United States of America v. NSTAR Electric Company et al

Filing 71

Judge Richard G. Stearns: ORDER entered denying 29 Motion to Dismiss (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 DISMISS THE CROSSCLAIMS
OF THE MASSACHUSETTS WATER RESOURCES AUTHORITY
October 27, 2016
STEARNS, D.J.
In 1989, the U.S. Army Corps of Engineers (ACOE) issued a permit to
the Boston Edison Company1 and the Massachusetts Water Resources
Authority (MWRA) to install a submarine electric cable beneath Boston
Harbor connecting NSTAR’s K-Street substation (385-T) in South Boston
with the Deer Island Waste Water Treatment Plant (Plant). In this lawsuit,

Boston Edison is now known as NSTAR Electric Company d/b/a
Eversource Energy (NSTAR). NSTAR was formed in 1999 by the merger of
Boston Edison, Cambridge Electric Light Company, and the Commonwealth
Electric Company. The court will refer to Boston Edison where historically
appropriate. There is, however, no dispute that NSTAR is the successor to
Boston Edison for all purposes of this litigation.
1

the ACOE alleges that defendants violated the permit by failing to bury the
cable at the required depth. The ACOE seeks civil penalties as well as
injunctive relief in the form of compliance with the permit or removal of the
cable.
In response to the lawsuit, the MWRA filed crossclaims against NSTAR
and the Harbor Electric Energy Company (HEEC)2 asserting that the utility
companies are solely responsible for the costs of reinstalling or protecting
the existing cable. The MWRA also alleges that the utilities refused to
negotiate in good faith over a successor to the parties’ 1990 Interconnection
and Facilities Support Agreement (1990 Agreement), in violation of Mass.
Gen. Laws ch. 93A, §11 (Chapter 93A). NSTAR and the HEEC now move to
dismiss the crossclaims contending that primary jurisdiction over the
dispute rests with the Massachusetts Department of Public Utilities (DPU);
that the MWRA’s claims are currently the subject of a pending state-court
action; that the MWRA’s resort to alternative litigation venues amounts to
impermissible claim-splitting; and that its claim for declaratory judgment is

The HEEC was created by Boston Edison as a wholly-0wned
subsidiary tasked with providing the facilities necessary to deliver electric
power to Deer Island.
2

2 

unripe as it has (as yet) suffered no actual harm. The court heard argument
on the motion on October 18, 2016.
BACKGROUND
On May 19, 1989, this court (Mazzone, J.) ordered the MWRA to
undertake the construction of the Plant as the cornerstone of a long-term
plan to restore the heavily-polluted Boston Harbor.

Among its many

provisions, the Order mandated that the MWRA “have electrical power
available on Deer Island sufficient to commence construction . . . by October
of 1990.” In response, the MWRA entered into the 1990 Agreement with
Boston Edison and the HEEC. Under the 1990 Agreement, the MWRA
undertook to amortize and pay for the cost of constructing and operating the
cross-harbor cable and the appurtenant electrical transmission facilities over
the 25-year life of the contract. The 1990 Agreement included two spending
caps setting the MWRA’s maximum obligation for construction costs. The
first, applicable to the Phase I facilities (including the cable), was
$25,400,000. The second, applicable to both Phase I and Phase II facilities,
was $41,650,000.

“Recovery of construction costs through the

Interconnection Agreement is capped such that the HEEC, and not the
MWRA, will absorb any costs that exceed the cap.” Dkt #30-2 at 8 (DPU
approval of the HEEC financing application), citing 1990 Agreement at 8.
3 

