UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
____ WASHINGTON. DC. 20460
¼
ofFICE OF
I U WATER
MEMORANDUM
SUBJECT: Model Pleadings for Safe Drinking Wate r, Act
Public Water System Enforcement Cases
FROM: John R. Trax, Chief (\J (2
Drinking Water Branch (WH—550) J’ .” ’ ’ -
TO: Regional Drinking Water Branch Chiefs
Regions I—X
Many of you are reviewing violation histories of public
water systems against the possibility of referring civil action
to the Department of Justice (DOJ). You will be actively involved
in the preparation of the technical docuxnentationfor the-eases
and you should be aware of information which the enforcement
lawyers at Headquarters have assembled on histor çal cases.
On March 1, 1984, Louise Jacobs, then — Associate Enforcement
Counsel for Water, distributed a notebook of model plea thgs for
public water system cases. The notebook was s nt to R egional
Counsels, who should share the information with-you. 1 ached is
a copy of the memo which transmitted the notebook; it mayhelp
you in tracking the book through Regional Counsels’ office.
I think you will find the information to be both us uhl and
interesting, and I encourage you to review it even t i f you are ‘nqt
actively developing any enforcement cases. If you are certain
that no one in your Regional Office has the document, give me -a
call and I will arrange for a copy to be sent to .yQu.
Attachment
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SI 4 *:
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASH NGTON,D.C 20460
PRQ1 ’
wI B 4
OFFICE OF
ENFOPCFMFNT AND
COMPLIANCE MONITORING
MEMORANDUM
SUBJECT: Safe Drinking Water Act Public Water
System Enforcement del Pleadings
FROM: Louise D. Jacobs
Associate Enforce nt ounsel
for Water
TO: Regional Counsels, Region I—X
The notebook which accompanies this memorandum contains
model pleadings which in our view are among the best developed
by the Agency in its actions against the owners and operators
of public water suppliers in violation of the Safe Drinking
Water Act (SDWA). This book was compiled in response to
specific requests from Regional attorneys contemplating SDWA
oversight actions and to requests made during the recent
National Enforcement Conference by Regional Counsels and Water
Division Directors for useful Headquarters litigation guidance.
tn conjunction with Vie Kimm, we intend in the near future
to supply you with procedural oversight litigation guidance to
help further with these cases. Meanwhile, Regions that are
developing their initial SDWA oversight enforcement actions ——
the first SDWA oversight actions nationally —— should consult
closely with this office before a referral is made to the
Department of Justice.
We would like to provide the Regions with enforcement
notebooks of model pleadings in other areas of water w. To
help us in doing so, we seek your cooperation. Please 1 cofitinue
to provide this office with informational copies of al1 pl adingS
in water enforcement cases. If there are older pleadings which
you deem appropriate as national models, please submit them.
If we have the materials at hand, we can compile additional
enforcement notebooks. I would also appreciate your comments
on the accompanying SDWA materials.
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If you have any questions regarding the SDWA enforcement
pleadings, please contact me or David Drelich of this office.
We may be reached at 475-8180 or 382-2949, respectively.
Attachment
cc: Courtney M. Price
Victor Kimm, ODW
Stephen Ramsey, DOJ
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r^L ~-OT=CTlC'f\i AGENCY
D C 2C-^50
MEMORANDUM
SUBJECT: Safe Drinking Water Act Enforcement Actions
r\
FROM: Courtney M. Price
Assistant Administrator f<
Enforcement and Compliance Monitoring
TO: Jack E. Ravan
Assistant Administrator for Water
With a new year upon us, you may be interested in a review
of our efforts to enforce the Safe Drinking Water Act (SDWA)
against noncomplying public water suppliers.
Seventeen SDWA cases were filed in 1983 against public
water suppliers in three non-primacy States for various viola-
tions of the National Interim Primary Drinking Water Regulations.
Thirty such cases have been filed since the first was filed in
1979, with a total of $110,852 received to date by the Government
in settlement or by judicial decree (see Attachment). A number
of cases are not yet cpncluded.
Typically, our cases against public water suppliers allege
consistent failures to monitor -and report on drinking water
supplies and to notify the public of violations. In the more
egregious cases, the Agency has documented violations of maximum
contaminant levels for such parameters as turbidity, bacteria
and nitrates. With a few exceptions, the Government's arguments
have been well received by the Federal courts.
The following two 1983 cases were particularly noteworthy:
1. United States v. Perkiomen Valley Preservation
Society, Inc. (E.D. Pa. November 7, 1983). This defendant was
substantially violating maximum contaminant levels for bacteria
an^ turbidity and was the subject of the first emergency SDWA
Administrative Order issued against a public water supplier.
The District Court later approved a Consent Decree which requires
the complete replacement of the existing water distribution
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2
and sewer collection systems by February 1, 1984, imposes
additional operational requirements, and also levies a civil
penalty of $8,000.
2. United States v. William B. Tenny, et a].. , 19 ERC
189]. (M.D. Pa. July 27, 1983). Although the government alleged
only monitoring and reporting violations, this case went to
trial. The defendant did not appear for the trial and, after
hearing the Government’s testimony, the court imposed a $25,000
civil penalty. The court also noted the defendant’s “flagrant
and willful disregard of basic and simple measures to insure a
safe water supply.”
Attachment
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SAFE DRINKING WATER ACT CASES
CIVIL ENFORCEMENT DIVISION
REGION III
Name of Defendant!
Facility Location
Date
Filed
Status
Penalty/
Special Relief
Cherry Tree Bor Muni,
Cherry Tree, Pa.
4/7/83
active
—
Monument Water Assn. ,
Centre County, Pa.
2/3/83
Default
judgment
Injunctive re—
lief, judge re—
jected penalty
request
Orviston Water Assn. ,
Orviston, Pa.
2/21/83
active
Proposed CD
sent to defen—
dant with $500
penalty
Oval—Oriole Water,
Lycoming County, Pa.
4/25/83
CD
-
$500
Perkiomen Valley Pre—
servation Society,
Green Lane, Pa.
9/30/83
AO &
CD
$8,000 & I
broad irijunc—
tive relief
Salemville Water Assn. ,
Bedford County, Pa.
9/29/80
CD
$100 &
required to
discontinue
use of surface
water source
Tenney, Wm. B., et al.
Hamden Twp., Pa.
6/23/80
Trial
concluded
$25,000
West Carroll, Twp. of
West Carroll Tw., Pa.
4/7/83
active
—
Whiskey Run Water,
Farrandsville, Pa.
8/16/83
active
Motion for
default filed
1/84 seeking
$4 0O penalty
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SAFE DRINKING WATER ACT CASES
CIVIL ENFORCEMENT DIVISION
REGION VIII
Name of Defendant/
Facility Location
Date
Filed
Status
Pena lty/
Special Relief
Avelino Gutierrez,d/b/a
A & K Trailer Court,
Rock Springs, Wy.
3/22/83
CD
$100 civil
penalty and
$900 in improve
merits
Alcova Acres Invest,
Alcova, Wy.
8/13/82
CD
$1,000 & re—
quired to pro—
vide bottled
water until
PWS complies
Alpine Water and Sewer
District, Alpine, Wy.
9/6/83
active
—
Alta Commun Pipeline,
Alta, Wy.
3/22/83
CD
$100 civil pen—
alty & $900 in
improvements
Grover Domestic Water
Works, Grover, WY.
8/15/83
active
—
Happy Valley Pipel.,
Afton, Wy.
8/13/82
CD
$0 — required
to install
$2,000
chlorinator
McGuire Trailer Ct. ,
Rock Springs, Wy.
3/22/83
active
Si civil pen—
alty and $999
in improvements
North Alton Pipeline,
Aftori, Wy.
8/13/82
Default
J’ment
Penalty
question still
open
Osmond Pipeline Co.,
Af ton, Wy.
3/22/83
active
$1 civil pen—
alty and $999
in improvements
Rainbow Pipeline Co.,
Afton, Wy.
10/14/80
CD
$0 — Judge
rejected
penalty in CD
$0 — system I
turned over tol
[ new supplier
IRio Vista Homesites,
Green River, Wy.
I
10/14/80
j
Default
J’ment
J
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SAFE DRINKING WATER ACT CASES
CIVIL ENFORCEMENT DIVISION
REGION X
Name of Defendant!
Facility Location
Date
Filed
Status
Penalty/
Special Relief
Alder Creek Water Co.,
Portland, Or.
9/19/79
active
Court placed
company in
receivership
for 2 1/2 yrs
Glen Villa Tn. Park,
Glendale, Or.
11/12/82
CD
$2,500
London Water Coop, I
Cottage Grove, Or.
1/25/83
CD signed
by Detert-
dent
$100 and
equipment in—
stalled
Midland Water Assn.,
Clatskanie, Or.
1/7/83
CD signed
by Defen—
dant
$3,000
Mitchell Water Assn.,
Bend, Or.
11/12/82 I
Summary I
Judgment
$3,350
Mt.View Motel & Trailer 11/12/82
Chemult, Or. CT
j
Neskowin Enterprises, 4/4/79
Neskowin, Or.
Default
J’ment
($50/day)
$6,800 lien
J .
Summary
Judgment
$26,400
Partney Mobile Home
Park
Pilot Rock, Or.
11/8/83
active
—
,
Tivoli Mobile H. Park,
Junction City, Or.
11/12/82 CD
H Defau1t
$2,000
Westgate Mobile Home
Park,
Ontario, Or.
5/9/83
J’ment
($50/day)
$35,400
I
J..
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INTRO D El CTI ON
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D Sr 4 .
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
14:
OFFICE OF
ENFORCEMENT AND
COMPLIANCE MONITORING
INTRODUCTION
This notebook is intended to guide Regional attorneys in
the prosecution of civil cases against public water system
owners or operators for violations of the Safe Drinking Water
Act (SDWA). The materials in this book, subiect to the
qualifications described below, are drawn from the best legal
models and materials available at EPA Headquarters. Because
the ludicial enforcement effort against public water suppliers
is recent, the cases brought to date do not cover all possible
situations that may arise in SDWA ]itigation. The pleadings
included here, however, are probably representative of the
great ma-lority of cases that will be brought under Subpart B of
the SDWA. In the event i-hat a Regional attorney faces an issue
of first impression or national significance, that attorney
should consult Headquarters water legal enforcement staff
(presently, Water Enforcement Division, Office of Enforcement
and Compliance Monitorinq).
The Safe Drinking Water Act does not empower the Agency to
issue Administrative Orders —— with the singular exception of
emergency situations as defined by Section 1431 of the Act (see
Emergency Administrative Order tab). Consequently, the Regional
waer ram ofFice c ot le ±1y issue a Show Cause Order,
or require Corrective Action in a letter, or otherwise instruct
a public wat _ oplier _ to take an action, unless it is under
the_emergency authority of the SDWA. Such orders are unenforce—
- ___
able and may affect the Agency’s equitable position in court.
Th Region may request action , or describe approPriate measure
of compliance to a SDWA violator, arid certainly should explain
to the noncomplying owner or operator his oh]igations under the
law. (See Litigation Report tab materials).
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2
The litigation report should include as attachments all
supporting documentation that the government can use to support
its case in court. Although not included in the sample, these
may include affidavits from expert witnesses, charts of
violations, scientific reports, and other documents. A draft
complaint shou]d accompany each referral at the time of referral.
Two complaints are included as models in this notebook. The
first count of the Westgate complaint, which pleads “willfulness”
as a separate paragraph without any other allegations, is the
superior pleading form. This sixth claim of the Alcova Acres
complaint provides a useful model for pleading a Section 1431
count.
The discovery materials are suqgestive; every case is
different on its facts, so all discovery will differ. A response
to the Midland discovery is included as illustrative. The
motion for summary judqment that follows refers back to Midland ’s
answers to the discovery requests.
The sample motion for summary judgment is very good,
although every pleading can be improved. If you use this
pleading as a model, remember that it was prepared for a
particular district court (its precedents may not apply in your
district), its cases are Shepardized only to the date of filing,
and that its facts may not apply to your SDWA case. These
qualifications also hold true for the model motion for default
judgment.
The pretrial order was lodged pursuant to a Local Rule.
Please check your local court rules to confirm the practice in
your district.
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3
The sample judgment was entered in a motion for default.
The form of a judgment may differ with the circumstances of
each case.
The interlineations on the model consent decree were added
at Headquarters for purposes of providing the best possible
model pleading to Regional attorneys. The stipulated penalties
noted in the Glen Villa consent decree are suggestive; every
case is different. We do recommend, however, that penalties
not be set so large that the Region would hesitate to enforce
its decree, nor so small that they represent an acceptable cost
of doing business to the defendant. An ascending penalty scale,
as indicated in the model, is a reasonable approach. Any
consent decree written by the Region must receive Headciuarters
clearance before being offered to the defendant, and will be
evaluated by Headquarters in accordance with the Agency!s settle-
ment policy (see SDWA Interim Settlement Guidance, this tab).
The jurisdictional statement in SDWA consent decrees should
provide a determinable termination date and also provide the
Agency with the ability to enforce all violations of each
consent decree.
Although not all the models included in this notebook are
signed by every party, each (without emendation or interlinea—
tion) has been filed in court.
Office of Enforcement and
Compliance Monitoring
Water Enforcement Division
February 1984
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SJq)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. DC 20460
PR0 ’
Mr n, 1 OFFICE OF
l’ UV I 7 1983 ENFORCEMENT
MEMORANDUM
SUBJECT: Safe Drinking Water Act Public Water System
Settlements — Interim Guidance
FROM: Courtney M. Price
Assistant Administrator, Office of
Enforcement and Compliance Monitoring
TO: All Regional Administrators
All Regional Counsels
Introduction
Since 1979 EPA has referred 30 Safe Drinking Water Act (SDWA)
cases against public water suppliers to the Department of Justice.
Sixteen of these cases have been filed by Justice during 1983
alone. With this increase in litigation, three different settle-
ment patterns have developed among the three Regions referring SDWA
cases (see attached charts). This document establishes criteria
that will promote a coherent national enforcement policy governing
SDWA settlements in cases against public water suppliers. Proposed
Regional settlements not consistent with these criteria will not
be concurred in by this office and will not be recommended to the
Department of Justice.
Due to negotiations currently underway in a number of SDWA
cases, this guidance is being issued for immediate use in interim
form at this time. This guidance shall remain in effect until
further notice. Comments are invited on the policies set forth
herein.
The Office of Drinking Water has been consulted on this policy.
. Injunctive or Administrative Relief
Except for extraordinary cases in which it is physically
impossible for a public water supplier to comply with a maximum
contaminant level ( 4CL) or other appropriate health standard, all
settlements must remove all health hazards or risks associated
with the public water supplier’s SDWA violations. Violations of
MCLs shall be abated as soon as possible, whether through the
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2
provision of alternate water supplies, installation of treatment
equipment, or other means. IL settlement inaus h circumstances is
n2 j. une. k tely available, Regional Administrators _ b ui issue a
administrative order under §1431 of the SDWA where warranted,
a pri1iminaryJ junQtion orderipg appropriate reLj ,e . .
) Monitoring, Reporting, and Notification Duties
Because public exposure to health risks is also increased by
a public water supplier’s failure to comply with the SDWA regula-
tions governing monitoring, reporting, and public notification
duties, all settlements must require full compiiance with
1 .rej 1atións governing monitoring, reporting 1 and piibIic notification
dties. In cases in which -the defendant has failed to monitor for
any contaminant during the most recent monitoring period, all
settlements should require appropriate monitoring to be conducted
within 30 c1ays of cjj ’ie er try pf the, settlement with the court.
Civil Penalties
Civil penalties have two components: the recovery of
economic benefits accruing from noncompliance, and the imposition
of a penalty to deter further violations. All settlements should
( recover the economic benefits that have accrued to the defendant
throu h his nonco pliance . Proposed settlements which do no€
recover economic benefits should explain why they do not. A
rdeterrence component must also be included in each settlement,
although its amount may vary according to the factors discussed
below. -
Calculations of benefits should include applicable amounts
saved through the avoidance of sampling, mailing, public notice,
laboratory, and capital equipment costs. 1 Labor costs to conduct
sampling and other tests may be included at Regional discretion.
As a rule, inferred costs for volunteer labor for small public
water suppliers need not be included in the government’s final
settlement offer, although costs for paid employees of larger
systems should be included in settlement. This distinction is
based on financial differences among defendants and their effect
on achieving settlements.
The deterrence component presents a more complex calculation.
The primary factors to consider in determining the Agency’s final
Economic savings of capital costs may be calculated by tt e
costs. (The 1980 Civil Penalty Policy pro-
vides an example of a detailed method to estimate economic savings
enjoyed by deferral of capital expenditures.) In all SDWA cases
brought to date, economic savings to the violator for failures to
monitor, report, or notify have been slight. Very few cases have
required construction or equipment installation costs.
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3
settlement offer are those enumerated in the Safe Drinking Water
Act itself — “the seriousness of the violation, the population at
risk, and other appropriate factors.” SD A §1414(b), 42 U.S.C.
§300g —3. All settlements reached should specifically attempt to
deter the violator from further noncompliance. Deterrent penalty
amounts should reflect the severity of the defendant’s violations.
Most seriouI are MCL violations associated with outbreaks of water—
borne illness among the defendant’s consumers, followed in order
by MCL violations of bacteriological, nitrate, or turbidity limits,
other MCL violations, failures to notify the public or EPA of
violations, monitoring violations, and reporting violations. The
Region should also consider the willfulness or recalcitrance of
the defendant, its financial resources, the length of time over
which the violations have occurred, and the general deterrent
effect of the settlement on similarly situated violators in the
same area.
Unless there are extraordinary circumstances, no settlement
may include a deterrent component of less than $1,000. All settle-
ments shall include a deterrent component.
If a settlement that includes an appropriate civil penalty
cannot be achieved, the case should be litigated through trial. 2
Conclusion
Adherence to this settlement policy will affect certain
pending cases. Cases which a Region determines are significant
enough to refer merit application of the minimal settlement
requirements set forth above to promote effective enforcement
responses. The potential for adverse affects on human health by
violation of the SDWA compels rigorous enforcement of the Act tO
achieve remedies for existing violations and to deter future
violations.
Attachment
cc; Rebecca Hanmer
- F. Henry Habicht
2 See Memorandum dated September 7, 1982, titled “Case Referrals
for Civil Litigation” from Acting Enforcement Counsel to Regional
Counsels: “ [ R]eferrals to Headquarters and DOJ for the purpose of
applying pressure on a party to settle should not be made unless
the Regional office is willing to carry the case through a suit.”
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
2
MEMORANDUM
SUBJECT: Safe Drinking Water Act Enforcement Actions
FROM: Courtney M. Price Original Signed B r1
•Assistant
Enforcement and Compliance Monitoring
TO: Jack E. Ravan
Assistant Administrator for Water
With a new year upon us, you may be interested in a review
of our efforts to enforce the Safe Drinking Water Act (SDWA)
against noncomplying public water suppliers.
Seventeen SDWA cases were filed in 1983 against public
water suppliers in three non—primacy States for various viola-
tions of the National Interim Primary Drinking 7ater flegulations.
Thirty such cases have been filed since the first was filed in
1979, with a total of $110,852 received to date by the Government
in settlement or Ly judicial decree (see Attachment). A number
of cases are not yet concluded.
Typically, our cases against public water suppliers allege
consistent failures to monitor and report on drinking water
supplies and to notify the public of violations. In the more
egregious cases, the Agency has documented violations of ttaximur i
contaminant levels for such parameters as turbidity, bacteria
and nitrates. With a few exceptions, the Government’s arguments
have been well received by the Federal courts.
The following two 1983 cases were particularly noteworthy:
1. United States v. Perkiomen Valley Preservation
Society, Inc . (c.D. Pa. flovember 7, 1983). ThLs defendant was
substantially violating maximum contaminant leveis for bacteria
and turbidity and was the subject of the first emergency SDWA
Administrative Order issued against a public water supplier.
The District Court later approved a Consent Decree which requires
the complete replacement of the existing water distribution
CONCURRENCCS
MBOL i -
L -: .I3M
RHAM E .‘ Z ’ai t.
DATE /.l .( ? 1- Wg.
EPA Form 1320 1(12 70)
8!
....
.
.
..
-
OFFICIAL FILE COPY
1983 0 -
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2
and sewer collection systems by February 1, 1984, imposes
additional operational requirements, and also levies a civil
penalty of $8,000.
2. United States v. William B. Tenny et al. , 19 CRC
1891 (M.D. Pa. July 27, 1983). Although the government alleged
only monitoring and reporting violations, this case went to
trial. The defendant did not appear for the trial and, after
hearing the Government’s testimony, the court imposed a $25,000
civil penalty. The court also noted the defendant’s “flagrant
and willful disregard of basic and simple measures to insure a
safe water supply.”
Attachment
Prepared by: DDrelich/cdm/1—18—84/382—2949/LE—134W
DISC: Drelich corrected/cdm/1—19—84
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EMERGENCY
ADMINISTRATIVE ORDER
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Clean 7ater Act Citizens May not Lir’nc Penalty—Only Actions
rot P art t7 c1r nsAccordxno to 1 i rst Circuit
On December 13, 1986? tho Fiist Ci cuit Court of Aepeals
ruled that citizens may not sue undei CWA 5505 to collect
penaltzes for purely past violations. ( Patuxent Cove Na ina ,
Inc. v. Ciba GeiQy p., No. 06—1227 (1st Ci i. 1985)). —
The Court held that a citizen olaintiff must he able to allege
a ccntinuing violattort in 1±e sense that there is a need tot an
1 flj unct ion.
The Jower couct (D.R.I) had dismissed plaintiff’s CW claims,
wh ch were based on violatlons of an NPDES permit no longer in
effect, the discharger having tied into a puclic sewerage
systems. The First Circuit affirmed this dismisal, rejecting
the Fourth Circuit’s view tflec 5505 jurisdiction encomp4sses
suits for ‘aurely past violatLonn Jot civil penalties only).
(See, Chesapeake Bay Foundation v. Cu’altney of Smithfield , 791
F. 2d 304 (4th Cir. 1996), cert. granted recently). The First
Circuit also rejected a lttecal. interpretation which would
reguii-e violations to be occurring at the tune the complaint is
filed (Cf., Sierra Club V. ConoJymc’u’lRubher , 621 F. Supp. 1313
(M.D.La.), appeal pending in 5th Cii-.), and indicated that a
reasonable allegation that a defendcnt 1 s violations of the
Clean Water Act are likely to continue unless enjotned is
sufficient to sustain juLisdiction.
Settlement in U.S. v. Perkiomen Valle y Preservation Society ,
Inc.
On January 9, Defendant Donald Neilson signed a consent
decree settling a $270,000 cla m against Packiomen Valley
Preservatjon Society for a 3126,030 plus interest payment.
rrhis collection action case settles a long series of EPA
enforcement actions that commenced with an Emergency tdmini—
strative Order- issued in rarch 1983 because sewage was in tne
drinking ; ater. The A.O. was not complied with and a civil
action was filed on Sentember 30, 1983. This action was settled
on November 3, 1983 with a consent decree. The decree provided
for an $8.000 penalty and stipulated penaltias to ensure compli—
an’ce with a construction scnedule. The construction schedule
was not followed and a conce apt action was Filed on -April 10,
1984, which resulted in a 3270,000 award on July 3,- )984. 1 Ihe
Third Circuit affirmed the awarP on April 27, 1985. This
coliection action sought to pierce the corporate vei) and
obtain relief against the orincmpc1. ownet, Donald Neilson. The
5125,000 settlement is the highcst obfimned under the Safe
Drinking Water Act.
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tB $5 I4 4
‘ f Tj
____ UNITED STATE3 ENV)RDNMENTAL PROTECTION AGENCY
fr REGION U i
‘
6TH AND WALNUT STREETS
PI-flLADELPHIAPENN5YLVAN A 19106
AuG 9 1984
Thomas E. Ward
Rosewood Manor Mobile Home Park
R.D. #1
Prosperity, Pennsylvania 15329
Dear Mr. Ward:
Enclosed is an admininstrative order issued under Section
1431 of the Safe Drinking Water Act, 42 U.S.C. §300i. The
order is based on EPA ’s finding that the presence of the con-
taminant coliform bacteria in the water supply of the Rose—
wood Manor Mobile Home Park presents an imminent and sub-
stantial endangerment to the health of the people served by
that water supply. The order sets forth the actions which
you must take to assure that the people served by the water
supply are provided with safe drinking water. You must imxned—
Aately take the required actions. The penalties for failure
to comply are set forth in the order.
EPA is prepared to meet with you to discuss any matters
you may wish to raise in connection with the enclosed order.
To request a meeting please contact attorney . ohn Cooper of
our Office of Regional Counsel at the above address or tele—
phone Mr. Cooper at 2l5- 97—O993. Area st for a meeting
will not postpone your obligation to coinp y immediately with
the requirements of the order .
Please note that upon receipt of the order you should
contact John Stoecker, Water Supply Branch, EPA, Region III
at 215—597—27U3 to advise him of what method you will use ,
to provide the alternate water supply. We look fdrward to
your cornp1ian e in this urgent matter.
Sirtcerely ,
/1
Greene A. Jones
Director, Wat.er D vision
Ertcl osure
p. —
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BEFORE ‘ NE UNITED STATES ENVIRONMEbITAL P1 YTECTION AGCCY
RExIctq III
CU ’I$ BJIWIfC
SW km s’?J.MYT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
IN WE MATTER OF
Thanas F. ttrd
Itse cod Manor Mobile Hcne Park
P., D, #1 EMER3ENCY ACtttNISTRATIVE
Prosperity, PA 15329 ORDER
P )CEEDINGS UNDER SECTICN
1431(a)(1) OF ‘ NE SAFE DRINKING rZX3CET NO. 1 1 1—84—001 —Cs
S’amRAcr, 42 u.s.c. S 300i(a)(l)
The folla’iing FINDINGS are made and ORDER issued pursuant to the
authority vested in the .%irninistrator of the Environrental Protection
gency (hereinafter EPA”) under Section 1431 of the Safe Drinking Water
Act, 42 U.S.C. § 300i.
FINbIr ’ S
1. Thcrnas E. Ward owns and operates a public drinking water supply
systari at Jt sewccx3 Manor Mobile Acme Park (hereinafter “Roseccod”),
Washington County, R.D. #1, Prosperity, Pennsylvania, which system is
subject to the Safe Drinking Water Mt (hereinafter ‘SC4 ”), 42 U.S.C.
S 300f et ag., and the NationaL Interim Primary DrinK±ng Water Regulations
(hereinafter “NIPthQR”), 40 C.$’.R. Part 141 pranulgated pursuant thereto.
2, EPA Is in receipt of information that contaminants present in
the Rosescod public water supply present an inninent and substantial
endangerment to the health of consumers served by the Roseicod system.
Specifically, sanples collected on July 16, 1984 and analyzed by the EPA
Steeling Laboratory have indicated the presence of coliform bacteria at
more than 80 times the applicable standard (40 C.F.R. §141.14); and
information received fr an local residents indicates that the water supplied
at j sesccd varies fran brc’gri to black in color, contains suspended rrtatter,
and exudes a foul odor like that of human waste. These contaminants
present an imninent endangerment because they are subject to inmediate
use and consumption by Rosewccd residents. The endangerment posed is
substantial because of the kno4n potential for waterborne disease these
contaminants present.
3. Appropriate State and local authorities have not acted to’protect
the health of Rose od residents in this matter.
5
1j )
n! inc i .io
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ORDER
1. Th as E. Ward shall iim diately provide an EPA approved alternate
source of drinking water to all consijners currently served by the se od
sySt in sufficient quantity for all reasonable dcn estic uses. and at
no additional cost to such conswners. The alternate source of drinking
water shall be in the form of bottled water or one or n re tank trucks
of water frem an EPA approved potable water source, shall be of sufficient
quality to cc*itply with the NIPE R , and shall, be provided in a location
or locations convenient to the consui ers.
2. Thaitas E. Ward shall ir mediately advise all Rose od residents of
the availability of the alternate water supply through hand—delivered
written notice delivered to each occupied residence in the bbile Hcne
Park. The notice must further Inform the residents that EPA has determined
that the existing water supply is contaminated in violation of EPA National
interim Prin ary Drinking Water Regulations and should be boiled before use
in cooking, drinking or bathing. A copy of the notice given to residents
must also be provided by Thatias E. Ward to EPA, Region III, Water Supply
Branch (3 14O) at 6th and Walnut Streets, Philadelphia, Pennsylvania, 19106.
3. Thanas E. Ward rrn.st Continue to provide the alternate source of
potable water until such time as he d nstrates that the primary water
supply available to consumers at Rose od consistently meets the quality
standards of the NIPDWR, 40 C,P.R. Part 141 (published at 47 Fed. Peg.
10998 at March 12, 1982), and until EPA Region ill provides written
notice that the alternate source is no longer required
4. Within 30 days of receipt of this Order, Thcm s E, Ward must provide
EPA, Region I II, at the above address, a proposed schedule for bringing
the DSewccd public water supply syst n into canpliance with the Act
and the Regulations at 40 C. ’.R. 5 141. Specifically Thcznas E. Ward must:
a) Retain the services of an experienced water treatment
consultant;
b) Identify sanitary hazards in the syst n and prepare a
schedule for making ‘the necessary Ii*tprov ents to eliminate such
hazards;
a) Prepare an operation and maintenance schedule for the water
SySt it
d) Perfo uonitoring and conduct analyses in accordance with 40
C.F.R. § 141, Subpart C.
.4-.
ii a a
a2’ 5 1 :P
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e) Prepare a plan for financing needed bnprovenenta, Operation
and maintenance, and routine monitoring;
S. Ttanas C. Ward shall grant EPA Region II I, its nployees, contractors
or authorized representatives access to Rsecod at all reasonable times,
including but not limited to business hours, for the purpose of ensuring
cavpliance with this Order.
6. Thcxnas C. Ward shall implement the plans in accordance with the
schedules identified in Section 4(b) atc ve after such plans and schedules
have been approved by EPA.
Your failure to ccnply with the Act and Its R ulations or this Order
may subject you to the tollcming:
1. A civil penalty of up to $5,000 for each day of violation of a
National Interim Primary Drinking Water RegulatIon, 40 C.F.R. Part 141,
pursuant to Section 1414(b) of the Act, 42 U.S.C. § 300g—3(b).
2. A fine of not ntre than $5,000 per day of willful violation, or
failure or refusal to ccrnply with this Order, pursuant to Section
1431(b) of the Act, 42 U.S.C. § 300i(b).
Issued this ________ day of August, 1984.
By; ______________________________
Thc . Eichler
1 egional ninistrator
U.S. nvirormental Protection Agency
Region I II
/
6
02 ,05 13:20 7 3079 *05
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Emergency Administrative Order
Rosewood Manor Mobile Home Park
Jack Stoecker
PA. Implernerttatiofl Section
Water Supply Branch (3WM43)
Alan Morrissey, Attorney (LE 134w)
Office of Compliance and Enforcement MonitoriLng
Attached is the draft order to RosewoOd Manor Mobile Home Park
in Washington, PA as previously discussed by % ohn Cooper. Please
share with Nancy Wentowrth, Office of Drinking Water
Please call for discussions at FTS—597—2783.
Attachments
p
c 1Jc j’ 21
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Emergency Administrative Order
Re: Rosewood Manor Mobile Home Park
Greene A. Jones, Director
Water Management Division (3WMOfl)
Thomas P. Elchler
Regional Administrator (3RAOO)
I. FACTUAL BACKGROUND
The Rosewood Manor Mobile Home Park is owned by Thomas Ward
and is located two miles north o1 Prosperity, Pennsylvania. On
the premises of the park, Mr. ward operates a public water system
which services 330 residents through approximately 80 connections.
The sources of water for the system are 3 ground water wells, The
system’s treatment methods consist of both disinfection and
filtration.
EPA correspondence with Mr. Ward began in April, 1979 when EPA
contacted him for failing to submit inicrobiologlca3 monitoring
analyses. In September 1980, EPA cited Mr. Ward for exceeding the
microbiological maximum contaminant level of coliform. At that
time, water samples taken from the RosewoOd Water System revealed
a total co1i orm count of 25/100 ml compared to normal count of
1/100 ml. EPA directed Mr. ward to correct the contamination
problem, to notify his customers and direct them to boil their
water, and to send EPA copies of the customer notices and copies
of reports documenting that the contamination problem had been
corrected or to risk being fined for SDWA viola ions.
On numerous occasions between October, 1980, and November, 1983,
EPA confronted Mr. Ward with various problems regarding the safety
of his drinking water system. In addition to violating the maximum
contaminant levels for tota). coliform, Mr. Ward was cited for
failing to properly analyze, monitor and report contaminants in
the water system.
Recent samples collected by the EPA wheeling Field Office have
identified the presence of fecal coliform bacteria at exceptionally
high concentrations. Fecal coljforms are a subgroup of the total
coliform group. Whereas total coliform bacteria is used to indicate
the likely presence of disease causing organisms, the identification
of fecal coliforms indicates a direct correlation with fecal
contamination from warm blooded animals. We believe the Wheeling
data indicate the presence of an imminent and substantial endanger-
ment to the health of Rosewood consumerg.
/7
ø2i 5 13:22
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2
I . LEGAL AUTHORITY
Section 1412 (a) of the SDWA requires EPA to promulgate National
Primary Drinking Water Regulations for public water systems. Those
regulations are set forth in 40 C.F.R. Part 141, Subpart B, and
provide in pertinent part, the maximum microbiological contaminant
levels. Section 1431(a) of the Act grants the Administrator
authority to issue such orders as may be necessary to protect the
health of persons using a public water system upon receipt of
information that:
1. a contaminant is present that may present an imminent and
substantial endangerment, and7
2. State and Local authorities have not acted to protect the health
of such persons.
