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.
_____________________
_____________________

W.

Stephen D. Anderson for appellant Town of Norfolk and John

___________________
____
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

The district court,

Corps'

and adjacent

in a comprehensive

determinations

under

were

not

Norfolk.2

the

arbitrary,

accordance with law and therefore

in favor of the Corps,

engineer for New England, and

herein as defendants).

Town of

opinion, found that

Section 404

capricious or otherwise not in

it granted summary judgment

to the

its district

the MWRA (collectively referred to

Norfolk & Walpole v.

_________________

U.S. Army Corps of

__________________

Engineers, 772 F. Supp. 680 (D. Mass. 1991).

_________
In
court's

addition, the

decision to

subpoenas

and

allow

for a

Towns'

motion

challenge

motion

protective order

certain documents3 and

the

Towns

by

(1)

the

defendants

to prevent

recusal

pursuant

to

to

quash

discovery of

(2) the district court judge's

for his

district

denial of

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.
A.

Factual Background
Factual Background
__________________
This appeal is an offspring

clean up Boston Harbor.

--

has

been

to

This particular controversy -- involving

the issuance of a permit

Walpole

of the colossal effort

to construct and operate a

described

elsewhere

in

landfill 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

residuals into Boston

remedies,
hold grit,
sludge from
United

wastewater

and

sewage

sludge

and other

Harbor, the MWRA was required, among other

to construct and operate

a landfill by

screenings and, if necessary,

digested or heat-dried

its wastewater treatment facilities.

States v. Metropolitan

March 1994 to

Dist. Comm'n, 23

See generally
___ _________

Env't Rep. Cas.

______________
1350 (D.
with

the

__________________________

Mass. 1985).

In 1986 the

U.S. Environmental

MWRA began to

Protection

Agency

work closely
(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.

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
and

ten

for the landfill.

potential sites

Eventually four technologies

were identified

from

a field

of 299

conducted to further

screen

sites.
Additional evaluation was
the

potential sites for detailed analysis.

this stage
such

as

of the
ecology

screening
and

air

The criteria used at

included environmental
quality

and

potential

standards,

groundwater

effects,
extent

and non-environmental
to

which

potential

criteria, such

communities

were

permanent wastewater treatment facilities.

as cost

and the

already

hosting

This screening stage

eliminated four sites on environmental and other grounds.

Of the

remaining

sludge

six

sites, four

processing, while

were

two sites

further

-- Rowe

evaluated for

Quarry and MCI-Walpole

--

were further evaluated for a landfill operation.

In

February

Environmental

of

Impact

Report

Facilities Plan ("DEIR").

the

Fore River

1989,

Staging

and

the

Draft

issued a

("DSEIS").

issued

Residuals

its

Draft

Management

The MWRA proposed to process sludge at

Area in

Quincy,

landfill the residuals at the MCI-Walpole

EPA

MWRA

Massachusetts and
site.

Draft Supplemental Environmental

to

In May of 1989,

Impact Statement

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.

drinking

water

to

the

MCI-Norfolk
-5-

and

These wells supply

MCI-Walpole

prison

facilities.

Second, to the east of the landfill site is the head

of the Neponset Sole

Source Aquifer.6

serves several wells that

to the

residents of the

the nearest

This sole

source aquifer

are the only source of

drinking water

Town of Walpole.7

of these wells is

EPA concluded

located more than two

miles from

the landfill site and is separated from the landfill

low permeability.

In

March 30, 1990, EPA formally

that

by soils of

approved the

construction and operation of the landfill at the Walpole site.

Pursuant to
Corps is
dredge

Section 404 of

the Clean Water

required to review permit applications

and fill

C.F.R.

wetlands under

320.4(a)(1) and 40 C.F.R.

submitted

a revised

proposed projects

permit

the standards
230.

In

for proposal to
set forth

in 33

May 1990, the MWRA

application describing

to clean Boston Harbor,

Act,8 the

all of

its

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

proposal, a 600 square

the

center

wetland,

of

the Town

Norfolk.

Under

foot area of man-made wetland

the proposed

also

of

known

as

project
Wetland

would
E,

be

was

MWRA's

located in

filled.

created

This
by

the

Massachusetts Department of Corrections as an obstacle course for

training prison

guards.

and the U.S. Fish

indicating

no

The National Marine

Fisheries Service

and Wildlife Service submitted a

objection

to the

project.

EPA

comment form
and the

submitted comments in support of the proposed landfill.

MWRA

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

landfill would eliminate over fifty percent of the surface

supply

to

a portion

of

an

adjacent wetland,

thus

the

water

allegedly

causing substantial disruption to

including

significant

pool10

located within 100 to 150 feet of the landfill footprint.

Third,

Towns alleged

that

adverse

impact

the proposed

on

resource,

vernal

the

the overall wetland

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

billed
the

grebe.

adverse

the great blue heron and

the pied-

Fourth, the Towns claim that the MWRA disregarded

impact

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.

memorandum dated December

24, 1990, Mr. Killoy found

conditions which,

opinion, required

denied because
and it is
had

failed

in his

it failed "two parts of

contrary to the public

to demonstrate

the

Corps'

In

that the

to

draft

two unique

permit be

the 404(b)(1) guidelines

interest."11
nonexistence

First, the
of a

MWRA

practicable

alternative to the landfill would have less adverse impact on the

aquatic ecosystem.
to the Neponset
significant
discharge
the

Mr. Killoy concluded that even a small threat

Sole Source

adverse

environmental

area constituted

consequence.

Second,

the

of fill may contribute to a significant degradation of

waters of

the United

which supply drinking

Corps'

Aquifer in the

States, in

water.

review of the Central

identified a "wide range

this instance,

Mr. Killoy also noted

Artery and Tunnel

the wells

that in the

Project, he had

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,
reports

and

technical
water

Water Control Division to

data

on

groundwater

impacts

report on the potential risk

supplies.

