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10 ELR 20622 | Environmental Law Reporter | copyright © 1980 | All rights reserved United States v. Neskowin Enterprises, Inc.Civil No. 79-324 (D. Or. June 11, 1980)Granting the government's motion for summary judgment, the district court assesses a civil penalty of $26,400 against the corporate owners of a municipal water system for repeated "willful" violations of the Safe Drinking Water Act (SDWA). The court finds that defendants' persistent failure to comply with reporting, monitoring, water quality maintenance, and public notification provisions of regulations promulgated under the SDWA constitute "willful violations" justifying imposition of a civil penalty under § 1414(b) of the Act. "Careless disregard" rather than "bad purpose" is the standard to be used in penalizing violations of health and safety laws. Prosecution for civil penalties is not rendered moot by the fact that defendants no longer own the system. The court refuses to allow defendants to raise a defense of selective enforcement; this is a civil action and deterrence is an acceptable justification for the imposition of civil penalties. The court rejects defendants' argument that the cost of compliance was prohibitive for a small system, noting that the legislative history reveals that Congress' primary concern in enacting the SDWA was protection of public health. Concluding that each violation created serious public health risks, exacerbated by defendants' "irresponsible attitude," the court imposes a penalty of $100 per day for each day a violation occurred. Counsel for Plaintiff Barbara Lither Robert D. Wasson, Dist. Attorney, Tillamook Cty. Counsel for Defendants David A. Rhoten Juba, Magistrate: Plaintiff,the United States of America,1 brings this action against the defendants, owners of the Neskowin water system in Tillamook County, Oregon, for violations of the reporting, monitoring, maximum contaminant, and public notification provisions of the Safe Drinking Water Act (Act), 42 U.S.C. § 300f et seq. and the National Interim Primary Drinking Water Regulations (Regulations) promulgated thereunder, 42 C.F.R. §§ 141 and 142. Jurisdiction is conferred by 28 U.S.C. § 1345 and 42 U.S.C. § 300g-3(b). The case is before the court on cross motions for summary judgment. Plaintiff seeks summary judgment in its favor declaring that defendants have committed willful violations of the Act and Regulations, and imposing monetary civil penalties for each violation. Defendants move the court for summary judgment in their favor on the grounds that they no longer control Neskowin water system and, therefore, that continued prosecution to seek an injunction is moot. Defendants contend that the plaintiff, in seeking the assessment of statutory penalties, is singling out the defendants from all other private water companies for punishment. I.Facts An examination of the complaint, the affidavits filed in support of plaintiff's motion for preliminary injunction, the exhibits received into evidence and transcript of proceedings of May 3, 1979, this court's order dated May 7, 1979, and the affidavit of William A. Mullen filed in support of plaintiff's motion, reveals the following uncontroverted facts. Prior to August 3, 1979, defendants were the owners and operators of the Neskowin water system in Tillamook County, Oregon. The corporate defendants are Neskowin Enterprises, Inc. (Neskowin) and Coastal Engineering and Construction, Inc. (Coastal), the owner of Neskowin. Defendant Lester E. Fultz and his brother, Earl Fultz, own and operate Coastal. Defendant G. W. Kanoff Jr. was, until after this action was filed, part owner and operator of the Neskowin water system. Defendant Lester Fultz participated in the maintenance and operations of the water system, was an officer of Neskowin, and was responsible for supervision of the system's employees. The Neskowin water system has at least fifteen service connections or regularly serves an average of at least twenty-five individuals. It is a public water system within the meaning of the Act, 42 U.S.C. § 300f(3). At all relevant times, the Neskowin water system consisted of two systems (characterized as "North" and "South") and drew water from two surface sources, Butte Creek and Hawk Creek. Although the two systems were separate, they were linked by a distribution system intertie. This allowed water to pass from one system to the other. Both systems at Neskowin were chlorinated by identical positive displacement feed pumps which injected chlorine solution into the raw water. Occasionally, both chlorinators became clogged by debris and malfunctioned.During periods of chlorinator malfunction, disinfection of the raw water was often inadequate. Congress expected the state governments to assume primary responsibility for enforcing the Act and Regulations, and delegated authority to the states to do