To the extent he determines practicable the Administrator must
consult with State and Local authorities,
The Administrator’s authority under Section 1431 was delegated to
the Regional Administrator on March 13, 1Q83. A limitation on the
delegation requires the RA to consult with the Associate Admini-
strator for Legal and Enforcement Counsel and the Assistant
Administrator for Water (or their designees) before exercising the
authority to issue orders, Glenn tinterberger, Acting Associate
Enforcement Counsel for Water, and Victor Kimm, Director, Office
of Drinking Water have been briefed on the attached Order. Comments
on the language from Headquarter ’s legal and technical staffs have
been incorporated.
I. TEC% NICAL ANALYSIS
Although there Is treatment at Rosewood Manor, It has been
inadequately operated and maintained to prevent the extensive
contamination recently identified in laboratory evaluations of
drinking water. Beginning in December 1Q83, the water contaminant
problem at Rosewood worsened, At that time, water sample analyses
from the Walker Residence at Rosewood, revealed levels of total
coliform which exceeded maximum contaminant levels. In addition,
the standard plate count registered at levels between 1,500 and
11,000 organisms/ml, far exceeding the normal level of 500/mi.
In May and June 1984, the levels of total coliform continued
to rise. Excessive levels were obtained not only from the beginning
of the water distribution Line (i.e., the Walker Residence, Lot
*3) but also were obtained at the end of the distribution line
(i.e., the Taylor Residence, Lot 453).
Finally, on July 20, 1984, coliform data was sent by wheeling
Laboratory to FPA. The levels of total coliforin reached amounts
P80/ln0 ml compared to the normal level of _C 1/100 ml. Moreover,
fecal coliforin Levels reached >16/100 ret compared to the normal
p2 1 nc “ :
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3
level of cl/Ion ml. The standard plate count was also excessive.
Ranging in levels between 1,100 and ,2 OO, the count far exceeded
the normal level of 500 organisms/mi. All samples were taken from
kitchen taps.
The State admits that it officially discontinued its water
supply surveillance activities on mobile home parks in May, 39R2.
All water quality complaints received by Pennsylvania DER have
been referred to P PA since that time. No other local authority
will act to rectify the water quality problem at Rosewood Manor in
spite of the fecal colifornt analysis results. This was confirmed
by John stoecker of EPA on July 26, 1984 by a telephone conversation
with Stevø steranchak of Pennsylvania DER.
IV. ACTION REQUESTED
Please sign the attached Emergency Administrative Order. It
will, respond to the excessive levels of total and feca] coliform
present In the drinking water at Rosewood Manor.
Ct
1 R
1 c c 1n : 2
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• O SZq
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
t N ) WASHINGTON. D.C. 20460
‘ L pROs’
OFFICE OF
. 4 W4 I 9 iga WATER
MEMORANDUM
SUBJECT: §1431 Emergency Administrative Order, Perkiomen
Valley Perservation Society, Inc.
FROM: ‘ ‘ John R. Trax, P.E., Chief, \ L)n- L.4-
Drinking Water Branch (WH—550)J ‘ I’
TO: Regional Drinking Water Branch Chiefs
Regions I — X
Attached for your use arid edification is a copy of the
decision package and background papers prepared in support
of the Emergency Administrative Order (AO) issued to the
Perkiomen Valley Perservation Society, Inc. in Pennsylvania.
This AO was issued by the Administrator — the authority
for issuance has since been delegated to Regional Administrators.
The consent agreement with the system owners calls for
replacing of the water and sewer systems, installing treat-
ment for iron and manganese removal, hiring a certified
operator, paying an $8,000 fine and maintaining an approved
alternate source of water until all the improvements are
completed. The supplier is presently constructing the new
water system arid the treatment unit has been installed.
The Region III office is monitoring the progress of the
supplier in meeting the conditions of the consent agreement.
If any of you have any similar reports, I would be
happy to distribute them.
Attachment
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• V5?4p
C I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
4’
I4N 2 OFFICE OF
WATE P
MEMORANDUM
SUBJECT: Emergency Administrative Order A s the
Perkioinen Valley Drinking Wat y e
FROM: Frederic A. Eidsness, Jr.
Assistant Administrator
for Water (WH-556)
- I
THRU; Robert M. Perry, Associate Administrator
and General Counsel (A-130)
TO: The Administrator
ACT I ON
Region III has decided to initiate enforcement action
against the Perkiomen Valley Preservation Society, Inc. which
is in serious violation of the National Interim Primary
Drinking Water Regulations (NIPDWR) promulgated under the Safe
Drinking Water Act (SDWA). On Friday, February 25, 1983,
Region III verbally ordered the water system to provide
alternative water to its users (which it is doing) and now
would like to issue a formal administrative order under the
emergency provision, Section 1431, of the SDWA, 42 U.S.C.
S 300i. While you have considered delegating this authority,
at present such an order requires your signature.
BACKGROUND
The Commonwealth of Pennsylvania has chosen not to take
primary enforcement responsibility for the Public Water
System Supervision program, and, therefore, the Agency is
responsible for administering the program. The Perkiomen
Valley Preservation Society, Inc. (PVPS) owns and operates
the system which is located in Montgomery County, north of
Philadelphia. Previously, the system served a privately—owned
summer camp which was closed. The camp is now owned by
private investors and has been converted into a condominium.
There are about 75 cabins and an average population of about
80 people.
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—2—
Sanitary facilities are apparently substandard. Sewer
and water lines are shallow (no frost protection) and are, in
some cases, laid in the same trenches. The State Department of
Environmental Resources has issued an order against PVPS
regarding the treatment of wastewater. Apparently, the
wastewater treatment plant is not working properly and
essentially untreated sewage is being discharged to a source
used by the Philadelphia Suburban Water Company for drinking
water serving some 200,000 people.
Samples of drinking water taken by PVPS indicate levels
of coliform bacteria which exceed the maximum contaminant
level (MCL) by factors of 10 to 35. The Maximum Contaminant
Levels are established by the National Interim Primary
Drinking Water Regulations, 40 CFR §141.14. Region III has
received a petition from private citizens asking the Agency
to take immediate action. The petition was supported by a
water analysis indicating bacterial concentrations 85 times
the MCL. Consumers also claim that the water varies from
brown to black in color, has high turbidity, and exudes a
foul odor. While the color and odor probably infringe on
Federally nonenforceable secondary standards, the high levels
of bacteria are a serious health concern. Additional technical
information is provided in the attached Technical Summary.
The State Department of Health has inspected the drinking
water system. It has declined to take action because the
system holds no permit from the State.
ALTERNATIVES
There are three alternatives for taking action against
pVpS.
Civil Action — Section 1414(b) of the SDWA authorizes the
Agency to enforce its regulations through a civil action in
the appropriate district court. Region III is preparing such
an action. However, it will be several months before the
case can be prepared, referred to the Department of Justice
and filed.
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—3—
Temporary Restraining Order (TRO) — The Agency could seek an
immediate TRO. The chief drawback of this course is that it
requires the concurrence of the Department of Justice which
could take some time to obtain.
Administrative Order — Under the SDWA, the Agency is authorized
to issue administrative orders only under Section 1431. This
section authorizes the Administrator to “take such action as
he may deem necessary to protect the health of ... persons”
if the Administrator receives information that the contamination
of a public water system “may present an imminent and substantial
endangerment to the health of persons .. “
In granting these emergency powers, Congress intended to
provide broad administrative authority for use when the pro-
cedures of other authorities provided in the Act could not
be used adequately to protect public health (House Committee
Report No. 93—1185). In view of the elevated levels of
bacterial contamination and the probable time required to
pursue alternative courses of action, the use of the emergency
authority in this case would be in accord with congressional
intent.
OTHER CONSIDERATIONS
The quality of drinking water in the PVPS system is a
matter of some local concern. At least one television station
is covering the story.
RECOMMENDATION
We agree with Region III that you should sign the attached
administrative order as soon as possible.
Attachments
Administrative Order
Technical Summary
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BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
Curtis Building
6th and Walnut Streets
Philadelphia, Pennsylvania 19106
IN THE MATTER OF: :
Perkiomen Valley Preservation
Society, Inc. ’ :
P.O. Box 185 :
Hereford, Pa. 18056 EMERGENCY ADMINISTRATIVE
: ORDER
PROCEEDINGS UNDER SECTION
1431(a)(l) of the SAFE DRINKING :
WATER ACT, 42 U.S.C.
S 300i(a)(1)
The following findings are made and ORDER issued pursuant
to the authority vested in the Administrator of the Environmental
Protection Agency (hereinafter UEPA ) under Section 1431 of the
Safe Drinking Water Act, 42 U.S.C. § 300i.
FINDI NGS
1. Perkiomen Valley Preservation Society, Inc. (hereinafter
NPVPSII) owns and operates a public drinking water supply system
at Maranatha Park, Montgomery County, Pennsylvania, which system
is subject to the Safe Drinking Water Act, 42 U.S.C. S 300f et
seq., and the National Interim Primary Drinking Water Regulations,
40 C.F.R. Part 141 promulgated pursuant thereto.
2. EPA is in receipt of information that contaminants
present in the PVPS public water supply may present an imminent
and substantial endangerment to the health of consumers served
by your system. Specifically, samples run by PVPS itself have
indicated coljform bacteria counts of 14, 10 and 35 times the
applicable standard (40 C.F.R. 5 141.14): and recent reports by
consumers indicate that the water supplied varies from brown to
black in color, contains considerable suspended matter, and
exudes a foul odor.
3. Appropriate State and local authorities have not
acted to protect the health of such persons in this matter.
ORDER
1. Perkiomen Valley Preservation Society, Inc. (Maranatha
Park) shall immediately provide an alternative source of potable
drinking water to all consumers currently served by the system,
in sufficient quantity for all reasonable domestic uses, and at
no additional cost to such consumers.
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—2--
2. The alternate source of drinking water shall be in the
form of bottled water, or one or more tank trucks of water from
an approved potable water source, which bottled or bulk water
shall be of sufficient quality to comply with National Interim
Primary Drinking Water Regulations, 40 C.F.R. Part 141, and
shall be provided in a location or locations, and in a manner
convenient to the consumers.
3. PVPS shall immediately advise all residents of the
Maranatha Park community of the availability of the alternative
water supply through hand delivered written notice delivered to
each occupied residence in the community. A copy of the notice
given to residents must also be provided by PVPS to the EPA
Region III, Water Supply Branch (3WM40) at 6th and Walnut Streets,
Philadelphia, Pa. 19106.
4. PVPS must continue to provide the alternative source
of potable water until such time as the EPA Region III Water
Supply Branch certifies in writing that the primary water supply
available to consumers at Maranatha Park consistently meets the
quality standards of the National Interim Primary Drinking
Water Regulations, 40 C.F.R. Part 141 (published at 47 Fed.
Reg. 10998 et seq., March 12, 1982).
5. Within 30 days of receipt of this Order, PVPS must
provide to U.S. EPA Region III at the above address, a proposed
schedule for bringing the public water supply system at Maranatha
Park into compliance with the Act and the Regulations, as
requested in our letter of October 14, 1982.
Your failure to comply with the Act and its Regulations or
this Order may subject you to the following potential liabilities:
1. A civil penalty of up to $5,000 for each day of
violation of a National Interim Primary Drinking Water Regulation,
40 C.F.R. Part 141, pursuant to Section 1414(b) of the Act, 42
U.S.C. S 300g—3(b).
2. A criminal penalty of not more than $5,000 per day of
willful violation or refusal to comply with this Order, pursuant
to Section 1431(b) of the Act, 42 U.S.C. 300i—(b).
Issued this _____ day of March, 1983.
Anne M. Burford
Administrator
U.S. Environmental Protection
Agency
-------
Emergency Administrative Order
Perkiomen Valley Preservation Society, Inc.
Technical Summary
— System was originally operated as a private, church summer
camp, which closed four or five years ago.
— Camp/system was purchased by a group (Perkiornen Valley
Preservation Society, Inc.) as an investment, with plans
for sale of existing cabins as condominiums.
— There are about 75 cabins, and there is a average
population of about 80 people.
— The sanitary facilities were designed for a seasonal camp.
— The water is supplied by one well; there is another
back—up well which has hydrogen sulfide problems
— There is a chlorir:ator on—line in the system, and
soda ash is added for pH adjustment.
— The water lines and sewers have only one foot of cover
and are, in some places, laid in the same trench.
— There are constant problems with breaks in the water lines.
— Pennsylvania Department of Health has inspected the facilities
on two occasions and has found significant sanitary defects.
— Pennsylvania Department of Environmentel Resources has
issued an order regarding inadequate wastewater disposal
and broken sewer lines.
— The small treatment facility does not operate properly
and discharges nominally treated effluent to the
watershed of one of the water sources for the Philadelphia
Suburban Water Company (which serves 200,000 people).
— The DOH and DER disavow any control over the s ’stem because the
facilities were never issued an operating permit .
— Since the water system was put back into operation in the
recent past, there have been consistent problems with
microbiological contamination.
— Their own self—monitoring data submitted to EPA Region III
indicated significant contamination — concentrations of
14, 10 and 35 organisms per 100 milliliters against
the standard of 1 organism per 100 ml.
— A resident of the system contracted with a private lab
to analyze samples; the results were 80 and 85 organisms
per 100 ml.
— The EPA Annapolis Field Office has collected additional
samples using appropriate chain—of—custody procedures.
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—2—
The Region III Water Supply Branch has been assembli.ng material
for an enforcement action against the system, and is taking
this action as a means of expediting action to correct the
immediate health hazard. The Region expects to forward a
civil enforcement case seeking to permanently correct the
water system t s deficiencies.
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BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
Curtis Building
6th and Walnut Streets
Philadelphia, Pennsylvania 19106
IN THE MATTER OF:
Perkiomen Valley Preservation
Society, Inc.
P.O. Box 185
Hereford, Pa. 18056 EMERGENCY ADMINISTRATIVE
ORDER
PROCEEDINGS UNDER SECTION
1431(a)(1) of the SAFE DRINKING
WATER ACT, 42 U.S.C.
§ 300i(a)(l)
The following findings are made and ORDER issued pursuant
to the authority vested in the Administrator of the Environmental
Protection Agency (hereinafter “EPA”) under Section 1431 of the
Safe Drinking Water Act, 42 U.S.C. § 300±.
FINDINGS
1. Perkiomen Valley Preservation Society, Inc. (hereinafter
“PVPS”) owns and operates a public drinking water supply system
at Maranatha Park, Montgomery County, Pennsyivania, which system
is subject to the Safe Drinking Water Act, 42 U.S.C. § 300f et
seq., arid the National Interim Primary Drinking Water Regulations,
40 C.F.R. Part 141 promulgated pursuant thereto.
2. EPA is in receipt of information that contaminants
present in the PVPS public water supply may present an imminent
and substantial endangerment to the health of consumers served
by your system. Specifically, samples run by PVPS itself have
indicated coliform bacteria counts of 14, 10 and 35 times the
applicable standard (40 C.F.R. § 141.14); and recent reports by
consumers indicate that the water supplied varies from brown to
black in color, contains considerable suspended matter, arid
exudes a foul odor.
3. Appropriate State and local authorities have not
acted to protect the health of such persons in this matter.
ORDER
1. Perkiomen Valley Preservation Society, Inc. (Maranatha
Park) shall immediately provide an alternative source of potable
drinking water to all consumers currently served by the system,
in sufficient quantity for all reasonable domestic uses, and at
no additional cost to such consumers.
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—2—
2. The alternate source of drinking water shall be in the
form of bottled water, or one or more tank trucks of water from
an approved potable water source, which bottled or bulk water
shall be of sufficient quality to comply with National Interim
Primary Drinking Water Regulations, 40 C.F.R. Part 141, and
shall be provided in a location or locations, and in a manner
convenient to’ the consumers.
3. PVPS shall immediately advise all residents of the
Maranatha Park community of the availability of the alternative
t ater supply- through hand delivered written notice delivered to
each occupied residence in the community. A copy of the notice
given to residents must also be provided by PVPS to the EPA
Region III, Water Supply Branch (3WM40) at 6th and Walnut Streets,
Philadelphia, Pa. 19106.
4. PVPS must continue to provide the alternative source
of potable water until such time as the EPA Region III Water
Supply Branch certifies in-writing that the primary water supply
available to consumers t Maranatha Park consistently meets the
quality standards of the National Interim Primary Drinking
Water Regulations, 40 C.F.R. Part 141 (published at 47 Fed.
Reg. 10998 et seq., March 12, 1982).
5. Within 30 days of receipt of this Order, PVPS must
provide to US. EPA Region III at the above address, a proposed
schedule for bringing the public water supply system at Maranatha
Park into compliance with the Act and the Regulations, as
requested in our letter of October 14, 1982.
Your failure to comply with the Act and its Regulations or
this Order may subject you to the following potential liabilities:
1. A civil penalty of up to $5,000 for each day of
violation of a National Interim Primary Drinking Water Regulation,
40 C.F.R. Part 141, pursuant to Section 1414(b) of the Act, 42
U.S.C. § 300g—3(b).
2 A criminal penalty of not more than $5,000 per day of
willful violation or refusal to comply with this Order, pursuant
to Section 1431(b) of the Act, 42 U.S.C. 300i—(b).
Issued this _____ day of March, 1983.
Anne M. Burford
Administrator -
U.S. Environmental Protection
Agency
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\ ç 0 S7 4 )
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON• D.C. 20460
RO C ’
MAR 2 t9 3 OFFICE OF
WAT fl
MEMORANDUM
SUBJECT: Emergency Administrative Order the
Perkiornen Valley Drinking Wa
FROM: Frederic A. Eidsness, Jr
Assistant Administrator
for Water (WH-556)
THRU: Robert M. Perry, Associate Administrator
and General Counsel (A—130)
TO: The Administrator
ACTION
Region III has decided to initiate enforcement action
against the Perkiomen Valley Preservation Society, Inc. which
is in serious violation of the National Interim Primary
Drinking Water Regulations (NIPDWR) promulgated under the Safe
Drinking Water Act (SDWA). On Friday, February 25, 1983,
Region III verbally ordered the water system to provide
alternative water to its users (which it is doing) and now
would like to issue a formal administrative order under the
emergency provision, Section 1431, of the SDNA, 42 U.s.c.
§ 300i. While you have considered delegating this authority,
at present such an order requires your signature.
BACKGROUND
The Commonwealth of Pennsylvania has chosen not to take
primary enforcement responsibility for the Public Water
System Supervision program, and, therefore, the Agency is
responsible for administering the program. The Perkiomen
Valley Preservation Society, Inc. (PVPS) owns and operates
the system which is located in Montgomery County, north of
Philadelphia. Previously, the system served a privately—owned
summer camp which was closed. The camp is now owned by
private investors and has been converted into a condominium.
There are about 75 cabins and an average population of about
80 people.
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—2—
Sanitary facilities are apparently substandard. Sewer
and water lines are shallow (no frost protection) arid are, in
some cases, laid in the same trenches. The State Department of
Environmental Resources has issued an order against pvps
regarding the treatment of wastewater. Apparently, the
wastewater treatment plant is not working properly and
essentially untreated sewage is being discharged to a source
used by the Philadelphia Suburban Water Company for drinking
water serving some 200,000 people.
Sáñ les of drinking water taken by PVPS indicate levels
of coliforrn bacteria which exceed the maximum contaminant
level (MCL) by factors of 10 to 35. The Maximum Contaminant
Levels are established by the National Interim Primary
Drinking Water Regulations, 40 CFR §l4l. l4. Region III has
received a petition from private citizens asking the Agency
to take immediate action. The petition was supported by a
water analysis indicating bacteria1 concentrations 85 times
the MCL. Consumers also claim that the water varies from
brown to black in color, has high turbidity, and exudes a
foul odor. While the color arid odor probably infringe on
Federally rionenforceable secondary standards, the high levels
of bacteria are a serious health concern. Additional technical
information is provided in the attached Technical Summary.
The State Department of Health has inspected the drinking
water system. It has declined to take action because the
system holds rio permit from the State. -
ALTERNATIVES
There are three alternatives for taking action against
PvPS.
Civil Action — Section 1414(b) of the SDWA authorizes the
Agency to enforce its regulations through a civil action in
the appropriate district court. Region I II is preparing such
an action. However, it will be several months before the
case can be prepared, referred to the Department of Justice
and filed.
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Temporary Restraining Order (TRO) — The Agency could seek an
immediate TRO. The chief drawback of this course is that it
requires the concurrence of the Department of Justice which
could take some time to obtain.
Administrative Order — Under the SDWA, the Agency is authorized
to issue administrative orders onlyunder Section 1431. This
section authorizes the Administrator to “take such action as
he may deem necessary to protect the health of ... persons”
if the Administrator receives information that the contamination
of a public water system “may present an imminent and substantial
endangerment to the health of persons ...“
In granting these emergency powers, Congress intended to
provide broad administrative authority for use when the pro—
cedures of other authorities provided in the Act could not
be used adequately to protect public health (House Committee
Report No. 93—1185). In view of the elevated levels of
bacterial contamination and the probable time required to
pursue alternative courses of action, the use of the emergency
authority in this case would be in accord with congressional
intent.
OTHER CONSIDERATIONS
The quality of drinking water in the PVPS system is a
matter of some local concern. At least one television station
is covering the story.
RECOMMENDATION
We agree with Region III that you should sign the attached
administrative order as soon as possible.
Attachments
Administrative Order
Technical Summary
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Emergency Administrative Order
Perkiomen Valley Preservation Society, Inc.
Technical Summary
— System was originally operated as a private, church summer
camp, which closed four or five years ago.
— Camp/system was purchased by a group (Perkiornen Valley
Preservation Society, Inc.) as an investment, with plans
for sale of existing cabins as condominiums.
— There are about 75 cabins, and there is a average
population of about 80 people.
— The sanitary facilities were designed for a seasonal camp.
— The water is supplied by one well; there is another
back—up well which has hydrogen sulfide problems.
— There is a chlorinator on—line in the system, and
soda ash is added for pH adjustment.
— The water lines and sewers have only one foot of cover
and are, in some places, laid in the same trench.
— There are constant problems with breaks in the water lines.
— Pennsylvania Department of Health has inspected the facilities
on two occasions and has found significant sanitary defects.
— Pennsylvania Department of Environmentel Resources has
issued an order regarding inadequate wastewater disposal
and broken sewer lines.
— The small treatment facility does not operate properly
and discharges nominally treated effluent to the
watershed of one of the water sources for the Philadelphia
Suburban Water Company (which serves 200,000 people).
— The DOll and DER disavow any control over the system because the
facilities were never issued an operating permit .
— Since the water system was put back into operation in the
recent past, there have been consistent problems with
microbiological contamination.
— Their own self—monitoring data submitted to EPA Region III
indicated significant contamination — concentrations of
14, 10 and 35 organisms per 100 milliliters against
the standard of 1 organism per 100 ml.
— A resident of the system contracted with a private lab
to analyze samples; the results were 80 and 85 organisms
per 100 ml.
— The EPA Annapolis Field Office has collected additional
samples using appropriate chain—of—custody procedures .
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The Region III Water Supply Branch has been assembling material
for an enforcement action against the system, and is taking
this action as a means of expediting action to correct the
immediate health hazard. The Region expects to forward a
civil enforcement case seeking to permanently correct the
(‘Water system’s deficiencies.
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LITIGATION REPORT
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k I6 84
MEMORANDUM
SUBJECT: Enforcement Coordination fr P
FROM: Nancy W. Wentworth,
State Management Section j L—55O)
TO: File DWB 2—4.2
On August 14, 1984, I spoke with Carol Green of the
Department of Justice regarding the need for training ot U.S.
Attorneys on the Sate Drinking Water Act.
— I introduced myself and noted that I work with Regions,
States arid OECM on compliance and enforcement issues.
I offered to share with her the information I receive
on the development of cases in primacy states by the
Reg ions.
— DOJ does get U.S. Attorneys together for meetings,
but they rarely discuss items as narrow as the SD JA.
— Carol suggested that an effective means of handling
the situation of focussing the attention of the
Attorneys on SDWA would be to assure that the litigation
report adequately supports the importance of the
case. The litigation reports prepared the Regions
should strongly state, front why the case is being
referred and the importance ot the case to the National
drinking water program and the users of the system.
Stressing the health impact of MCL violations and the
lack of knowledge of water quality implied by long—term
M/R violations should help get DOJ and US Attorney’s
attention.
— I told Carol about the various guidances and policies
on penalties, compliance oversight, settlements, etc.
She knew generally of their existarice but was not
sure that her files were complete.
— We also discussed the fact that referrals of §1414
actions in primacy states are covered by the EPA/DOJ
agreement and J,.e.gation 9—l64 and that Regions may
refer the cases to DOJ directly, without involving
either ODW, OWEP or OECM in the case preparation. I
noted that the delegation and agreement were based on
referrals by non—primacy Regions who had experience
in case preparation. We agreed that dQcumeritatlon
problems could arise as Regions who are untamiliar
with SDWA enforcement begin to develop reterral packages.
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Act ion:
— Carol will speak with the DOJ attorneys and stress
that cases may seem small, but that they are, none—
the—less, important to the Agency and the water users.
I will keep her informed of cases in the pipeline.
— I will work with OECM on guidance to the Regions on
strengthening the litigation reports to show the
importance of the cases, both from health and enforcement
activity prespectives.
— I have put Carol’s boss (Stephen D. Ramsey) on the
WSG mailing list for enforcement and related documents.
— I will investigate the need for modifying Delegation
9—16A to cover referrals in non—primacy states, and
require referrals in primacy states to come through HQ.
cc: Jack Winder OECM
Don Olson OWEP
Paul Baltay ODW
John R. Trax ODW /
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CIVIL LITiGATION REPORT
Robert C. Cook and Denise 0. Cook
dba Westgate Mobile Home Park
Ontario, Oregon
Prepared by:
David M. Heineck, Assistant Regional Counsel J’lq. !A ,j- e_& .
and Special Assistant United States Attorney, ¶1
District of Oregon
Office of Regional Counsel
1200 Sixth Avenue (N/S 613)
Seattle, Washington 98101
FTS 399-7660
Februaryj, 1983
Technical contact:
Larry Worley
Technical Support learn Leader
Drinking Water Branch
EPA Region 10
FTS 399-1893
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TABLE OF CONTENTS
Page
I. Information Identifying the Defendants
II. Synopsis of the Case 1
III. Statutory Authority 2
A. Substantive Legal Requirements 2
B. Prior Legal Interpretations 3
IV. Factual Basis of Alleged Violation 3
A. Description of Defendants’ Water System 3
B. Description of Violations 4
C. Prior EPA Attempts to Obtain Compliance 6
D. Approximate Costs of Compliance 7
V. Required Evidence 8
A. Elements of Proof and Evidence Now Held B
B. Evidence of “Willfulness” to Support
Imposition of Civil Penalties 10
C. Evidence of Environmental l-Iarrn 10
D. Evidence Favorable to Defendants 11
E. Discovery 11
F. Government Witnesses 12
S. Defense Witnesses 12
VI. Anticipated Issues 12
A. Legal Defenses 12
B. Equitable Defenses 14
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Page
C. Issues of National or Precedential Impact 14
VII. Resolution Strategy 15
A. Recommended Remedy 15
B. Resource Impact of Case on Agency 15
VIII. List of Attachments 15
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I. Information Identifyinq theOefennts
A. Names: Robert G. Cook and
Denise 0. Cook, husband and wife
B. Type of business:
Owners and operators of Westyate
Mobile Home Park (an assumed business
name; Westgate is unincorporated)
C. Judicial District in which Defendants are located:
District of Oregon
D. Name and address of Defendants’ counsel:
Steven J. Pierce
Attorney at Law
243 Southwest Third Avenue
Ontario, Oregon 97914
Telephone: (503) 889-2197
II. Sop j ofthe Case
Robert G. Cook and Denise 0. Cook own and operate a trailer park known as
Westgate Mobile Home Park (nlwestgatehl) near the eastern Oregon city of
Ontario, in Maiheur County. The trailer park has its own water system,
consisting of three wells, pumps and a system of distribution to 93
service connections serving approximately 265 year-round tenants. The
water is not treated.
The water supplied to the Westgate users has consistently been found to
violate the 40 C.F.R. §141.11 maximum contaminant level (“MCL”) for
nitrates, established pursuant to Section 1412 of the Safe Drinking Water
Act [ 42 U.S.C. §300g—l]. This is the primary violation involved here.
The most recent testing for nitrate contamination was done on water
collected during a January 12, 1983 EPA inspection. The three samples
taken were found to have nitrate concentrations of 23, 24 and 25
milligrams per liter (mg/i). The mean of these results is more than
twice the 10 mg/i MCL level set by 40 C.F.R. §141.11. These test results
are consistent with analyses of Westgate water that have been done
periodically since June, 1979.
The level of nitrate contamination found at Westgate creates a serious
health risk for infants under six months of age. Their digestive system
converts nitrates (NO 3 ) to nitrites (NO 2 ), which react with
hemoglobin in the blood to form methernoglobin. This compound prevents
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hemoglobin from carrying out its function of transporting oxygen within
the body. The resulting disease, methemaglobinernia, essentally causes
varying degrees of biological suffocation and has been known to cause
death to small infants. To EPA’s knowledge, however, no case of this
disease has occurred at Westyate.
Defendants have known of the nitrate contamination from the time they
purchased Westgate in 1981. Although they retained a consulting engineer
in early 1982 to recommend possible treatment systems for nitrate
removal, and obtained the views of EPA on possible solutions to the
problem, no corrective action of any kind has been taken. Yet feasible
alternatives exist, including construction of a new well or connection to
the City of Ontario water system.
An equally serious violation is Defendants 1 failure to notify the
Westgate users of the nitrate contamination, as required by 40 C.F.R.
§141.32. Families with small children — — susceptible to
methemoglobinemia — - have been completely unaware of the problem.
Defendant’s continuing violations show an indifference to the law and the
health risks created by the water contamination. Civil penalties ana
injunctive relief should be sought to enforce the compliance that cannot
be achieved voluntarily.
III. St t!.itp r A i pfl ty
A. u s g J Rirements
Section 300g-l of the Safe Drinking Water Act, 42 U.S.C. §300f et
(hereinafter “the Act”), requires EPA to promulgate national interim
primary drinking water regulations designed to “protect health to the
extent feasible, using technology, treatment techniques and other means,
which the Administrator determines are generally available (taking costs
into consideration).” Section 300g—l(a)(2). The Act directs EPA to
include in these regulations ‘ recomniended maximum contaminant levels for
each contaminant which, in his judgment ... , may have any adverse effect
on the health of persons,” so that “no known or anticipated adverse
effects on the health of persons occur and which allows an adequate
margin of safety.” Section 300g-2(b)(l)(B).
National interim primary drinking water regulations setting maximum
contaminant levels (hIMCLst1) and monitoring and reporting requirements for
public water systems were promulgated and appear at 40 C.F.R. Part 141.
In relevant part they require 1) monthly analysis of water samples for
bacterial contamination (40 C.F.R. §141.21); 2) timely reporting of the
results of each of these tests to EPA (40 C.F.R. §141.31), or reporting
to EPA that the required tests have not been conducted [ 40 C.F.R.
§14l.31(b)];3) re-testing by water suppliers for nitrate contamination
when the results of one test show an exceedance of the 10 mg/l nitrate
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MCL [ 40 C.F.R. §141.23(d)]; and 4) public notification in the event MCLs
are exceeded or required monitoring is not done (40 C.F.R. §141.32).
Violations of the Part 141 regulations by “public water systems,” defined
at 42 U.S.C. §300f(4) to include those systems that have at least 15
service connections or regularly serve at least 25 persons, are
actionable under Section 300g-3 of the Act. 42 U.S.C. §3OCg—3(a)(2)
authorizes EPA to commence a civil action for violations in States that
do not have primary enforcement responsibility (such as Oregon). In such
States EPA need not notify or obtain the concurrence of the State as a
prerequisite to suit. Two remedies are made available under Section
300g—3(b) for violations of the national primary drinking water
regulations: :injunctive relief “as protection of public health may
require, taking into account the time necessary to comply and the
availability of alternative water supplies,” and civil penalties of up to
$5,000 per day in cases of “willful” violations.
Violations of the Part 141 monitoring and reporting requirements are also
actionable under 42 U.S.C. §300j-4(c) and may be “fined” an amount up to
$5,000.
B. Prior Legal Interpretations
The United States District Court for the Distict of Oregon has imposed
injunctions and civil penalties under 42 U.S.C. §300g—3(b) in two
previous cases unaer the Safe DrinKing Water Act. Civil penalties of
$100 for each of 264 days of violation, a total of $26,400, were assessed
against a small public water system in United States v. Neskowin
Enterprises, Inc. , 14 ERC 1636 (D.C. Ore.1979). A mandatory injunction
requiring chlorination and regular monitoring, record-keeping, and
reporting of drinking water quality was imposed in United States v. Alder
Creek Water Company , 14 ERC 1413 (D.C. Ore.1979).
IV. Factual Basis of Alleged Violation
A. Description of Defendants water System
Defendants Robert and Denise Cook own and operate a trailer court
facility known as Westgate Mobile Home Park (“Westgate”) in Ontario,
Oregon, located in eastern Oregon in 1alheur County. Westgate is not an
incorporated entity. Westgate has its own water system, consisting of
three wells and a distribution network to its tenants. The water
supplied by the wells is not treated in any way. The system serves 93
connections at the park, used by approximately 265 year—round residents.
The users inclue several children and infants, although the majority of
the tenants are adults. The number of service connections and users
clearly establishes Westgate as a “public water system” within the
definition of 42 U.S.C. §300f(4), making it subject to the Part 141
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primary drinking water regulations and enforcement under Section 1414 of
the Act (42 U.S.C. §300g-3). The Westgate facility is also a “community
water system” as defined at 40 C.F.R. §l4l.2(e)(i), which is relevant in
defining Defendants’ obligations to notify the public of its Safe
Drinking Water Act violations.
