| Wastewater | Deer Island, Boston Harbor - Page 14 |
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In an often-told story there is a single incident that sparked the process that finally led to the cleanup of Boston Harbor. There is a folksy ring to the story how one individual prompted action from a large institution, though the simplicity of the story belies a sophisticated strategy. Ironically, the first move happened at the end Governor Ed King's term, he known for his support of big business and not big environmental issues. King had four MDC Commissioners during his four years in office. John F. Haggerty, gone within two months when “irregularities” with union contracts surfaced. Guy A. Carbone, fired after a year possibly being too business oriented after suggesting a casino be built on Peddocks Island. Terrence J. Geoghegan left after two years to run a high-tech firm in Connecticut for “several times” the salary. The fourth was Richard A. Nylen, Jr., the youngest MDC Commissioner when he got the job at age 30. Nylen had worked for John Bewick, the Secretary of Environmental Affairs who, since a 1975 reorganization, the MDC now reported. Bewick would be instrumental in the passage of the bottle bill and work on identifying contaminated wells and illegal dump sites in the state. During Nylen’s short eight-month term as MDC Commissioner he oversaw emergency repair projects funded by the EPA at the Nut Island Treatment Plant. There was little more he could do as Commissioner to clean up the harbor. After the MDC he went on to become a respected environmental lawyer. Ed King had the favor of being “primaried” returned by Michael Dukakis in 1982, who then went on to beat the Republican challenger, the former MDC Commissioner John Sears, to become governor for a second time. |
| The first telling of the story about the incident that led to the cleanup of Boston Harbor appears to have been by the journalist Seth Rolbein in a 1987 Boston magazine article, Boston’s Floating Crap Game. The article is not available online however it is cited by others. Rolbein interviewed William B. Golden in 1987 while he was serving as a state senator. Back in 1982 Golden was the solicitor for Quincy, Mass. In that year, as the story is typically told, while out for a jog along Wollaston Beach in Quincy Golden suddenly realized that he was running on human excrement. Shocked by the discovery he immediately, still in his running suit with the “stuff” on his shoes, hurried to City Hall to tell mayor Francis McCauley of the situation. |
| There has never been a specific date given for Golden’s eventful run on Wollaston Beach. In some tellings of the story the incident happened in the summer, in others, it was fall. Realistically, it likely would not have been a surprise to Golden that human waste was washing up on Wollaston Beach. The nearby Nut Island treatment plant was regularly discharging raw sewage during equipment breakdowns and capacity overloads during storms. To address Quincy’s problem in July of 1982 mayor McCauley had set up pollution task force headed by Golden looking for a strategy that would lead to the cleanup of Quincy bay. |
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| While not disputing Golden’s first-hand experience discovering sewage on Wollaston Beach, what, based on later events, can be called into question is where the sewage came from during his seminal walk. The most useful target from the standpoint of starting a lawsuit to force the long-needed cleanup of Boston Harbor was the MDC and its known problematic Nut Island Treatment Plant. What can be called into question, based on later events, is whether the sewage Golden ran into on the beach was from the Nut Island plant or was it from problems with the Quincy sewage system. MDC officials questioned the origin of the sewage at the time, but the lawsuit would gain momentum and the origin of the sewage on Wollaston Beach would be ignored. Clearly the cleanup of Boston harbor was needed, and clearly an underfunded MDC was not up to the task. What is telling is what happened after the MWRA stopped the flow of sludge in December of 1991. By the summer of 1993, long closed Boston Harbor beaches began to have more days when swimming was allowed. That was not the case on Quincy where overflows from the city’s sewage systems was forcing many closures of Wollaston Beach. It wouldn’t be until Quincy used MWRA money to improve its own sewage infrastructure before conditions on Wollaston Beach would improve. |
| The idea of a lawsuit against the MDC over sewage in the bay was not an obvious winning strategy. Locating the source of sewage that appears on a specific beach is not an easy task. Winthrop had tried in the 1970s resorting to dye markers dopped in the water by a helicopter to prove that sewage from the nearby Deer Island treatment plant was fouling its shore. The only help they received from the state was dredging to deepen a channel that would help carry the sewage away, and that contract was cancelled. For Quincy’s suit to succeed Golden needed two people, one an environmental lawyer experienced in arguing cases against large institutions, and second, an activist judge with a record of forcing large institutions to make changes. |
