Beruflich Dokumente
Kultur Dokumente
____________________
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.
_____________________
_____________________
W.
___________
_______
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-
Walpole and Norfolk challenge the decision of the U.S. Army Corps
Water
Act1 to
allow
the
Massachusetts Water
Resources
Town of Walpole
and adjacent
in a comprehensive
determinations
under
were
not
Norfolk.2
the
arbitrary,
Town of
Section 404
to the
its district
addition, the
decision to
subpoenas
and
allow
for a
Towns'
motion
challenge
motion
protective order
Towns
by
(1)
the
defendants
to prevent
recusal
pursuant
to
to
quash
discovery of
for his
district
denial of
28 U.S.C.
____________________
1
33 U.S.C.
1344.
_________________
183 (D. Mass. 1991).
____________________________
-3-
455(a).4
We
district
Factual Background
Factual Background
__________________
This appeal is an offspring
--
has
been
to
elsewhere
in
landfill in
detail.5
We
treated
wastewater
and
sewage
sludge
and other
a landfill by
digested or heat-dried
States v. Metropolitan
March 1994 to
Dist. Comm'n, 23
See generally
___ _________
______________
1350 (D.
with
the
__________________________
Mass. 1985).
In 1986 the
U.S. Environmental
MWRA began to
Protection
Agency
work closely
(EPA) to
find
potential sites
and
ten
potential sites
were identified
from
a field
of 299
conducted to further
screen
sites.
Additional evaluation was
the
this stage
such
as
of the
ecology
screening
and
air
included environmental
quality
and
potential
standards,
groundwater
effects,
extent
and non-environmental
to
which
potential
criteria, such
communities
were
as cost
and the
already
hosting
Of the
remaining
sludge
six
sites, four
processing, while
were
two sites
further
-- Rowe
evaluated for
--
February
Environmental
of
Impact
Report
Fore River
1989,
Staging
and
the
Draft
issued a
("DSEIS").
issued
Residuals
its
Draft
Management
Quincy,
MWRA
Massachusetts and
site.
to
In May of 1989,
Impact Statement
EPA identified
supplies.
First,
water
to
the
MCI-Norfolk
-5-
and
prison
facilities.
Source Aquifer.6
residents of the
the nearest
This sole
source aquifer
drinking water
Town of Walpole.7
of these wells is
EPA concluded
miles from
In
that
by soils of
approved the
Section 404 of
C.F.R.
wetlands under
submitted
a revised
proposed projects
permit
the standards
230.
In
for proposal to
set forth
in 33
application describing
Act,8 the
all of
its
landfill.9
On
July
12, 1990,
the Corps
issued a
public notice
____________________
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.
-6-
concerning the
MWRA's application,
which proposed to
set aside
and adjacent
to
center
wetland,
of
the Town
Norfolk.
Under
the proposed
also
of
known
as
project
Wetland
would
E,
be
was
MWRA's
located in
filled.
created
This
by
the
guards.
no
Fisheries Service
objection
to the
project.
EPA
comment form
and the
MWRA
However,
four grounds.
First,
that the
MWRA had
C.F.R.
230.10(a).
Second,
the
Towns
argued that
to
a portion
of
an
adjacent wetland,
thus
the
water
allegedly
significant
pool10
Third,
Towns alleged
that
adverse
impact
the proposed
on
resource,
vernal
the
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-
grebe.
adverse
the pied-
the
proposed
landfill
would
have
on
groundwater resources.
David
H. Killoy,
Regulatory Division,
construct
and operate
also
the
branch supervisor
opposed
the
landfill in
of the
MWRA's
application
Walpole.
conditions which,
opinion, required
denied because
and it is
had
failed
in his
the
Corps'
In
that the
to
draft
two unique
permit be
interest."11
nonexistence
First, the
of a
MWRA
practicable
Sole Source
adverse
environmental
area constituted
consequence.
Second,
the
waters of
the United
Aquifer in the
States, in
water.
this instance,
the wells
that in the
Project, he had
for land
fill."12
Regulatory
Branch
requested
its Hydraulics
and
Water
____________________
11
12
Id. at 6.
__
-8-
Quality Branch,
reports
and
technical
water
data
on
groundwater
impacts
supplies.
The
ensuing
report
and
to
prepare
that
the
to
detect any
Sole
Source Aquifer.
drinking
water
leachate13
The
escaping
report concluded
supplies
from
[the
Neponset
"that the
Walpole]
risk to
landfill
is
minor."14
On
January
23, 1991,
Mr.
memorandum
landfill.
