The Role of EPA and the Federal Court
           in  Sludge Management Planning for Greater Boston

                             Gwen  S.  Ruta
                            Mark A. Stein
                U. S.  Environmental Protection Agency
                               Region I
                        Boston, Massachusetts


     Untreated wastewater and sludge from the greater Boston
metropolitan area has been discharged to Boston Harbor in violation
of federal law since 1972.  After several cooperative efforts to plan
for new treatment facilities failed, EPA took an enforcement action
in Federal District Court against the local sewer authority.
Concurrently,  and in close cooperation with the local sewer
authority, EPA initiated an environmental review and siting process
for new facilities, including sludge management facilities.  EPA's
concurrent planning and enforcement efforts had positive results in
that they encouraged early sharing of information between parties to
the court case, motivated dispute resolution outside of court
(because parties knew that unresolved disputes would be decided by
the Court) and ensured that necessary work would be completed
according to established schedules.  These combined efforts also had
negative repercussions, however, because EPA and the sewer authority
were sometimes seen by the affected public as "co-conspirators" in

the siting process and because the often adversarial postures of the
parties in the court case sometimes hindered the complete disclosure
of information needed for the planning process.

KEYWORDS:  Sludge; enforcement; environmental review; siting; Boston


     The Environmental Protection Agency has been involved for many
years in efforts to stop the pollution of Boston Harbor from sewage
and sludge discharges.  The process has been a long one, rife with
technical complexities and political pitfalls, and many approaches to
solving the problem have been tried.  The most recent approach
involves a cooperative environmental review and planning effort
combined with an EPA enforcement effort in the Federal District
Court.  This paper presents a case study, and describes the positive
and negative aspects of this approach as it has been used to
determine appropriate sludge management sites and technologies for
the Boston metropolitan area.


     Boston's sewage has been collected and discharged into Boston
Harbor since 1885, when individual discharges into shallow areas of
the Harbor and its tributaries were discontinued because of severe
public health problems.  The sewer system constructed in 1885 brouc--.

sewage and stornwater to holding tanks on Moon Island  (see Figure 1),
and discharged the untreated wastewater into the Harbor on the
outgoing tide (this was considered a progressive means of waste
management at the time).   The sewer system was gradually expanded
over time to provide service to what is now the Massachusetts Water
Resources Authority (MWRA) service area, which includes 43 cities and
towns in the metropolitan Boston area.
     Untreated wastewater discharges continued until two new primary
treatment facilities were constructed on Nut Island in Quincy and
Deer Island in Winthrop in 1952 and 1968, respectively (see Figure
1).   Today these two overloaded and trouble-plagued plants discharge
an average of 450 million gallons of inadequately treated wastewater
and 70 dry tons of digested sludge into Boston Harbor daily.  In
addition, an average of 7 million gallons of urban runoff and
untreated sewage are discharged into the Harbor and its tributaries
each day from over 100 combined sewer overflows (CSOs).
     These discharges have resulted in Boston Harbor being rated
"among the most contaminated" marine sites in America by the Naticr.a.
Atmospheric and Oceanic Administration (1).   Harbor sediments are
highly polluted with lead, mercury and other metals, Polychlorinatec
Biphenols (PCBs), Polyaromatic Hydrocarbons (PAHs) and pesticides.
Flounder and shellfish, Boston's top commercial fishing resources,
also contain high levels of these contaminants. High coliform
bacteria levels in the water have resulted in the permanent closira
of over 2500 acres of shellfish beds (more than half the shellfish
bed acreage in the Harbor), while shellfish harvest from the
remaining beds must be depurated before sale or consumption.  High

