RICHARD STEARNS, District Judge
This is the one hundred and ninety-fourth Compliance Order to be issued in this litigation. The Massachusetts Water Resources Authority (MWRA) filed its Quarterly Compliance and Progress Report (Quarterly Report) on December 15, 2004. Both the United States and the Conservation Law Foundation (CLF) have filed responses. I have also reviewed the Advisory Board's Summary of the MWRA's Board of Directors' December 15, 2004 Meeting. I accept the MWRA's Quarterly Report and make the following findings.
I. Schedule Six
A. Activities Completed
A status report for the scheduled activities for the month of October 2004 on the Court's Schedule Six was certified by Frederick A. Laskey, Executive Director of the MWRA, on December 15, 2004, indicating that the MWRA had reported on actions taken pursuant to the backup residuals disposal plan during the preceding six months. In addition, the MWRA submitted a report jointly with the Commonwealth on implementing the Memorandum of Understanding regarding the beneficial use of biosolids.
B. Quarterly Progress Report
1. Fiscal Matters
The MWRA Board voted to submit the proposed Fiscal Year 2006 Capital Improvement Program (CIP) to the Advisory Board for review and comment. The Combined Sewer Overflow (CSO) program, comprising almost 40 percent of proposed capital spending between Fiscal Years 2004 and 2008, is the largest single undertaking in the proposed CIP. The MWRA states that its capital budget continues to grow because of construction cost inflation and changes to project schedules necessitated by regulatory requirements. Consequently, the amount of proposed spending on non-CSO projects over the next eight years is $425 million less than projected in last year's capital budget. In addition, $150 million in high priority water and wastewater capital improvements have been postponed. The MWRA states that it is deferring these critical needs in order to meet the current CSO requirements and to limit future increases in water and sewer rates. The MWRA contends that the burden on ratepayers, which is already significant, would be unduly exacerbated by any further increase in spending on capital projects. The Board plans to hold a hearing in the spring of 2005 to review the Advisory Board's comments and recommendations before adopting a final budget in June of 2005.
2. Combined Sewer Overflow Program
(a) North Dorchester Bay and Reserved Channel Consolidation Conduits and CSO Facility
The North Dorchester Bay CSO storage tunnel project is progressing as the MWRA develops the project design and construction schedules. The stated goal is to bring the benefits of CSO and stormwater controls to the North Dorchester Bay beaches as expeditiously as possible in a complex regulatory environment. The MWRA has inventoried the approvals and permits that will be required from, among others, the Massachusetts Legislature, the Department of Conservation and Recreation (DCR), and Massport. The MWRA reports that it met in December of 2004 with the United States Environmental Protection Agency (EPA) and the Massachusetts Department of Environmental Protection (DEP) to consider the CSO master plan, and to review progress on the North Dorchester Bay project. In addition, a meeting was to be held with the CLF in mid-January of 2005 to discuss the construction schedule.
As noted in the MWRA's September 15, 2004 Quarterly Compliance and Progress Report, the contract for tunnel construction is to be awarded in the spring of 2006. The MWRA has determined that because of the potential of increased safety risks, it cannot begin construction of the related dewatering pump station and odor control facility until after the tunnel mining and lining process is completed. This development may impact both the budgeted cost and the construction schedule. At this point, the MWRA anticipates being in the position to award the facilities construction contract by October 2008, with the goal of completing all construction by September of 2010, thereby permitting the tunnel and its related facilities to be brought on line for start-up testing and system optimization.
The MWRA reports that it has made significant progress in mastering the technical aspects of the tunnel design. The MWRA's design consultant recently completed most of the field surveys and soil borings necessary to supplement the data collected in 1997-2000. The only remaining survey and soil boring work is to be done at Conley Terminal, pending the issuance by Massport of a right-of-entry permit. The MWRA has developed a hydraulic model that will be used to evaluate hydraulic design requirements, simulate design conditions, and confirm predicted project performance. In addition, the MWRA has conducted investigations into operational strategies and controls, sediment deposition in the tunnel, long term tunnel access and maintenance requirements, and a tunnel construction risk assessment. The tunnel design contract schedule calls for the receipt of 60 percent complete design plans and specifications in late February of 2005.
