United States v. Midway Heights County Water District

No. Civ. S-87-1112-RAR/EM (E.D. Cal. Feb. 26, 1988, amended Mar. 25, 1988)

The court issues a preliminary injunction requiring a public water system charged with violations of the Safe Drinking Water Act to notify customers of its violations of the maximum contaminant levels (MCLs) for microbiological contaminants and turbidity, and to follow a schedule to supply potable water to its customers by using chlorination and coagulation. The court finds that defendant violated the MCLs for all of 1987, failed to notify the Environmental Protection Agency or the public of the violations, and has never treated its water. In addition, water entering defendant's system may become contaminated by highway runoff, animal feces, human fecal material, and high levels of coliform bacteria. The court holds that the presence or likelihood that these contaminants will enter the water system presents an imminent and substantial endangerment to human health and that plaintiff has satisfied the requirements for issuance of a preliminary injunction. The court also requires defendant to monitor, analyze, and report on the system's water quality.

Counsel for Plaintiff
Robert H. Foster
Environmental Enforcement Section, U.S. Department of Justice

P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-1448

Counsel for Defendant
Noble Sprunger
347 Main St., Placerville CA 95643
(916) 626-3021

[19 ELR 20140]

King, J.: Opinion

THIS mattter came on for hearing on February 23 and 26, 1988 on plaintiff's Motion for a Preliminary Injunction, and plaintiff appearing Robert H. Foster and defendant appearing by Noble Sprunger; and the Court having read the submitted briefs and supporting declarations; and the Courts having heard and considered oral argument;

THIS COURT HEREBY FINDS AND CONCLUDES:

1. Jurisdiction exists over the parties, and over the subject matter of this action pursuant to 28 U.S.C. § 1345, and 42 U.S.C. §§ 300g-3(b) and 300i (the Safe Drinking Water Act (SDWA)).

2. At all times material, defendant Midway Heights County Water District is and has been the owner and operator of a public water system within the meaning of SDWA:

a. Defendant operates a system that supplies water to customers;

b. Defendant obtains its water from the Boardman canal, an open waterway in the foothills of the Sierra Nevada and diverts it to a reservoir which defendant maintains.

c. Defendant owns and maintains a system of pipes that deliver water from the reservoir to the edges of the customers' property, at which point a single pipe runs underground to the interior of a number of the customers' homes.

d. Defendant's system has at least 15 service connections and regularly serves at least 25 individuals;

e. At over 15 service connections, individuals use the water supplied by defendant for human consumption.

f. At least 25 individuals use the water supplied by defendant for human consumption, on a regular basis.

g. Human consumption includes drinking, bathing and showering, cooking and dishwashing, and maintaining oral hygiene.

h. Defendant either knew or should have known to a substantial certainty that its customers were using the water it supplied for human consumption, based upon:

i) The locations and arrangements of the pipes and plumbing;

ii) The fact that a pipe runs from the defendant's system into a number of its customers' homes;

iii) The institution of State judicial and federal administrative actions against defendant including the issuance, in December, 1986, of an Emergency Administrative Order requiring defendant to comply with the Safe Drinking Water Act;

iv) A specific provision in an Agreement ("Agreement") between the Customer and defendant that instructs customers to make potable the water in the event they use it for human consumption.

i. The Agreement executed between defendant and its customers, which apparently purports to limit the use(s) of defendant's water to irrigation, is ineffective to take defendant's water system out of the reach of the SDWA, which was enacted to protect the public health.

3. The State of California Department of Health Services has requested plaintiff to bring this action.

4. The water supplied by defendant to its customers continually exceeded the maximum contaminant levels prescribed by the SDWA national primary drinking water regulations for all of 1987, for both microbiological contaminants (40 C.F.R. § 141.14) and for turbidity (40 C.F.R. § 141.13), as determined by testing performed by the State of California on at least a monthly basis during 1987.

5. Defendant has failed to meet the notification requirements contained in the national primary drinking water regulations, 40 C.F.R. § 141.32, for the proven violations.

6. Defendant has not performed any monitoring of its water for any contaminants, as required by the national primary drinking water regulations.

7. Defendant does not treat and has never treated in any way the water it supplied to its customers.

8. Defendant's operation of the Midway Heights water system has been and continues to be in significant violation of the Safe Drinking Water Act and the national primary drinking water regulations.

9. In light of the record, it is both likely that defendant will continue not to treat the water it supplies to its customers, and therefore likely that defendant will continue to violate the SDWA and its regulations in the future.

