US v. City of North Adams, MA, Civ. A. No. 89-30048-F.

• Decision Date: 07 August 1991
• Docket Number: Civ. A. No. 89-30048-F.
• Citation: 777 F. Supp. 61
• Parties: UNITED STATES of America, Plaintiff, v. CITY OF NORTH ADAMS, MA, Defendant.
• Court: U.S. District Court — District of Massachusetts

777 F. Supp. 61

UNITED STATES of America, Plaintiff, v. CITY OF NORTH ADAMS, MA, Defendant.

Civ. A. No. 89-30048-F.

United States District Court, D. Massachusetts.

August 7, 1991.

COPYRIGHT MATERIAL OMITTED

George Bunsen Henderson, U.S. Attorney's Office, Boston, Mass., for plaintiff.

Robert C. Ware, Freedman, DeRosa & Rondeau, North Adams, Mass., for defendant.

MEMORANDUM AND ORDER

FREEDMAN, Chief Judge.

I. INTRODUCTION

Before the Court are objections by defendant City of North Adams ("North Adams" or "the City") to recommendations of Magistrate Judge Michael A. Ponsor ("Magistrate Judge"). The Magistrate Judge recommended that the Court grant the government's motion for partial summary judgment, and deny the City's motion for summary judgment. United States of America v. City of North Adams, Massachusetts, Civ. Action No. 89-30048-F, Report and Recommendation (March 28, 1991) ("Magistrate Judge's Report"). The government opposes North Adams' objections, and urges the Court to adopt the Magistrate Judge's recommendations. For the reasons stated below, the Court adopts the Magistrate Judge's Report in its entirety.

II. STANDARD OF REVIEW

Because the motions at issue are for summary judgment, the Magistrate Judge's recommendations are subject to de novo review by the district court. See 28 U.S.C. § 636(b)(1). Section 636(b)(1) provides that "a judge of the district court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." In making a de novo review, the district court must evaluate the record of the proceeding below with sufficient detail to make its own determination with regard to each disputed finding. United States v. Raddatz, 447 U.S. 667, 675, 100 S.Ct. 2406, 2412, 65 L.Ed.2d 424 (1980), citing H.R.Rep. No. 94-1609 at 3 (1976), U.S.Code Cong. & Admin.News 1976, at 6162-6163; Gioiosa v. United States, 684 F.2d 176, 178 (1st Cir. 1982) (collecting cases). However, the district court need not hold an additional hearing or consider new testimony. Raddatz, 447 U.S. at 674-76, 100 S.Ct. at 2411-2413.

III. DISCUSSION

A. Prior Proceedings

In this action, the United States of America alleges that North Adams has violated the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq. ("SDWA"), and regulations promulgated under the SDWA by the Administrator of the Environmental Protection Agency ("EPA"). The complaint charges that the amount of contaminants in the drinking water supplied by North Adams exceeded and continues to exceed the maximum contaminant levels allowed under the relevant federal regulations. 40 C.F.R. §§ 141.13 and 141.14. The complaint further alleges that North Adams failed to monitor the drinking water that it supplied to North Adams residents. 40 C.F.R. § 141.21. The government seeks an injunction to compel North Adams' compliance with federal drinking water standards, and an award of civil penalties.

The parties have not objected to the Magistrate Judge's thorough synopsis of the procedural history of the case; therefore, the Court adopts the Magistrate Judge's summary as contained in his Report and Recommendation as follows.

The United States filed the instant complaint on March 6, 1989. At that time, a parallel proceeding brought by the Massachusetts Department of Environmental Quality Engineering ("the DEQE") against North Adams had been pending in state court for almost two years. Because questions concerning the relative timing and efficacy of these actions are intertwined with the merits of defendant's motion for summary judgment, the court will set forth the salient procedural facts regarding both lawsuits in some detail.¹

On April 29, 1987 the DEQE filed a civil action against the City of North Adams in Superior Court, Suffolk County, Massachusetts, captioned Department of Environmental Quality Engineering v. City of North Adams and Genesio Breda, Docket No. 87-2322. Pursuant to Mass.Gen.Laws ch. 111, § 160, codified at 310 C.M.R. §§ 22.00 et seq., the DEQE's complaint alleged violations of the state's drinking water statute. More specifically, the state charged the City with repeated violations of the state turbidity MCL maximum contaminant levels regulation, 310 C.M.R. 22.08(1). This state primary drinking water standard is substantially similar to the federal MCL regulating turbidity levels that is at issue in this federal enforcement action.