The

ensuing

examine the available

report

and

to

prepare

for contamination of the

recommended

that

the

monitoring system be expanded to include at

well

to

detect any

Sole

Source Aquifer.

drinking

water

leachate13
The

escaping

least one monitoring

towards the

report concluded

supplies

from

[the

Neponset

"that the

Walpole]

risk to

landfill

is

minor."14
On

January

23, 1991,

Mr.

memorandum

summarizing his continued

landfill.

Mr.

Killoy asserted

Killoy

submitted a

opposition to

that the

final

the Walpole

MWRA had

not clearly

demonstrated that Walpole was the "least environmentally damaging

practicable alternative" for the following three reasons.
if groundwater flow contributed
gradient wetlands, then "the
recharge area, high
deplete

the

degradation."15
information

on

removal of 46 acres

water

Second,
the

substantially to the nearby down

supply

the

[sole

location

source aquifer]

causing

capping could
a

long

application contained
of bedrock

Third, the investigation "essentially

the

of groundwater

on the groundwater divide, by

wetlands

First,

and

and

its

too little

properties.

neglected the presence

until

the final

term

of

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,

-9-

4.

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

memorandum,

than

the

three

weeks

after

its

Record

Corps issued

Mr.

Killoy's

of Decision

last

("ROD")

granting a permit to the MWRA to inter alia construct and operate

_____ ____
the MCI-Walpole landfill.
claim that the Corps'

As further elaborated below, the Towns

permitting process is plagued

and that the decision to

issue the permit was based

with errors

on improper

pressure by the U.S. Department of Justice and EPA.

B.
B.

Statutory and Regulatory Background

Statutory and Regulatory Background
___________________________________
Congress

restore and

enacted the

maintain

the

Clean

chemical,

integrity of the Nation's waters."

40 C.F.R.

230.1.

authorized

broadly

and

by

physical,

33 U.S.C.

and

("CWA")

"to

biological

1251(a); see also

________

Section 301 of the CWA makes the discharge of

pollutants into navigable waters

is

Water Act17

permit.

includes dredged

unlawful, unless such discharge

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-

"waters of the United States." 33 U.S.C.

included in the definition

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

to apply the regulations and

set forth in Titles 33 and

Regulations.

States."19

the

deny permits for the discharge

applications, the Corps is required

guidelines

Wetlands are

of "waters of the United

33 U.S.C.

each

1362(7).

40 of the Code of Federal

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

Engineers.

Secretary of

the Army,

acting

33 U.S.C.

1344(b)(1).

through the

Chief of

These Section 404 guidelines

are codified at 40 C.F.R. Part 230.

Under 33
permit

C.F.R.

application's

impacts,
C.F.R.

320.4(a)(1), the Corps

"probable

impacts,

of the proposed activity

320.4(a)(1).20

The

including

on the public

Towns

evaluates a

cumulative

interest."

contend that

the

33

Corps'

____________________
19

40 C.F.R.

230.3(s)(7).

See also United States v. Riverside

________ _____________
_________
474 U.S. 121 (1985) (Corps acted reasonably

Bayview Homes, Inc.,

___________________
in interpreting Clean Water Act
of material into wetland).
20
Among the
review" are

to require permits for discharge

factors evaluated

under

this "public

interest

conservation,
economics,
aesthetics,
general environmental concerns, wetlands,
historic properties, fish and wildlife
-11-

determination to issue the

(a),

(b)

& (c)

320.4(a)(1).

of

40

permit is erroneous under subsections

C.F.R.

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 district court's grant of summary judgment in favor

of

the defendants

is

reviewed de
__

Sucesores, Inc., et al. v.

________________________
op. at
Rules

17 (1st Cir.
of Civil

judgment

shall be

Rule

provides that

granted if it

"there is no genuine issue

See, e.g.,
___ ____

Custodio, et al.,
________________

May 7, 1992).

Procedure

novo.
____

Medina &
_________

No. 91-1469, slip

56(c) of the

Federal

motion for

summary

is clear from

the record that

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
the standard of review set
Act,21 pursuant to
only if it

is found

which an

under

forth in the Administrative Procedure

agency's action will

to be "arbitrary,

be set

aside

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

Congress"); All Regions Chemical Labs, Inc. v.

________________________________

intent of

U.S. E.P.A., 932

___________

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

to the interpretation that it gives its

Myers, 831
_____
the

Corps'

Environmental Coalition Broward

________________________________
F.2d

984,

986

determination

(11th Cir.
is

1987)

"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

impact of the

Decision, the

Walpole landfill

Corps found

on the aquatic

inconsequential considering the low value of

landfill and
wetlands

the minor

and

The

interpretation of the Section

three reasons.
direct

impacts

conclusion, the

First, the
were

ecosystem to

Towns

be

the 600 square foot

potential secondary impacts

waters.

that the

assert

to adjacent

that

the

Corps

230.10(a) guidelines is flawed for

Corps erred in

concluding that

"inconsequential."

Towns assert, reversed the

This

the

erroneous

presumption embodied

-14-

in Section 230.10(a),
other practicable
that

which requires the

alternatives exist.

the Corps erred in concluding

proposed

in the

MWRA's application

Corps to presume
Second, the

that

Towns claim

that the mitigation measures

would render

the secondary

impacts to surrounding wetlands

alleged that
part

of

"inconsequential."

Third, it is

the Corps failed to consider groundwater impacts as

the

practicable

erroneously concluded

alternatives

analysis

that the term "aquatic

because

it

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
"evidence"

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

Wetland By-Law part of the administrative record.

of knowing the
the

terms of this By-Law.

Corps' permit

decisions

record, the Towns' argument

v.

Hintz,
_____

review

800 F.2d

for

Administrative

the

822, 830-31

Section

404

to the

administrative

Cir. 1986)

permitting

-15-

review of

See, e.g., Friends of Earth

___ ____ _________________
(9th

Procedures Act is

this

We have no way

Since judicial

is limited
fails.

to make

process

(standard of
under

the

"highly deferential"); Buttrey

_______

v.