B. Description of Violations
Four general types of violations have occurred at Westgate. The most
serious is the repeated and substantial violation of the MCL for nitrate
contamination. Second, the Westgate owners have failed to regularly
sample, analyze and report to EPA the amounts of microbiological
organisms in the water for a period of over four years, aespite repeated
notices and contacts by EPA. Third, the owners have failed to adequately
notify their users of these tICL and monitoring violations. Fourth,
Defendants have failed to take additional water samples for nitrate
analyses, as required by 40 C.F.R. §141.23(d), following test results
that have shown violations of the nitrate MCL.
A complicating factor in this pattern of violations is that ownership of
the Westgate trailer park has changed at least once since June, 1978, the
time of EPA’s first contact with the system. At that time Westgate was
owned by a Mr. and Mrs. Melvin Peck. Effective June 1, 1981, however,
ownership and operation was transferred by a contract of sale (Exhibit 3)
to the Defendants, Mr. and Mrs. Robert Cook. As explained later in this
report in the discussion of litigation strategy, it is considered
preferable to name only the Cooks as defendants in this action even
though numerous violations of the Safe Drinking Water Act could be
established against Mr. and Mrs. Peck. Under this approach, the
violations occurring after June, 1981, are the most relevant and will be
the focus of this discussion.
The nitrate MCL violations at Westgate have been chronic and continual.
An inspecton conducted by EPA personnel on January 12, 1983 recently
confirmed that the nitrate contamination has not abated. A copy of the
report of this inspection is attached as Exhibit 21. Three water samples
taken during the inspection showed nitrate concentrations of 23 mg/l, 24
mg/i and 25 mg/i. This exceeds by a factor of two the 10 cng/l nitrate
MCL allowed by 40 C.F.R. §141.11.
This January 12, 1983 nitrate sampling is the only sampling that EPA has
done at Westgate during the period of Defendant’s ownership of the
facility, that is, since June 1, 1981. As for sampling done by the
Defendants, EPA has evidence of two other analyses. The first analysis
(Exhibits 9 and 10) was done in November, 1981 and showed nitrate
concentrations of 14.5 mg/i and 25.0 mg/i. The second analysis (Exhibit
12) was done on January 5, 1982 by Water Refining Company of Middletown,
Ohio, as part of a proposal to install filtration equipment. Results
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obtained from this analysis are of questionable validity since Water
Refining does not operate an EPA—approved laboratory. Nevertheless, that
analysis showed a nitrate concentration of 20.7 mg/l. This is consistent
with EPA results. It is unlikely that Defendant has made any other
nitrate analyses. In December, 1982, EPA requested Defendant to send
copies of any other nitrate test results, and none have been received.
Prior to June, 1981, a number of nitrate tests by the previous Westgate
owners, Mr. & Mrs. Peck, showed MCL violations for this contaminant.
This shows the continuing nature of the nitrate problem. Three samples
taken on June 19, 1979, the earliest date for nitrate sampliry at
Westgate known to EPA, showed nitrate concentrations of 18.4 mg/I, 18.2
mg/l, and 18.9 mg/l.
Follow-up samples taken on July 31, 1979, showed nitrates in amounts of
15.0 mg/i for three water samples. Further tests were reportedly
performed in September, 1979, October, 1979, and in July, 1980. The
owners at that time conceded that each of these analyses showed nitrate
MCL violations.
The second type of violation is the failure to perform required
monitoring of the water and to report sample results to EPA. Defendants
are required by 40 C.F.R. §141.21 to analyze at least one sample per
month for microbiological contaminants. There is no record of any such
microbiological sampling having been done by Defendants for any month
since they began operation of the trailer park in June, 1981, with the
exception of data submitted for the months of November 1981 (Exhibit 8)
and May 1981 (Exhibit 16). Further, 40 C.F.R. §141.31(a) requires water
suppliers such as Defendants to report microbiological monitoring results
to EPA within the first ten days of the month following the month the
samples were taken. In the alternative, if required sampling has not
been done, §141.31 (b) requires water suppliers to notify EPA of that fact
within forty-eight hours of the time such sampling was required. Pgair
the exception of data for November 1981 and May 1982, Defendants have
never made either type of report to EPA concerning microbiological
sampling in their operation of the Westgate Trailer Park.
The third type of violation is Defendant’s failure to notify the public
of its Safe Drinking Water Act violations. “Community water systems’ 1
such as the Westgate facility are required by 40 C.F.R. §141.32(a) to
notify their users of, ipiter 4j , any noncompliance with an MCL or any
failure to perform required monitoring. This notice must be in written
form and be made no later than three months following the violation and
must be repeated at least once in each subsequent three-month period.
The notice must meet the standards of §141.32(e), which requires such
notices to be conspicuous, clear, and complete. Violations of MCLs must
in addition be publicized through newspaper and television notification,
pursuant to §141.32(b). Defendants are required to submit to EPA a copy
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of each public notice given within ten days of such notice. 40 C.F.R.
§141.31(d).
Defendants have never submitted a copy of any public notice of their
violations to EPA, as required by §141.31(d). Even if quarterly notice
has been given, therefore, Defendants have violated §141.31(d) each
calendar quarter. However, lack of notice to EPA raises a presumption
that Defendants have properly notified the Westgate users of the
nitrate contamination and other violations. This presumption is
buttressed by the fact that during the January 12, 1983 inspection, EPA
personnel observed no posted notice in the Westgate office, laundry room,
recreation room, or at the park entrances. The presumption is further
reinforced by the responses EPA obtained to a questionnaire distributed
to a number of Westgate tenants during this inspection. Eight of nine
respondents (see Exhibit 18) stated that they had never seen written
notifications posted concerning the quality of the drinking water. This
apparent lack of notice no doubt contributed to the mistaken belief held
by seven of the nine respondents that the water met health standards.
Defendant Mr. Cook may have done more than simply fail to inform the
Westgate users of the water contamination. He may have actively
discouraged them from learning the truth. There are reports (see
Exhibit 1) that Mr. Cook threatened eviction to any tenant who complained
to government authorities concerning the water quality. Pre—trial
discovery and other investigation should look into this matter.
The fourth and last type of violation involved here is Defendants’
failure to conduct follow-up sampling to the November 1981 (Exhibits 9
and 10) and February 1982 (Exhibit 12) test that showed exceecierices of
the nitrate MCL. Such follow-up tests are required by 40 C.F.R.
§141 .23(d).
C. rJpr. EPA t t b ain . Compliance
Defendants have been on notice of their obligations under the Safe
Drinking Water Act from at least June 1, 1981, the date Mr. & Mrs. Cook
began operation of the Westyate trailer park. Section 2 of the Contract
of Sale from the Pecks to the Cooks (Exhibit 3) in fact made specific
reference to the nitrate violation and a Notice of Violation that had
been issued by EPA. Under the contract the Cooks also assumed
resonsibility for correcting the problem, and a letter to EPA from Mr.
Peck (Exhibit 6) indicated that the amount of the down payment required
from the Cooks haa been reduced to reflect the anticipated expense of
corrective action. Even before their purchase of the park, however, the
Cooks were almost certainly aware of the Safe Drinking Water Act
requirements, and the fact that the water exceeded the nitrate MCL.
Their attorney, Steven J. Pierce, contacted EPA in March, 1981 (Exhibit
2) to obtain a copy of the Part 141 regulations and EPA ’s opinion on a
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certain water filtration system the Cooks as prospective buyers were
apparently considering at the time.
In March, April and May, 1982 there was a substantial amount of
communication between Steven J. Pierce, Defendants’ attorney, and EPA
concerning possible engineering solutions to the nitrate problem.
(Exhibits 13, 14, 15 and 17). Each of the alternatives were found to be
relatively expensive, as discussed below in this report. Defendants
chose not to make the necessary investment.
In December, 1982, following months of apparent inaction by Defendants,
EPA obtained Defendants’ consent (through their attorney) to conduct an
inspection at Westgate. A subsequent January 12, 1983 inspection
disclosed continuing violations and a lack of any remedial measures taken
by Defendants.
These repeated MCL and sampling violations were the basis for an
administrative Notice of Violation issued by EPA Region 10 to Defendants
on February 1, 1983 (Exhibit 25). This extra—statutory device gives
additional and formal notice of the Act’s requirements. Defendant also
had pripr formal notice of the requirements of the Safe Drinking Water
Act through a Notice of Violation that EPA issued to Mr. Peck, the
previous owner, in 1980 (Exhibit 1). That Notice was specifically
mentioned in the Westgate Contract of Sale signed by Mr. Cook in June,
1981.
A recent telephone conversation between EPA and Mr. Cook (Exhibit 24)
gives some hope that Defendants may begin required monitoring and
testing. However, Defendants have still made no commitment to correct
the nitrate contamination, and the long history of noncompliance by
Defendant makes it advisable to put any compliance agreement that may be
reached into a judicially-enforceable Consent Order.
0. pproximate Costs of Compliance
There appear to be three general approaches for correcting Westgate’s
nitrate contamination. One solution might be for Defendants to construct
a new well in an area or at a depth where nitrates are not a problem.
The approximate cost of this alternative would be between $10,000 and
$25,000. However, at this point it is not known whether any well in the
area could be expected to produce water that meets the 10 mg/l nitrate
MCL. A second approach would be to install a type of treatment system.
This might consist of a two-step process of chlorination and filtration
through a column of activated carbon, as proposed by Defendants’
consultant, Cady Water Conditioning Co. (Exhibit 12). In its February,
1982, proposal Cady estimated that the treatment equipment for such a
system would cost approximately $27,500. This estimate does not include
freight and installation charges, aria also does not include the
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substantial operation and maintenance costs associated with the system
(which would include regular replacement of activated carbon cartridges
and frequent attention by a trained operator).
A third approach would be for Westgate to connect to the City of Ontario
public water system. City water mains are within 100 feet of the
Westgate trailer park. Unfortunately, the City is apparently unwilling
to provide water unless Westgate also connects to City sewer lines. The
cost for both water and sewer hook—up is reported to be approximately
$45,000. Although this is a high initial cost, connection to Ontario
water would provide a long-term solution to the nitrate problem and would
avoid the high operation and maintenance cost of a treatment system.
The cost for compliance with the requirement for monthly microbiological
sampling and reporting, and the requirement for public notification of
violations, is comparatively negligible.
V. eriçI c
A. Elements of Proof arid Evidence Now Held
Each of the four specific types of violations, discussed below, has a
common element of proof: that Westgate is at least a “public water
system,” and, in the case of violations of the public notification
requirements [ 40 C.F.R. §141.32(a) and (b)], that Westgate is also a
“community water system.”
“Public water systems’ are defined at 42 U.S.C. §3001(4) to include all
water systems that have either 1) at least 15 service connections, or 2)
regularly serve at least 25 persons. The category of “community water
systems” is created and defined by the Part 141 regulations to mean those
“public water systems” that serve these 15 connections or 25 persons on a
year-round basis. 40 C.F.R. §l41.2(e)(i). Westgate’s 93 service
connections and 265 year—round users clearly establish it as a “public
water system” that is also a “community water system.”
1. Vio3ation of the MCL for njtr’a e contamination (40 C.F.R
§141.11) .
On January 12, 1983, EPA conducted a water quality study of the Westgate
water system to determine the healthfulness of the water in the absence
of any reporting by Defendants (the report of this inspection is attached
as Exhibit 21). Three water samples were obtained. Two were from inside
taps at two trailers believed to be on separate wells supplying drinking
water to the park. A third sample was collected at a utility room at a
well house. The water samples were preserved with ice and promptly
analyzed by EPA—approved laboratories in Portland, Oregon. The three
samples were respectively found to contain nitrate concentrations of 23
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mg/i, 24 mg/i, and 25 mg/i. 40 C.F.R. §141.23(d) states that “compliance
with the maximum contaminant level for nitrate shall be determined on the
basis of the mean of two analyses.” The January 12, 1983 inspection
produced three analyses. These results conclusively establish a nitrate
MCL violation by Defendants. The accuracy of the January, 1983 results
can be corroborated by the reports of nitrate analyses done for
Defendants in November 1981 and May 1982, and by analyses done in 1979
and 1980 by the prior owners, to show that contamination has been
continual throughout Defendants’ ownership of Westgate. Also, EPA
technical personnel can testify that naturally-occuring contaminants such
as nitrates persist at relatively stable levels, and that from a
scientific standpoint only a small number of samples showing hign nitrate
levels are needed to raise a presumption that such levels are continual.
2. Violations of microbiological monitoring requirements (40
C.F.R. §141.21) .
Violations of the requirements for monthly testing for bacterial
contaminants are based on a presumption raised by the fact that no such
test results have been reported to EPA (except for the month of November
1981) and by Defendant’s failure to send such results to EPA despite a
direct request from the Agency. This is sufficient prima facie evioence
to sustain a court finding that Defendants have not monitored for
microbiological contamination.
3. Violations of requirements to report microbiological test
results to EPA (40 C.F.R. 1LIl.31) .
That the required microbiological testing data has not been submitted to
EPA as required by 40 C.F.R. §141.31 is shown by the Certification of
Absence of Record (attached to this Report). This Certification
establishes that EPA has never received such data from Defendants.
4. Violations of public notification requirements (40 C.F.R.
§141.31) .
The failure of Defendants to notify the t1estgate users of the continual
failure to meet the nitrate MCL and the continual failure to do the
required bacteriological monitoring is shown by the fact that EPA has
never received a representative copy of any such public notice [ required
by 40 C.F.R. §141.31(d)]. The lack of any EPA recoro of such public
notice is indicated in the Certification of Absence of Record that is
attached to this Report. This raises a rebuttable presumption that
Defendants in fact have never made the required public notification.
Persuasive evidence that no such notice has been given is also provided
by the answers EPA received to questionnaires distributed to a number of
Westgate users during the January 12, 1983 inspection (Exnibit 18).
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-10-
Eight of nine respondents indicated they had never been notified by
Defendants of nitrate contamination in their drinking water.
5. Violation of nitrate testing requirements [ 0 C.F.R.
§1 41. 23 cci) 1 .
Although water systems that utilize groundwater (such as Westgate) are
normally required to test for inorganic contaminants (such as nitrates)
only once every three years, systems are required to promptly initiate
additional nitrate testing whenever an analysis shows an exceedence of
the 10 mg/i MCL. EPA has no record that Defendants conducted such
sampling following the November 1981 and February 1982 tests that showed
high nitrate levels in the Westgate water.
B. Evidence of “Willfulness” to Support Imposition of Civil
Penal ties
Proof that Westgate is a “public water system” (or, as discussed above, a
“community water system”) and has failed to meet MCL levels and conduct
the required rnonitorng and reporting establishes the violations involved
here and makes available injunctive relief under 42 U.S.C. §300g—3(b).
However, civil penalties (of up to $5,000 per day of violation) may be
imposed under the Act only if these violations are “willful.” Under
applicable law, Defendants’ pattern of unresponsiveness to Safe Drinking
Water Act requirements and indifference to protection of the public
health show that this “willfulness” standard is met.
“Willfulness” has been construed to include “plain indifference.” U. S.
v. Illinois Central Railroad Co. , 303 U.S. 239, 242-243 (1938). This
construction is particularly applicable 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). It has also
been held that willfulness can be inferred from a history of numerous
violations of the same statute and regulations. Fairbanks v. Hardin , 429
Enterprises , 14 ERC 1637 (D.C. Ore. 1980).
Westgate’s repeated faflure to reduce the nitrate contamination, monitor
the drinking water they purvey for contamination and report test results
to EPA, despite a series of contacts initiated by EPA in an attempt to
obtain compliance (see discussion at Section IV. C. supra) , clearly shows
that the violations have been willful ones. Evidence of this
administrative history thus would support assessment of civil penalties
under 42 U.S.C. §300g-3(b).
C. Evidence of Environmental Harm
There are no known cases of sickness that can be documented to have been
caused by the contamination of the Westqate water supplied by Defendants.
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—11 —
However, the levels of nitrate found at Westgate have a potential for
causing illness. Elevated nitrate concentrations in drinking water may
cause the disease nethemoglobinernia in infants as explained above in the
case synopsis. Boiling the water, such as would be done in preparing
infant formula, only concentrates and does not remove the nitrates in the
water. One family interviewed by EPA during the January 12, 1983,
inspection had a six-month old infant. That family had not been notified
by Defendants of the nitrate contamination.
U. Evidence Favorable to Defendants
There are no known or anticipatea factual defenses available to
Defendants for the Safe Drinking Water Act violations described here.
Defendants may emphasize certain mitigating factors, however. The
Government’s lack of any evidence that the violations have caused human
illness is one such factor. The consistent finding of no microbiological
contamination in Westgate water (from analyses done in January 1983, May
1982 and November 1981, respectively Exhibits 21, 16 and 8) may be a
further mitigating factor. Another is that Defendants reportedly paid
$1,200 in 1982 to Cady llater Conditioning Co., Boise, Idaho, for an
evaluation of possible water treatment systems to reduce the level of
nitrates (see record of telephone conversation between Rogers, EPA ano
Mr. Cook, Exhibit 24). Defendants may also be able to show that they
were removed from the day-to-day operation of the mobile home park for a
significant part of 1982. The Cooks apparently leased the park to a Mr.
Steven Krueger for a number of months in 1982. Although this could well
implicate Mr. Krueger as an additional possible defendant (since he would
have been water system “operator” under the Act), the existence of a
lease arrangement would not negate Defendant’s status as the “owner” of
the Westgate water system responsible for drinking water violations by
force of Section 1401(5) of the Act [ 42 U.S.C. §300f(5)].
E. Discovery
Pre-trial discovery would be useful in a number of areas. Information on
the amount of capital available to Defendants in their operation of the
the Westgate park would be helpful in recommending penalties anci judicial
action. Discovery could also reveal any water quality tests that
Defendants have conducted but not reported to EPA, the type of any public
notification Defendants may have given to the Westgate users concerning
violations of the nitrate and sampling requirements, information on
estimated compliance costs, and any information Defendants may have of
sickness caused by their violations.
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-12-
F. Government Witnesses
Harold Rogers of the EPA Oregon Operations Office in Portland conaucted
the January, 1983 inspection of the Westgate system and has had the most
direct contact with the Defendant. He would be EPA’s primary witness.
Other EPA personnel could provide a general explanation of what the Safe
Drinking Water Act requires, what EPA does to enforce it, and the health
risk posed by different contaminants. Michael Gearheard, who is Mr.
Rogers’ supervisor in the EPA Oregon Operations Office, and William
Mullen, Chief of the EPA Region 10 Drinking Water Branch, would testify
in this regard for the Government. Bruce Sarazin, a County Sanitarian
with the Malheur County Health Department, also has had considerable
contact with Defendants and could testify as to the County’s parallel
interest in correcting the drinking water violations at Westgate.
6. Defense Witnesses
The only probable defense witness who can be identified at this time is
Mr. Robert 6. Cook, the current Westgate owner and Defendant in this
proposed action. His testimony would likely be intended to downplay the
seriousness of Westgate’s problems to “technical” violations that have
not harmed anyone, and which are insignificant compared to more serious
nitrate violations occurring in other Oregon localities, which have not
yet been the subject of EPA enforcement.
VI. Anticipated Issues
A. Legal Defenses
Aiiong possible legal defenses to this action, only two have arguable
validity.
The first defense that is potentially available to Defendants is that
they should not be held liable for any violations that occurred during
the period in 1982 when they were apparently leasing the Westgate park to
Mr. Steven Krueger. The argument would be that they were riot the
“operators” of the park at the time. However, the category of “suppliers
of water,” who are made liable for violations of Sections 1414 and 1445
of the Safe Drinking Water Act [ 42 U.S.C. § 3OOg-3 and 300j-4], is
defined to include both operators arid owners of water systems [ Section
1401(5), 42 U.S.C. §300f(5)]. Defendants may bring forward documents
purporting to show that the lease was actually some version of a sale, in
an attempt to exclude themselves from liability under the Act. EPA
Region 10 has not yet seen any documents reflecting the type of
arrangement, if any, that existed between Defendants arid Mr. Krueger.
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-13—
A second potential legal defense could be based on a certain
interpretation of the 40 C.F.R. Part 141 drinking water regulations.
Section 141.23, which sets forth the sampling and analytical requirements
for inorganic chemicals (including nitrates), states:
(d) ... [ C]ompliance with the maximum contaminant
level for nitrate shall be determined on the basis of
the mean of two analyses . When a level exceeding the
maximum contaminant level for nitrate is found, a
second analysis shall be initiated within 24 hours,
•and if the mean of the two analyses exceeds the
maximum contaminant level, the supplier of water shall
report his findings to the State pursuant to §141.31
and shall notify the public pursuant to §141.32.
(Emphasis added.)
EPA obtained three water samples from Westgate during its January 12,
1983 inspection. The mean of the nitrate contamination among the three
samples was found to be 24 nig/l, far in excess of the 10 mg/l nitrate
MCL. This sampling and analysis would appear to clearly exceed the
requirement stated in the underlined first sentence of the cited
regulation that compliance must be determined by the mean of two
samples. Samples taken in 1979 and 1980 that show the continuing
violation of l4estgate also were broken into two or more analyses.
Another reading of §141.23, however, might cast doubt on the sufficiency
of EPA’s evidence that Defendants have violated the nitrate fVICL.
Interpreting the cited section as a whole, it could be read to require
that a second water sample be taken within twenty-four hours of a finding
that a given water sample exceeded the ‘1CL. Results of these two samples
— — the second taken after a prior sample has been analyzed — - would
constitute the two samples upon which compliance with the nitrate MCL
would be based. EPA did not take additional samples from Westgate
following the analysis of the samples taken on January 12, 1983, nor were
such follow-up samples taken after the earlier tests done in 1979, 1980
and 1981. Thus, it could be argued, none of the test results have been
based on the two analyses required by §141.23(d), and EPA has
insufficient evidence to estabish a nitrate MCL violation.
Although the language of 40 C.F.R. §141.23(d) is less than clear and
opens up this possible line of defense, this potential argument is a
tenuous one. The re-sampling requirements of §141.23(d) are plainly
directed to suppliers of water, not to EPA. Re—sampling results
determine a supplier’s duty to notify the State (or EPA) ano the public.
EPA and the State from a practical standpoint cannot be expected to
return to sites having apparent nitrate MCL violations within twenty-four
hours of test results: the requirement is plainly intended to apply only
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—14—
to suppliers, who are in close proximity to the suspect water. Finally,
even applying a literal interpretation, the November, 1981 and January,
1983 tests were sufficient to determine compliance since at least two
samples were analyzed in each of these tests.
B. Equitable Defenses
Arguments of financial inability to pay penalties or the costs of
compliance, and claims that the violations are only “technical 11 ones that
have had no adverse health effects, are expected to be made by Defendants.
Defendants are also likely to claim that a letter that EPA sent to them
on September 14, 1981 (Exhibit 4) led them to believe that the Westgate
water was no longer contaminated. The letter provided Defendants with
the results of tests EPA had conducted in December, 1980, to determine
the presence of organic contaminants in the Westgate water. The amount
of organic chemicals found was within acceptable standards. The letter
stated that, with respect to organic contaminants, “the water is safe to
drink.”
In context, this statement was plainly limited to the results of the
organics testing. Any ambiguity was eliminated in a telephone
conversation that took place on September 30, 1981 between Harold Rogers
and Mr. Cook (Exhibit 5). In that conversation Mr. Rogers explained that
the results of the test for organic chemicals in no way implied that the
level of inorganic contaminants in the Westgate system, such as nitrates,
was within acceptable levels. Mr. Cook’s possible claim that he believed
the nitrate problem had been alleviated on the basis of this organics
test is further belied by the fact that several months after that letter,
in February, 1982, he retained a consultant (Cady Water Conditioning Co.,
Boise, Idaho) at a cost of $1,200 to recommend alternative nitrate
removal systems (Exhibit 12). Nevertheless, Defendant can be expected to
claim that in September, 1981, EPA made an unqualified statement that
“the water is safe to drink.”
C. Issues of National or Precedential Impact
The only possible precedential issue in this action would be a judicial
interpretation of the 40 C.F.R. §141.23(d) standard that calls for
compliance with the nitrate MCL to be determined on the basis of two
samples. As explained supra in Part VI. A. of this Report, Defendants
may claim that neither EPA nor the prior owners, nor Defenoants
themselves, took nitrate samples in the proper sequence and the
§141.23(d) two—sample requirement has never been met. This question
would be an issue of first impression. However, as explained earlier,
the sampling done by EPA should clearly be sufficient to establish that
Defendant has violated the §141.11 nitrate MCL.
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—15—
Regional newspapers and television and radio stations have been quite
interested in this matter and have run a number of stories on Westgate.
However, the case is not expected to generate national attention.
VII. Resolution Strategy
A. Recommended Remedy
As with other Safe Drinking Water Act litigation that is currently
pending in the District of Oregon, EPA should plan to move for summary
judgment on the issue of liability promptly after filing this action,
unless Defendants immediately indicate a clear intention to settle the
litigation on terms acceptable to EPA. The goal of the litigation should
be to put Defendants on a judicially—enforceable schedule for compliance
with the nitrate MCL, and to recover in civil penalties the economic gain
that Defendants have realized as a result of their noncompliance.
At this time it is recommended that only the Cooks be named as
Defendants. The prior owners, the Pecks, and the possible Westgate
lessee during 1982, Steven Krueger, are no longer in a position to take
corrective action, and EPA has little evidence of “wiflfulness” on their
part to support imposition of penalties alone.
B. Resource Impact of Case on the Agency
This litigation should not require more than three or four trips to
Oregon by a Region 10 attorney, nor require more than a moderate amount
of technical assistance from the Region 10 Drinking Water Program.
VIII. List of Attachments
A. List of Exhibits and Exhibits
B. Certificate of Absence of Entry and Absence of Record
C. Draft Complaint
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LIST OF EXHIBiTS
No. Date Description
1. 10/10/80 Safe Drinking Water Act ( t1 SDWA”) Notice of
Violation issued to Melvin Peck and Shirley Peck,
then owners of Westgate.
2. 3/2/81 Record of telephone conversation between EPA and
Steven J. Pierce, attorney for Mr. and Mrs.
Robert Cook, concerning SIJWA nitrate and
monitoring requirements.
3. 3/29/81 Contract of Sale of Westgate Mobile Home Park
from Melvin Peck and Shirley Peck to Mr. and Mrs.
Robert G. Cook, specifically referring to
10/10/80 EPA Notice of Violation. Buyers Mr. and
Mrs. Cook contractually assumed duty of
correcting nitrate problem.
4. 9/14/81 Letter from Michael Gearheard, EPA, to Westgate
informing Cooks of EPA’s finding that Westgate
water was not contaminated with organic chemicals.
5. 9/30/81 Memorandum of telephone call from Robert Cook to
Harold Rogers, EPA, during which Rogers clarified
to Cook that nitrates remained a problem at
Westgate even though EPA tests disclosed no
organic contaminants.
6. 9/30/81 Letter from Melvin A. Peck, prior Westgate owner,
to Lither, EPA, explaining that amount of
downpayment required from Cooks in their purchase
of Westgate property had been reduced in
consideration of Cooks’ commitment to bring
Westgate water system into full compliance.
7. 10/5/81 Memorandum of telephone call from Rogers, EPA, to
Bruce Sarazin, Maiheur County Sanitarian, in
which Sarazin indicated Cook had threatened
eviction to any tenant who complained to
government authorities of poor water quality at
Westyate.
8. 11/2/81 Bacteriological analysis of Westgate water
submitted on behalf of Mr. Cook to EPA for month
of November 1981 (bacterial content within
§141.14 limits).
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—2—
No. Date Description
9. 11/3/81 Analytical report of nitrate concentration in
water from Westyate Well No. 1 (finding of 14.5
mg/i).
10. 11/3/81 Analytical report of nitrate concentration in
water from Westgate Well No. 2 (finding of 25.0
mg/i).
11. 1/21/82 Letter from Dale King, Maiheur County Sanitarian,
to Robert Cook refusing to grant Westgate a
license for providing overnight travelers 1
accorTlrnodatlons, due to high nitrate level in
Westgate water.
12. 2/15/82 Letter from Cady’s Water Conditioning Co., Boise,
Idaho, proposing installation of filtration
equipment to reduce nitrate contamination, at an
equipment cost of $27,500.
13. 3/8/82 Letter from Steven J. Pierce, atrcrney for the
Cooks, to Lither, EPA, requesting that NOV issued
on 10/10/80 be re-issued naming Cooks as
Respondents, and stating that Cooks had been
conferring with engineering consultant on
possible solutions to nitrate problem.
14. 4/26/82 Letter from Lither, EPA, to Steven Pierce
describing high maintenance costs and other
factors usually making nitrate treatment systems
impractical.
15. 4/30/82 Letter from Steven Pierce to Lither again
requesting transfer of 10/10/80 NOV to the Cooks
and acknowledging fact that proposed nitrate
treatment system would not be cost-effective.
16. 5/21/82 Report of bacteriological analysis of Westgate
water showing no bacterial contamination.
17. 5/24/82 Letter from Lither to Steven Pierce suggesting
that solution to nitrate problem woud be for
Westgate to obtain another source of water:
either from a new well or by connecting to City
of Ontario water system.
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-3—
No. Date Description
18. 1/12-13/83 Set of nine questionnaires completed by estgate
residents, eight of which indicate that
Defendants had never informed them orally or in
writing of the nitrate contamination.
19. 1/15/83 Microbiological analyses of water samples taken
during 1/12/83 inspection showing no bacterial
contamination.
20. 1/11/83 Inorganic chemical analyses of water samples
taken during 1/12/83 inspection showing nitrate
contamination in amounts of 23 mg/i, 24 mg/i, and
25 mg/i.
21. 1/18/83 Report prepared by Harold Rogers, EPA, on results
of 1/12/83 Westgate inspection.
22. 1/21/83 Letter from Heineck, EPA, to Steven Pierce
forwarding results of microbiological and nitrate
tests on water samples collected at Westgate
during 1/12/83 inspection.
23. 1/21/83 Press release issued by EPA Region 10 concerning
continuing nitrate contamination at Westgate and
Defendant’s failure to notify users of the
contamination.
24. 1/21/83 Memorandum of telephone call from Robert G. Cook
to Rogers, EPA, reacting to EPA press release,
stating that reqired sampling and reporting may
be commenced, and indicating that Westgate may
have been leased to Steven Kruger during a
significant portion of 1982.
25. 2/1/83 SDWA Notice of Violation issued to Defendants by
EPA Region 10, setting forth sampling and
reporting requirements and necessary action to
remedy nitrate contamination at L4estgate.
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CAROL E. DINKINS
1 Assistant Attorney General
2 Land and Natural Resources Division
United States Department of Justice
3 Washington, D. C. 20530
CHARLES H. TURNER
United States Attorney
320 U. S. Courthouse
Portland, Oregon 97207
6 Telephone: (503) 221-2153
7 Attorneys for Plaintiff
8 iN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
10 ) Civil No.
Plaintiff, )
11 ) CERTIFICATION OF ABSENCE
vs. ) OF ENTRY AND ABSENCE OF RECORD
12
ROBERT G. COOK and DENISE 0. COOK,
13 dba WESTGATE MOBILE HONE PARK,
14 Defendants. )
15
For purposes of Federal Rules of Evidence 8O3(7 and 803(24), 1
16 Cu C SOcQ i f 11jj U.. .v,r .. .U Pr J,ju, ar r _ wuJ r ,ck , ., ‘j(ej
hereby certify in my official capacity that I have niade a diligent search
17
of the relevant record retention depositories of the United States
18
Environmental Protection Agency (EPA), anu the said search failed to
19
disclose any entries, records, reports, statements or data compilations
20
coming within the following descriptions:
21
1. Reports from Defendants Robert G. Cook or Denise D. Cook of
22
the results of tests for levels of microbiological contaminants in the
23
water supplied by them at Westgate Mobile Home Park, Ontario, Oregon, for
24
any month other than November, 1981, which reports are required to be
25
reported to EPA on a monthly basis by the national interim primary
26
drinking water regulation, 40 C.F.R. §14 1 .31(a).
27
28 CERTIFICATION CF ABSENCE OF ENTRY - PAGE ONE OF TWO
Form OBD- 83
12-8-76 DOJ
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1 2. Any copy of public notification(s) given by Defendants
2 pursuant to 40 C.F.R. §141.32 concerning their failure to conduct
required sampling and their violation of the maximum contaminant level
for nitrate in water supplied by them at said Westgate Mobile Home Park.
Representative copies of such public notice are required to be submittea
6 to EPA by 40 C.F.R. §141.31 Cd).
3. Any reports to EPA from Defendants notifying EPA of their
8 failure to comply with the microbiological monitoring requirements of 40
C.F.R. §141.21 or with the nitrate monitoring requirements of 40 C.F.R.
10 §141.23(d), which reports are required to be submitted to EPA pursuant to
40 C.F.R. §141.31(b).
12
14 Certifying Employee: ________________
Title:
16
17
18
19
20
21
22
23
24
25
26
27 CERTIFICATION OF ABSENCE OF ENTRY - PAGE ThO OF ThO
28
Form O D-183
12.876 fb i
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1
2
3
4
S
6
7
UNITED STATES OF NIERICA
8
ST/ TE OF WASHINGTON SS.
9
COUNT? OF KING
10 __________________________________)
/ i h1 on this date written below,
13 personally appeared before me and demonstrated to me then and there that
14 he occupies the Federal Government official capacity indicated above, and
15 he then and there acknowledged he signed freely and deliberately the
16 foregoing authentication as an official act, and that the signature is
17 genuine. //
Given under my hand and official seal this _______
of ______________, 1983.
22
23
24
25
26
27
28
‘I
Washington, residing (
My commissions expires: / (c73 ,
Form 000.183
2&76 D0J
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I
2
3
4
5
6
7
8 U I :; T? TES ? oTE :T1o : A Y
gion 10
1200 Si :th vv nue
10 shi gto
IN r i A’rTER OF:
)
12 Envi Dr r tai Protect on gency
13 PI ntiff.
) i o.