so. Some states, including Oregon, declined to accept this responsibility. Accordingly, the Environmental Protection Agency (EPA) has undertaken the task of applying the provisions of the Act and Regulations to the public water systems in Oregon. Defendants were first notified by EPA of the requirements of the Act on June 23, 1977. They were re-notified by EPA on numerous later dates. During July 1977, EPA personnel collected twenty-seven bacteriological water samples from defendants' water systems and analyzed twenty of them using the membrane filter technique.2 All sampling and analysis performed by EPA was in accordance with "Standard Methods for the Examination of Water and Wastewater," and proper custodial safeguards were used. The remaining seven samples were analyzed by the Portland Bureau of Water Works, an EPA certified laboratory, using the membrane filter technique. Some of the samples contained excessive levels of bacteria. EPA Region 10 in Seattle, Washington, subsequently received three bacteriological samples from defendants' water systems for the month of July 1977, two bacteriological samples for August 1977, and one bacteriological sample for September 1977. This data was personally given to EPA representatives who visited Neskowin on June 7, 1978. All bacteriological samples submitted by defendants utilized the multiple tube fermentation technique,3 and no tubes showed positive evidence of coliform contamination. Pursuant to 40 C.F.R. § 141.14(c), violations of the bacteriological maximum contaminant levels were computed on the average of all results for the three month period July, August and September 1977. An average of thirty percent of all samples taken during this period contained excessive levels of bacteria. On July 15, 1977, EPA notified defendants of the results of EPA's July 1977 water analyses and told them that they should notify the public of a potential health hazard. On July 20, 1977, EPA personnel again discussed the requirements of the Act with defendants and told them that public notification was necessary. EPA subsequently contacted defendants by telephone or letter August 24, 1977, September 2, 1977, October 19, 1977, December 2, 1977 and December 12, 1977. On each occasion defendants were informed of the requirements of the Act and the Regulations. EPA received no response from the defendants regarding these communications. On April 20, 1978, EPA issued a Notice of Violation to defendants. This notice informed them that they were in violation of the Act and directed them to comply. The Notice of Violation also stated that compliance with the Act would, in the future, be calculated on a one-month, rather than three-month basis.EPA did not receive any response from the defendants to the Notice of Violation. EPA visited defendants' water system in June 1978, and warned defendants that they continued to be in violation of the Act and Regulations. During this visit, defendants presented EPA personnel with several months of microbiological and turbidity monitoring data which had not previously been reported to the EPA. EPA received reports of several instances of gastroenteritis at Neskowin in July 1978. A sanitary survey was conducted which indicated that the water system was the most likely cause of this outbreak. The results of this survey were given to defendants on August 4, 1978. On August 24, 1978, EPA informed defendants that they should take certain interim control measures to protect the public health. Defendants acknowledged receipt of EPA's recommendations and requested additional time for completion of the work. On October 24, 1978, defendants submitted eleven microbiological samples for the month of August. 1978. All of this data was reported beyond the 40-day time limit requirement imposed by 40 C.F.R. § 141.31(a). All eleven samples were analyzed using the multiple tube fermentation technique and none showed evidence of coliform contamination. During August 1978, however, EPA personnel had collected twenty microbiological samples from defendants' water system and analyzed them using the membrane filter technique. The Oregon State Health Division also had taken twenty-six microbiological samples from the water system. These samples were analyzed by the Oregon State Health Division Laboratory using the multiple tube fermentation technique. Both the EPA samples and the Oregon State Health Division samples contained excessive levels of bacteria. During February 1979, EPA collected bacteriological samples from defendants' water system and analyzed them using the membrane filter technique. Again, some of the samples contained excessive levels of bacteria. On May 14, 1979, EPA Region 10 received bacteriological samples from Neskowin water system for the months of January and February 1979. During the month of April 1979, the Oregon State Health Division collected ten samples from the Neskowin