U.S. v. Massachusetts Water Resources Authority, Civil Action No. 98-10267-RGS.
| Decision Date | 03 May 1999 |
| Docket Number | Civil Action No. 98-10267-RGS. |
| Parties | UNITED STATES of America v. MASSACHUSETTS WATER RESOURCES AUTHORITY, and Metropolitan District Commission |
| Court | U.S. District Court — District of Massachusetts |
George B. Henderson, United States Attorney's Office, Boston, MA, for plaintiff.
John M. Stevens, Jonathan M. Ettinger, Monica E. Conyngham, Foley, Hoag & Eliot, Boston, MA, for defendant Massachusetts Water Resources Authority.
Edward J. DeAngelo, Douglas Wilkins, Attorney General's Office, Boston, MA, for defendant Dept. of Metropolitan District Commission.
Alexandra Dawson, Hadley, MA, for defendants Nashua River Watershed Assoc., Massachusetts Audubon Society, Friends of Quabbin, Inc., Water Supply Citizens Advisory Committee.
MEMORANDUM AND ORDER ON UNITED STATES' MOTION FOR PARTIAL SUMMARY JUDGMENT
On February 12, 1998, the United States, on behalf of the United States Environmental Protection Agency ("EPA"), brought this enforcement action against the Massachusetts Water Resources Authority ("MWRA") and the Metropolitan District Commission ("MDC")1, alleging continuing violations of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. §§ 300f, et seq., and the EPA's Surface Water Treatment Rule ("SWTR"), 40 C.F.R. Part 141. The United States seeks injunctive relief in the form of an order requiring the MWRA to construct a filtration plant to treat water that it sources from the Wachusett Reservoir to supply customers in the metropolitan Boston area.
The MWRA initially maintained that because the Massachusetts Department of Environmental Protection ("DEP"), the primary agency responsible for enforcement of the SWTR regulations, had determined that it was in compliance with the SWTR's avoidance criteria, it could not be compelled by the EPA to filter its water. The MWRA would prefer to treat its water with an ozonation method which, with other improvements in its system, the MWRA regards as a superior substitute for filtration. The MWRA concedes that subsequent to the DEP's determination (and the filing of its brief), it fell out of compliance with the avoidance criteria. From the government's perspective, whether the MWRA was out of compliance with the criteria on December 30, 1991 (the date mandated by the SWTR), or after November 13, 1998 (the date of the DEP's determination), is immaterial because the SWTR admits of only one remedy, filtration. The MWRA takes the position that because the SDWA, 42 U.S.C. § 300g-3(b), authorizes a district court to enforce compliance with the SWTR by entering "such judgment as protection of public health may require," the court's power to fashion an equitable remedy for an SWTR violation is broader than the scope of the EPA's enforcement powers, and is therefore not limited to ordering filtration.
The SDWA, passed by Congress in 1974, charges the EPA with overall responsibility for protecting the nation's public water supply. Congress directed the EPA to promulgate maximum contaminant levels (MCLs) for waterborne pathogens, or, if that was not feasible for economic or technological reasons, to mandate treatment methods. 42 U.S.C. §§ 300f(1)(C); 300g-1(a); 300g-1(7)(A). A 1986 amendment to the SDWA reflected Congress's judgment that filtration was the superior extant technology for removing bacterial and viral contaminants from water. See 42 U.S.C. § 300(g)-1(b)(7)(C)(i) ().2 On June 29, 1989, the EPA promulgated drinking water regulations, collectively referred to as the Surface Water Treatment Rule (SWTR), which apply to all public water systems using surface water or ground water sources influenced by surface water. See 40 C.F.R. § 141.70 et seq. The EPA concluded that it was not feasible to establish MCLs for Giardia lamblia, viruses, heterotrophic plate count bacteria, and Legionella, the principal contaminants affecting municipal water supplies. Consequently, the SWTR mandates filtration treatment techniques, where required, to achieve:
(1) at least 99.9 percent (3-log) removal and/or inactivation of Giardia lamblia cysts between a point where the raw water is not subject to recontamination by surface water runoff and a point downstream before or at the first customer; and
(2) at least 99.99 percent (4-log) removal and/or inactivation of viruses between a point where the raw water is not subject to recontamination by surface water runoff and a point downstream before or at the first customer.