Of particular concern is the MWRA's report that the completion of subsurface investigations has been impeded by the inability of the MWRA and Massport to reach an agreement regarding their relative responsibilities for any future environmental remediation at Conley Terminal. While the MWRA is committed to full compliance with the requirements under DEP's Utility Release Abatement Measures (URAM), Massport's draft of the permit provisions would require the MWRA to assume broad liabilities for remediation of any newly discovered contamination on the site, including areas beyond the CSO construction boundaries. The MWRA states that it cannot and should not be required to assume any such undetermined liability. As the MWRA does not have the power of eminent domain over Massport property, the remediation issue may impede the MWRA's ability to conclude land or easement agreements with Massport for the completion of the tunnel and dewatering facility.
The MWRA reports that it is working with the Boston Water and Sewer Commission (BWSC) to prepare a response to the Secretary of Environmental Affairs' requirement that the MWRA file a Section 61 Finding describing the environmental impacts of the recommended plan, mitigation measures, and general approaches for meeting other requirements of the Certificate. The MWRA also plans to coordinate with DCR in order to submit the Section 61 Finding to MEPA by April of 2005.
The MWRA reports that it continues to work with the BWSC in developing the schedule in the SEIR for the Reserved Channel CSO control plan. Design work is to commence by January of 2007, with construction to begin by May of 2009. The project is to be substantially completed by December of 2017. At EPA's request, the MWRA has submitted a technical memorandum (TM) to EPA and DEP providing a cost/benefit analysis of additional CSO controls reducing CSO discharges to the Reserved Channel beyond the levels expected to be achieved with the recommended sewer separation project. The TM concludes that expanding the sewer separation plan into other hydraulically related areas in and around South Boston, or by adding localized storage tanks at the CSO outfalls, would entail significant additional cost and likely encounter community resistance, while having only a marginal effect on overflow events and water quality. The TM concludes that the presently recommended sewer separation plan is the most appropriate and costeffective CSO control for the Reserved Channel.
The schedule set out in the SEIR calls for the BWSC to expedite the design and construction of the Morrissey Boulevard storm drain project with a completion date of June of 2009. In addition, the MWRA reports that it has made substantial design progress on the Pleasure Bay stormwater relocation improvements and expects to begin construction in August of 2005. The design consultant is presently preparing applications for the construction permits, including a Wetlands Order of Conditions from the Boston Conservation Commission, a Chapter 91 Waterways License from DEP, and necessary approvals from DCR. The MWRA also continues to coordinate the filing of Article 97 legislation for parklands construction. Construction is expected to be completed well in advance of the 2006 swimming season.
(b) Union Park Detention and Treatment Facility
The MWRA reports that as of November 30, 2004, construction of the Union Park facility is 51 percent complete. The contract completion date has been extended to January 9, 2006, and further extensions of up to 53 days are expected because of contractor delays. In addition, the BWSC has made design changes to two of the electrical pumps, which may cause a further delay.
(c)
Cambridge Sewer Separation
The MWRA reports that it has yet to receive the Second Supplemental Preliminary Design Report (SSPDR) from the City of Cambridge with updated work plans, schedules, and project costs for the revised Cambridge/Alewife Brook sewer separation project. The MWRA reports that it is gravely concerned by the preliminary cost information received from the City indicating that project costs now exceed by $25 million the $74 million estimate presented in the Final Variance Report. (The original 1997 CSO plan estimate for the project was $13.3 million.) The MWRA states that the additional expenditure has produced no appreciable benefit in water quality. The MWRA intends to review the SSPDR carefully to understand the reasons for the unexpected increase in costs.