water system and analyzed them using the multiple tube fermentation technique. A significant proportion of these samples were found to contain coliform bacteria. From the effective date of the Regulations on June 24, 1977, to the present, EPA Region 10 has not received any microbiological sampling results from defendants' water system for the months of February, April, May and July 1978, and March and April 1979. For the period June 24, 1977 to the present, EPA Region 10 has not received any turbidity contaminant analyses from the Neskowin water system for the months of July, August, September [10 ELR 20624] and December 1977; January 1978; and January, March and April 1979. Additionally, data submitted by defendants for the following months was incomplete: October and November 1977; February, March, April, May, june, July and August 1978. EPA Region 10 has not received results of required inorganic contaminant analysis from defendants' system for the period June 1978 to the present. EPA Region 10 has not received copies of any news media public notices issued by defendants. EPA received two copies of consumer public notices issued by Neskowin water system for the period July 1977 through May 1979. Defendants admit distributing two consumer public notices during this period. EPA Region 10 received turbidity monitoring data from defendants' water system which showed a monthly average in excess of federal turbidity standards for the months of February, March, April, May, August, September and November 1978, and February 1979. On April 4, 1979, plaintiffs filed this action seeking injunctive relief and the imposition of statutory civil penalties. On May 7, 1979, this court issued an order granting plaintiff's motion for preliminary injunction. The court found that "operation of the said public water system at Neskowin by defendants has been and continues to be in violation of the Safe Drinking Water Act." In July 1979, the defendants were found to be in contempt of this court's order of May 7, 1979. At several hearings held throughout July, defendants were ordered to correct various mechanical deficiencies in the water system. They were also ordered to reimburse the plaintiff for its expenses incurred in investigating the contempt prosecution. II. Violations of the Applicable Regulations Section 1414(b) of the Act, 42 U.S.C. § 300f-3(b) states that the Administrator of EPA "may bring a civil action in the appropriate United States district court to require compliance with a national primary drinking water regulation." In such an action, the court may enter "such judgment as protection of public health may require, taking into consideration the time necessary to comply and the availability of alternative water supplies." Id. If the court finds that the defendant has willfully violated any regulation, the court may impose civil penalties of up to $5,000 for each day in which a violation occurred. Id. Among the factors to be considered by the court in assessing civil penalties are "the seriousness of the violation" and "the population at risk." Id. Plaintiff contends, and defendants do not deny, that defendants were subject to the provisions of the Act and Regulations, that they were repeatedly informed of the requirements of these Regulations, and were found by the court to be "in violation of the Safe Drinking Water Act." In plaintiff's view, the only remaining issue is the number of violations attributable to the defendants and the amount of civil penalties to be awarded. The water system was condemned by the Neskowin Regional Water District and defendants ceased to be the owners of the system on August 3, 1979. Plaintiff seeks summary judgment as to defendants' liability for civil penalties for violations ocurring prior to May 7, 1979, the date on which this court granted plaintiff's motion for preliminary injunction. Based on the uncontested affidavit of William A. Mullen, plaintiff contends that the following violations were committed by the defendants. A. Violation of Reporting Provisions of 40 C.F.R. § 141.31(a) 40 C.F.R. § 141.31(a) provides in pertinent part: (a) Except where a shorter reporting period is specified . . . the supplier of water shall report to [EPA] within 40 days following a test, measurement or analysis required to be made . . ., the results of that test, measurement or analysis. The record shows that required microbiological reports were not submitted on six occasions. Inorganic contaminant reports were submitted well beyond the forty-day time limit. Turbidity reports were not submitted on eight occasions and at least four reports for turbidity analysis were incomplete. Thus, the reporting provisions were violated on a total of thirty-six occasions. (See Appendix A.) Defendants have not presented any evidence to controvert these facts. B. Violation of the Monitoring Provisions of 40 C.F.R. § 141.31(a) The reporting