Mr.
Killoy asserted
Killoy
submitted a
opposition to
that the
final
the Walpole
MWRA had
not clearly
the
degradation."15
information
on
removal of 46 acres
water
Second,
the
supply
the
[sole
location
source aquifer]
causing
capping could
a
long
application contained
of bedrock
of groundwater
wetlands
First,
and
and
its
too little
properties.
until
the final
term
of
environmental
____________________
13
Leachate refers to precipitation that will percolate through
the residuals placed at the landfill.
14
15
4.
documents
ignored
the nearby
private
wells."16
Mr.
Killoy,
52.
Less
memorandum,
than
the
three
weeks
after
its
Record
Corps issued
Mr.
Killoy's
of Decision
last
("ROD")
with errors
on improper
restore and
enacted the
maintain
the
Clean
chemical,
230.1.
authorized
broadly
and
by
physical,
33 U.S.C.
and
("CWA")
"to
biological
Water Act17
permit.
includes dredged
The
or
term
fill
"pollutants" is
material.18
defined
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-
Section
404
Engineers to issue or
or
fill material.
seeking
permit
application
for
of
the
CWA
authorizes
under
1344(a).
Section
404
discharge.
33 C.F.R.
Corps
of
of dredged
Generally an applicant
submits
In
an
individual
considering
permit
Regulations.
States."19
the
Wetlands are
33 U.S.C.
each
1362(7).
with
the
Engineers.
Secretary of
the Army,
acting
33 U.S.C.
1344(b)(1).
through the
Chief of
C.F.R.
application's
impacts,
C.F.R.
"probable
impacts,
The
including
on the public
Towns
evaluates a
cumulative
interest."
contend that
the
33
Corps'
____________________
19
40 C.F.R.
230.3(s)(7).
factors evaluated
under
this "public
interest
conservation,
economics,
aesthetics,
general environmental concerns, wetlands,
historic properties, fish and wildlife
-11-
(b)
& (c)
320.4(a)(1).
of
40
230.10
and
under 33
C.F.R.
____________________
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.
C.
Standard of Review
Standard of Review
__________________
the defendants
is
reviewed de
__
17 (1st Cir.
of Civil
judgment
shall be
Rule
provides that
granted if it
See, e.g.,
___ ____
Custodio, et al.,
________________
May 7, 1992).
Procedure
novo.
____
Medina &
_________
56(c) of the
Federal
motion for
summary
is clear from
that the
is found
which an
under
to be "arbitrary,
be set
aside
capricious, an abuse
of
U.S. 402,
416 (1971).
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
F.2d 73, 75 (1st Cir. 1991) ("In reviewing EPA's decision we must
pay particular attention
own
rules
and
County, Inc.
_____________
(deference
regulations");
v.
to
Myers, 831
_____
the
Corps'
984,
986
determination
(11th Cir.
is
1987)
"particularly
230.10(a).
In
its Record of
impact of the
Decision, the
Walpole landfill
Corps found
on the aquatic
the minor
and
The
impacts
conclusion, the
First, the
were
ecosystem to
Towns
be
waters.
that the
assert
to adjacent
that
the
Corps
concluding that
"inconsequential."
This
the
erroneous
presumption embodied
-14-
in Section 230.10(a),
other practicable
that
alternatives exist.
proposed
in the
MWRA's application
Corps to presume
Second, the
that
Towns claim
the secondary
of
"inconsequential."
Third, it is
the
practicable
erroneously concluded
alternatives
analysis
because
it
ecosystem" as used
Practicable
___________
Alternative?
___________
The Towns argue that
is
not
supported
consists of a By-Law
making Wetland E a
by
the
evidence.
enacted by the
protected resource.
This
Town of Walpole
This argument
fails for
two reasons.
First,
and foremost,
the
Towns failed
Corps' permit
decisions
Hintz,
_____
review
800 F.2d
for
Administrative
the
822, 830-31
Section
404
to the
administrative
Cir. 1986)
permitting
-15-
review of
Procedures Act is
this
We have no way
Since judicial
is limited
fails.
to make
process
(standard of
under
the
v.
461 U.S.
record
order
to
look only to
determine
if
the
the administrative
Corps'
decision
was
By-Law
secondary
Dubbing
is
inclusion of the
By-Law in
insufficient
impacts to
to
establish that
the ecosystem
are not
the
direct
and
"inconsequential."
assuming the
per se
___ __
"consequence."