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| Judge Garrity and Peter Koff |
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| Thanks to an oversized personality the name of the judge in the telling of the cleanup has received far more recognition than the lawyer. In 1972, Governor Frank Sargent named Paul G. Garrity to be the first judge of the newly created Boston Housing Court. There Garrity worked to ensure that lower income and poor residents would receive fair treatment and effective resolutions to housing issues, often to the frustration of landlords and real estate interests. One of the cases he heard were complaints of unsanitary conditions, lack of maintenance, and segregation by tenants of the powerful Boston Housing Authority, a $45 million agency providing housing for 45,000 people. Over several years Garrity, even after Governor Dukakis appointed him to the Massachusetts Superior Court in 1976, kept pressure on the BHA ultimately forcing them into receivership for not correcting the problems. While he did not have any experience in environmental issues, Judge Garrity would not suffer public institutions not doing their job. |
| The environmental lawyer is the lesser-known Peter L. Koff. As early as the late 1960s and early 1970s he had been active on the national level in the Citizen League Against the Sonic Boom trying to the stop development of the Supersonic Transport (SST) aircraft warning of its potential environmental damage. The U.S. Congress dropped support for the program in 1971, but Koff was back opposing the SST when Ed King, then Executive Director for the Massachusetts Port Authority, positioned Logan Airport as a landing location for the Concorde SST. Well after his work for Quincy Koff stayed active in opposing the ongoing expansion of the airport. While he did not have any experience in sewage issues, Koff knew how to argue an environmental case against a large public institution. |
| The most important piece of Golden and Koff’s plan was to get the case heard by judge who they thought would be most likely to rule in their favor. In their minds that would be judge who would not be afraid to step in and force a state agency to fix problems it had long ignored. Thanks to a system in Massachusetts that rotated judges they got the man they wanted, Paul G. Garrity. Their hunch was correct. Judge Garrity heard the case and by the end June in 1983 stated that, |
| "The facts presented to this court indicate beyond any question that the failures of the Commonwealth's supervisory agencies to require the MDC to carry out its sewage disposal activities in accordance with legal requirements jeopardizes the health, welfare and safety of persons who live and work in communities abutting Boston Harbor.” |
| It is not reported if Golden and Koff were surprised by the speed Garrity was moving. They must have been pleased. 1983 would be a year that would see significant additional judicial activity. The Boston Water and Sewer Commission sued Quincy identifying overflow from their sewers as the problem. Additional defendants, including the state’s Division of Water Pollution Control, Department Environmental Quality Engineering, and Executive Office of Environmental Affairs, would get added to the original lawsuit. More importantly, the Conservation Law Foundation stepped in with a federal lawsuit against both the MDC and the EPA for lack of enforcement of the Clean Water Act. Hoping to head off a judicial solution to a problem he had done little to solve, Governor Dukakis created a special committee to address harbor issues lead by former Governor Frank Sargent. Over ten years earlier it had been Sargent who had initiated legislative action to clean up the harbor. He would resign for health reasons by the end of the year. Sargent did have heart problems but would live for another 15 years. As a Republican he possibly did not want to offer excuses for Democratic Dukakis’ lack of action. He also would have known of the scale of the problem and understood that the Legislature would never propose funding the money needed without prodding from the courts. |
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In July of 1983 Judge Garrity appointed Harvard Law School professor Charles M. Haar as a special master. He would examine existing reports, interview witnesses, consult experts, tour the sites, and then report back with proposed actions. It would only take until August before Haar returned with his report, and there were no surprises. Insufficient staffing and maintenance of the Nut Island Treatment Plant by the MDC was responsible for the pollution of Quincy’s beaches. Based on the report Judge Garrity was able to pressure the MDC into signing on to a 10-year plan to clean up the harbor. Neither Haar’s report, nor the details of the plan are available online. It is questionable how thorough a report Haar could assembled so quickly, and how comprehensive the 10-year plan was. There were at that time many questions on how best to solve the problem of pollution in the harbor, not the least being how it would get paid for. Judge Garrity gave a clue to what he really wanted when he called for the, “ultimate remedy,” the creation by the Legislature of a separate independent metropolitan area water and sewer authority to manage the systems, set rates, and raise money with bonds. Receivership was not an option he wanted to impose, but he required action by the end of the 1984 legislative session, the end of November. |