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bacteria levels and washed up excrement and plastic floatables  (such
as tampon applicators and condoms) also account for frequent Harbor
beach closings in the summer.
     In 1972, Congress passed the Federal Clean Water Act, which
mandated secondary treatment for municipal wastewater and banned the
unpermitted ocean discharge of sewage sludge.  Planning for upgraded
treatment facilities for the Boston area began soon thereafter.  In
1972, Massachusetts officials committed to EPA that by early 1973
they would complete an engineering evaluation to site sewage sludge
disposal facilities, and that those facilities would be built by May
of 1976.  This timetable was not met, but in 1973 the Metropolitan
District Commission (MDC),  the state agency responsible for the
metropolitan Boston sewer system at the time, commissioned the
"Wastewater Engineering and Management Plan for Boston Harbor/Easter-
Massachusetts Metropolitan Area"(2).   This study comprised 17
volumes and took 3 years to complete.  Its principle recommendations
included upgrading the Nut and Deer Island treatment plants to
secondary treatment, disposing of sludge by incineration, and
eliminating CSOs.  None of these recommendations were implemented i-.
     In 1976, a new schedule was developed.  EPA, MDC and the
Massachusetts Division of Water Pollution Control entered into a
scheduling agreement which called for construction of sludge
management facilities to stop the primary sludge discharge by May c-
1980, to be followed later by facilities to handle the secondary
sludge.  This schedule was also not met.
     In 1978, EPA became more directly involved in the planning

process.  Because federal funds would be spent for design and
construction of any new treatment facilities, EPA was required by the
National Environmental Policy Act (NEPA) to conduct an environmental
review of the proposed facilities.  A Draft Environmental Impact
Statement (EIS) was issued which recommended constructing a new
secondary plant on Deer Island, and disposing of sludge through a
combination of incineration and landfilling.  The recommendations of
the Draft EIS caused controversy and negative public comment,
especially from neighborhoods surrounding Deer Island.
     Around the same time, changes to the Clean Water Act in 1977
allowed for a waiver of the secondary treatment requirement for
municipalities that could show that their discharge would not
interfere with protection of the marine environment.  The controversy
surrounding the Draft EIS and the changes to the Clean Water Act
prompted EPA and MDC to reach an informal agreement that planning for
new treatment facilities should proceed in a flexible, phased
fashion, focused on accelerating immediate upgrades to existing
facilities,  while MDC pursued a secondary treatment waiver.
     MDC filed an application for the secondary treatment waiver in
1979 and submitted additional application information in 1982.  EPA
tentatively denied the waiver in 1983.  MDC filed an amended
application in 1984, which was again denied by EPA in 1985.   During
this period MDC had continued with its planning process, producing a
siting report in 1982 which found that primary treatment on Nut and
Deer Islands would be an environmentally and economically sound
option.  This was obviously not consistent with EPA's waiver decisic-
requiring secondary treatment.

     In 1983, EPA and the Commonwealth of Massachusetts began working
on a joint Supplemental Draft EIS to augment the siting studies
presented in EPA's 1978 Draft EIS.  This report considered 22
secondary treatment site alternatives and selected 7 for final
evaluation.   All of the 7 final siting alternatives involved Deer
Island, Long Island (see Fig. 1) and Nut Island, either separately or
in combination.
     In 1985, the newly created Massachusetts Water Resources
Authority (MWRA) recommended Deer Island as the site for its new
secondary treatment plant.  EPA endorsed this recommendation in its
Final EIS, issued one month after the MWRA decision.  In 1986, EPA
issued it's  formal Record of Decision recommending Deer Island as the
site for the new secondary treatment plant.  The Record of Decision
committed EPA to further environmental review for several matters
(including sludge management) that had not been addressed in the
Final EIS because they were not considered to be site determinative
for the treatment plant and because they were not yet ripe for


     The voluntary efforts of MDC and other agencies to end sludge
discharges to Boston Harbor during the late 1970s and early 1980s
failed, and  did not even yield an accepted plan for ending these
discharges.   These failures set the stage for court action, as it
became clear that the power of the judiciary would be needed to spur
an end to the unlawful pollution of the Harbor.  The first court case