By-Law has no
of federal
We
agree
legal significance
Towns
also
impacts to Wetland E
claim
that in
concluding
that
the
no other
Corps reversed
C.F.R.
230.10(a).
None
the rebuttable
presumption contained
in 40
We disagree.
of the
comments received
by the
Corps disputed
square feet
low-value wetland.
submitted
to
the
ecological value
the finding
"virtually
area consisted of
Neither Town
Corps
that
Corps that
Wetland
has
Record
any
essential
evidence to contradict
this small
no function or value."
man-
by the
an isolated,
area of wetland
has
of Decision at 7.
In
-16-
regulation under
Act.
See
___
Towns argue
impact
of the
the
299
landfill.
language of
project's
sites
that the
"inconsequential," it
initially
Appellants' Brief at
rigid interpretation
plain
was
Corps found
was
alternatives
See
___
once the
landfill
required to conduct an
of
that
of the
404 regulatory
of review depends on
on
We hold
guidelines is not
the Section
impact
21.
screened
the
the
that such a
warranted.
The
scheme indicates
for
severity of
The
general
230.10.
In Section 230.6,
the Guidelines
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-
The
Guidelines user,
including the
further
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.
varies
in
discharge,
Towns.
guidelines contemplate an
magnitude depending
rather than
on
the impact
the dogmatic
In cases such
as this one,
analysis which
of
the proposed
scrutiny suggested
where the MWRA and
by the
the EPA
aquatic
ecosystem
of filling
wetland is negligible is
the
Corps is not
the
600
square foot
artificial
230.10(a) to duplicate
can
the
alternative analysis
landfill
In
Corps followed
for NEPA
42 U.S.C.
EPA
for
relying
on
the
in its
review
of
the
Environmental Policy
the recommendation
environmental documents
____________________
22
by
the National
be faulted
conducted
pursuant to
Corps
4321 et seq.
. .
Act.22
of Section
alternatives
. will
in most
__ ___
-18-
Guidelines."
the
Corps
analysis
conducted by
evaluated
several
environmental
the
MWRA and
potential
criteria used
the
sites
in
extensive alternatives
EPA.
to
The Corps
verify
the selection
that
of the
re-
the
proposed
at 11.
evaluation
landfill
The Corps
conducted
in
Guidelines.
approximately
by
Walpole
The
300
reasonably
the MWRA
was
the
relied on
and
best
initial screening
potential
sites
EPA
the
to
find that
alternative
for a
and
substantial
under
the
the
landfill
began with
after
substantial
conclusion.
We
capricious or contrary
practicable
hold
that
it
alternative to
this 600
not
arbitrary,
conclude that no
square feet
of artificial
on the
-19-
aquatic
ecosystem."
determination under
administrative
800 F.2d at 835.
40 C.F.R.
Section 404
230.10(a)(3).
If
the Corps'
is reasonably supported
by the
Friends of Earth,
________________
-20-
B.
on
the adjacent
wetlands; (1)
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
transmission
12.
The
groundwater recharge as
proportion of
precipitation falling
of
since
landfill site
. when
compared
to
the
proportion entering
the
off-site wetlands.
Id.
__
The
adequately
Towns, however,
consider secondary
claim
wetland
-21-
that the
Corps failed
impacts as
part of
to
the
practicable alternatives
follows.
First,
alternatives
measures
analysis.
the Corps
analysis
by
attempts to
concluding
that
practicable
certain
mitigation
issuance of
avoid the
run as
to wetlands inconsequential.
for the
argue that
cert. denied, 489 U.S. 1089 (1989), the Towns allege that
____ ______
mitigation
measures may
alternative analysis.
not persuasive.
not
be used
maple swamp."
to
meet the
this
39 (2d Cir.
Id. at 40.
__
practicable
of Bersani is
_______
an application for a
32 acres of
acres of wetland in an
The
EPA determined
uncertainty; (2)
the availability of
its
an alternative
site
for
the
wildlife.
shopping mall;
Bersani,
_______
and
(3)
therefore, does
the
adverse effect
not announce
on
a procedural
environmental
proposition
compensate
that
losses,
if
but
rather
mitigation
it
measures
upholds
the
basic
are insufficient
to
be denied.
(9th
1986) (affirming
Cir.
Section
404 permit
on
Corps'
conditional
compliance with
issuance of
an agreement
proposing
mitigation measures).
impact on the
Department of
functional value
We
the
of the
proposed to
Cir. 1982),
cert.
____
denied, 461
______
Corps cannot
E is a minor part
U.S.
rely on
927 (1983)
for
its conclusion
the
that
wetlands.