requirements specified in 40 C.F.R. § 141.31(a) assume that acceptable monitoring has been performed. The legislative history of the Act is clear. "The Committee expects that the Administrator [of EPA] would require all public water systems to notify him frequently of the quality of the water being provided for human consumption."4 This notification can only be accomplished through regular monitoring and analysis, the results of which are then reported to EPA. The Regulations require the defendants to monitor the water system for microbiological and inorganic contaminants, and turbidity. See, 40 C.F.R. §§ 141.21, 141.22, and 141.23, respectively. For those months in which the defendants failed to report the results of required monitoring to EPA pursuant to 40 C.F.R. § 141.31(a), there is also a concommitant violation of the sampling requirements. Each day an independent duty arises to sample for turbidity at each representative point in each distribution system involved, pursuant to 40 C.F.R. § 141.22. Because the Neskowin water system uses two rather than one source, the defendants had the duty to take two samples each day, one from the north source and one from the south source. According to Mr. Mullen's affidavit, defendants violated the relevant monitoring provisions as follows: six violations of 40 C.F.R. § 141.21(b), four hundred ninety-two violations of 40 C.F.R. § 141.22, and one violation of 40 C.F.R. § 141.23, for a total of four hundred ninety-nine violations. (See Appendix B.) Again, defendants have failed to controvert plaintiff's calculation of these violations. C. Violation of the Microbiological Maximum Contaminant Levels Set Forth in 40 C.F.R. § 141.14 40 C.F.R. § 141.14 sets forth the maximum contaminant levels for coliform bacteria. Nine standards are prescribed, depending on which analytical method is used. Data used in calculating compliance is based on "information available" to EPA pursuant to 42 U.S.C. § 300g-3(a)(2). In this case, the data base consisted of defendants' own data as reported to EPA, EAP's data and data obtained from the Oregon State Health Division. Compliance with maximum microbiological levels is based upon sampling during a three-month period unless otherwise indicated. 40 C.F.R. § 141.14(c). As detailed in Part III of Mr. Mullen's affidavit, the data collected by EPA, the Oregon State Health Division, and from defendants' samples revealed ten separate maximum contaminant level violations for the compliance periods July-August-September 1977, August 1978, February 1979, and April 1979. (See Appendix C.) With respect to microbiological maximum contaminant levels violations, the legislative intent is clear: It should be noted in this regard that a violation occurs whenever a maximum contaminant level is exceeded . . . however briefly.5 The presence of coliform bacteria in water is an indicator that conditions in the water system are favorable for the existence of disease-causing organisms. EPA repeatedly informed defendants of violations of the microbiological contaminant levels and requested defendants to perform the necessary corrections to assure that contaminant levels were not exceeded. Defendants have not disputed any material fact regarding these violations. D. Violation of the Turbidity Maximum Contaminant Levels Set Forth in 40 C.F.R. § 141.13(a), (b) The maximum contaminant level standards for turbidity contaminants are found at 40 C.F.R. § 141.13(a) and (b).6 Solely on [10 ELR 20625] the basis of data submitted by defendants for both the north and south surface water sources, violations of the one unit turbidity standard (40 C.F.R. § 141.13(a)) or the five unit average for two consecutive days standard (40 C.F.R. § 141.13(b)) occurred in one and/or both systems during February, March (2 violations), April (2 violations), May, June (2 violations), August, September (4 violations), and November (3 violations) 1978, and February 1979. Defendants have documented a total of seventeen violations of the turbidity maximum contaminant levels. (See Appendix D.) Defendants do not dispute plaintiff's calculations. E. Failure to Issue Adequate Public Notification in Violation of 40 C.F.R. § 141.32 Public notification is a primary purpose of the Act.7 The Regulations require the supplier of water to notify persons served by the system of failure to comply with maximum contaminant levels and testing procedures. Written notice is to be given at least every three months so long as the failure continues. Additionally, notification through the news media is to be given for failure to comply with maximum contaminant levels. 