United States of America v. NSTAR Electric Company et al

Filing 158

Judge Richard G. Stearns: ORDER entered granting in part and denying in part 154 Motion for Order to Delay Scheduled Blasting. (Zierk, Marsha)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-11470-RGS
UNITED STATES OF AMERICA
v.
NSTAR ELECTRIC CO., et al.
MEMORANDUM AND ORDER
ON THE JOINT MOTION OF DEFENDANTS
NSTAR ELECTRIC CO. AND HARBOR ELECTRIC ENERGY CO.
TO DELAY SCHEDULED BLASTING
January 15, 2018
STEARNS, D.J.
As part of its Boston Harbor Deep Draft Navigation Project (the Deep
Draft Project), the U.S. Army Corps of Engineers (ACOE) has scheduled a
blasting project (Blasting Project) to begin tomorrow, Wednesday, January
16, 2019, in the Boston Harbor. The Blasting Project is to take place near a
trench being excavated by the Eversource defendants (NSTAR Electric
Energy Company, d/b/a Eversource Energy (NSTAR) and Harbor Electric
Energy Company (HEEC)) to house a new transmission cable (New Cable)
to provide electrical power to the Deer Island sewage treatment plant. The
Eversource defendants have been ordered by this court to complete

installation of the New Cable no later than December 31, 2019.

See

Stipulation and Order dated July 12, 2017 (Dkt #125).
The Eversource defendants seek an emergency order enjoining the
Blasting Project from proceeding until installation of the conduit for the New
Cable is finished, which is scheduled for March 31, 2019. The Eversource
defendants maintain that the Blasting Project poses a substantial risk of
collapsing the trench or creating fractures in the basement rock that will
make compliance with the court’s scheduling order impossible. They also
assert that the Blasting Project’s disruption of their present work schedule
will result in project delay/stand down costs in excess of $50 million. The
ACOE, for its part, argues that the geological risks to the New Cable trench
are minimal, and in a Declaration submitted today by Matthew Tessier, the
Chief of the Navigation Branch, the ACOE states that it will incur similar
stand-down costs if the Blasting Project is delayed. Both sides complain of a
lack of communication over coordination of the competing projects.
At the hearing held today, January 15, 2019, the court noted that the
dispute unfortunately places two worthwhile and critical public interest
projects at odds with one another. Maintenance of the health of Boston
Harbor is dependent on the ongoing operations of the Deer Island treatment
plant, any disruption of which the installation of the New Cable is meant to
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prevent. The Deep Draft Project, for its part, is intended to facilitate the
access of larger, more modern ships to the Harbor, and as such, is important
to Boston’s continued economic development. These interests converge in
the long run, as the New Cable project not only insures uninterrupted electric
service to Deer Island, but also sinks the existing transmission line to a depth
that will allow the Deep Draft Project to proceed.
As became clear at the hearing, the court does not have enough
information (nor do the parties) to make a final decision that will best serve
the mutual interests of all involved. In this regard, the court appreciates the
suggestion by the Eversource defendants of a plan that may achieve a
workable solution acceptable to both parties.

Consistent with this

suggestion, the court orders as follows: the ACOE will postpone the Blasting
Project for nine (9) days from today’s date, that is, through January 24, 2019.
The court further orders the parties to meet during the interim to discuss
their respective project concerns and schedules, the costs and benefits to the
public and the parties of delaying the New Cable project and/or the Blasting
Project, the mitigation measures that each side can undertake, and the
substance of a mutually agreeable plan to achieve the parties’ respective
goals at the least onerous private and public cost. The court will continue
today’s hearing to 11:30 a.m., Thursday, January 24, 2019, to hear the report
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of the parties and, if necessary, to make itself available to the extent it can
assist the resolution of any remaining differences.
SO ORDERED.
/s/ Richard G. Stearns__________
UNITED STATES DISTRICT JUDGE

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