Town of Norfolk v. United States Army
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Town of Norfolk v. United States Army, (1st Cir. 1992).
Opinion
USCA1 Opinion
July 15, 1992 ____________________
No. 91-2215
TOWN OF NORFOLK AND TOWN OF WALPOLE,
Plaintiffs, Appellants,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Campbell and Bownes, Senior Circuit Judges.
_____________________
_____________________
Stephen D. Anderson for appellant Town of Norfolk and John
___________________ ____
W. Giorgio for appellant Town of Walpole, with whom Leonard
___________ _______
Kopelman, Kopelman and Paige, P.C., Anderson & Kreiger,
________ ____________________________ _____________________
Christopher H. Little and Tillinghast, Collins & Graham, were on
_____________________ _____________________________
brief.
George B. Henderson II, Assistant United States Attorney,
_______________________
with whom Barry M. Hartman, Acting Assistant Attorney General,
_________________
Environment and Natural Resources Division, Wayne A. Budd, United
_____________
States Attorney, William B. Lazarus, Stephen L. Samuels,
_____________________ _____________________
Elizabeth Yu, Attorneys, Department of Justice, Steven H.
_____________ __________
Goldberg, of counsel Gary Pasternak, Assistant District Counsel,
________ ______________
Department of the Army, Corps of Engineers, were on joint brief
for appellees United States Army Corps of Engineers and
Massachusetts Water Resources Authority.
____________________
____________________
-2-
TORRUELLA, Circuit Judge. On this appeal, the Towns of
_____________
Walpole and Norfolk challenge the decision of the U.S. Army Corps
of Engineers ("Corps") to issue a permit under Section 404 of the
Clean Water Act1 to allow the Massachusetts Water Resources
Authority ("MWRA") to place fill in an artificial wetland located
in the Town of Walpole and adjacent to the Town of Norfolk.2
The district court, in a comprehensive opinion, found that the
Corps' determinations under Section 404 were not arbitrary,
capricious or otherwise not in accordance with law and therefore
it granted summary judgment in favor of the Corps, its district
engineer for New England, and the MWRA (collectively referred to
herein as defendants). Norfolk & Walpole v. U.S. Army Corps of
_________________ __________________
Engineers, 772 F. Supp. 680 (D. Mass. 1991).
_________
In addition, the Towns challenge (1) the district
court's decision to allow a motion by defendants to quash
subpoenas and for a protective order to prevent discovery of
certain documents3 and (2) the district court judge's denial of
the Towns' motion for his recusal pursuant to 28 U.S.C.
____________________
1 33 U.S.C. 1344.
2 In a related appeal, the Towns challenged the adequacy of the
supplemental environmental impact statement prepared by the
United States Environmental Protection Agency ("EPA") for the
proposed landfill. Norfolk v. United States EPA, 761 F. Supp.
_______ _________________
867 (D. Mass. 1991). We affirmed the district court's grant of
summary judgment in favor of the EPA and its Administrator.
3 Norfolk & Walpole v. U.S. Army Corps of Engineers, 137 F.R.D.
_________________ ____________________________
183 (D. Mass. 1991).
-3-
455(a).4 We affirm the rulings and decisions of the district
court for the reasons that follow.
I
A. Factual Background
A. Factual Background
__________________
This appeal is an offspring of the colossal effort to
clean up Boston Harbor. This particular controversy -- involving
the issuance of a permit to construct and operate a landfill in
Walpole -- has been described elsewhere in detail.5 We
therefore summarize the facts pertinent to this appeal.
Pursuant to a compliance plan approved by the District
Court for the District of Massachusetts to abate the discharge of
inadequately treated wastewater and sewage sludge and other
residuals into Boston Harbor, the MWRA was required, among other
remedies, to construct and operate a landfill by March 1994 to
hold grit, screenings and, if necessary, digested or heat-dried
sludge from its wastewater treatment facilities. See generally
___ _________
United States v. Metropolitan Dist. Comm'n, 23 Env't Rep. Cas.
______________ __________________________
1350 (D. Mass. 1985). In 1986 the MWRA began to work closely
with the U.S. Environmental Protection Agency (EPA) to find
possible alternatives for both sludge management technologies and
____________________
4 Section 455(a) provides:
Any justice, judge, or magistrate of the
United States shall disqualify himself,
_____
in any proceeding in which his
impartiality might reasonably be
questioned.
5 United States v. Metropolitan Dist. Com., 757 F. Supp. 121,
_____________ _______________________
123-26 (D. Mass. 1991), aff'd, 930 F.2d 132
Free access — add to your briefcase to read the full text and ask questions with AI
USCA1 Opinion
July 15, 1992 ____________________
No. 91-2215
TOWN OF NORFOLK AND TOWN OF WALPOLE,
Plaintiffs, Appellants,
v.
UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Torruella, Circuit Judge,
_____________
Campbell and Bownes, Senior Circuit Judges.
_____________________
_____________________
Stephen D. Anderson for appellant Town of Norfolk and John
___________________ ____
W. Giorgio for appellant Town of Walpole, with whom Leonard
___________ _______
Kopelman, Kopelman and Paige, P.C., Anderson & Kreiger,
________ ____________________________ _____________________
Christopher H. Little and Tillinghast, Collins & Graham, were on
_____________________ _____________________________
brief.
George B. Henderson II, Assistant United States Attorney,
_______________________
with whom Barry M. Hartman, Acting Assistant Attorney General,
_________________
Environment and Natural Resources Division, Wayne A. Budd, United
_____________
States Attorney, William B. Lazarus, Stephen L. Samuels,
_____________________ _____________________
Elizabeth Yu, Attorneys, Department of Justice, Steven H.
_____________ __________
Goldberg, of counsel Gary Pasternak, Assistant District Counsel,
________ ______________
Department of the Army, Corps of Engineers, were on joint brief
for appellees United States Army Corps of Engineers and
Massachusetts Water Resources Authority.
____________________
____________________
-2-
TORRUELLA, Circuit Judge. On this appeal, the Towns of
_____________
Walpole and Norfolk challenge the decision of the U.S. Army Corps
of Engineers ("Corps") to issue a permit under Section 404 of the
Clean Water Act1 to allow the Massachusetts Water Resources
Authority ("MWRA") to place fill in an artificial wetland located
in the Town of Walpole and adjacent to the Town of Norfolk.2
The district court, in a comprehensive opinion, found that the
Corps' determinations under Section 404 were not arbitrary,
capricious or otherwise not in accordance with law and therefore
it granted summary judgment in favor of the Corps, its district
engineer for New England, and the MWRA (collectively referred to
herein as defendants). Norfolk & Walpole v. U.S. Army Corps of
_________________ __________________
Engineers, 772 F. Supp. 680 (D. Mass. 1991).
_________
In addition, the Towns challenge (1) the district
court's decision to allow a motion by defendants to quash
subpoenas and for a protective order to prevent discovery of
certain documents3 and (2) the district court judge's denial of
the Towns' motion for his recusal pursuant to 28 U.S.C.
____________________
1 33 U.S.C. 1344.
2 In a related appeal, the Towns challenged the adequacy of the
supplemental environmental impact statement prepared by the
United States Environmental Protection Agency ("EPA") for the
proposed landfill. Norfolk v. United States EPA, 761 F. Supp.
_______ _________________
867 (D. Mass. 1991). We affirmed the district court's grant of
summary judgment in favor of the EPA and its Administrator.
3 Norfolk & Walpole v. U.S. Army Corps of Engineers, 137 F.R.D.
_________________ ____________________________
183 (D. Mass. 1991).
-3-
455(a).4 We affirm the rulings and decisions of the district
court for the reasons that follow.
I
A. Factual Background
A. Factual Background
__________________
This appeal is an offspring of the colossal effort to
clean up Boston Harbor. This particular controversy -- involving
the issuance of a permit to construct and operate a landfill in
Walpole -- has been described elsewhere in detail.5 We
therefore summarize the facts pertinent to this appeal.
Pursuant to a compliance plan approved by the District
Court for the District of Massachusetts to abate the discharge of
inadequately treated wastewater and sewage sludge and other
residuals into Boston Harbor, the MWRA was required, among other
remedies, to construct and operate a landfill by March 1994 to
hold grit, screenings and, if necessary, digested or heat-dried
sludge from its wastewater treatment facilities. See generally
___ _________
United States v. Metropolitan Dist. Comm'n, 23 Env't Rep. Cas.
______________ __________________________
1350 (D. Mass. 1985). In 1986 the MWRA began to work closely
with the U.S. Environmental Protection Agency (EPA) to find
possible alternatives for both sludge management technologies and
____________________
4 Section 455(a) provides:
Any justice, judge, or magistrate of the
United States shall disqualify himself,
_____
in any proceeding in which his
impartiality might reasonably be
questioned.
5 United States v. Metropolitan Dist. Com., 757 F. Supp. 121,
_____________ _______________________
123-26 (D. Mass. 1991), aff'd, 930 F.2d 132 (1st Cir. 1992).
_____
-4-
potential sites for the landfill. Eventually four technologies
and ten potential sites were identified from a field of 299
sites.
Additional evaluation was conducted to further screen
the potential sites for detailed analysis. The criteria used at
this stage of the screening included environmental standards,
such as ecology and air quality and potential groundwater
effects, and non-environmental criteria, such as cost and the
extent to which potential communities were already hosting
permanent wastewater treatment facilities. This screening stage
eliminated four sites on environmental and other grounds. Of the
remaining six sites, four were further evaluated for sludge
processing, while two sites -- Rowe Quarry and MCI-Walpole --
were further evaluated for a landfill operation.
In February of 1989, the MWRA issued its Draft
Environmental Impact Report and Draft Residuals Management
Facilities Plan ("DEIR"). The MWRA proposed to process sludge at
the Fore River Staging Area in Quincy, Massachusetts and to
landfill the residuals at the MCI-Walpole site. In May of 1989,
EPA issued a Draft Supplemental Environmental Impact Statement
("DSEIS"). In its analysis of the proposed landfill at Walpole,
EPA identified two major critical groundwater supplies. First,
the Massachusetts Department of Corrections maintains a number of
public water supply wells located in the Charles River Watershed
Aquifer to the west of the proposed landfill. These wells supply
drinking water to the MCI-Norfolk and MCI-Walpole prison
-5-
facilities. Second, to the east of the landfill site is the head
of the Neponset Sole Source Aquifer.6 This sole source aquifer
serves several wells that are the only source of drinking water
to the residents of the Town of Walpole.7 EPA concluded that
the nearest of these wells is located more than two miles from
the landfill site and is separated from the landfill by soils of
low permeability. In March 30, 1990, EPA formally approved the
construction and operation of the landfill at the Walpole site.