was not, however, filed by EPA.
     The City of Quincy, whose Nut Island was home to one of MDC's
two treatment plants and whose Quincy Bay was the receiving water for
the Nut Island plant outfall, filed the first case in late 1982 in
the Massachusetts Superior Court.  Part of the extensive lore of the
Boston Harbor clean-up is that Quincy's case was instigated by
William Golden, then the City's attorney and later one of its state
legislators, after he was jogging on a Quincy beach which he found
covered by a smelly muck.  His initial disgust turned to outrage when
he learned that the muck was actually sewage sludge and scum that had
washed ashore from MDC's discharge.  Quincy's case was filed  against
MOC and certain other state agencies.  EPA participated in the case
in an advisory capacity as a "friend of the Court."
     In many ways this case and the later related cases discussed
below present a classic example of what Professor Abram Chayes of tre
Harvard Law School has termed "public law litigation."  In a 1976
article (3), Professor Chayes identified a trend in the federal
courts in the growing number of cases characterized by a goal of
effectuating statutory policies and programs, a complex party
structure, the issuance of a decree to govern the parties' future
actions, the continuing involvement of a judge as the administrator
of the ongoing decree, and the importance of recurring cooperation
and negotiation among the parties as performance of the decree
unfolds.  These characteristics sharply contrast with those of
traditional private litigation involving two parties in a purely
adversarial contest designed to resolve a dispute over a past
interaction by producing a one-time court decision.

  often  involve actions by public plaintiffs

 ups) to require public defendants  (often

 to carry out major public programs mandated by

 ses, government agencies become defendants

 elected officials they indirectly work for, do

 ing, lack of will or incompetence) carry out

 y of these cases courts have simply had to take

 rams by putting them in receivership.  Indeed,

 s already had a sad history of public programs

 receivership.  For example, in a well-known

 )ol system (in a school busing for desegregation

 by the  courts when the responsible political

 :o perform their legal duties.

 •ts are  well aware that they are neither expert

 litutions intended by our political system to

 programs.  Therefore, courts look to receivership

    Of course, as will be seen below,  courts can

 the implementation of public programs even


 ise, however,  as the State Court began to learn

 iblems facing Boston Harbor, it had to consider

 it would actually have to take over the Greater

  At the same time, the Court was looking for a

 suit.  The Court knew it would be ill-equipped to

)id specialized public agency, even through an

 and that, if at all possible, a way had to be

 ppropriate government institutions to perform

their rightful duties.

     Therefore, the Court appointed an independent Special Master to

study the Boston Harbor situation and to recommend an approach to

solving its problems.  The Special Master concluded that because of

MDC's lack of necessary budgetary independence from the Massachusetts

Legislature and administrative and technical skills, it was simply

not up to the massive public works project that was clearly required.

The Special Master recommended the creation of a new entity whose

sole mission would be to provide sewer and water services to

metropolitan Boston.

     Thus, the Court ordered the creation of MWRA.  The Court

determined that by creating MWRA it could ensure future compliance

with the Clean Water Act without having to put the metropolitan

Boston sewer system into receivership.  Still, an act of the

Massachusetts Legislature was required to create MWRA,  and after th

legislation was proposed, the Legislature dragged its feet on pass:-


     Finally, in late 1984, the Court had to deploy one of its

ultimate weapons — it ordered a sewer ban in booming metropolitan

Boston.  The real estate business community was immediately up in

arms and the matter was quickly appealed to the Massachusetts Supr«-

Judicial Court where the sewer ban was overturned for certain state

law reasons.  EPA, however, then announced that if the MWRA

legislation was not soon passed, it would institute its own sewer r t

under its powers granted by Section 402(h)  of the Clean Water Act

(4).  With that, the Legislature passed the bill around the end of

1984 and MWRA was born.

     Meanwhile, the Conservation Law Foundation of New England, Inc.,
had in 1983 filed a suit in the Federal District Court against MDC
and EPA.  The claim against MDC was for the illegal pollution of the
Harbor, while the claim against EPA alleged the Agency's failure to
properly enforce the Clean Water Act against MDC.  The Federal Court
stayed this case in March of 1984 because of the ongoing State Court
case,  but the latter case was clearly bogging down.  Efforts in that
case to reach voluntary agreements on complete long-range compliance
schedules had failed, and agreed-to schedules for preliminary
planning were not met.  Moreover, as described above, just the
creation of MWRA required a major battle.
     Therefore, on January 31,  1985, shortly after the creation of
MWRA,  EPA filed a new Federal District Court action against MDC, the
Commonwealth of Massachusetts,  the Boston Water and Sewer Commission
(the owner of certain combined sewer overflows and sewer lines in
Boston), and MWRA.  This case was filed because EPA believed that
history had shown that voluntary efforts, even under the aegis of the
state courts, could not be counted on to ensure an expeditious end to
the pollution of Boston Harbor in violation of federal law; an
enforceable federal court order was needed.  EPA's action was also
dictated by its 1984 policy (known as the "National Municipal
Policy") to mount a major enforcement effort to bring municipal
discharges into compliance with the secondary treatment requirements
of the Clean Water Act.
     Once EPA's case was filed, the focal point of the Boston Harbor
litigation shifted to the Federal Court.  The Federal Court lifted
the stay of the Conservation Law Foundation case and consolidated it