The SWTR was intended to be "self-implementing" in the sense that it required non-compliant water systems to install treatment facilities by June 29, 1993, unless by December 30, 1991, a water system could demonstrate that it met the avoidance criteria set out at 40 C.F.R. § 141.71(a) and (b). Public water systems that met the avoidance criteria but later fell out of compliance were given eighteen months from the date of noncompliance to begin filtration. Id. § 141.73. The SWTR makes no provision for reopening a filtration determination once made. Although the deadlines imposed by the SWTR are couched in categorical terms,3 an internal guidance issued by the EPA in 1992 gave state enforcement agencies discretion to defer a final filtration determination if it appeared that a water system through intermediate measures could bring itself into compliance with the avoidance criteria.4
While the EPA was given the lead role in insuring the safety of public drinking water, Congress intended that the States also participate in the enforcement process. Thus, States whose drinking water regulations are at least as strict as those prescribed by the EPA are given "primary enforcement responsibility" for the integrity of public water systems within their jurisdiction. 42 U.S.C. § 300g-2(a). The EPA, however, was authorized to bring an enforcement action if, after giving the appropriate State agency and the violator thirty days notice, the State failed to bring an action of its own. 42 U.S.C. § 300g-3(a)(1)(B). The EPA granted primary enforcement responsibility to the DEP on June 28, 1993. 58 Fed.Reg. 34,583 (1993).5
The DEP's drinking water regulations, like the SWTR, provide that the filtration requirement is triggered by either a state filtration determination or by a failure of a water system to meet one or more of the filtration avoidance criteria. 310 CMR 22.20A(2); 310 CMR 22.20A(4). The DEP regulations specifically preclude further administrative review once a filtration determination is made.
A determination following the hearing that a supplier of water must provide filtration will not be subject to further review; a determination that a supplier of water meets all of the criteria for avoiding filtration will be subject to the Department's on-going review. In the event the Department finds that a supplier of water no longer meets any one of the criteria for avoiding filtration, the Department will issue a determination in writing that will be subject to review at a public hearing in accordance with 310 CMR 22.20A(7).
The material undisputed facts are drawn from the parties' First Factual Stipulation, plaintiff's Statement of Undisputed Facts (and defendants' responsive commentary), plaintiff's Submission of New Information, and certain facts admitted during oral argument.
The MWRA and the MDC own and operate the collection, treatment, distribution, and storage facilities that supply drinking water to some forty municipalities in the metropolitan Boston area. Water is transferred from the MWRA's main storage facility, the Quabbin Reservoir in central Massachusetts, through the Quabbin Aqueduct to the Wachusett Reservoir in and around Boylston. The Wachusett Reservoir is also fed by tributary rivers and streams comprising the Wachusett watershed, a 108 square mile drainage basin. At the eastern end of the Wachusett Reservoir, water enters the Cosgrove Tunnel at the Cosgrove Intake. The Cosgrove Tunnel feeds the Hultman Aqueduct which branches at Framingham in two directions. The smaller branch, the Weston Aqueduct, empties into the Weston Reservoir in Weston. (The Weston Aqueduct and the Weston Reservoir have been off-line for several years.) The main branch continues to the Norumbega Reservoir, also located in Weston. A portion of the water delivered by the Hultman Aqueduct replenishes the Norumbega Reservoir from which the MWRA draws water to meet periods of peak demand. The remainder flows through various connecting tunnels to metropolitan Boston customers.6 Water is treated with chlorine as it leaves the Wachusett Reservoir, and again as it leaves the Norumbega Reservoir. The water is also adjusted for pH content at a corrosion control facility in Marlborough.7
In 1991, after reviewing a 1989 consultant's report and testing various treatment alternatives, the MWRA's Board of Directors concluded that the MWRA would be unable to meet the filtration avoidance criteria. Consequently, it did not seek an avoidance determination from the DEP prior to December 30, 1991 (the SWTR cut-off date). On January 24, 1992, the DEP ordered the MWRA to provide filtration and disinfection treatment for Wachusett Reservoir source water by June 30, 1993.
Following the DEP determination, the DEP and the MWRA began negotiating an Administrative Consent Order ("ACO") to achieve compliance with the SWTR. The final version of the ACO laid out a "dual track" compliance program. The MWRA and the MDC were to prepare a watershed protection plan for the Wachusett Reservoir basin and implement other measures intended to bring the MWRA's system within the filtration avoidance criteria. Consistent with this objective, the ACO included a "reopener" clause permitting the MWRA to seek a redetermination of filtration avoidance on or before August 3, 1998. The MWRA was to simultaneously take...
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