Pursuant to Section 404 of the Clean Water Act,8 the
Corps is required to review permit applications for proposal to
dredge and fill wetlands under the standards set forth in 33
C.F.R. 320.4(a)(1) and 40 C.F.R. 230. In May 1990, the MWRA
submitted a revised permit application describing all of its
proposed projects to clean Boston Harbor, including the Walpole
landfill.9
On July 12, 1990, the Corps issued a public notice
____________________
6 A sole source aquifer is a designation given by EPA to the
principal or sole source of drinking water for a given area. The
western boundary of the Neponset Sole Source Aquifer runs to the
east of the MCI-Walpole landfill.
7 In addition, south of the landfill are wells that supply
drinking water to Southwood Hospital and north of the landfill
are wells which supply drinking water to private residences, a
horse ranch and a dog kennel.
8 33 U.S.C. 1344.
9 The projects included the construction of a headworks facility
for preliminary treatment of sewage on Nut Island, a 5 mile
inter-island wastewater tunnel between Nut and Deer Island, a 9.5
mile effluent outfall tunnel and diffuser from Deer Island to
offshore waters, a sludge processing facility at Quincy, and the
residuals landfill at issue in this case.
-6-
concerning the MWRA's application, which proposed to set aside
forty-six acres of a ninety-four acre plot located in the Town of
Walpole and adjacent to the Town of Norfolk. Under MWRA's
proposal, a 600 square foot area of man-made wetland located in
the center of the proposed project would be filled. This
wetland, also known as Wetland E, was created by the
Massachusetts Department of Corrections as an obstacle course for
training prison guards. The National Marine Fisheries Service
and the U.S. Fish and Wildlife Service submitted a comment form
indicating no objection to the project. EPA and the MWRA
submitted comments in support of the proposed landfill. However,
the Towns of Norfolk and Walpole submitted detailed objections to
the MWRA proposal.
The Towns objected to the proposed landfill essentially
on four grounds. First, the Towns claimed that the MWRA had
failed to demonstrate that no practicable alternative having less
adverse impact on the aquatic ecosystem existed as required under
40 C.F.R. 230.10(a). Second, the Towns argued that the
landfill would eliminate over fifty percent of the surface water
supply to a portion of an adjacent wetland, thus allegedly
causing substantial disruption to the overall wetland resource,
including a significant adverse impact on a vernal pool10
located within 100 to 150 feet of the landfill footprint. Third,
the Towns alleged that the proposed landfill would adversely
____________________
10 Vernal pools serve as the sole breeding habitat for certain
amphibian species and provide breeding and feeding habitat for a
variety of other species.
-7-
impact wildlife habitats for the great blue heron and the pied-
billed grebe. Fourth, the Towns claim that the MWRA disregarded
the adverse impact the proposed landfill would have on
groundwater resources.
David H. Killoy, a branch supervisor of the Corps'
Regulatory Division, also opposed the MWRA's application to
construct and operate the landfill in Walpole. In a draft
memorandum dated December 24, 1990, Mr. Killoy found two unique
conditions which, in his opinion, required that the permit be
denied because it failed "two parts of the 404(b)(1) guidelines
and it is contrary to the public interest."11 First, the MWRA
had failed to demonstrate the nonexistence of a practicable
alternative to the landfill would have less adverse impact on the
aquatic ecosystem. Mr. Killoy concluded that even a small threat
to the Neponset Sole Source Aquifer in the area constituted a
significant adverse environmental consequence. Second, the
discharge of fill may contribute to a significant degradation of
the waters of the United States, in this instance, the wells
which supply drinking water. Mr. Killoy also noted that in the
Corps' review of the Central Artery and Tunnel Project, he had
identified a "wide range of sites which were available for land
fill."12
In light of the claims by Mr. Killoy and the Towns, the
Corps' Regulatory Branch requested its Hydraulics and Water
____________________
11 Memorandum by David H. Killoy, dated December 24, 1990, at 7.
12 Id. at 6.
__
-8-
Quality Branch, Water Control Division to examine the available
reports and data on groundwater impacts and to prepare a
technical report on the potential risk for contamination of the
water supplies. The ensuing report recommended that the
monitoring system be expanded to include at least one monitoring
well to detect any leachate13 escaping towards the Neponset
Sole Source Aquifer. The report concluded "that the risk to
drinking water supplies from [the Walpole] landfill is
minor."14
On January 23, 1991, Mr. Killoy submitted a final
memorandum summarizing his continued opposition to the Walpole
landfill. Mr. Killoy asserted that the MWRA had not clearly
demonstrated that Walpole was the "least environmentally damaging
practicable alternative" for the following three reasons. First,
if groundwater flow contributed substantially to the nearby down
gradient wetlands, then "the removal of 46 acres of groundwater
recharge area, high on the groundwater divide, by capping could
deplete the wetlands water supply causing a long term
degradation."15 Second, the application contained too little
information on the location of bedrock and its properties.
Third, the investigation "essentially neglected the presence of
the [sole source aquifer] and until the final environmental
____________________
13 Leachate refers to precipitation that will percolate through
the residuals placed at the landfill.
14 Report, dated February 1991 at 1, 23.
15 Killoy Memorandum of January 23, 1991, 4.
-9-
documents ignored the nearby private wells."16 Mr. Killoy,
however, concluded with the following observation:
I also recognize that many of the items
above can be interpreted differently by
different reviewers who could recommend
issuance of the permit without appearing
arbitrary or capricious. This is where
the decision maker takes over.
Id. at 52.
__
Less than three weeks after Mr. Killoy's last
memorandum, the Corps issued its Record of Decision ("ROD")
granting a permit to the MWRA to inter alia construct and operate
_____ ____
the MCI-Walpole landfill. As further elaborated below, the Towns
claim that the Corps' permitting process is plagued with errors
and that the decision to issue the permit was based on improper
pressure by the U.S. Department of Justice and EPA.
B. Statutory and Regulatory Background
B. Statutory and Regulatory Background
___________________________________
Congress enacted the Clean Water Act17 ("CWA") "to
restore and maintain the chemical, physical, and biological
integrity of the Nation's waters." 33 U.S.C. 1251(a); see also
________
40 C.F.R. 230.1. Section 301 of the CWA makes the discharge of
pollutants into navigable waters unlawful, unless such discharge
is authorized by permit. The term "pollutants" is defined
broadly and includes dredged or fill material.18 The term
"navigable waters" is similarly all encompassing, covering all
____________________
16 Id. at 14.
__
17 33 U.S.C. 1311(a).
18 33 U.S.C. 1362(6).
-10-
"waters of the United States." 33 U.S.C. 1362(7). Wetlands are
included in the definition of "waters of the United States."19
Section 404 of the CWA authorizes the Corps of
Engineers to issue or deny permits for the discharge of dredged
or fill material. 33 U.S.C. 1344(a). Generally an applicant
seeking a permit under Section 404 submits an individual
application for each discharge. In considering permit
applications, the Corps is required to apply the regulations and
guidelines set forth in Titles 33 and 40 of the Code of Federal
Regulations. 33 C.F.R. 320 and 40 C.F.R. Part 230.
Section 404(b)(1) of the CWA directs the Corps to apply
the guidelines developed by the EPA Administrator in conjunction
with the Secretary of the Army, acting through the Chief of
Engineers. 33 U.S.C. 1344(b)(1). These Section 404 guidelines
are codified at 40 C.F.R. Part 230.
Under 33 C.F.R. 320.4(a)(1), the Corps evaluates a
permit application's "probable impacts, including cumulative
impacts, of the proposed activity on the public interest." 33
C.F.R. 320.4(a)(1).20 The Towns contend that the Corps'
____________________
19 40 C.F.R. 230.3(s)(7). See also United States v. Riverside
________ _____________ _________
Bayview Homes, Inc., 474 U.S. 121 (1985) (Corps acted reasonably
___________________
in interpreting Clean Water Act to require permits for discharge
of material into wetland).
20 Among the factors evaluated under this "public interest
review" are
conservation, economics, aesthetics,
general environmental concerns, wetlands,
historic properties, fish and wildlife
-11-
determination to issue the permit is erroneous under subsections
(a), (b) & (c) of 40 C.F.R. 230.10 and under 33 C.F.R.
320.4(a)(1).
____________________
values, flood hazards, floodplain values,
land use, navigation, shore erosion and
accretion, recreation, water supply and
conservation, water quality, energy
needs, safety, food and fiber production,
mineral needs, consideration of property
ownership and, in general, the needs and
welfare of the people.
33 C.F.R. 320.4(a)(1).
-12-
C. Standard of Review
C. Standard of Review
__________________
The district court's grant of summary judgment in favor
of the defendants is reviewed de novo. See, e.g., Medina &
__ ____ ___ ____ _________
Sucesores, Inc., et al. v. Custodio, et al., No. 91-1469, slip
________________________ ________________
op. at 17 (1st Cir. May 7, 1992). Rule 56(c) of the Federal
Rules of Civil Procedure provides that a motion for summary
judgment shall be granted if it is clear from the record that
"there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter law."
We review the Corps decision to issue the permit under
the standard of review set forth in the Administrative Procedure
Act,21 pursuant to which an agency's action will be set aside
only if it is found to be "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law."
To determine whether the Corps's decision complies with
the arbitrary and capricious standard, we consider
whether the decision was based on a
consideration of the relevant factors and
whether there has been a clear error of
judgment. Although this inquiry into the
facts is to be searching and careful, the
ultimate standard of review is a narrow
one. The court is not empowered to
substitute its judgment for that of the
[Corps].
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402,
________________________________________ _____
416 (1971). See also United States v. Riverside Bayview Homes,
_________ _____________ _________________________
Inc., 474 U.S. 121 (1985) ("An agency's construction of a statute
____
it is charged with enforcing is entitled to deference if it is
____________________
21 5 U.S.C. 706(2)(A).
-13-
reasonable and not in conflict with the expressed intent of
Congress"); All Regions Chemical Labs, Inc. v. U.S. E.P.A., 932
________________________________ ___________
F.2d 73, 75 (1st Cir. 1991) ("In reviewing EPA's decision we must
pay particular attention to the interpretation that it gives its
own rules and regulations"); Environmental Coalition Broward
________________________________
County, Inc. v. Myers, 831 F.2d 984, 986 (11th Cir. 1987)
_____________ _____
(deference to the Corps' determination is "particularly
appropriate in the case of complex environmental statutes such as
the Clean Water Act.").