| Though it received only minimal coverage, and no explanation of its probable impact, a decision by the Dukakis administration and the MDC in 1983 effectively ended any hope that Boston rate payers would see any significant portion of the cost of cleaning up Boston Harbor paid for by the federal government. From the original offer of eighty percent when the Clean Water Act was passed in 1972, the share the federal government was willing to pay had dropped to fifty percent by 1983 and would soon effectively end completely. In July 1983, just under four years after the MDC applied for it, the EPA rejected the MDC’s request for a 301(h) waiver to avoiding providing secondary treatment. The law as it was amended in 1977 allowed a coastal community to correct any deficiencies in the application and reapply. It was likely known by all at this point that no large east coast city had received, or would likely ever receive, a waiver. Nevertheless, the MDC hired Metcalf & Eddy to conduct more research, update the application, and then resubmit it to the EPA. It would be mid-1985 when the EPA rejected the application a second time. In theory, after the first rejection, and in mid-1983 with the prospect of a new water and sewer independent agency in discussion, the Dukakis administration and the MDC could have not reapplied for the waiver and pushed ahead with whatever federal funding was available. By 1985 when the EPA rejected the second application the prospect of getting significant federal funding was gone. |
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Judge Garrity would have been pleased with progress at the beginning of 1984. In early January, a bill was filed in the Massachusetts Senate that would set up a new and separate Metropolitan Water Resource Authority. Then in February the Bank of Boston published a report endorsing the concept of an independent water and sewer agency that could issue revenue bonds and collect user fees directly from the cities and towns served. The next step fell into place when on April 19th Governor Dukakis filed his reorganization plan, House Bill 5915. An Act Pertaining To The Metropolitan, Water District And The Metropolitan Sewerage District Of The Metropolitan District Commission. Unfortunately, optimism on a quick passage of the measure through the legislature was premature. 1984 was an election year with races nationally for the U.S. President, and in Massachusetts one U.S. Senate seat, multiple U.S. House seats, and many state positions. Campaigning and the Legislature’s summer recess stalled consideration of the bill. |
| It is noteworthy that when legislators returned in the fall there was a consensus that something had to be done before the end of the session. Though Senate President William Bulger immediately through a wrench into the process when he substituted a bill where the new agency would only oversee the sewage and not water system. Though it was odd that that the agency would still be called the Metropolitan Water Resources Authority. Bulger had always been an advocate for the cleanup of the harbor. His reason for the change was to make the bill more acceptable to legislators in the Western part of the state and reduce the cost. The bill left open the option of including water supply system into the new agency at a later point. One would have that thought his simpler, cheaper bill would have earned immediate support. However, it did not. |
| For Judge Garrity, an independent sewage-only system was fine, as long it was the law by the end of the session. Though not in as deplorable a state as the sewage system the maintenance of metropolitan water system was similarly poorly funded and its overall condition was beginning to deteriorate. To many legislators that was a more pressing issue and the pain of paying for the sewage system would be limited they hoped to only 10 percent of the total cost, though ultimately that share would be much higher. The idea of a combined water and agency would win out. It was supported by most and as approved, officials from the Western part of the state received a seat on the new MWRA board and the creation of a new Division of Watershed Management under the MDC that would control the Quabbin and other reservoirs. The water in the reservoirs would be managed by the new MWRA, the land by the new division. |