United States, 690 F.2d

_____________

461 U.S.
record

1170 (5th Cir.

927 (1983) ("[Courts]

in

order

to

1982), cert. denied,

____ ______

look only to

determine

if

the

the administrative

Corps'

decision

was

arbitrary, capricious, or not in accordance with law.").

Second, even
the administrative
a

By-Law

secondary
Dubbing

is

inclusion of the

By-Law in

record, the fact that Walpole has passed such

insufficient

impacts to

to

establish that

the ecosystem

are not

the

direct

and

"inconsequential."

a piece of real estate "wetland" by municipal edict does

not establish such a

law nor does
with the

assuming the

conclusion de jure for purposes

__ ____

the By-Law grant

Corps that Walpole's

per se
___ __

"consequence."

By-Law has no

of federal
We

agree

legal significance

since the MWRA is not subject to them.

The

Towns

also

impacts to Wetland E

claim

that in

concluding

was negligible and therefore that

that

the

no other

practicable alternative having less environmental impact existed,

the

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

that this 600

made,

square feet

low-value wetland.

submitted

to

the

ecological value
the finding
"virtually

area consisted of
Neither Town

Corps

that

Corps that

Wetland

addition, we note that

has

Record

any

essential

evidence to contradict

this small

no function or value."

man-

asserted in the comments

nor have they presented

by the

an isolated,

area of wetland

has

of Decision at 7.

In

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
direct

Towns argue

impact

of the

the

299

landfill.

language of

that the level

the

project's

sites

that the

"inconsequential," it

initially

Appellants' Brief at

rigid interpretation
plain

was

Corps found

was

exhaustive feasibility evaluation of each

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

the nature and

environment.

for

severity of
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

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

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.

230.6(a) & (b) (1991) (emphasis added).

Clearly, the

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

conducted a thorough environmental analysis of alternative sites,

and

where the Corps' determination that the direct impact on the

aquatic

ecosystem

of filling

wetland is negligible is
the

Corps is not

the

600

square foot

artificial

supported by the administrative record,

required under Section

the analysis conducted by the

230.10(a) to duplicate

MWRA and EPA.

Norfolk & Walpole,

__________________

772 F. Supp. at 687.

Nor

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

that "the analysis of

environmental documents

____________________
22

by

the National

230.10(a)(4), which provides

required

be faulted

conducted

pursuant to

doing so, the

Corps

4321 et seq.

. .

Act.22

of Section

alternatives

. will

in most

__ ___
-18-

cases provide the information

under [the Section 404]

for the evaluation of alternatives

Guidelines."

Although Section 230.10(a)

recognizes that the NEPA review may provide insufficient analysis

to
here

meet the Section 404

that

the

Corps

analysis

conducted by

evaluated

several

environmental

guidelines requirements, it is apparent

supplemented
the

the

MWRA and

potential

criteria used

landfill was properly applied.

the

sites
in

extensive alternatives
EPA.

to

The Corps

verify

the selection

that

of the

re-

the

proposed

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.

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

additional evaluation of about

selected.

Under the practicable alternatives

not required to conduct

each alternative site
ultimate

ten individual sites, Walpole was

an independent feasibility evaluation of

merely because a party

conclusion.

We

capricious or contrary
practicable

test, the Corps is

hold

that

it

disagrees with its

was

to law for the Corps to

alternative to

wetland exists which would

this 600

not

arbitrary,

conclude that no

square feet

of artificial

have a lesser "adverse impact

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

record, our inquiry must end.

by the

Friends of Earth,
________________

-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

concluded that although the

recharge.

The

potential for leachate

Corps

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

surface water and

"the

groundwater recharge as

proportion of

precipitation falling

the possible loss

a minor impact
on the

of

since

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

off-site wetlands.

Id.
__

the total drainage

area supporting the

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
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

planned by the MWRA

that

practicable

certain

mitigation

Second, the Corps' conclusion that

Wetland E is a minor part of the total

issuance of

avoid the

run as

would render any secondary impacts

to wetlands inconsequential.

the Stop River wetlands

The Towns' argument

drainage areas supporting

cannot serve as a justification

the permit, and in

any event, the Towns

for the

argue that

they have presented evidence to contradict this finding.

Citing Bersani
_______
1988),

v. Robichaud, 850 F.2d 36,

_________

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

The Towns's interpretation

In Bersani, the EPA denied

_______

permit to build a shopping mall

this

39 (2d Cir.

Id. at 40.
__

practicable

of Bersani is
_______

an application for a

on 32 acres of "high quality red

To compensate for filling

32 acres of

"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

scientific

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

straitjacket against the use of mitigation measures to compensate

for

environmental

proposition
compensate

that

losses,
if

but

rather

mitigation

it

measures

upholds

the

basic

are insufficient

to

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

1986) (affirming

Cir.

Section

404 permit

on

Corps'

conditional

compliance with

issuance of

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.

hold that it is reasonable for
practicable
wetland to

the Corps to consider, under

alternatives analysis, the

be impacted and

functional value

the mitigation measures

We

the

of the

proposed to

avoid secondary impacts.

The Towns cite Buttrey v. United States,
_______
_____________
(5th

Cir. 1982),

cert.
____

proposition that the

Wetland

denied, 461
______

Corps cannot

E is a minor part

the Stop River

U.S.

rely on

690 F.2d 1170

927 (1983)

for

its conclusion

the

that

of the total drainage area supporting

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

The

property.

review

of

the river watershed

Fifth Circuit

the proposed

project is

noted that
prohibited

adjacent to

such "piecemeal"
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

changes in

its "public

apply here.