II
Section 230.10(a)
Section 230.10(a)
_________________
Section 230.10(a) provides that:
no discharge of dredged or fill material
shall be permitted if there is a
practicable alternative to the proposed
discharge which would have less adverse
impact on the aquatic ecosystem, so long
as the alternative does not have other
significant adverse environmental
consequences.
40 C.F.R. 230.10(a).
In its Record of Decision, the Corps found that the
impact of the Walpole landfill on the aquatic ecosystem to be
inconsequential considering the low value of the 600 square foot
landfill and the minor potential secondary impacts to adjacent
wetlands and waters. The Towns assert that the Corps
interpretation of the Section 230.10(a) guidelines is flawed for
three reasons. First, the Corps erred in concluding that the
direct impacts were "inconsequential." This erroneous
conclusion, the Towns assert, reversed the presumption embodied
-14-
in Section 230.10(a), which requires the Corps to presume that
other practicable alternatives exist. Second, the Towns claim
that the Corps erred in concluding that the mitigation measures
proposed in the MWRA's application would render the secondary
impacts to surrounding wetlands "inconsequential." Third, it is
alleged that the Corps failed to consider groundwater impacts as
part of the practicable alternatives analysis because it
erroneously concluded that the term "aquatic ecosystem" as used
in Section 230.10(a) generally excludes groundwater.
A. Did the Corps Reasonably Conclude that There is No
__________________________________________________________
Practicable
___________
Alternative?
___________
The Towns argue that the Corps' conclusion that direct
impacts to Wetland E (the 600 square foot, man-made wetland) were
inconsequential is not supported by the evidence. This
"evidence" consists of a By-Law enacted by the Town of Walpole
making Wetland E a protected resource. This argument fails for
two reasons.
First, and foremost, the Towns failed to make this
Wetland By-Law part of the administrative record. We have no way
of knowing the terms of this By-Law. Since judicial review of
the Corps' permit decisions is limited to the administrative
record, the Towns' argument fails. See, e.g., Friends of Earth
___ ____ _________________
v. Hintz, 800 F.2d 822, 830-31 (9th Cir. 1986) (standard of
_____
review for the Section 404 permitting process under the
Administrative Procedures Act is "highly deferential"); Buttrey
_______
-15-
v. United States, 690 F.2d 1170 (5th Cir. 1982), cert. denied,
_____________ ____ ______
461 U.S. 927 (1983) ("[Courts] look only to the administrative
record in order to determine if the Corps' decision was
arbitrary, capricious, or not in accordance with law.").
Second, even assuming the inclusion of the By-Law in
the administrative record, the fact that Walpole has passed such
a By-Law is insufficient to establish that the direct and
secondary impacts to the ecosystem are not "inconsequential."
Dubbing a piece of real estate "wetland" by municipal edict does
not establish such a conclusion de jure for purposes of federal
__ ____
law nor does the By-Law grant per se "consequence." We agree
___ __
with the Corps that Walpole's By-Law has no legal significance
since the MWRA is not subject to them.
The Towns also claim that in concluding that the
impacts to Wetland E was negligible and therefore that no other
practicable alternative having less environmental impact existed,
the Corps reversed the rebuttable presumption contained in 40
C.F.R. 230.10(a). We disagree.
None of the comments received by the Corps disputed
that this 600 square feet area consisted of an isolated, man-
made, low-value wetland. Neither Town asserted in the comments
submitted to the Corps that Wetland E has any essential
ecological value nor have they presented evidence to contradict
the finding by the Corps that this small area of wetland has
"virtually no function or value." Record of Decision at 7. In
addition, we note that Wetland E does not meet the criteria for
-16-
regulation under the Massachusetts Wetland Protection Act. See
___
310 Code of Massachusetts Regulations 10.57(1)(b).
The Towns argue that once the Corps found that the
direct impact of the landfill was "inconsequential," it was
required to conduct an exhaustive feasibility evaluation of each
of the 299 alternatives sites initially screened for the
landfill. See Appellants' Brief at 21. We hold that such a
___
rigid interpretation of the guidelines is not warranted. The
plain language of the Section 404 regulatory scheme indicates
that the level of review depends on the nature and severity of
the project's impact on the environment. The general
introduction for Section 230.10 states:
Although all requirements in 230.10
must be met, the compliance evaluation
procedures will vary to reflect the
seriousness of the potential for adverse
impacts on the aquatic ecosystems posed
by specific dredged or fill material
discharge activities.
40 C.F.R. 230.10. In Section 230.6, the Guidelines further
provide:
(a) . . . These Guidelines allow
evaluation and documentation for a
variety of actives, ranging from those
with large, complex impacts on the
aquatic environment to those for which
the impact is likely to be innocuous. It
is unlikely that the Guidelines will
apply in their entirety to any one
activity, no matter how complex. It is
anticipated that substantial numbers of
permit applications will be for minor,
routine activities that have little, if
any, potential for significant
degradation of the aquatic environment.
It generally is not intended or expected
_________________________________________
that extensive testing, evaluation or
_________________________________________
-17-
analysis will be needed to make findings
_________________________________________
of compliance in such routine cases.
___________________________________
(b) The Guidelines user, including the
agency or agencies responsible for
implementing the Guidelines, must
recognize that different levels of effort
that should be associated with varying
degrees of impact and require or prepare
commensurate documentation. The level of
____________
documentation should reflect the
_________________________________________
significance and complexity of the
_________________________________________
discharge activity.
__________________
40 C.F.R. 230.6(a) & (b) (1991) (emphasis added).
Clearly, the guidelines contemplate an analysis which
varies in magnitude depending on the impact of the proposed
discharge, rather than the dogmatic scrutiny suggested by the
Towns. In cases such as this one, where the MWRA and the EPA
conducted a thorough environmental analysis of alternative sites,
and where the Corps' determination that the direct impact on the
aquatic ecosystem of filling the 600 square foot artificial
wetland is negligible is supported by the administrative record,
the Corps is not required under Section 230.10(a) to duplicate
the analysis conducted by the MWRA and EPA. Norfolk & Walpole,
__________________
772 F. Supp. at 687.
Nor can the Corps be faulted for relying on the
alternative analysis conducted by EPA in its review of the
landfill pursuant to the National Environmental Policy Act.22
In doing so, the Corps followed the recommendation of Section
230.10(a)(4), which provides that "the analysis of alternatives
required for NEPA environmental documents . . . will in most
____________________
22 42 U.S.C. 4321 et seq.
__ ___
-18-
cases provide the information for the evaluation of alternatives
under [the Section 404] Guidelines." Although Section 230.10(a)
recognizes that the NEPA review may provide insufficient analysis
to meet the Section 404 guidelines requirements, it is apparent
here that the Corps supplemented the extensive alternatives
analysis conducted by the MWRA and the EPA. The Corps re-
evaluated several potential sites to verify that the
environmental criteria used in the selection of the proposed
landfill was properly applied. The Corps found
that many of these sites didn't meet the
landfill acreage requirements and
therefore were appropriately not
considered for landfills. Other sites
which were considered for landfills were
ranked lower than Walpole-MCI and
therefore deemed less preferable and not
carried forward.
ROD at 11. The Corps reasonably relied on the substantial
evaluation conducted by the MWRA and EPA to find that the
landfill in Walpole was the best alternative under the
Guidelines. The initial screening for a landfill began with
approximately 300 potential sites and after substantial
additional evaluation of about ten individual sites, Walpole was
selected. Under the practicable alternatives test, the Corps is
not required to conduct an independent feasibility evaluation of
each alternative site merely because a party disagrees with its
ultimate conclusion. We hold that it was not arbitrary,
capricious or contrary to law for the Corps to conclude that no
practicable alternative to this 600 square feet of artificial
wetland exists which would have a lesser "adverse impact on the
-19-
aquatic ecosystem." 40 C.F.R. 230.10(a)(3). If the Corps'
determination under Section 404 is reasonably supported by the
administrative record, our inquiry must end. Friends of Earth,
________________
800 F.2d at 835.
-20-
B. Has the Corps Failed to Consider the Secondary Impacts on the
_____________________________________________________________
Wetlands of the Proposed Discharge on Aquatic Ecosystem?
_______________________________________________________
The Corps analyzed two potential secondary impacts on
the adjacent wetlands; (1) the possibility that leachate might
reach the surface waters in the event of a leak from the landfill
and (2) the loss of surface/groundwater recharge. The Corps
concluded that although the potential for leachate transmission
into the adjacent wetlands existed,
its likelihood will be greatly minimized
by the state-of-art landfill design and
collection system which will be used.
Even if some leakage occurred, the
propensity of wetlands to assimilate the
leachate constituents (i.e. act as a
sink) is well recognized. In fact the
use of wetlands as tertiary treatment is
well documented and recognized by EPA.
Therefore, the effect is expected to be
minor.
ROD at 12. The Corps also characterized the possible loss of
surface water and groundwater recharge as a minor impact since
"the proportion of precipitation falling on the landfill site
which infiltrates into the groundwater is small (about 1/5 [of an
acre]) . . . when compared to the proportion entering the
adjacent wetlands as surface runoff" and the landfill represented
a very small portion of the total drainage area supporting the
off-site wetlands. Id. The district court found that the Corps'
__
conclusions regarding the secondary effects of the landfill to be
reasonable. Norfolk & Walpole, 772 F. Supp. at 688.
_________________
The Towns, however, claim that the Corps failed to
adequately consider secondary wetland impacts as part of the
-21-
practicable alternatives analysis. The Towns' argument run as
follows. First, the Corps attempts to avoid the practicable
alternatives analysis by concluding that certain mitigation
measures planned by the MWRA would render any secondary impacts
to wetlands inconsequential. Second, the Corps' conclusion that
Wetland E is a minor part of the total drainage areas supporting
the Stop River wetlands cannot serve as a justification for the
issuance of the permit, and in any event, the Towns argue that
they have presented evidence to contradict this finding.
Citing Bersani v. Robichaud, 850 F.2d 36, 39 (2d Cir.