In Buttrey, a
_______
land developer
argued
in relation to
the
The
property.
review
of
Fifth Circuit
the proposed
project is
noted that
prohibited
adjacent to
such "piecemeal"
by 33
C.F.R.
stated, 33 C.F.R.
320.4(b)(3) --
Corps
to consider
changes in
its "public
apply here.
Corps'
interest
numerous piecemeal
review" analysis
-- does
not
filled
finding
Buttrey,
_______
located
effect of
is not "part of
isolated.
the cumulative
that
Wetland E
had
virtually
no
value.
In
downstream
served
water quality.
from filling
a unique
maintaining
most of which
function in
is on upland.
Finally, the
46 acres,
proposed project
in
Buttrey was opposed by the Fish and Wildlife Service, EPA and the
_______
National Marine
inter
_____
alleged it would
opposition
was
in surrounding neighborhoods.
registered by
these
government
No
agencies
the construction
to fifty
percent of
including
Wetland
approximately
landfill.
150
Towns' consultants
the
A,
feet
drainage areas
a
site
from
which
the
claim that
potentially eliminate up
to adjacent
has
footprint
wetlands,
vernal
of
the
pool,
proposed
the
mitigation
insignificant.
With
respect
would
to the
render
area and
any
impacts
mitigation measures,
the
these mitigation
had
"approval
measures in other
authority
program through a
The
experts.
issues,
the
monitoring
and
the Corps
mitigation
Towns' objection
drainage
over
to the
reflect nothing
In cases
where
Corps findings
more than
technical
on the
a disagreement
. ."
Id.
__
subject of
between the
disputes predominate
the
Chevron
_______
(1984).
We hold
that
the
landfill
site represents
drainage
potential
impact
less
Corps'
than one
insignificant
are
conclusions that
percent
of the
the
total
clearly
-25-
arbitrary,
-26-
C.
Corps excluded
groundwater
consideration.
The
of the "aquatic
that
States."
772 F. Supp.
groundwater
40 C.F.R.
resources
at 685.
The
are "waters
Towns, however,
of
the
United
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
constitutes
of
the
indicate whether
United
to refer
States,"
only to
groundwater
the
Exxon Corp.
___________
United States
_____________
courts have
questioned
whether the
Although
term "waters
Cir. 1990);
of the
to surface
has
surface waters.
v. Train,
_____
Corps
707 F.
about
groundwaters,
discretion
of
the
relationship
it should
the EPA
be left
and
between
in the
the Corps.
Riverside Bayview
Homes, Inc.,
_________________________________
474
surface
waters
first instance
and
to the
121,
134
(1985)
(deference
about
should be
the
given to
relationship
"the Corps'
between
waters
ecological judgment
and
their
adjacent
wetlands").
We
D.
the
alternatives
unable to
other
properly conducted
claim -- it
alternatives which
impacts"
the practicable
Corps had
"severe environmental
The Towns
-- Rowe
in
of
draft
report
1991
of Massachusetts appointed
which
identified
six
other
alternatives.
In
dated
October
1988,
the
MWRA
concluded that
would result
"development
in minimal
of the
Rowe Quarry
as a
environmental impacts in
comparison to
an issue of fact
landfill
On its face
as to whether
230.10(a)
potential
as
site
environmental
site would
In
such
Rowe
effects does
concluded
may
not constitute
fact, EPA
Quarry
A finding
have
a finding
effects on the
that the
less
that a
adverse
that such
aquatic ecosystem.
documents
used in
the
NEPA
____________________
23
review,
"establish[]
impacts
on
that the
the aquatic
insignificant
ecosystem at
the
potential adverse
Walpole site
are no
Quarry."24
Quarry
For
"could potentially
cause
that a landfill
adverse
impacts to
at
the
Saugus River
Towns argue
Residuals
Landfill
potential
alternatives to
Siting
The
faulted
not
investigation by
Advisory Commission
the Walpole site,
230.10(a) standard."
district court
for
that an
identified
"all of
the
six
which are
Brief of Appellants at
considering
the Harbor
report
Corps cannot
of
the
be
Governor's
even in existence
until
the
after
the
issued."26 The
introduction of
[Record
of
Decision]
and
permit
were
support in 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
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
was an
open question.27
Finally,
the
sites it had
the Commission's
of adverse impacts on
the aquatic
sum,
genuine
determination
that
alternative analysis
the Commission's
issue
the
of
report
material
Walpole
site
was arbitrary,
is
insufficient to
fact
that
the
meets
the
practicable
capricious
or contrary
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
____________________
Corps'
to
27
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-
Towns
assert
that
the
Corps
the
west.29
that
ROD at
to
give
Record of
adequate
the
In the
failed
Decision, the
located on
landfill site to
Corps recognized
The
Towns
argue that
the Corps
violated
Section
230.10(b)
because it
these impacts to
failed to
wildlife.
conduct an extensive
We disagree.