| While the story of what finally set in motion the cleanup of Boston Harbor has the inconspicuous beginning of a jog on a polluted beach, it is the dramatic conclusion that gave the story its legendary status. By the fall of 1984 negotiations over the many final details were close to being worked out and it seemed likely that the legislation creating the MWRA could be passed before the end of the legislative session scheduled for November 29th. To make sure that it did happen, at mid-month Judge Garrity again threatened receivership if the legislation was not passed. The drama resulted when it became clear that leadership in the House intended not to act on the bill. Judge Garrity would be the protagonist in the drama. The primary antagonist would become the powerful House Ways and Means chairman, Michael C. Creedon (D-Brockton) when on November 28th he postponed action on the legislation. His boss, the speaker of the House, Thomas W. McGee, would be a co-antagonist, but it would be Creedon who took on the primary role when he was asked what the decision to postpone would have on the court order to create the MWRA, he replied, “I have a belief about court orders. I ignore them.” |
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Upon hearing of Creedon’s decision to postpone the legislation Judge Garrity ordered what in today’s parlance is known as the nuclear option. On November 29th he imposed an immediate ban on all new tie-ins to the MDC’s sewer system effectively halting work on an estimated $2.3 billion of construction work in Boston alone. He also set a date in the following week for what he predicted would be a short trial that would result in the appointment of a receiver to oversee the MDC’s cleanup of the harbor and running of the system. Needless to say, that got everyone’s attention. What followed were three weeks of frantic negotiations, coverage of which seldom left the front page of the Boston Globe. Judge Garrity’s ban on sewage tie-ins would get overturned by a State Supreme Court Justice, but his threat of receivership kept up the pressure. As did a threat by the EPA that they would sue to ban new sewer tie-ins. After much debate in the House and Senate, on December 19, 1984 the MWRA came into existence when Governor Dukakis signed, Chapter 372, An Act Pertaining To The Metropolitan Water District And The Metropolitan Sewer District Of The Metropolitan District Commission. |
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It is worth celebrating a story that tells how after years of inaction Boston would finally be forced to clean up its harbor. What boosts the story into legendary status are the actions of Judge Garrity. By some they have been called judicial overreach into matters that should have been addressed by the legislative and executive branches of government. Judge Garrity’s opinion was that those bodies were not acting fast enough given the violation of the law and the risk to the health and safety of the public. Though what seems to have bothered critics more was Judge Garrity’s use of the media to promote his effort. Nothing provides a better example of this than the December 9, 1984 story in the Washington Post about pollution in Boston Harbor. With tense negotiations underway in the legislature, Judge Garrity is shown in a large picture in the newspaper posed in his judicial robes standing on a pier in East Boston sternly looking at the harbor with downtown Boston in the background. The photograph is so iconic that the Boston Globe would publish it three different times. To critics, tradition said this was not the way judges were supposed to act, and judges definitely should not wear their robes outside of chambers. Three days later Judge Garrity lead a group of reporters on a tour of the Deer Island Treatment Plant. Introducing himself to a supervisor there he identified himself as the “sludge judge.” |
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Judge Garrity had gotten his “ultimate remedy,” a new independent authority to run the metropolitan water and sewage systems not tied to the whims of legislatures, but no more. There was no great plan agreed on for the cleanup of the harbor. Responsibility for ensuring that the cleanup would happen now passed to U.S. Federal Judge A. David Mazzone. The day after the MWRA was created Judge Garrity resigned returning to private practice. Among the other players in the story, William Golden had left his position as the solicitor in Quincy in mid-1983 when the case was in its early phase. He won a seat as State Senator in the November 1984 election. Attorney Peter Koff continued to advise Quincy on issues concerning the harbor cleanup including negotiating with the MWRA on their decision to locate a sludge-to-fertilizer plant at the Fore River shipyard in Quincy. Michael Creedon, the antagonist in the House who said he ignored judges, would himself become a District Court judge. |
| In May of 1985 Judge Mazzone consolidated all outstanding state and federal cases into one. Massachusetts state officials were not happy with the decision, they thought progress could be made through voluntary agreements. On the other hand, Quincy officials were pleased feeling that they now did not have to “carry the full burden,” according to their attorney Peter Koff. Defending his decision, Judge Mazzone noted that “time is of the essence,” and that state had done little. |
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