_______ _________
1988), cert. denied, 489 U.S. 1089 (1989), the Towns allege that
____ ______
mitigation measures may not be used to meet the practicable
alternative analysis. The Towns's interpretation of Bersani is
_______
not persuasive. In Bersani, the EPA denied an application for a
_______
permit to build a shopping mall on 32 acres of "high quality red
maple swamp." Id. at 40. To compensate for filling 32 acres of
__
this "high quality" wetland, the developer proposed to create 36
acres of wetland in an off-site gravel pit. The EPA determined
that this mitigation measure was insufficient because (1) of its
scientific uncertainty; (2) the availability of an alternative
site for the shopping mall; and (3) the adverse effect on
wildlife. Bersani, therefore, does not announce a procedural
_______
straitjacket against the use of mitigation measures to compensate
for environmental losses, but rather it upholds the basic
proposition that if mitigation measures are insufficient to
compensate for the loss of a valuable wetland, the permit should
-22-
be denied. See also Friends of Earth v. Hintz, 800 F.2d 822, 826
________ ________________ _____
(9th Cir. 1986) (affirming Corps' conditional issuance of a
Section 404 permit on compliance with an agreement proposing
mitigation measures).
Moreover, in this case there will be no destruction of
a "high quality" wetland area; rather the direct impact on the
aquatic environment involves the filling of 600 square feet of an
isolated, artificial wetland that was used by the Department of
Corrections as an obstacle course for training prison guards. We
hold that it is reasonable for the Corps to consider, under the
practicable alternatives analysis, the functional value of the
wetland to be impacted and the mitigation measures proposed to
avoid secondary impacts.
The Towns cite Buttrey v. United States, 690 F.2d 1170
_______ _____________
(5th Cir. 1982), cert. denied, 461 U.S. 927 (1983) for the
____ ______
proposition that the Corps cannot rely on its conclusion that
Wetland E is a minor part of the total drainage area supporting
the Stop River wetlands. In Buttrey, a land developer argued
_______
that his project proposal to fill about 40 acres of wetland was a
"mere flyspeck" in relation to the river watershed adjacent to
the property. The Fifth Circuit noted that such "piecemeal"
review of the proposed project is prohibited by 33 C.F.R.
320.4(b)(3), which provides:
Although a particular alteration of a
wetland may constitute a minor change,
the cumulative effect of numerous
piecemeal changes can result in a major
impairment of wetland resources. Thus,
the particular wetland site for which an
-23-
application is made will be evaluated
with the recognition that it may be part
of a complete and interrelated wetland
area.
Simply stated, 33 C.F.R. 320.4(b)(3) -- which authorizes the
Corps to consider the cumulative effect of numerous piecemeal
changes in its "public interest review" analysis -- does not
apply here. The 600 square foot artificial wetland to be filled
is not "part of a complete and interrelated wetland area"; it is
isolated. And none of the comments in this case contradicted the
Corps' finding that Wetland E had virtually no value. In
Buttrey, it was undisputed that since the forty acre wetland was
_______
located upstream, it served a unique function in maintaining
downstream water quality. The secondary impacts here result not
from filling Wetland E but from the setting aside of 46 acres,
most of which is on upland. Finally, the proposed project in
Buttrey was opposed by the Fish and Wildlife Service, EPA and the
_______
National Marine Fisheries Service because they alleged it would
inter alia destroy a habitat and nursery ground for wildlife and
_____ ____
increase the risk of flooding in surrounding neighborhoods. No
such opposition was registered by these government agencies
against this project.
In their comments, the Towns' consultants claim that
the construction of the landfill would potentially eliminate up
to fifty percent of the drainage areas to adjacent wetlands,
including Wetland A, a site which has a vernal pool,
approximately 150 feet from the footprint of the proposed
landfill. The Corps, however, concluded that the landfill site
-24-
represents less than one percent of the total drainage area and
that the mitigation measures would render any impacts
insignificant. With respect to the mitigation measures, the
Corps specifically found:
The [MWRA] has committed to develop a
plan to capture the rainfall and return
it to the wetlands directly adjacent to
the landfill to protect their hydrology.
This leads to the conclusion [that] the
potential for adverse affect on the
hydrology of the adjacent wetlands is
minor. In any event, the development of
the landfill will include elaborate
monitoring of baseline conditions of the
adjacent wetlands, modelling of the water
flows, and a collection and replacement
system to return the water to the
wetlands. A portion, based on the
modelling, will be returned as surface
water, and a portion will be returned as
ground water via an infiltration system.
ROD at 12. The Corps further noted that the MWRA has implemented
these mitigation measures in other projects and that the Corps
had "approval authority over the monitoring and mitigation
program through a special condition of the permit . . . ." Id.
__
The Towns' objection to the Corps findings on the subject of
drainage reflect nothing more than a disagreement between the
experts. In cases where technical disputes predominate the
issues, an agency's expertise is entitled to deference. Chevron
_______
U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
______ ________________________________________
844 (1984). We hold that the Corps' conclusions that the
landfill site represents less than one percent of the total
drainage area and that the mitigation measures would render any
potential impact insignificant are not clearly arbitrary,
-25-
capricious or otherwise not in accordance to law.
-26-
C. Are Groundwater Resources Part of the Aquatic Ecosystem for
___________________________________________________________
Purposes of the Practicable Alternatives Analysis?
_________________________________________________
In applying the practicable alternatives analysis, the
Corps excluded groundwater resources from consideration. The
Towns allege that groundwater resources are part of the "aquatic
ecosystem" for purposes of the practicable alternatives analysis.
The district court held that:
The plain language of the Guidelines
clearly constrains the alternative
analysis, in the first instance, to
effects on the aquatic ecosystem.
"Aquatic ecosystem," in turn, is defined
as "waters of the United States,
including wetlands, that serve as habitat
for interrelated and interacting
communities and populations of plants and
animals." 40 C.F.R. 230.3(c). The
Corps' determination that groundwater
sources are not aquatic ecosystems was
clearly a reasonable interpretation of
230.10(a), as [groundwater sources]
cannot be said to "serve as habitat for
interrelated and interacting communities
and populations of plants and animals."
While the impact on groundwater is
certainly an "environmental consequence,"
the alternatives analysis is limited to
comparison of effects on the aquatic
ecosystem.
Norfolk & Walpole, 772 F. Supp. at 685. The Towns, however,
__________________
argue that groundwater resources are "waters of the United
States." 40 C.F.R. 230.3(s)(3) provides that the term "waters
of the United States" includes:
All other waters such as intrastate
lakes, rivers, streams (including
intermittent streams), mudflats, sand-
flats, wetlands, sloughs, prairie
potholes, wet meadows, playa lakes, or
natural ponds, the use, degradation or
-27-
destruction of which could affect
interstate or foreign commerce including
any such waters:
(i) Which are or could be used by
interstate or foreign travelers for
recreational or other purposes . . . .
Although this definition does not indicate whether groundwater
constitutes "waters of the United States," the Corps has
interpreted this definition to refer only to surface waters.
This interpretation has been upheld by some courts. Exxon Corp.
___________
v. Train, 554 F.2d 1310, 1329 (5th Cir. 1977); Kelley v. United
_____ ______ ______
States, 618 F. Supp. 1103, 1105 (W.D. Mich. 1985; United States
______ _____________
v. GAF Corp., 389 F. Supp. 1379, 1383 (S.D. Tex. 1975). Although
_________
other courts have questioned whether the term "waters of the
United States" should include groundwaters connected to surface
waters -- Inland Steel Co. v. E.P.A., 901 F.2d 1419, 1422 (7th
_________________ ______
Cir. 1990); McClellan Ecological Seepage v. Weinberger, 707 F.
_____________________________ __________
Supp. 1182, 1193-94 (E.D. Cal. 1988) -- we agree with the Corps
that since such a determination ultimately involves an ecological
judgment about the relationship between surface waters and
groundwaters, it should be left in the first instance to the
discretion of the EPA and the Corps. Cf. United States v.
__ ______________
Riverside Bayview Homes, Inc., 474 U.S. 121, 134 (1985)
_________________________________
(deference should be given to "the Corps' ecological judgment
about the relationship between waters and their adjacent
wetlands").
We have carefully examined the Towns' other arguments
and conclude that they have no merit.
-28-
D. Do Other Practicable Alternatives Exist Which Would Have Less
_____________________________________________________________
Adverse Effects On The Aquatic Ecosystem?
________________________________________
If the Corps had properly conducted the practicable
alternatives analysis -- the Towns claim -- it would have been
unable to overcome the presumption in Section 230.10(a) because
other alternatives which would have less "severe environmental
impacts" than Walpole are available. The Towns point out that
(1) the MWRA itself determined that another alternative -- Rowe
Quarry -- would have a less severe environmental impact than the
Walpole site and (2) the Governor of Massachusetts appointed a
Commission in February of 1991 which identified six other
alternatives.
In a draft report dated October 1988, the MWRA
concluded that "development of the Rowe Quarry as a landfill
would result in minimal environmental impacts in comparison to
those that would occur at the Walpole-MCI site."23 On its face
this statement appears to raise an issue of fact as to whether
the decision of the Corps was arbitrary. Nevertheless, the issue
under the practicable alternatives analysis of Section 230.10(a)
is whether the alternative site would have less adverse impact on
the aquatic ecosystem than the Walpole site. A finding that a
___ _______ _________
potential site such as Rowe Quarry may have less adverse
environmental effects does not constitute a finding that such
site would have less adverse effects on the aquatic ecosystem.
In fact, EPA concluded that the documents used in the NEPA
____________________
23 Draft Report on Minor Residuals Landfilling at 56.
-29-
review, "establish[] that the insignificant potential adverse
impacts on the aquatic ecosystem at the Walpole site are no
greater than those which could potentially result from a landfill
at Rowe Quarry."24 For example, EPA noted that a landfill at
Rowe Quarry "could potentially cause adverse impacts to the
Saugus River and Rumney Marsh wetland system, a state designated
Area of Critical Environmental Concern."25
The Towns argue that an investigation by the Harbor
Residuals Landfill Siting Advisory Commission identified six
potential alternatives to the Walpole site, "all of which are
superior under the 230.10(a) standard." Brief of Appellants at
30. The district court concluded that "[t]he Corps cannot be
faulted for not considering the report of the Governor's
Commission, however, as the Commission was not even in existence
until after the [Record of Decision] and the permit were
issued."26 The district court's conclusion finds support in the
introduction of the Commission's report, where the first point
made is that
the Commission's task has been to
evaluate alternatives that currently
offer themselves as options to the
development and use of the Walpole site,
not to assess the wisdom of the past
selection of that site. Our review of
current alternatives can take account of
____________________
24 Letter dated November 2, 1990 from the Director of EPA's
Water Management Division to Lt. Colonel Stanley J. Murphy,
District Engineer, U.S. Army Corps of Engineers.