As
review of
pied-billed grebe
listed as
nor
the great
blue
Act of 1973."
40 C.F.R.
Marine
Fisheries
Service
-- the
resources --
230.10(b).
Department
and
have
indicated no
"species
Furthermore,
the U.S.
federal agencies
heron are
Fish
empowered to
objection
the National
and
Wildlife
protect wildlife
to the
landfill
at
Walpole.
____________________
Notwithstanding
230.10(b), the Towns assert
the impact of the
under
Section
"[l]istings
of
the
clear
language
of
Section
Section
230.30(a)
endangered
species
be analyzed
states
as well
that
as
the
U.S.
Interior."
Fish and
Wildlife Service
The district
of
the Department
of the
consideration of
is properly
230.10(c), which
230.10(c)
indicates,
Section
(emphasis added).
230.10(c),
specifically refers to
unlike
As the
underlined part
Section
230.10(b),
404 Guidelines,
the continued
boundary of
the landfill
footprint and,
-33-
landfill
grebe.
The
to the
Towns'
this area.
The projected
of grebes has
noise level of
Environmental
Impact
been sighted in
the construction
to be 45 decibels.
Statement,
EPA
and
In its
reasonably
concluded that this noise impact would not threaten the existence
of the grebe.
-34-
Regarding
noise levels
that could
potentially
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.
__
"was not
unreasonable."
Id.
__
at 19.
specifically considered
landfill on the
interest analysis.
Given
Under 40 C.F.R.
permit application
230.10(c), the
or contribute
to significant
degradation of
the waters
of the
United States."30
The Corps
the impact on
The
had not
Corps'
were
not
part
district court
properly conducted
findings
indicated
that
under
the
its
Corps
of
the
"significant
degradation"
interest
the Corps
analysis, the
review
properly evaluated
analysis
groundwater
____________________
30
As
impacts.
addressed each
Towns do
of the Towns'
not argue
law.
arbitrary, capricious
objections to
the
Id.
__
that
the Corps'
findings or
or otherwise
not in
accordance with
impacts
to
reversible
groundwaters
error.
under
We think
Section
230.10(c)
this argument
constitutes
elevates
form over
substance.
Under 40 C.F.R.
factual
determinations,
by Subpart B and
through F, . .
."
evaluations,
G, after consideration
and
tests
of Subparts C
interest review
analysis
neglected,
the
intent
and
purpose
of
that section
was
satisfied.
The
Corps'
independent
Hydraulics and
analysis
of
Water
the
Quality
Branch performed
potential impact
on
an
groundwater
C.F.R.
320.4(a),
the Corps is
required to
proposed activity
public interest."
interest
The
review was
inadequate
to clean-up
other
Towns
assert that
because the
the
use on
Corps'
Boston Harbor.
According
sites potentially
to the
have
ultimate
Towns, the
of the Walpole
available.
public
Corps should
the
But this
landfill
narrow
interpretation of
it
asks the
Corps to
duplicate the
analysis of 40 C.F.R.
The Corps'
is illogical since
"practicable alternatives"
230.10(a).
record.
Under the
and environmental
entitled to
factors
balancing of a
and its
substantial deference.
number of economic
ultimate determinations
are
Environmental Coalition of
___________________________
-38-
We must not
to be
filled
Furthermore, the
require
hydrologic
regime
F.2d
Corps
maintenance
Myers, 831
_____
ecological
which
existing
supports
is
isolated.
MWRA's application
ground
the
(11th Cir.
value and
conditioned the
of
984, 986
and
surface
adjacent
"to
water
wetlands."
___
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
while the
attorneys
the Towns
which expressed
opposition
some
to the
Information Act
internal Corps
issuance of
documents
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-
occurred.
The
Towns
the
and
District
of
Massachusetts to
subpoenaed all
documents
appear
for
concerning pre-permit
privileges, the
protective order
and quash
defendants moved
the subpoenas.
to obtain
The Towns
maintain
to issue the
13, 1991,
the district
court issued an
order
the
EPA submitted
19 documents.