The ACOE issued a permit to Boston Edison Company and MWRA to
install a 4.15 mile, cross-harbor 115-kilovolt submarine electrical cable to
power the Plant. In January of 1990, Boston Edison incorporated the HEEC
to build and maintain the cable.3 The following month, the ACOE amended
the permit to add the HEEC. The permit required that the cable be installed
at least 25 feet below the sea bed of two federally-owned channels in Boston
Harbor, the Reserved Channel and the Main Ship Channel.
NSTAR engaged geotechnical consultants to conduct subsurface
investigations. These revealed bedrock just beneath the sea floor in the
Reserved Channel. NSTAR selected Les Cables de Lyon (CDL) to supply the
electric cable. A CDL subcontractor, Harmstorf, was hired to excavate the
cross-harbor trench for the cable. NSTAR and the HEEC claim that
during the construction of the Cable, it became apparent that the
only way to uniformly reach the specified depths at certain
locations would have been blasting through bedrock, which was
discouraged by both the [Massachusetts Department of
Environmental Protection] and the [ACOE]. Although the depth
actually achieved during construction was less than the permit
specified in certain locations, it was the maximum achievable
depths in those locations utilizing construction methods
approved at that time, and depth actually achieved was below the
official maximum depth then anticipated and communicated by
the [ACOE] for any future shipping needs.
Am. Answer of NSTAR and HEEC ¶ 14, Dkt #20.

3

The DPU approved the delegation to HEEC in 1990.
4 

When completed in 1994, the combined costs for the Phase I and Phase
II facilities, exclusive of interest and charges, came to less than $41.65
million, entitling Boston Edison and the HEEC under the 1990 Agreement to
an incentive payment of $1.487 million. As amortized over the twenty-five
year term of the 1990 Agreement, the costs of the project totaled
approximately $104 million (of which $3.475 million is attributable to the
incentive award).
In 2000, the Massachusetts Port Authority (Massport) asked the ACOE
to undertake a study of the feasibility of deepening the Reserved Channel and
the Main Ship Channel to accommodate a new generation of mammoth
container ships. The ACOE study laid the groundwork for the Boston Harbor
Deep Draft Navigation Improvement Project (Deep Draft Project). During a
feasibility exploration, the ACOE discovered that in some locations the cable
was not buried to the 25 foot level mandated by the permit – in some areas
it lay as little as 12 feet below the sea floor. In 2003, the ACOE notified the
three permit holders that the cable’s positioning violated the terms of their
permit. The ACOE demanded that the cable be reinstalled at the proper
depth requirements to allow the Deep Draft Project to go forward.4

According to the ACOE, dredging for the Project with the cable in its
present position would risk damage to the cable, resulting in a loss of power
4

5 

Prolonged settlement negotiations between the ACOE and the permit
holders began in 2003.5

NSTAR proposes the placement of protective

concrete mats or steel plate structures just above the cable, extending some
1,000 linear feet into the Reserved Channel. NSTAR and the HEEC estimate
the cost of trenching and placing the mats to range from $10 to $20 million,
as opposed to the $50 to $100 million cost of installing a new cable. NSTAR
and the HEEC also maintain that any “cable protection costs” they incur are
recoverable from the MWRA under the 1990 Agreement.
On October 30, 2015, the HEEC, as “own[er] and operat[or] of a
submarine electric cable and related substation and interconnection facilities
that are used exclusively for providing distribution service to the MWRA
facility,” filed a petition with the DPU seeking a tariff “to recover its costs to
serve MWRA on and after January 1, 2016.” Dkt #30-1 at 1. In its tariff
petition, the HEEC stated that the MWRA was then “paying for service under
a long-standing contract with the HEEC that expires on November 12, 2015
and will not be renewed.” Id. at 6 (Pet. ¶ 5).

Thus, it was “seeking (1)

to the Deer Island Plant, and the leakage of environmentally harmful fluid
into Boston Harbor.
In 2014, Congress passed the Water Resources and Reform
Development Act, authorizing $310 million for the Deep Draft Project. That
funding, however, expires in 2017.
5

6 

approval of a tariff that will provide a construct for recovery of prudently
incurred costs on a going-forward basis; and (2) approval of a rate consistent
with the provisions of the tariff rate mechanism to supplant the amounts
currently recovered under the expiring Interconnection Agreement . . . [but]
not . . . costs associated with the [ACOE’s] dredging.”6 Id. at 25.
While the terms of the 1990 Agreement required the negotiation of a
successor agreement, the parties were unable to formalize an extension or
new terms prior to the expiration date. As a consequence, the MWRA filed
suit in Suffolk Superior Court on November 11, 2015. In the Superior Court
Complaint (as amended on March 21, 2016), the MWRA disclosed that
during the renewal negotiations, NSTAR insisted that it agree to join the ISONew England Forward Capacity Market and to assign to NSTAR a percentage
of any earnings as an offset against the cable protection costs. The MWRA
refused, claiming that it had “no responsibility for the costs,” and that its
participation in the Forward Capacity Market would “require it to assume a
range of operational risks which it was not willing to undertake.” MWRA
Mem. at 16. As in this case, the MWRA sought a declaratory judgment that