14 )
: OTI’ E OF VIOLATIO. ’;
15 ;estG te o’ 1e Hor e Park,
16 Per.:, r1 y Peck,
17 Respon’ ents.
18 The foi1 :Jng f:n ings re nai ar 1 t. o pcoific 3ct or
19 c rr :- - j the Di:ector, En rc erit Division, Region
20 c, nv1rcn ienta1 P tect n g’ acy, oursu nt to tne Safe
21 D;iiç ?ater . ct (42 US’: j300f et seq.) d the regu!at ns
22 rcmu1g te i ti eun6er (TitJ.e 40, Cc e of Fac era1
23 (r’t’ ) , rt 4l).
FI DINGS
25 ‘ e v n Peck Shi iey ?eCz, erei 3fter ‘s on r.t , ’
26 ai re’ ev t ti e r)fl a ci/or oper te the Westga e
27
‘o i ‘e -ioi-e P ’ ¼ w tei ( e: ne I s a ‘ c
28
s’r t- rn” su r t to - 0 CFR 3i41 ..2( )) :oc .te ‘n
29
O rG-’. )r .tO .
30
2. ‘.t a re1o r.t t r;es i r tc, thc St;to of O: go- ,
31
32 O OL Ic : - Pace
-------
-‘n oh Respon-entz’ ce: svst r is locate2. :;ct a.: ...o s
2 tct •‘ ve ri1n:v enforcenent o:pc:ts bi ttv :3: the S 2’
3 flr.n<.fla ter Act, hereinafter ‘SD A”; the:efore, tha zsr
4 “St:t’’ means the EPA R ?gLDnat Ai inistr:tor, RagiDn 0,
5 Se ttTh, ?ash:ngton, nursuant to 40 Cfl 141.2 h)
6 ?• 3cse( an ;nfcri atirin 9veYLabTh, ResDon ents t’Dter s” te;
7 excee e the r inum contaminant L2VC for nitrate set fort.
8 in 0 Ffl l41.ll or trie compliance perio Jane :!7 rh: uç
9 ju ly 1 9CC ar 1 ) continues in violation as evidencei by
10 Sc tamherS80 s:miDle ina \’ses.
11 4. ‘0 CFR ;141.31 (a), as anen”e:J August 27, 2.S3G, tecunes
12 t t ist r the aupolier of cate! shell reoort to he State
13 (i.e. EPA, Tteginn :0) the :esu?ts” of reouire’5 tests ‘rithin
14 “. . the first ten ay c.3o’ n the tn: cz the Ceç n C? -
15 : cn’to’-:n j oe: of’ .. 3 n—2 on infor-irtion ; 1La3_ ?,
16 fleznr ‘E .’3 ‘ot ‘epote to EPA Region C. hC
17 of re uireti :rol rg or naysis as Eo1lot- s:
18 . trat? contam Inant sanDl ing 2n anays :o :epeate
19 24 hours after the na: i ctum contamirant evel for nitrates ‘es
20 e>:cee e’i. in accordance 7 th 40 CFR 3i41.23( );
21 5. M croNoiog ca1 contaminant samol.ng anu analysis
22 f:.r the ;:ater s”stems as :e uirec1 hy iO CFR 3l’ .21 for The
23 months of Ju’ y 3977 tirouan Decenh r 1978, flaccr 2 , h o n ! 1 nd
24 Ture th:cuch ecem5ec 1979, January through June S30 an(
25 Augi’st 39CC.
26 Acco:i irgy it is ‘ eterrnined that ‘lespanoents nave
27 vioThtr-f either 40 CFR 314 1.31(a) for failing to suhrnit to
28 EPA the : ns’i ts of test measurements anf - neiyses referred to
29 Thove, or e se Resuondents have fai lee t sample E*fl . arga-’:e
the atm: n t:e3 r LV!tera s equire ’ y 40 CFR ;: 1.2l. :nC
31
32 ?;OTE OF Vi9LATIO: - Pace 2 5
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1 §141.23.
2 6. Based on information available, Respondents have failed
3 to notify persons served by their system of their violation
4 of tne maximum contaminant level for nitrate, and of their
5 failure to perform the necessary sampling and analysis for
6 microoiological anu nitrate contaminants as alleged in
7 paragraphs 4, (a) and (b) arid 5 of the Findings above,
8 cnerehy violating 40 CFR §141.32(a), (h) and (C).
9 7. Based on information available, Respondents have failed
10 to report to EPA within 48 hours of their violation of the
11 maximum contaminant level for nitrate and of tneir failure to
12 sample and analyze the water in their system as specified in
13 Paragraph 4, (a) and (h) of the Findings aoove thereby
14 violating 40 CFR §141.23(d) and §141.31(b).
15 fl QUIRCD COfl CTIVE ACTION
16 1. upon receipt hereof, Respondents shall immediately ta’
17 whate r action is necessary to assure that the maxly. ’
18 contamina level for nitrate specified in 40 CF 3 4 4l.1l
19 shall not he ceeded in their water system.,,/g”aid actions
20 should inclucie a ofessional engineeriny/ a1uation, and a
21 program to correct de gn defects. 3 P1’should be notifiec
22 immediately when correcti e measu are taken.
23 2. Immediately upon receipt this Notice, Respondents
24 shall suomit to EPA, Regin 10, a and all previously
25 unreported microbio1og1 a1 and nitrat analyses results.
25 Said subrnittals i1ci he addressed as fo OWS:
27
28 U.S. Environmental Protection Agenc
Drinking Water Programs Branch, Mail top 412
29 1200 Sixth Avenue
Seattle, Washington S8101
30
31
32 NOTICE OF VIOLATION - Page 3 of 5
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/ 1
1 3. Upon receipt.’ciereof, Resoonoents shall commence samp ny
2 a d analysis of the water system as follows:
3 . Nticrohiological contaminant sampling and ana ysis at
least nce per month in accordance with 40 CFR §141 21.
Conimenci g upon receipt thereof, and until furthe notice
6 from EPA R gion 10, compliance and non-cornolian e witri
7 maximum micr biological contaminant levels sh 11 hereinafter
s be based upon mpling during a one-month p nod pursuant to
9 40 CFR §141.14(c)
10 b. Nitrate co taminant sampling a a analyses at least
11 quarterly for one yea following comp etion of corrective
12 action for nitrate cont inination.
13 4. All future microbiolo ical $ pling and analysis reguirea
14 by 40 CFR §141.21 shall be i d to EPA at the address shown
15 in paragraph 2, no later tha 0th day of the month following
16 the month in which the tesy me urement or analysis was
17 taken. (40 CFR §141.31(73’ as amen ed ugust 27, 1980, copy
18 enclosed) / 1
19 . To the extent thp’t Respondents hay vio lateo the maximum
20 contaminant levels,,/for nitrate, set fort at §141.11 and the
21 sampling and ana / 4 sis provisions set forth in 40 CFR §141.21
22 and §141.23, R,yspondents shall immediately n ify the persons
23 served by th/affected system of their failure o comply with
24 said requi/’ements pursuant to 40 CFR §141.32(a) a d (b) and
25 shall Su 1 /mit to EPA within ten (10) days of said no ification
26 evide 9 ,ce t1 at said notification nas been mace. (40 C
27 §14 /31(d) as amended August 27, 1980) Notification in
28 a ,Lordance with 40 CFR §141.31(a) shall be repeateo every
29 three (3) months as long as the violations continue.
32 NOTiCE OF VIOLATION - Page 4 of S
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1 NOTICE
2 6. Please be advised that unoer Section 1414(b) of tne Safe
3 Drinking Water Act, the Administrator may oring a civil
4 action in the appropriate Unitec States Court to require
5 compliance with appliceole regulations. Civil penalties not
6 to exceed $5,000 per day may be iniposed for a “willful”
7 violation of the relevant regulations. In addition, under
8 Section 1445(c) failure to maintain sucn records, ma ce such
9 reports, conduct such monitoring and provide sucri information
10 as EPA may require by regulation is subject to a fine of up
11 to $5,000.
12 7. Compliance with the foregoing requirements shall not in
13 any way relieve Respondents of their liability for past
14 violations, nor waive compliance with any other applicable
15 provisions of the Safe Drinking Water Act, and other Federal
16 State or local laws.
17 8. At a future date, the Respondents may be requested to
18 appear an show cause before this Agency why enforcement
19 proceedings in this matter should be deterreo, mooified or
20 terminatea. In that event, further written notice will be
21 given to Respondents.
22 9. it there are any questions concerning the legal aspects
23 of these proceedings, please contact Barbara 3. Lither,
24 Attorney, at the above address or at (206) 442-1275. if you
25 have any questions regarding the technical aspects of
26 compliance, you should contact Don C-ipe, at (503) 221—3250 in
27 the EPA Portand, Oregon office.
28 DATED this /ay of 1980.
(2
Enforcement Division
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CONTRACT OF SALE
This Agreement made in duplicate original ; i iit the
1st day of June. 193]., between SLIT RLLY J - PECK, i-I t’il w L.1 ’ W
of 1elvin D. Peck, deceased aid Melvin Allen Peck rtd Charm - nc
N. Peck (SELLERS) , and Robert C. Cook and flenise fi (ook hit h i:i1
and wife (BUYERS)
J I T N E S S E T H
In cons iderat t ion of the pa i’Ients hcr Lfl v ded j r1
the mutual covenants ind agreements herein contain i, S Llers
agree to sell to Buyers and Buyers .agree to purchase from Sc] lers
that certain mobile home park in nd near Ontarto. U 1 e in. l t iown
as Westgate 1obiIc Home Park, including the reaL LflpeLL. ot’ ‘hich
it is situated and all personal property located i; eon The real
property is more fully described on the attached [ ‘- .lhLt A incor-
porated by this reference and the personal. property is Pi Le partic-
ularly described on the attached Exhibit B incorporated by this
reference, on the foLlowing terms and con ILtions, ro-wlt•
1. PRICE AND PAYMENT
The total price to be paid for the real, and person .il
property is S500,000 and shall be paid as follows
(a) The sum of Four Thousand Dollars ( ,Cc)0 00) at
time of closing.
PACE ONE - CCflTP. \CT OF SALE
: :11It IT “B’
M 3
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(b) The scm ’ :1 inety-Six Thousand DcsT ‘s ($96,000.00)
in monthly installments of $987.47, beginning July 1, 1981, based on
a thirty-year amortization, including interest at 127 on the unpaid
lance. Forty-Six Thousand Dollars ($46000.00) of the original
incipal balance must be paid to SELLERS prior to June 1, 1983.
Seventy-One Thousand Dollars ($71,000.00) of the original principal
balance must be paid to SELLERS by June 1, 1986. The entire prin-
cipal balance must be paid to SELLERS by June 1., 1991.
(c) The sum of Four Hundred Thousand DoLLr rs ($400,000.00)
in monthly installments of $3,218.49 starting July 1, 1931. including
interest at 97 , based on a thirty-year amortization.
Sellers hereby agree to assign their interest in the real
and personal property described on the Exhibi.t:s hereto to the Buyers
and the Buyers hereby assume and agree to pay according to the terms
thereof, the underlying obligations above described. Any breach of
the obligation to make the payments required by this contract, shall
deemed a breach of the agreement and give the Sellers the rights
foreclosure hereinafter provided.
The effective date of this agreement is June 1, 1931.
All rentals collected by SELLERS for the month of June, 1981 shalL
be delivered to BUYERS at closing, A].]. rentals currently payable
to SELLERS for rental periods prior to June 1, 1981 and collected
by BUYERS shall be delivered to SELLERS each month.
2. REPRESENTATiONS AflD WARRANTIES
It is understood and agreed that the property, both real
and personal, described in Exhibits A and B, is sold to Buyers as-is
with no warranties of any kind. Specifically, without limiting the
PAGE T 0 - CONTRACT OF SALE
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5. TAXES
Taxes on the real property shall be pro-rated as of
l98) nd E axes fbi- all subsequent years shall be paidby
BUYERS and due in monthLy ta reserve payments as required by
LLLERS. Registration fees or charges of whatever nature. in
connection with the licensing and ownership of the mobile home
pac aiibe pa i pr mbEly bñd before delinquencies.
6. INSURANCE
Existing insurance shall bepro-rated as of June 1, 1081.
ahd thereafter purchasers agree to keep the build ngs and rnpcove-
mi s iu ’d a g in 1 st l o s by f ire tort.heir fu ’Bi rn ixir ’um- in ura bLe
valu and ‘in noevenc ‘less than the unpaid balance of the purchase
price, on both the real. and personal property herein d scrLbed.
with loss payable to the parties hereto and the predecessors in
interest as their interest may appear at the time of lass. Any
)unt ecei2ved y Seller under said insurance in payment of a
s shall be p lied upon the unpaid balance of the price and
reduce the sathe to the extent of-the amount of such payment re-
ceived by Seller. Notwithstanding the above provision, in the
‘ 2 entt e emises are damaged or destroyed by fire or other casu-
airy, ‘pu chasers have the option In the event they desire to rebuttd.
repair or ± pLác to r ’quire the Seller to turn over all insurance
proceeds to be used solely for the purpose of rebuilding or repairing
so long as the new buildings have a value after completion not Less
han the amount of the insurance. All uninsured losses shalL be
borne by the pureh sers on and after the date of closing. Purchasers
option to rebuild shall be on the condition they notify Seller of their
desire to do so within ninety (90) days form the date of any loss.
CE FOUR-CONTRACT OF SALE
-------
generality of the foregoing, it is understood and agreed by Buyers
that the Environmental Protection Agency h.ts issued a cornpLiint or
?dér concd ning hi lrtaEa coiit ht inthe well’ supplying water to said
;bile park which condi ion is in need of inteediate cocrection which
Buyers shall do at their own expense and to the satisfaction of the
L? Lt6nmeneal P’ro’t dét idn Agency
- 3. - CLOSING
It is the intent of the parties that all Eindncia l aspects
shall be effective as’oE June 1, 1981. Seller wiLl pay all operatin
dosts LhrOugh May31, 198L- .AllincomeC cctuingand aLL o ractnr,
expenses incurred on and after May 31, l9SL are for the account of
Bu ’ers. even thougfr closing will occur later.
Closing of this transaction shall occur June 15, 1911, or
as soon thereafter as is reasonably practicable AU normal closing
costs and costs of closing escrow shall be divided and paid equally
Buyers and Seller. -
Buyers dovenant and agree that they are purchasing the
personal and real property based upon their own irispecriortr’ind are
not influenced in any manner by any representation or warranty by
the Sellers.
4. POSSESSION
?urchasers shall be entitled to possession of the real
and the personal property as of the date of closing and shall be
entitled to remain in peaceable possession as long as they continue
to keep and perform dach and every term cind condition hereof.
PAGE THREE - COUTRACT OF SALE
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7. TITLE
It is expressly agreed that title to the real property
nd the personal property herein described has heretofore been
reserved by the original Seller, but with the right to sell, tr . . de
or exchange the personal property as from time to time may be
required by good business practice, provided that any property so
sold, exchanged and so forth is replaced with property of equal value.
8. REPAIRS AND MAINTENANCE
Purchasers agree that so long as any part of the the price
or interest remains unpaid, they will keep the premises in a corisianc
state of good repair at their own cost and expense and not permit
waste or strip of the premises or any part thereof or of the per-
sonal property. Purchasers further agree that they will not, with-
out prior written consent of Seller, permit any liens or encumbrances
of any kind to attach or be imposed upon any of the real or personal
property which might in any manner be superior or prior to the lien
title and estate of Sellers and Sellers’ predecessors,
No improvements to water system, streets, driveways, sew-
age disposal, structures, nor construction of new facilities may be
undertaken by Buyers without prior written approval of Sellers. The
object and purpose of the foregoing clause is Co protect Seller against
Buyers incurring obligations for work and/or materials done at or for
the mobile home park, and possibly defaulting on contract with Sellers
without paying for the same.
PAGE FIVE - CONTRACT OF SALE
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9. NOTICES
Any notice herein required or permitted or desired shad
e given by depositing in the United States maiLs 1 -ptstagc prepaid,
aS follows:
Buyers: Robert C. Cook or Denise D. Cook ,’ Lt .S WL’sL Idaho ,
Ontario 1 Oregon 97914 ,
Seller: Shirley J. Peck, 8360 Mariner Dri.e, UL Isoriville,
Oregon 97070 or Melvin Allen PeckfCharrnaine Margaret Peck, 550 N.W.
86th Court, Portland, Oregon 97229.
10. - AFFIDAVIT of DEBTS
Simultaneously with execution hereof, SeLlei.... bliall execute
and deliver to Purchasers their Affidavit in comDllance iith the Bull
Sales Laws of the State of Oregon stating that all dch:s ire paid
and that there are no creditors whonsoever of said businoss and no
debts owing upon the personal property being sold herLunder other than
e underlying mortgage and prior contracts.
11. WAIVER
Failure by Sellers at any time to require performance by
Purchasers of any of the provisions hereof shall in no manner affect
Sellers’ rights hereunder to enforce the same, nor shall any waiver
by Sellers of any breach be held to be a waiver of any succeeding
breach or a waiver of this non-waiver clause.
12. REMEDIES FOR DEFAULT
In the event Buyers shall fail, to perform any of the terms
of this agrecmc’nt, TIME OF PAYt’ENT AND PERFOP I 1ANCE OF TUE REQUIRE’S
1€NTS HEREOF BEING DECLARED TO BE OF THE ESSENCE, Selters zhall
ACE SIX - CONTRACT OF SALE
-------
have the following rfts:
(a) to foreclose this contract by strict foreclosure in
a court of equity;
(b) to declare the full unpaid balance of the purchdse
price irmiiediately due and payable;
(c) to specifically enforce the terms of this agreement
by a suit in equity;
(d) to declare this agreerneut null and void as of the
dare of the breach and to retain as liquidated dunages the ar ount
of all payments heretofore made in which event the right, title
and interest of the Buyers shall revert and revest to the SeiLers
without any act of re-entry or without any other act by Sellers to
be performed, arid Buyers agree peaceably to surrender the pem1se t.
the Sellers.
The foregoing remedies are cumulative arid Sellers h ive
the right to exercise one or more or all at their options No
default shall be declared other than for the failure to make the
contract payments herein provided, until notice of such default shall
have been given by Sellers to Buyers, and Buyers shall have failed to
remedy the default within thirty (30) days after the giving of such
notice. Notice for the purpose of this paragraph shall be deemed
given by certified mail addressed to Buyers. No notice to Buyers
declaring default shall be required for failure of l3uyers to make
the payments required by this agreement and the failure to pay the
same within thirty (30) days after their due dates constitutes a
default. Interest will accrue on the unpaid balance from the due
date for each payment.
PAGE SEVEN - CONTRACT OF SALE
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Buye furEher hereby agree that in the event oE default.
in m king any payment on the contract price, or in the event of
lure to remedy any och r default within 30 days after notice
ther f, th t-upon-ex-p rte application by Sellers, or their
successors, to any Court of competent jurisdiction, and without
prior notice or hearing, a Receiver shall be appointed to coLlect
all rentals and other revenues arising out of operation of said
mobilé ’-hothé rk; ‘eo ay ’ch ’erefrorn first to amounts pa ’;t.d n on,
this contract, next to operating costs and Receiver sCees rnd
costs, the balance to be held and expended to or for the be1 eELc
of Seller,’ or as the Cou’rt may otherwise direct. Sellers, or r .heLr
nomie m ’ be ap ointed ‘as Receivers and to the extent perriic ted
by law or order of the Court, all bonds of Receiver are waived
13. ATTORNEYS FEES
to”foreclose this contract or
enforce any of the’ rovisions, ’actorneys fees in such sums as
the Court may adjudge reasonable shall be allowed to the prevailing
party, both in the trial court and on appeal in addition to costs
otherwise provided by law.
14. This agreement shall -inure to the benefit of and be
binding upon the respective pa ties hereto, theirheirs, ‘administra-
ror -successors’and assigns’. -However, this .paragraph does not
permit assignment of the vendee’s interest by auyers hereunder
except upon the prior written approval of the Sellers, which
approval shall. not he unreasonably withheld.
E EIGHT - CONTRACT 01’ SALE
-------
IN WITNESS 11EREDF, the sellers have set thei.r hands and
seals this day of
1981.
STATE OF OREGON,
Cour y of C1’c
}
i 4C 23 — OW% DGM(P
- , . — -
UE IT REMEMBER ED, T1 . t Of; (JU ’ , ‘ h tidy ( II jO
etore me, rhe under gne J. . Nit irv Public in a’d for soid County 3nd State. pi ’r t tv ppc, Ir, il tile “ itilin
r med
known to nw to bt. the id ,iti .il m d i vidijnj 4/en r,bcd in and I l / k) i’\CuI ’c! (I i’ - it it /un u1l ttlt:,ucqtt and
ai k:lowled2ed to me that -‘ — r utrd tlte uuiu frtehy and c ’iunt ,ur,fv —
1(V TESTIMONY WHEREOF, 1 lu ,,i 1k ru ’uujtn . -t nu hand arid .uih,tcci
a ; official t ’uJ the da arid . ur 1a r ,th1u tu rutten
C—.
/ i ) ,1 -
- lWtfltj ’ Piitjh, fii Orv! , ur;
I ly Corninu,—jor, e pirc .
On the . day of _____________________ 1981, person-.
ally appeared Melvin Allen Peck, Charma±ne Margaret Peck and Sft4 -e y.
—J k and acknowledged the .foregoing intrurnent to be their volun-
tary.act a d deed.
I
‘. ‘-L
I—
NOTARY PUBLIC FOR OREGON
My Commission Expircs , r/ e/. /
.
i15i US Ut .CaJL’l ,
Ity of _________________________ )
)ss.
Before Me:
PA NINE - CONTRACT OF SALE
-------
STATE OF OREGON )
/7 -
/ j- ,
) ss.
nty of /fr // “
On the day of L 1931. pcr ona11.y
appeared Robert C Cook and DenLse 0. Cook und acknowledged the fore-
going instrument to be their ToiuntarT act and- deed. -
/ / /•
is
Before Me / ( p( I,
)
IN WITNESS
day-of
¶ H1 EOF, the buyers set theLr hdnds and seais
___________________ 1981.
ROBERT
COOK
I
/
/:2(
‘)
/
/ —
DENISE D. 5 COOK
BLJY RS
/
NOTARY PUBLIC FOR OREGON ,
tly Comnii:;s ion Expires: / ‘ / . -
PAGE TEN - CONTRACT OF SALE
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PARCEL 1:
Land in IRE ROSE ACREACE TRACTS. City of Ontano, :Iilheur
County, Oregon, according to the Official rUt thereof,
as follows’
Tract No. 4, EXCEPTINC T 1iEREFRO t the followut 4 de’.cri.b :d
parcel, to-wit’
Beginning at the Southwest corner of said Tract 4, thc nce
North 170 feet; thenLe East 75 feet; thence South Ufl Ccet,
thence Uest 75 feet to the OLflt of beginning
PARCEL 2:
In T’ap. 13 S., R. 4? E. , ¶ 1 N.. Sec. 5 Alt rhdt port LO n
of vacated ?e:; t Ac res Suhd in) S LOfl • more part i _tL Lit ly
described as Eoljows.
Be innz.ng .:t a point 0° 08’ 45” ¶ 1 , 418 fe r and S.
89 55’ 35” E. , 650 feet from the Southwest corner of
the SW1/4 SW /4 Sec. 5 , which is the TItUE POINT OF ;Ecr:JNl::c
thence N. O ’ 58’ 45” W 243.53 feet to the Nor: hc e’sr: cor-
ner of vacated West Acres SubdLvision; thence S 3 s 56’ C.
660 feet to the Northeasç corner of vacated West Acres
Subd ision, thence S. 0 06’ 25” E. , 423. 0 feet, LhL’nce
N. 89 55’ 35” W., 129 14 feet, thence S o’ 03’ 45” C.,
208 feet; thence N. 390 55 ’ 35” W. 50 feet, thence N 0°
08’ 45” W. , 208 feet, thence N 390 55 35 W. , 360 feet,
thence N. 00 08’ 45” 14. ,, 180 feet; thence N. 390 55’ 35
W. , 120 feet to the point of beginnLng.
PARCEL 3;
In ‘Np. 18 S., R. 47 E., W.H : Sec. 5: A parcel of land
in the 5141 14 5141/4, more particularly described as follows’
Beginning 3L a point N. 0° 03’ 45” 14. , 238 feet and S. 890
55” 35” E. , 650 Feet from the Southwest corner of the said
SW1/ SWL/4 which is the TRUE PO INT CF BgCINNINO. thence
U. 8 08’ 45” 14., 130 feet; thence S. 39 55’ iS° E , 120
feet; thence S. 00 08’ 45” E. , 180 Feet; thence N. 390 55
35 ” 14. , 120 feet to the place of beginning
E.’GIIBIT A-I
-------
TOGETHER with a perpetual easement to be used in common
with others, for ingress and egressover ind across the.
Uest 30 feet of the following described land to-wit
In Twp. 18 S., R. 47 E., W H.: Sec. 5. A parceL of
land u-i the SWI/4STJI/4 more pdrticularly descrLhed as
foLlows
Beginning at a point 30 feet North and S. 89° 55’ 35”
E. , 650 feet from the S 8 uthwest corner of th s jd
SW1/4 WI/4; thence N. 0 08’ 45” W. , 20 feet, thence
S. 89 55’ 30” E. 300 èet; thence S.0 08’ 45” E.
208 feet; thence No. 39 55’ 35” W. , 300 feet ro the
point of beginning.
E 0ILBIT A-2
-------
:Two (2) Co;T’crc itt tLiher
‘‘TtjQ (,Pj CrTrer ial Dr -yet ”
L 0 00 ( j JtafitL;erator
One ( I) Pool Table
flno 1) 1970 Champion Modular Home, Serial fl.’0-252-XXV-S-0053
bne (l) 1963 Biltmore Mobile Home (Space / Jd)
ALL other misceLlaneous items now on the prer ises of Wescgdce
Nobile Home Park in Ontario. Oregon, not speciCicalLy mentioned
above.
EXHIBIT B
-------
10000
SEP14 S1
Westgate Mobile Home Park
2511 S. U. Pourth Avenue
Ontario, Oregon fl914
Attention: Linda Clasacock
Dear Water Supplier:
You may recall that back in December, 1980, the U.S; EPA ’s Office of Drinking
Water conducted a national survey of groundwater quality. Groundwater at
1,000 locations around the country was tested for various organic chemicals,
such as trichloroethylene, benzene, and other potentially dangerous compounds.
Your water system was one of the 14 systems tested in Oregon.
The results of the sampling survey for your systet are enclosed. These
results indicate that, with respect to the tested organic chemicals, your
system is safe for human consumption 0
Our conclusion that your system is safe is based on current EPA information
on safe levels of certain organic chemicals in drinking water. This information,
which was developed with extensive input from the scientific community
and the Ilational Academy of Sciences, has not yet been published as final
EPA policy on organic chemicals in drinking water; but at this tine, we
believe this information provides a good basis for concluding that your
water is safe.
If you have any questions, please call me at 221—3250 or address your inquiries
to the above address. Thank you for your cooperation and concern both in
this survey and in providing safe drinking water to the public.
Sincerely,
Michael Cearheard, Coordinator
Safe Drinking hater Program
Enclosure
CChancey/ks g/14i810’—’-t
MGearheard
-------
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— hpc J )
Cii i 4 R L i4 -? r a J /V — I b !1l ,i i’M + : - - ‘
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-------
White - Client
Canary. H&W/District
‘ink - H&W/District
oldenrod . Lab
_______
.1
CENTURY LABORATORIES,
a division Of J-U-B ENGINEERS, Inc r
t. t
250 South Beechwood Avenue, Suite II • Boise. Idaho 83705 • (208) 376.2257
-------
1 CENTURY LABORATORIES
a division of J-U-8 ENGINEERS. Inc
250 South Beechwood Avenue - Suite II • Boise, Idaho 83709 • (208) 376-2257
/a
Submitted by ‘ - Dote Sampled
2511 S 4th Avenue Dote received ‘
OR 97914 Date reported - / -$1
Scimpleof
Lob. No. S Sample ID__________________
RESULTS OF ANALYSIS
All results reported in milligrams per liter unless otherwise designated
CL 102
Rev 58
Respectfully submitted,
CENTURY LABORATORIES
L oro 01 Supervisor
Tm,
Check onalysis needed
Alkalinity
Hardness
o
Residue - Dissolved
Arsenic
Iron
Residue - Total
Barium
Lead
Residue - Suspended
BOD
Magnesium (c cl)
Residue - Volatile
Cadmium
Manganese
Residue- Vol Sus
Calcium
COD
Chloride
Mercury
Nitrogen-Ammonia
X Nitrogen.NItrat
J..:/, s )
Se leniu
— Silver
ç ’::
— Spe , .eC
umhos
— Sulfate
-
Chromium
Nitrogen-Nitrites’
— Coliform, T toI/
100 rat
—
Ntlrogen - TKN
Surfoctonts (MBAS)
Coliform, Fecal!
100 ml
Oil and Greose
Turbidity, NTU
j Cyanide
— pH, Units
] Fluoride
Phosphate-Total
—
Remarks.
copies to
RECEiVED
OV1 81981
EPA- “ -J
-------
CENTURY LABORATORIES
a division of J-U-B ENGINEERS. Inc
250 South Beechwood Avenue- Suite II • Boise. Idaho 83709 • (208) 376.2257
t ov1 198 -
EPA-
Respectfully submitted, -
CENTURY LABORATORIES
Laboratory Supervisor
/0
Ontario. OR 97914
• Submitted by WESTGATE MOBILE HOME PAkK Date Sampled Time___________
2511 S J 4th rc .r 1 Date received 1 ’ 3 ’ /
Date reported i” — ‘
___________________ )aJ J
Sample of _____________________
Lab. No J3 ’c2 Sample ID -i’-
RESULTS OF ANALYSIS
All results reported in milligrams per liter unless otherwise designated
Check analysis needed-
Alkalinity
Hardness
Residue - Dissolved
Arsenic
Iron
-
Residue - Total
Barium
Lead
Residue. Suspended
BODs
Magnesium (ccl)
Residue Volatile
Cadmium
Manganese
Residue- Vol Sus
Calcium
Mercury
Selenium
COD
Chloride
Nitrogen Ammonia
ogen-Ni1rte 0
Silver
SpecificConduct nce
Chromium
Nitrogen-Nitrite
-
Sulfate
Coliform, Tolal/
100 ml
Nitrogen - 1KW
—
—
Surfoctants (MBAS)
Coliform, Fecalf
100 ml
Oil and Grease
—
Turbidity, NTU
Cyanide
—
pH. Units
-
Fluoride
Phosphate-Total
--
Remarks:
pres to:
C t. - 103
Rev 5 81
-------
j---_
4
Sanitarian’s Office
ValeOregon 97918
JAN2 5 1982
January 21, 19 9FF1CE O PEGtO COUNSEL
Lou Cook
Westgate Mobile City
2511 SW 11th Ave.
Ontario, OR 97914
RE: 1982 License for Westgate Mobile City
Dear Mr. Cook:
Due to the continued high nitrate levels in the drinking
water in the Westgate mobile home park water system it would
not be in the interest of public health to allow you to use
the spaces reserved for recreation vehicles for overnight
usage.
At this time we cannot issue you a license for traveler’s
and tourists accommodations. At such time as your water system
meets the safe drinking water standards we will be happy to
consider a license application for your park. Until we are
able to license your park no spaces may be used for overnight
trailer parking.
Sincerely,
L ii C7&
Dale E. King, R.S.
Maiheur County
Senior Sanitarian
DEK: am
cc: Allen Peck
/Environmenta]. Protection Agency, Seattle
1/
-------
(‘ Overland.--_ -—-\
• 336-3881 ,or 466-5447 BOISE. IDAI- O 83705
Bob Cook
Westpate Mobile Pa’k
Ontario, Oregon
Gentlemen:
These water inaylsis were made during the months of January .ind February
/ 1982 by both Water Pefininp. eo., Inc. of Midd1etowi , Ohio and
/ Century Lab, of Boise, Idaho.
,‘ The first made January 5, 1982 on the water from hoth Well ifl and ( 2
of Westgate Mobile Park, Ontario, Oregon shoved Nitrates ( NO-I) of
20.7 which is consistant with previous labatorv tests made by
Century Labatory of Boise.
On January 19, 1982 using water from 1 2 well a sample was tested in
Century Lab. with only clorenation, showing Nitrogen-Nitrate of 16.0.
On February 3, 1982 a second test of same water after being treated with
Clorenation and Carbon came back with the test of 3.10 as shown on
Century Lab. ariaylsis sheet no. 14499.
These test were made to prove Nitrates could be removed by a process of
Clorenation, then absorbation which proved posit*ve.
This resin will have to be periodically checked and changed as resin will
eventually become saturated.
Previous tests were made with R.O. Equipment which had no effect in
reducing the quanity of Nitrates.
Bill Cady
Cady’ Water Conditioning Co.,Inc.