The MWRA reports that the City is making design progress on Contract 12 involving the proposed storm drain outfall and stormwater wetland in the Alewife Brook Reservation. The new basin and outfall are necessary to accommodate future sewer separation in the upstream CAM004 area and the eventual closure of the CAM004 regulator. As noted in the last Quarterly Report, a citizen's group filed an appeal with DEP seeking a Superseding Order of Conditions after the Cambridge Conservation Commission issued an Order of Conditions in June of 2004. The MWRA reports that the City has provided information to support DEP's review of the appeal and expects that DEP will shortly issue a Superseding Order of Conditions. The MWRA completed a draft scope for engineering design and construction services for its installation of an overflow control gate and floatables control at outfall MWR003 and hydraulic relief of a siphon near Rindge Avenue. The MWRA plans to advertise a Request for Qualifications/Proposals with the scope in February of 2005.
(d) Charles River Variance
According to the Quarterly Report, DEP has extended the CSO Variance for the Charles River Basin to October 1, 2007. Newly imposed conditions require the MWRA, the City of Cambridge, and the BWSC to implement the recommended CSO control plan for the Charles River, including the Nine Minimum Controls, the monitoring of CSO discharges and Charles River water quality, and public notice of CSO discharges. In addition, the MWRA, the City, and the BWSC are required to report on improvements to their sewer systems and storm drain systems that may impact sanitary sewer overflows (SSOs) into the Charles River, as well as the operational performance of facilities related to the collection and transport of combined sewage flows. The parties are also to evaluate the feasibility of additional infiltration and inflow removal and stormwater recharge to further control SSO and CSO discharges.
(e) Storage Conduit for BOS019
The MWRA reports that it has advertised the contract for the construction of the storage conduit for CSO outfall BOS019, and plans to open sub-bids on January 6, 2005, and general bids on January 27, 2005. It also intends to seek the approval of the Board of Directors to award the contract by March 31, 2005, in compliance with Schedule Six. The schedule is, however, dependent upon Massport's issuance of temporary and permanent easements, and, as with the North Dorchester Bay CSO project, upon satisfactory resolution of any impasse over Massport's insistence that the MWRA assume responsibility for the remediation of any newly discovered contamination. The MWRA is continuing discussions with Massport in an effort to reach an agreement on the terms of an easement, and if such an agreement is reached, it anticipates a construction completion date of March 31, 2007. This represents a six month delay in the milestone set by Schedule Six.
(f) Quarterly CSO Progress Report
The MWRA has submitted a CSO Progress Report summarizing progress made in the design and construction of CSO projects during the preceding quarter. In addition to the projects already mentioned, I note that the BWSC continues to make progress on the South Dorchester Bay and Stony Brook sewer separation projects, and that all major construction work is now underway. Substantial progress has also been made on the design of the Fort Point Channel sewer separation project. The MWRA plans to resume discussions with EPA and DEP in order to develop a final plan for CSO control in East Boston.
3. Assessment of Economic Impact of Additional CSO Controls in the MWRA Service Area
The MWRA has submitted for informational purposes a report prepared by Professor Robert Stavins of the Harvard University Kennedy School of Government advocating an adjustment in the Charles River and the Alewife Brook/Upper Mystic River water quality standards to allow the permitting of minor CSO discharges. The report reasons that the economic impact of sewer assessments on ratepayers is far more burdensome than was predicted in 1997, and would be further exacerbated by increased spending on CSO controls. Professor Stavins' analysis considers sewer rates to be a component of "shelter costs," and thus a factor in calculating the basic cost of living. According to the data gathered by Professor Stavins, metropolitan Boston, with its elevated housing prices and heating expenses, has shelter costs higher than those in over 90 percent of the eighty metropolitan areas selected for comparison.
While the MWRA is not asking the court to respond to the Stavins report, it feels that CSO control levels currently envisioned attain a high level of benefit, and that the imposition of additional costs on ratepayers without any significant further improvement in water quality cannot be justified. The MWRA intends to work with DEP and EPA to reach a final agreement on the required level of CSO control in the Charles River and Alewife Brook/Upper Mystic River areas.