Assistant
U.S. Attorney
Category I
of Engineers.
between
documents
Category II consists
Department
of
Justice
of notes of
Attorneys
or
communications
Assistant
U.S.
Corps.
of
Category
IV consist of a draft
1991.
-40-
EPA's counsel
documents
categories.
Category I
for in camera
__ ______
between EPA
Category
by EPA's consultant,
Metcalf &
the
exclusion
between EPA
Category II consists
Engineers personnel.
challenge
consists of communications
divided the
Corps of
of
Eddy, Inc.
all these
Although the
documents,
Towns
they
first
III of
the
U.S.
Attorney's
submission
and
all
of
the
With
only seen
remaining
record
that the
50
documents did
because they
not
were never
belong
in the
considered by
administrative
Corps personnel.
concluded that
made part
of the
administrative
record
discovery by the
Walpole
_______
and
the
other two
attorney-client privilege.
were
shielded
from
183, 190
courts may look beyond the administrative record when there is "a
strong showing
of bad
401 U.S.
faith or
improper
behavior before
such
402,
420 (1971).
The district
court
judge
-41-
not
provide a
showing of
bad faith.
Towns argue
wrong standard
Corps never
Attorney's
(1)
in excluding
considered; (2)
Office
that the
to
the
district court
the fifty
in excluding
Corps;
(3) in
applied the
documents that
letters
by the
excluding
from
the
U.S.
the
administrative
Alternatively, the
did
not abuse
its
discretion in
granting
the
by
__
the Corps?
_________
did not
belong in
seven of the
the administrative
They
fifty seven
record because
these
erred
because
it
created
a rule
that
allows
administrative
The
which
must
Towns seem
reflects an
be included
be asserting
oral communication
in
would be required to
oral communications
with the
document
government agency
record, even
argument is obvious.
agencies
that every
with a
the administrative
to
if these
The fallacy
Were we to accept
it, government
issue under
There is no support
highly questionable.
We
have
carefully
reviewed
the
remaining
fifty
information
relevant
to
the issuance
1445, 1457
this argument
-- supports
of
permit.
Burford, 677
_______
the
district court's
F. Supp.
in support of
decision
to
the Department of the Interior were properly not made part of the
administrative
submissions
of
the
record.
personnel
conversations
Id. at
__
of no
of
1457.
Similarly, most
of the
these agencies
significance.
which
reflect
The remaining
telephone
documents --
-43-
they
reflect
the
mental
impressions
and
opinions
of
these
attorneys.
these documents.
We now
review the
seen by the
-44-
B.
by
__
documents
district
were
consideration.
Attorney's
seen
court
by
Six of the
Office to
the
the
concluded
Corps
that
and
seven
warranted
Engineers
of
the
separate
and the
seventh
District
Engineer
for
the New
England
Division,
to
The district
not
belong in
contain
the administrative
factual statements
These
or
record because
made policy
they did
not
recommendations and
were
written by
Assistant
U.S.
for
Engineer.
the
In
Corps, and
both letters,
could be
deliberative
Colonel
Harris, the
Assistant U.S.
District
Attorney Henderson
withheld
process
to
from public
privilege of
the
disclosure under
FOIA.
Assistant
the
U.S.
district concluded
was "highly
that it
unlikely
this statement
provided "no
-45-
and
only to support
Alternatively,
the district
protected from
court's action
is fully supportable.
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.
Inc., 874 F.2d 20, 27-28 (1st Cir. 1989) (citing United States v.
____
_____________
Wilson, 798 F.2d 509, 512 (1st Cir. 1986)).
______
At
to
February of
attempt
Walpole.
the state
to
1991 -- the
overturn
the
to
place
several suits to
the
landfill in
intervene in a suit
from the district
(2) filed
a motion
Department of Corrections to
to
an order
site from
the
-46-
under
the National
Environmental
Towns
Policy Act.33
to overturn the
Clearly,
the
decision to locate
and
Id. at 190.
__
The Corps
has
met each
of the
elements required
to
assert
the
U.S. Attorney.
its client
they
The
of the letters, it
is clear that
legal
opinion,
proceeding."
legal
services
or
assistance
in
legal
____________________
33
42 U.S.C.
4321 et seq.
__ ___
-47-
F.2d at 28.
Although
circumstance where a
privilege should be
there may
be
an
unusual and
document protected
by the
extraordinary
attorney-client
Draft
_____
a letter
R. Harris, District
Engineer for
the
New England
Division to
Richard
D. Fox
of
the MWRA
was
protects
the
deliberative
deliberations of an agency
the quality of
Co.,
___
before
421 U.S.
the
132, 151
(1975).