40 C.F.R. § 141.32(a), (b). On the basis of the Neskowin water system maximum microbiological and turbidity contaminant level violations and defendants' reporting violations, written public notice was required on seven occasions and notice through the news media was required on six occasions. EPA records indicate that written notice was given on only two occasions prior to May 7, 1979. Thus a total of eleven violations of the public notification regulations was recorded by the plaintiff. These violations are undisputed by the defendants. The Act provides that the court may assess civil penalties not to exceed $5,000 for each day a willful violation of any regulation occurs. Plaintiff contends that the record in this case establishes that defendants' violations of the Regulations were willful. In plaintiff's view, the uncontroverted facts regarding these violations establish a pattern of unresponsiveness and general indifference on the part of the defendants to the requirements of the Regulations. This lackadaisical attitude, argues plaintiff, persisted for a period of two years and continued even after the filing of this case. The fact that several contempt hearings were required, though beyond the date for which civil penalties are sought, demonstrates defendants' persistent and obstinate disregard of the Act's requirements. Defendants concede that "[t]here were, no doubt, technical violations" of the Act with respect to the Neskowin water system. They contend, however, that civil penalties should not be imposed because they made reasonable attempts to improve the system after EPA notified them of certain functional problems. Defendants also attempt to shift the blame for any violations from themselves to others. They contend that EPA's test results and demands for compliance conflicted with those given by the State of Oregon. They also complain that the time frames for compliance imposed by EPA were unreasonable. Defendants attribute problems with the water system to poor weather, lack of funds with which to purchase necessary equipment, and an improper service connection to Neskowin Lodge and the Golden Cove Restaurant. They contend that any delays in reporting or failure to report were caused by tardy deliveries of sample bottles, the amount of time defendants spent in judicial and administrative hearings, and their erroneous belief that the Oregon Board of Health would forward test results to EPA. In sum, defendants deny that they intentionally violated any Regulations. They argue that they acted as reasonably as possible to make an old, troublesome water system comply with EPA's demands. "Careless disregard" for lawful duties, amounting to "plain indifference" to the requirements of a statute, has been considered to be a "willful" violation. United States v. Illinois Central Railroad Co., 303 U.S. 239, 242-243 (1938). This standard applies particularly to cases involving violations of statutory requirements that are protective of health or safety. Georgia Electric Co. v. Marshall, 595 F.2d 309, 319 (5th Cir. 1979). In such cases it is unnecessary to establish a "bad purpose" for the violation to be regarded as "willful." The courts have also held that willfulness can be inferred from a history of numerous violations of the same statute and regulations. Fairbanks v. Hardin, 429 F.2d 264, 268-269 (9th Cir. 1979). Defendants' repeated tardiness, and often failure, to submit the required sampling data to EPA certainly demonstrates an indifference to the Act and its Regulations. Defendants' failure to improve the water system, despite persistent warnings from EPA and the continued presence of contaminants in the water, scarcely exhibits the concern for public health to be expected from a water system owner. FED. R. CIV. P. 56(c) allows for the granting of summary judgment if the court finds: (1) there is no genuine issue on any material fact and (2) the moving party is entitled to judgment as a matter of law. The moving party has the burden of establishing the absence of a triable issue of fact. California Pacific Bank v. Small Business Administration, 557 F.2d 218, 220 (9th Cir. 1977); Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). All reasonable doubts on the existence of a genuine issue of material fact should be resolved against the moving party. Hector v. Wiens, supra. The party opposing summary judgment is entitled to all favorable inferences which can be drawn from the evidence. Adickes v. S.H. Kress & Co., 389 U.S. 158-159 (1970). Viewing the pattern of violations as a whole, I find that defendants willfully violated the Act and its Regulations on 573 separate occasions,8 and that plaintiff is entitled to recover statutory civil penalties in an amount to be discussed below. Defendants contend, and plaintiff acknowledges, that continued prosecution for injunctive relief in this case is inappropriate because defendants no longer own, operate or control the Neskowin water system. However, continued prosecution for the imposition of liability and civil penalties for violations of law occurring during defendants' period of ownership is not moot and represents a live controversy subject to judicial resolution. Powell