4. Study of Anthropogenic Viruses in Boston Harbor, Charles River, Cottage Farm CSO Treatment Facility and Deer Island Treatment Plant: 1995-2003
The MWRA reports that in accordance with DEP's October 24, 2002 Final Determination for Extension to Variance for CSO Discharges to the Lower Charles River Basin, it submitted a report on the study of anthropogenic viruses in the Boston Harbor, the Charles River, the Cottage Farm CSO Treatment Facility, and the Deer Island Treatment Plant during the years 1995 to 2003. Viruses were found in approximately 30 percent of the samples taken from the Boston Harbor and the Charles River, although the virus levels were low and comparable to the levels found in similar bodies of water in the United States and Europe. While there are no standards for virus concentrations in Massachusetts waters, the samples collected in the Boston Harbor and the Charles River had counts well below Arizona's contact standards for reclaimed water. According to the MWRA, the data are consistent with multiple sources of pathogens, including stream flow, CSOs and stormwater, while CSO facility discharges did not significantly increase the prevalence of viruses during wet weather. Moreover, viruses in wastewater have been significantly reduced by treatment at the Cottage Farm Treatment Facility and the Deer Island Treatment Plant. On average, treated CSO and final secondary effluent had equivalent levels of viruses.
II. Comments
In its brief comments, the CLF argues that the conclusions of Professor Stavins' report are premature, pointing out that DEP in granting the three-year extension to the Charles River CSO Variance, took the position that a determination of the highest feasible level of CSO control should be deferred until more data can be gleaned from experience. The CLF also notes that DEP will meet with the MWRA in the near future to determine the scope of work under the Variance.
The United States concurs with the CLF that any determination that a higher level of CSO control would confer no positive benefit is premature, especially with respect to sensitive areas like the Charles River Basin which is utilized by an increasing number of recreational visitors. In response to the MWRA's contention that additional spending on CSO controls would impose an undue burden on ratepayers, the United States points out that current sewer rate projections run far lower than previous estimates. In 1997, for example, the MWRA forecast an average annual 2002 household sewer rate of $580, while the January 2004 Cottage Farm CSO Facility Assessment Report predicts an average household sewer rate for 2009 of only $463. The United States notes that the communities that contributed to the contamination of Boston Harbor are appropriately sharing the costs of its restoration, including those associated with the abatement of CSOs. The United States maintains that the MWRA is obligated to implement the highest attainable degree of protection necessary to remedy past violations of the Clean Water Act. While acknowledging that compliance costs are high and have been the subject of periodic ratepayer unrest, the United States contends that because of years of neglect, ratepayers are now being forced to pay for the mistakes made by state and local authorities in the past. Nor is the United States aware of any change in circumstances necessitating the MWRA's approximately $425 million in reductions in non-CSO spending, or the suspension of $150 million in expenditures on high priority water and wastewater projects. With regard to Professor Stavins' report, the United States is critical of the study's methodology. According to the United States, Professor Stavins fails to explain how the projected sewer rates will lead to a significant change in socioeconomic conditions, a requirement under federal law for any lowering of water quality standards, rather than merely a perpetuation of historically high shelter costs. Finally, the United States reports that it will attempt to reach agreement with the MWRA on establishing milestones for CSO control for North Dorchester Bay and the Reserved Channel for incorporation into Schedule Six.
III. Conclusions
I commend the MWRA for the continued progress on the North Dorchester Bay and Reserved Channel CSO control projects, and I encourage the parties to continue their work in fashioning a feasible schedule to carry these projects to their completion. The importance of the MWRA reaching an agreement with Massport on the issue of liability for environmental remediation at Conley Terminal site cannot be overstated. I will expect Massport, which is a major beneficiary of harbor improvements, to take a reasonable stance in its negotiations with the MWRA.
With regard to Professor Stavins' report, I agree with the CLF and the United States (and indirectly the MWRA) that consideration of its implications is presently premature, especially in light of DEP's determination that debate over the appropriate level of CSO control should be deferred while further data are being gathered.
ORDER
The parties are ordered to report further to the Court as previously scheduled.
SO ORDERED.