10. Water entering defendant's system has the potential to become contaminated with runoff from Interstate 80, animal feces, human fecal material, and high levels of coliform bacteria, as there exist no effective barriers to the entry of these contaminants.

11. Contaminants, including coliform and turbidity, are present in or likely to enter defendant's water system.

12. The presence or likelihood of entry of these contaminants into water used for human consumption presents an imminent and substantial endangerment to the health of persons.

13. Appropriate State and local authorities have not acted, and have not been able to act to protect the health of the endangered persons, in that:

a. A lawsuit filed by the State of California on July 10, 1984 sought to require defendant to obtain a permit as required for public water supplies.

b. That matter had not, as of February 26, 1988, gone to hearing on the merits.

c. Since 1984, the State has unsuccessfully tried to protect the health of persons endangered by the continued operation of defendant's water system. These efforts have included a lawsuit seeking to compel defendant to obtain a permit (under State law) to operate as a public water system.

14. Pursuant to 42 U.S.C. §§ 300g-3(b) and 300i, this court has jurisdiction and authority to issue a mandatory Order requiring defendant, its officers, agents, servants, employees, attorneys and other persons in active concert or participation with them to take immediate measures as specifically described in the Order of this Court dated February 26, 1988, to protect the public health at the Midway Heights water system.

15. The relief ordered in the Order of this Court of February 26, 1988 is required to protect the public health.

16. Plaintiff has demonstrated that there is a substantial likelihood that it will be successful on the merits at trial.

17. Denial of the requested relief will result in irreparable injury to plaintiff, including the continued threat to public health.

18. A consideration of the balance of hardships indicates that it favors plaintiff:

a. Defendant was unable to demonstrate that substantial hardship would ensue from the relief ordered by this Court on February 26, 1988. Plaintiff offered evidence that defendant has sufficient liquid assets available to comply with the terms of the order

[19 ELR 20141]

b. Defendant presented no credible evidence of any non-financial hardship that would flow from the relief ordered by this court on February 26, 1988.

c. Plaintiff demonstrated that denial of the injunction would result in a continued substantial endangerment to the health of persons.

19. The public interest favors the granting of this preliminary injunction, in that both the affected persons (customers, travellers and visitors), and the general public, benefit from the abatement of an endangerment to the public health.

20. This Court's Order will prevent the irreparable harm otherwise posed by the continued operation of defendant's water system.

THEREFORE,

IT IS HEREBY ORDERED THAT plaintiff's Motion be, and the same hereby is, GRANTED; and

IT IS HEREBY FURTHER ORDERED AS FOLLOWS:

1. NOTICE.

a. To Customers. Within 72 hours of service of this Order, defendant shall mail to all of its customers and to the United States Environmental Protection Agency ("EPA") a Notice containing substantially the same information as the Notice included as Exhibit "1" to Plaintiff's Motion for Preliminary Injunction, except that the Notice shall, in addition, describe (i) this Order, (ii) the availability of bottled water, (iii) methods for hand chlorination by customers, and (iv) the information required to be sent to customers by 40 C.F.R. § 141.32(a). Defendant shall mail an updated notice to its customers and to EPA monthly thereafter. Within 24 hours of mailing the Notice and each updated notice to its customers, defendant shall certify to EPA said mailing.

b. To The Public. Defendant shall notify the public of its failure to comply with applicable maximum contaminant levels in accordance with 40 C.F.R. § 141.32(b). The content of defendant's notice shall be the same as the Notice described in Paragraph 1(a) of this Order, above, except that it shall be modified to address the general public and to include a description of the geographic boundaries of defendant's district.

2. CHLORINATION: Defendant shall undertake to supply potable water, in accordance with the schedule set forth below, to all of its customers, including those customers whose water comes directly from the transmission main above the reservoir, in accordance with the schedule set forth below. The program of supplying potable water shall include both chlorination and coagulation. The water treatment shall be performed by an operator certified by the California Department of Health Services ("DOHS"), with at least a Grade II certification, as defined in the California Administrative Code, Title 17, Part I, Ch. 5, Subchapter 1. In complying with this Order, defendant shall treat its water in accordance with the following schedule:

a. Within 24 hours of service of this Order, defendant shall supply bottled potable water that meets all requirements of the national primary drinking water regulations. Defendant shall make this water available to its customers at a central location or locations within the district at least twice weekly. Defendant shall continue to make this water available until it has fully complied with parts 2.c and 2.d of this Order.

