
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2373                                 VINCENT F. ZARRILLI,                                Plaintiff, Appellant,                                          v.                           WILLIAM WELD, GOVERNOR, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Vincent F. Zarrilli on brief pro se.            ___________________            Donald K. Stern, United States  Attorney, George B. Henderson, II,            _______________                           _______________________        Assistant United States Attorney, Scott Harshbarger, Attorney General,                                          _________________        and Rosemary Gale,  Assistant Attorney General, on  brief for appellee            _____________        Governor William Weld.            Merita  A.   Hopkins,  Corporation   Counsel,  and   Elizabeth  R.            ____________________                                 _____________        O'Donnell,  Assistant  Corporation   Counsel,  City   of  Boston   Law        _________        Department, on brief  for appellees  City of Boston,  Mayor Thomas  M.        Menino,   Commissioner   Paul  Evans,   Commissioner   Martin  Pierce,        Commissioner  Joseph  Casazza,  Former  Commissioner  Lawrence  Dwyer,        Former  Mayor   Raymond  L.  Flynn,  and   the  Boston  Transportation        Department.                                 ____________________                                    APRIL 2, 1997                                 ____________________                      Per  Curiam.   Pro  se  appellant  Vincent Zarrilli                      ___________            appeals from  the district court's grant  of summary judgment            for various state and federal defendants and  from its denial            of  his  motion  to  reconsider.1    The  primary  thrust  of                                            1            Zarrilli's  suit was  that  the defendants  had violated  the            National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.              4331 et seq.,  and pertinent regulations by  not studying his            proposal for a bypass bridge around Boston as an  alternative            to depressing  the Central  Artery.   Among other  things, he            sought  an order  halting  Artery construction  and directing            detailed review of his proposal.  After careful review of the            record,  we affirm essentially  for the reasons  given by the            district  court  in  its  well  reasoned  decisions  granting            summary judgment.  We add only the following comments.                                              ____________________               1The   district   court  granted   summary   judgment  for               1            defendants on  Zarrilli's original  complaint in Zarrilli  v.                                                             ________            Weld, 875 F.  Supp. 68 (D. Mass. 1995).   Among other things,            ____            the  court  ruled  that  certain of  Zarrilli's  claims  were            untimely and it dismissed state  agencies from the suit under            the Eleventh Amendment.  The court granted  Zarrilli leave to            amend his complaint  to state any  timely claims against  the            remaining  defendants.    Zarrilli  then   filed  an  amended            complaint.  In  an unpublished order dated  October 25, 1995,            the   court  granted  the   defendants'  motion  for  summary            judgment, dismissing the amended complaint on the ground that            the complaint did  not state  a claim for  relief and  stated            untimely claims.   The  court subsequently  denied Zarrilli's            motion to reconsider.                      The  amended  complaint asserted  only  one federal            claim  against  the  state  defendants.2   Zarrilli  has  not                                                   2            challenged the district court's ruling limiting his 42 U.S.C.              1983 claims against the state defendants to claims  arising            after August 12,  1991.  See Zarrilli  v. Weld, 875  F. Supp.                                     ___ ________     ____            68, 72 (D.  Mass. 1995).   Four of  the Environmental  Impact            Statements  listed  by Zarrilli  in  Count 1  of  the amended            complaint were published subsequent to August 12,  1991.  But            Zarrilli makes no mention  of these statements on appeal  and            thus  would appear to have  abandoned these claims.   None of            the  other allegations  in  the amended  complaint forms  the            basis for  a timely  complaint against the  state defendants.            At bottom, Zarrilli objected to the defendants' assessment of            his Bypass proposal as of November 1990 or earlier, a clearly            barred  claim.   His  reassertion of  that  claim in  letters            written to  state  defendants within  the limitations  period            does not make the claim timely.3                                               3                      Nor  has Zarrilli  challenged the  district court's            application of  the six-year limitations period  set forth in                                            ____________________               2Zarrilli  also brought pendent  state law  claims against               2            the state  defendants, but  has not  pressed those claims  on            appeal.   In addition, he  alleged that the  state defendants            had  violated his  rights by  not publishing  a draft  of the            November  1990  Final Environmental  Impact Statement/Report,            but now concedes that they had no obligation to do so.               3We  do  not  consider  his  claim  that  the  defendants'               3            fraudulent  concealment of  material  information tolled  the            limitations  period,  which  is  the subject  of  a  separate            appeal.                                         -3-            28  U.S.C.    2401(a)  for civil  actions against  the United            States, which  would only  bar claims that  accrued prior  to            August of 1988.  Indeed, the federal defendants have conceded            that the amended  complaint stated non-barred  claims against            them.   Zarrilli  asserted  that the  defendants should  have            published  a Supplemental  Environmental Impact  Statement on            his Bypass proposal as part of the 1990-91 Final Supplemental            Environmental   Impact   Statement/Report.     However,  even            assuming that  defendants had  an obligation to  evaluate his            Bypass  proposal, Zarrilli  has not  shown that,  in relevant            respects,   his   proposal    contained   "significant    new            circumstances or information"  about the environmental impact            of the Artery project or that it was a reasonable alternative            to the Central Artery  project.  Consequently, defendants had            no  obligation   to  give  the  proposal   any  more  serious            consideration   than   they   did.      See   40   C.F.R.                                                        ___            1502.9(c)(1)(ii)  (an  agency  must  prepare  a  supplemental            environmental  impact statement if there are "significant new            circumstances  or  information   relevant  to   environmental            concerns and bearing on the proposed action or its impacts");            Forty Most Asked Questions Concerning CEQ's NEPA Regulations,            46 Fed. Reg. 18026,  # 29b (1981) (requiring the  issuance of            supplemental or draft  supplemental environmental  statements            on new alternatives which are "reasonable").                                         -4-                      Zarrilli made several other complaints as well.  He            asserted  that the  1990-91 Final  Supplemental Environmental            Impact  Statement/Report was  inadequate  because it  did not            contain a "worst  case analysis."   But such  an analysis  is            only  required   when  there   are  gaps  in   the  available            information, and Zarrilli has shown no such uncertainty here.            Zarrilli   argued   that  the   1990-91   Final  Supplemental            Environmental   Impact   Statement/Report  violated   federal            regulations because  it was  not specific  enough.   But  the            applicable regulations  do not require  agencies to  evaluate            all   comments  exhaustively.     Another  acceptable  agency            response is the one the defendants chose to make -- providing            valid reasons  for why Zarrilli's proposal did  not warrant a            detailed  response.   Finally, Zarrilli  complained that  the            defendants failed to publish his full proposal in the 1990-91            Final Supplemental Environmental  Impact Statement/Report  in            violation of NEPA Reg.   1503.4(b).   However, the regulation            explicitly  permits  summaries  of  exceptionally  voluminous            comments, and Zarrilli's proposal  certainly falls into  this            category.                      Affirmed.                      ________                                         -5-