25 Id. at 6.
__
26 Norfolk & Walpole, 772 F. Supp. at 688.
_________________
-30-
circumstances that were unknown or
unsettled when the MWRA conducted its
site selection process and federal and
state regulators carried out their
environmental reviews from 1986 to 1990.
More significantly, the Commission itself recognized that the
actual feasibility of the six potential alternative sites it had
identified was an open question.27 Finally, the Commission's
report contains no discussion of adverse impacts on the aquatic
ecosystem. With respect to general environmental considerations,
the Commission's report provides a limited analysis.28
In sum, the Commission's report is insufficient to
raise a genuine issue of material fact that the Corps'
determination that the Walpole site meets the practicable
alternative analysis was arbitrary, capricious or contrary to
law.
III
Section 230.10(b)
Section 230.10(b)
_________________
Section 230.10(b) provides in pertinent part:
No discharge of dredged or fill material
shall be permitted if it:
* * *
(3) Jeopardizes the continued existence
of species listed as endangered or
threatened under the Endangered Species
____________________
27 Id. at 2 ("[O]ur identification of several, possibly feasible
__
alternatives to the Walpole site does not mean that all
uncertainties surrounding the feasibility of those alternatives
have been eliminated").
28 Id. at 20. ("Certainties about environmental acceptability
__
will only become available, however, after further planning and
permitting activities with respect to any of the alternatives").
-31-
Act of 1973, as amended, or results in
likelihood of the destruction or adverse
modification of a habitat which is
determined by the Secretary of Interior
or Commerce, as appropriate, to be a
critical habitat under the Endangered
Species Act, as amended.
The Towns assert that the Corps failed to give adequate
consideration under Section 230.10(b) to impacts on the habitats
of pied-billed grebes and great blue herons that are located on
the Stop River Impoundment, which borders the landfill site to
the west.29 In the Record of Decision, the Corps recognized
that [t]he increased noise and activity during
construction and operation of the
landfill may adversely impact one of the
state's largest Great Blue Heron
rookeries and several pied-billed grebes,
a state threatened bird in the Stop River
impoundment a quarter of a mile away.
ROD at 7. The Towns argue that the Corps violated Section
230.10(b) because it failed to conduct an extensive review of
these impacts to wildlife. We disagree. As the district court
recognized, Section 230.10(b) does not apply here because neither
the pied-billed grebe nor the great blue heron are "species
listed as endangered or threatened under the Endangered Species
Act of 1973." 40 C.F.R. 230.10(b). Furthermore, the National
Marine Fisheries Department and the U.S. Fish and Wildlife
Service -- the federal agencies empowered to protect wildlife
resources -- have indicated no objection to the landfill at
Walpole.
____________________
29 Massachusetts has listed the pied-billed grebe as endangered
and threatened under state law. Mass. Gen. Laws ch. 131, 4,
clause 13A; Mass. Regs. Code tit. 321, 8.01(3)(b).
-32-
Notwithstanding the clear language of Section
230.10(b), the Towns assert that Section 230.30(a) requires that
the impact of the landfill on the pied-billed grebe be analyzed
under Section 230.10(b). Section 230.30(a) states that
"[l]istings of threatened and endangered species as well as
critical habitats are maintained by some individual States and by
the U.S. Fish and Wildlife Service of the Department of the
Interior." The district court concluded that consideration of
impacts on wildlife, including species listed as endangered under
state law, is properly reviewed under Section 230.10(c), which
provides in pertinent part:
Except as provided under section
404(b)(2), no discharge of dredged or
fill material shall be permitted which
will cause or contribute to significant
degradation of the waters of the United
States. Findings of significant
degradation related to the proposed
discharge shall be based upon appropriate
factual determinations, evaluations and
tests required by Subparts B and G, after
_____
consideration of Subparts C through F,
________________________________________
with special emphasis on the persistence
and permanence of the effects outlined in
those subparts.
40 C.F.R. 230.10(c) (emphasis added). As the underlined part
indicates, Section 230.10(c), unlike Section 230.10(b),
specifically refers to Subpart D of the Section 404 Guidelines,
which includes Section 230.30(a).
Furthermore, the evidence indicates that the landfill
would not threaten the continued existence of the grebe. The
Stop River Impoundment is located approximately 2,000 feet from
the boundary of the landfill footprint and, according to the
-33-
Towns' consultant, only one pair of grebes has been sighted in
this area. The projected noise level of the construction and
operation of the landfill is expected to be 45 decibels. In its
Supplemental Environmental Impact Statement, EPA reasonably
concluded that this noise impact would not threaten the existence
of the grebe.
-34-
Noise levels exceeding 60 dBA [decibels]
are considered loud to wildlife, and
levels exceeding 75 dBA may cause
damaging effects (Santa Barbara County,
1984). Since noise levels are projected
to be about 45 [decibels] at the edge of
the Stop River impoundment (2,000 feet
from the noise source), significant noise
impacts would not occur to wildlife
(including the heron rookery) using the
impoundment.
DSEIS at 5-93. Regarding noise levels that could potentially
impact waterfowl and other wildlife using adjacent wetlands, EPA
explained:
Resident wildlife species at the site
currently use the nearby impoundment,
wetlands, and forested areas in spite of
the activities of two local prisons and
an adjacent firing range. These
activities have resulted in ambient
noises levels up to 49 dBA at the closest
sample point to the reservoir (MWRA,
RMFP, Screen, I, 1988). Animals using
the site have likely become accustomed to
such daily noise levels given the
extended exposure. Any noise-related
impacts that occur at the heron rookery
(a resource of special concern) could be
mitigated by limiting construction
activity to nonbreeding periods such as
fall and winter.
Id. Finally, the district court made two findings to support its
__
determination that the Corps' conclusion that impacts on wildlife
were insignificant "was not unreasonable." Norfolk & Walpole,
__________________
772 F. Supp. at 690. First, the Towns'
own exhibit states that although herons
"tend to prefer more remote, serene
habitats," they "are generally tolerant
of noise and other human disturbances,"
[Exh. "E" at 7], and that "the Heron is
generally more sensitive to noise and
other disturbances than the Grebe or Wood
Duck," id. at 8.
__
-35-
Id. at 19. Second, the district court found that the Corps had
__
specifically considered negative effects of the landfill on the
grebe and the blue heron in its public interest analysis. Given
these findings, we cannot say the permit decision was arbitrary.
IV
Section 230.10(c)
Section 230.10(c)
_________________
Under 40 C.F.R. 230.10(c), the Corps must reject a
permit application which proposes a discharge "which will cause
or contribute to significant degradation of the waters of the
United States."30
The Corps did not specifically consider the impact on
groundwaters as required pursuant to Section 230.10(c) because it
erroneously claimed that groundwaters effects on "municipal water
supplies" were not part of the "significant degradation"
test.31 The district court concluded that although the Corps
had not properly conducted the Section 230.10(c) analysis, the
Corps' findings under its public interest review analysis
indicated that the Corps had properly evaluated groundwater
____________________
30 As discussed ante, at 24-25, groundwater effects were not
____
considered under Section 230.10(a) because that section calls for
a determination of the "adverse impact on the aquatic ecosystem."
Aquatic ecosystem is defined as a water of the United States
"that serve as habitat for interrelated and interacting
communities and populations of plants and animals." 40 C.F.R.
230.3(c). It is clear that groundwater resources do not "serve
as habitat for interrelated and interacting communities and
populations of plants and animals." See Norfolk & Walpole, 772
___ __________________
F. Supp. at 685.
31 The Corps did conclude in its "Short Form, Section 404(b)(1)
Guidelines Compliance Determination" that the landfill will not
cause significant adverse effects on municipal water supplies.
Norfolk & Walpole, 772 F. Supp. at 690.
_________________
-36-
impacts. The district court explained:
The [Record of Decision] discusses at
great length -- no subject is given more
careful attention -- the possible effects
of leaks in the landfill on nearby
drinking water supplies, including ten
private wells near the site, larger wells
3,500 feet away that supply drinking
water to the adjacent prisons, a well
supplying a hospital in the vicinity, and
the Head of Neponset Sole-Source Aquifer.
The [Record of Decision] indicates that
the Corps evaluated the tests performed
by the EPA and the MWRA for the EIS and,
where necessary, conducted its own tests.
Norfolk & Walpole, 772 F. Supp. at 690. The district court noted
_________________
that the Corps addressed each of the Towns' objections to the
Corps' groundwater analysis. Id.
__
The Towns do not argue that the Corps' findings or
conclusions regarding potential impacts to groundwater resources
are arbitrary, capricious or otherwise not in accordance with
law. Instead, the Towns argue that the Corps' failure to analyze
impacts to groundwaters under Section 230.10(c) constitutes
reversible error. We think this argument elevates form over
substance.
Under 40 C.F.R. 230.10(c), "[f]indings of significant
degradation related to the proposed discharge shall be based upon
appropriate factual determinations, evaluations, and tests
required by Subpart B and G, after consideration of Subparts C
through F, . . ." The Corps' public interest review analysis
demonstrates that although the exact wording of Section 230.10(c)
was neglected, the intent and purpose of that section was
satisfied. The Corps provided a lengthy and detailed evaluation
-37-
of the potential impacts of the landfill on groundwater supplies.
The Corps' Hydraulics and Water Quality Branch performed an
independent analysis of the potential impact on groundwater
supplies and concluded that "the risk to drinking water supplies
from the landfill is minor." In sum, the Towns' challenge under
Section 230.10(c) fails.
V
Public Interest Review
Public Interest Review
______________________
Under 33 C.F.R. 320.4(a), the Corps is required to
evaluate a permit for "the probable impacts, including cumulative
impacts, of the proposed activity and its intended use on the
public interest." The Towns assert that the Corps' public
interest review was inadequate because the Corps should have
weighed the impact of the Walpole landfill against the ultimate
need to clean-up Boston Harbor. According to the Towns, the
Corps should weigh the adverse impacts of the Walpole landfill
against other sites potentially available. But this narrow
interpretation of the public interest review is illogical since
it asks the Corps to duplicate the "practicable alternatives"
analysis of 40 C.F.R. 230.10(a).
The Corps' conclusion that the MWRA's proposed project
is not contrary to the public interest is reasonably supported in
the administrative record. Under the "public interest" review,
the Corps conducts a general balancing of a number of economic
and environmental factors and its ultimate determinations are
entitled to substantial deference. Environmental Coalition of
___________________________
-38-
Broward County, Inc. v. Myers, 831 F.2d 984, 986 (11th Cir.