4806 Overland Rd.
Boise, Idaho 83705
k’/
The Sign of Water
February 15, 19 2
AL J
-------
Typeof Typeof Dia of
Mineral Valve Tanks
1 H 30
TT o
bee
Determining Your Cost (from price sheet)
Examp le Model 1) 1 H 30 CSES 2 VC C 23 a 0 series with Resin FM 1
H valves dameiei tanks ConinuouSuquence Eleciro Selecto, cOntrol 2
resin tanks w Ith valve covers IWU t5031b breic l iikS curd 3 ContrOl
Date _ ’ /FtJR7
PAP K
determining your cost
‘ ‘ “ of commercial/industrial “D” system
Water Refining Company, Inc. (softening refining)
Model Number
Series
Example 0
Model D
NOTE If CSES or RCSES controls are ijsed 1 valve cover for each lank with
M valves and dual valve cover for each tank with and H valves must
be included in pricing A d VC’ to No of Tanks in System in Model Num
ONTAflIO, OPECON
DESCRIPTION CODE
1, Mineral Tank Assembly — Includes
Tank. Valving and Minerals 5 457-. 7 __________ ________ __________
2. Electra-Selectors ( ESM ESF, 2ESM
or 2ESF ) 1 MF 53122 _________ _________ _________
3 a. Cant inuouSequence TM Electro-
Selector Control CSES or RCSES —_______ _______
3.b. Flow Sensor
1, 1 1 /,2 .3,4 6”,&8”sizes —______ ________
4. Number of Brine Tanks A.B.C. or D
Maximum of 3 Mineral Tanks to
One Brine Tank _________
5. Manual By-Pass BP for M Valve
Only
6. AR-1”Valve for Single Tank
Units Only
7. Other Components- Chiorena tot PWAP _________ _________ _________
8 ValveCoverAssembly gist, holding Tank _________ _________
NOTE If CSES or HCSES COntiOlt are used 1 valve covet cach tank with M valves and dual valve cover lot each lank with F’ and H vilves mull be
included in pricing Add VC to No of Tanks in System us Model Number
9. TotaUorEquiprnent WeU (2 . $27 ,573.00
10 Installatron Charges PJ..TJS• ST kLTI9N
11 Supervisory Start-Up Charges
12. Freight Charges PLVS FREICHT _________
13 Other Charges . __________
Taxes - __________
Total _________
Total before Taxes
QUANTITY
4
4
1
I
EACH’ YOUR COST
at l8 8•’ 11,597.00
at 162.00 648.00
at —_________
at -
at
at
at
at 549.00 5t 900
at 1000.00 1000. (10
CUSTOMER
BOB COOK WESTCATE MOBILE
Form No 31483 R3/?7
-------
ter Refining Company, Inc.
speclficatith ’i’ ’-’fötaI system
with modular breakdown
Model
Ii. in.
I,’
Flow rate (see pressure drop chart) . - _____________________
Pipe size (inlet and outlet of header) _____________________
Drain size for system , , . . .. . __________________
Maximum capacity per day , , . -.
No. of resin tanks . . ______________________
— .u - US .. s . L ‘‘S. T(’ ... I. L r.i ,Oi. —
Capacity per regeneration , • . ..
Salt consumption ______________
Mineral .... . . FH6-lSCu. FL . p
I—. , ,
O r ting press e . . __________________
Floor space ._ ...ijt.x 10 ft .
Height,overall - 6Ft .
• No. of brine tanks _____________________
Brine tank size ______________________
Brine tank capacity . . . _____________________
Flow sensor - size ______________________
Shippingweight . : :... ‘. ‘- 5000-Lb. ‘-
Total Cam Time ____________________
Time for regeneration (variable) 20 to 40 Minutes
Valve openings—inlet and outlet . . l ’
Resin tank size 30x66 ”
Resin tank working pressure 20 to 125 Lbs .
•Drainsize 1 ira .
Bed area 15 cu. ft .
Freeboard 20 In .
Gravel 400 I per tank
Backwash flow rate _____________________
Fast rinse rate ______________________
Shipping weight ____________________
Floor space _____________________
3
Additional
Specifications
Water Source of water __________ Iron, ppm as FE __________
Analysis Total dissolved solids Manganese, gr, as Mn __________
Total hardness, gr. as CaCO3 __________ Turbidity, ppm __________
Chlorides __________ Act. hardness. gr. per gal as Ca ________
Alkalinity _________ Compensated hardness __________
pH value __________
Note One gta;n per U S ga/Ion equals 17 I ps’rs pet md/ion
Compens.,gted hardness includes addition /0 , sodium, etc
Specifications,
Complete System
Specifications,
Each Resin Tank
Or
Module
Foirn No 30261 3/77
-------
Services Available
On-Site Evaluation
Water Refining Company maintains a stafl of Systems Engineers
who provide on•site evaluation of equipment required, and its
placement, for users’ purposes.
Installation and Start-Up
A Technical Service Department is also maintained by Water
Refining to supervise installation and start-up of product. At time of
start up, training on operation is per formed by the Technical Service
man, as well as leaving operation and technical data manuals
especially formulated br user’s equipment.
Follow-Up Services
Water Refining’s Technical Service Department povides f lcmup
services on all Commercial/Industrial equipment This department
also ovides technical data, drawings, service manuals, and
technical updates on infield equipment.
Engineering Services
Water Refining p’ovides engineering capabilities foi’ special applica
tions using standard production equipment. Installation r3W 1ngs.
technical infoi-mation, arid paris liSts can be provldLd for each aPf
:
: _4_,• ;;
t 1
, , — — r — — £
3
— - --- , ,.— — J __ _. “ _z__’
cc’\.- .) .
. . ‘‘ --.
- -
-
cation u ion reQuest.
-------
,,.... ‘
“ ! ‘
i . ç
- -_ I
. ,4)
1 .. ‘.
• ‘ .-:‘ •. .
?
s ‘ w E
r p -. . “.
a world leader in water treatment
A systems approach to Commercial and Industrial Water Treatment
Water Refining Company was incorporated in 1957 and has developed
into one of the largest manufacturers in the water processing industry.
The corporation has supplied residential, commercial, and industnal
water refining systems on a world wide basis, with installations in 32
foreign countries. Water Refining manufactures filtration, softening.
and deionization systems.
Water Refining believes has a responsibility to create, engineer.
develnp. and produce the finest water treatment possible to provide a
better way of life through water.
i,i.jiula. ,. nt [ ,etU,Iii iL
Several primary patents have been issued to the corporation. Patent
No. 3.101,316 covers the Cycle Process of Treating Water. Other
patents cover the valve, timer, metered brining, and numerous other
mechanisms. Several industry lirsb” are among significant accom-
plishments. Among these are: The 5Cycle Process for Treating Water,
the 5 Cycfe Valve (TM). ElectroSelector Timing Mechanism, Metered
Brining, Wareco Laminated Resin Tank, Modular [ ). signed Commercial
Units. Meter Control Electrical Panel, and the Fully Autom ic Oeionizer
System.
i1idtLliuii .c.
Wa!r Refining Company no s occupies 176,000 sq. ft. of floor space:
that is over four acres of manufacturing facilities under one roof, with
associate facilities in Canada and Denmark.
Quality Control
Water Refining Company manufactures over 90% of the finished
equipment from raw materials. This allows the company to total ’,
control the quality of the product from the time it leaves the drawing
board, through manufacturing, to point of usage.
Research and Development
New parts, assemblies, and complete products are constantly
laborarory.tested fix performance and durability as well as extensive
field testing prior to releasing for production.
Distribution and Sales
In its Midwestern headquarters, laboratory aid manufacturing pant,
located in Middletown, Ohio, Water Refining produces sophisticated
products and water trcatinent systems for the home, business, and
industry. These products are distributed and serviced by nearly a
thousand dealers in the United States In addition. Water Ref irung has
European and Canadian facilities for the international market.
Laboratory Analysis Services
Water Refining Comoanv analyzes , ‘,iter samples free of crurge in itS
exterisi e., e utpped, mudi; !, 1 L)orator t Most ana ses ne cornr e1ed
wthin 48 hours alter iccuving water samples. Unb1e,i?.ItJ e piastiC
botUes are v etabIe for sondino in water samples for
- -
I —
• I- ’- - . .. .1
EXHIBIT ISAI
-------
A:hriel explanation
of how Water Refining’s
ContinuouSequence
generation works
uSequence regenerates the
modules in a selected sequence.
When a module is freshly regenerated, it
immediately returns to service with the rest
of the System. The Electro-Selector auto-
maticalty actwates the regeneration of the
next module as needed, preventing any
module from ever becoming exhausted and
thereby assuring maximum life of the mineral.
This program continues through the entire
System and then returns to the first
module and repeats the ContinuouSequence.
There can be as many as thirty-two
regenerations per day, resulting in pheno-
menally high capacities and around-the•
clock Refined Water.
P ¼xkie u be u pa eO w ,iIe
Relirlel Wdirr tieaDnet I CiIi llL
tflrouç fl ser ce MuOule
Here’s why Water Refining’s exclusive patented process
for treating water is more efficient
I .
I I
:.:... ‘
::.:-;.:
haidness Cfl ineHnq ol the minetal
beil iS practscalI r- uinateO
Becau e the niiti i 1 h i is k )t
clean, the salt dusaqes ieui. in tue
some truouijtsoul the tile ul t tuist
Mininuin salt dos icjec nay Fe
ist eritly used, i’hit. ci i i i iuj:. of
c 1 .i td rixjelieraiiun ,‘J.ii.: ii ’ k.JU Iii’
Alter
U (r ’ ]lll::.jI , I H ’
Ietuiiis Iu lull ‘4. ,c
Whei ieQtsed. I I IC IIu.i ilule
‘ eO i(g r ij ’iii i
Cofltm lhl&QuefCe I Q f ll’I,ji
C ilmJeS I Mj i ,u:ii u ) twt y.
bypassElg tile ifll l litJiC Ulitli I ’I k! .1111111
iuiq.A te
Ll ,r, A t ,4. l lII,llIllIS ’,
k lw , Iled iLti W.Ikl
G J’AJy . ,j .!,lI *;
U.S. Patent No. 3,101,316 “Pr ;ess
of Treating Wate(’ is the key loan
Water Refining Systems: water
Sotteners, water retiner . tiiter ,
demineraiiiers and deaikalyieis The
ermie itineral bed — uj h tup and
bottom — is kept Clean, dIi ilRJ J
!ulqie s’yslern tu tilue iiiiii ii i In
tO pails per iflillioii. .i Well .L
t( t , ’
-------
• ; ; -
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- ) .1]
—
-
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. ‘I’
*% S .J ,
I
— I . .
- , .“ • • . • . “‘ ‘ ‘ . i .
-
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‘./ ‘ . -;- ‘: ‘•:.iL . I,
- - -. .• .. . . -. ‘-l • ‘ -,—,. •
r ,.
-, - -:- : 4 L .
I i
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I ‘ I I I ‘. .. • —. .i - ’1 •. • . - / -:-. -.
— I
* -.. , .• , . eI.( . - .- ‘ 4- ,1
4 “
%, 4 ...
f Value Engineered System of Minimum Equipment Maximum Efficiency ..
Realistically Designed for Maximum Flexibility
Water Refining’s unique modular system affords the
‘lexibility of custum design with standard mass-
roduced components. A system can be easily
gned to meet virtually any installation require•
rient. Should the refined water requirements increase
at a later date, the system can be easily expanded
by the simple addition of standard modular tank
assemblies.
Relatively small and more flexible, modular systems
can provide large quantities of refined water. For
instance (in the scale drawing shown) two 18” resin
tanks, each Containing 5 Cu. ft. of resin, can remove
3,200.000 grains of hardness daily with the use of the
ContinuouSequence lu 5-cycle process of regeneration.
The equivalent conventional duplex large 60” resin
tank using the timer controled system is also capable
of delivering the same .i pacily, but contains 67 cu. ft.
of resin per tank.
REFINING:
Ii i; ,: ‘w 4 tIei 0U uSe Ii i .. ’,. (1Ir.VlIYi,i( il ti .4 1 IiC ‘.i1i
liii ICl ild ill. . lIi 1 t 1t,’ -. ‘;iI - .0 I . . . . is ..
-• tetuu%iiig ds oIveC iL1s. it .il’.ii rflecii r ldtei
L*IIIi Uiij(IIICS.
., BACKWASH:
Nj.i/ a Coi*io’ied upwird how & w UeI en the
c ..in bed. -en ib.-. tnt, re .ii I. 1 j ,j ’. dfid i id4t,S 4 d
‘I ti.ippiia it he 101) ut the Otci r cJ di wiq iI.e
rehnuiuj cycle h - esi bed L. ioath.Ci Li SUt.Cet. iig ,Cit
SLOW RINSE:
hhinsu q is 1C IIUIIC(1 to tIti ti 1IIUH I t4u . ii I bill irie
rein 1K-cl Ihc how idle Is ,*ii:Ii I,- Cilli i .1 blest
htii leSili tieul i cuiiip-cltlv lii ,t l . .jiid , jl 1111
I. IiIIsItJ 141 WdtCl .i IJJIfl
11w l ilLd List nose liows tjiiwni id thfu:Qii the i Ii
bed This hiii .iI ii ti - •. . . sb the
...jnie time, iiuSh .4. tld. I ISU I w
iisiflt ,ti 5. s,-ilb bii .e .iiiil ..i-d liii IICL -.
.11 1411 ut trIcrc ’ b4 (I I , 5 ,. I1C I L - 1- ti d
i iii i wdiri jhIe i ,:,j l, it ,. 18,,,Ils-’i
. BRINING:
A c 11I i &iniia Idle iS u- ..:I 0 reerui.le the lesli
- IK;d. ieStuiifliJ ItS V4JI4 I rtlii. 1.0 4 hJClb Ciiiiiii: .-d
- -‘ - -a” hiiuii piuvx1c . iIi ,UuflItJfll - ill , 14 4 - I -i ,
4
_____ FAST RINSE:
: .;;:
LI
-------
Sizes and Capacities
Water Refining manufactures Commercial
Refiners ranging in size from 10” x 30” M-
Series up to the 30” x 66” H-Series, and
Filters ranging from 10” x 30” M S ites to
30” x 66” F-Series. Capacities for the
Refiners start at 13100 grains with minimum
salt setting (5 lbs/cu. Ii) on the 10” x 30’ M-
Seri and a maximum capacity of 450,000
grains on maximum salt setting (15 tbs./cu.
It.) on the 30” x 66” F or H Series.
The series of the refiner or fitter is dictated
capacity and flow rate desired for each
Lition.
VA VL
DLSC IPTION
WAU(CO
M. , , ,..aI
... . ..
I . .. 541
II... ! “ ‘
P’,.-•.,sas..,d,on.,.,o.,.. .
I..i.
b Ode’
FM- i
— FM—1O
— —- —— -
“‘‘ M.’.j.....
‘e•
•., c.... e .,
s...,,
FM—S
r
M.e..,,..n,
Sell
oos. .
ll i..
jp...l
— -
. . .p. .. , G.e....
.. .
P.. l . . ‘ ‘‘ 1’• Ii
l4. ti. 1 V ’
M VALVE
iPiastic Basei
1” S 10.30
12.2 20000
—
14 6 40,000
--i-—- -
17.0 60.000
22010Q000
18,000 13,100
I
— —-—— --
36.000 2b530
----
5-4.000 40,000
90000 6 i0O0
1
I
—— —.—--.i——---—-—
o 3 1/,500
- -— - -- -“
/ 5 28,000
9 7 i ’. rn
j
15 ii /0000
I
— ... —
26 19 $40,000
,,,
40 29 210000
I
8
12600
—p
10 23,000
H—-—
Ii 38.000
17154.000
16 90000
I
22 4000
2!. 90(100
. —
3/ 160,000
I
3ri 266.000
I
—
r ’
—
1”
T
1”
lOj .45
—
12.48
1 .66
18.66
24.4
150000
I
135000
I
100.000
t
F VALVE
iDupi . . .
6 145 5
Bdsei
“
66
18.66
366
43 9
I0 00O
150000
300.000
,
90 00
135,000
61 00O
100000
—
11/,”
24.66
— —
46.3
270,000
I
200,000
I
300,000
I
1’,,”
30.66
-
50.0
450,000
I
405,000
I
H VALVE
iDupie . Biais
Basearid
AuxI liary
Pipingi
:
2”
—
25’.”
18.66
—
24.66
69.5
1 .0,00O
.
300.000
t
135000 100.000
—
270,000 2( ’ C(
I
, [
, - —
4 1 9(’,OOO
-.-_.......t ——
80 160,000
I
100 266f000
—
1220
2 ”j 30*66
158.5
—
450 000
405f000 300. )00
(t) AR-RAW V.ATER BY PASS NEEDED-ONLY WHEN INSTALLED AS SINGLE RESIN TANK UNI I OR FILTER
S!IU) ,’(j uf ( u(:u :
lL ’sl;tdnl rc , j
poP elIayiL’ne
•E with mine
di .ii iiiii dSSenlfliy
•Aui ijiijic an eiliii%1
I(1 . ‘i t 1jv ive
ks use with
Id u’d ti ne irom b.ik
brne
•Av3 i.i . e 10 rwtntass
I 4)tCidi ie ’,
BRINE TANKS
A 20” 42”
450 lbs capacity
627”xS O”
900 lbs. capacity
C32”xSO ”
1500 iOs. capac y
SOLUTION TANK
D20”x42”
225 lbs. capacn with KMnO4
reçweraiil
BRINE SYSTEMS
ItJ !0’ .42”
iS lbs C.Ipocily in hquid sokitinn
BSB 2/” x SO”
115 ihs Capacity 1 IM u i
(iutu i
BSC 32” • 50”
‘75 Ins c.ip.icity
Soluleli
VALVI
DFSCAIPTIOPd
T. 9 k
S.,.
o:.ndo
FM—14
— -
C
, , ,_ * . . , . . ,
a . ... .,
,Sulp N. ., ..:
FM $ FM-11 1M—2 FM-t
. — — - —
. ..,
, , _ ‘ . . ,., p..... ,
a.,. . s ....
M VALVE
IPIj i.c Basel
“
12*48
t4 .b
‘
7.3
98
:‘
$4 000
I
22.750
‘ ‘ ‘
5 14,0(51
7K 22,750
4 Ii
I
1.5
:‘
4 b
15
‘
46
bb
F VALVE
10 . 1 ( 1 1Cm
6.e ..
ti. ise)
t’ ’
18.66
24*66
159 135 000
268 70 000
i: F 5Y 10
. , L . - .
.‘ ,‘ i/O . .l D I 18 1
.
106
$8 /
10
,_
$8 7
30.66 326 105900
stJ4 105çXJ0J 29 3 . iJ
29,3
LxpanUauIe vsiems
iners:
5. I .
Operating Data
F low Ra *es& k o .drov ‘ lel.lik,..,..t iljn.. ,., 31”
Pisasuic Ftanya —1 psi fIb ,l to.. . . , .. . I
MSei ies FSer ies
12’. • 0cycii,
Filters: ‘ ‘ ‘r. - - .wB. it c0p w .
fl ‘ fl 4 P hi* .3LaoRen .J43U 125pu -
U ;upera&lflg uaLa I np. .tui.Mange40 -13’
£l . I thaap.tuia c l2V— 1 3c ’,cfl
1.1 Series
FL TERF (iW RATES SIlOWIl ARE 8A Ii)iiNFL TER M1I)$A F i -hI 1 /At- .(k P 0T
hfj Ku. ’APIIliiYl’A5 ”iNlF14iIllMY
18
-------
1 CENTURY LABORATORIES
a division of J-U-B ENGINEERS. Inc
250 South Beechwood Avenue - Suite II • Boise, Idaho 83709 • (238) 376-2257
Submitted by - Wm. D. Ca Dote Sampled —-_____
4806 Ov r13nd Dote received 213/82 —
) ,, --I
I3oi , TI ) Dote reported --_____
336—3881 Sompre of __ !I - —_________
Lab. No 14499 Sample ID ________ _______________________________
RESULTS OF ANALYSIS
All results reported in milligrams per liter unless otherwise designoted
Check onalysis needed
Alkolinity
Hardness
Residue Dissolved
Arsenic
Iron
Residue Total
Barium
Lead
Residue - Suspended
BODs
Magnesium (cal)
Residue- Volatile
Cadmium -
.
I
Manganese
Residue - Vol Sus
Calcium
Mercury
Selenium
COD
Nitro en-Ammonio
-
Silver
Chloride
S - -.
- x
Nitrogen-Nitrate
SpecilicCor iductance
— umhos
Chromium
—
Nitrogen-Nitrite
Sulfate
— --________________
Coliform, Total/
100 ml
Nitrogen TKN
‘
Surfociants (MBAS)
Coliform, Fecat/
lOOm l
Oil and Grease
—
Turbidity. NTU
Cyanide
pH. Units - -
- -
- - - — -
Fluoride
Phosphate-Total
Remarks-
Respectfully submitted.
CENTURY LABORATORIES
/ -Si, -f
ipies to
i/ 57’i1
- Loborotory Supervisor
-------
CENTURY LABORATORIES
a division ot J-U-8 ENGINEERS Inc
250 South Beechwood Avenue Suite I I • Boise. Idaho 83709 • (208) 376.2257
Dale Sampled - Time _____
Date received ‘ “ -J -’z _ ___________—_____
______________ ___ 2 ‘ - -
___________________ —____ Date reporled . . .L_____
_________________________ ‘ 1 /
Sample of ‘ ! ( ‘i ’
SomplelD - ________ ____
RESULTS OF ANALYSIS
All results reported in milligrams per liter unless otherwise designated
Lab.No. / ‘/3’Jf
Check analysis needed
Alkalinity
Arsenic
Barium
BOD
:admium
o lcium
COD
Chloride
Chromium
Coliforrn, Totol/
100 ml
Coliform. Fecal/
100 ml
Cyanide
—
.
Hardness
Iron
Lead
Magnesium (cal)
Manganese
Mercu
N i rogen-Ammon;o
Nitrogen-Nitrate —
Nitrogen.N ilrtle —
Nitrogen - TKN
Oil and Grease
pH, Units
o
‘Residue. Dissolved
Resudue . Total —
Residue. Suspended
Residue - Volatile
Residue. Vol Sus
Selenium I
Silver
— SpecificConductonce
umhos
Sullate
—
SurlactonI (MBAS)
—
Turbidity, NTU
—_____________
Fluoride
Phosphate -Told
Resoectfully submitted
/ CENTURY LA ORATOR1ES
// I , ‘
. .,‘ .; /
— /
,,(
Submitted by.
Remarks.
pies to
Laboratory Supervisor
-------
Water Refining Company, Inc.
water anarysis
Analysis No.
45,501 i 1
January 5, 1982
Date
Deafer . dist. C ciy’s Water Conditioning
Address 4806 Overland Rd .
Ctty, State Boise, 83705 -
UserTrailer Court
Address ______________
City. State
• . .--- --- - - - ANALYS 1S
Standard Tests Special Tests
RECOMMENDATIONS
A refiner that will handle this water satisfactorily is MODEL
Special problems exist in this water which will require special equipment as specified below.
cc: Santa Ana CA. Co nercia1 Consultant
1, ,c !._Z __ 2’
/ / /7/
/ 1-6—82
NOTE This analysis does not cover bacteria nor piiffly II in doubt, have water tested by local public health officials
Description
PPM
GPO
Description
PPM
GPO
-pH Value 8.4
Total Dissolved Solids
Iron
—
Calcium Hardness
.Suifates
16 . c
Magnesium Hardness
Total Alkalinity
22 .0
Nitrates as NO 3
ii.
Chlorides
4
Manganese
Total Hardness
31.2
Silica
Compensated Hardness
Copper - ,
Sodium Salts
Phosphates
-
- --
Turbidity
APPEARANCE OF SAMPLE
CLEAR
L .
Note Ill PPM tPan , per mIirDn) — 1 GPG Gra’ns per gaiton)
-------
(-iJJ
STEVEN JAMES PIERCE
AT ORNE AT LAW
2*3 Saulhweil 3rd Avenue
Ontario, Oegon 97914
Telephone ( O3J 889-2197
‘n r
March 8, 1982 LJL.
MAR 1
Grf/cEc
d
Barbara Lither X -
Attorney at Law
Environmental Protection Agency
1200 Sixth Avenue
Mail Stop 613
Seattle, Washington 98101
Re: EPA File No. X80—09—06--1414
Dear Barbara:
As I indicated to you on February 26, 1982, my clients, Bob
G. Cook and Denise D. Cook, are purchasers of West Gate
Mobile Home Park from the Pecks. I enclose herein copy of
Contract of Sale which has been filed in Malheur County,
Oregon, evidencing the transaction. It would seem to be
more appropriate that the Notice of Violation be directed
at the Cooks, as both owners and suppliers, rather than the
Pecks. If this could be accomplished, I believe we might
be able to remedy the situation much more quickly.
As you have indicated, the primary purpose of the Notice
of Violation is for the protection of the public. My clients
have been conferring with Bill Cady of Cady’s Water Conditioning
Co., Inc., of Boise, Idaho. The proposal of Bill Cady is for
installation of a system in the mobile park, as more specifi—
cally set forth in those documents which I have attached to
this letter as Exhibit “A”. The equipment is manufactured by
Water Refining Company, Inc. From its brochure, it appears
that its installations are worldwide. At this time, water
nitrate content appears to be somewhere in the 16.0 through
22.0 range. The proposed system, based upon analysis of
Century Laboratories of Bosie, Idaho, would apparently reduce
the nitrate content to somewhat in excess of 3.0. It is my
understanding that nitrate contents of less than 10.0 are
acceptable.
I would ask that your technicians review the proposed installation
and give their opinion as to whether same would resolve the
nitrate problem in ‘ 7est Gate Mobile Park.
-------
Barbara Lither, Esq.
March 8, 1982
Page 2
t this time, there are two wells serving the West Gate Mobile
Park. My clients’ proposal with regard to the proposed system
is to install the Water Refining Company, Inc., equipment at
one well to determine whether the system will reduce water
nitrate contents significantly. If the system reduces the
nitrate content at Well One, the same system would be installed
at Well Two after approximately a 90-day test period.
Please advise the undersigned as to your thoughts on this
matter at your earliest convenience. Thank you for your continued
courtesies.
Ends.
c: Mr. and Mrs. Bob Cook
Patricia A. Sully, Esq. ) W/Exhibit “A” End.
Yours very
SJP: 1w
-------
/S 613
April 26, 1982
Steven dames Pierce, Esq.
2 3 Seutti est Third Avenue
Ontario, Oregon S7914
Re: EPA File Ho. X8O-09—CS—1414
Ce r ( r. Pitrce:
In response to your letter of ardi 3, l 82 reyarcinq the solutions you
propose for the nitrate contamination occurring at the Westgate o ile
flo re Park, the Drinking Water Prc rtms ranch provides you w ith the
fo1lowin iriforr.ation:
As we understand the system proposed ay Cady’s hater Ccno1tioniri Co.
Inc., nitrates are to oc renioveo by first chlorinating the water and then
passino 1 . tnr ugh a column of activated carbon. We agree that nitrates
can be removea by this aiettiod, but th information available to us
incicat s that the effective life of tne tne ia (activated caroon) may be
quite short. It appears to us that the rer;icval effcctiveness of the
carooii will arop sharply after an amount of dater eQual Co between 80 ano
150 times the vo)u e of the car on has passed tnrough. This rteans that
each cuoic foot of carbon will be able to effectively r ove the nitrates
from between 600 and 1100 gal)ons of water.
The life of the ciroon can be extended througn addition of acid to loi:er
the pH of tne water entering the carbon filter, if this stap is used it
must be f 11 wed by a step rrnich raises tue pH into the neutral range
(arowlu ph7) after filtration and oefcre water is cistributed to
consurc rs. The life could be still further increasec by regeneration of
the carbon iti ether chemicals, but this is prnoauly not economical on
such a small scale plant.
Al] of tr ese treatment processes requiro an experienced operator and close
control of the system, usually ma in9 them impractical f r smaller
systems. lute EPA’s studies of tie costs are not co p1ete but preliminary
andlyses indicate that a capitol investment in excess o I00,CQO would e
required to construct a facility which could consistcntly provice
satisfactory nitrate reduction. This hign initial cost coupleu with th
cost oi carLori re-placement anc the neec for intansive operation c usas us
to Question tue economics of the proposed or cess for installation at
Westgate. Total ccsts for finisned water cculc be on the orcer of 70
cents per 1000 cailons.
A& 1 $ .L t IV
-------
We agree that a system of the proposed type could probably do the job at
Westgate if properly installed and operated. However, we suggest that
more detailed information on carbon replacement costs and the long term
effectiveness of nitrate removal be developed through a pilot plant study
if your client still wishes to pursue this potential solution to his
drinking water quality problem.
We hope that these comments will be helpful to you in determining your
future course of action.
Sincerely,
Barbara J. Lithei
Attorney
Office of Regional Counsel
cc: Mr. Allen Peck
-------
qIL .-
STEVEN JAMES PIERCE
A1TORNEY AT L.AW
213 Soulhwest 3rd Ayei ue
— r — — Ont zm. Oregon 97914
T I ph (503) 68 2191
[ ITT
April 30, l982 - ..2
-
EPA --
Barbara J. Lither, Esq.
U.S. Environmental Protection Agency
1200 Sixth Avenue
Mail Stop 613
Seattle, Washington 98101
Re: EPA File No. X80—09—06—1414
Dear Barbara:
I am in receipt of your letter dated April 26, 1982, and
have forwarded same to my client for review, with my cover
letter. I am asking him to immediately research alterna-
tive solutions to the problem.
I believe that I have asked you if you would dismiss the
complaint against the Pecks and either ref lie or in the
alternative, substitute the Cooks for the Pecks.
Please advise as to your intentions in this regard.
Based upon the analysis of your specialist, it appears the
proposed system which was presented to my client by Cady’s
Water Conditioning Co., would not be cost effective. Perhaps
your department could provide the undersigned with some types
of systems which it has found to be cost effective and, thus,
practical on small-scale operations, such as the mobile park
here in Ontario.
Please advise as time permits.
Yours very
/
STEVEN’- . ‘IERC
RECEiVED
SJP: 1w
I 1982
cc: Bob C. Cook
EPA.flW:
ic
-------
io q aio3ci
WATER BACTERIOLOGICAL EXAMINATiON
U -6, 7 ñ2 ó ______________
ampIe Source Collected By
)ate Collected Routine Sample._.... Resampie_ Original Sample’
‘ / Name. Address. and Ph e Number of Person to be Notified tpleose print)
MO DAY YEAR / 4. ’
Time Collected
AM
/ / PM
hOUR MIN
Chlorine Residual ________
Send Samples To Remarks
Eastern Oregon State College
Water T€sting Laboratro
La Graod Oregon 97850
Certified Lab ‘30
FOR LABORATORY USE ONLY
Date and Time of Analysis Analyst Sample Number , t.
,— -- AM
‘/ / ‘1 PM
MO DAY YR TIME R emarl i
M em :n ltr :io: ‘m Is
VeriliedTota lColiforrnCount L /lOOrnls
Verified Fecel Coliform Count ______ /100 mis
Multiple Tube Test
Presurntive (10 ml gachi Cønlrrmation
[ 2 irs 2lhrs
48hrs 48hrs
MPN____ /lO Omls
Sample Dogs\ Does Not _____ Conform toAPI-fA/EPA Standards for Drinking Water CEl V c..D
If sample does not conform, please see reverse side UN 23 1
Date Reported / -I 7 / - ‘>. . EPA-DW B
!i40 DAY YEAR
Aff ‘
-------
U.S. ENVIRCn.IMENTAL PROTECTION AL NCY
REGION X
1200 SIXTH AVENUE
SEATTLE, WASHINGTON 98I0
May 24, 1982
CERTIFIED MAIL — RETURN RECEIPT REQUESTED
Steven James Pierce, Esq.
243 Southwest Third Avenue
Ontario, Oregon 97914
Re: Westgate Mobile Home Park
EPA File No. X80-09-06-1414
Dear Mr. Pierce:
Thank you for your letter of April 30, 1982 wherein you advise us that
your clients, the Cooks, are researching alternative solutions to the
problem of nitrate contamination at the subject mobile home park.
At your request, we have also researched which types of treatment may be
cost effective and practical for small scale operations such as your
clients’ mobile home park. Unfortunately, our response is that we do not
know of any methods for removal of nitrates which do not require both a
significant capital outlay for equipment and frequent attention by a
relatively sophisticated operator. Therefore, treatment is usually not
the most economical means of reducing nitrate concentration to achieve
compliance with drinking water standards.
One suggestion that we have is that you investigate the possibility of
obtaining an alternative source for your drinking water. Two
alternatives which deserve review are 1) construction of a new well in an
area or at a depth where nitrates are not likely to be a problem, and 2)
connection to a nearly public water system that can supply your client
with an adequate quantity of water and which consistently complies with
drinking water standards.
The Environmental Protection Agency (EPA) technical staff would be happy
to discuss these options in greater detail if you so desire. Feel free
to contact either myself at (206) 442-4232, or Larry Worley, Drinking
Water Programs Branch, at (206) 442—1893.
REPLY TO
ATTN OF
-------
With regard to the substitution of the Cooks for the Pecks as respondents
in this matter, please be advised that [ PA is reluctant to do so at this
time. Pursuant to the Safe Drinking Water Acts EPA looks to the
“supplier of water’ in its enforcement actions, with the “supplier of
water” defined as “any person wno owns or operates a puuIic water
system.” Since the ownership issue has not been ultimately resolved, EPA
does not feel it is in our best interest to omit the Pecks at this time.
Please contact this office so that we can work with you and your clients
in resolvinq this problem.
Sincerely,
Barbara J. Lither
Attorney
Office of Regional Counsel
-------
UNITED iATES ENVIRONMENTAL PRO...”L(ION AGENCY
, 1 ED S .
L
REPLY TO
ATTN OF.
OREGON OP RA tONS OFFICE
522 SW 5TH AVENUE
YCON BUILOING ZHD FLOOR
PORTLAND OREGON 97204
US. Environmental Protection Agency
Oregon Operations Office
522 S.W. Fifth Avenue, Second Floor
Portland, Oregon 97204
Dear Sirs:
I have completed the questions you asked as follows:
(Circle the correct answer)
1. I have lived at the Westgate Mobile Home Park for (less than 1 year)
‘a
(1 — 3 years) (longer than 3 years).
2. I (do not) receive tap water prov idea by he Westgate Mobi le Home
Pa
3. To the best of my knowledge, I (have) (have not) received either written
notification or seen notifications posted concerning the drinking waxer
ø’- ’
quality providea by the Westgate riobile Home Park.
4. I understand that the tap water proviaed by the Westgate Mot ile Home
oes no Lmeet natio al health standards.
Park s( /
Notice: nswers to these questions are part of an o ia1 investi tion
being conaucted by the-U.S. Environmental Protection Agency.
