would have been barred had the permit been modified. The court holds that the pendency of defendant's §301(h) application for a waiver of secondary treatment requirements does not excuse its noncompliance with the permit's secondary treatment provisions. Finding the legislative history inconclusive, the court adopts the reasoning in Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 11 ELR 20487 (D.C. Cir. 1981). In upholding EPA's adoption of regulations governing the granting of §301(h) waivers, the circuit court ruled that while noncomplying municipalities could apply for §301(h) waivers, they retain the ultimate responsibility for statutory compliance. Defendant's argument that it should not be required to build a secondary treatment plant when it may later be excused from complying with the secondary standards is relevant only to the choice of remedy, not to the liability issue. The court holds that defendant's discharge monitoring reports may be used to establish NPDES permit violations and finds that the DMRs show persistent and severe violations. Defendant also violated special conditions in its NPDES permit requiring it to cease discharging sludge from its plants as soon as sludge disposal facilities are completed and requiring construction of such facilities by July 1, 1977. Although the 1980 order provides that sludge may be discharged into the harbor until the disposal facilities are completed, the order did not alter defendant's duty to comply with its NPDES permit. The court next holds that defendant's violations do not fall within the "upset" regulation, which forgives temporary noncompliance due to extraordinary circumstances. Defendant failed to satisfy the notice requirements of the regulation and failed to produce any evidence supporting its claim of upset.

The court holds that defendant Metropolitan District Commission's (MDC's) successor, the Massachusetts Water Resources Authority (MWRA), should be joined as a defendant. The court further holds that the MWRA is liable for MDC's acts because it is basically a continuation of the MDC. The strong similarity of purpose and method of operation of the two entities outweighs their minor differences. The court rules that the FWPCA preempts a provision in the MWRA's enabling act that limits the agency's liability for water pollution. The provision impermissibly interferes with the objectives of the FWPCA by attempting to limit liability for violations of federal law. The court holds that an EPA regulation allowing successive permittees to agree to transfer liability does not prevent imposition of successor liability. Although the MDC and MWRA signed such an agreement, the court interprets the regulation to apply only to those transferees who have taken over the permit as a result of arms-length transactions. A permittee may not avoid liabiity for flagrant violations by undergoing a cosmetic change. In conclusion, the court compliments the MWRA for its initial cleanup efforts and notes that it will not interfere if the MWRA acts quickly to correct the violations.

Counsel for Plaintiff
Andrew S. Hogeland, U.S. Attorney
1107 J. W. McCormack P.O. and Courthouse Bldg., Boston MA 02109
(617) 223-0284

Joseph J. McGovern
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5466

Counsel for Defendants
E. Michael Sloman
Government Bureau
One Ashburton Place, Rm. 2019, Boston MA 02108
(617) 727-1020

Laura Steinberg
Sullivan & Worcester
One Post Office Sq., Boston MA 02109
(617) 338-2800

William J. Cheeseman, Lauri Burt, Charles J. Beard
Foley, Hoag & Eliot
One Post Office Sq., Boston MA 02109
(617) 482-1390