______________________ _____
1987). We must not lose sight of the fact that the 600 square
feet to be filled has no ecological value and is isolated.
Furthermore, the Corps conditioned the MWRA's application "to
require maintenance of existing ground and surface water
hydrologic regime which supports the adjacent wetlands."
Finally, as the district court noted:
Considering the necessity of the landfill
in the overall clean-up project, the
MWRA's history of difficulty in acquiring
any site, . . . as compared with what the
___
Corps determined to be insignificant
effects on wetlands, the Corps'
conclusion that the project is not
contrary to the public interest was
justified.
Norfolk & Walpole, 772 F. Supp. at 692.
_________________
VI
Communications between the Department of Justice,
Communications between the Department of Justice,
_________________________________________________
EPA and the Corps
EPA and the Corps
_________________
Between late December 1990 and early 1991, while the
MWRA's application for the Section 404 permit was pending, there
were a number of communications among officials of the Corps and
attorneys of the Department of Justice and officials of the EPA.
Based upon a request pursuant to the Freedom of Information Act
("FOIA"),32 the Towns reviewed some internal Corps documents
which expressed opposition to the issuance of the permit and
____________________
32 5 U.S.C. 552. The Freedom of Information Act creates a
presumption that an agency must disclose all written information
in an agency's possession, unless exempted under one of the
exceptions of the Act.
-39-
which noted that these communications had occurred. The Towns
therefore notified the keeper of the records of the United States
Attorney for the District of Massachusetts to appear for a
deposition and subpoenaed all documents concerning pre-permit
communications between the EPA, the Department of Justice and the
Corps ("defendants"). Asserting inter alia the attorney client
_____ ____
and work product privileges, the defendants moved to obtain a
protective order and quash the subpoenas. The Towns maintain
that these documents should originally have been included in the
administrative record because they may show that the Department
of Justice and EPA improperly pressured the Corps to issue the
permit sought by MWRA.
On May 13, 1991, the district court issued an order
directing the defendants to submit the documents to the court for
in camera inspection. The U.S. Attorney submitted 38 documents
__ ______
and the EPA submitted 19 documents. Assistant U.S. Attorney
Henderson divided the documents into four categories. Category I
consists of letters from the U.S. Attorney's Office to the Corps
of Engineers. Category II consists of notes of communications
between Department of Justice Attorneys or Assistant U.S.
Attorney Henderson and Corps of Engineers officials, most of whom
are in house counsel for the Corps. Category III consists of
internal communications among the Department of Justice attorneys
and the U.S. Attorney's Office. Category IV consist of a draft
of an unsigned letter from the Corps to the MWRA dated January 4,
1991.
-40-
EPA's counsel Jeffrey T. Fowley similarly divided the
documents submitted by the EPA for in camera review into three
__ ______
categories. Category I consists of communications between EPA
attorneys and Corps of Engineers personnel. Category II consists
of communications between EPA technical personnel and Corps of
Engineers personnel. Category III consists of documents created
by EPA's consultant, Metcalf & Eddy, Inc. Although the Towns
challenge the exclusion of all these documents, they first
challenge the exclusion of the documents contained in Category II
and III of the U.S. Attorney's submission and all of the
documents submitted by the EPA.
After finding that the Corps personnel had only seen
seven of the 57 documents, the district court concluded that the
remaining 50 documents did not belong in the administrative
record because they were never considered by Corps personnel.
With respect to the seven documents at issue, the district court
concluded that all but two were not properly made part of the
administrative record and the other two were shielded from
discovery by the attorney-client privilege. Town of Norfolk &
__________________
Walpole v. U.S. Army Corps of Engineers, 137 F.R.D. 183, 190
_______ ______________________________
(D. Mass. 1991).
In an exhaustive opinion, the district court noted that
courts may look beyond the administrative record when there is "a
strong showing of bad faith or improper behavior before such
inquiry may be made." Citizens to Preserve Overton Park, Inc. v.
_______________________________________
Volpe, 401 U.S. 402, 420 (1971). The district court judge
_____
-41-
concluded on the basis of his in camera review that the documents
__ ______
did not provide a showing of bad faith. Town of Norfolk &
__________________
Walpole, 137 F.R.D. at 189.
_______
The Towns argue that the district court applied the
wrong standard (1) in excluding the fifty documents that the
Corps never considered; (2) in excluding letters by the U.S.
Attorney's Office to the Corps; (3) in excluding from the
administrative record two letters which comment on the merits of
the petition; and (4) in excluding a draft letter prepared by the
Corps pursuant to the deliberative privilege. Alternatively, the
Towns claim that even if these documents were properly excluded,
the district court erred in not permitting supplementation of the
administrative record. For the reasons that follow, we hold that
district court did not abuse its discretion in granting the
protective order and the motion to quash the subpoenas.
A. Did the District Court Err in Excluding Documents Never Seen
_____________________________________________________________
by the Corps?
__ _________
The Towns argue that the test of whether information is
part of an administrative record is whether the information was
directly or indirectly considered by the permitting agency. They
argue that in concluding that all but seven of the fifty seven
documents did not belong in the administrative record because
these documents were never seen by the Corps, the district court
erred because it created a rule that allows administrative
agencies to avoid "judicial review of their actions by relying on
oral communications." Brief of Appellants at 43.
-42-
The Towns seem to be asserting that every document
which reflects an oral communication with a government agency
must be included in the administrative record, even if these
documents are not in the possession of the agency. The fallacy
of this argument is obvious. Were we to accept it, government
agencies would be required to collect from all parties who had
oral communications with the agency concerning the issue under
consideration, all documents reflecting these communications with
the agency and include them in the record. There is no support
in administrative law for such a requirement and its legality is
highly questionable.
We have carefully reviewed the remaining fifty
documents and conclude that these documents contain no factual or
policy information relevant to the issuance of the permit.
Indeed, National Wildlife Federation v. Burford, 677 F. Supp.
_____________________________ _______
1445, 1457 (D. Mont. 1985) -- cited by the Towns in support of
this argument -- supports the district court's decision to
exclude the documents. In National Wildlife, the court concluded
_________________
that the contents of the personal files and notes of employees of
the Department of the Interior were properly not made part of the
administrative record. Id. at 1457. Similarly, most of the
__
submissions by EPA and the Justice Department consists of notes
of the personnel of these agencies which reflect telephone
conversations of no significance. The remaining documents --
with a few exceptions discussed below -- consist of notes made by
various government attorneys during telephone conversations and
-43-
they reflect the mental impressions and opinions of these
attorneys.
We therefore hold that the district court did not abuse
its discretion in excluding these documents. We now review the
district court's conclusion that the seven documents seen by the
Corps' personnel did not belong in the administrative record.
-44-
B. Did the District Court Err in Excluding Seven Documents Seen
_____________________________________________________________
by the Corps But Not Included in the Administrative Record?
__ _______________________________________________________
The district court concluded that seven of the
documents were seen by the Corps and warranted separate
consideration. Six of the documents are letters from the U.S.
Attorney's Office to the Corps of Engineers and the seventh
document is an unsigned draft of a letter from Colonel Phillip R.
Harris, District Engineer for the New England Division, to
Richard D. Fox of the MWRA.
The district court concluded that the six letters did
not belong in the administrative record because they did not
contain factual statements or made policy recommendations and
because only two of these letters commented on the merits of the
petition. These two letters were written by Assistant U.S.
Attorney Henderson and sent to Gary Pasternak, Assistant District
Counsel for the Corps, and to Colonel Harris, the District
Engineer. In both letters, Assistant U.S. Attorney Henderson
expressed his opinion that David Killoy's memorandum of December
24, 1990, could be withheld from public disclosure under the
deliberative process privilege of the FOIA. Assistant U.S.
Attorney Henderson expressed his view that the Killoy memorandum
was a deliberative document and that its analysis was "faulty."
The district concluded that it was "highly unlikely
that the Corps of Engineers would have relied on this statement
in deciding the permit question," since the letter provided "no
legal, factual, or policy reason for this conclusory statement,
-45-
and the statement was made only to support the U.S. Attorney's
position that the memoranda were 'deliberative.'" Alternatively,
the district court held that these letters were protected from
disclosure under the attorney-client privilege.
The district court's action is fully supportable. A
person asserting the attorney-client privilege with respect to a
document provided by an attorney has the burden of showing four
elements:
(1) that he was or sought to be a client
of [the attorney]; (2) that [the
attorney] in connection with the
[document] acted as a lawyer; (3) that
the [document] relates to facts
communicated for the purpose of securing
a legal opinion, legal services or
assistance in a legal proceeding; and (4)
that the privilege has not been waived.
United States v. Bay State Ambulance and Hosp. Rental Service,
______________ _______________________________________________
Inc., 874 F.2d 20, 27-28 (1st Cir. 1989) (citing United States v.
____ _____________
Wilson, 798 F.2d 509, 512 (1st Cir. 1986)).
______
At the time these six letters were written -- from January
to February of 1991 -- the Towns had brought several suits to
attempt to overturn the decision to place the landfill in
Walpole. The Towns had (1) filed suit in state court challenging
the state environmental review process; (2) filed a motion to
intervene in a suit filed by the United States seeking an order
from the district court to transfer the Walpole site from the
Department of Corrections to the MWRA; and (3) filed suit in the
district court challenging EPA's review of the landfill selection
-46-
under the National Environmental Policy Act.33 Clearly, the
Towns had made every effort to overturn the decision to locate
the landfill in Walpole and it was reasonable for the Corps and
the U.S. Attorney to anticipate litigation over the Corps permit
decision. As the district court found:
An attorney-client relationship exists
between the Corps of Engineers and the
U.S. Attorney in connection with
anticipated litigation. See 28 U.S.C.
___
516-519 (plenary authority of Attorney
General and Department of Justice to
conduct and direct litigation involving
the United States or its agencies); see
___
also 5 U.S.C. 3106 (heads of executive
____
and military departments to refer
litigation to Justice Department). The
[six] letters reveal that the U.S.
Attorney was acting as a lawyer and was
engaged in giving the Corps legal advice
with respect to reasonably anticipated
litigation (that is, the instant case).
All the letters begin with the heading,
"ATTORNEY-CLIENT COMMUNICATION,
PRIVILEGED AND CONFIDENTIAL," and there
is no indication that these
communications were disclosed to third
parties.
Id. at 190.