Corps'

interest

numerous piecemeal

review" analysis

-- does

not

filled

a complete and interrelated wetland area"; it is

And none of the comments in this case contradicted the

finding

Buttrey,
_______
located

effect of

The 600 square foot artificial wetland to be

is not "part of
isolated.

the cumulative

that

Wetland E

had

virtually

no

value.

In

it was undisputed that since the forty acre wetland was

upstream, it

downstream

served

water quality.

from filling

a unique

maintaining

The secondary impacts here result not

Wetland E but from

most of which

function in

is on upland.

the setting aside of

Finally, the

46 acres,

proposed project

in

Buttrey was opposed by the Fish and Wildlife Service, EPA and the
_______
National Marine
inter
_____

Fisheries Service because they

alia destroy a habitat and nursery ground for wildlife and

____

increase the risk of flooding

such

alleged it would

opposition

was

in surrounding neighborhoods.

registered by

these

government

No

agencies

against this project.

In

their comments, the

the construction

of the landfill would

to fifty

percent of

including

Wetland

approximately
landfill.

150

Towns' consultants

the
A,
feet

drainage areas
a

site
from

The Corps, however,

which

the

claim that

potentially eliminate up
to adjacent
has

footprint

wetlands,

vernal

of

the

pool,

proposed

concluded that the landfill site

-24-

represents less than one

that

the

mitigation

insignificant.

With

percent of the total drainage

measures

respect

would

to the

render

area and

any

impacts

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
had

"approval

measures in other
authority

program through a
The

experts.
issues,

the

monitoring

and

the Corps

mitigation

special condition of the permit . .

Towns' objection

drainage

over

projects and that

to the

reflect nothing
In cases

where

Corps findings

more than
technical

on the

a disagreement

. ."

Id.
__

subject of

between the

disputes predominate

an agency's expertise is entitled to deference.

the

Chevron

_______

U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837,

______
________________________________________
844

(1984).

We hold

that

the

landfill

site represents

drainage

area and that the mitigation

potential

impact

less

Corps'

than one

insignificant

are

conclusions that
percent

of the

the

total

measures would render any

not

clearly

-25-

capricious or otherwise not in accordance to law.

arbitrary,

-26-

C.

Are Groundwater Resources Part of the Aquatic Ecosystem for

___________________________________________________________
Purposes of the Practicable Alternatives Analysis?
_________________________________________________
In applying the

Corps excluded

groundwater

practicable alternatives analysis, the

resources from

consideration.

Towns allege that groundwater resources are part

The

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,
__________________
argue

that

States."

772 F. Supp.

groundwater
40 C.F.R.

resources

at 685.

The

are "waters

Towns, however,
of

the

United

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, sandflats,
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
constitutes

definition does not

"waters

of

the

interpreted this definition

This

indicate whether

United
to refer

States,"
only to

groundwater

the

554 F.2d 1310, 1329 (5th

States, 618 F. Supp.

______

Exxon Corp.
___________

Cir. 1977); Kelley v. United

______
______

1103, 1105 (W.D. Mich. 1985;

United States
_____________

v. GAF Corp., 389 F. Supp. 1379, 1383 (S.D. Tex. 1975).

_________
other

courts have

questioned

United States" should

waters

whether the

Although

term "waters

include groundwaters connected

-- Inland Steel Co. v. E.P.A., 901

_________________
______

Cir. 1990);

of the

to surface

F.2d 1419, 1422 (7th

McClellan Ecological Seepage v. Weinberger,

_____________________________
__________

Supp. 1182, 1193-94

has

surface waters.

interpretation has been upheld by some courts.

v. Train,
_____

Corps

(E.D. Cal. 1988) -- we agree

707 F.

with the Corps

that since such a determination ultimately involves an ecological

judgment

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

Cf. United States v.

__ ______________
U.S.

121,

134

(1985)

(deference
about

should be

the

given to

relationship

"the Corps'

between

waters

ecological judgment
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

alternatives
unable to
other

properly conducted

analysis -- the Towns

claim -- it

overcome the presumption in

alternatives which

impacts"

the practicable

would have been

Section 230.10(a) because

would have less

than Walpole are available.

(1) the MWRA

Quarry

Corps had

"severe environmental

The Towns

point out that

itself determined that another alternative

-- Rowe

-- would have a less severe environmental impact than the

Walpole site and

Commission

in

(2) the Governor

February

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

those that would

this statement

of the

Rowe Quarry

as a

environmental impacts in

comparison to

occur at the Walpole-MCI site."23

appears to raise

an issue of fact

the decision of the Corps was arbitrary.

landfill

On its face

as to whether

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.

potential

as

site

environmental
site would
In

such

Rowe

effects does

concluded

may

not constitute

have less adverse

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

Draft Report on Minor Residuals Landfilling at 56.

-29-

review,

"establish[]

impacts

on

that the

the aquatic

insignificant

ecosystem at

the

potential adverse

Walpole site

are no

greater than those which could potentially result from a landfill

at Rowe
Rowe

Quarry."24

Quarry

For

example, EPA noted

"could potentially

cause

that a landfill

adverse

impacts to

at

the

Saugus River

and Rumney Marsh wetland system, a state designated

Area of Critical Environmental Concern."25

The

Towns argue

Residuals

Landfill

potential

alternatives to

Siting

superior under the

30.

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

concluded that "[t]he

considering

the Harbor

report

Corps cannot

of

the

be

Governor's

Commission, however, as the Commission was not

even in existence

until

the

after

the

issued."26 The
introduction of

[Record

of

Decision]

and

district court's conclusion finds

the Commission's

permit

were

support in the

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

actual feasibility of the six potential alternative

identified

was an

open question.27

report contains no discussion

ecosystem.

Finally,

the

sites it had

the Commission's

of adverse impacts on

the aquatic

With respect to general environmental considerations,

the Commission's report provides a limited analysis.28

In
raise

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 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

consideration under Section 230.10(b)

of pied-billed grebes and

Stop River Impoundment,

the

west.29

that

ROD at

to

give

which borders the

Record of

adequate

to impacts on the habitats

great blue herons that are

the

In the

failed

Decision, the

located on

landfill site to

Corps recognized

[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.
7.

