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14 ELR 20430 | Environmental Law Reporter | copyright © 1984 | All rights reserved United States v. Alder Creek Water Co.No. 79-1090-JU (D. Or. April 23, 1984)The court rules that defendants' repeated violations of the Safe Drinking Water Act (SDWA) demonstrate the willfulness required under § 1414(b) of the Act for imposition of civil penalties. The court rules that plaintiff need not prove defendants had a "bad purpose" to establish "willfulness" under § 1414. Plaintiff merely needs to show a careless disregard amounting to plain indifference. The court finds that the defendants violated the SDWA and its implementing regulations over 1,000 times in a three-year period, and holds the pattern of violations to be sufficient evidence of willfulness to permit assessment of civil penalties, despite defendants' arguments that they acted as reasonably as possible to conform to the Act. The court grants summary judgment and assesses penalties totaling $6,200 for those violations alleged by plaintiff and unrefuted by defendants. [A digest of an earlier ruling in this case is published at 13 ELR 20989 — Ed.] Counsel for Plaintiff Counsel for Defendants Stephen F. Crew Michael E. Judd, Ass't Cty. Counsel, Clackamas Cty. Juba, Mag.: The United States brought this action against the Alder Creek Water Company and its president, Gerald Bennett, for alleged violations of the Safe Drinking Water Act, 42 U.S.C. § 300f et seq., and of regulations promulgated under the Act by the Environmental Protection Agency (EPA), 40 C.F.R. § 141.1 to 149.19. The Alder Creek Water Company operated five community water systems in Clackamas Country known as Alder Creek-Barlow, Country Club, Sleepy Hollow, Riverside, and Wildwood.After the Alder Creek Water Company failed to comply with a court order to lessen the health risks posed by the Alder Creek-Barlow and Country Club systems, and to comply with the Act's reporting and monitoring requirements, an equitable receivership was created. The plaintiff now moves for summary judgment. FED. R. CIV. P. 56. The plaintiff asks that the court declare that defendants violated the Safe Drinking Water Act (SDWA) as a matter of law, and impose civil penalties for the violations. Defendants move to dismiss the case as to penalties. Plaintiff argues that there is no genuine issue of material fact that defendant committed 1,156 violations of the Act on 518 separate days, between the dates of July 1, 1977 (effective date of the SDWA regulations) and August 31, 1980 (the last full month before the company was placed into equitable receivership). Plaintiff argues that defendant failed to carry out water quality monitoring, reporting to the EPA, and public notification, as required by the Act. Plaintiff seeks total penalties of $23,350. Defendant contends that no penalties should be assessed because the government exaggerated the seriousness of the violations and no substantial health problem existed; and because defendant did not willfully violate the Act. Section 1414(b) of the Act, 42 U.S.C. § 300g-3(b), provides that: If the court determines that there has been a willful violation of the regulations . . . 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 violation occurred. Although it is not necessary to establish a "bad purpose" to show wilful violation of a statute protective of health or safety, at least a "careless disregard" for lawful duties, amounting to a "plain indifference" to the requirements of a statute, is required. U.S. v. Neskowin Enterprises, Inc., 14 ERC 1636, 1642 [10 ELR 20622] (D. Or. 1980) (Juba, J.) (citations omitted). The plaintiff contends that the following violations were committed by the defendants. 1. Violations of 40 C.F.R. § 141.14 Plaintiff argues that defendants violated the maximum contaminant level for coliform bacteria set by 40 C.F.R. § 141.14 during eight different periods. The EPA determined that violations occurred during the third quarter of 1978 at Barlow and Country Club; during the fourth quarter of 1978 at Barlow; during April 1979 at Barlow; June 1979 at Country Club; July 1979 at Country Club; September 1979 at Country Club; and August 1980 at Barlow. Affidavit of William Mullen at 5-10. Defendants submit an affidavit stating that plaintiff's samples were incorrectly taken. Affidavit of Gerald Bennett. However, affidavits must be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify as [sic] the matters stated therein. FED. R. CIV. P. 56(e). The defendants' affidavit does not meet this standard. 2. Violations of 40 C.F.R. § 141.13(b) The EPA determined that defendant violated the two-day turbidity standard set forth in 40 C.F.R. § 141.13(b) on four occasions, from August 28 to September 2, 1979. Affidavit of William Mullen at 3-4. Again, defendants have failed to present evidence to controvert these facts. 