__
The Corps has met each of the elements required to
assert the attorney-client privilege. The Corps was a client of
the U.S. Attorney. The letters were from the U.S. Attorney to
its client and by the content of the letters, it is clear that
they "relate to facts communicated for the purpose of securing a
legal opinion, legal services or assistance in a legal
proceeding." Bay State Ambulance and Hosp. Rental Serv., 874
_____________________________________________
____________________
33 42 U.S.C. 4321 et seq.
__ ___
-47-
F.2d at 28. Finally, the Corps has not waived the privilege.
Although there may be an unusual and extraordinary
circumstance where a document protected by the attorney-client
privilege should be made part of the administrative record, this
is clearly not the case.
B. Did the District Court Err in Excluding as Deliberative a
____________________________________________________________
Draft Letter Prepared by the Corps?
_____ ____________________________
The district court concluded that an unsigned draft of
a letter from Colonel Phillip R. Harris, District Engineer for
the New England Division to Richard D. Fox of the MWRA was
protected by the deliberative process privilege.
The deliberative process privilege protects the
internal deliberations of an agency in order to prevent "injury
to the quality of agency decisions." NLRB v. Sears, Roebuck &
____ ________________
Co., 421 U.S. 132, 151 (1975). Two requirements must be met
___
before the government may properly withhold a document from
disclosure. Nadler v. U.S. Dept. of Justice, 955 F.2d 1479,
______ _______________________
1490-91 (11th Cir. 1992). First, the document must be prepared
prior to a final decision "in order to assist an agency
decisionmaker in arriving at his decision." Id. at 1491 (citing
__
Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421 U.S. 168,
_________________ ____________________________
184 (1975)). Second, the document must be "a direct part of the
deliberative process in that it makes recommendations or
expresses opinions on legal or policy matters." Id. (citing
__
Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975)).
______ _____
Furthermore, factual information that may be segregated from the
-48-
rest of the document is not protected by the privilege. 5 U.S.C.
552(b); Nadler, 955 F.2d at 1491; Hopkins v. U.S. Dept. of
______ _______ ______________
Housing & Urban Dev., 929 F.2d 81, 85 (2d Cir. 1991).
____________________
The document at issue here is an unsigned draft letter
from Colonel Harris, dated January 4, 1991, to Richard Fox of the
MWRA informing the MWRA that the Corps would not be able to issue
a permit for the Walpole landfill "by the end of January
deadline" and setting forth two options to "stay on the court
mandated schedule" for the Boston Harbor cleanup project. The
draft letter has no factual information and it reflects a
preliminary position by the Corps that was subsequently rejected.
Accordingly, the draft letter is clearly protected from
disclosure by the deliberate process privilege.
C. Did the District Court Err in Not Permitting Supplementation
____________________________________________________________
of the Record?
__ __________
The Towns seek to include the 57 documents in the
administrative record based on the assertion that the Department
of Justice and the EPA secretly and improperly "pressured" the
Corps to issue the permit. The district court examined the
documents in camera and concluded the they did not demonstrate
__ ______
bad faith or improper behavior to warrant ordering the
supplementation of the administrative record.
The basis for our review of the permit decision here
is the administrative record. Florida Power & Light Co. v.
____________________________
Lorion, 470 U.S. 729, 743-44 (1985); Camp v. Pitts, 411 U.S. 138,
______ ____ _____
142 (1973); Friends of the Earth, 800 F.2d at 829. Courts
______________________
-49-
require a strong showing of bad faith or improper behavior before
ordering the supplementation of the administrative record.
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402
_________________________________________ _____
(1971); Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir.
_______________ _________
1991).
Citing D.C. Fed'n of Civic Ass'ns v. Volpe, 459 F.2d
____________________________ _____
1231, 1249 (D.C. Cir.), cert. denied, 405 U.S. 1030 (1972), the
____ ______
Towns asserts that the district court erred in concluding that
there was no improper behavior here, particularly given the ex
__
parte high level discussions among executive branch officials.
_____
We think that the Towns' exaggerate the reach of Volpe.
_____
Volpe does not dilute the requirement of making a
_____
strong showing of bad faith or improper behavior before
supplementing the record. In Volpe, a divided panel of the
_____
District of Columbia Circuit held that the Secretary of
Transportation had failed to comply with the statutory
requirements and other provisions applicable to federal funded
highway projects in approving construction of a bridge across the
Potomac. The defects in the Secretary's decision in Volpe were
_____
colossal, including his failure to compile an administrative
record or to make formal findings and his approval of the bridge
project prior to the finalization of the plans for the
bridge.34 The evidence in Volpe also showed that the Chairman
_____
____________________
34 These facts are in sharp contrasts with the MWRA's
application, which among other measures, spent more than $10
million on the site selection process and obtained the necessary
environmental approvals from state and federal authorities. See
___
United States v. Metropolitan Dist. Com'n, 930 F.2d 132, 134 (1st
_____________ ________________________
-50-
of the Subcommittee on the District of Columbia of the House
Appropriations Committee publicly pressured the Secretary by
threatening to withhold funds for the District's rapid transit
system unless the bridge project was approved. Two judges held
that the Secretary of Transportation's decision would be invalid
if based in whole or in part on "political pressure." Id. at
__
1246.35
Our review of the in camera submission supports the
__ ______
district court's conclusion that there is no evidence here to
suggest that "political pressure" or any kind of unseemly
influence, in whole or in part, affected the Corps' permitting
process. In this case, the Corps has presented a detailed Record
of Decision and it is reasonably supported by the administrative
record. It shows that the Corps based its decision on the
factors relevant to determining whether the MWRA's permit
application complied with the Section 404 Guidelines and whether
issuance of the permit would be in the public interest.
The Towns claim inter alia that "Volpe stands for the
_____ ____ _____
proposition that if other litigation [involving the United
States] or the Boston Harbor clean-up project" were considered by
the Corps in issuing the permit, the decision must be vacated and
____________________
Cir. 1991).
35 A different majority of two judges, however, concluded that
the district court had not found that "political pressure" had
influenced the Secretary's decision. Significantly, only one
judge in the panel found that the district court had held that
"extraneous pressure" had coerced the Secretary to approve the
bridge project. Id. at 1246.
__
-51-
remanded. Although this interpretation of Volpe seems
_____
questionable, we need not conclusively determine its soundness
since none of the documents submitted for in camera review show
__ ______
any indication of impropriety by the United States or that the
position of the United States in other litigation was considered
by the Corps in its permitting process. The Towns have not
presented any evidence that the fact that the U.S. Attorney's
Office represented the Corps and the EPA was a factor considered
in the permitting process. The Justice Department has the sole
responsibility for representing executive branch agencies in
litigation. The Supreme Court has recognized that the main
purposes of centralizing litigation responsibility in the Justice
Department is to assure that the United States should speak with
one voice "that reflects not the parochial interests of a
particular agency, but the common interests of the Government and
therefore of all the people." United States v. Providence
______________ __________
Journal Co., 485 U.S. 693, 706 (1988).
___________
Finally, we have examined the in camera submission and
__ ______
conclude that adding these submissions to the record would serve
no purpose. The Killoy memoranda explained in sufficient details
the internal Corps opposition to the issuance of the permit. The
Towns have not cited precedent -- nor have we found any --
indicating that a district court should allow supplementation of
an administrative record with information which is already
properly documented in the administrative record.
D. Whether the District Court Judge Erred in Denying the Towns'
____________________________________________________________
-52-
Motion for His Disqualification?
_______________________________
During the proceedings below, the Towns moved pursuant
to 28 U.S.C. 455(a) to excuse Judge Mazzone. Section 455(a)
provides that a judge "shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned." Judge
Mazzone denied the Towns' motion for his disqualification finding
no basis for it since "[t]he record in this case is lengthy, and,
as both sides point out, there are occasions when my rulings and
orders, or remarks from the bench in connection with a ruling,
have evoked disappointment from the litigants." Memorandum Order
________________
of May 21, 1991.
The issue of disqualification in this Circuit turns on
whether the charge of lack of
impartiality is grounded on facts that
would create a reasonable doubt
concerning the judge's impartiality, not
in the mind of the judge himself or even
necessarily in the mind of the litigant
filing the motion under 28 U.S.C. 455,
but rather in the mind of a reasonable
man.
United States v. Arache, 946 F.2d 129, 140 (1st Cir. 1991)
______________ ______
(citing United States v. Cowden, 545 F.2d 257, 265 (1st Cir.
_____________ ______
1976), cert. denied, 430 U.S. 909 (1977)), cert. denied, 112 S.
____ ______ ____ ______
Ct. 1507 (1992). We review Judge Mazzone's denial of the Towns'
motion for his recusal under the abuse of discretion standard.
United States v. L pez, 944 F.2d 33, 37 (1st Cir. 1991); Camacho
_____________ _____ _______
v. Autoridad de Tel fonos de Puerto Rico, 868 F.2d 482, 490 (1st
______________________________________
Cir. 1989).
Judge Mazzone made several statements in the course of
-53-
the Boston Harbor litigation which the Towns assert would cause a
reasonable person to question his impartiality. The first
statement was made on July 2, 1990, when Judge Mazzone denied a
request by the United States for an order requiring the MWRA to
commence the planning of an alternative landfill since the
Massachusetts legislature had decided to postpone voting on the
transfer of Walpole site from the Department of Corrections to
the MWRA until December 5, 1990. Instead, Judge Mazzone chose
to wait until after the December 5, 1990, vote in the
Massachusetts legislature. The judge, however, made the
following comment:
At the same time, I am mindful of the
high risk that attends my decision to
forego action until December 5, 1990. At
stake is the credibility of the Court's
schedule and the public's faith in the
integrity of the entire project. In the
event that necessary legislation has not
been approved by that date and that
slippage in the schedule results from the
paralysis surrounding the siting issue, I
will entertain and intend to grant a
motion for sanctions designed to ensure
immediate resolution of the matter.
It is true that Judge Mazzone's comments, viewed in isolation,
might require further scrutiny. However, given the context in
which these comments were made, we conclude that they at most
indicate that Judge Mazzone was irritated at the snail's pace in
which the Commonwealth was moving to fully comply with the
district court's plan to clean up Boston Harbor. In fact, Judge
Mazzone made the statement as a background comment to his denial
______
of a request by the United States for stricter compliance with
-54-
the court's mandated schedule. In this sense Judge Mazzone's
comments -- to the effect that the Commonwealth was placed in
actual notice that he would not tolerate further unjustified
delays -- were eminently reasonable.
Furthermore, the historical context on which these
comments were made is significant. For more than five years,
Judge Mazzone has overseen and continues to oversee the project
to induce the Commonwealth and its agencies to comply with
federal law by cleaning up Boston Harbor. Back in 1985, Judge
Mazzone found the Commonwealth and the MWRA liable for violations
of a permit issued under the provisions of the National Pollution
Discharge Elimination System.36 These violations continue
today.