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

the district court

recognized, Section 230.10(b) does not apply here because neither

the

pied-billed grebe

listed as

nor

the great

blue

endangered or threatened under

Act of 1973."

40 C.F.R.

Marine

Fisheries

Service

-- the

resources --

230.10(b).

Department

and

have

indicated no

"species

the Endangered Species

Furthermore,

the U.S.

federal agencies

heron are

Fish

empowered to
objection

the National
and

Wildlife

protect wildlife

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
230.10(b), the Towns assert
the impact of the
under

Section

"[l]istings

of

the

clear

language

of

Section

that Section 230.30(a) requires that

landfill on the pied-billed grebe

230.10(b).
threatened and

Section

230.30(a)

endangered

species

be analyzed
states
as well

that

as

critical habitats are maintained by some individual States and by

the

U.S.

Interior."

Fish and

Wildlife Service

The district

of

the Department

court concluded that

of the

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)

indicates,

Section

(emphasis added).
230.10(c),

specifically refers to

unlike

As the

underlined part

Section

Subpart D of the Section

230.10(b),

404 Guidelines,

which includes Section 230.30(a).

Furthermore, the evidence
would not threaten
Stop River
the

the continued

indicates that the

existence of the

Impoundment is located approximately

boundary of

the landfill

footprint and,
-33-

landfill

grebe.

The

2,000 feet from

according

to the

Towns'

consultant, only one pair

this area.

The projected

of grebes has

noise level of

operation of the landfill is expected

Supplemental

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-

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

impact waterfowl and other

noise levels

that could

potentially

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
772 F. Supp. at 690.

"was not

unreasonable."

Norfolk & Walpole,

__________________

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

specifically considered

court found that the Corps had

negative effects of the

grebe and the blue heron in its public

these findings, we

landfill on the

interest analysis.

Given

cannot say the permit decision was arbitrary.

IV
Section 230.10(c)
Section 230.10(c)
_________________

Under 40 C.F.R.
permit application

230.10(c), the

Corps must reject

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"
test.31

The

had not
Corps'

were

not

part

district court

properly conducted
findings

indicated

that

under
the

its

Corps

of

the

"significant

degradation"

concluded that although

the Section 230.10(c)
public
had

interest

the Corps

analysis, the

review

properly evaluated

analysis

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.

_________________
that the Corps

addressed each

Corps' groundwater analysis.

The

Towns do

of the Towns'

not argue

law.

arbitrary, capricious

objections to

the

Id.
__

conclusions regarding potential

are

The district court noted

that

the Corps'

findings or

impacts to groundwater resources

or otherwise

not in

accordance with

Instead, the Towns argue that the Corps' failure to analyze

impacts

to

reversible

groundwaters
error.

under

We think

Section

230.10(c)

this argument

constitutes

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
required

factual

determinations,

by Subpart B and

through F, . .

."

evaluations,

G, after consideration

The Corps' public

and

tests

of Subparts C

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'

independent

Hydraulics and
analysis

of

supplies and concluded

Water
the

Quality

Branch performed

potential impact

on

an

groundwater

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

public interest."
interest

The

review was

inadequate

weighed the impact of the

need

to clean-up

Corps should weigh

against

other

Towns

and its intended

assert that
because the

the

use on

Corps'

Boston Harbor.

According

the adverse impacts

sites potentially

to the

have

ultimate

Towns, the

of the Walpole

available.

public

Corps should

Walpole landfill against the

the

But this

landfill

narrow

interpretation of
it

asks the

the public interest review

Corps to

duplicate the

analysis of 40 C.F.R.
The Corps'

is illogical since

"practicable alternatives"

230.10(a).

conclusion that the MWRA's proposed project

is not contrary to the public interest is reasonably supported in

the administrative
the

record.

Under the

Corps conducts a general

and environmental
entitled to

factors

"public interest" review,

balancing of a

and its

substantial deference.

number of economic

ultimate determinations

are

Environmental Coalition of
___________________________

-38-

Broward County, Inc. v.

______________________
1987).
feet

We must not
to be

filled

Furthermore, the
require

hydrologic

regime

F.2d

lose sight of the fact

has no

Corps

maintenance

Myers, 831
_____

ecological

which

existing
supports

is

isolated.

MWRA's application

ground
the

(11th Cir.

that the 600 square

value and

conditioned the
of

984, 986

and

surface

adjacent

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

"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

MWRA's application for the Section

were

and early 1991,

while the

404 permit was pending, there

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

("FOIA"),32

the Towns

which expressed

pursuant to the Freedom of

reviewed

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-

which noted that

these communications had

occurred.

The

Towns

therefore notified the keeper of the records of the United States

Attorney for
deposition

the
and

District

of

Massachusetts to

subpoenaed all

documents

appear

for

concerning pre-permit

communications between the EPA, the Department of Justice and the

Corps ("defendants").

Asserting inter alia

_____ ____

and work product

privileges, the

protective order

and quash

defendants moved

the subpoenas.

that these documents should originally

administrative record
of

to obtain

The Towns

maintain

have been included in the

because they may show

Justice and EPA improperly

the attorney client

that the Department

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.
__ ______
and

the

The U.S. Attorney submitted 38

EPA submitted

19 documents.

Assistant

U.S. Attorney

Henderson divided the documents into four categories.

consists

Category I

of letters from the U.S. Attorney's Office to the Corps

of Engineers.
between

documents

Category II consists

Department

of

Justice

of notes of

Attorneys

or

communications
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
documents

Jeffrey T. Fowley similarly

submitted by the EPA

categories.

