256 F.3d 36 (1st Cir. 2001), 00-2028, United States

Docket Nº:00-2028
Citation:256 F.3d 36
Case Date:July 16, 2001
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 36

256 F.3d 36 (1st Cir. 2001)

UNITED STATES, Plaintiff, Appellant,



No. 00-2028

United States Court of Appeals, First Circuit

July 16, 2001

Heard May 7, 2001

Amended July 17, 2001


[Hon. Richard G. Stearns, U.S. District Judge]

Page 37

Robert H. Oakley, Attorney, with whom Greer S. Goldman, Attorney, Brian Donohue, Attorney, Steve Keller, Attorney, Scott Bauer, Attorney, Lois J. Schiffer, Assistant Attorney General, George B. Henderson, II, Assistant United States Attorney, and Donald K. Stern, United States Attorney, were on brief, for appellant.

John M. Stevens, Jonathan M. Ettinger, Jack W. Pirozzolo, Foley, Hoag & Eliot LLP, and Nancy C. Kurtz, were on brief, for appellees.

Alexandra D. Dawson on brief for Nashua River Watershed Association, Inc., Massachusetts Audubon Society, Inc., Friends of Quabbin, Inc., Water Supply Citizens Advisory Committee, and Rutherford H. Platt, amici curiae.

Before Boudin, Chief Judge, Torruella, Circuit Judge, and Stahl, Senior Circuit Judge.

STAHL, Senior Circuit Judge.

The federal Safe Drinking Water Act (SDWA or Act) authorizes the Environmental Protection Agency (EPA) to prescribe criteria specifying when public water systems are "required" to install a filtration system. The Act also provides, however, that courts asked to issue an injunction enforcing the EPA's filtration standards "may enter . . . such judgment as protection of public health may require . . . ." This appeal requires us to resolve the apparent tension between these two provisions. Specifically, we must decide whether the SDWA requires courts to order the statutorily prescribed remedy of filtration for violations of its substantive provisions and the regulations promulgated thereunder, or, alternatively, whether courts have the authority in SDWA cases not to order such remedies in those instances where the equities are found to counsel forbearance. Suffice it to say, we are not faced with an imminent threat to the public health in this case; none has been alleged by the United States on appeal.

Page 38

Rather, this dispute mainly has to do with the operation of an EPA rule that purports to oblige public water systems to install a filtration system if they fail to meet certain regulatory standards by a prescribed deadline -- an obligation that extends into the future indefinitely, and that does not account for the present and future safety of the system's drinking water.

Based on our reading of the Act, we find that the district court acted within its discretion by declining to order that the Massachusetts Water Resources Authority (MWRA) install a filtration system. We therefore affirm its judgment.

I. Background

The facts surrounding this controversy are laid out in extensive detail in the district court's two written opinions, United States v. Mass. Water Res. Auth., 48 F.Supp.2d 65 (D. Mass. 1999) (MWRA I) (holding that district court had equitable discretion not to order filtration remedy for SDWA violation); United States v. Mass. Water Res. Auth., 97 F.Supp.2d 155 (D. Mass. 2000) (MWRA II) (declining to order filtration remedy based on equities of the case), and so we confine our recitation to those facts bearing specifically upon this appeal.

A. Regulatory Regime

In 1974, Congress, legislating in an area that had previously received scant attention under federal law, passed the Safe Drinking Water Act, Pub. L. No. 93-523, 88 Stat. 1660 (codified as amended at 42 U.S.C. §§ 300f to 300j-8 (1991 & Supp. 2000)), with the basic goal of protecting the purity of the drinking water provided by the nation's public water systems.1 To this end, the Act vests authority in the EPA to promulgate and enforce two types of water-purity standards: maximum contaminant levels (MCLs) and treatment techniques. Under the Act, the EPA is to regulate the majority of contaminants in drinking water by formulating MCLs -- numerical standards that represent the agency's expert determination as to "the level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety." Id. § 300g-1(b)(4)(A). By contrast, the EPA only may require the implementation of specific treatment techniques, consisting of engineering or design standards, in instances where the Administrator deems it infeasible, for technological or economic reasons, to ascertain an acceptable concentration level for the contaminant. Id. § 300g-1(b)(7)(A). As originally written, the SDWA did not specifically require that the EPA develop either MCLs or treatment techniques with respect to any particular contaminant. As a result, between 1974 and 1986 the EPA promulgated regulations concerning only twenty-three drinking water contaminants, and of these pollutants, all but one had previously been subject to regulations issued by the Public Health Service. James Kavanaugh, Comment, To Filter or Not to Filter: A Discussion and Analysis of the Massachusetts Filtration Conflict in the Context of the Safe Drinking Water Act, 26 B.C. Envtl. Aff. L. Rev. 809, 814 (1999).

