2004 | Cited 0 times | D. Massachusetts | October 13, 2004


This is the one hundred and ninety-third Compliance Order thathas issued in this litigation. The Massachusetts Water ResourcesAuthority (MWRA) filed its Quarterly Compliance and ProgressReport (Quarterly Report) on September 15, 2004. The ConservationLaw Foundation (CLF) filed a response, while the United Stateshas chosen to forgo comment. I have additionally reviewed theAdvisory Board's Summary of the MWRA's Board of Directors' Meetings for the last Quarter. Iaccept the MWRA's Quarterly Report and make the followingfindings.

1. Schedule Six

A. Activities Completed

There were no Schedule Six activities during the last quarter.

B. Quarterly Progress Report

1. Combined Sewer Overflow (CSO) Program

(a) North Dorchester Bay and Reserved Channel ConsolidationConduits and CSO Facility

The MWRA reports that on July 16, 2004, the Secretary ofEnvironmental Affairs certified compliance of the MWRA's recentlyadopted plan for long term CSO control for North Dorchester Baywith MEPA policies and regulations. The Secretary authorized theMWRA to proceed to the final design and permitting stage,declaring the project "another major advancement" in the cleanupof Boston Harbor, offering "major benefits to the environment andpeople of Massachusetts." MEPA Certificate, at 2.

The Secretary nonetheless raised a number of concerns about theproject, the most significant of which involves the discharge ofstormwater run-off into Savin Hill Cove in the event of a stormat or greater than the one-year level. The Secretary urged theMWRA to include floatables control at the Savin Hill Covedischarge point, and directed the MWRA to submit Section 61Findings relative to project-related impacts on Savin Hill Coveand South Dorchester Bay. The MWRA is also required to report onplans to monitor water quality in North Dorchester Bay and theReserved Channel. According to the Quarterly Report, the MWRA has begun the compilation of Section 61Findings.

In response to a number of concerns raised with regard to theextended project schedule, the MWRA expedited the design processfor the storage tunnel. Under the revised design schedule, theMWRA is to award the contract for tunnel construction in thespring of 2006, a full year earlier than the award datecontemplated by the Supplemental Facilities Plan/EnvironmentalImpact Report (SFP/EIR). In addition, the MWRA expects tocomplete the construction of the Pleasure Bay stormwaterrelocation improvements by May of 2006. Moreover, a Notice toProceed on the design contract for the Conley Terminal pumpstation complex is to issue by May 2007. The date for breakingground on the construction of the pump station, however, remainsuncertain. If the site of the tunnel shaft can be shared with thecontractor chosen to build the complex, construction of theConley Terminal facilities will begin before the conclusion ofthe tunnel mining process. If such an accommodation is notfeasible, construction will begin only after the tunnel iscompleted. Finally, the MWRA reports that it is developing plansto complete work with regard to the permitting process, but notesthat regulatory and legislative oversight, as well as publicconcerns, may potentially impact the schedule.

(b) The Union Park Detention and Treatment Facility

The MWRA reports that as of the end of August 2004,construction of the Union Park facility is 43 percent complete.Contractor delays may require extension of the project completiondate from September 29, 2005, to January 16, 2006.

(c) Cambridge Sewer Separation

According to the Quarterly Report, the City of Cambridge iscontinuing final design work on the construction of the new storm drain outfall andstormwater wetland detention basin. Design work is now 75 percentcomplete, and the City has received an Order of Conditions fromthe Cambridge Conservation Commission. A citizens group, however,has filed an appeal with the Department of EnvironmentalProtection (DEP) seeking a Superseding Order of Conditions.

The City of Cambridge has undertaken to submit the secondsupplemental preliminary design report for the revised AlewifeBrook sewer separation plan in the not too distant future. Theimplementation of floatables control, however, has been delayedbecause of structural deficiencies and, consequently, Cambridgedoes not expect to complete construction at all outfall locationsuntil December of 2006. As of this Report, only outfall CAM401Ahas floatables control.

(d) Alewife Brook/Upper Mystic River Basin Variances

The MWRA reports that DEP has issued a three year extension tothe Alewife Brook/Upper Mystic River Basin variance afterdetermining that no feasible means to eliminate CSO dischargeshas been identified. The MWRA will continue its water qualitymonitoring program and will review the assessment reports by theCities of Somerville and Cambridge to determine if there are anyfeasible, cost effective alternatives for CSO control measures.