Category I

for in camera
__ ______

between EPA
Category

by EPA's consultant,

Metcalf &

the

exclusion

between EPA

Category II consists

technical personnel and

Engineers personnel.

challenge

review into three

consists of communications

attorneys and Corps of Engineers personnel.

of communications

divided the

Corps of

III consists of documents created

of

Eddy, Inc.
all these

Although the

documents,

Towns

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
seven

With

Corps personnel had

only seen

of the 57 documents, the district court concluded that the

remaining
record

that the

50

documents did

because they

not

were never

belong

in the

considered by

administrative

Corps personnel.

respect to the seven documents at issue, the district court

concluded that

all but two

were not properly

made part

of the

administrative

record

discovery by the
Walpole
_______

and

the

other two

attorney-client privilege.

v. U.S. Army Corps of Engineers,

______________________________

were

shielded

from

Town of Norfolk &

__________________
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

inquiry may be made."

Volpe,
_____

401 U.S.

faith or

improper

behavior before

such

Citizens to Preserve Overton Park, Inc. v.

_______________________________________

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

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

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.
Towns claim that even if

Alternatively, the

these documents were properly excluded,

the district court erred in not permitting supplementation of the

administrative record.
district court

did

For the reasons that follow, we hold that

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.

argue that in
documents

concluding that all but

did not

belong in

seven of the

the administrative

They

fifty seven

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
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

the possession of the agency.

argument is obvious.

agencies

that every

with a

the administrative

documents are not in

of this

to

if these

The fallacy

Were we to accept

it, government

collect from all

parties who had

agency concerning the

issue under

consideration, all documents reflecting these communications with

the agency and
in

include them in the record.

There is no support

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
Indeed,

information

relevant

to

the issuance

National Wildlife Federation v.

_____________________________

1445, 1457

(D. Mont. 1985) --

this argument

-- supports

exclude the documents.

of

permit.

Burford, 677
_______

cited by the Towns

the

the

district court's

F. Supp.

in support of
decision

to

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
submissions
of

the

record.

by EPA and the

personnel

conversations

Id. at
__

of no

of

1457.

Similarly, most

of the

Justice Department consists of notes

these agencies
significance.

which

reflect

The remaining

telephone

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

district court's conclusion that the seven documents

review the

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

documents

district

were

consideration.
Attorney's

seen

court
by

Six of the

Office to

the

the

concluded
Corps

that

and

seven

warranted

documents are letters

Corps of

Engineers

of

the

separate

from the U.S.

and the

seventh

document is an unsigned draft of a letter from Colonel Phillip R.

Harris,

District

Engineer

Richard D. Fox of the MWRA.

for

the New

England

Division,

to

The district
not

belong in

contain

court concluded that the

the administrative

factual statements

because only two of

petition.

These

or

six letters did

record because

made policy

they did

not

recommendations and

these letters commented on the merits of the

two letters

were

written by

Assistant

U.S.

Attorney Henderson and sent to Gary Pasternak, Assistant District

Counsel

for

Engineer.

the
In

Corps, and

both letters,

expressed his opinion that

24, 1990,

could be

deliberative

Colonel

Harris, the

Assistant U.S.

District

Attorney Henderson

David Killoy's memorandum of December

withheld

process

to

from public

privilege of

Attorney Henderson expressed his

the

disclosure under
FOIA.

Assistant

the

U.S.

view that the Killoy memorandum

was a deliberative document and that its analysis was "faulty."

The

district concluded

that the Corps of

was "highly

Engineers would have relied on

in deciding the permit

legal, factual,

that it

question," since the letter

or policy reason for

unlikely

this statement

provided "no

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

person asserting the attorney-client

document provided by an

is fully supportable.

privilege with respect to a

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
to

the time these six letters were written -- from January

February of

attempt
Walpole.
the state

to

1991 -- the

overturn

the

Towns had brought

decision

to

place

several suits to
the

landfill in

The Towns had (1) filed suit in state court challenging

environmental review process;

intervene in a suit
from the district

(2) filed

a motion

filed by the United States seeking

court to

Department of Corrections to

transfer the Walpole

to

an order

site from

the

the MWRA; and (3) filed suit in the

district court challenging EPA's review of the landfill selection

-46-

under

the National

Environmental

Towns

had made every effort

the landfill in Walpole and

the U.S. Attorney
decision.

Policy Act.33

to overturn the

Clearly,

the

decision to locate

it was reasonable for the Corps

and

to anticipate litigation over the Corps permit

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

the attorney-client privilege.

U.S. Attorney.

its client
they

The

The Corps was a client of

letters were from

and by the content

the U.S. Attorney to

of the letters, it

is clear that

"relate to facts communicated for the purpose of securing a

legal

opinion,

proceeding."

legal

services

or

assistance

in

legal

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
circumstance where a
privilege should be

there may

be

an

unusual and

document protected

by the

extraordinary

attorney-client

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

a letter

from Colonel Phillip

that an unsigned draft of

R. Harris, District

Engineer for

the

New England

Division to

Richard

D. Fox

of

the MWRA

was

protects

the

protected by the deliberative process privilege.

The
internal
to

deliberative

deliberations of an agency

the quality of

Co.,
___
before

421 U.S.
the

132, 151

(1975).

Nadler
______

final

decisionmaker

in order to prevent "injury

NLRB
____

Two

v. Sears, Roebuck &

________________

requirements must

properly

withhold

"in

order

to

in arriving at his decision."

be prepared

assist

an

184 (1975)).

Second, the document must be "a direct

deliberative

process

expresses opinions

on legal

Vaughn
______

523

v.

Rosen,
_____

that

F.2d

it

makes

or policy
1136,

Furthermore, factual information that

-48-

U.S. 168,

part of the

recommendations

matters."
1144

agency

Id. at 1491 (citing

__

Renegotiation Bd. v. Grumman Aircraft Eng'g Corp., 421

_________________
____________________________

in

from

F.2d 1479,

First, the document must

decision

be met

a document

v. U.S. Dept. of Justice, 955

_______________________

1490-91 (11th Cir. 1992).

to

privilege

agency decisions."

government may

disclosure.

prior

process

(D.C.

or

Id.
__

(citing

Cir.