with the EPA case.  It also dismissed the Conservation Law
Foundation's claim against EPA and allowed the motions of Quincy and
che Town of Winthrop, whose Deer Island was the site of MDC's second
treatment plant and the planned site of MWRA's new plant, to
intervene as parties in the case.  Finally, and most significantly,
che Court granted motions by EPA and the Conservation Law Foundation
that MDC, Massachusetts and MWRA, as MDC's successor, be held liable
for the past and on-going violations of the Clean Water Act.
     Once MWRA was found to be liable, it was obliged to remedy its
violations of law.  The questions then became how and when MWRA would
accomplish this end.  In effect,  the decision on liability set the
parties' basic roles in the litigation and planning for the years to
     In its decision on liability,  the Court described its and the
parties' respective roles in the litigation and the purpose of the
litigation as follows:
            [t]he purpose of these proceedings is to ensure
            that the MWRA fulfills the mission entrusted to it
            by the state legislature.  ...   If the MWRA acts
            expeditiously,  it need not concern itself with
            interference from this Court.   ...  At the same
            time, this  Court was invited into this litigation
            only when voluntary efforts proved ineffective.
            The plaintiffs have now proven a violation of a
            federally protected right, and this Court must
            protect that right if the entity entrusted by the
            state to do so should falter in its task.  This is
            not to say  that this should solely be a state
            effort.  Despite its present posture as a
            plaintiff,  the EPA, as its name indicates,  is an

            environmental protection agency and its duty is to
            cooperate in and ensure the expeditious design,
            funding, and construction of the necessary
            facilities (5).

     In other words, with respect to residuals management, MWRA is
both the project proponent and the litigation defendant and, as such,
is primarily responsible for developing and implementing plans for
secondary wastewater treatment and sludge management according to the
schedules ordered by the Court.  EPA, for its part, has two separate,
but complementary roles in the project.  First, EPA is the federal
administrative agency providing technical assistance to MWRA and
performing an independent federal environmental review of MWRA's
program.   In this role,  EPA is responsible for ensuring that a
workable wastewater and sludge management plan is developed and that
environmental review of that plan is conducted in compliance with
NEPA.  Second, EPA is the Federal enforcement agency and litigation
plaintiff closely monitoring MWRA's efforts to ensure that compliance
with the Clean Water Act is achieved.  In this role EPA is
responsible for ensuring, on behalf of the United States, that MWRA'_
program will achieve legal compliance as rapidly as possible and in
accordance with the Court's scheduling orders.
     In one sense, EPA's roles are separate.  In its administrative
role, EPA must perform an independent review and analysis of MWRA's
program, and alternatives to it.  This analysis must comply with the
directives of NEPA.  In its enforcement role,  however, the EPA is
only concerned with ensuring that the MWRA adopt one residuals
management program that will achieve properly expeditious compliance

with the law.  Even if there were no major federal actions

significantly affecting the environment that required environmental

review, EPA would still perform its enforcement role.

     In another sense, however, the EPA's dual roles are

complementary.  The technical analyses prepared by EPA provide much

of the basis for assessing for enforcement purposes whether MWRA's

program will to achieve appropriately expeditious compliance with the

law.  Moreover, completion of the review process is a necessary

precursor to certain Federal actions and permits that may be needed

to enable MWRA to implement its program.