Signed E&
Adaress -
Date 13 /9
Crogon OperaUofls Office
€PA_REGION X
9#7 /i/7(
- “ (ri i.1
JAN 17 1963
A L4
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
S1 1
REPLY TO
AT1N Of.
OREGON OPERATIONS OFFICE
522 5W 5TH AVENUE
YEOP4 SUILDING 2ND FLOOR
PORT LAND OREGON 97204
U.S. Environmental Protection Agency
Oregon Operations Office
522 S.W. Fifth Avenue, Second Floor
Portland, Oregon 97204
Dear Sirs:
I have completed the questions you asked as follows:
(Circle the correct answer)
1. I have lived a
(1 — 3 years) Jgerthanir j Park for
2. I (ao not) receive tap water provided by the
Parx.
(less than 1 year)
Westgate Mobile Home
3. To the best of my knowledge, I (have) no received either written
notification or seen notifications posteci concerning the drinking water
quality provioec by the Westgate Nobile Home Park. p t N
4. I understand that the tap water provided by the Westgdte Moofle Home
Park ç )(does not) meet national health standards.
Notice: Answers to these questions are part of an official investigation
being conducted by the U.S. Environmental Protection Agency.
Si gn ed 6 7p p t.
Address c:J2u . .(i OA2A
Date ? J11
MR. & MRS. WARD 1-IOLIOPETER
2315 SW. 4TH AVE. 5P. 13
ONTARIO. OREGON 91i
JI N 17 1993
Crogon Operations Office
EPA_REGION X
-------
UNITED . .?iiTES ENVIRONMENTAL PROT TiON AGENCY
OREGON OPERATIONS OFFICE
522 5 W SIN AVENUE
Y’EON 9U L0ING 2Np FLOOR
!ORT. N0 OREGON 97204
U.S. Environmental Protection Agency
Oregon Operations Ofhce
522 S.W. Fifth Avenue, Second Floor
Portland, Oregon 97204’
Dear Sirs:
I have completed the questions you asked as follows:
(Circle the correct answer)
1. lived at the Westgate Mobile Home Park for
l_ .Lyears) (longer than 3 years).
2. 1 do (do not) receive tap water provided by the
Pa
(less than 1 year)
Westgate Mobile Home
3. To the best of my knowledge, I (have) (have 1:)received either written
notification or seen notifications pos e co rning the drink’ing water
quality provided by the Westgate Mobile Home Park.
4. I unde t,aj ç1 that the tap water provided uy the estgate Mobile Home
Park d J (does not) meet national health standarus.
t’Iotice: Answers to these questions are part of an official investigation
being conducted by the U.S. Environmental Protection Agency.
Signed ?;) t
Address25, 1 J
(C
‘ ,i/Z/3
( t- -
Date (I, i z - / 3
..? ° ST 4 *
I’. 4 c o1
REPLY TO
ATTN OF
1
-------
UNITED iATE& ENVIRONMENTAL PRO1..CiION AGENCY
OREGON OPERATIONS ’OFFICE
322 S W 5TH AVENUE
VEON BUILDING 2ND FLOOR
‘POhTLAND OREGON 07204
U.3.Environn enta1 Protection Agency
Oregon Operations Office
, 522 S.W. F,jJt h, Avenue, Second Floor
PortUnd th bn ‘97204
tear Sirs:
I have completed the questions you asked as follows:
Ccircie the correct answer)
lived at ‘the Westgdte Mobile Home Park for han1yèár
years) (lon9er than 3 years).
2. receive tap water provided by the
3. Jo the best of my knowledge, I (have) tc1Ic i received either written
notificfljon or seen notifications posted concerning the drinking water
quality rovided by the Westgate Mobile Home Park.
4. I und nd that the tap water provided by the Westgate Mobile Home
Park does (does not) meet national health standards.
.,Notice: Answers to these questions are part of an official inves i ádon
being conducted oy the U.S. Environmental Protection Agency.
Signed 4 17 L Date 1 -/A- 3
Address S7k’1 i c/kA Q L /O
9
l.tfhave
(1 - 3
t4estgate Mobile Hone
REP lY TO
ATTN Of:
£hrt 7 ip ,r , O2.Q 9 0n
-------
UNlTEij’ ’TATES ENVIRONMENTAL PRLI1E .T1ON AGENCY
OREGON OPERATIONS OFFICE
522 S W 5TH AVENUE
YCON BUILDING 2H0 FLOOR
PORTLAND OREGON 97204
U.S. Environmental Protection Agency
Oregon Operations Office
522 S.W. Fifth Avenue, Second Floor
Portland, Oregon 97204
Dear Sirs:
I have completed the questions you asked as follows:
(Circle the correct answer)
1. 1 have lived at the Westgate Mobile Home Park for
(1 — 3 years) (longer than 3 years).
2. I o) (do not) receive tap water provided by the
ParT
(less than 1 year)
Westgate Mobile Home
3. To the best of my knowledge, I (have) have not) received either written
notification or seen notifications posted concerning the drinking water
quality provided oy the Westgate Mobile Ho e Park.
4. I undey’.stand that the tap water provided by the Westgate Mobile Home
Park s) (does not) meet national health stanuards.
Notice: Answers to these questions are part of an official investigation
being conducted by the U.S. Environmental Protection Agency.
Signed /
Address ;
‘—I
Date ,‘ — -
- J -i
Gregon Operations Office
EPA__REGION);
.çEO S7 i,
PRO1 ’
REPLY TO
ATTN OF
JAN 17
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OREGON OPERArIONS OFFICE
ic.O S, .
522 SW 5TH AVENUE
VEON BUILDING 2ND FLOOR
PORTLAND OREGON 97204
REPLY TO
ATTN OF
U.S., Environmental Protection Agency
Oregon Operations Office
522 S.W. Fifth Avenue, Second Floor
Portland, Oregon 97204
Dear Sirs:
I have completed the questions you asked as follows:
(Circle the correct answer)
1. 1 have lived a the Westgate Mobile orne Park for (less than 1 year)
(1 - 3 years) (longer than 3 years). / , ()4.J
2. I (do) (do not) receive tap water provided by the Westgate Mobile Home
Pa
3. To the best of my knowledge, I (have) have not received either written
notification or seen notifications paste c ncerning the drinking water
quality provided by the Westgate Mobile I-tome Park.
4. 1 understandS hat e tap water provided by the 4estgate Mobile Flome
Park (does) (does not meet national nealth standaras.
r& 4 . 8C’fl T/ /2 dl /
Motice; Answers to these questions are part of art official investigation
being conducted by the U.S. Environmental Protection Agency.
Signed - Uate / . / 2
Address -/ i ( ‘. ‘Al
JJ N 7
Lregon Opera tjO
EPA R GSON)(
f 2 /tL., 6 ? I
-------
UNITED ATES ENVIRONMENTAL PRO...L.,ON AGENCY
OREGON OPERATIONS OFFICE
522 SW SIN AVENUE
VEON BUILDING 2ND FLOOR
PORTLAND OREGON 97204
U.S. Environmental Protection Agency
t.Oregon Operations Office
22 S.W. Fifth Avenue, Second Floor
Portland, Oregon 97204
hear sirs:
I have completed the questions you asked
as follows:
(Circle the correct answer)
1. I have_lived at the Westgate Mobile Home Park for
(fl— 3y 3 a ..s) (longer than 3 years).
2. I do (do not) receive tap water provided by the
Par
(less than 1 year)
Westyate Mobile Home
3. To the best of my knowledge, I (have) ( ) ave no ) received eitner written
notification or seen notifications posted concerning the drinking water
quality provideci D the Westgate Mobile Home Park.
4. I understand that the tap water provided by the Westgate
Park (does) ( pes_ meet national health standards.
Mobile Home
Notice: Answers to these questions are part of an official investigation
being conducted by the U.S. Environmental Protection Agency.
Signed,’ .’
Address ( j)QJ (/ ,/ç7, /‘ -2
J7LL jM 7qp /
(7
Date
r
1:2
Cregon Operations Office
EPA—REGION X
REPLY TO
ATTN 0F
JAN 171983
-------
UNITED ATATES ENVIRONMENTAL PRO1 CTION AGENCY
iCO
.1& PRO C
PEPL ’ TO
ATTN F
OREGON OPERATIONS OFFICE
522 SW SVM AVENUE
YEON bUILDING 2ND FLOOR
PORTLAND OREGON T2O4
U.S. Environmenta1 rotection Agency
Oregon Operations Office
522 S.W. Fifth Avenue, Second Floor
Portland, Oregon 97204
Dear Sirs:
1 have completed the questions you asked as follows:
(Circle the correct answer)
1. 1 have lived at the Westyate Mobile Home Park for
(l- 3 years) ( loqger than 3 years) .
(do not) receive tap water provided by the
(less than 1 year)
Westgate Mobile Home
3. To the best of my knowledge, I (have) av .ji. ) received either written
notification or seen notifications posted concerning the drinking water
quality provided by the Westgate Mobile Home Park.
4. I understand tnat the tap water provided Dy the Westgate Mobile Home
Park (does ) (does not) meet national health standards.
Notice: Answers to these questions are part of an official investigation
being conducted by the U.S. Environmental Protection Agency.
Signed hl t ) nA CL c
Adoress C 4 &i - 1u
OAt
# /7
1 9’ i
Date
Oregon Operations Office
€PA REGION X
JAN 131993
-------
) DAY YR
Time Collected
____ 67
ia/coj PM
HRS MIN
YES NO r
C i i lorin4te d
Free Crilorine Resoual
i ’.’ c t-ia cpi.io c
ROUTINE 1J% SPECIAL -
RESAMPLE 0
tFB NO
L
SEJRVEYEO
OATE / I
MO DAY YR
County Coliectecj Il
411r.J c Mi J,
Rem trks
., J i_i’
Marl Public Health Laboratory, Oregon State Health DiIsIon
To P0 Boi 275 Portland, Oregon 9720?
V
CAI PECEIVLD LAE rip
OL PER 1iJ 5 10 M .
PR 5UMpT1vE —
C ONF IRMtTIDN I
VOL PEP TUBE I lL
PRESUMPTIVE I
CO 1 RM ITION I I
VOL PER TUBE 4L
PRESUMPTIVE I I I
CONFIRMATION I I
CNECK E O
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UNiTE ‘TATES ENVIRONMENTAL PROTEC IN AGENCY
DATE JAN 18 1983
SUB3 CT westgate Mobile Home Park Investigation - January 12, 1983 -
?ROM Harold Field Investigator ,;
File • EL
The purpose of this investigation was to sample the water supplied by the
Westyate Mobile Home Park for nitrate and coflform contamination and to
ascertain whether the tenants had been notified of past and continuing
nitrate violations in accordance with the requirements of the Safe Drinking
Water Act standards and the Notice of Violation dated October 10, 1980.
This investigation was conducted with i 1r. Dale King, supervising sanitarian
for Maiheur County. Mr. Robert Cook, current owner/manager of the Westgate
Mobile Home Park was unavailable for the investigation. Written
authorization for inspection under Section 1445 SDi4A was submitted to
Westgate via the rent payment slot in the ParK office door.
Duriny the investigation, public notification questionnaires (copy enclosed)
with self—stamped addresseo envelopes were distributed to trailers
throughout the park. Occupants from three trailers were interviewed
concerning their knowledge of the water quality at Westgate and past
violations of the nitrate standard. Nitrate and coliform samples were
collected at inslue taps from two trailers believed to be on separate wells
supplying the arinking water to the park; a third nitrate sample was
collected at a utility room at well mouse #2. All water samples were iced
and hand carried to approved laboratories in Portland.
The results of this investigation show that, although the water provided by
the Westgate Mobile Home Park still exceeds the maximum contaminant level
for nitrate, the tenants have not been adequately notified or advised as to
the significance or seriousness of this violation to the health of infants.
This conclusion is based on the following information:
1. Test results from water samples collected during the investigation show
levels of nitrate in all samples in excess of two times the minimum
national standard for protection of public health (space #66 = 23 mg/l,
space #463 = 24 mg/i, well house #2 = 25 mg/i),
2. No notices concerning nitrate violations were posted in the park
(office, laundry room, recreation room or park entrances),
3. None of the families interviewed had been notified of any nitrate
violations —— including one family with a six—month old boy, and
4. From the eighteen questionnaires aistributed, only one out of tile nine
returned to date (copies enclosed) in icateo having seen any
notification concerning the drinking water quality.
EPA Fo.m 13204 (R... 3.76)
-------
—2—
It is hereby recomended that EPA prcvide immediate public notification for
tenants at Westgate Mobile Home Park and that th s matter be referrec to the
Department of Justice for filing through the U.S. Attorney’s office.
Enclosures
cc: Bill Mullen — MIS 409 /
Dave Heineck - M/S 613t/
-------
U.S. ENVI .ONMENTAL PROTECTION , GENCY
REGION X
“S .
#1 .y 1200 SIXTH AVENUE
SEATTLE, WASHINGTON 98101
. PRO ’
REPLY 10
MIN OF M/S 613
January 21, 1983
Steven J. Pierce
Attorney at Law
243 Southwest Third Avenue
Ontario, Oregon 97914
Re: Westgate Mobile Home Park
Dear Mr. Pierce:
Enclosed you will find copies of the test measurements for nitrates and
coliform bacteria from water samples recently taken at Westgate Mobile
Home Park.
Sincerely,
, . % 4
David M. Heineck
Assistant Regional Counsel
Enclosures
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Harold Rogers
EPA/Porti and
(503) 221—3250
January 21, 1983
FOR IMMEDIATE RELEASE
An investigation by the 11.5. Environmental Protection Agency has
discovered that most residents of an Ontario, Oregon, mobile home park
are unaware that the water they drink contains nitrates in excess of the
Federal standards set by the Safe Drinking Water Act.
The violation of the nitrate standard has been a long—standing
problem with the Westgate Mobile Home Park water system, but -— on the
basis of a survey conducted this month by the EPA —— it appears that
system operators have not adequately reported information concerning this
public health problem to the park’s 200 or so residents.
“EPA wants to do what the system operators seem not to be willing to
do -- to get the word out that the nitrate levels are so high that they
may seriously affect the health of infants at Westyate,” declared Mike
Gearneard, coordinator of EPA’s drinking water program in Oregon. “When
we interviewed residents of the mobile home park, EPA found that few of
them knew of the situation. During our investigation EPA learned that
one women with a small baby knew nothing of the problem.”
(more)
83-5
1 1 • 1 •. ‘ .. na1r C
-------
—2—
Gearneard explained that excessive levels of nitrate have been known
to react with hemoglobin in the blood of infants to produce an oxygen
deficient condition commonly callea the “blue baby” synarorne.
EPA’s advice is to urge parents to avoid giving Westgate water to
infants under three months of age, and definitely not to use it in the
preparation of the baby’s formula,” Gearheard said. “Boiling the water
will not help, because boiling will only increase the nitrate
concentration.”
The latest samples taken by EPA and run through a laboratory analysis
showed that, with each sample, the nitrate level was more than two times
the Safe Drinking Water Act standard. According to Gearheard, these
findings are consistent with other analytical results taken periodically
since 1979.
“The problem has been recognized all this time, and acknowledged by
the operators of the water system,” Gearheard added. “EPA cannot
understand why the problem has not been properly brought to the attention
of the Westgate residents.”
The fact that Westgate has had a continuing violation of the nitrate
standard and the apparent failure to notify the residents exposes the
Westyate water system operators to possible civil prosecution in U.S.
District Court. Any water supply system is required by the Safe Drinking
Water Act to notify its customers when a violation of drinking water
standard occurs. The law also requires the system to periodically take
samples of its water, to test the samples for purity, to report the
results to EPA, and to take any action that is necessary to correct
identified violations of standards.
-------
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1
2
3
5
6 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 10
1200 Sixth Avenue
Seattle , Washington
S
9 IN THE 4ATTER OF:
) No. X83-01-03-L414
10 Robert G. Cook and
Denise D. Cook, dba ) NOTICE OF VIOLATION
11 Westyate Mobile Home Park,
)
12 Respondents. }
13
The following Findings are made md thtapecific actions re-
14
re ui red by the Director of the Water Division, Region 10, United States
16
Environmental Protection Agency (“EPA”), pursuant to the Safe Drinking
16
Water Act (42 U.S.C. §300f et sea.) and the regulations promulgated
17
thereunder (Title 40, Code of Federal Regulations EC.F.R.], Part 141).
18
19
FINDINGS OF FACT
20
1. Robert C. Cook and Denise D. Cook (hereinafter “Respondents”)
21
at all relevant times have owned and/or operated a trailer park near
22
23 Ontario, Oregon known as Westgate Mobile Hone Park, (“Westgate”), which
24 is a “public water system” [ as defined at 42 U.S.C. §300f(4) and 40
2 6 C.F.R. §141.2(e) ) and also a “community water system” [ as defined at 40
26 C.F..R. fl41.2(e)(i)]. Respondents supply water to approximately 200
27 NOTICE OF VIOLATION - PAGE ONE OF SEVEN
28
crm OBO- 1E)
7 ’S-iS DOJ s -r-
-------
1
2 users at the Westgate Mobile Home Park. Resnondent’s water system utilizes
water obtained from a ground source.
4 2. Regulations promulgated pursuant to the Safe Drinking Water
Act (40 C.F.R. Part 141, effective June 24, 1977 and amended August 27,
6 1980) establish Maximum Contaminant Levels (“MCLs”) for drinking water
7 supplied by public water systems.
8 3. All public water systems must meet the MCL for nitrate that
is set forth in 40 C.F.R. §141.11. The MCL for this contaminant is 10
10 milligrams per liter.
11 4. Based on information available, Respondents’ water system
12 exceeded the maximum contaminant level for nitrate set forth in 40 C.F.R.
13 ! 141 .11 in November, 1981, February, 1982, and continues in violation as
14 evidenced by EPA sample analyses performed in January, 1983.
15 5. To ascertain compliance with this and other MCLs, the
16 Safe Drinking Water Act regulations at 40 C.F.R. Part 141 require public
17 water systems to monitor, analyze and report to EPA the results of analyses
18 of water samples from representative points in the water system. 40 C.F.R.
19 §l 1.31(a) states that a suoplier of water shall report to the State the
20 results of any test, measurement or analysis required by this part within
21 (A) the first ten days following the month in which the result is received
22 or (B) the first ten days following the end of the required monitoring
23 period as stipulated by the State, whichever of these is shortest.
24
25
26
27 NOTICE OF VIOLATIO!i - PAGE TWO OF SEVEN
28
Fotm C50 83
28 76 DOS
-------
1
2 . Jfte State gf Oregon does not have primary enforcement
3 responsibility for the Safe Drinking Water Act. For Oregon water systems
the term ‘State” in 40 C.F.R. §141.31(a) therefore means the EPA Regional
5 Administrator, pursuant to 40 C.F.R. §141.2(h). Respondents are thus
6 required to submit the reports described in 40 C.F.R. §l ’1.31(a) to EPA
Region 10 within the first ten days of the month following the month in
B which the results are received.
9 7. Based on available information, Respondents have failed to
10 report to EPA Region 10 the results of required sampling and analysis as follows:
11 a. Nitrate contaminant sampling and analyses repeated 24
12 hours after tests conducted for Respondents in November, 1981 and February,
13 1982 showed that the maximum contaminant level for nitrates was exceeded,
14 in accordance with 40 C.F.R. §141.23(d);
15 b. Microbiological contaminant sampling and analysis for
16 the water system as required by 40 C.F.R. §141.21 for the months of
July, 1981 through December, 1982, except for the month of November,
18 1981.
19 8. Accordingly, it is determined that Respondents have violated
20 either 40 C.F.R. §141.31(a) for failing to submit to EPA the results of
21 test measurements and analyses referred to above, or else Respondents have
22 failed to samDle and analyze the water in their system as required by 40
23 C.F.R. §141.21 and §141.23.
24 9. Based on information available, Respondents have failed to
25 notify persons served by their system of their violation of the maximum
26 contaminant level for nitrate, and of their failure to perform the
27 necessary samoling and analysis for microbiological and nitrate contaminants
28 NOTICE OF VIOLATION - PAGE THREE OF SEVEN
OBO. 83
28 .76 rx i
-------
1
as alleged in paragraphs 7(a) and (b) and 8 of the Findings above,
21
thereby violating 40 C.F.R. §141.32(a), (b) and (c).
3
10. Based on information available, Respondents have failed to
4
report to [ PA within 48 hours of their violation of the maximum contaminant
5
level for nitrate and of their failure to sample and analyze the water in
6
their system as specified in paragraph 7(a) and (b) of the Findings
7
above, thereby violating 40 C.F.R. §141.23(d) and §141.31(b).
B
9 \ REQUIRED CORRECTIVE ACTION
10 1. Upon receipt hereof, Respondents shall immediat,. ’ take
11 whatever action is necessary to assure that the maximum cop E minant level
\ /
12 for nitrate sp cified in 40 C.F.R. §141.11 shall not b 9 /’exceeded in their
13 water system. “ ‘ /
14 2. Not lat than 30 days following 7 ipt of this Notice,
15 Respondents shall subrni ’to EPA, Region 1O,, ritten explanation of any
16 and all actions being taken “to assure 5 X”maxirnum contaminant levels
17 shall not be exceeded in its sys’ tem. /
18 3. Pending completion qf corrective actions, Respondents shall
19 take the following interim me s t protect public health:
20 I a. Responde,p. ’ shall irnniedi tely notify the affected
21 persons served by the 7 4’teni of their failure to comply with the maximum
22 contaminant level fe/nitrate and their failure ‘o conduct required
23 sampling for ba ological and nitrate contaminati by posting conspicuous
24 notice(s) i ,4 cessible areas in the park and by indivi’ bka\ll informing
25 each hou ,fcold in writing. This notice must include refere\ce to potential
26
27 CE OF VIOLATION - PAGE FOUR OF SEVEN
28/
Orm OBO-183 1
2-8-76 DOJ
-------
1
2 a erse health effects of elevated nitrate concentrations to infa ts.
3 This’\i otice shall be repeated at least once every three months as long as
the vio\&ti ons continue, and shall meet the pubi Ic noti fi ca on requi rements
of 40 C.F’ R. §141.32.
6 b. Respondents shall submit to EPA with’n ten (10) days of
each public notification evidence that said notice as been made, as
8 required by 40 C.F\ . §141.31(d).
C. Re’hondents shall immediatel make bottled water available
9
10 to households at which ‘ “O\fants or pregnant omen reside.
11
4. Immediately up n receipt f this Notice, espondents shall
12
submit to EPA, Region 10, any d al previously unreported microbiological
13
and nitrate analyses results. Sa submittals should be addressed as follows
14
U. S. Environrnen 1 p tection Agency
Drinking Water P ograms Branch, Mail Stop 412
1200 Sixth Ave tie
16 Seattle, Was ngton 98101
Attn: Larr Worley
17
5. Upon rec pt hereof, Responden s shall commence sampling
18
and analysis of the ater system as follows:
19
a. licrobiological contaminant sam )ing and analysis at
20 \
least once per onth in accordance with 40 C.F.R. §r41.21. Commencing
21 \
upon receip thereof, and until further notice from EP Region 10,
22
coniplianc and non-compliance with maximum nii crobiologica’\ contaminant
23
levels shall hereinafter be based upon sampling during a onè month period
24
pur ant to 40 C.F.R. §141.14(c).
25 /
/ b. Nitrate contaminant sampling and analyses at le st
26 /
ouarterly until further notice from EPA.
27
28 0TlCE OF VIOLATION - PAGE FIVE OF SEVEN
Orn) OBO- B
2.8-76 DO - I
-------
I i 1 1
5 in which the test urement or analysis was taken, as qu red by 40
NOTICE
8
7. Please be advised that unuer Section 1414(b) of the Safe
9
Drinking Water Act, the Administrator may bring a civil action in the
10
appropriate United States Court to require compliance with applicable
11
regulations. Civil penalties not to exceed $5,000 per day may be imposed
12
for a willful” violation of the relevant regulations. In addition,
13
under Section 1445 (c), failure to maintain such records, make such reports,
14
conduct such monitoring and provide such information as EPA may require
15
by regulation is subject to a fine of up to $5,000.
16
8. Compliance with the foregoing requirements shall not in any
17
way relieve Respondents of their liability for past violations, nor waive
comoliance with any other applicable provisions of the Safe Drinking
Water Act, and other Federal, State or local laws.
20
21 9. At a future date, Respondents may be requested to appear
22 and show cause before this Agency why enforcement proceedings in this
matter should be deferred, modified or terminated. In that event, further
23
written notice will be given to Respondents.
10. If there are any questions concerning the legal aspects of
25
26 these proceedings, please contact David N. Heineck, Attorney, at the
27
tJOTICE OF VIOLATION - PAGE SIX OF SEVEU
28
orrn OBO.1$3
28-75 DOJ
-------
1
2 above address or at telephone (206) 442-7660. If you have any questions
3 regarding the technical aspects of conipliance, you should contact Mike
4 Gearheard at telenhone (503) 221—3250 in the EPA Oregon Operations Office
• fl Portland, Oregon.
6
DATED this / day of ___________ 1983.
8
10 .4 t ROBERT S. BURD /
/ Director, Water bivision
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
‘IOtICE OF VJOL TIO - PAGE SEVEN OF SEVE 4
28
,rn C9D-183
-876 DQJ
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COMPLAINT
-------
5p 3A
[ r i_LI ) —
DTB:RRK:va r
90 -5- 1-1-2666 L u Ju42 3 -
EFFUr:c:MENT D;VIS CU
Was /wigs an D C 2u iO
June 18, 1986
Richard Allen Stacy
United States Attorney
District of Wyoming
P. 0. Box 668
Cheyenne , Wyoming 82003
Re: United States v. Roy L. Merritt, et al .
Dear Mr . Stacy:
Enclosed for filing is the original signed complaint in
the above-captioned enforcement action. This case is a civil
action brought pursuant to Sections 1414 and 1431 of the Safe
Drinking Water Act (“the Act”), 42 U.S.C. U 300g-3 and 300i, for
injunctive relief to abate an imminent and substantial endangerment
to human health and for civil penalties against Roy L., Frances
C. and Patrick L. Merritt, individually and doing business as
Merritt Mobile Manors, and Merritt’s Mobile Modular Housing, Inc.
The defendants own and/or operate a mobile home park in
Cheyenne which supplies untreated water to its residents. After
finding consistently high levels of nitrate contaminants in the
drinking water, EPA issued an emergency administrative order to
abate the endangerment to human health created by the contamination.
The defendants failed to take action to abate the nitrate
contamination and the water system continues to pose an endangerment
to the consumers of the water. Defendants have also violated the
monitoring, reporting, and public notification requirements of
the Act.
We are preparing a motion for preliminary injunction
that addresses the continuing health threat to infants created
the nitrate contamination. This should be ready for filing
within the next two weeks.
-------
L
We would appreciate your signing and serving this
complaint in accordance with your local rules and practices.
As you know, litigation conducted on behalf of the
Environmental Protection Agency by the Department of Justice is
subject to a Memorandum of Understanding. The Department is
required to evaluate and file an EPA referral within 60 days of
its receipt or to report to the Administrator of the EPA why the
case may not be filed. If the Department of Justice fails to
file a case after 150 days have transpired from the date of referral
from EPA to the Department of Justice, the EPA may initiate the
action itself without relying on or being subject to the supervision
of the Department of Justice or the United States Attorney.
In view of the foregoing, we would appreciate your
assistance in insuring that this case is promptly filed. I have
been in contact with Lee Pico of your office and have explained
that our office will assume the lead responsibility on this case,
although we do anticipate your assistance in obtaining the
preliminary injunction. Please let me know which particular
attorney in your office will be coordinating the case.
In order to comply with the terms of the Memorandum of
Understanding, the case should be filed as soon as possible. If
your office cannot file this case within the next week, please
let me know as soon as possible so that we can work out any
problems you may have.
Further, in order to ensure that all matters are properly
coordinated, the EPA has directed its Regional Counsels not to
request the Department, including the United States Attorneys, to
withhold or delay filing of complaints sent by the Department.
Accordingly, should your office be contacted by EPA officials
requesting that you withhold or delay the filing of this action,
I would appreciate being promptly notified of this contact.
Similarly, should the case result in settlement, these same
procedures require that the settlement must be approved both by
EPA and the Assistant Attorney Ceneral for the Land and Natural
Resources Division. See United States Attorneys’ Manual § 5-
3.633 F.
Service may be a problem in this case because we are
uncertain of the present residence of Patrick 1erritt and we know
that Roy Merritt spends much of his time in Honduras. We may
ultimately need to rely on Wyoming Rule of Civil Procedure 4(e)(6),
which provides for service by publication where the defendant has
departed from the county of residence or keeps itself concealed
with the intent to avoid service of process.
-------
-3—
The following service is necessary in this case:
1. Roy L. Merritt
4901 Ridge Road
Cheyenne, Wyoming 82001
(307) 638—1276
2. Patrick L. Merritt
(address unknown)
3. Frances G. Merritt
400 Yuturria
South Padre Island, Texas 78578
(512) 643-6763
(service by Alex F. Perez, Sheriff, Cameron County, P. 0. Box
3470 Brownsville, Texas 78520, (512) 544—0860)
4. Roy L. Merritt, Partick L. Merritt & Frances
C. Merritt, dfbfa Merritt Mobile Manors
3410 Everton Drive
Cheyenne, Wyoming 82001
(Wy.R.Civ.P. 4(d)(3): service upon a partnership r other
unincorporated association by leaving a copy at the usual place
of business of such defendant with any employee then in charge)
5. Merritt Mobile Modular Housing, Inc.
do John G. ilanes, Agent
Hanes & Burke, P.C.
600 New Boyd Building
1720 Carey Avenue
Cheyenne, Wyoming 82001
(307) 634-2731
We would appreci,ate your sending us a certified copy
of the Summons and Complaint when it is filed and copies of all
subsequent pleadings and orders in this case. EPA has prepared
a press release which will be available at the time the complaint
is filed.
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-4-
Thank you for your prompt attention to this matter. We
look forward to working with your office. If I can be of any
assistance in helping you expedite this matter, please let me
know.
Sincerely,
Assistant Attorney General
Land and Natural Resources Division
By: _____
Robert R. Kuehn
Attorney, Environmental Enforcement
Section
Land and Natural Resources Division
U.S. Department of Justice
P. 0. Box 7415
Washington, D.C. 20044-7415
(202) 633-5474
Enclosure
CC: Richard 1ays, Acting Assistant
Administrator for Enforcement
and Compliance Monitoring, EPA
Alan Morrissey
Sandra Moreno
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Civil Action No.
)
ROY L. MERRITT, FRANCES G. )
MERRITT and PATRICK L. MERRITT, )
individually and d/b/a as )
MERRITT MOBILE MANORS; and )
MERRITT’S MOBILE MODULAR )
HOUSING, INC., )
)
Defendants. )
___________________________________________________________________)
COM ‘LAINT
Plaintiff, the United States of America, by authority
of the Attorney General and at the request of the Administrator
of the United States Environrnentd Protection Agency (“EPA T ’)
alleges as follows:
PRELIMINARY STATEMENT
1. This is a civil act on brought pursuant to Sections
1414 and 1431 of the Safe Drinking Water Act (“the Act”), 42
U.S.C. § 300g-3 and 300i, for injunctive relief to abate an
imminent and substantial endangerment to human health at the
Merritt Mobile Manors mobile home park in Cheyenne, Wyoming, and
for the recovery of civil penalties.
JURISDICTION AND VENUE
2. This Court has jurisdiction over the subject matter
of this action pursuant to 28 U.S.C. § 1331 and 1345 and Sections
1414 and 1431 of the Act, 42 U.S.C. § 300g—3 and 300i.
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-2-
3. Venue is proper in this judicial district pursuant
to 28 U.S.C. § 1391(b).
DEFENDANTS
4. Defendant Roy L. Merritt is a resident of Cheyenne,
Wyoming. From October 6, 1980 until at least February 4, 1985,
Defendant Roy L. Merritt was president of Defendant Merritt’s
Mobile Modular Housing, Inc., and was a principal actor in, and
exercised control over, the corporation. As a principal in
Merritt’s Mobile Modular Housing, Inc., Roy L. Merritt was engaged
in the corporation’s daily operations and exercised control over
the business decisions of the corporation.
5. Defendant Frances G. Merritt is a resident of South
Padre Island, Texas.
6. Defendant Patrick L. Merritt was vice-president
and treasurer of Defendant Merritt’s Mobile Modular Housing, Inc.
from October 6, 1980 until at least February 4, 1985, and was a
principal actor in, and exercised control over, the corporation.
As a principal in Merritt’s Mobile Modular Housing, Inc., Patrick
L. Merritt was engaged in the corporation’s daily operations and
exercised control over the business decisions of the corporation.
7. Defendant Merritt’s Mobile Modular Housing, Inc.
was incorporated under the laws of the State of Wyoming on October
6, 1980. Pursuant to Wyo. Stat. § 17-2-102, on February 4, 1985,
Merritt’s Mobile Modular Housing, Inc. forfeited its right to
carry on business in the State of Wyoming by failing to file
annual reports and pay license taxes for the years 1983 and 1984.
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—3- .
8. Defendants Roy L. Merritt, Frances G. Merritt,
Patrick L. Merritt, and Merritt’s Mobile Modular Housing, Inc.
(collectively the “defendants”) have traded and done business in
Cheyenne, Wyoming, as “Merritt Mobile Manors”.
GENERAL ALLEGATIONS
9. MerrItt Mobile Manors is a mobile home park In
Cheyenne, Wyoming, and is a “public water system”, as defined by
Section 11101(11) of the Act, 112 U.S.C. § 300f(Ll), and 110 C.F.R.
§ ll4l.2(e), and a “community water system”, as defined by 110 C.F.R.
§ 1 1 11.2(e)(i).
10. The Merritt Mobile Manors public water system (“the
Merritt water system”) utilizes groundwater sources.
11. Defendant Roy L. Merritt is an owner and/or operator
of the Merritt water system and a “supplier of water”, as defined
by Section 11101(5) of the Act, 42 U.S.C. § 300f(5), and 110 C.F.R.