v. McCormack, 395 U.S. 486 (1969). As the Supreme Court noted in Powell, where several forms of relief are requested and one of these requests subsequently becomes moot, the Court has still [to consider] the remaining requests. Id. at 496, n.8. In the complaint filed in this case, plaintiffs sought injunctive relief as well as civil penalties for defendants' violations of the Act. Plaintiff's claim for the imposition of civil penalties focuses on defendants' conduct during the time period that they owned and operated the Neskowin water system. Defendants' liability for civil penalties is presently an issue subject to judicial resolution. Defendants allege that continued prosecution for civil penalties constitutes a "singling out" of defendants from all other private water companies in a "vindictive and punitive" manner. [10 ELR 20626] The issue of selective enforcement was recently addressed in United States v. Snepp, 595 F.2d 926 (4th Cir. 1979). There the Court of Appeals stated: We see no merit in the defense of selective enforcement, and we think that the district court correctly rejected it. [T]here is a basic legal reason why the defense is unavailable. Defendant has cited and we have found, no authority suggesting that the defense of selective enforcement, normally applied in criminal cases, should be extended to civil actions. Id. at 933. Although the Supreme Court reversed the Court of Appeals on other grounds, 48 U.S.L.W. 3516 (February 19, 1980), it left intact the reasoning of the appellate court regarding selective enforcement. Plaintiff denies any motive to use defendants as an "example" for other water suppliers. However, as correctly noted by the plaintiff, the deterrence of the defendants and others has been and continues to be an acceptable reason for the assessment of civil penalties. United States v. Velsicol Chemical Corp., 12 ERC 1420 [8 ELR 20745] (W.D. Tenn. 1978); Collins v. Brown, 268 F. Supp. 198, 201 (D.D.C. 1967). This is particularly true where a protective health statute is involved and voluntary compliance by the individual water supplier is essential. D. Size of Defendants' Water System Defendants argue that the costs of installation of adequate water treatment facilities are so onerous to small water suppliers that "rural areas throughout the nation would never have water until the Federal Government decided it would install such systems." It is important to note that EPA does not have authority to require the installation of any particular water system. Its role in Oregon, and other states which have not accepted primary enforcement responsibility under the Act, is to act as the primary enforcement authority. In this regard, when violations of the federal standards are discovered, EPA personnel may recommend corrective measures. The cost of compliance, however, is determined primarily by the technological methods selected by the water supplier. Congress was well aware of the impact that costs might have on small water systems when it passed the Act. According to the legislative history of the Act: It is evident that what is a reasonable cost for a large metropolitan (or regional) public water system may not be reasonable for a small system which serves relatively (sic) few users. The Committee believes, however, that the quality of the Nation's drinking water can only be upgraded if the systems which provide water to the public are organized so as to be the most cost-effective. In general, this means larger systems are to be encouraged and smaller systems discouraged. H.R. REP. NO. 1185, 93d Cong., 2d Sess., reprinted in 1974 U.S. CODE CONG. & AD. NEWS 6470. In striking a balance between technological costs and the need for sanitary drinking water, it is evident that Congress placed primary emphasis on the public health. Although the cost of compliance may be higher for a small water system owner, this is not a justification for persistently failing to comply with the Act's Regulations. In defendants' view there is no hard evidence that any malfunction of the Neskowin water system was the actual cause of any reported illness in the Neskowin area. Defendants purport to explain the "true cause" for the problems that occurred at Neskowin by asserting the EPA does not have enough people to monitor properly all water systems in Oregon. Defendants overlook the fact that EPA cannot oversee water systems, such as the defendants,' unless the water system owner conscientiously samples and reports water quality data to EPA in a timely fashion. Primary responsibility for complying with the Act and its Regulations begins with the individual water supplier. As this case demonstrates, this is a responsibility that the defendants have taken all too lightly. F. Number of Days for Which Penalties May Be Imposed Section 1414(b) of the Act states that the court "may . . . impose on the violator a civil penalty of not to exceed $5,000 for each day in which such violation occurs." (Emphasis added.) While 573 separate instances of violation occurred at defendants' system, several of these instances occurred during a single 24-hour period. An analysis of all violations shows that defendants violated one or more requirements of the Act on 264 days.9 In assessing penalties, the court must consider "the seriousness of the violations." 