The HEEC testified at the DPU hearing on the petition that, “going
forward,” it expects to incur annual operations and maintenance costs of
$675,000, and an annual capital recovery cost of $2.9 million. Id. at 23 (Tr.
at 13).
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7 

the 1990 Agreement did not obligate it to bear the costs of remediating the
cable as it was not “a matter of regular maintenance.”7 MWRA Cross-cl. ¶ 26
(Dkt #15). It also claimed that NSTAR had breached the 1990 Agreement,
had refused to negotiate in good faith, and had violated Chapter 93A. On
June 24, 2016, the Superior Court dismissed the MWRA’s claims without
prejudice with the notation that “the amended complaint alleges no facts
plausibly suggesting that the MWRA is entitled to relief under any of its
causes of action.”8
On May 5, 2016, the DPU issued an interlocutory order in the tariff
proceeding in response to the MWRA’s motion to dismiss, ruling that it
would exercise “primary jurisdiction” in determining whether the HEEC was
required by the 1990 Agreement to file the tariff request with the Federal
Energy Regulatory Commission (FERC). The DPU further ruled that the
dispute over the recovery of cable protection costs was a matter of contract
liability outside its decisional authority.

The HEEC moved for

MWRA states that “the cable is presently in good working order . . .
and is expected to have an additional useful life of 20-25 years.” Id.
7

The MWRA appealed the Superior Court’s decision, but on
September 30, 2016, moved to dismiss the appeal. The Court allowed the
motion and dismissed the appeal “without . . . expressing any opinion as to
the impact of this decision on any pending or subsequent litigation.” Dkt #511.
8

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reconsideration, arguing that the dispute involves “interpretation of a special
contract under the [DPU’s] jurisdiction.”

Dkt #30-4 at 3.

The DPU

demurred, stating that it would reach a determination of its jurisdiction over
cable protection costs only after such costs were actually incurred:
“[B]ecause [the HEEC] does not seek to recover any costs associated with
cable protection in its filing and does not propose any tariff provision
specifically addressing Cable Protection Costs, the issue of responsibility for
Cable Protection Costs is outside the scope of this proceeding.” Id. at 8.
After efforts to reach an agreement with the permit holders failed, the
ACOE brought this lawsuit in the federal district court on July 15, 2016,
alleging that noncompliance with the 1990 permit violates Section 10 of the
Rivers and Harbors Act of 1899 (RHA), 33 U.S.C. § 403, and Section 404(s)
of the Clean Water Act (CWA), 33 U.S.C. § 1344(s).9
DISCUSSION
NSTAR and the HEEC seek to dismiss the MWRA’s crossclaims, which
are: Count I – Judgment “declaring the rights, duties and status of each of
the parties to the 1990 Agreement with respect to the extent, if any, of
MWRA’s obligations thereunder to pay for existing or future Cable

The ACOE has moved for summary judgment on liability with respect
to the cable remediation project. Briefing on the issue having been
concluded, the court has scheduled a hearing for November 14, 2016.
9

9 

Protection Costs” (Cross-cl. ¶ 31); Count II – Indemnification for “any and
all costs or damages incurred by MWRA related to any failure by NSTAR
and/or the HEEC to comply with the Permit (Id. ¶ 35); and Count III –
Violations of Chapter 93A for “unfair and deceptive conduct in attempting to
make MWRA responsible for [NSTAR’s and the HEEC’s] own failure to
comply with the Permit’s depth requirements and in disregarding the
allocation of construction risk provisions in the 1990 Agreement by
terminating the 1990 Agreement and claiming that the provisions of that
Agreement no longer have any relevance to Cable Protection Costs to be
incurred after November 2015.” (Id. ¶ 44).
To survive a motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). Two basic principles guide the
court’s analysis. “First, the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.” Id.
at 678. “Second, only a complaint that states a plausible claim for relief
survives a motion to dismiss.” Id. at 679. A claim is facially plausible if its
factual content “allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. at 678.
10 