1975)).

may be segregated from the

rest of the document is not protected by the privilege.

552(b);

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

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

deadline" and setting

landfill

forth two

for the Boston

draft

no

has

the

end

options to "stay

mandated schedule"
letter

"by

factual

of

January

on the

court

Harbor cleanup project.

information

and

it

The

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.
of
__

Did the District Court Err in Not Permitting Supplementation

____________________________________________________________
the Record?
__________
The

Towns

seek to

administrative record based on

of Justice
Corps

to

and the EPA

issue the

documents in
__
bad

faith

include

secretly and improperly

permit.

improper

documents

in the

the assertion that the Department

The

camera and concluded

______
or

the 57

behavior

"pressured" the

district court
the they did
to

warrant

examined the

not demonstrate
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

Citizens to Preserve Overton Park, Inc. v. Volpe,

_________________________________________
_____
(1971); Havasupai Tribe v.
_______________

record.

401 U.S. 402

Robertson, 943 F.2d 32, 34

_________

(9th Cir.

1991).
Citing D.C. Fed'n of Civic Ass'ns v. Volpe,
____________________________
_____
1231, 1249 (D.C. Cir.),

cert. denied, 405 U.S. 1030

____ ______

Towns

district court erred

asserts that the

there was

no improper behavior

parte high level

_____

459 F.2d

(1972), the

in concluding that

here, particularly given

discussions among

executive branch

We think that the Towns' exaggerate the reach of Volpe.

_____

the ex
__

officials.

Volpe
_____
strong

does

showing

not dilute

of

bad

supplementing

the

District

Columbia

of

Transportation

faith

record.

had

requirements and other

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

highway projects in approving construction of a bridge across the

Potomac.

The defects

colossal,

including

record or to
project
bridge.34

in the Secretary's decision in

his failure

to

compile an

Volpe were
_____

administrative

make formal findings and his approval of the bridge

prior

to

the

finalization

The evidence in

of

the

Volpe also showed

_____

plans

for

the

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

threatening to

withhold funds

system unless the bridge

publicly

pressured

the

Secretary by

for the District's

project was approved.

rapid transit

Two

judges held

that the Secretary of

Transportation's decision would be invalid

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

part, affected the

kind

of

here to

unseemly

Corps' permitting

In this case, the Corps has presented a detailed Record

of Decision and
record.

conclusion that

"political

influence, in

the in
__

It

it is reasonably supported by the administrative

shows that

relevant

to

the

Corps based

determining

application complied with the

its decision

whether

the

MWRA's

on

the

permit

Section 404 Guidelines and whether

issuance of the permit would be in the public interest.

The Towns claim
proposition

that

if

inter alia that "Volpe

_____ ____
_____

other

litigation

stands for the

[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

questionable, we

need not

since none of the

any

this

interpretation

in

its permitting

presented any evidence

Office

that the

seems

its soundness

documents submitted for in camera

__ ______

indication of impropriety by

the Corps

Volpe
_____

conclusively determine

the United States

position of the United States in other

by

of

review show

or that the

litigation was considered

process.
fact that

The Towns
the U.S.

have not

Attorney's

represented the Corps and the EPA was a factor considered

in the permitting process.

responsibility
litigation.

The Justice Department has

for representing
The

Supreme

executive

Court has

branch

recognized

the sole

agencies
that the

in

main

purposes of centralizing litigation responsibility in the Justice

Department

is to assure that the United States should speak with

one

"that

voice

reflects

not

the

parochial interests

of

particular agency, but the common interests of the Government and

therefore

of

all

the people."

United States v.
______________

Journal Co., 485 U.S. 693, 706 (1988).

Providence
__________

___________
Finally, we have examined

the in camera submission and

__ ______

conclude that adding these submissions to the record would

no purpose.

serve

The Killoy memoranda explained in sufficient details

the internal Corps opposition to the issuance of the permit.

Towns

have

not cited

precedent

-- nor

have we

found

The

any --

indicating that a district

court should allow supplementation of

an

with

administrative

record

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,
to

28 U.S.C.

455(a) to excuse Judge

the Towns moved pursuant

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

have evoked disappointment from the litigants."

with a ruling,

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.
______________
(citing

Arache,
______

United States
_____________

1976), cert. denied, 430

____ ______
Ct. 1507 (1992).
motion for his

946 F.2d

v. Cowden,
______

129,
545 F.2d

140 (1st

Cir.

257, 265

1991)

(1st Cir.

U.S. 909 (1977)), cert. denied,

____ ______

112 S.

We review Judge Mazzone's denial of the Towns'

recusal under the

abuse of discretion

United States v. L pez, 944 F.2d 33, 37 (1st Cir. 1991);

_____________
_____

standard.

Camacho
_______

v. Autoridad de Tel fonos de Puerto Rico, 868 F.2d 482, 490 (1st
______________________________________
Cir. 1989).
Judge Mazzone made several
-53-

statements in the course of

the Boston Harbor litigation which the Towns assert would cause a
reasonable

person

to

question

statement was made on July

request by the United
commence

the

to

wait

until

of

Massachusetts

an alternative

the

Instead,

December

legislature.

since

The

5,

to

Judge Mazzone chose

1990,

judge,

the

voting on the

Department of Corrections

December 5, 1990.

the MWRA to

landfill

had decided to postpone

site from the

after

first

2, 1990, when Judge Mazzone denied

Massachusetts legislature

the MWRA until

The

States for an order requiring

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

that Judge Mazzone's

might require

further scrutiny.

which these comments

indicate
which

were made,

isolation,

However, given the

context in

we conclude that

they at

most

that Judge Mazzone was irritated at the snail's pace in

the

Commonwealth

district court's plan to

Mazzone

comments, viewed in

was

moving to

fully

clean up Boston Harbor.

comply

with the

In fact, Judge

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

comments -- to
actual

schedule.

the effect

notice that

he

In

this sense

Judge Mazzone's

that the Commonwealth

would not

was placed

tolerate further

in

unjustified

delays -- were eminently reasonable.