    Meanwhile, the Court is the ultimate overseer of the entire

project.   The Court attempts to let the political and administrative

entities do their jobs directing the program, but it has ultimate

authority to set schedules, decide disputes between the parties and

impose sanctions for unacceptable delays in achieving legal



     In 1986, EPA began work on its Supplemental Environmental Impi •

Statement (SEIS)  on residuals management for the Boston metropolisv

area (addressing sludge,  scum,  grit and screenings from the new

secondary treatment plant on Deer Island).   The document was terme:

"supplemental" because it augmented EPA's earlier EIS on treatment

plant siting.

     The Council on Environmental Quality regulations for

implementing NEPA call for federal agencies to "cooperate with Sta*

and local agencies to the fullest extent possible to reduce

duplication between NEPA and State and local requirements.(6)"

Because the MWRA was required to conduct a full environmental review

under the Massachusetts Environmental Policy Act (MEPA), a

counterpart to NEPA, EPA decided to use a "piggyback" approach for

its Residuals SEIS.  In this way, EPA hoped to use the technical and

scientific studies conducted by the MWRA for its Environmental Impact

Report (as required by MEPA) and Facilities Plan as the basis for the


     This "piggyback" approach required MWRA and EPA cooperation in

two important ways.  First,  EPA and MWRA had to work together to

develop scopes of work for the field and analytical studies on which

their respective environmental impact analyses were to be based.

Agreement had to be reached on the type and amount of data needed,

the sampling and analytical methods to be used, and the methodologies

for predicting impacts.

     Second, because the EIR and the SEIS process were running

concurrently, and because the issues to be discussed in both

documents were the same, MWRA and EPA took part in a joint public

participation effort.  Both agencies utilized the same Citizen's

Advisory Committee (a group which had been established through MEPA

to provide balanced citizen input on issues related to the new

treatment plan design and construction)  and Regional Task Forces

(also established through MEPA to provide local input from towns

surrounding proposed residuals management sites).   Several joint

public meetings were held and a joint mailing list was developed for

dissemination of information related to residuals management.

     EPA of course was ultimately responsible for the SEIS being
prepared in compliance with NEPA and EPA's requirements for
environmental review.  Therefore, although the intent of the
"piggyback" process was to maximize the joint use of data and
analyses, an integral part of EPA's role in the environmental review
process was to independently review all work done by MWRA and to
modify or supplement it when necessary.
     The this "piggyback" approach held both advantages and
disadvantages for EPA in the cost, technical adequacy and public
participation aspects of the environmental review process.  Most
obviously,  the "piggyback" approach resulted in a savings in the cost
of the review because to a great extent both agencies were able to
utilize the same database and much of the same analyses.  MWRA, as
the agency responsible for the construction and operation of the new
sludge facilities, bore the major cost burden and took the lead in
collecting data and developing impact analyses.   EPA therefore needed
only to review the data and analyses as they were developed and to
supplement or modify them as it felt necessary for technical accuracy
or to comply with NEPA requirements. Because MWRA was paying for most
of the studies, however, and was more directly subject to MEPA than
to NEPA, EPA's ability to influence the scope of those studies was
sometimes hampered, as will be discussed further below.
     The "piggyback" approach also provided a means for the agencies
to agree in advance, to the extent possible, on which issues needed
to be addressed during the review process and how best to address
those issues.  Project managers from both agencies met on a bi-weekly
basis (along with representatives from the Massachusetts Department

of Environmental Quality Engineering) to discuss scopes of field

studies and methodologies for impact analyses.  In addition, subject

experts from both agencies (and their technical consultants) met on

an as-needed basis when major decisions were being made on

methodology.  For example, air dispersion modelers met to determine

the appropriate computer model and modeling assumptions to be used

for the air impacts analysis.  By meeting often and sharing data on a

continuous basis, both EPA and MWRA had the advantage of receiving

ongoing peer review and ensuring that the residuals management plan

recommended at the end of the review process would meet state and

federal regulations.  Another advantage of the frequent meetings

among technical personnel was that serious technical differences were

identified relatively early in each agency's review process, and

where the problems were not resolved, the agencies at least

understood their differences and could make provisions for conducting

their own separate analyses.

