14 ELR 20094 | Environmental Law Reporter | copyright © 1984 | All rights reserved


United States v. Tenny

No. 80-0647 (M.D. Pa. July 27, 1983)

The court finds that defendant operators of a community water supply system have violated the Safe Drinking Water Act by failing to conduct required tests of the water supplied, to report to the Environmental Protection Agency the results of any tests that have been conducted, and to give notice to the Agency and the users of the system of the above violations. Finding defendants' violations willful, the court imposes a civil penalty of $ 25,000. In addition, the court grants injunctive relief directing defendants to comply with the testing and other requirements of the Act and the pertinent regulations.

Counsel for Plaintiff
David Shipman, Ass't U.S. Attorney
Fed. Bldg., P.O. Box 793, Harrisburg PA 17108
(717) 782-4482

William D. Evans Jr., Rosanne Mayer
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4170

Counsel for Defendants (Pro Se)
William B. Tenny
2309 Market St., Camp Hill PA 17011
(717) 737-1600

[14 ELR 20094]

Caldwell, J.:

Order and Judgment

This cause came on for trial and the Court, having heard the evidence and statement of counsel, finds the facts and states the conclusions of law as follows:

Findings of Facts and Conclusion of Law

1. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1345 and 1355 and Section 1414(b) of the Safe Drinking Water Act, 42 U.S.C. § 300g-3(b). This Court has judicial jurisdiction over Defendants since they reside in or do business in this judicial district.

2. Defendants have owned and/or operated a public drinking water system located in the Ridgeland residential development subdivision in Hampden Township, Cumberland County, Pennsylvania (hereafter referred to as "Ridgeland drinking water system").

3. The Ridgeland drinking water system pipes water to approximately 75 homes and serves more than 25 people, but less than 1001 people, on a year-round basis.

4. Section 1401(4) of the Safe Water Act, 42 U.S.C. § 300F-(4), defines a "public water system" as a system that supplies piped domestic drinking water with at least 15 service connections or which regularly serves 25 individuals.

5. Section 1412(a) of the Safe Drinking Water Act, 42 U.S.C. 300g-(1), requires the Administrator of the U.S. Environmental Protection Agency, hereinafter referred to as the "EPA," to promulgate national interim primary drinking water regulations for the protection of the public health, which are applicable to water systems.

6. On December 24, 1975 and July 9, 1976, the Administrator of the U.S. Environmental Protection Agency promulgated, pursuant to the Safe Drinking Water Act, 42 U.S.C. 300f-g(10), national interim primary drinking water regulations for the protection of the public health at 40 Fed. Reg. 59570 and 41 Fed. Reg. 28404, now codified at 40 C.F.R. part 141.

7. The national interim primary drinking water regulations, 40 C.F.R. 141.2(e), define a "public water system" as a "system [14 ELR 20095] for the provision of piped water for human consumption, if such system has at least fifteen service connections or regularly serves an average of at least twenty-five individuals daily at least 60 days of the year."

8. The national interim primary drinking water regulations, 40 C.F.R. 141.2(e)(1), define a "community water system" as a "public water system" which "serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents."

9. Section 1401(5) of the Safe Drinking Water Act, 42 U.S.C. § 300f(5), and the national interim primary drinking water regulations, 40 C.F.R. 141.2(i), define "supplier of water" as "any person who owns or operates a public water system."

10. The national interim primary drinking water regulations, 40 C.F.R. 141.11, 141.12, and 141.14, provide maximum contaminant levels for organic and inorganic chemicals and for coliform applicable to community water systems.

11. The national interim primary drinking water regulations, 40 C.F.R. 141.21(b), require suppliers of water for community water systems serving populations of 25-1000 persons to sample and analyze for coliform bacteria at least once per month.

12. The national interim primary drinking water regulations, 40 C.F.R. 141.23(a)(2), require suppliers of water for community water systems using only ground water sources to sample and analyze for inorganic chemicals by no later than June 24, 1979.

13. The national interim primary drinking water regulations, 40 C.F.R. 141.31(a), require suppliers of water for community water systems to report the results of any tests required by the regulations to the EPA within forty (40) days of the testing, where there is no EPA approved state program.

14. The national interim primary drinking water regulations, 40 C.F.R. 141.31(b), require suppliers of water for community water systems to report any failure on the part of such suppliers to comply with a provision of the regulations, including failure to perform the sampling required by the regulations, to the EPA within 48 hours, where there is no EPA approved state program.

15. The Commonwealth of Pennsylvania at no time relevant herein had a safe drinking water program approved by the EPA.

16. The national interim primary drinking water regulations, 40 C.F.R. 141.32(a), require suppliers of water for community water systems to give the persons served by the water system written notice of any failure to comply with its requirements, including sampling and analysis requirements.

17. The sampling and analysis requirements of the national interim primary drinking water regulations are important to the protection of the public health because they provide a basis for EPA and the public to verify whether the owners and/or operators of the public drinking water systems are in compliance with the maximum contaminant levels specified in said regulations.