Furthermore,
comments were made

the

is significant.

Judge Mazzone has overseen

to

induce

context

For more

on

and

its

cleaning up Boston

agencies

Harbor.

which these

than five

and continues to oversee

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

of a permit issued under the provisions of the National Pollution

Discharge

Elimination

System.36

These

violations

continue

today.
The second
specific
Mazzone

statement which the Towns

behavior which
impartiality

reasonably

is found

Massachusetts legislature voted

in

calls
an Order

claim amounts to

into question
entered

against the transfer of

Judge

after the

Walpole

from the Department to

the

transfer on

the MWRA.

The legislature

December 6, 1990,

United States filed a

and shortly

voted against

thereafter, the

motion before Judge Mazzone to

compel the

transfer of the Walpole site to the MWRA or for sanctions.

On February 25, 1991,
States'

motion

by

imposing

connections to MWRA's system.

Judge Mazzone granted the United

a

moratorium

on

any

new

sewer

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

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

right away, and

schedule, it does not

se so
__

weighing

indicates

sanction to bring

his concern

advanced

to meet

that

the

indicate a preference for Walpole

suitable site

simply show that

take

wanted

into account

was expeditiously
Judge Mazzone
in

the Commonwealth

Indeed, the

determining an

into compliance

with the scheduling

order.

Mazzone's awareness

of the distinct possibility that

of the site selection process, Walpole

was

statement reveals Judge

at the end

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

Army Corps
this

of Engineers . .

case was filed and

Additionally, in

by the EPA, the MWRA

and the

.," a month after

the complaint in

before the defendants

had answered it.

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

needed

nothing here

which rises

to compel recusal.

If

to

the level

of partiality

one considers that the MWRA spent

more than $10 million in the site selection process, that the EPA
closely monitored
Corps issued

the MWRA site

a extensive

selection process and

Record

administrative record, it seems

of Decision

that the

supported by

more than reasonable to conclude

that the site selection process was "exhaustively reviewed."

no

reasonable person could conclude

Mazzone

In short, the statements of Judge

impartiality of Judge Mazzone

our opinion

Given

404 Guidelines shows

which the Towns claim would cause a reasonable person to

question the
in

And

that merely noting that the

Corps had reached a determination under the

that Judge Mazzone was biased.

the

state

the context

substance,

we hold

the obvious,

in which

and

are statements which

reflect common

these remarks

that Towns

have failed

were made

and their

to show

that Judge

Mazzone committed an abuse of discretion in denying

for his disqualification.
-57-

sense.

their motion

Finally, the
overseen
plan

Towns claim that since

compliance with

the administration

Judge Mazzone has

of the

scheduling

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.

Judge Mazzone has required
plan

--

strict compliance with the compliance

including ordering

Legislature
challenge

to

transfer the

to the

Section

threat to the

Since

sewer moratorium
Walpole

site

404 permitting

schedule, they contend

--

to

compel the

and the

Towns'

process represents

a reasonable person

would

question the ability of Judge Mazzone to preside over the Section

404

case.

There

appearance
required

is a

of bias,

difference,

and

to act against

the fact

in other related cases.

time

a case

official decisions
Circuit

A judge

an issue

and positions

has made clear that

require that judges be

that

the backdrop

took

presents

however, between

with

a judge

of official

is

the real

sometimes

positions he

cannot be replaced every

which the

may have a

"[o]ur system of

judge's

prior

connection.

This

justices does not

empty vessels, wholly ignorant of

the antecedents of a case."

Camacho, 868 F.2d at 490.

_______

all of

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

constrained to decide

he would have been

case in favor of

the Corps.

with continuing the

There were other options compatible

Boston Harbor

proved unsatisfactory.

We

the Section 404

are

cleanup if
unwilling

the Walpole
to

assume

site

that

-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
Towns'
rejected

challenge to

carefully considered the

the

the Corps'

Section 404

position that

have to be considered under 40 C.F.R.

Judge Mazzone presided
to clean up Boston

permitting

the

process.

He

groundwater effects
230.10(c).

over other cases arising

Harbor makes him arguably the

judge to preside over this case since

merits of

did not

The fact that

from the effort

most qualified

his expertise in the legal

aspects of the Boston Harbor cleanup, will result in a more

and efficient resolution of

the issues in cases relating

just

to the

Boston

Harbor cleanup effort.

See,
___

e.g., In Re Allied-Signal
____ ____________________

Inc., 891 F.2d 967,

____

972 (1st Cir. 1989); cert.

____

957 (1990).

it is

While

obvious that

denied, 495 U.S.

______

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,
F.2d

1018

(1st

defendant was
reasonable

Cir.

see, e.g., United States

___ ____ _____________
1990)

(sentencing

v. Chantal, 902
_______

judge's

an "unreconstructed drug trafficker"

person

to question

the

judge's

views

that

might lead a

impartiality in

subsequent sentencing proceeding), we do not find this to be such

a case.

L pez,
_____

for

inference

an

Giorgi,
______

944 F.2d at 37
of

840 F.2d 1022,

(minimal factual basis

impartiality) (citing
1036 (1st Cir.

1988).

required

United States
______________
We

v.

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

Although parties are not

pursuit of

good

faith

particular judge or

requires

the

arsenal

to

further

challenges

to

the

impartiality

judges, neither should such

of

comment.

to be discouraged or castigated

lightly or without foundation,

in

us

trial

in the
of

action be taken

merely as another tactical weapon

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

court did

not abuse its

to the public interest.

discretion in allowing

The district

the defendants'

motion to quash the subpoena and protective order and denying the
Towns' motion for the judge's disqualification.
Affirmed.
________

-60-