The court will consider the arguments made by NSTAR in support of
dismissing the crossclaims and will then address the MWRA’s request for
declaratory judgment and its Chapter 93A crossclaims.
Primary Jurisdiction
As a matter of taxonomy, primary jurisdiction is a rule of deference and
not a rule of jurisdiction in the ordinary sense. P.R. Mar. Shipping Auth. v.
Fed. Mar. Comm’n, 75 F.3d 63, 65 (1st Cir. 1996). “The doctrine of primary
jurisdiction applies to regulatory matters specifically entrusted to a
particular agency and to matters involving technical questions of fact
uniquely within agency expertise and experience.” Columbia Chiropractic
Grp., Inc. v. Trust Ins. Co., 430 Mass. 60, 62 (1999),

quoting Nader v.

Allegheny Airlines, Inc., 426 U.S. 290, 304 (1976). “If an agency has the
regulatory power to afford a plaintiff relief, exhaustion of the possibility of
remedial agency action should ordinarily precede independent action in the
courts.” Id. The doctrine is particularly applicable when “an action raises a
question of the validity of an agency practice.” Murphy v. Adm’r of Div. of
Pers. Admin., 377 Mass. 217, 221 (1979). “[I]f a court concludes that an issue
raised . . . is within the primary jurisdiction of an [administrative] agency,
the court will defer any decision in the action before it until the agency has
addressed the issue that is within its primary jurisdiction.” Ass’n of Int’l
11 

Auto. Mfrs., Inc. v. Comm’r, Mass. Dep’t of Envtl. Prot., 196 F.3d 302, 304
(1st Cir. 1999).

Whether to invoke the doctrine is a matter uniquely

committed to the discretion of the court. See Columbia Chiropractic Grp.,
430 Mass. at 62, citing Leahy v. Local 1526, Am. Fed’n of State, Cty., & Mun.
Employees, 399 Mass. 341, 349-350 (1987).

Resort to the doctrine is

particularly inappropriate where the agency in question does not have the
power to conclude the issue under a highly deferential standard is unable to
act promptly where (as is often true in a commercial context), some urgency
is at hand, or where the agency cannot give full and appropriate relief. PHC,
Inc. v. Pioneer Healthcare, Inc., 75 F.3d 75, 80-81 (1st Cir. 1996).
Pursuant to Mass. Gen. Laws ch. 164, §94, “all contracts for the sale of
. . . electricity by electric companies shall be filed” with the DPU, and electric
utility companies are required to obtain the DPU’s approval of all rates
charged to customers for the sale and distribution of electricity. Citing to
Chapter 164, NSTAR and the HEEC maintain that the MWRA crossclaims
“fall squarely within the jurisdiction of the DPU,” and that Massachusetts
courts “routinely dismiss actions in deference to the DPU’s authority to
decide matters ‘exclusively’ within its province.” Defs.’ Mem. at 12. NSTAR
insists that the DPU proceeding will resolve an existing “rate dispute” among

12 

the parties, which includes the negotiation of a new Interconnection
Agreement covering future Cable Protection Costs. Id. at 13.
As PHC, Inc. makes clear, the primary jurisdiction doctrine does not
apply when the critical issue turns on questions of law which have not been
committed to the agency’s discretion or where the agency has chosen not to
act. 10 As the DPU has determined that the dispute over cable protection cost
liability is not properly before it, there is no pending proceeding to which this
court could defer. 11 The core point of this litigation is the determination of

In its Order on the HEEC’s motion for reconsideration, the DPU held
that the scope of the rate proceeding “is better addressed if and when such
Cable Protection Costs are incurred and presented for recovery in a filing
before the Department. . . . [A]s previously determined the Department’s
investigation in this proceeding will be limited to review of the Proposed
Tariffs to ensure that any resulting rates are just and reasonable and that the
proposed terms and conditions are reasonable.” Dkt #30-4 at 8-9 (emphasis
added).
10

It is true, as NSTAR and the HEEC argue, that the DPU has on
occasion asserted a broader scope of jurisdiction. As the DPU explains, it
11

has exercised jurisdiction over disputes involving commercial
customers of utility companies in circumstances when
residential tenants were directly or indirectly affected by
commercial accounts. . . . when interpretation of tariffs or
Department rules, or a utility company’s general business
practices were at issue. In a few circumstances, the Department
exercised its jurisdiction over disputes involving commercial
customers of utility companies based on its “general supervision
authority” over gas and electric companies under G.L. c. 164.
13 

liability for costs of remediating the cable and bringing the parties into
compliance with their permit.