§ 1111.2(1).
12. Defendant Frances G. Merritt Is an owner and/or
operator of the Merritt water system and a “supplier of water”,
as defined by Section 11101(5) of the Act, 112 U.S.C. § 300f(5),
and 110 C.F.R. § 1 141.2(1).
13. Defendant Pa1 rick L. Merritt is an owner and/or
operator of the Merritt water system and a “supplier of’ water”,
as defined by Section 11101(5) of the Act, 42 U.S.C. § 300f(5),
and 4O C.F.R. § 1141.2(i).
111. From October 6, 1980 until at least February 11,
1985, Defendant Merritt’s Mobile Modular Housing, Inc. was an
owner and/or operator of the Merritt water system and a “supplier
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of water”, as defined by Section 1401(5) of the Act, 42 U.S.C.
§ 300f(5), and 1 10 C.F.R. § 1141.2(i).
15. Section 1 1 412(a) of the Act, 142 U.S.C. § 300g—1(a),
requires the Administrator of EPA to promulgate national interim
primary drinking water regulations for the protection of public
health.
16. Pursuant to Section 1 2 412(a) of the Act, 42 U.S.C.
§ 300g—1(a), the Administrator of EPA promulgated the National
Interim Primary Drinking Water Regulations, 4O C.F.R. Part 1141.
The National Interim Primary Drinking Water Regulations establish
maximum contaminant levels, monitoring and analytical requirements,
and reporting, public notification and recordkeeping requirements
for public water systems.
17. The Merritt water system is subject to the National
Interim Primary Drinking Water Regulations.
18. EPA has not granted the Merritt water system any
variance or exemption from the National Interim Primary Drinking
Water Regulations under Sections 11415 or 11416 of the Act, 42
U.S.C. § 300g—4, 300g—5.
19. EPA has primary enforcement responsibility under
the Act for public water systems in Wyoming.
20. EPA has notified defendants on numerous occasions
of their obligation to comply with the Act and 40 C.F.R. Part 1 41
and also of their failure to comply with the Act and 40 C.F.R.
Part 141.
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-5-
FIRST CLAIM FOR RELIEF
21. The allegations of Paragraphs 1 - 20 are realleged
and incorporated herein by reference.
22. Section 1431 (a) of the Act, 42 U.S.C. § 300i(a),
authorizes the Administrator of EPA, upon receipt of evidence
that a contaminant which is present hi or likely to enter a
public water system may present an imminent and substantial
endangerment to the health of persons, to take such actions as
the Administrator may deem necessary to protect the health of
such persons including, but not limited to, issuing such orders
as may be necessary to protect the health of persons who are or
may be users of such system.
23. On March 28, 1985, the Regional Administrator of
EPA issued an Emergency Administrative Order (the “Emergency
Order”), pursuant to Section 1431 of the Act, 42 U.S.C. § 300i,
finding that the Merritt water system may present an imminent and
substantial endangerment to the health of consumers served by the
system (a copy of the Emergency Order is attached hereto as
“Exhibit A”).
24. The Emergency Order was based upon samples taken
from the Merritt water system that indicated the presence of
nitrates in the water system significantly exceeding the applicable
maximum contaminant level set forth in 40 C.F.R. § 141.11(b).
25. The Etoer ency Order found that the level of nitrate
contamination in the Merritt water system created a serious
health risk for infants under six months of age, and that exposure
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—6—
to the level of nitrates found in the Merritt Water System could
result in methemoglobinemia, which has been known to cause death
in small infants.
26. The Emergency Order required that the Merritt water
system, inter alla :
(1) Immediately provide an alternative source of potable
water to all consumers (Paragraphs 1 and 2);
(2) immediately advise all consumers of the availability
of the alternative water supply and that EPA has determined that
the existing water supply is contaminated and should not be consumed
by infants, pregnant women or nursing mothers (Paragraph 3);
(3) provide the alternative water until it is demonstrated
that the water system consistently meets the national interim
primary drinking water standards (Paragraph 1 I) -
(4) publish notice in a local newspaper whibh meets the
public notification requirements of 4O C.F.R. § 141.32 (Paragraph
5);
(5) monitor monthly each well that exceeds the maximum
contaminant level for nitrate until the contaminant level has not
been exceeded in two successive samples (Paragraph 6); and
(6) within 30 days, provide EPA with a proposed plan
and schedule for bringing the water system into compliance with
the Act and regulations (Paragraph 8).
27. A copy of the Emergency Order was duly served upon
the agent and attorney for defendants on April 1, 1985.
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-7 -
28. Defendants, through their attorney, responded to
the Emergency Order and entered into an agreement with EPA setting
forth remedial steps to bring the Merritt water system into compliance
with the Act and its implementing regulations (a copy of the
letter from defendants’ attorney setting forth the agreement is
attached hereto as “Exhibit B”).
29. Defendants have failed and refused to comply with
the Emergency Order, and have failed and refused to take the
remedial steps set forth in Exhibit B, in violation of Section
1431 of the Act, 42 U.S.C. § 300i.
30. Defendants did not file a petition for review of
the Emergency Order in the United States court of appeals under
Section 1448(a) of the Act, 42 U.S.C. § 300j-7(a). Section
1448(a) of the Act provides that an action of the Administrator
with respect to which review could have been obtained in the
United States court of appeals shall not be subject to judicial
review in any proceeding for enforcement.
31. The nitrate contaminants present in, and likely to
enter the Merritt water system, continue to present an imminent
and substantial endangerrnerft to the health of persons who are or
may be users of the water system. Samples taken since the issuance
of the Emergency Order revealed the presence of nitrates in
excess of allowable maximum centaminant Levels and at levels
which continue to create a serious health risk.
32. Unless enjoined by an order of this Court, defendants
will continue to violate the Emergency Order and the Merritt
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—8—
water system will continue to present an imminent and substantial
endangerment to human health.
33. Defendants ’ violation, failure arid/or refusal to
comply with the Emergency Order was and is willful.
311. ApproprIate state and local authorities have not
acted to protect the health of persons. These authorities support
the relief requested by the United States.
35. The defendant’s violation, failure and/or refusal
to comply with the Emergency Order renders the defendants liable
under Section 11131 of the Act, 42 U.S.C. § 3001, to a restraining
order or permanent or temporary injunction enjoining the defendants
to comply immediately with the Emergency Order and to civil
penalties.
SECOND CLAIM FOR RELIEF
36. The allegations of Paragraphs 1—35 are r’ealleged
and incorporated herein by reference.
37. Section 1 1 431(a) of the Act, 112 U.S.C. § 3001(a),
authorizes the Administrator of EPA, upon receipt of evidence
that a contaminant which is present in or likely to enter a public
water system may present an imminent and substantial endangerment
to the health of persons, to take such actions as the Administrator
may deem necessary to protect the health of such persons including,
but not limited to, commencing a civil action for appropriate
relief, including a restraining order or permanent or temporary
injunction.
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—9—
3?3. Recent samples taken from the Merritt water system
indicate the continued presence of nitrates in excess of allowable
maximum contarninent levels and at levels which create a serious
health risk to the health of persons.
39. The nitrate contaminants present in, and likely to
enter the Merritt water system, present an imminent and substantial
endangerment to the health of persons who are or may be users of
the water system.
40. Unless defendants are enjoined by an order of this
Court, the Merritt water system will continue to present an
imminent and substantial endangerment to human health.
41. The creation of an imminent and substantial endangerment
renders the defendants liable under Section 1431 of the Act, 42
U.S.C. § 3001, to a restraining order or permanent or temporary
injunction enjoining the defendants to abate the endangerment.
THIRD CLAIM FOR RELIEF
42. The allegations of Paragraphs 1 — 41 are realleged
and incorported herein by reference.
43. Sections 141 2 4(a)(2) and (b) of the Act, 142 U.S.C.
§ 300g—3(a)(2) and (b), authorize the Administrator of EPA to
bring a civil action to reqbire compliance with a national primary
drinking water regulation whenever the Administrator finds that
a public water system does not comply with any such regulation.
414• Section 1414(b) of the Act, 42 U.S.C. § 300g—3(b),
provides that if the court determines there has been a willful
violation of a national primary drinking water regulation, the
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— 10 —
court may impose a civil penalty not to exceed $5,000 for each
day in which such violation occurs.
1j5• Subpart B of the National Interim Primary Drinking
Water Regulations, 140 C.F.R. § 1141.11—.16, establishes “maximum
contaminant levels” for community water systems.
146. “Maximum contaminant level” is defined in 40 C.F.R.
§ 1 41.2(c) as the maximum permissible level of’ a contaminant in
water delivered to the free flowing outlet of’ the ultimate user
of’ a public water system.
117. On September 19, 1983, April, 26, 19814, August 29,
19814, November 114, 19814, February 8, 1985, March 26, 1985, March
3, 1986, and at other times, the defendants, through the Merritt
water system, delivered water to users of the system that exceeded
the maximum contaminant level for nitrate, in violation of 1 40
C.F.R. § 1111.11(b) and Section 114114(a) (2) of’ the Act, 42 U.s.c.
§ 300g—3(a)(2). Unless enjoined by an order of this Court,
defendants will continue to violate the maximum contaminant level
for nitrate.
148. Defendants’ violations of the maximum contaminant
level for nitrate were and are willful.
149. Said violations render defendants liable under
Section 114114(b) of the Act, 42 U.S.C. § 300g—3(b), to such judgment
as protection of public health may require and to civil penalties.
FOURTH CLAIM FOR RELIEF
50. The allegations of’ Paragraphs 1 — 49 are realleged
and incorporated herein by reference.
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— ii —
51. Section 1 1 4 1 45(a) of the Act, 142 U.S.C. § 300j—4(a),
requires every supplier of water, who is or may be otherwise
subject to a primary drinking water regulation, to conduct such
monitoring as the Administrator may reasonably require by
regulation.
52. Subpart C of the National Interim Primary Drinking
Water Regulations, 140 C.F.R. § 1LI1.21_.30, establishes monitoring
and analytical requirements for suppliers of water.
53. From May 1978 to the present, defendants have failed
on numerous occasions to sample and analyze the Merritt water system
for microbiological contaminants (coliform bacteria), inorganic
chemicals, and radioactivity, in violation of 140 C.F.R. § 1141.21,
1141.23, 1141.26, and Sections 1141Z4(a)(2) and 1 1 4 1 45(a) of the Act,
142 U.S.C. § 300g—3(a)(2) and 300j— 1 4(a). Unless enjoined by an
order of this Court, defendants will continue to violate the
monitoring and analytical requirements of the Act.
51I, Defendants’ violations of the monitoring and analytical
requirements were and are willful.
55. Said violations render defendants liable under
Section 1 1 114(b) of the Act, 142 U.S.C. § 300g—3(b), to such judgment
as protection of public health may require and to civil penalties.
FIFTH CLAIM FOR RELIEF
56. The allegations of Paragraphs 1 — 55 are realleged
and incorporated herein by reference.
57. Section 1 1 4 1 45(a) of the Act, 42 U.S.C. § 300j—k(a),
requires every supplier of water, who is or may be otherwise
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subject to a primary drinking water regulation, to establish and
maintain such records, make such reports, and provide such information
as the Administrator may reasonably require by regulation.
58. Subpart D of the National Interim Primary Drinking
Water Regulations, 140 C.F.R. § 141.31—.33, establishes reporting,
public notification and recordkeeping requirements for suppliers
of water.
59. Section 1141.31 of 40 C.F.R. requires the supplier
of water to report to EPA the results of any test measurement or
analysis required by the National Interim Primary Drinking Water
Regulations.
60. Since May 1978, defendants have failed to report to
EPA on numerous occasions the results of test measurements and
analyses required by the National Interim Primary Drinking Water
Regulations, in violation of I 0 C.F.R. § 141.31 and Sections
141 1 4(a)(2) and l 1 445(a) of the Act, 42 U.S.C. § 300g—3(a)(2) and
300j— 1 1(a). Unless enjoined by an order of this Court, defendants
will continue to violate the reporting requirements of the Act.
61. Defendants’ violations of the reporting requirements
were and are willful.
62. Said violatithis render defendants liable under
Section 1 1 41 24(b) of the Act, 142 U.S.C. § 300g—3(b), to such judgment
as protection of public health may require and to civil penalties.
SIXTH CLAIM FOR RELIEF
63. The allegations of Paragraphs I — 62 are realleged
and incorporated herein by reference.
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64. Section 141 .32 of 40 C.F.R. requires the supplier
of water to notify persons served by the system of any failure to
comply with an applicable maximum contaminant level or to comply
with or perform any monitoring requirement. In addition, 40
C.F.R. § 141.32 requires the supplier of water to notify the
public of any failure to comply with any applicable maximum
contaminant level.
65. Since May 1978, defendants have failed to notify
persons served by the Merritt water system and the public of
failures to comply with applicable National Interim Primary
Drinking Water Regulations, in violation of 40 C.F.R. § 141 .32
and Sections 1414(a)(2) and 1414(c) of the Act, 42 U.S.C.
§ 300g-3(a)(2) and 300g-3(c). Unless enjoined by an order of
this Court, defendants will continue to violate the notification
requirements of this Act.
66. Defendants’ violations of the notification requirements
were and are willful.
67. Said violations render defendants liable under
Section 1414(b) of the Act, 42 U.S.C. § 300g-3(b), to such judgment
as protection of public health may require and to civil penalties.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff United States of America prays
that this Court:
a) Preliminarily and permanently enjoin the defendants
to comply with and execute immediately all requirements of the
Emergency Order;
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b) Preliminarily and permanently enjoin the defendants
from operating the Merritt water system except in accordance with
the Act and the National Interim Primary Drinking Water Regulations;
c) Order the defendants to provide immediately at no
additional cost an alternative source of potable drinking water to
all consumers served by the Merritt water system, to advise all
consumers of the availability of the alternative source, and to
continue to supply the alternative source of drinking water until
defendants demonstrate that the Merritt water system consistently
meets the National Interim Primary Drinking Water Regulations;
d) Order the defendants to notify immediately the
residents of Merritt Mobile Manors that the existing water supply
is contaminated and should not be consumed by infants;
e) Order the defendants to notify immediately the
public that the Merritt water system is contaminated;
f) Order the defendants to monitor each well in Merritt
Mobile Manors for nitrate once each month until the maximum contaminant
level for nitrate has not been exceeded in two successive samples
from each violating well;
g) Order the defendants to submit to EPA within 30 days a
proposed plan and schedule for bringing the Merritt water system into
compliance with the Act and the National Interim Primary Drinking
Water Regulations, and, upon approval by EPA, to implement the plan;
h) Impose civil penalties for each day of each and
every violation of the Act and/or of 40 C.F.R. Part 141
i) Award Plaintiff United States of America the costs
and disbursements of this action; and
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— 15
j) Grant such other relief as the Court may deem
appropriate.
Respectfully Submitted,
II
Assistant Attorney General
Land and Natural Resources Division
United States Department of Justice
10th & Pennsylvania Ave., N.W.
Washington, D.C. 20530
RICHARD ALLEN STACY
United States Attorney
District of Wyoming
By: _______________________________
FRANCIS LELAND PICO
Assistant United States Attorney
District of Wyoming
Room 2139, J.C.O. Mahoney Fed. Ctr.
21 l Capital Avenue
Cheyenne, Wyoming 82003
(307) 772_2121
ROBERT R. KUEHN
Attorney, Environmental Enforcement
Section
Land and Natural Resources Division
United States Department of Justice
P. 0. Box 71415
Washington, D.C. 2001414 —71415
(202) 633—514714
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OF COUNSEL:
SANDRA R. MORENO
Assistant Regional Counsel
Region VIII
U.S. Environmental Protection Agency
999 18th Street, Suite 1300
Denver, Colorado 80202-2413
ALAN MORRISSEY
Office of Enforcement and Compliance
Monitoring - Water
U.S. Environmental Protecton Agency
401 M Street, S.W.
Washington, D.C. 20460
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BEFORE THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION VIII
1860 Lincoln Street
Denver, Colorado 80295
IN THE MATTER OF: )
)
Roy Merritt d/b/a )
Merritt Mobile Manors a.k.a )
Merritt Mobile Modular Homes )
and Mike Rentz )
3410 Everton Drive ) EMERGENCY
Cheyenne, Wyoming 82001 ) ADMINISTRATIVE ORDER
)
PROC!EDINCS UNDER SECTION )
1 4 31(a)(1) of the SAFE )
DRINKING WATER ACT, )
42 u.s.c. 3 00(a)(l) )
The following FINDINGS are made and ORDER issued
pursuant to the authority vested in the Administrator of
the Environmental Protection Agency (hereinafter EPA),
under Section 1431 of the Safe Drinking Water Act,
42 U.S.C. 300i.
FINDINGS
1. Merritt Mobile Manors a.k.a. Merritt Mobile
Modular Homes, a Wyoming Corporation (hereinafter the
Merritt water system”), owns and operates through its
agent, Mike Rentz, a public water system in Laramie County,
Wyoming, which system is subject to the Safe Drinking Water
EXHIBIT A
- J-P -O3o
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Act (SDWA), 42 U.S.C. S 300f et 9eq . , and the National
Interim Primary Drinking Water Regulations (NIPDWR), 40
C.F.R. Part 141, promulgated pursuant thereto.
2. The analyses of samples taken from the Merritt
water system reported in the fo].loving table indicate the
presence of nitrates Lu this water supply significantly
exceeding the applicable maximum contaminant level (MCL) for
this chemical, of 10 milligrams per liter (mgi].), as set
forth in 40 C.F.R. S114.1l.
Date Sampled By Laboratory Well 4 Nitrate (as N) m /l
9/9/83
County
E.D.
Laramie
1
19
919/83
County
s.D.
Laramie
2
15
11/30/83
County
R.D.
Laramie
2
6.7
4126/84
County
E.D.
Laramie
3
15
4/26/84
County
fl.D.
Laramie
4
6.4
4/26/84
County
RD.
Laramie
5
13
8/29/84
County
R.D.
Laramie
1
11.7
8/29/84
County
R.D.
Laramie
2
6.2
11/14/84
EPA
EPA
2
21.7
11/14/84
EPA
EPA
3
12.9
11/14/84
EPA
EPA
4
6.1
11/14/84
EPA
EPA
5
13.7
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3. The level of nitrate contamination found at Merritt
creates a serious health risk for infants under six months
of age. Their digestive system converts nitrates (NO 3 )
into nitrites (NO 2 ), which react with hemoglobin in the
blood to form methemoglobin. This compound prevents
hemoglobin from carrying out its function of transporting
oxygen within the body. The resulting disease, methemoglob—
inemia, essentially causes varying degrees of biological
suffocation and has been known to cause death in small
infants.
4. A recent survey of 55% of the households at Merritt
Mobile Manors showed a population highly susceptible to the
effects of nitrate. On November 10, 1984, there were three
pregnant women, two infants less thac six months old, and
six other infants under the age of two in the group that
was contacted.
5. Based upon this information, EPA has determined
that the Merritt public water system may present an imminent
and substantial endangerment to the health of consumers
served by the system.
Appropriate State and local authorities have not
acted to protect the health of such persons in this matter.
—3—
- 1 -bLJ- P O3C
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ORDER
1. The Merritt water system shall immediately provide
an alternative source of potable drinking water to all
consumers currently served by the Nerritt system, in
sufficient quantity for all reasonable domestic uses, and
at no additional cost to such consumers.
2. The alternate source of drinking water shall be
in the form of bottled water, or in bulk (e.g. , one or more
tank trucks of water) from an approved potable water source,
which bottled or bulk water shall be of sufficient quality
to comply with NIPDWR, 40 C.F.R. Part 141, and shall be
provided in a location or locations, and in a manner convenient
to consumers. If bulk water is used, the source, mode of
transporation and storage must be approved by the Chief of
the Drinking Water Branch, whose address and telephone
number are set forth in paragraph 9 below. The storage
facility shall be monitored weekly for microbiological
contamination, with test results submitted to EPA Region
VIII, within ten days, or sooner, as required by 40 C.F.R.
5 141.31.
3. The Merritt water system shall imediately advise
all consumers currently served by the system of the availability
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-k 1-bL 1 J- -a 3O
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of the alternative water supply through hand delivered
written notice. The notice must further inform the residents
that EPA has determined that the existing water supply is
contaminated in violation of EPA ’s NIPDWR and should not be
consumed by infants, pregnant women, or nursing mothers. A
copy of the notice given to consumers must also be provided
by the Merritt water system to EPA Region VIII.
1 . The Merritt water system must continue to provide the
alternative source of potable water until such time as it
deonstrates to EPA Region VIII that the primary water
supply available to consumers served by the Merritt water
system consistently meets the quality standards of the
NIPDWR, 40 C.P.R. Part 141 (published at Federal Register
10998 et seq., March 12, 1982), and until EPA Region VIII
provides written notice that the alternate source is
no longer required.
5. The Merritt water system shall publish a Notice in
a local newspaper, which meets the requirements of 40 C.F.R.
§141.32, printed for seven days and repeated at quarterly
intervals until #4 above has been met.
6. The Nerr tt water system shall continue to monitor
each of the wells that exceed the MCL for nitrate once each
month, or until the IICL level for nitrate has not been exceeded
—5—
-------
in two successive samples from each violating well, or
until such a time as EPA Region VIII grants permission in
writing to change this schedule.
7. In all future communications, veils on this water
system must be identified by address, and shown on a diagram.
This will eliminate the past c’nfusion in laboratory reports
over the identification of h- wells sampled.
8. Within 30 days of .:eceipt of this Order, The Merritt
water system must provide i U.S. EPA Region VIII with a
proposed plan and schedule for bringing the Merritt public
water nyst m at into compli ace with the Act and the Re ula—
tions. The plan should include an engineer’s evaluation of
the Merritt water system, and a proposal for reducing the
concentration of nitrates in the system below the NCL, of 10
mg/i. AlternativeB for providing a safe drinking water
supply, such as finding a new ground water source or hooking
up to the City of Cheyenne water system should also be
evaluated. In addition, the Merritt water system shall submit
a map of the area showiirg the location of all wells and
their numerical identification. The Merritt water system shall
also submit rn EPA information on each well 1 s pumping rate,
—6—
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average number of gallons pumped per day, depths, and depth
of screening. Fertilizer usage in the area should also
be evaluated.
9. Unless otherwise specified, all reports and
notifications herein required shall be made to:
Roger Frenetta
Chief, Drinking Water Branch
U.S. Environmental Protection Agency, Region VIII
1860 Lincoln Street
Denver, Colorado 80295
Telephone 303 293—1413
10. Within 48 hours of receipt of this order, you are
to contact Mr. Roger Frenette at the above address and
telephone number to advise him of your intentions to
coDply with this order.
Your failure to comply with the Act and its Regulations
or this Order may subject you to the following potential
liabilities:
1. A civil penalty of up to $5000 for each day of
violation of a National Interim Primary Drinking Water
Regulation, 40 C.F.R. Parc 141, pursuant to Section
1414(b) of the Act, 42 U.S.C. § 300g3(b).
—7—
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2. A fine of not more than $5000 per day of willful
violation or ref’taal to comply with this Order 1 pursuant
to Section 1431(b) of the Act, 42 U.S.C. c 300i—(b).
Issued this ________day of _____________ 1985.
Jo , 3 I Welles
Regional Administrator
U.S. Environmental Protection
Agency, Region VIII
—8—
-030
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L.) I
I •26 Jil
HANES, GAGE & BURKE L _ jL
A PROPESSIONAL CORPORATION DR 4K
ATI O RN VS AT LA W
0 lAstS COO W W SO’iO 8UI 0 $0 1720 AR ’V AV P4U
q 0A0C CNCVENNC, WYOMING 82001 APtA coot 307
C. JA5C5 URP((
April 24, 1985
United States Environmental
Protection Agency
Region VIII
1860 Lincoln Street
Denver, Colorado 80295—0699
ATTN: Pager E. Frenette, Chief
Re: Merritt Mobile Manors
Mr. Frenette:
This letter is intended to comply with the requirements of Item 8
of the Emergency Administrative Order issued by the U.S. Environmental
Protection Agency on March 28, 1985 and to document the oral agreement
reached between the undersigned attorney and Merritt Mobile Manors With
EPA employees, attorney Al Smith, technical specialist Debbie Kovacs
and Marc Aiston on Thursday, April 18, 1985 in Cheyenne, Wyoming.
Merritt Mobile Manors agrees to undertake the following remedial
steps:
1. It is agreed that wells number 2 and 4 will be tied
in with the water delivery system north of Victoria to
allow a blending of the water from wells 2 and 4
with the water from well 1.
2. Merritt Mobile Manors will contact t.aramie County
to get access across Victoria to make this tie and
will complete the tie with all possible speed,
contingent only upon obtaining a right—of—way
from Lararnie County and a permit from the State
of wyoming Department of Environmental Quality.
3. Merritt Mobile Manors will supply the EPA with
a description of the system layout including, if
available, well depths, pump and well capacities
and points where system ties are made.
4. Merritt Mobile Manors will take a sample within
two days of completion of the above—enumerated
EXHIBIT B
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United States Environmental
Protection Agency
April 24, 1985
Page Two
tasks at points to be designated by the EPA and
will supply the sample results to the EPA as soon
as they are available from the state chemist.
5. Merritt Mobile Manors will sample this system
quarterly for a three year period at points
within the system to be designated by the EPA.
6. Merritt Mobile Manors will provide bottled water
to any households where susceptible individuals
reside. Susceptible individuals is intended to
mean children six months or younger, pregnant
women or nursing mothers with children six months
or younger.
It is intended that this letter accurately represent the oral
agreement reached between the parties. The undersigned attorney
solicits corrections or modifications to this agreement to the degree
that it may in any way misstate what the parties agreed to.
Thank you for your cooperation.
Very truly yours,
HANES, GAGE & B(JRRE
A Professional Corporation
Jack Gage
J G/ 1 p
cc: Merritt Mobile Manors ___________________
Debbie Kovacs
Marc Aiston r
— —
— - EG S ‘lhI
WAFER BRA ICN
•
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LkAFT
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
UNITED STATES OF AMERICA, )
)
Plaintiff,
)
v. ) Civil Action No.
)
ROY L. MERRITT, FRANCES G. )
MERRITT and PATRICK L. MERRITT, )
individually and d/b/a as
MERRITT MOBILE MANORS; and )
MERRITT’S MOBILE MODULAR )
HOUSING, INC.,
)
Defendants. )
_____________________________________________________________________________________ )
MOTION FOR A PRELIMINARY INJUNCTION
Pursuant to Rule 65 of the Federal Rules of’ Civil
Procedure, the Plaintiff United States of America hereby moves
for Issuance of’ a preliminary injunction under the Safe Drinking
Water Act, 112 U.S.C. § 300f—300j,, against Defendants Roy L.
Merritt, Frances G. Merritt and Patrick L. Merritt, individually
and doing business as Merritt Mobile Manors, and Merritt Mobile
Modular Housing, Inc. with respect to a public water system at
Merritt Mobile Manors In Cheyenne, Wyoming. This motion is
supported by plalritiff t s Memorandum in Support of Motion for a
Preliminary Injunction and the affidavits and exhibits attached
thereto.
The United States respectfully requests that the Court
award the following preliminary relief:
1. enjoin defendants to provide immediately, at no
additional cost, an alternative source of potable drinking water
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—2—
to all consumers served by the Merritt Mobile Manors water system,
to advise all consumers of the availability of the alternative
source, and ‘to continue to supply the alternative source of
drinking water until defendants demonstrate that the Meritt water
system consistently meets the National Interim Primary Drinking
Water Regulations, 40 CIF.R. § 141;
2. enjoin defendants to notify immediately all residents
of Merritt Mobile Manors and the public that the Merritt water
system is contaminated and should not be consumed by infants;
3. enjoin defendants to submit to the Environmental
Protection Agency with 30 days a proposed plan and schedule for
bringing the Merritt Mobile Manors water system into compliance
with the Safe Drinking Water Act and the National Interim Primary
Drinking Water Regulations; and
grant such additional injunctive and other relief as
this Court may deem appropriate.
Respectfully submitted,
F. HENRY HABICHT
Assistant Attorney General
Land and Natural Resources Division
United States Department of Justice
RICHARD ALLEN STACY
United States Attorney
District of Wyoming
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—3—
By: _____
FRANCIS LELAND P100
Assistant United States Attorney
District of Wyoming
Room 2139, J.C.O. Mahoney Fed. Ctr.
211U Capital Avenue
Cheyenne, Wyoming 82003
(307) 772—212 4
ERT R. KUEHN
At orney, Environmental Enforcement
Section
Land and Natural Resources Division
United States Department of Justice
. 0. Box 7 $15
lashington, D.C. 20O11 .-7 15
(202) 633—5 7
OF COUNSEL:
SANDRA R. MORENO, (8RC)
Assistant Regional Counsel
Region VIII
U.S. Environmental Protection Agency
999 18th Street, Suite 1300
Denver, Colorado 80202_21413
ALAN MORRISSEY, LE l3 —W
Office of Enforcement and Comp1i ice
Monitoring — Water
U.S. Environmental Protecton Ager y
1401 TI Street, S.W.
Washington, D.C. 20’L60
-------
iN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
UNITED STATES OF AMERICA, )
)
Plaintiff,
)
v. ) Civil Action No.
)
ROY L. MERRITT, FRANCES G. )
MERRITT and PATRICK L. MERRITT, )
individually and d/b/a as )
MERRITT MOBILE MANORS; and )
MERRITT’S MOBILE MODULAR )
HOUSING, INC., )
)
Defendants.
______________________________________________________________________________ )
MEMORANDUM IN SUPPORT OF
MOTION FOR A PRELIMINARY INJUNCTION
INTRODUCTION
The United States filed suit herein on June ___, 1986,
pursuant to the Safe Drinking Water Act (hereinafter “the Act”),
112 U.S.C. § 300f—300j, seeking civil penalties and preliminary
and permanent injunctive relief to abate an imminent and substantial
endangerment to human health. The defendants own and/or operate
a public drinking water system at Merritt Mobile Manors (“the
Merritt water system”), a mobile home park in Cheyenne, Wyoming.
The defendants have provided and continue to provide
water to the consumers of the Merritt water system that is
contaminated with nitrates in excess of the maximum contaminant
level (“MCL”) allowed by the National Interim Primary Drinking
Water Regulations, 14Q C.F.R. Part. l1 1, and at levels that present
an imminent and substantial endangerment to the health of consumers.
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—2—
notwithstanding defendants! representations to the contrary,
defendants have failed and refused to take necessary action to
remedy the nitrate contamination.
Pursuant to Rule 65 of the Federal Rules of Civil
Procedure, the United States seeks a preliminary injunction
requiring the defendants:
1. to provide immediately, at no additional cost, an
alternative source of potable drinking water to all consumers
served by the Merritt Mobile Manors water system, to advise all
consumers of the availability of the alternative source, and to
continue to supply the alternative source of drinking water until
defendants demonstrate that the Merritt water system consistently
meets the National Interim Primary Drinking Water Regulations, 110
C.F.R. § 1111;
2. to notify immediately all residents of Merritt
Mobile Manors and the public that the Merritt water system is
contaminated and should riot be consumed by infants; and
3. to submit to EPA with 30 days a proposed plan and
schedule for bringing the Merritt Mobile Manors water system into
compliance with the Safe Drinking Water Act and the National
Interim Primary Drinking Water Regulations.
As shown below, issuance of such an injunction is
warranted. Defendants! violations of the Act and the Emergency
Administrative Order are clear and the requested relief is necessary
to remedy the danger posed by the contamination. The relief is
plainly in the public interest and outweighs the defendants’
burden of expense in complying with the Act and its regulations.
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—3
STATUTORY AND REGULATORY FRAMEWORK
The Safe Drinking Water Act was enacted by Congress in
19714 to assure that water supply systems serving the public meet
minimum national standards for the protection of public health.
H.R. No. 93—1185, 92nd Cong., 2d Sess. (19714), reprinted in 19714
U.S. Code Cong. & Ad. News 614514 (“House Report”). */ To achieve
this result, the Act requires the Administrator of EPA to publish
national interim primary drinking water regulations. 142 U.S.C.
§ 300g—l(a).
Pursuant to Section 1 1 412(a) of the Act, 142 U.S.C.
§ 300g—l(a), EPA promulgated the National Interim Primary Drinking
Water Regulations (“NIPDWR”), 140 C.F.RS Part 1141. The NIPDWR
establish maximum contaminant levels (“MCLs”) for inorganic
chemicals, organic chemicals, turbidity, microbiological contaminants
(coliform bacteria) and radioactivity. 140 C.F.R § 1141.li—.].6.
Each MCL is set at a level at which, in the judgment of the
Administrator of EPA, no known or anticipated adverse effects on
the health of persons occur and which allows an adequate margin
of safety. 142 U.S.C. § 300g—1(b)(1)(B). After reviewing the
available health data, the Administrator established the maximum
contaminant level for nitrate at 10 milligrams per liter of water
(10 mg/i).
*/ For an overview of the statutory scheme, see Environmental
Defense Fund v. Costle, 578 F.2d 337, 339 140, 3142—1414 (D.C. Cir.
1978).
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—‘4—
Section l4 45 of the Act, 42 U.S.C. § 300j— 1 4(a), provides
that every person who is or may be subject to a primary drinking
water regulation shall establish and maintain such records, make
such reports, conduct such monitoring, and provide such information
as EPA may reasonably require by regulation. Thus, the NIPDWR
establish self—monitoring requirements, ‘40 C.F.R. § lLI1.2l .3l,
reporting and recordkeeping requirements, 40 C.F.R. § 141.31,
141.33, and requirements that the water system notify the public
and consumers of any failure to comply with an applicable MCL, 40
C.F.R. § 141.32.