In 1986, however, Congress amended the Act so as to require (rather than merely to authorize) the EPA to develop treatment regimes with respect to scores of additional contaminants, and to require that violations of the Act's substantive provisions

Page 39

and the rules promulgated thereunder be prosecuted by either the states or the EPA. Id. at 814-15. These amendments were prompted by the EPA's perceived laxity in issuing rules under and enforcing the SDWA, see 2 William H. Rodgers, Jr., Environmental Law, § 4.20A, at 152 (Supp. 2001) ("In making these changes Congress [was] convinced that it [could] control prosecutorial options [under the SDWA] by replacing 'mays' with 'shalls' in its enforcement instructions."), and by anecdotal evidence suggesting a rise in biological and chemical contamination of public water supplies throughout the United States.

Through these amendments, Congress also expressed a growing preference for the employment of specific treatment techniques, as opposed to the promulgation of MCLs, to solve the problem of contaminated drinking water. This policy shift occurred as the result of mounting scientific evidence demonstrating the efficacy of filtration and disinfection techniques in reducing waterborne viral and bacterial contamination. Id., § 4.20A, at 151. Reflecting this view, Congress specifically required that disinfection be employed by all public water systems to reduce the live quantities of those pathogens, except for systems specifically eligible to receive a variance from the EPA. 42 U.S.C. § 300g-1(b)(8). Congress also changed the SDWA to provide for filtration of public water systems. Id. § 300g-1(b)(7)(C)(i). But unlike the disinfection mandate, filtration was not directly imposed upon all public water systems; rather, Congress provided that the EPA "shall propose and promulgate . . . criteria under which filtration . . . is required as a treatment technique for public water systems supplied by surface water sources." Id.

On June 29, 1989, pursuant to this statutory command, the EPA promulgated the Surface Water Treatment Rule (SWTR or Rule), 40 C.F.R. §§ 141.70-.73. The SWTR focuses on public systems that draw their water in some measure from above-ground sources. It seeks to reduce the risk of illness from waterborne pathogens to one yearly occurrence per 10,000 consumers of water from covered public systems. Drinking Water; National Primary Drinking Water Regulations; Filtration, Disinfection; Turbidity, Giardia lamblia, Viruses, Legionella, and Heterotrophic Bacteria, 54 Fed. Reg. 27,486, 27,490 (June 29, 1989) (codified at 40 C.F.R. pts. 141 and 142). Specifically, the Rule requires that all public systems achieve a three-log (99.9 percent) reduction in the Giardia lamblia parasite and a four-log (99.99 percent) reduction in viral contamination, 40 C.F.R. § 141.70(a); establishes a mandatory disinfection requirement for all systems, subject to the granting of variances by the EPA, id. § 141.72; specifies the standards according to which all filtration systems must be constructed, id. § 141.73; and sets out eleven "avoidance criteria" for levels of certain waterborne contaminants that all public water systems hoping to forego filtration must satisfy, id. §§ 141.71(a)-(b).2 On December 16, 1998, in response to an additional amendment to the SDWA passed in 1996, see 42 U.S.C. § 300g-1(b)(2)(C) (Supp. 2000), the EPA promulgated the Interim Enhanced Surface Water Treatment Rule (IESWTR), 40 C.F.R. §§ 141.170-.173, which requires that public water systems implement treatment techniques with respect to the protozoan Cryptosporidium larvum, whose

Page 40

presence in public water systems has risen in the past two decades and which has been demonstrated to cause significant health problems, particularly for those individuals with weakened immune systems. This Rule, whose requirements must be met by public water systems by the end of 2001, requires a two-log (99 percent) reduction in Cryptosporidium by all water systems that employ filtration, and an extension of watershed controls to cover Cryptosporidium for all unfiltered water systems. Id. § 141.173(b).

The filtration mandate in the SWTR is written in unequivocal -- and, in the context of federal regulations, unusually broad -- terms. Tracking the pertinent deadlines embodied in the Act, the Rule requires that public water systems not meeting all of the avoidance criteria by December 30, 1991, "must provide treatment consisting of both disinfection . . . and filtration" by...

To continue reading