(e) Storage Conduit for BOS 019

The MWRA reports that the updated construction cost for thisproject is $7.2 million, far greater than the $2.3 millionestimate set out in the 1997 Final CSO Facilities Plan andEnvironmental Impact Report. The increase in cost is attributableto the need for a larger storage conduit, new security requirements, the higher costs ofhandling hazardous waste, and special excavation measures neededto protect the Tobin Bridge footings. The MWRA indicates that themore elaborate design requirements will necessitate a six monthextension of the milestone set in Schedule Six, and states thatit will shortly propose extensions to the schedule. The MWRAexpects to open bidding on construction in November of 2004, witha view to commencing construction in March of 2005 in compliancewith Schedule Six.

(f) The Quarterly CSO Progress Report

The MWRA has submitted a CSO Progress Report summarizingprogress made in the design and construction of CSO projectsduring the previous quarter. In addition to the projects alreadymentioned, I note that the Boston Water and Sewer Commissioncontinues to make progress on the sewer separation projects inSouth Dorchester Bay, Stony Brook, and the Fort Point Channel. Inaddition, in August of 2004, the MWRA met with EPA and DEP toseek a consensus on a plan to complete the East Boston BranchSewer Relief project.

In its comments, CLF expresses support for the Secretary'sencouragement of the MWRA's role in partial stormwater relief andfloatables control. CLF, however, repeats its previouslyexpressed concern over the lengthy construction schedule, whileasking to be included in the MWRA's discussions on this topicwith EPA, DOJ, and DEP. While the pace of construction raiseslegitimate concern, the parties recognize that the complexity ofthe end phase now being undertaken will require that mattersproceed with deliberate speed to insure the integrity of thepermitting process and the durability and costeffectiveness of the work that remains to be done. I would nonethelessencourage the MWRA to include the CLF in the discussionsregarding the schedule, so that all parties will have an informedand realistic understanding of the challenges presented by thework that remains to be done. The parties and the general publichave a compelling interest in seeing this project to completionin the shortest time possible.

2. Concluding Remarks

In reviewing the many Orders that have entered in this case, Inote that it has been Judge Mazzone's practice to acknowledgethose who, having for whatever reason relinquished their role,were nonetheless instrumental in achieving his goal of a"fishable and swimmable" Boston Harbor. It is now time toreciprocate his generosity. His request that I assumeresponsibility for this case, which is so dear to his heart, andto which he devoted so much of his long and distinguishedjudicial career, while a great personal compliment, is one that Iaccept with humility. Never has the metaphor of standing on theshoulders of a giant been more apt. In familiarizing myself withthe rich archives that are a part of Judge Mazzone's legacy, Ihave come to understand how, through acumen and force ofpersonality, he accomplished what cynics had said was impossibleto achieve, a harbor environmentally worthy of a City as great asBoston. Judge Mazzone's approach was hands-on — whether the taskrequired the insight of an engineer, a scientist, anenvironmentalist, a sandhog, a legislator, or a shop steward —Judge Mazzone was able to step into the role without evercompromising the legal principles to which he is devoted. Nodetail of this immense project was too small to escape hisattention, nor was any challenge too large to frustrate hisvision of what could be achieved. He was willing to use his power as a judge if necessary, but he had little use forjudicial fiat. His preference, as in all things, was forpersuasion, conciliation, and cooperation, all with the ultimategoal of advancing the public interest. His respect for everyoneinvolved in this project, and the reciprocal respect andaffection that has been felt for him, is the reason why the goalof a healthy Boston Harbor is in reach. Few judges will ever weara hard hat with the natural ease that Judge Mazzone displayed onhis fabled visits to Deer Island and the other construction sites— he was after all a steelworker in his youth — and few couldcommand the authority that he as a four star judicial generalexudes, but I will do my best to see things done as I know hewishes them to be. I look forward to working with the parties tothis case, who under Judge Mazzone's guiding presence, by theircollaborative effort have made the impossible an attainablereality.


The parties are ordered to report to the Court on the schedulepreviously established by Judge Mazzone.


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