ELR Citation: ELR 20361
No(s). 91-2242 (1st Cir. Nov 20, 1992)

The court holds that 68 residents of Berkshire County, Massachusetts, who allegedly contracted giardiasis from contaminated drinking water supplied by the city of Pittsfield in 1985, may not proceed in a Safe Drinking Water Act (SDWA) citizen suit seeking equitable relief and civil penalties. The court first holds that the SDWA preempts the plaintiffs' federal common-law nuisance claims. Congress occupied the field of public drinking water regulation with the enactment of the SDWA. That the U.S. Environmental Protection Agency (EPA) did not regulate giardia lamblia contamination does not change the outcome, because the comprehensiveness of the legislative grant is not diminished by the Agency's discretionary decision to exercise less than the total spectrum of regulatory power with which it was vested. The court then holds that the plaintiffs' §1983 claims lack merit. Even assuming a fundamental constitutional right to safe public drinking water, a comprehensive federal statutory scheme, like the SDWA, precludes rights of action under §1983 for alleged deprivations of constitutional rights. The court also holds that summary judgment was properly granted for the defendants, because the plaintiffs produced no expert affidavits, testimony, documentation, or other evidence that could lead to a finding of an ongoing violation, which is a jurisdictional prerequisite to their SDWA claim.

Counsel for Plaintiffs/Appellants
W. Stanley Cooke
184 N. St., Pittsfield MA 01201
(413) 443-6422

Counsel for Defendants/Appellees
Richard J. O'Brien, David O. Burbank
Cain, Hibbard, Myers & Cook
66 W. St., Pittsfield MA 01201
(413) 443-4771

Carol F. Liebman
Day, Berry & Howard
260 Franklin St., 21st Fl., Boston MA 02110
(617) 345-4600

Before CYR, Circuit Judge, CAMPBELL, Senior Circuit Judge, and FUSTE,^* District Judge.