Mattoon v. City of Pittsfield

• Decision Date: 07 May 1992
• Docket Number: No. 91-2242,91-2242
• Citation: 980 F.2d 1
• Parties: , 24 Fed.R.Serv.3d 330, 23 Envtl. L. Rep. 20,361 Kimberly MATTOON, et al., Plaintiffs, Appellants, v. CITY OF PITTSFIELD, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

980 F.2d 1

37 ERC 1471, 24 Fed.R.Serv.3d 330, 23

Envtl. L. Rep. 20,361

Kimberly MATTOON, et al., Plaintiffs, Appellants, v. CITY OF PITTSFIELD, et al., Defendants, Appellees.

No. 91-2242.

United States Court of Appeals First Circuit.

Heard May 7, 1992.

Decided Nov. 20, 1992.

W. Stanley Cooke, Pittsfield, Mass., for plaintiffs, appellants.

Richard J. O'Brien with whom David O. Burbank and Cain, Hibbard, Myers & Cook, Pittsfield, Mass., were on brief for defendant, appellee City of Pittsfield.

John C. Sikorski with whom Robinson, Donovan, Madden & Barry, P.C., Springfield, Mass., was on brief for defendants, appellees Krofta Engineering Corp., et al.

William Shields with whom Carol F. Liebman and Day, Berry & Howard, Boston, Mass., were on brief for defendant, appellee Metcalf & Eddy, Inc.

Jay S. Gregory with whom David J. Hatem and Posternak, Blankstein & Lund, Boston, Mass., were on brief for O'Brien & Gere, Inc.

Elizabeth W. Morse with whom John A. Wickstrom and Tashjian, Simsarian & Wickstrom, Worcester, Mass., were on brief for defendant, appellee Fisher, et al.

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

CYR, Circuit Judge.

Appellants, sixty-eight residents of Berkshire County, Massachusetts, who allegedly contracted giardiasis (otherwise known as "beaver fever") from drinking contaminated water supplied by the City of Pittsfield ("City") during November and December of 1985, brought suit against the City and various contractors and consultants for alleged violations of federal and state law. ¹ Summary judgment was granted in favor of all six defendants on appellants' federal claims and the court dismissed the pendent state law claims without prejudice. We affirm.

I BACKGROUND

We describe only the essential procedural background to these complex proceedings. As in any summary judgment case, we recite the relevant facts in the light most favorable to the nonmoving parties, in this case the appellants. See, e.g., Siegal v. American Honda Motor Co., 921 F.2d 15, 17 (1st Cir.1990).

In November 1985, the City reopened its Ashley Reservoir to supply area residents with drinking water while other City water facilities were undergoing construction. The Ashley Reservoir had not been in use since 1983. Due to a major malfunction in its chlorination system, the Ashley Reservoir became contaminated with the giardia lamblia pathogen. ² Other area reservoirs were affected as well. By December 11, 1985, the City Health Department had received several reports of giardiasis. On December 13, a "boil water" order was issued. By the end of December several hundred cases of giardiasis had been reported. On December 23, 1985, the Ashley Reservoir was shut down, but there were sporadic reports of giardiasis as late as 1987. A new City water filtration system was placed in operation in January 1987. Although there was evidence that particles the size of the giardia lamblia pathogen would not be removed even by the new filtration system, there was no evidence which would support an inference that any post-1985 giardiasis reports were linked to problems with the City water system.

Appellants filed their complaint in June 1988. Count I, labelled a "citizens' action" pursuant to the Safe Drinking Water Act ("SDWA"), 42 U.S.C. §§ 300f et seq., demanded equitable relief and civil penalties. Count II alleged a "public nuisance" claim under federal common law and sought compensatory damages. Count III asserted a claim for damages pursuant to 42 U.S.C. § 1983. Count IV pled a breach of warranty claim pursuant to the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301, et seq. Other counts asserted pendent common law claims under Massachusetts law.

In October 1989, following several months of discovery, a magistrate judge ordered all further interrogatories and requests for production served by November 3, 1989, and responses and objections served by December 8. Except for five "unusually elaborate" discovery motions filed by appellants, the magistrate judge ruled on all motions by February 9, 1990, and leave was granted to amend the complaint. The magistrate judge set May 23 as the deadline for summary judgment motions, ordered "non-expert discovery" to proceed, and stated that expert discovery relating to issues surviving the summary judgment proceedings would be allowed to proceed after the summary judgment proceedings were concluded. Thereafter, the deadline for summary judgment motions was extended several times.