42 U.S.C. § 300g-3(b). I view the violations of microbiological contaminant regulations for drinking water as extremely serious events. The public health may be in jeopardy when coliform bacteria are allowed to contaminate a public drinking water supply. The turbidity violations also pose a threat to the public health, because they tend to indicate that the water supply is inadequately disinfected. Though less serious, defendants' failure to report water sample data to EPA deprives both the EPA and the public of timely information on the safety or hazards of the water supply. And where, as here, a large tourist population uses the water supply, public notification of any water hazards is especially critical. In my view, each type of violation creates potential health risks to which the public should not be exposed. The fact that numerous violations occurred in each category, demonstrates an irresponsible attitude on the part of the defendants and emphasizes the very serious nature of these violations. A penalty of one hundred dollars ($100) per day for each of the 264 days on which violations of the Regulations occurred is appropriate. Plaintiff's motion for summary judgment is granted. Defendants' motion for summary judgment is denied. Defendants are ordered to pay to the plaintiff statutory civil penalties in the sum of twenty-six thousand four hundred dollars ($26,400). The Clerk is directed to enter judgment accordingly. Dated this 11th day of June 1980. (All based on submittals by Neskowin Enterprises, Inc.)
Appendix B (All based on submittals by Neskowin Enterprises, Inc.)
(All based on submittals by EPA, OSHD, and Neskowin Enterprises, Inc.)
(All based on submittals by Neskowin Enterprises, Inc.)
2. The membrane filter technique is an accepted method for testing for the presence of bacteria. 40 C.F.R. § 141.21(a). A special screen is placed at the bottom of a funnel into which a water sample is poured. The bacteria is caught on the filter and grows on it until it can be identified. Membranes of different sizes are used to catch specific types of bacteria. The number of samples collected each month and the overall number of bacterial colonies present determine whether a violation of the maximum microbiological contaminant levels has occurred. See 40 C.F.R. § 141.14(a)(1)-(3). 3. The multiple tube fermentation technique uses a series of tubes filled with solutions to encourage or permit bacterial growth. Inside each tube is placed an inverted tube into which a quantity of the water to be tested is injected. Any bacterial growth will appear in the inverted tube. If bacteria is noted, it is placed on a tray and permitted to grow until it can be identified. This technique is also recognized as an acceptable method for testing for the presence of bacteria. 40 C.F.R. § 141.21(a). A violation of the maximum bacteriological contaminant levels is determined by the number of tubes which show positive evidence of coliform bacteria. See 40 C.F.R. § 141.14(b)(2)(i)-(iii). 4. H.R. REP. NO. 1185, 93d Cong., 2d Sess., reprinted in 1974 U.S. CODE CONG. & AD. NEWS 6492. 5. Id. at 6476. 6. The maximum contaminant levels for turbidity are applicable to both community water systems and non-community water systems using surface water sources in whole or in part. The maximum contaminant levels for turbidity in drinking water, measured at a representative entry point(s) to the distribution system are: (a) One turbidity unit (TU), as determined by a monthly average pursuant to § 141.22, except that five or fewer turbidity units may be allowed if the supplier of water can demonstrate to the State that the higher turbidity does not do any of the following: (1) Interfere with disinfection; (2) Prevent maintenance of an effective disinfectant agent throughout the distribution system; or (3) Interfere with microbiological determinations (b) Five turbidity units based on an average of two consecutive days pursuant to § 141.22. 7. "[T]he Committee believes that informing the public of the quality of water being delivered to consumers is a primary purpose of the Act." H.R. REP. NO. 1185, 93d Cong., 2d Sess., reprinted in 1974 U.S. CODE CONG. & AD. NEWS 6492. 8. The 573 separate instances of violation are calculated as follows:
1. MF — Membrane Filter Technique MT — Multiple Tube Fermentation Technique 2. NEI — Neskowin Enterprises, Inc. 3. OSHD — Oregon State Health Department 10 ELR 20622 | Environmental Law Reporter | copyright © 1980 | All rights reserved |