This court has jurisdiction to decide these

issues, and their prompt resolution is desirable given the looming deadline
for the expiration of federal financing of the Deep Draft Project.12
Claim-splitting13
“Federal claim preclusion law bars a plaintiff from litigating claims in a
subsequent action that could have been, but were not, litigated in an earlier
suit.” Silva v. City of New Bedford, 660 F.3d 76, 78 (1st Cir. 2011). Citing
the MWRA’s prior filing in the Superior Court and the HEEC’s pending case
before the DPU, NSTAR and the HEEC argue that the MWRA’s crossclaims
“violate longstanding rules prohibiting ‘claim-splitting’ and should therefore
be dismissed.” Defs.’ Mem. at 19. As explained by then-Circuit Judge Breyer,

Dkt #39-1 at 10 (Schreiber & Assocs., DPU D.T.E. 02-86, June 2, 2003). The
assertion of that jurisdiction, however, is rare as hen’s teeth and, in any
event, the DPU proceeding here is limited by its own terms to a “review of
the Proposed Tariffs.” Dkt #30-4 at 9.
The MWRA’s “held hostage” claim under Chapter 93A is also
uniquely within the competence of this court. Where the court will defer to
the DPU (or the FERC) under the primary jurisdiction doctrine is over tariff
issues involving the HEEC’s sale of electricity to the MWRA.
12

NSTAR and the HEEC also argue that “the MWRA’s crossclaims are
barred by the prior pending action doctrine.” This argument is rejected for
the same reasons that lead the court to find the claim-splitting theory
inapplicable.
13

14 

[u]nless [plaintiff] can fit his case within some exception to the
general ‘claim preclusion’ rule, his federal court claims are
barred, for both his state court and his federal court claims grow
out of the same ‘transaction, or series of connected transactions’.
. . . That is to say, [plaintiff] must find an exception freeing him
from the legal doctrine against ‘claim splitting’ — the principle
that requires a litigant to assert all his various legal theories and
factually related allegations the first time he brings suit.
Rose v. Town of Harwich, 778 F.2d 77, 79 (1st Cir. 1985), citing Boyd v.
Jamaica Plain Co-operative Bank, 7 Mass. App. Ct. 153, 163-164 (1979). The
exception that applies here is the one earlier alluded to – “In Massachusetts,
as elsewhere, a judgment does not preclude future claims if not rendered ‘on
the merits.’” Rose, 778 F.2d at 79. Because the Superior Court Order was
entered “without prejudice,” it has no preclusive effect.
Declaratory Judgment
The Declaratory Judgment Act, 28 U.S.C. '' 2201-2202 (mirrored by
Fed. R. Civ. P. 57), “does not itself confer subject matter jurisdiction, but,
rather, makes available an added anodyne for disputes that come within the
federal courts= jurisdiction on some other basis. . . . Consequently, federal
courts retain substantial discretion in deciding whether to grant declaratory
relief.” Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 534 (1st
Cir. 1995). For a claim to be ripe in the declaratory judgment context, two
prongs must be met – fitness for review and hardship. Id. at 535; see also
Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967). Fitness involves the
15 

question of whether “the claim involves uncertain and contingent events that
may not occur as anticipated or may not occur at all.” Mass. Ass’n of AfroAm. Police, Inc. v. Boston Police Dep’t, 973 F.2d 18, 20 (1st Cir. 1992) (per
curiam).

