U.S. v. Massachusetts Water Resources Authority

• Citation: 97 F.Supp.2d 155
• Decision Date: 05 May 2000
• Docket Number: No. 98CV10267.,98CV10267.
• Parties: UNITED STATES of America v. MASSACHUSETTS WATER RESOURCES AUTHORITY, and Metropolitan District Commission.
• Court: U.S. District Court — District of Massachusetts

97 F.Supp.2d 155

UNITED STATES of America v. MASSACHUSETTS WATER RESOURCES AUTHORITY, and Metropolitan District Commission.

No. 98CV10267.

United States District Court, D. Massachusetts.

May 5, 2000.

Brian G. Donahue, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, George B. Henderson, U.S. Attorney's Office, Boston, MA, for U.S.

John M. Stevens, Jonathan M. Ettinger, Monica E. Conyngham, Benjamin J. Ericson, Foley, Hoag & Eliot, Boston, MA, for Massachusetts Water Resources Authority.

Edward J. DeAngelo, Attorney General's Office, Douglas Wilkins, Attorney General's Office, Adam Simms, Assistant Attorney General, Boston, MA, for Dept. of Metro. Dist. Com'n.

Alexandra Dawson, Hadley, MA, for Nashua River Watershed Ass'n, Massachusetts Audubon Society, Friends of Quabbin, Inc., Water Supply Citizens Advisory Committee.

MEMORANDUM AND ORDER ON A MOTION BY THE UNITED STATES FOR AN ORDER OF INJUNCTIVE RELIEF

STEARNS, District Judge.

On February 12, 1998, the United States, on behalf of the federal Environmental Protection Agency ("EPA"), brought this enforcement action against the Massachusetts Water Resources Authority ("MWRA") and the Metropolitan District Commission ("MDC")¹, alleging violations of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. §§ 300f, et seq., and 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 build a filtration plant to treat the water that it draws from the Wachusett Reservoir to supply 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, had determined that it was in compliance with the SWTR's filtration avoidance criteria, it could not be compelled by the EPA to filter its water. The MWRA proposed instead to treat its water with ozone, which coupled with aggressive watershed protection and an accelerated program to replace aging pipes, the MWRA believed to be a more cost-efficient alternative to filtration. The MWRA conceded that subsequent to the DEP's determination (and after the filing of its initial brief), it fell, albeit narrowly, out of compliance with the fecal coliform avoidance criterion (one of the eleven filtration avoidance criteria specified by the SWTR). The EPA immediately renewed its request for a filtration order, arguing that the SWTR admits only a filtration remedy for a compliance violation, no matter what its magnitude. The MWRA took 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 a remedy for a compliance violation is more flexible than the enforcement mandate conferred by Congress on the EPA.

In a written opinion, the court agreed with the MWRA that "the SDWA does not deprive a court of discretion in fashioning remedies for a violation of the SWTR." See United States v. MWRA, 48 F.Supp.2d 65, 72 (D.Mass.1999). After the Court of Appeals rejected the EPA's petition for interlocutory review of the court's determination, twenty-four days of evidentiary hearings were held to consider the EPA's request for injunctive relief. Twenty-three witnesses, mostly experts, testified and 524 exhibits were entered in evidence. Final arguments were held on April 14, 2000. The court agreed to the parties' request that it expedite its decision for release on May 5, 2000, so that there would be no delay in the construction of the planned new treatment facility.

This self-imposed deadline has aspects both good and bad. On the positive side, this opinion is much shorter than it would otherwise have been. There is, however, a lingering fear, that in reviewing the mass of testimony and exhibits offered during the trial, I may have missed something truly important. As a prophylaxis, I have used the very thorough suggested findings submitted by the parties as a cross-check on my evaluation of the evidence. I have read the transcripts of the witness testimony and, to the extent humanly possibly in so short a time, the tens of thousand pages of trial exhibits.