The second statement which the Towns claim amounts to
specific behavior which reasonably calls into question Judge
Mazzone impartiality is found in an Order entered after the
Massachusetts legislature voted against the transfer of Walpole
from the Department to the MWRA. The legislature voted against
the transfer on December 6, 1990, and shortly thereafter, the
United States filed a motion before Judge Mazzone to compel the
transfer of the Walpole site to the MWRA or for sanctions.
On February 25, 1991, Judge Mazzone granted the United
States' motion by imposing a moratorium on any new sewer
connections to MWRA's system. In response to an argument by the
____________________
36 See generally United States v. Metropolitan Dist. Comm'n, 23
___ _________ _____________ _________________________
Env't Rep. Cas. 1350 (D. Mass. 1985).
-55-
Commonwealth to the effect that any action by the district court
would be premature, Judge Mazzone stated:
First the statement that the schedule is
not yet in severe jeopardy is true only
if one assumes that the landfill will
ultimately be located at the Walpole
site. If I must eventually order the
Commonwealth to effect the transfer, I
can delay doing so for some time,
although I do not believe that court
action can wait as long as September,
1992. But if the Walpole site, for which
much of the requisite studying, planning,
and testing has already been completed,
is not to be the ultimate site for the
___
landfill, then another site must be
selected immediately if there is to be
___________
any chance of beginning construction as
planned. In fact, given the need to
complete state and federal environmental
impact reports for any new site, it may
already be too late. It is therefore my
conclusion that there is now a real and
imminent threat to the schedule.
While that statement indicates that Judge Mazzone wanted a
landfill site to be selected right away, and his concern that
only the Walpole site was sufficiently advanced to meet the
court's schedule, it does not indicate a preference for Walpole
per se so long as some other suitable site was expeditiously
___ __
chosen. These statements simply show that Judge Mazzone was
weighing the factors to take into account in determining an
appropriate sanction to bring the Commonwealth into compliance
with the scheduling order. Indeed, the statement reveals Judge
Mazzone's awareness of the distinct possibility that at the end
of the site selection process, Walpole might not be the site for
the landfill.
The Towns also claim that Judge Mazzone prejudged the
-56-
issues in this case because he stated that the Walpole site "was
exhaustively reviewed and approved by the EPA, the MWRA and the
Army Corps of Engineers . . .," a month after the complaint in
this case was filed and before the defendants had answered it.
Additionally, in one of the regularly issued compliance orders,
dated March 1, 1991, Judge Mazzone stated:
I have reviewed the record of decision
attached to the permit, and note the
Corps finding that the siting process for
the Walpole-MCI [landfill] was
satisfactory under both NEPA and
404(b)(1) guidelines.
We find nothing here which rises to the level of partiality
needed to compel recusal. If one considers that the MWRA spent
more than $10 million in the site selection process, that the EPA
closely monitored the MWRA site selection process and that the
Corps issued a extensive Record of Decision supported by the
administrative record, it seems more than reasonable to conclude
that the site selection process was "exhaustively reviewed." And
no reasonable person could conclude that merely noting that the
Corps had reached a determination under the 404 Guidelines shows
that Judge Mazzone was biased. In short, the statements of Judge
Mazzone which the Towns claim would cause a reasonable person to
question the impartiality of Judge Mazzone are statements which
in our opinion state the obvious, and reflect common sense.
Given the context in which these remarks were made and their
substance, we hold that Towns have failed to show that Judge
Mazzone committed an abuse of discretion in denying their motion
for his disqualification.
-57-
Finally, the Towns claim that since Judge Mazzone has
overseen compliance with the administration of the scheduling
plan to clean up Boston Harbor, his sitting over the adversarial
aspects of the case, including this Section 404 case, gives rise
to an appearance of partiality requiring disqualification. Since
Judge Mazzone has required strict compliance with the compliance
plan -- including ordering a sewer moratorium to compel the
Legislature to transfer the Walpole site -- and the Towns'
challenge to the Section 404 permitting process represents a
threat to the schedule, they contend a reasonable person would
question the ability of Judge Mazzone to preside over the Section
404 case. There is a difference, however, between the real
appearance of bias, and the fact that a judge is sometimes
required to act against the backdrop of official positions he
took in other related cases. A judge cannot be replaced every
time a case presents an issue with which the judge's prior
official decisions and positions may have a connection. This
Circuit has made clear that "[o]ur system of justices does not
require that judges be empty vessels, wholly ignorant of all of
the antecedents of a case." Camacho, 868 F.2d at 490. The Towns
_______
have made no showing that Judge Mazzone's actions in the Boston
Harbor cleanup litigation personally placed him in a position in
which he would have been constrained to decide the Section 404
case in favor of the Corps. There were other options compatible
with continuing the Boston Harbor cleanup if the Walpole site
proved unsatisfactory. We are unwilling to assume that a
-58-
district judge -- of whom there is no question whatever of any
personal or improper interest -- would be so overcome by concerns
in the Boston Harbor cleanup case as to unable to render a just
and professional decision in this one.
Judge Mazzone carefully considered the merits of the
Towns' challenge to the Section 404 permitting process. He
rejected the Corps' position that groundwater effects did not
have to be considered under 40 C.F.R. 230.10(c). The fact that
Judge Mazzone presided over other cases arising from the effort
to clean up Boston Harbor makes him arguably the most qualified
judge to preside over this case since his expertise in the legal
aspects of the Boston Harbor cleanup, will result in a more just
and efficient resolution of the issues in cases relating to the
Boston Harbor cleanup effort. See, e.g., In Re Allied-Signal
___ ____ ____________________
Inc., 891 F.2d 967, 972 (1st Cir. 1989); cert. denied, 495 U.S.
____ ____ ______
957 (1990). While it is obvious that a judge's prior orders
might place him or her in a position that would lead a reasonable
person to question whether he or she would remain impartial in a
subsequent proceeding, see, e.g., United States v. Chantal, 902
___ ____ _____________ _______
F.2d 1018 (1st Cir. 1990) (sentencing judge's views that
defendant was an "unreconstructed drug trafficker" might lead a
reasonable person to question the judge's impartiality in a
subsequent sentencing proceeding), we do not find this to be such
a case. L pez, 944 F.2d at 37 (minimal factual basis required
_____
for an inference of impartiality) (citing United States v.
______________
Giorgi, 840 F.2d 1022, 1036 (1st Cir. 1988). We add that had
______
-59-
another judge been assigned to this case, he or she would plainly
not have viewed Walpole's case in a vacuum. That judge would
have learned of the Boston Harbor cleanup schedule and would have
been exposed to whatever additional concerns compliance with that
schedule imposed here.
This last point requires us to further comment.
Although parties are not to be discouraged or castigated in the
pursuit of good faith challenges to the impartiality of a
particular judge or judges, neither should such action be taken
lightly or without foundation, merely as another tactical weapon
in the arsenal of trial strategy. While we understand
appellant's feelings, we hold that the disqualification motion in
this case was totally without a basis in fact or law.
VI
In conclusion, we find that the Corps properly applied
its Section 404(b)(1) Guidelines and properly concluded that the
landfill was not contrary to the public interest. The district
court did not abuse its discretion in allowing the defendants'
motion to quash the subpoena and protective order and denying the
Towns' motion for the judge's disqualification.
Affirmed.
________
-60-
Related
Citizens to Preserve Overton Park, Inc. v. Volpe
401 U.S. 402 (Supreme Court, 1971)
Camp v. Pitts
411 U.S. 138 (Supreme Court, 1973)
National Labor Relations Board v. Sears, Roebuck & Co.
421 U.S. 132 (Supreme Court, 1975)
Renegotiation Board v. Grumman Aircraft Engineering Corp.
421 U.S. 168 (Supreme Court, 1975)
Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc.
467 U.S. 837 (Supreme Court, 1984)
Florida Power & Light Co. v. Lorion
470 U.S. 729 (Supreme Court, 1985)
United States v. Riverside Bayview Homes, Inc.
474 U.S. 121 (Supreme Court, 1985)
United States v. Providence Journal Co.
485 U.S. 693 (Supreme Court, 1988)
United States v. Jerome Fleet Cowden
545 F.2d 257 (First Circuit, 1976)
Exxon Corporation v. Russell E. Train and Jack E. Ravan
554 F.2d 1310 (Fifth Circuit, 1977)
John Buttrey and John Buttrey Developments, Inc. v. United States of America
690 F.2d 1170 (Fifth Circuit, 1982)
United States v. William H. Wilson, Jr.
798 F.2d 509 (First Circuit, 1986)
United States v. Edgardo Giorgi, United States of America v. Gilberto Ocasio-Gonzalez, United States of America v. Pedro M. Gonzalez-Sanchez
840 F.2d 1022 (First Circuit, 1988)
Isaac Camacho v. Autoridad De Telefonos De Puerto Rico
868 F.2d 482 (First Circuit, 1989)
25 soc.sec.rep.ser. 443, Medicare&medicaid Gu 37,849, 28 Fed. R. Evid. Serv. 223 United States of America v. Bay State Ambulance and Hospital Rental Service, Inc. And Michael G. Kotzen, United States of America v. John L. Felci
874 F.2d 20 (First Circuit, 1989)
In Re Allied-Signal Inc.
891 F.2d 967 (First Circuit, 1989)
Inland Steel Company and Bethlehem Steel Corporation v. Environmental Protection Agency and William K. Reilly, Administrator Thereof
901 F.2d 1419 (Seventh Circuit, 1990)
United States of America v. Metropolitan District Commission
930 F.2d 132 (First Circuit, 1991)
United States v. Christian Lopez
944 F.2d 33 (First Circuit, 1991)
United States v. Frank Arache
946 F.2d 129 (First Circuit, 1991)
§ 320.4 — General policies for evaluating permit applications.
33 C.F.R. § 320.4
§ 230.10 — Restrictions on discharge.
40 C.F.R. § 230.10
§ 230.1 — Purpose and policy.
40 C.F.R. § 230.1
§ 230.3 — Definitions.
40 C.F.R. § 230.3
§ 230.6 — Adaptability.
40 C.F.R. § 230.6
Cite This Page — Counsel Stack
Bluebook (online)
Town of Norfolk v. United States Army, Counsel Stack Legal Research, https://law.counselstack.com/opinion/town-of-norfolk-v-united-states-army-ca1-1992.