“[T]he hallmark of cognizable hardship is usually direct and

immediate harm, [although] other kinds of injuries occasionally may
suffice.” Ernst & Young, 45 F.3d at 536. “The key question involves the
usefulness of a declaratory judgment, that is, the extent to which the desired
declaration ‘would be of practical assistance in setting the underlying
controversy to rest.’” Id. at 537, quoting Rhode Island v. Narragansett
Indian Tribe, 19 F.3d 685, 693 (1st Cir. 1994).
NSTAR and the HEEC, relying on the dismissal order issued by the
Superior Court, assert that the MWRA claim for declaratory judgment “fails
to identify any actual controversy.” Defs.’ Mem at 15-16. In the first instance,
the Superior Court Order was entered without prejudice and thus has no
preclusive effect. See Mirpuri v. ACT Mfg., Inc., 212 F.3d 624, 628 (1st Cir.
2000), quoting Acevedo-Villalobos v. Hernandez, 22 F.3d 384, 388 (1st Cir.
1994) (“In this circuit, the phrase ‘without prejudice,’ when attached to a
dismissal order, . . . signif[ies] that the judgment does not preclude a
subsequent lawsuit on the same cause of action either in the rendering court
or in some other forum.”). Even more to the point, the Superior Court Order
16 

entered on June 24, 2016, prior to the ACOE’s filing of this case on July 15,
2016. The ACOE’s claims for injunctive relief and civil penalties against the
MWRA (as well as NSTAR and the HEEC) create “an actual controversy”
among the defendants, and the resolution of the MWRA’s crossclaims will
“set the underlying [liability] controversy to rest.” See Abbott Labs, 387 U.S.
at 148-149.
Chapter 93A
NSTAR and the HEEC argue that even accepting as true the premise of
the MWRA’s Chapter 93A claim – that they breached the 1990 Agreement by
failing to negotiate in good faith by attempting to impose an “un-bargained
for and absolute pre-condition” regarding the MWRA’s participation in the
ISO-New England Forward Capacity Market – the MWRA has failed to plead
a viable Chapter 93A violation. This court agrees that there is nothing
inherent in the 1990 Agreement requiring the parties to negotiate a successor
agreement in good faith. See Schwanbeck v. Federal-Mogul Corp., 412
Mass. 703, 706-707 (1992). Nor as a general proposition will a party be held
liable for failing to conduct a successful contract negotiation. See Lambert
v. Fleet Nat’l Bank, 449 Mass. 119, 127 (2007).
Rather, to rise to an actionable Chapter 93A violation, a party’s conduct
must rise to the level of “commercial extortion.” Commercial Union Ins. Co.
17 

v. Seven Provinces Ins. Co., 217 F.3d 33, 40 (1st Cir. 2000), quoting
Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 475 (1991) (“A mere
breach of contract does not constitute an unfair or deceptive trade practice
under [Chapter] 93A, unless it rises to the level of ‘commercial extortion’ or
a similar degree of culpable conduct.”). “The courts of Massachusetts have
consistently held that ‘conduct in disregard of known contractual
arrangements’ and intended to secure benefits for the breaching party
constitutes an unfair act or practice for [Chapter] 93A purposes.” Arthur D.
Little v. Dooyang Corp., 147 F.3d 47, 55-56 (1st Cir. 1998), quoting
Anthony’s Pier Four, 411 Mass. at 474. In this vein, the Massachusetts
Appeals Court upheld a finding of Chapter 93A liability for extortionate
conduct where a defendant raised “specious defenses” to payment and
engaged in “foot dragging” and “a pattern of stringing [the plaintiff] along.”
Cmty. Builders, Inc. v. Indian Motorcycle Assocs., 44 Mass. App. Ct. 537,
559 (1998).
In its crossclaim, the MWRA alleges that NSTAR and the HEEC
inserted “outrageous” preconditions into the bargaining process by seeking
to assign themselves “exorbitant percentages of revenues . . . to pay for the
Cable Protection Costs . . . for which it [the MWRA] had no responsibility”
and attempting to force it to “assume a range of operational risks” as the price
18 

for obtaining a successor to the 1990 power supply agreement. MWRA
Answer and Cross-cl. ¶¶ 40-41. For pleading purposes, these allegations are
sufficient to survive a motion to dismiss.
ORDER
For the foregoing reasons, defendants’ motion to dismiss the MWRA’s
crossclaims is DENIED.
SO ORDERED.
/s/ Richard G. Stearns
__________________________
UNITED STATES DISTRICT JUDGE

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