3. Violation of 40 C.F.R. § 141.21 Plaintiff argues that defendant violated 40 C.F.R. § 141.21(b), which requires monthly samples for coliform bacteria, on eighteen occasions. Plaintiff alleges that defendants did not perform sampling for five months (March 1978, and February, May, July, and August 1980) at the Riverside, Wildwood, and Sleepy Hollow systems, one month (March 1978) at Country Club, and two months (March 1978 and July 1979) at Alder Creek-Barlow. Exhibits 1, 2, and 3; Affidavit of William Mullen at 10. Defendants have not disputed the violations in these particular months. 4. Violation of 40 C.F.R. § 141.22 Plaintiff alleges that defendants failed to take turbidity measurements once per day, required by 40 C.F.R. § 141.22(a), on 972 occasions, at the Country Club and Alder Creek-Barlow systems. Affidavit of William Mullen at 10. Defendants do not controvert these violations. 5. Violation of 40 C.F.R. § 141.23 Plaintiff alleges defendants violated 40 C.F.R. § 141.23(a)(1) and (2), on seven occasions, by failing to analyze for inorganic chemicals at Country Club and Alder Creek-Barlow by June 24, 1978, and at Riverside, Wildwood, Sleepy Hollow, Country Club, and Alder Creek-Barlow by June 24, 1979. Affidavit of William Mullen at 11. Defendants present no evidence to dispute these violations. 6. Violation of 40 C.F.R. § 141.24 Plaintiff alleges defendants failed to test for organic chemical contaminants at two surface water systems, Country Club and Alder Creek-Barlow, by June 24, 1978, in violation of 40 C.F.R. § 141.24(a)(1). Affidavit of William Mullen at 11. Again, there is no evidence disputing these violations. 7. Violation of 40 C.F.R. § 141.31(a) Plaintiff alleges that defendant submitted untimely microbiological [14 ELR 20431] reports on eighty occasions, and untimely reports of turbidity measurements on twelve occasions, for a total of ninety-two violations of 40 C.F.R. § 141.31(a). Affidavit of William Mullen at 12. Defendants state that these reports were actually made timely. Affidavit of Gerald Bennett at 6-9. Thus, there is an issue of fact as to whether these particular violations occurred. 8. Violation of 40 C.F.R. § 141.32 Plaintiff argues that defendant violated 40 C.F.R. § 141.32, which requires public notification when the level of any contaminant exceeds a maximum contaminant level, or when required monitoring has not been done. This violation includes failure to give notice of the eight MCL violations, and failure to give one notice of the four turbidity violations for a total of nine violations. Affidavit of William Mullen at 12-14. Also included are failure to give periodic public notice of the monitoring violations a total of forty-four times. Defendants present no evidence controverting these violations. Defendants argue that plaintiff consistently exaggerated the hazards in the water system, to mislead the court into believing a substantial health hazard existed. Defendants also argue that plaintiff used improper tactics in their monitoring. Defendants state they never wilfully violated the Act. They argue that Gerald Bennett acted as reasonably as possible to comply with the Act, and that this is demonstrated by the difficulty encountered in making the system conform to the Act since he lost control. However, viewing the pattern of the violations as a whole, I find that defendants wilfully violated the Act, and that plaintiff is entitled to recover statutory civil penalties. Fairbanks v. Hardin, 429 F.2d 264, 268 (9th Cir. 1970); U.S. v. Neskowin Enterprises, Inc., 14 ERC 1636, 1642 [10 ELR 20622] (D. Or. 1980). Section 1414(b) of the Act states that the court "may . . . impose on the violator a civil penalty not to exceed $5,000 for each day in which such violation occurs." In assessing penalties, the court must consider the "seriousness of the violations." 42 U.S.C. § 300g-3(b). The eight violations of the microbiological contaminant regulations for drinking water are extremely serious, because they place public health in jeopardy. The four turbidity violations also pose a threat to the public health. A penalty of $100 per day for each of these twelve violations is appropriate. The violations for failing to take samples, and failure to give notice of violations are less serious, although they still create potential health risks to the public, and the numerous violations that occurred demonstrates a careless disregard for lawful duties on the part of defendants. A penalty of $5,000 will be assessed for all of these violations.Since defendants raised a material issue of fact as to whether it submitted untimely reports, no penalties will be assessed for those alleged violations. Plaintiff's motion for summary judgment is granted. Defendants' motion to dismiss as to penalties is denied. Defendants are ordered to pay the plaintiff statutory civil penalties in the sum of $6,200. 14 ELR 20430 | Environmental Law Reporter | copyright © 1984 | All rights reserved |