     Not surprisingly, however,  there often were technical

disagreements between the agencies which were tedious and time-

consuming to resolve.  For example, there are no generally accepted

methodologies for evaluating many of the potential project impacts,

such as impacts from wet and dry air pollutant deposition.  This

resulted in differences in the judgments of subject matter experts on

how to conduct such evaluations.  Since MWRA was funding the study

and had its own budgetary constraints to consider, EPA's opinions did

not always prevail.  Thus, EPA's role as a reviewer in the early

phases of the project put the agency at somewhat of a disadvantage,

and resulted in some areas of disagreement between EPA and MWRA that

could not be resolved.

     Another area where the "piggyback" approach had both positive

and negative results was that of public participation and education.

The scope of this project was very large  (over 300 potential sites

and 10 potential technologies were initially considered), and the

timeframe for environmental review and planning was very long (over 3

years).   In addition, the MWRA service area encompasses 43 towns and

cities in the metropolitan Boston area, and includes over 2.5 million

people,  all of whom contribute to the ongoing pollution problem in

Boston Harbor and all of whom will have a part in paying for new

treatment facilities.  The effort, then, involved in both informing

and soliciting input from the public was enormous, and the joint

public participation program allowed both agencies to share it.

Also,  the amount of information available to the public for review

was copious, and had EPA conducted a completely independent

environmental review process,  the number of documents to be reviewed

might have doubled, thereby decreasing the effectiveness of the

program by overwhelming the public.

     Another positive aspect of the joint public participation

program was that EPA functioned as something of a "safety net" for

the interested public in three ways.   First, because EPA was

critically reviewing all of MWRA's documents,  some town

representatives and environmental groups depended on EPA to provide

technical review and comment on a level that they could not provide

themselves.  Second, citizens and town representatives were able to

contact EPA when they felt that their concerns were falling on deaf

ears at MWRA.  This provided a second outlet for their fear and

 and increased their involvement in the process.  Lastly,

 cted as and was largely viewed as an objective player in

 making process, the Agency's ongoing review and close

 ith MWRA helped raise confidence in the integrity of the

  review process.

 hough, this joint effort had negative repercussions.

 eraction between EPA and MWRA was interpreted by some as

 11 between the agencies,  and the joint public

  program served to enforce that view for them.   Because

 were often physically on the same side of the room or at

 e at public meetings,  they were seen by some as having

  - to find a site for sludge management facilities

  the environmental or public welfare consequences.  The

iponsibilities and guiding statutes of the two agencies

is forgotten.  Joint MWRA and EPA appearances at public

5 put EPA in a delicate position when disagreements

'.en the two agencies as to environmental review

;, projected impacts or recommendations.  EPA was faced

Diem of communicating its position to the public without

.mportance of the disagreement to be blown out of

: the public to lose confidence in MWRA, which could have

 momentum of the siting process.

jgyback" approach for environmental review had one other

juence for EPA.  During the course of the environmental

33,  MWRA twice requested significant extensions to the

  compliance schedule established for that review.   As a

 case, EPA was able to comment to the Federal Court judge

as to the appropriateness of the requested extensions.  Because of

their close working relationship with MWRA on the project, EPA

technical staff were able to provide valuable input to Agency

attorneys on whether the extensions were truly needed.  Sometimes EPA

and MWRA technical personnel agreed that changes in the scope of

certain studies were necessary that compelled the schedule

extensions; other times EPA technical staff did not agree that

requested extensions were warranted.  Together, EPA technical staff

and attorneys were able to determine the most appropriate schedule

for completion of environmental review, and either agree on that

schedule with MWRA and other parties, or present the Agency's

opposing views to the Federal Court.  Again, though, the negative

side to this aspect of the "piggyback" approach was that MWRA staff

were sometimes less forthright with EPA technical staff than they

otherwise might have been because of the adversarial nature of the

Court case.


     Behind the complex relationship of the various agencies,

citizen's groups and municipalities involved in the environmental

review, the Federal Court case drove the planning process.  Althoua-

the filing of the case initially caused soire bad feelings among the

parties, the enforcement litigation ultimately had many positive

effects on the planning process.