However, the parallel state court suit differs from the federal suit in several key respects. First, the state's complaint did not contain a claim for violations of the state's coliform bacteria MCL regulation, 310 C.M.R. 22.05(5). Nor did the DEQE seek injunctive relief for an "imminent and substantial endangerment" of the population served by the North Adams public water system, as the Government does in this case.

Indeed, the only relief initially sought by the state consisted of an injunction ordering the City to construct remedial water filtration facilities. Significantly, no interim relief was requested by the DEQE to protect North Adams consumers prior to the construction of an adequate water filtration plant.

Discovery ensued during 1987, after which the Commonwealth filed an amended complaint alleging continuing turbidity violations. DEQE then moved for summary judgment with respect to liability on both the pre- and post-September 23, 1987 violations. None of these motions had been ruled upon when the Government filed this complaint in United States District Court in March 1989.

Later that month, the City invoked the Colorado River abstention doctrine in an effort to persuade this court to exercise its discretionary power to dismiss or stay the federal enforcement action in light of the parallel action in state court. In its Report and Recommendation of January 17, 1990, this court urged the district court to decline to do so, concluding that "both the factual record and the procedural history of the pending state-court litigation" created substantial doubt that the state suit could pass muster as an "`adequate vehicle for the complete and prompt' resolution of the issues raised by the parallel federal action." Report and Recommendation ("R & R") at 14 United States v. City of North Adams, Massachusetts, Civ.Action No. 89-30048-F, Report and Recommendation at 14 (January 17, 1990).

The following factors were among those which weighed most heavily in the court's determination that neither a dismissal nor a stay was appropriate: 1) the enlarged scope of liability as well as the more comprehensive nature of the relief at issue in the federal action, R & R at 5-6 and 7-8; 2) the fact that none of the pending state court motions had been ruled upon as late as September 13, 1989, the date on which the parties to the federal dispute engaged in oral argument on Defendant's Motion to Dismiss or Stay, id. at 6; and 3) the fact that settlement negotiations between the City and the Commonwealth regarding the state court action, conducted from December 1987 through May 1988, had not produced any judicially enforceable results. Id. at 6-7.²

On June 7, 1990 Chief Judge Freedman issued a Memorandum and Order adopting the Report and Recommendation in its entirety and denying defendant's motion to dismiss or stay this enforcement action.

Although the City and the DEQE finally arrived at a negotiated settlement of the state civil action in August 1990, a consent decree embodying this settlement was not docketed in state court until after defendant filed its motion for summary judgment here. See Ware Aff. at ¶ 6 and Order dated October 11, 1990, attached as an exhibit to Supplement to Defendant's Motion for Summary Judgment (Docket # 30).

This consent decree requires the City to construct a water filtration plant capable of beginning operation on January 31, 1994. Order at ¶ 3. The decree also provides that the City must notify the DEQE and the Attorney General in the event of any delays, id. at ¶ 4, but that extension of deadlines may be obtained by the written stipulation of the parties. Id. Should the City fail to meet the terms of the decree, the Order also provides for a sliding scale of penalties, based upon the length of the period of non-compliance, which ranges from a minimum of $25 per day to a maximum of $100 per day.³ Id. at ¶ 6. Significantly, the decree also provides that the Commonwealth will not seek penalties for the past and future violations alleged in its complaint as long as the City remains in compliance with the terms of the order. Id. at ¶ 8.

Magistrate Judge's Report at 2-6.

Subsequent to execution of the consent decree in Superior Court, the parties filed cross-motions for summary judgment in the federal case. The City moves for summary judgment on the entire complaint, whereas the government seeks partial summary judgment. That is, the government seeks judgment on its claims that the City has violated the SDWA because the City's water has contained amounts of turbidity and coliform bacteria in excess of those allowed by federal regulations. The government further avers that the City failed to monitor the water as required under the regulations. Upon consideration of the motions, the Magistrate Judge advised this Court to deny the City's motion and grant the government's motion. Dissatisfied with the Magistrate Judge's recommendation, the City objected pursuant to 28 U.S.C. § 636(b)(1).

B. North Adams' Objections

The City has made twenty-seven specific objections to the Magistrate Judge's Report. Defendant City of North Adams' Objection to the Magistrate's Report and Recommendation at 1-5 (April 12, 1991) ("Defendant's Objections"). While the Court finds none of the objections persuasive, the Court finds that, when considered as a whole, the objections raise four general points that require...