United States v. Metropolitan District Commission

147 F.R.D. 1, 26 Fed. R. Serv. 3d 493, 1993 U.S. Dist. LEXIS 2554
CourtDistrict Court, D. Massachusetts
DecidedFebruary 19, 1993
DocketCiv. A. Nos. 83-0489-MA, 83-1614-MA
StatusPublished
Cited by3 cases

This text of 147 F.R.D. 1 (United States v. Metropolitan District Commission) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Metropolitan District Commission, 147 F.R.D. 1, 26 Fed. R. Serv. 3d 493, 1993 U.S. Dist. LEXIS 2554 (D. Mass. 1993).

Opinion

MEMORANDUM AND ORDER

MAZZONE, District Judge.

This matter is before me on the motion of the Massachusetts Association of Sewage Pumping Contractors (“MASPC”) to intervene. The basis of the motion is an order entered by this Court on May 8,1992, which, among other steps, required the Massachusetts Water Resources Authority (“MWRA”) to prepare and submit a plan for the management of septage and the control of septage disposal as part of the Boston Harbor cleanup project. MASPC seeks intervention, as of right pursuant to Fed.R.Civ.P. 24(a)(1) or 24(a)(2), or permissive intervention pursuant [3]*3to Fed.R.Civ.P. 24(b), in order to comment on the plan and to compel certain other steps which it contends are necessary to protect its members from civil and criminal liability.1 The proposed intervention is opposed by both the MWRA and the United States. The background to this motion follows.

An important part of the Boston Harbor clean-up project is industrial pretreatment as a means of keeping toxic components of industrial waste watér out of the MWRA’s sewage system. The Environmental Protection Agency (EPA), recognizing on a national level that many industries were not in compliance with pretreatment standards, sought to require the MWRA to upgrade its toxic reduction program. The MWRA, though well aware of the problem, and though it had been pursuing industrial pretreatment through its Toxic Reduction and Control Department, agreed. On April 22, 1992, the EPA and MWRA submitted a joint motion regarding the MWRA industrial pretreatment to this court. The motion called for an order requiring a series of milestones relating to toxic reduction. One of the milestones concerned septage management. I entered an order to that effect on May 8, 1992 (Order). Under the Order, the plan that deals with septage management was timely filed in December, 1992 and it is to the development of that plan and its implementation that intervention is aimed.

Septage is domestic wastewater that is not directly connected to a sewer system. It is accumulated in receptacles from which it is pumped out and transported to a designated site. From the designated site it is discharged into a sewer, eventually ending up in a sewage treatment plant. The treatment plant’s ability to meet water quality standards established under the Clean Water Act, 33 U.S.C. § 1251 et seq., is affected by the toxic content of the wastewater it receives. Septage from non-residential or industrial sources which are likely to contain toxins cannot be discharged into the sewer system without a permit. Adequate regulation of septage management and disposal is needed to ensure that septage discharges come only from residential or other permitted sources. With proper regulation, all un-permitted hazardous and industrial wastes would be excluded from the sewer system.

The septage management plan submitted by the MWRA to the EPA, pursuant to the Order, has two parts. The first part deals with the permitting of septage haulers by the MWRA. Permitting will assure that haulers know what they can and cannot discharge to the sewer system, and requires also that the haulers document the sources and make that documentation available to the MWRA for enforcement purposes. The plan calls for all septage haulers to be permitted by June, 1993.

The second part of the plan calls for the development of regional sites to replace existing sites. MASPC is concerned because they claim that there is no inter-municipal agreement for the disposal of septage and, therefore, its members, by transporting sep-tage from one community to another, may violate regulations promulgated by the Department of Environmental Protection (“DEP”).

Of additional concern to MASPC is the historically irregular manner by which local communities have managed septage disposal sites and the MWRA has enforced septage disposal regulations. The basis for MASPC’s concerns is a study commissioned by the MWRA, the Weston and Sampson study. That study found that disposal sites were inconsistently operated, and subject to a variety of inconsistent disposal options, local management practices, and fees. The study also found that the communities were not adequately policed by the DEP and lacked the interest and financial resources to manage disposal sites properly. As a result, waste, such as oil and grease from nonresidential sources is often mixed with domestic septage and discharged into the sewer system. MASPC is concerned that this maze of inconsistent municipal approaches to the problem exposes its licensed members to potential civil and criminal liability, and, at the [4]*4same tíme, encourages the unlicensed haulers to take advantage of poorly operated disposal sites in order to dispose of non-domestic hazardous or industrial wastes. It is against this background and in light of the standards set for intervention that I examine MASPC’s motion to intervene.

Fed.R.Civ.P. 24(a)(2) allows intervention of right if four conditions are met: (1) the application must be timely; (2) the intervenor must claim an interest in the transaction which is the subject of the actions; (3) disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect the interest; and (4) the applicant must show that the interest will not be adequately represented by existing parties. Failure to meet any one of these requirements precludes intervention. Conservation Law Foundation, Inc. v. Mosbacher, 966 F.2d 39, 41 (1st Cir.1992).

In the present case, MASPC fails to satisfy at least three of these conditions. First, MASPC has no legally sufficient interest in the current action, though it alleges two. MASPC’s first purported interest is to protect its members’ economic position, which the association claims has been undermined by prevailing septage management and disposal practices. MASPC complains that the present system of community-controlled septage disposal has produced inconsistency in disposal options, management practices and fees. It charges that less scrupulous septage haulers have taken advantage of poorly operated disposal sites to dump unpermitted non-domestic wastes. The association asserts that this illicit dumping has caused a Hobson’s dilemma for its members: either they abstain from such illegal disposal practices and let other haulers gain significant competitive advantages, or they participate and subject themselves to civil and criminal liability. Therefore, MASPC claims that its members have an important economic interest in assuring that the MWRA’s septage disposal plan produces a system that is well managed and regulations that are strictly enforced.2

As the United States points out in opposition to intervention, this Court’s Order will not adversely affect the economic interests of MASPC’s members. Opposition Memorandum, at 7 and note 3. On the contrary, whatever impact the new septage disposal plan has, it should benefit them.

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Bluebook (online)
147 F.R.D. 1, 26 Fed. R. Serv. 3d 493, 1993 U.S. Dist. LEXIS 2554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-metropolitan-district-commission-mad-1993.