Stop the Outfall Pipe, Inc. v. Massachusetts Water Resources Authority

419 Mass. 1
CourtMassachusetts Supreme Judicial Court
DecidedNovember 17, 1994
StatusPublished
Cited by3 cases

This text of 419 Mass. 1 (Stop the Outfall Pipe, Inc. v. Massachusetts Water Resources Authority) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stop the Outfall Pipe, Inc. v. Massachusetts Water Resources Authority, 419 Mass. 1 (Mass. 1994).

Opinion

Greaney, J.

The plaintiffs filed a complaint in the Supreme Judicial Court for Suffolk County pursuant to G. L. c. 132A, § 18 (1992 ed.), G. L. c. 231 A, § 1 (1992 ed.), and G. L. c. 214, § 7A (1992 ed.), seeking declaratory and injunctive relief against the defendants, the Massachusetts Water Resources Authority (MWRA), and the Department of Environmental Management (department). The plaintiffs alleged in their complaint that both MWRA and the department have misinterpreted critical provisions of the Massachusetts Ocean Sanctuaries Act, G. L. c. 132A, §§ 12A-16F, and § 18, as amended by St. 1989, c. 728, §§ 2-5 (Act). The plaintiffs claim that the erroneous interpretation placed on the Act by MWRA and the department has resulted in a failure on the part of MWRA to apply for a variance under §§ 16-16F of the Act for the construction and operation of a wastewater outfall tunnel (tunnel), and that the department has failed to enforce the Act as it applies to MWRA. The parties filed a statement of agreed facts with a single justice of this court who allowed their joint motion to reserve and report the case, without decision, to the full court in order to answer the following question:

“Must the Massachusetts Water Resources Authority obtain a variance under the Massachusetts Ocean Sanctuaries Act to construct and operate the outfall tunnel and discharge pipe which has its terminus outside the [3]*3boundaries of an ocean sanctuary, as described in the statement of agreed facts?”

We conclude that MWRA does not need to obtain a variance from the department under the Act in order to build and operate the tunnel, and consequently, answer the question, “no.”

We first set out the facts and then summarize the pertinent provisions of the Act. The statement of agreed facts is as follows:

“1. In 1973 the Massachusetts Legislature enacted the Ocean Sanctuaries Act, M. G. L. c. 132, §§ 12A through 16 and 18 (the Act). The Act, as amended to the present time [by St. 1989, c. 728, §§ 2 through 5], creates five Ocean Sanctuaries .... The Act is administered by [the department].
“2. By a Special Act of the Legislature in 1984, [MWRA] was created and charged with planning, designing and constructing the facilities necessary to bring the sewer system for the Metropolitan Boston area into compliance with state and federal law (Boston Harbor Project).
“3. In 1991, Stop The Outfall Pipe, Inc. (STOP) was formed. Its members believe that municipal wastewater, treated at the Deer Island Treatment Plant (DITP), and discharged through the tunnel described below will have an adverse impact on Massachusetts and Cape Cod Bays, and the ocean sanctuaries which are a part thereof and assert that the tunnel is subject to the Act and [that] the MWRA is required by the Act to seek a variance from the prohibitions set forth therein.
“4. Since 1985 the MWRA has been subject to orders of the United States District Court for the District of Massachusetts to plan, design, and construct various sewage treatment facilities to bring the Metropolitan [4]*4Boston area’s sewage system into compliance with the Clean Water Act, 33 U.S.C. § 1251, et seq. A central feature of this project is the outfall tunnel that is the subject of this case.
“A. The Outfall Tunnel.
“5. The MWRA has incorporated into the design of the treatment facilities on Deer Island and the Boston Harbor Project, an outfall tunnel (the tunnel) for the discharge of municipal wastewater, treated at DITP, from the City of Boston and 42 greater-metropolitan municipalities into Massachusetts Bay.
“6. The tunnel, with a diameter of 24 feet, will extend 9.5 miles into Massachusetts Bay. The last mile of the tunnel will be intersected by 55 vertical diffuser-riser pipes. Each diffuser pipe is about 30 inches in diameter and topped by a diffuser cap with eight nozzles to release the municipal wastewater, treated at DITP. Construction of various portions of the outfall and diffusers began in 1990 and 1991. When operable, the tunnel will discharge municipal wastewater, treated at DITP, into Massachusetts Bay at a depth of 100-120 feet below the ocean surface. . . .
“7. The tunnel was originally scheduled to be in operation by 1995 pursuant to the Federal Court order. The MWRA has informed the Federal Court that it will not be able to meet that milestone. In accordance with the present court order, a new treatment facility providing primary treatment will be in operation in 1995, replacing the currently operating plants, to be followed successively by four batteries of secondary treatment facilities, providing secondary treatment for an increasing percentage of the primary-treated municipal wastewater being discharged through the outfall tunnel. Battery A is scheduled to be completed in 1996; Battery B is scheduled to be completed in 1998; and Batteries C and [5]*5D are scheduled to be completed in 1999. The MWRA has informed the Federal Court that it is currently investigating the possibility that some part of Batteries' C and D may not be necessary to bring the area sewage system into compliance with the Federal Clean Water Act. Any proposal not to build Batteries C, D or both would be subject to Federal Court approval. Depending on when the outfall is completed, it is possible that primary treated municipal wastewater will be discharged through the outfall tunnel for an interim period, as allowed in the Federal Court Schedule.
“8. On an average day, the tunnel will discharge 400 million gallons of municipal wastewater, treated at DITP, with a design capacity of 1.2 billion gallons. The combined daily flows of the Mystic, Charles and Neponset Rivers are approximately 522 million gallons of water.
“B. The Outfall Location Relative to Massachusetts Ocean Sanctuaries.
“9. The terminus of the tunnel' is located approximately 2.77 nautical miles (3.19 statute miles) from the South Essex Ocean Sanctuary, approximately 5 and 6.5 nautical miles from Nahant and Marblehead, respectively, and approximately 25 nautical miles from the Cape Cod Bay Ocean Sanctuary. It is not located within boundaries of any ocean sanctuary. . . .
“10. When discharged from the outfall pipe, the treated municipal wastewater will be diluted by the surrounding sea water. At some level of dilution, however great or small, constituent materials from the discharge will enter the South Essex and Cape Cod Bay Ocean Sanctuaries, carried by winds, currents and other physical forces.
[6]*6“C. Permits.
“11. The MWRA has various permits, approvals, certificates and other state and federal action or documentation (collectively, ‘permits’) to construct and operate the outfall tunnel. To date the following permits have been received for the outfall tunnel and diffusers:

Description of

Agency Date of Permit Permit

Mass. Exec. Off. May 18, 1988 Certificate of Com-

Envir. Affairs pliance with Mass.

Environmental Policy

Act (MEPA), G. L.

c. 30, § 61 et seq.

U.S.

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Bluebook (online)
419 Mass. 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stop-the-outfall-pipe-inc-v-massachusetts-water-resources-authority-mass-1994.