Nadler
______
final
decisionmaker
Two
requirements must
properly
withhold
"in
order
to
be prepared
assist
an
184 (1975)).
deliberative
process
expresses opinions
on legal
Vaughn
______
523
v.
Rosen,
_____
that
F.2d
it
makes
or policy
1136,
U.S. 168,
part of the
recommendations
matters."
1144
agency
in
from
F.2d 1479,
decision
be met
a document
privilege
agency decisions."
government may
disclosure.
prior
process
(D.C.
or
Id.
__
(citing
Cir.
1975)).
Nadler, 955
______
F.2d at
1491; Hopkins
_______
5 U.S.C.
v. U.S. Dept. of
______________
Housing & Urban Dev., 929 F.2d 81, 85 (2d Cir. 1991).
____________________
The document at
MWRA informing the MWRA that the Corps would not be able to issue
a
permit for
the
Walpole
landfill
forth two
draft
no
has
the
end
options to "stay
mandated schedule"
letter
"by
factual
of
January
on the
court
information
and
it
The
reflects a
the
draft
letter
is
clearly
protected
from
Towns
seek to
to
documents in
__
bad
faith
include
permit.
improper
documents
in the
The
the 57
behavior
"pressured" the
district court
the they did
to
warrant
examined the
not demonstrate
ordering
the
here
is
the
administrative record.
Lorion, 470 U.S. 729, 743-44 (1985); Camp v. Pitts, 411 U.S. 138,
______
____
_____
142
800
F.2d at
829.
Courts
-49-
the
supplementation
of
the
administrative
record.
(9th Cir.
1991).
Citing D.C. Fed'n of Civic Ass'ns v. Volpe,
____________________________
_____
1231, 1249 (D.C. Cir.),
Towns
there was
no improper behavior
459 F.2d
(1972), the
in concluding that
discussions among
executive branch
the ex
__
officials.
Volpe
_____
strong
does
showing
not dilute
of
bad
supplementing
the
District
Columbia
of
Transportation
faith
record.
had
or
requirement
improper
In Volpe,
_____
Circuit
failed
the
held
to
behavior
before
divided panel
of the
that
comply
of making
the
with
provisions applicable
Secretary
the
of
statutory
to federal
funded
The defects
colossal,
including
record or to
project
bridge.34
to
compile an
Volpe were
_____
administrative
prior
to
the
finalization
The evidence in
of
the
plans
for
the
____________________
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
threatening to
withhold funds
publicly
pressured
the
Secretary by
rapid transit
Two
judges held
if based
in part on
in whole or
"political pressure."
Id. at
__
1246.35
Our
review of
district court's
suggest
that
process.
factors
camera submission
______
there is
pressure"
whole or in
or
supports the
no evidence
any
kind
of
here to
unseemly
Corps' permitting
of Decision and
record.
conclusion that
"political
influence, in
the in
__
It
shows that
relevant
to
the
Corps based
determining
its decision
whether
the
MWRA's
on
the
permit
that
if
other
litigation
[involving
the
United
the Corps in issuing the permit, the decision must be vacated and
____________________
Cir. 1991).
bridge project.
Id. at 1246.
__
-51-
remanded.
Although
questionable, we
need not
this
interpretation
in
its permitting
that the
seems
its soundness
indication of impropriety by
the Corps
Volpe
_____
conclusively determine
of
review show
or that the
process.
fact that
The Towns
the U.S.
have not
Attorney's
for representing
The
Supreme
executive
Court has
branch
recognized
the sole
agencies
that the
in
main
one
"that
voice
reflects
not
the
parochial interests
of
of
all
the people."
United States v.
______________
Providence
__________
___________
Finally, we have examined
serve
have
not cited
precedent
-- nor
have we
found
The
any --
an
with
administrative
record
information
which
is
already
28 U.S.C.
Section 455(a)
Judge
orders,
bench in connection
with a ruling,
Memorandum Order
________________
Arache,
______
United States
_____________
946 F.2d
v. Cowden,
______
129,
545 F.2d
140 (1st
Cir.
257, 265
1991)
(1st Cir.
112 S.
abuse of discretion
standard.
Camacho
_______
v. Autoridad de Tel fonos de Puerto Rico, 868 F.2d 482, 490 (1st
______________________________________
Cir. 1989).
