Suit alleges toxic dumping into Bussey Brook

February 18, 2011
By
 

JP SOUTH—A suit against the Boston Water and Sewer Commission (BWSC), filed by the Boston-based Conservation Law Foundation (CLF) last February and joined by the federal Environmental Protection Agency (EPA) Dec. 22, springs, in part, from Jamaica Plain’s own Bussey Brook, the Gazette has learned.

Based on the BWSC’s annual sample data, the suit alleges that “toxic particles related to heavy metals and high levels of bacteria” are finding their way into Boston waterways, both from street storm water runoff and, in some cases, from sewage lines, CLF Staff attorney Anthony Iarrapino told the Gazette in a phone interview. “Bussey Brook was one of their sampling sites,” he said.

Bussey Brook runs through the Arnold Arboretum in JP. Arboretum officials did not respond to Gazette requests for comment by press time. According to the CLF’s suit, the runoff dumped into the Bussey is from a separated storm sewer system, making it less likely that sewage is being dumped into the brook.

In a press statement responding to the EPA’s entrance into the suit, BWSC officials defended their record, saying the commission has spent close to $250 million on eliminating combined sewer overflows—systems that mix sewage and street run-off and, in heavy rain, dump into waterways. That effort included separating street runoff and sewage that formerly ran into Jamaica Plain’s underground Stony Brook, which feeds into the Muddy River. The sewer separation took several years and affected much of JP in the 2000s.

The BWSC has also eliminated over 1,000 private “illicit connections” in the city that illegally dump into waterways, the statement says. It has spent $3 billion cleaning up Boston Harbor, and committed $700 million to improving the city’s plumbing infrastructure.

The CLF’s review of BWSC records found that Bussey Brook, along with other Boston waterways have been the sites of “violations of several water quality standards – including standards pertaining to bacteria, copper, zinc, and dissolved oxygen,” according to CLF’s Feb. 2010 complaint.

The Muddy River, which is fed by Bussey Brook, via Jamaica Pond, also rates a mention in the complaint. Elevated levels of pollutants fed into the lower Charles River by the Muddy River are contributing to violations of water quality standards in the Charles, the complaint alleges.

Last summer, as the Gazette reported at the time, the Muddy River saw the growth of toxic blue-green algae blooms. Those bacterial blooms—blue-green algae is not an algae, but a bacteria—were likely caused by high levels of phosphorus making their way to the river via storm water run-off, officials from the Charles River Watershed Association told the Gazette at the time.

“There are waters in neighbourhoods in the city that BWSC is polluting at levels that are much higher than the law allows,” Iarrapino said.

On Dec. 21, just prior to the EPA joining the suit, the US District Court turned down CLF’s request for summary judgement on some of the counts that the CLF alleged.

One of BWSC’s defenses is that the “claims assume incorrectly that the permit requires the Commission’s storm water discharges and the bodies of water to which they discharge to meet water quality standards, whereas the permit actually requires only that the Commission take practicable steps toward the goal of meeting those standards,” according to the district court decision. The court did not offer an opinion on the validity of the plaintiff’s or the defendant’s arguments beyond turning down the summary judgement motion.

Iarrapino said the EPA’s subsequent signing onto the suit is a boon for the plaintiffs because the federal agency has access to more resources than the non-profit CLF. The EPA also has standing to sue to redress past violations of the Clean Water Act, whereas, “citizen suits,” like the one CLF filed, can only be brought to correct ongoing violations.

Julie Crockford, head of the Emerald Necklace Conservancy, a non-profit focused on preserving and improving the Emerald Necklace string of parks, which includes the Arnold Arboretum, Jamaica Pond and the Muddy River, told the Gazette she was not aware that the CLF suit included Emerald Necklace waterways.

“Storm water drainage has long been a concern to us,” she said, “This really points to the massive under-funding of public infrastructure in our country. Public health is being endangered by the lack of public investment.”

The public needs to seriously consider how it wants to fund needed public infrastructure improvements, she said.

Iarrapino said that, unless a settlement is reached, the case will likely go to trial this summer.

For more information on the suit, see www.clf.org.

Correction: The Gazette incorrectly described The Emerald Necklace Conservancy (ENC) as a quasi-public non-profit is the print and previously published on-line versions of this story. The ENC is a private non-profit.

Best of JP 2014