     The most significant cause of these positive results was the

Court's incorporation in its Orders of schedules for all the major

milestones in the environmental review process.  These schedules
provided a discipline to the planning process that was lacking in the
past efforts to address the problem of sludge discharges.  In other
words, in the past it was always easier to do another study than to
actually site facilities in a community and pay for their operation.
The court's Orders changed this, since failures to comply with these
Orders could have constituted contempt of Court and subjected MWRA to
huge fines.
    The Court's schedules provided meaningful tools for both
measuring and spurring MWRA's progress on the residuals management
program.  Yet, it was important that the schedules were not merely
arbitrary creations of the Court.  The parties' legal and technical
representatives negotiated at length over the various residuals
management timetables.  Once agreed upon by the parties,  they were
adopted by the Court as enforceable orders.  Thus, the expertise and
interests of the various parties were reflected in each of the
schedules so that the full time needed for completing studies would
be accounted for.  This helped to enhance the schedules'  legitimacy
and utility as measures of progress.  The parties attempted to
heighten the schedules' utility by making them detailed enough to
provide a useful measure of progress on significant milestones,  but
not so detailed as to "micro-manage" MWRA in a way that would rob it
of necessary flexibility in certain areas.  Of course, the parties
did not always agree on how best to balance these two goals.
     Yet, even when the parties could not agree on schedules, the
Court's presence ensured that the project would not bog down.
Conflicting schedule proposals had to be submitted to the Court for

resolution.  In such cases, the Court ultimately decided the
controversies and imposed a clear schedule for all to follow.
Furthermore, although the Court's scheduling Orders did place time
pressure on the parties involved in the planning and review process,
such pressure was clearly warranted given the extent and duration of
the Clean Water Act violations which needed to be corrected.
     The schedules1 success as measures of progress was ensured by
their requirement that MWRA report to the Court and parties on its
progress on a monthly basis.  Together with the high level of
interaction among the agencies' technical staff, this enabled EPA,
the Court and other parties to closely monitor MWRA's progress.
Thus, EPA was able to act as a "watchdog" over MWRA compliance with
the project schedules.  When it believed MWRA was in danger of
slipping behind schedule,  EPA reported its concerns to the Court and
often requested Court directives to address the problem.  This kept
the pressure on MWRA to address scheduling problems expeditiously.
     The Court also provided a venue for resolving disputes arising
out of instances in which MWRA did not meet the schedules.   In some
cases, MWRA, EPA and other parties simply agreed to schedule
extensions in response to changed circumstances or new information,
as discussed earlier.  In other cases, MWRA completed steps after
deadlines had passed and explained its reasons for delay to the Court
and parties.  In such cases, all parties had to react to delays in a
reasonable manner because any disputes would ultimately be decided by
the Court.  If a problem could not be resolved, EPA had the
opportunity to request action by the Court,  and the Court had the
ability, after hearing from the other parties, to penalize MWRA for

 ays  and to  rearrange future  schedules  to  make up the

 ,2, the  scheduling Orders served  as  both a sword at
  a shield in  its hand.  They acted  as  a sword because
 anctioned for violating them.  They acted as  a shield
 .lied MWRA the option of unilaterally extending the
 2view timetables.  Extension of  the deadlines in the
 could only  be granted by the Court  itself.  This lack
 elped MWRA  resist political  pressure by municipalities
 entive  to delay the process.   Indeed,  schedule
  frequently suggested by the municipalities considered
 sts  for residuals management facilities.   These
 potentially had an interest  both in delaying  a final
  gaining even more time to search for  possible flaws
  which  resulted in their selection  as  potential host
 f course, there were instances when MWRA  and  EPA
 t least did not oppose, reasonably  justified  extension
 erested municipalities. Thus,  the Court-ordered
 EPA  in  its  role as "watchdog"  over  schedule
 ng with MWRA's own will to complete the project,  all
 e residuals management program toward  completion.
iarion of  an enforcement action with a  "piggyback"
-eview was a productive and probably necessary  approach
{arbor residuals management problem.  An enforcement