18. The notice requirements of the national interim primary drinking water regulations are important to the protection of the public health because they alert EPA and the users of drinking water of the failure to sample and to report test results of sampling so that appropriate action can be taken to protect the public health.

19. Section 1414(b) of the Safe Drinking Water Act, 42 U.S.C. § 300g-3(b) provides in pertinent part as follows:

(b) The Administrator may bring a civil action in the appropriate United States district court to require compliance with a national primary drinking water regulation or with any schedule or other requirement imposed pursuant to a variance or exemption granted under Section 300g-4 or 300g-5 of this title if —

(1) authorized under paragraph (1) or (2) of this section

[whenever the Administrator finds, during a period in which the State does not have primary enforcement responsibility, that a public water system violates any national primary drinking water regulations]

The court may enter, in an action brought under this subsection, such judgment as protection of public health may require, taking into consideration the time necessary to comply and the availability of alternative water supplies; and, if the court determines that there has been a willful violationof the regulation or schedule or other requirement with respect to which the action was brought, the court may, taking into account the seriousness of the violation, the population at risk, and other appropriate factors, impose on the violator a civil penalty of not to exceed $ 5,000 for each day in which such violation occurs.

20. Defendants are a "supplier of water" for the Ridgeland drinking water system, as that term is defined in the Safe Drinking Water Act and the national interim primary drinking water regulations.

21. Ridgeland drinking water system is a "public water system" under Section 1401(4) of the Safe Drinking Water Act, 42 U.S.C. § 300f-(4), and is a "community water system" as defined in the national interim primary drinking water regulations, 40 C.F.R. 141.2(e)(i).

22. The Ridgeland drinking water system uses only ground water sources.

23. Defendants, as owners and/or operators of said water system, are in violation of the following requirements of the national interim primary drinking water regulations set forth above:

a. Defendants have violated 40 C.F.R. 141.21(b) by failing to sample and analyze for coliform bacteria on a monthly basis from the effective date of the regulation, June 24, 1977, to date.

b. Defendants have violated 40 C.F.R. 141.23(a)(2) by failing to sample for inorganic chemicals by June 24, 1979, and have not sampled for inorganic chemicals to date.

c. Alternatively, Defendants have violated 40 C.F.R. 141.31(a) by failing to report to EPA the results of any tests for organic and inorganic chemicals they may have performed within forty (40) days.

d. Defendants have violated 40 C.F.R. 141.31(b) by failing to notify EPA within forty-eight (48) hours of their failure to comply with the sampling and analysis requirements of the national interim primary drinking water regulations.

e. Defendants have violated 40 C.F.R. 141.32(a) by failing to notify the persons served by their drinking water system of their failure to comply with the sampling and analysis requirements of the national interim primary drinking water regulations.

24. Defendants have been notified repeatedly by EPA, Region III, by letter and in person, since 1977, of their obligations to comply with the aforesaid requirements of the national interim primary drinking water regulations and have chosen to ignore said notices and to violate said regulations.

25. Defendants' violations of the national interim primary drinking water regulations alleged above are "willful" under Section 1414(b) of the Safe Drinking Water Act, 42 U.S.C. § 300g-3(b).

26. Unless injunctive relief is granted by this Court, Defendants will continue to violate the national interim primary drinking water regulations and the Safe Drinking Water Act in their ownership and operation of the Ridgeland drinking water system, thereby potentially endangering the public health of the users of that system.

Relief

It is Ordered as follows:

1. A permanent injunction issue against Defendants from operating the Ridgeland drinking water system except in accordance with the Safe Drinking Water Act and regulations promulgated thereunder, and specifically, that Defendants be required to take the following steps at the Ridgeland drinking water system:

a. To sample and analyze the drinking water for coliform bacteria once per month as required by 40 C.F.R. 141.21(b).

b. To sample and analyze the drinking water for inorganic chemicals as required by 40 C.F.R. 141.23(a)(2).

c. To report the results of the above tests to EPA, or the state once the state has an EPA approved safe drinking water program, within forty (40) days of the testing, as required by 40 C.F.R. 141.21(a).

d. To report any failure to comply with the national interim [14 ELR 20096] primary drinking water regulations within 48 hours to the EPA, or the state once the state has an EPA approved safe drinking water program, as required by 40 C.F.R. 141.21(b).

e. To notify the users of the Ridgeland drinking water system of any failure to comply with the requirements of the national interim drinking water regulations, as required by 40 C.F.R. 141.32(a).

2. Because of the potential for catastrophe, as well as the continuing threat to the health of the users of the water system, and because of the flagrant and willful disregard of basic and simple measures to insure a safe water supply, a civil penalty of $ 25,000.00 is hereby assessed against the defendants, pursuant to the Safe Drinking Water Act and regulations promulgated thereunder.


14 ELR 20094 | Environmental Law Reporter | copyright © 1984 | All rights reserved