ELR Citation: ELR 20513
No(s). 89-30048-F (D. Mass. Aug 7, 1991)

The court holds that a Massachusetts city violated federal drinking water standards for turbidity, coliform bacteria, and monitoring under the Safe Drinking Water Act (SDWA), and adopts a federal magistrate judge's report recommending summary judgment for the government. The court first holds that the magistrate judge properly applied the standard for summary judgment, because the city's pleadings, affidavits, and other documents did not create factual disputes concerning the levels of contamination in the city's drinking water or its alleged monitoring violations.

The court next holds that the magistrate judge correctly interpreted the federal drinking water regulations as requiring that samples taken at the points of entry determine compliance with the federal standards. The express language of the applicable regulations direct that the water samples must be measured at one or more representative entry points, and that the measurements will determine compliance with the maximum allowable turbidity standards. The court notes that each of the city's three water sources serve different water users, and that averaging measurements at the three sources, as the city suggests, would allow the city to supply water with excess turbidity to many users, as long as the average turbidity was below the federal standard.

The court holds that unrefuted evidence offered by the government establishes violation of the federal turbidity standard, which is an unambiguous regulation. The court holds that it is the city's burden to show that it is entitled to an exemption allowing it to comply with a lower standard. The language of the regulation puts this burden on the city. The court holds that the city is subject to the higher turbidity standard, because it has not met this burden.

The court next holds that a state action against the city for drinking violations does not preclude the federal action, because the state did not take any action within 30 days after the Environmental Protection Agency (EPA) notified the state of the city's federal violations, as required by SDWA §1414, and the state action is not an appropriate enforcement action within the meaning of §1414. The court next holds that the city violated federal coliform bacteria standards. The figures used by EPA in three different methods of calculating the amount of coliform bacteria indicate violations of these standards, and the city has offered no calculations or evidence to the contrary. Finally, the court holds that the city violated the coliform bacteria monitoring requirements of the SDWA and federal regulations. The city does not dispute that it violated the regulations, and SDWA §§1401 and 1414(b) provide EPA with the authority to enact monitoring requirements and to seek civil penalties against water systems that fail to comply.

Counsel for Plaintiff
George B. Henderson, Ass't U.S. Attorney
1107 John W. McCormack Federal Bldg., U.S. P.O. & Courthouse, Boston MA 02109
(617) 223-9400

Counsel for Defendant
Robert C. Ware
Freedman, DeRosa & Rondeau
85 Main St., Ste. 600, North Adams MA 01247
(413) 664-1073