action was necessary to address the long-standing and ongoing illegal
sludge discharges.  It was especially necessary given the long
history of ineffective corrective action.  At the same time, the
enforcement action was productive because the court-ordered schedules
countered the many incentives in favor of delay and inaction, and
because the Court provided a venue for resolving major disputes over
the scheduling of the residuals management program.
     The "piggyback" environmental review process was necessary to
maximize the efficiency and cost-effectiveness of the federal and
state environmental review efforts in the face of the project's
extreme complexity and the need to complete it according to the
court-ordered schedule.  The "piggyback" process was productive
because it allowed the agencies' staffs to share technical
information and identify issues early in the process of preparing the
various environmental impact reports, and to share the task of
educating and responding to the interested public.
     The main problems with the approach were (1) that the
enforcement action at times raised the level of antagonism among t.*.e
parties, which sometimes hindered fully open sharing of information-
(2) that the desire to resolve disputes over difficult technical
issues resulted in time-consuming discussions that did not always
produce agreement in the end; and (3) that some (though not many)
mistook the high level of EPA/MWRA interaction necessary to complete
a piggy-back EIS for evidence of a conspiracy among the agencies t:
reach a particular decision together.  We believe, however, that on
balance the overall approach was sound and that these drawbacks,
although troublesome, did not negate the usefulness of the approacr*


1.  National Oceanic and Atmospheric Administration, National Status

and Trends Program for Marine Environmental Quality Progress Report.

NOAA Technical Memorandum NOS OMA 38, p. 19, NOAA, Rockville, MD,

December, 1987.

2.  Metcalf and Eddy, Inc., Wastewater Engineering and Management

Plan for Boston Harbor - Eastern Massachusetts Metropolitan Area EMMA

Study, for the Massachusetts Metropolitan District Commission,

Boston, MA, March, 1976.

3.  Chayes, A., The Role of the Judge in Public Law Litigation,

Harvard Law Review. 89 pg., pp. 1281-1316, 1976.

4.  Section 402(h) of the Clean Water Act, 33 U.S.C. §1342(h).

5.  Judge D. Mazzone, Memorandum and Order. September 5, 1985,

pp. 33-34 in the case of United States v. Metropolitan District

Commission, et al. (D.Mass. C.A. No. 85-0489-MA).

6. Regulations for Implementing the Procedural Provisions of the

National Environmental Policy Act, 40 CFR 1506.2, 1988.


     This article was written by Gwen S. Kuta and Mark A. Stein IT.

their private capacities.  No official support or endorsement by t-e

Environmental Protection Agency or any other agency of the Federa.

Government is intended or should be inferred.

               Chronology of the Boston Harbor Cleanup

1977 - Clean  Water Act  updated  to  allow for  waiver  of secondary
       treatment requirement (Section "391(h)" waiver)
1979 - Metropolitan District Commission (MDC) applies for 301(h) waiver
1983 - 301(h)  waiver tentatively denied by EPA
1985 - 301(h)  waiver denied after submittal of additional  information
       Massachusetts Water Resources Authority (MWRA)  created  by  state
       legislation to take over water and sewer authorities of MDC
       EPA motion filed in Federal Court
       EPA issues  Final  EIS for  siting of  new  secondary wastewater
       treatment facilities  (at Deer Island); includes commitment to
       further environmental reviews for outfall and sludge management
2/86 - Record of Decision on siting  issued by EPA
5/86 - Court issues long-term scheduling order with deadlines for new
       treatment and cessation of sludge discharges;  later amended to
       include schedule for Combined Sewer Overflow (CSO)  planning
2/87 - Amendment  to  Clean  Water  Act   authorizes appropriation  of
       $100,000,000 for Boston Harbor Projects (Section  513)
4/88  -  EPA  and Commonwealth of  Massachusetts agree  on past penalty
       settlement, creating Mass Bay Trust Fund
8/88 - EPA issues Final Supplemental EIS on location  of  outfall
5/89 - Court  schedule milestone  for Draft Supplemental EIS on sludge
1991 - MWRA to cease discharge of sludge to Boston Harbor
1999 - MWRA to complete construction of  secondary treatment facilities
Corps of Engineers involvement;  Department of Army permits authorized
by Section 404 of the Clean Water Act, Section 103 of the Ocean Dumping
Act, and Section 10 of the Rivers and Harbors Act.   Some have already
been issued, and more will likely be required.