United States v. Midway Heights County Water District

No. Civ. S-87-1112-RAR/EM (695 F. Supp. 1072 at 1075, 27 ERC 2185) (E.D. Cal. June 6, 1988)

The court holds that a county water district is a public water system under the Safe Drinking Water Act (SDWA) and that the government has shown that the water system may present an imminent and substantial endangerment to human health under SDWA § 1431. The court first holds that defendant qualifies as a public water system under the SDWA, since individuals use the water for human consumption at over 15 service connections and at least 25 people use the water for human consumption on a regular basis. Although some of these customers may also purchase bottled drinking water, human consumption also includes such normal uses as bathing, cooking, dishwashing, and oral hygiene. The court holds that the government has demonstrated an imminent and substantial endangerment to human health. The government need not demonstrate that defendant's failure to comply with the SDWA has already caused illness. The court holds that there is a sufficient factual basis to support its requirement that defendant install a chlorination/coagulation system to remedy its violations. The court holds that alleged financial difficulties imposed on defendant are inadequate to justify a stay of the preliminary injunction.

Counsel are listed at 19 ELR 20140.

[19 ELR 20142]

SAMUEL P. KING, Senior District Judge.

ON APPLICATION FOR STAY OF PRELIMINARY INJUNCTION PENDING APPEAL

This matter came on for hearing before the Honorable Samuel P. King on May 31, 1988 on the application of defendant Midway Heights County Water District ("Midway Heights") for a stay of the preliminary injunction issued in this case on February 26, 1988 and amended March 25, 1988. Having given full and careful consideration to the written and oral arguments presented, this Court finds as follows:

I. Legal Standard

The standard for evaluating a stay pending appeal is similar to that employed when determining whether to grant a preliminary injunction. Lopez v. Heckler, 713 F.2d 1432 (9th Cir.1983), rev'd in part on other grounds, 463 U.S. 1328, 104 S. Ct. 10, 77 L. Ed. 2d 1431 (1983). As moving party, Midway Heights may meet its burden by demonstrating either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardship tips sharply in its favor. Lopez, 713 F.2d at 1435; Los Angeles Memorial Coliseum Com'n v. Nat. Football League, 634 F.2d 1197, 1201 (9th Cir.1980). "These are not separate tests, but the outer reaches 'of a single continuum'", Los Angeles Memorial Coliseum, 634 F.2d at 1201, and "the relative hardship to the parties is a critical element in deciding at which point along the continuum a stay is justified." Lopez, 713 F.2d at 1435.

II. Discussion

The parties have stipulated that the level of contaminants present in the water provided by Midway Heights exceeds maximum contaminant levels permitted under federal safety standards. However, Midway Heights contends that it does not provide drinking water for domestic use to enough customers to qualify as the owner and operator of a public water system within the meaning of the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300f(4). I find that individuals use the water supplied by defendant for human consumption at over 15 service connections, and that at least 25 individuals use the water supplied by defendant for human consumption on a regular basis.

This determination, originally based on evidence provided by the government in support of the preliminary injunction, is affirmed by the survey recently prepared and provided by Midway Heights in support of its application for a stay. United States v. Midway Heights, Declaration of John Mendez in Support of Reply, Exhibit 1 at 23, 25 (May 27, 1988). The survey indicates that 40 households representing 113 users receive totally untreated tap water from the district. Although a number of these customers may also purchase bottled water for drinking purposes, as the survey suggests, this court has previously interpreted "human consumption" to include such normal uses as bathing and showering, cooking and dishwashing, and maintaining oral hygiene. United States v. Midway Heights, Order Amending Order Granting Preliminary Injunction, p. 3 para. 2(g) (March 25, 1988). Defendant has not demonstrated that customers who purchase bottled drinking water use it for such purposes. My previous finding that Midway Heights owns and operates a public water system within the meaning of SDWA stands.

The Water District maintains that the government has failed to demonstrate that the water system "may present an imminent and substantial endangerment to the health of persons, . . ." as required by SDWA § 1431(a), 42 U.S.C. § 300i(a). Midway Heights contends that the government must demonstrate that its failure to comply with maximum contaminant levels has already caused illness among water district customers. I disagree. The SDWA authorizes preventative actions when a contaminant which is present in or is likely to enter a public water system may present an imminent and substantial endangerment to the health of persons. 42 U.S.C. § 300i(a). The widespread contamination of the system with organisms which are accepted indicators of the potential for the spread of serious disease in an untreated water system presents the imminent and substantial endangerment. This court need not wait to exercise its authority until water district customers have actually fallen ill from drinking Midway Heights water.

The water district also takes exception to the injunction on the grounds that installation of the chlorination/coagulation system is contrary to generally accepted engineering practices, is not supported by the evidence and will not bring Midway's water into compliance with federalwater quality standards. These arguments are not convincing. Midway's engineering expert agreed during oral argument that chlorination is a necessary element of any plan for bringing Midway's water into compliance with federal standards. Moreover, Midway does not, except in vague and conclusory terms, contend that the particular chlorination system required by the injunction is not workable. On the other hand, the government submits credible evidence that implementing the steps outlined in the preliminary injunction will achieve substantial compliance with the federal standards, satisfactory as an interim measure. I find that there is a sufficient factual basis to support proceeding with the chlorination system specified in the injunction.

Substandard water continues to pose an imminent and substantial danger to the health of users. The water district argues it will endure financial difficulties and the resignation of voluntary board members if the stay is denied. This kind of economic hardship is inadequate to justify staying the preliminary injunction. See Long v. Robinson, 432 F.2d 977, 980-981 (4th Cir.1970) [economic injury short of complete destruction of a business rarely, if ever, grounds for stay]; Virginia Petroleum Jobbers Ass'n v. Federal Power Comm'n, 259 F.2d 921, 925 (D.C.Cir.1958). This is particularly true where, as here, preventable human suffering figures in the balance. See Lopez v. Heckler 713 F.2d 1432, 1437 (9th Cir.1983).

In view of the above, I find that Midway Heights has not met its burden of demonstrating a probability of success on the merits or that the balance of hardship tips in its favor. Nor am I persuaded that [19 ELR 20143] compliance with the preliminary injunction will cause it irreparable injury.

ACCORDINGLY, defendant Midway Heights' application for a stay of the preliminary injunction pending appeal is HEREBY DENIED.