What follows is not a conventional finding of facts. I have not selected one version of a contested fact over another based on any assignment of the burden of proof. Burdens of proof, while they work well in resolving most legal disputes, do not easily lend themselves to the resolution of scientific controversies. Science, by and large, rejects binary decision making in favor of a more nuanced quest for understanding. While a scientist might testify that a supposed fact has been proven to be false, the same scientist, when asked about conflicting data, will say only that an asserted fact has not been disproven or "falsified," and could therefore "possibly" be true. In this decision, I relate those facts, including those that are in dispute, that fall within what I consider to be a reasonable range of possibility, indicating where appropriate the facts that I believe were shown to enjoy the greater empirical support or reflected the thinking of witnesses whom I found especially credible.

I will incorporate the rulings of law made in United States v. MWRA, supra. No subsequent decision of a higher court has caused me to doubt their essential correctness.²

While there is no doubt that Congress, in enacting a statute, "may intervene and guide or control the exercise of the courts' discretion," its decision to do so is not to be "lightly assume[d]," especially in the absence of a clear legislative command. Weinberger v. Romero-Barcelo, 456 U.S. 305, 313, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982). "Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied. `The great principles of equity, securing complete justice, should not be yielded to light inferences or doubtful construction.'" Id., quoting from Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946).

The most explicit Congressional statement clarifying the intent of § 300g-3(b) [providing for judicial review of regulatory orders of the EPA Administrator] appears in the House Conference Committee Report on the 1974 enactment of the SDWA. The Conference Report states that:

[t]he Committee intends that courts which are considering remedies in enforcement actions under this section are not to apply traditional balancing principles used by equity courts. Rather they are directed to give utmost weight to the Committee's paramount objective of providing maximum feasible protection of the public health.

H.R.Conf. Rep. No. 93-1185, at 23 (1974), 1974 U.S.C.C.A.N. 6454.

In emphasizing its overriding goal of protecting the public health, Congress did not, however, say that a court was to limit itself to mechanical enforcement of EPA compliance orders. Had it been Congress's intent to strip the courts of their equitable powers, one would think that it would have drafted § 300g-3(b) to say so, for example, by imposing the same narrow mandate on the courts that it imposed on the EPA in § 300g-1(b)(7)(C)(i). Instead Congress used language descriptive of the traditional powers of a court of chancery. Why Congress might not have wanted to eliminate judicial discretion in ordering compliance with the SDWA is not difficult to imagine. Technology evolves more rapidly than typically does legislation, and there is an inherent danger in attempting to legislate today's science as the foreordained solution for tomorrow's problems. Congress may also have been concerned that an overly rigid application of the filtration mandate by the EPA might result in a wasteful expenditure of finite public funds to correct de minimis problems, or even exacerbate problems that the legislators had not foreseen. Cf. United States v. City of San Diego, 1994 WL 521216, at 8 (S.D.Cal.1994); 33 U.S.C. § 1311(j)(5). In sum, while the issue is by no means open and shut, I agree with the MWRA that the SDWA does not deprive a court of discretion in fashioning remedies for a violation of the SWTR.

48 F.Supp.2d at 71-72.

The opinion will proceed as follows. I begin with a brief history of Boston's water supply, followed by a discourse on the pathogenic threats that influence contemporary thinking about the safety of the nation's drinking water. I then describe the legal and regulatory framework intended by Congress and the EPA to insure the health of public water supplies. I follow with a discussion of the MWRA distribution system and the watersheds from which it draws its water. Finally, I assess the current quality of MWRA water and the differing approaches of the MWRA and the EPA to the issue of preserving its safety.

I. HISTORICAL BACKGROUND

Colonial Boston drew its water from underground wells and rain-fed cisterns. Ex. 291, at 3-2. By the end of the eighteenth century, consumption began to outstrip the increasingly contaminated supply of natural water. Fern L. Nesson, Great Waters: A History of Boston's Water Supply 112 (1983) ("Nesson"). In 1796, a privately chartered company, the Aqueduct Corporation, sought to profit from the demand for clean water by building a network of gravity-fed, underground wooden pipes connecting Boston to Jamaica Pond. The company's efforts, however, did little to slake a rapacious public thirst. Ex. 291, at 3-1.

Public officials ineffectually debated Boston's water problem for several decades without achieving a consensus. In 1845, a frustrated Boston Water Committee turned to John Jervis, the engineer who built New York City's Croton aqueducts, for advice.³ Ex. 291, at 3-1. Jervis recommended that an aqueduct be built to carry water from Long Pond (Lake Cochituate)...