On July 10, 1990, the magistrate judge ruled on appellants' five remaining motions to compel, fairly described as "well-meant but nightmarishly confusing and unhelpful." Most were denied without prejudice. At a status conference held on September 6, the magistrate judge extended the time for summary judgment until November 30 and stated that "plaintiffs may proceed with necessary discovery during the time set aside for briefing the motions for summary judgment." Plaintiffs were admonished about their obligations under Fed.R.Civ.P. 56(f) should they request further time to prepare their opposition to summary judgment.

Appellants were granted further time to respond to the motion for summary judgment, and oral argument was held in January 1991. Throughout the seven-month period between May 1990 (the original summary judgment motion deadline) and the January 1991 hearing, extensive non-expert discovery had proceeded. On January 7, 1991, the magistrate judge stayed all further discovery pending a ruling on the summary judgment motion. Expert discovery never took place. The magistrate judge filed a report and recommendation in July 1991, proposing that defendants be granted summary judgment on all federal claims. The district court approved the recommended decision in November 1991. See 28 U.S.C. § 636(b)(1).

Appellants challenge the order entered July 16, 1991, denying their request for further discovery pursuant to Fed.R.Civ.P. 56(f), and the grant of summary judgment on their federal claims.

II DISCUSSION

The summary judgment was predicated on the grounds that (1) all other forms of federal relief are preempted by the SDWA, (2) appellants did not comply with the SDWA notice requirements, and (3) their SDWA claims are not actionable absent an ongoing violation. Our review is de novo and we will conclude that "[s]ummary judgment [was] warranted where the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine factual dispute and the moving party was entitled to judgment as a matter of law." Siegal, 921 F.2d at 17.

A. SDWA Preemption

Appellants challenge the district court ruling that the SDWA preempts their section 1983 and common law nuisance claims. Relying on Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), the district court ruled that the enforcement scheme under the SDWA, like those under the environmental statutes at issue in Sea Clammers, ³ is "sufficiently comprehensive ... to demonstrate congressional intent to preclude the remedy of suits under § 1983," id. at 20, 101 S.Ct. at 2626, and that the SDWA as a whole is sufficiently comprehensive to preclude federal common law remedies, id. at 22, 101 S.Ct. at 2627. Although their arguments are far from clear, appellants appear to contend: first, that several of their claims stem from events not regulated by the SDWA and thus that the SDWA does not preclude relief on their federal common law nuisance claims; second, that the SDWA is sufficiently unlike the statutes at issue in Sea Clammers to call into question the district court's reliance on Sea Clammers; and third, that the court erred in concluding that appellants' formulation of a section 1983 claim could not withstand SDWA preemption.

1. Federal Common Law

The federal common law nuisance claims cannot escape preemption if the enactment of the SDWA "occupied the field [of public drinking water regulation] through the establishment of a comprehensive regulatory program supervised by an expert administrative agency." Milwaukee v. Illinois, 451 U.S. 304, 317, 101 S.Ct. 1784, 1792, 68 L.Ed.2d 114 (1981); see also Conner v. Aerovox, Inc., 730 F.2d 835, 837 (1st Cir.1984) (under same standard, FWPCA held to have preempted maritime claim), cert. denied, 470 U.S. 1050, 105 S.Ct. 1747, 84 L.Ed.2d 812 (1985). When the question is whether federal statutory or federal common law standards should control the field, we "start with the assumption" that Congress, not the courts, must decide. Id. 451 U.S. at 317-18, 101 S.Ct. at 1792-93. The establishment of a comprehensive regulatory program meeting the Milwaukee v. Illinois standard clearly indicates that Congress meant to reserve the governance of public drinking water standards to federal administrative regulation rather than to the "often vague and indeterminate nuisance concepts and maxims of equity jurisprudence." Milwaukee, 451 U.S. at 317, 101 S.Ct. at 1792.

We have little hesitation in concluding that Congress occupied the field of public drinking water regulation with its enactment of the SDWA. "The purpose of the [SDWA] is to assure that water supply systems serving the public meet minimum national standards for protection of public health." City of Evansville, Inc. v. Kentucky Liquid Recycling, 604 F.2d 1008, 1016 n. 25 (7th Cir.1979) (quoting H.R.Rep. No. 93-1185, reprinted in [1974] U.S.Code Cong. & Admin.News at 6454), cert. denied, 444 U.S. 1025, 100 S.Ct. 689, 62 L.Ed.2d 659 (1980) (emphasis added). With minor exceptions, the SDWA applies "to each public water system in each State." 42 U.S.C. § 300g. The SDWA enables the Administrator of the Environmental Protection Agency ("Administrator") to "publish maximum contaminant level goals and promulgate national primary drinking water regulations." Id. § 300g-1(b)(1). The maximum contaminant level is to "be set at the level at which no...