Judge Mazzone made several
-53-
the Boston Harbor litigation which the Towns assert would cause a
reasonable
person
to
question
the
to
wait
until
of
Massachusetts
an alternative
the
Instead,
December
legislature.
since
The
5,
to
judge,
the
voting on the
Department of Corrections
December 5, 1990.
the MWRA to
landfill
after
first
Massachusetts legislature
The
planning
transfer of Walpole
his impartiality.
vote
however,
in
made
the
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
might require
further scrutiny.
were made,
isolation,
context in
we conclude that
they at
most
the
Commonwealth
comments, viewed in
was
moving to
fully
comply
with the
In fact, Judge
______
of
a request by the
-54-
the
court's mandated
comments -- to
actual
schedule.
the effect
notice that
he
In
this sense
Judge Mazzone's
would not
was placed
tolerate further
in
unjustified
the
is significant.
induce
context
For more
on
and
its
cleaning up Boston
agencies
Harbor.
which these
than five
the Commonwealth
federal law by
historical
years,
the project
to comply
Back in
with
1985, Judge
Mazzone found the Commonwealth and the MWRA liable for violations
Elimination
System.36
These
violations
continue
today.
The second
specific
Mazzone
behavior which
impartiality
reasonably
is found
in
calls
an Order
claim amounts to
into question
entered
Judge
after the
Walpole
transfer on
the MWRA.
The legislature
December 6, 1990,
and shortly
voted against
thereafter, the
compel the
motion
by
imposing
moratorium
on
any
new
sewer
____________________
36
Commonwealth
that
statement
landfill site to
only
per
___
be selected
the Walpole
court's
site
long as
chosen.
was sufficiently
some other
These statements
the
appropriate
that Judge
factors to
Mazzone
se so
__
weighing
indicates
sanction to bring
his concern
advanced
to meet
that
the
wanted
into account
was expeditiously
Judge Mazzone
in
the Commonwealth
Indeed, the
determining an
into compliance
order.
Mazzone's awareness
was
at the end
the landfill.
The Towns
-56-
"was
of Engineers . .
Additionally, in
and the
the complaint in
find
needed
nothing here
which rises
to compel recusal.
If
to
the level
of partiality
more than $10 million in the site selection process, that the EPA
closely monitored
Corps issued
a extensive
Record
of Decision
that the
supported by
Mazzone
our opinion
Given
question the
in
And
the
state
the context
substance,
we hold
the obvious,
in which
and
these remarks
that Towns
have failed
were made
and their
to show
that Judge
sense.
their motion
Finally, the
overseen
plan
compliance with
the administration
scheduling
aspects
--
including ordering
Legislature
challenge
to
transfer the
to the
Section
threat to the
Since
sewer moratorium
Walpole
site
404 permitting
--
to
compel the
and the
Towns'
process represents
a reasonable person
would
case.
There
appearance
required
is a
of bias,
difference,
and
to act against
the fact
time
a case
official decisions
Circuit
A judge
an issue
and positions
that
the backdrop
took
presents
however, between
with
a judge
of official
is
the real
sometimes
positions he
may have a
"[o]ur system of
judge's
prior
connection.
This
all of
The Towns
the Boston
which
constrained to decide
case in favor of
the Corps.
Boston Harbor
proved unsatisfactory.
We
are
cleanup if
unwilling
the Walpole
to
assume
site
that
-58-
district judge -- of
whom there is
no question whatever of
any
to render a just
challenge to
the
the Corps'
Section 404
position that
permitting
the
process.
He
groundwater effects
230.10(c).
merits of
did not
most qualified
just
to the
Boston
See,
___
e.g., In Re Allied-Signal
____ ____________________
957 (1990).
it is
While
obvious that
a judge's
prior orders
subsequent proceeding,
F.2d
1018
(1st
defendant was
reasonable
Cir.
(sentencing
v. Chantal, 902
_______
judge's
person
to question
the
judge's
views
that
might lead a
impartiality in
L pez,
_____
for
inference
an
Giorgi,
______
944 F.2d at 37
of
impartiality) (citing
1036 (1st Cir.
1988).
required
United States
______________
We
v.
-59-
Walpole's case
in a vacuum.
That judge
would
have learned of the Boston Harbor cleanup schedule and would have
last
point
good
faith
particular judge or
requires
the
arsenal
to
further
challenges
to
the
impartiality
of
comment.
to be discouraged or castigated
us
trial
in the
of
action be taken
While
we
understand
The district
the defendants'
motion to quash the subpoena and protective order and denying the
Towns' motion for the judge's disqualification.
Affirmed.
________
-60-