b. Within 10 days of service of this Order, defendant shall install a chlorinator at the point where the supply of water enters defendant's reservoir from the transmission main. Said chlorinator shall incorporate an electric pump, be a solution-feed gas chlorinator and be capable of supplying 10-100 lbs. of chlorine per day. It must have a diffuser with a chlorine injector, which must be directed from the inlet toward the outlet of the reservoir. The chlorinator shall be placed on a concrete pad, housed in a facility capable of being locked, and equipped with adequate electric power. It shall also have an alarm system to protect against chlorinator failure. The choice of chlorinator and design of installation shall be supervised by EPA or its delegate.

c. Within 14 days after service of this Order, and at all times thereafter, the chlorine residual shall be maintained at no less than 0.2 ppm at the farthest point in defendant's distribution system. Chlorine residual shall be measured in accordance with Standard Methods for the Examination of Water and Wastewater, Sixteenth Edition.

d. Within 14 days of service of this Order, and at all times thereafter, defendant's water system shall meet the Maximum Contaminant Level for coliform bacteria as specified in 40 C.F.R. § 141.14.

e. Within 60 days of service of this Order, defendant shall install a second chlorinator in such a location as to inject chlorine into the reservoir outlet pipe at the head of the distribution system. This chlorinator shall have an electrically powered pump and be a meter-driven gas chlorinator with flow proportional control capable of delivering 10-100 pounds of chlorine per day. It must have an alarm in case of malfunction. The choice of chlorinator and design of installation shall be supervised by EPA or its delegate.

f. Within 90 days of service of this Order, defendant shall install a dual head pump coagulant feeder, equipped with a hydraulic mixer. It shall have two fiberglass tanks with a capacity of no less than 100 gallons each. The coagulant feeder shall be located along the transmission main between the first-installed chlorinator and the Boardman Canal diversion. The choice of coagulant feeder and details of installation shall be supervised by EPA or its delegate.

3. ANALYSIS AND MONITORING. Except as otherwise specified, defendant shall commence monitoring and analysis of the water quality of its system within ten (10) days of service of this Order. Analyses other than for turbidity will be performed by a DOHS certified laboratory as required by 40 C.F.R. § 141.28. All analyses are to be performed as follows:

a. Coliform Bacteria. Defendant shall monitor and analyze for coliform bacteria as specified in 40 C.F.R. § 141.21, except that it shall monitor and analyze weekly.

b. Turbidity. Defendant shall monitor and analyze for turbidity in accordance with 40 C.F.R. § 141.22.

c. Residual Chlorine. Defendant shall monitor and analyze daily for residual chlorine at the point in the distribution system furthest from the chlorinators.

d. Organics, inorganics, and radionuclides. Defendant shall monitor and analyze for inorganics, organics (other than trihalomethanes), and radionuclides in accordance with 40 (C.F.R. §§ 141.23, .24, and .26, respectively.

4. NOTICE OF ANALYSIS AND MONITORING RESULTS. Immediately upon receipt by defendant of any of the results of monitoring and analyses, defendant shall mail copies of said results to EPA and DOHS at the addresses set forth below.

5. NOTIFICATION TO EPA AND DOHS. For all notices required by this order to be served, the following addresses are to be used:

United States Environmental Protection Agency

Attention: Carole Truitt, W-6-4

215 Fremont Street

San Francisco, California 94105

State of California

Department of Health Services

Attention: Ben Karoly

8455 Jackson Road

Sacramento, California 95826

6. CERTIFICATION. All reports required to be submitted to EPA and DOHS under this Order shall be accompanied by the following statement signed by a designated officer of defendant: "I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel gather and evaluate the information submitted. Based on my inquiry of the persons directly responsible for gathering the information, I certify that the information is, to the best of my knowledge and belief, true, accurate and complete. I am aware that there are significant penalties for submitting false information."

7. SUPERVISION AND COOPERATION. With respect to any act defendant is required by this Order to perform, EPA and DOHS personnel and their agents and contractors shall have complete freedom of access to defendant's district, property, agents and contractors, facilities, equipment and records related to compliance with this Order.

8. NON-WAIVER. No provision of this Order shall be construed to waive any requirements imposed upon defendant in the operation of its water system, whether such requirements are imposed by the Safe Drinking Water Act and regulations promulgated thereunder, or by any other statute, regulation or judicial or administrative proceeding.