Section 1411 of the Act, 142 U.S.C. § 300g, provides
that national primary drinking water regulations shall apply to
each “public water system,” defined in Section 1401(4) of the
Act, 42 U.S.C. § 300f’(tI) as “a system for the provision to.the
public of piped water for human consumption, If such system has
at least fifteen service connections or regularly serves at least
twenty—five Individuals.” See also 40 C.F.R. § 141.2(e). Community
water systems, public water systems which serve at least fifteen
service connections used by year—round residents or regularly
serve at least twenty—five year—round residents, are subject to
additional requirements. See, e.g. , 40 C.F.R. § 1 1 Il.11(d) and
141.21(b), (c).
Section 1431 of the Act, 42 U.S.C. § 300i, provides
that upon receipt of evidence that a contaminant which is present
or is likely to enter a public water system may present an imminent
and substantial endangerment to the health of persons, EPA may
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—5- -
take such actions as it deems necessary to protect the health of
such persons including, but not limited to, 1) issuing such orders
as may be necessary to protect the health of persons who are or
may be users of such system, and 2) commencing a civil action for
appropriate relief, Including a restraining order or permanent or
temporary Injunction, Any person who violates or falls or refuses
to comply with such order issued by EPA is subject, in an action
brought in the appropriate United States district court to enforce
such order, to a fine or civil penalty 42 U.S.C. § 300i(b). /
In addition, under Section l 4l4 of the Act, 42 U.S.C.
§ 300g—3, EPA may bring a civil action to require compliance with
a NIPDWR, / 142 U.S.C. § 300g—3(b). In an action brought to
require compliance, the court may enter such judgment as protection
of public health may require, Id. If the court determines, there
*1 On June 19, 1986, the Safe Drinking Water Act Amendments of
1986 were signed into law, Under the prior provisions of’
Section 1 1 431(b), any person who “willfully” violates or fails or
refuses to comply may be “fined not more than $5,000 for each day
in which such violation occurs or failure to comply continues.”
Section 20 4 of the 1986 amendments eliminates the requirement
that, in order to assess a fine or penalty, the Court must find
that the violation, failure or refusal was “willful” and specifies
that any person who violates or fails or refuses to comply with
any order issued by the Administrator may be “subject to a civil
penalty” of not to exceed $5,000 for each day in which such
violation occurs or failure to comply continues. !-t .R. No, 575,
99th Cong., 2d Sess, 20—21 (1986) (Conference Report) (hereinafter
“1986 Conference Report”) (copy attached as Exhibit ___).
/ Under Section 11413 of the Act, 42 U.S.C. § 300g—2, a state
— may, if It develops an appropriate program for the implementation
and enforcement of the NIPDWR, be delegated primary enforcement
responsibility under the Act for ’publlc water systems within that
state. However, no such delegation has been made to Wyoming.
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—6--
has been a violation of the regulation, the court may impose a
civil penalty for each day in which such violation occurs. Id. ‘ /
STATEMENT OF FACTS
A. Merritt Water System
Merritt Mobile Manors is a mobile home park located in
Cheyenne, Wyoming. Merritt Mobile Manors has a water system with
at least fifteen service connections and regularly serves in
excess of twenty—five individuals on a year—round basis. [ aff.]
Accordingly, the Merritt water system is a “public water system”,
/ as defined by Section 11101(4) of the Act, 112 U.S.C. § 300f(4),
and 110 C.F.R § 1111.2(e), and a “community water system”, as
defined by 110 C.F.R. § 1 1 41.2(e)(i).
B. The Defendants
The Merritt water system is owned and/or operated, and
has been owned and/or operated since at least, 1978 by Defendants
Roy L. Merritt, Frances G. Merritt (Roy Merritt’s wife), Patrick
***/ Section 102 of the Sale Drinking Water Act Amendments of
1986 eliminates the previous requirement in Section 111111(b)
that violations of the NIPDWR must be wilifull in order for civil
penalties to be assessed; the amendements also increased the
maximum civil penalty from $5,000 to $25,000 for each day in
which such violation occurs. 1986 Conference Report at 20—21.
*1 The term “public water system” includes any collection,
treatment, storage, and distribution facilities ‘under control
of the operator of such system and used primarily in connection
with such system. 112 U.S.C. § 300f(4); 40 C.F.R. § 1 1 41.2(e).
The legislative history of the Act specifies that a trailer park
is subject to the NIPDWR if it maintains Its own well or water
supply. House Report at 61170 (“the Committee intends that primary
regulations would apply to . . . trailer parks, and other businesses
serving the public if the business in question maintains its own
wells or water supply”).
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L. Merritt (Roy Merritt’s brother), and Merritt’s Mobile Modular
Housing, Inc. [ aff.] The defendants have traded arid done business
as the ownez’s and operators of a mobile home park in Cheyenne,
Wyoming, known as “Merritt Mobile Manors.” I I The Merritt
Water system is operated as part of Merritt Mobile Manors. [ J
As the owners and/or operators of the Merritt water
system,’ defendants are “suppliers of water”, as defined by Section
1401(5) of the Act, 42 U.S.C. § 300f(5), and 40 C.F.R. § 141.2(1),
and are subject to the Act and to the NIPDWR.
C. Violations of the Nitrate MCL
Since May 1978, the owners and/or operators of the
Merritt water system have been notified on various occasions of
the requirements of the Act and the NIPDWR. Moreover, at numerous
times, EPA notified the owners and/or operators of the Merritt
water system of violations of the Act and the NIPDWRS
EPA first became aware of excessive nitrates in the
Merritt water system in October, 1983, when the State of Wyoming
notified EPA that sample results indicated nitrate levels in well
#1 of 19 mg/i and in well #2 of 15 mg/i. [ aff.] The applicable
MCL for nitrate is 10 mg/i. In January, 1984, EPA was informed
that the Merritt water system had corrected the problem by disconnecting
the high nitrate well from the system. [ afT.]. The Merritt
water system was directed by EPA on January 24, 1984, not to use
well #1 again unless two connective nitrate samples showed levels
below 10 mg/i. [ ] This direëtive way not followed by the
Merritt water system.
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—8—
EPA was next notified by the State of’ Wyoming in May,
198)4, that wells 3 and 5 had nitrate readings of 15 mg/i and 13
mg/i, respe ’tfu1ly. EPA was informed by the State that the Merritt
water system was examining the use of filters to control the
nitrate contamination.
In September, 198)4, EPA was notified by the State that
the nitrate level in a sample taken from well #1 was 11.7 mg/i.
In November, 19814, representatives of’ EPA visited
Merritt Mobile Manors and obtained drinking water samples. These
samples showed nitrate levels of’ 21.7 mg/i in well #2, 12.9 mg/i
in well #3, and 13.7 in well #5. [ ] A survey taken at Merritt
Mobile Manors in November 198)4 found that, in the 23 households
surveyed, there were eight infants under age two (two under six
months) and three pregnant women.
EPA issued a Findings of’ Violation and Order to Show
Cause on January 8, 1985. It found that Merritt Mobile Manors had
failed to send to EPA the results of water samples. EPA ordered
Merritt Mobile Manors to submit a written response to EPA that
detailed the actions It will take to remedy the failure to submit
test results and that committed Merritt Mobile Manors to future
compliance with all provisions of the Act and the NIPDWR. EPA
received no response to the Findings and Order.
On January 13, 1985, EPA published a notice in the
Cheyenne Tribune—Eagle advising residents of Merritt Mobile Manors
that the drinking water exceeds the MCL for nitrates and warning
that infants under six months old, pregnant women, and nursing
mothers shuld use other safe sources of drinking water. [ ]
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A state sample taken in February 1985 indicated nitrate
levels of 11 mg/i in well #1 and of 15 mg/i in well #2.
D. Emergency Administrative Order
In March 28, 1985, EPA issued an Emergency Administrative
Order (“Emergency Order”) pursuant to Section l 43l of the Act, 42
U.S.C. § 3001. (ExhibIt A to the Complaint). The Emergency
Order was based upon the series of nitrate samples that indicated
the presence of nitrates In the Merritt water system significantly
exceeding the MCL. The Order found that the Merritt water system
may present an imminent and substantial endangerment to the health
of consumers served by the system and that the nitrate contamination
created a serious health risk for infants under six months of age.
[ Id. at ___].
The digestive systems of infants under six months .of age
convert nitrates (NO 3 ) Into nitrites (NO 2 ), which react with hemoglobin
in the blood to form methemoglobin. [ Id. at.] Methemoglobin
prevents hemoglobin from carrying out its function of transporting
oxygen within the body. The resulting disease, methemoglobinemia
(also known as the “blue baby” syndrome), causes varying degrees
of biological suffocation and has caused death In small infants.
[ Id. at ___
The Emergency Order required that the Merritt water
system: 1) immediately provide an alternative source of potable
water to all consumers; 2) provide the alternative source of
drinking water in the form of bottled water or in bulk from an
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approved potable water source, make the alternative source of
drinking water of sufficient quality to comply with the NIPDWR,
and provide the drinking water in a location and manner convenient
to consumers; 3) immediately advise all consumers of the availability
of the alternative water supply through hand—delivered written
notice and notify all residents that EPA has determined that the
water Is contaminated and should not be consumed by infants,
pregnant women, or nursing mothers; Ii) provide the alternative
source of potable water until the Merritt water system demonstrates
to EPA that the water system consistently meets the NIPDWR and
until EPA provides written notice that the alternative source is
no longer required; 5) publish a notice in a local newspaper that
meets the requirements of 40 C.F.R. § 141.32; 6) continue to
monitor each well that exceeds the MCL for nitrate once each
month, or until the MCL level for nitrate has not been exceeded
in two successive samples; 7) in all future communications with
EPA, identify wells on the water system by address and by a
diagram; and 8) within 30 days, provide EPA with a proposed
schedule and plan for bringing the Merritt water system into
compliance. [ ]
The Emergency Order was served upon the manager of
Merritt Mobile Manors, Mike Rentz, [ ?] and upon the attorney and
agent for Merritt Mobile Manors, Jack Gage. £ ] Gage and Rentz
met with EPA and entered into an agreement with EPA to achieve
compliance with the Act and the Emergency Order. (Exhibit B to
the Complaint). Merritt Mobile Manors, through its attorney,
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agreed to undertake the following remedial steps: 1) tie wells 2
and 1 in with the water delivery system north of Victoria Drive
to allow a blending of water from wells 2 and 4 with the water
from well 1; 2) contact Laramie County to get access across
Victoria Drive and complete the tie—in with all possible speed,
contingent only upon obtaining the right—of—way from the county
and a permit from the Wyoming Department of Environmental Quality;
3) supply EPA with a description of the water system layout; 11)
take a sample within two days of completion of the tie—in and
supply the results to EPA as soon as they are available; 5)
sample the water system quarterly for a three—year period; and 6)
provide bottled water to any households with children six months
or younger, pregnant women, or nursing mothers.
On May 9, 1985, the manager of Merritt Mobile Manors
Informed EPA that the new water line was installed under Victoria
Drive and that a sample of the water would be submitted to the
laboratory the next week. [ ] However, the laboratory used by
Merritt Mobile Manors was not an EPA—approved laboratory, as
required by J 4 O C.F.R. § 1111.28. C J The Merritt water system
also failed to obtain the requested permit from the Wyoming
Department of Environmental Quality and was required to disconnect
the new water line across Victoria Drive. *1 [ ] Furthermore,
‘/ The Wyoming Department of Environmental Quality issued a
— Notice of Violation for the unauthorized construction of the
new water line under Victoria Drive, but has not taken other
action to meet the emergency created by the nitrate contamination.
[ ] However, EPA has notified State and local officials of the
continued nitrate coritarninaton and the officials have indicated
their support of this action. [ 1
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— 12 —
when a resident requested bottled water, she was turned down and
threatened with eviction. [ ]
In July 1985, EPA sent a letter to the attorney for
Merritt Mobile Manors which set forth that the Merritt Water
system had failed to publish the notice in a local newspaper,
tailed to submit to EPA a proposed plan and schedule for bringing
the system Into compliance, failed to obtain necessary permits,
failed to provide EPA with a layout of the water system, arid
failed to supply sample results from an approved laboratory. [ ]
The letter demanded immediate compliance with the Emergency Order.
The attorney for Merritt ilobile Manors informed EPA
that he no longer represented the business. EPA was Informed
by the manager of Merritt Mobile Manors on July 23, 1985, that a
new attorney, Don fiske, now represented Merritt Mobile Manors.
[ aft.] In August 1985, Riske informed EPA that he represented
Merritt Mobile Manors and that he would be sending a response to
EPA ’s July letter and a laboratory report. [ aff.] No such letter
or laboratory report was received. [ aft.] In November 1985, EPA
was informed by the State of Wyoming that Merritt Mobile Manor
informed the State that the nitrate problem had gone away [ 3.
In March 1986, representatIves of EPA again took drinking
water samples from the Merritt water system. The results indicated
nitrate levels of 18.5 mg/i in well #1, 18.2 mg/i in well #2, and
11.3 mg/i in well #3.
On June , 1986, the United States, by authority of
the Attorney General and at the request of the Administrator of
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— 13 —
EPA, flied the instant suit to enforce, inter a1la the Emergency
Administrative Order and to abate the imminent and substantial
endarigerment posed by the nitrate contamination in the Merritt
water system.
ARGUMENT
Preliminary Injunctive Relief Should be Granted to
Abate the Nitrate Contamination
In determining whether a preliminary Injunction should
be granted, the court ordinarily considers four factors:
1) whether the movant Is likely to prevail on the
merits;
2) whether the movant will suffer irreparable injury
if such relief is not granted;
3) whether the threatened injury to the inovant outweighs
whatever damage the proposed injunction may cause
the opposing party; and
4) whether the injunction, if issued, would not be
adverse to the public interest.
Lundrin v. Claytor , 619 F.2d 61, 63 (10th Cir. 1980); Esgulbel v.
Torvlk , 571 F.Supp. 732, 733 (D.Wy. 1983). The United States
demonstrates below that the all four tests for preliminary injunctive
relief are met and that the Court should grant a preliminary
injunction to enforce the Emergency Order and to abate the nitrate
contamination in the Merritt water system.
A. The United States Is Likely to Prevail on the Merits
The first prerequisite for obtaining a preliminary
injunction is likelihood of success on the merits. To obtain
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this preliminary injunction, the United States relies on Sections
1414(b) and 1431(a) of the Act, 42 U.S.C. § 300g—3(b) and 300i,
and the Flrs-t, Second and Third Claims for Relief in the Complaint.
*1 As demonstrated below, the United States Is likely to prevail
on the merits of each of these claims.
1. The United States is likely to Prevail In Enforcing
the Emergency Order.
The First Claim for Relief alleges that the defendants’
violation, failure and/or refusal to comply with the Emergency
Order renders the defendants liable under Section 1431 of the
Act, 42 U.S.C. § 3001, to a restraining order or permanent or
temporary injunction and to civil penalties. Section 1431(a) of
the Act, 142 U.S.C. § 3001(a), authorizes the Administrator of
EPA to Issue such emergency orders as may be necessary to protect
the health of persons who are or may be users of a public water
system:
Notwithstanding any other provision of this
subchapter, the Administrator, upon receipt
of Information that a contaminant which is
present in or is likely to enter a public
water system may present an imminent and
‘I The Complaint of the United States has six claims: (1) the
violation, failure and/or refusal to comply with the Emergency
Order renders defendants liable under Section 1431(a) of the Act,
L12 U.S.C. § 3001(a); (2) the creation of an Imminent and substantial
endangerment renders defendants liable under Section 1431 of the
Act; (3) the violations of the MCL for nitrates render defendants
liable under Section 1414(b) of the Act, 42 U.S.C. § 300g—3(b);
(4) the failures to sample and analyze the Merritt water system
render defendants liable under Section 1 1 114(b) of the Act; (5)
the failures to report test measurements and analyses render
defendants liable under Section l 414(b) of the Act; and (6) the
failures to notify consumers and the public of failures to comply
with the NIPDWR render defendants liable under Section 1 414(b) of
the Act.
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substantial endangerment to the health of
persons, and that appropriate State arid local
authorities have not acted to protect the
health of such persons, may take such actions
as-he may deem necessary in order to protect
the health of such persons . . . The action
which the Administrator may take may include
(but shall not be limited to) (1) issuing
such orders as may be necessary to protect
the health of persons who are or may be users
of such system (including travelers), 0/ and
(2) commencing a civil action for appropriate
relief, including a restraining order or
permanent or temporary injunction.
Pursuant to this authority, the Regional Administrator
of EPA issued the Emergency Order on March 28, 1985. The Emergency
Order found that the Merritt water system may present an imminent
and substantial endangerment to the health of consumers served by
the system and ordered the Merritt water system to take immediate
steps to remedy the endangerment. The order was duly served both
upon the manager and upon the agent and attorney for Merritt
Mobile Manors.
a. The Substance of the Emergency Order is not Subject
to Judicial Review in this Enforcement Proceeding
Section l 4 1 J8(a)(2) of the Act, J42 U.S.C. § 300j..-7(a)(2),
provides that a petition for review of any order Issued under the
Act may be filed only In the United States court of appeals for
the appropriate circuit within the 1 15—day period following the
Issuance of the order. An action of the Administrator of EPA to
‘ / Section 2O of the Safe Drinking Water Act Amendments of 1986
— added “including orders requiring the provisions of alternative
water supplies by persons who caused or contributed to the
endangerment” after the words “Including travelers)” 1986 Conference
Report at 21.
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which review could have been obtained under Section l i I 8 (a) “shall
not be subject to judicial review in any civil or criminal proceeding
for enforcenient.” 2 U.S.C. § 300j—7(a). Thus, an order of the
Administrator is not subject to judicial review in any civil
proceeding to enforce the order, but may be reviewed, upon timely
petItion, by the United States court of appeals.
In this case, no petition to review the Emergency Order
was riled with the United States court of appeals. Two recent
decisions interpreting Section l 4L 8 of the Act have held that
where review is available in the court of appeals, the district
court does not have jurisdiction to review the action of the
Administrator of EPA. In Western Nebraska Resources Council v.
Wyomthg Fuel Co. , 2 4 ERC l 39 (D.Neb. 1986) (copy attached as
Exhibit ___), sought review of the Administrator’s action in
approving Nebraska’s underground injunction control program. The
court held that review of the adequacy or the manner in which the
Administrator performed his duties under the Act lies within the
exclusive jurisdictions of the court of appeals. Id. at 11 139_LW.
Similarly, in South Carolina Department of Health and
Environmental Control v. EPA , 22 ERC 1 427 (D.S.C. 198’l) (copy
attached as Exhibit ___), the plaintiff sought to enjoin the
enforcement of the NIPDWR pertaining to fluoride. The court
agreed with EPA that the action was, in essence, an action of the
Administrator in promulgating a regulation. It held that the
court lacked the power to review .or enjoin regulations which
Congress had placed, in Section 1 1 4 1 48(a), within the exclusive
jurisdiction of another court. Id. at 11131.
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— 17 —
In United States v. Ethyl Corp. , 761 F.2d 1153 (5th
Cir. 1985), the court examined the limited scope of district
court review-in civil proceedings for enforcement. 1n that case,
the United States filed suit in distict court seeking civil
penalties and injunctive relief for violations of regulations
governing emis8ion levels of vinyl chloride and polyvinyl chloride.
The district court ruled that the regulations had been promulgated
in excess of EPA ’s authority and dismissed the complaint for
failure to state a claim. The court of appeals held that section
307(b) of the Clean Air Act, 112 U.S.C. § 7607(b), divested the
district court of jurisdiction to pass on the substantive validity
of the regulations. Id. at 1155. Section 307(b) of the Clean
Air Act provides that an emission standard is subject to judicial
review only in the United States court of appeals and only if the
petition for review is filed within sixty days of the action of
the Administrator of EPA. Section 307(b) of the Clean Air Act
further provides that an “action of the Administrator with respect
to which review cDuld be obtained [ in the court of appeals] shall
not be subject to judicial review in civil or criminal proceedings
for enforcement.” 112 U.S.C. § 7007(b)(2). The court held that
the preclusive review provisions of the Clean Air Act precluded
review by the district court. Id.
Similarly, the nearly identical provision in Section
1 14 148( 5) of the Safe Drinking Water Act divests this court of
jurisidiction to pass on the substantive validity of the Emergency
Order. See South Carolina Department of Health and Environmental
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-
LQ
Control , 22 ERC at l1 3l (relying on similarity with Section 307
of the Clean Air Act, court concludes that Section 1 1 1 1 18(a) of
Safe Drinking Water Act precludes district court jurisdiction to
enjoin enforcement of NIPDWR). The defendants in this action did
not seek judicial review of the Emergency Order by filing a
petition in the United States court of appeals. Under the
jurisdictional scheme of the Safe Drinking Water Act, the court
of appeals was the only court with jurisdiction to consider any
attack on the validity of the Emergency Order. By their failure
to appeal the Emergency Order in timely fashion to the appellate
court, defendants have waived their option to ain about the
findings or requirements of the Emergency Order. See Getty Oil
Co. v. Ruckeishaus , 467 F.2d 3t19, 356 (3rd Cir. 1972) (“If Congress
specifically designates a forwn for judicial review of administrative
action, such a forum is exclusive.”)
Accordingly, because the Executive Order is not subject
to judicial review In this enforcement proceeding, the United
States need only show to prevail on Its First Claim that the
Emergency Order: 1) was duly served upon defendant, thus giving
the defendants notice and an opportunity to petition for review
in the United States court of appeals; and 2) that the defendants
have violated, failed or refused to comply with the Emergency
Order. The evidence shows that the United States can establish
both of these elements.
b. Defendants Were Served with the Emergency Order
The Emergency Order was issued by the Regional Administrator
of EPA on March 28, 1985. The order found that Merritt Mobile
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— 19 —
Manors, a/k/a Merritt Mobile Modular Homes (“Merritt water system”)
owned and operated through its agent, Mike Rentz, a public water
system in Lai’amie County, Wyoming. Rentz was the manager of
Merritt Mobile Manors, and of the Merritt water system, at the
time the Emergency Order was issued.
The Emergency Order was served by certified mall, return
receipt requested, on Jack Gage, of Hanes, Gage and Burke, on
April 1, 1985. [ ] John G. Hanes, a law partner of Mr. Gage’s,
is the designated agent for service of process on defendant
Merritt’s Mobile Modular Housing, Inc. [ ] [ Insert Rentz served]
Gage identified himself to EPA representatives as the attorney
for Merritt Mobile Manors, a/k/a Merritt Mobile Modular Homes,
and for Roy Merritt. [ aft. 7/18/85 letter]. Defendants Roy L.
Merritt, Frances G. Merritt, Patrick L. Merritt, and Merritt’s
Mobile Modular Housing, Inc. have traded and done business, and
were doing business at the time of the Emergency Order, in Cheyenne,
Wyoming, as “Merritt Mobile Manors.”
Rentz and Gage, as agents for the defendants, contacted
EPA shortly after Issuance of the Emergency Order and met with
EPA representatives on April 18, 1985 to discuss the Order. [ aft.]
This meeting resulted in an oral agreement between Merritt Mobile
Manors and EPA under which Merritt Mobile Manors agreed to take
steps to comply with the Act and the Emergency Order. [ letter]
The United States, therefore, is able to show that the
Emergency Order was served on the defendants through their agents.
Indeed, the defendants’ Apr11 18, 1985 meeting with EPA and April
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— 20 —
21 1, 1985 letter to EPA demonstrate that the defendants had notice
of the Emergency Order and, therefore, had an opportunity to
petition for review of the order in the United States court of
appeals pursuant to Section 1 1 1118(a) of the Act, 142 U.S.C.
§ 300j—7(a).
C. Defendant8 have Violated, Failed or Refused to
Comply with the Emergency Order
Although the defendants represented to EPA during the
April 18, 1985 meeting and in their April 25, 1985 letter that
they Intended to comply with the Emergency Order, the defendants
have violated, failed or refused to comply with the requirements
of the Order.
Paragraphs 1 through 14 of the Emergency Order required
the Merritt water system to provide immediately an alternative
source of potable water to all consumers, to advise consumers of
the availability of the alternative water supply, and to continue
such alternative supply until EPA provides written notice that
the alternative source is no longer required. Defendants have
failed or refused to provide an alternative source of water to
consumers and even threatened a resident with eviction when she
requested bottled water. [ all.]
Paragraph 5 of the Emergency Order requires the Merritt
water System to publish a notice in the local newspaper that
meets the requirements of 140 C.P.R. § 1141.32. Defendants have
failed or refused to publish the notice. [ all.]
Paragraph 6 of the Emergency Order requires the Merritt
water system to monitor each of the wells that exceed the MCL for
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— 21 —
nitrate once each month until the nitrate level has not been
exceeded in two successive samples from each violating well.
Since the issuance of the Emergency Order, defendants have submitted
only one sampling analysis to EPA and this analysis was performed
by an unapproved laboratory. [ aff.]
Paragraph 7 of the Emergency Order requires the Merritt
water system to identify the wells on the water system by address
and by a diagram. Although the manager of Merritt Mobile Manors
represented to EPA that a map of the water system had been
completed, defendants have failed or refused to provide EPA with
the requested information. [ aff.]
Paragraph 8 of the Emergency Order requires the Merritt
water system to provide EPA with a proposed plan and schedule for
bringing the system into compliance with the Act and the regulations.
Defendants have failed or refused to provide EPA with the plan
and schedule and have failed to complete the remedial action
agreed to at the April 18, 1985 meetIng with EPA. [ aff.]
The above discussion demonstrates that the United States
Is likely to prevail on the merits of the First Claim for Relief.
The United States can prove that the Emergency Order was duly
served upon defendants through their agents and that the defendants,
their promises notwithstanding, have violated, failed or refused
to comply with the requirements of the Emergency Order.
2. The United States Is Likely to Prevail in Showing
that the Nitrate Contaminants May Present an Imminent
and Substantial Endangerment
As an alternative grounds for issuance of the preliminary
Injunction, the United States relies on the Second Claim for
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— 22 —
Relief in its Complaint. The Second Claim alleges that the
nitrate contaminants present in or likely to enter the Merritt
water system. may present an imminent and substantial endangerment
to the health of persons who are or may be users of the water
system.
Section 1431(a) of the Act, 42 U.S.C. § 300i(a), authorizes
EPA to commence a civil action for appropriate relief, including
a restraining order or temporary injunction, upon reciept of
information that a contaminant which Is present in or is likely
to enter a public water system may present an imminent and substantial
endangerment to health. To prevail on its Second Claim for
Relief, the United States must establish 1) that: the nitrate
contamination may present an imminent and substantial endangerment
and 2) that the defendants are persons from whom relief can be
secured.
a. The Nitrate Contamination Presents an Imminent and
Substantial Endangerment
Under Section 1431(a) of the Act, the United States may
obtain a preliminary injunction upon proof that the nitrate
contamination presents an imminent and substantial endangerment.
“Endangerment” means something less than actual harm. For an
endangerment, harm need merely be threatened; no actual injury
need ever occur. United States v. Vertac Chemical Corp. , 489
F.Supp. 870, 885 (E.D. Ark. 1980) (construing a similar endangerment
provision in the Resource Conservation and Recovery Act). Thus,
Section 1431(a) of the Act authorizes an injunction “when there
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— 23 —
is but a risk el’ harm.” United States v. Price , 688 F.2d 2O 4,
211 (3rd Cir. 1982).
The term “imminent” applies to the nature of the threat
rather than an identification of the time when the endangerment
initially arose or when the harm may manifest itself. As stated
by Congress in the report accompanying the passage of the Safe
Drinking Water Act of 1974: “while the risk of harm must be
‘imminent’ for the Administrator to act, the harm itself need not
be. Thus, for example, “the Administrator may invoke this section
where there is an imminent likelihood of the introduction into
drinking water of contaminants that may cause health damage after
a period of latency.” House Report at 6488.
An endangerment is “substantial” whenever “there is a
reasonable cause for concern that someone or something may-be
exposed to a risk of harm.” United States v. Conservation Chemical
Co., 619 F.Supp. 162, 196 (W.D.Mo. 1985) (construing a similar
endangerment provision in the Comprehensive Environmental Response,
Compensation, and Liability Act). Examples given by Congress of
situations in which the endangerment may be regarded as substantial
include a substantial likelihood that contaminants capable of
causing adverse health effects will be injested by consumers if
preventive action is not taken, a substantial statistical probability
that disease will result from the presence of contaminants in
drinking water, or the threat of substantial or serious harm (such
as exposure to carcinogenic agent or other hazardous contaminants).
House Report at 6488.
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— 2L$ —
The conditions at the Merritt water system clearly
present an imminent and substantial endangerment to the consumers
of the water. The nitrate level is well in excess of the maximum
safe level of 10 mg/i. Fatal poisonings in infants have been
documented when nitrate concentrations in water exceeded 10 mg/i. £
Consumption of water with a nitrate concentration greater than
10 mg/i for a period as short as one day may result in methemoglobinemia,
which can be fatal. [ I
Congress has stated that Section 1 43l(a) be “construed
by the courts so as to give paramount importance to the objective
of protection of public health. Administrative and judicial
implementation of this authority must occur early enough to
prevent the potential hazard from materializing”, House Report
at 61488. The United States can amply demonstrate from the facts
in this case that the Merritt water system may present an endangerment
to human health that is both imminent and substantial.
b. Defendants Are Persons from Whom Relief Can
Be Secured
Section 11431(a) of the Act does not restrict the identity
of persons who may be subject to a restraining order or temporary
injunction to protect the health of persons who are endangered by
the contamination. The legislative history, however, indicates
that Congress intended that owners and operators of public water
systems are subject to Section 11431(a):
The authority conferred hereby is intended to
be broad enough to permit the Administrator
to issue orders to owners or operators of
public water systems , to State or local
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— 25 —
governmental units, to State or local officials,
owners or operators of underground injection
wells, to area or point source polluters, and
to any other person whose action or inaction
requires prompt regulation to protect the
public health . . . Such orders may be
issued to obtain relevant informatin about
impending or actual emergencies, to require
the issuance of notice so as to alert the
public to a hazard, to prevent a hazardous
condition from materializing, to treat or
reduce hazardous situations once they have
arisen, or to provide alternative safe water
supply sources in the event any drinking
water source which is relied upon becomes
hazardous or unuseable.
house Report at 6487 (emphasis added). 1/ Thus, as owners and/or
operators, the defendants are persons who can be ordered by the
Court to take action to address the endangerment.
In addition, by their actions or inactions the defendants
have caused or contributed to the endangerment. Accordingly, as
“persons whose action or inaction requires prompt regulation to
protect the public health,” defendants are subject to a preliminary
injunction under Section 1 1 431(a).
The United States can prove that the nitrate contamination
presents an Imminent and substantial endangerment which the
defendants, as owners and/or operators of the water system or as
persons whose actions or inactions require prompt regulation to
protect public health, must remedy. Therefore, the United States
‘I Section 20k of the Safe Drinking Water Act Amendments of 1986
added a new clause to Section 1431(a)(l) that clarifies that
the action which the Administrator may take to protect the health
of persons includes orders “requit’ing the provision of alternative
water supplies by persons who caused or contributed to the endangerment.”
1986 Conference Report at 21.
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— 26 —
has established a likelihood of success on the merits of its
Second Claim For Relief.
3. The United States is Likely to Prevail in Showing
that the Nitrate Contamination Violated the NIPDWR
As an additional alternative grounds for issuance of
the preliminary injunction, the United States relies on the Third
Claim for Relief. The Third Claim alleges that the defendants,
through the Merritt water system, delivered water to users of the
water system that exceeded the MCL for nitrate, in violation of
4O C.F.R. § 1 1 11.ll(b) and Section l l14(a)(2) of the Act, 142
U.S.C. § 300g—3(a)(2).
To prevail on the merits of the Third Claim for Relief,
the United States need only establish that the Merritt water
system supplied water that exceeded the 4CL for nitrates. See
United States v. Neskowin Enterprises, Inc. , 11$ ERC 1636, 16 141
(D.Or. 1980) (copy attached as Exhibit ___). “It should be noted
in this regard that a violation occurs whenever a maximum contaminant
level is exceeded or a treatment technique is not followed however
briefly. ’ House Report at 61476.
EPA obtained samples of the Merritt water system on
November lii, 19814 and March 3, 1986. [ affidavIt of Warner].
These samples were taken according to the EPA Manual for Sampling
and Sample Preservation. [ Id. at 3. The samples were maintained
under strict chain—or—custody controls and hand delivered to the
laboratory custodian at the EPA Region VIII laboratory in Lakewood,
Colorado. LId, at ¶ 3 . The samples were then analyzed according
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— 27 —
to EPA protocol. [ ). The results of the samples are as follows:
Date Well Number Nitrate (as N) mg/i
11/14/814 2 21.7
11/14/81 1 3 12.9
11/11/84 It 6.1
11/11/84 5 13.7
3/3/86 18.5
3/3/86 18.2
3/3/86 11.3
3/3/86 6.9
3/3/86 ? 7.0
As noted, the applicable MCL for nitrates Is 10 mg/i.
110 C.F.R. § 1 1 11.11(b). As detailed above, the samples taken on
two separate days reveal six violations of the MCL. *1 Based on
these violations, the United States is likely to prevail on the
merits of its Third Claim for Relief.
In conclusion, the United States has established that
it is likely to prevail on the merits of Its First Claim f r
Relief, or alternatively on its Second or Third Claims for Relief.
Accordingly, the United States has met the first prerequisite for
issuance of a preliminary injunction against the defendants. */
‘1 In addition, the United States alleges In the Complaint and
Is prepared to prove at trial that samples taken by the
Laramle County Health Department indicate numerous other times
when the Merritt water system violated the MCL for nitrates,
Including but not limited to September 19, 1983, April 26, 19811,
August 29, 19814, and February 8, 1985.
*1 In Lundgrln v. Claytor , 619 F.2d 61 (10th Cir. 1980), the
court held that where the movant prevails on the other three
prerequisites for a preliminary injunction, the movant need only
meet the less stringent “fair ground for litigation” requirement.
Id. at 63. Under this test, “It will ordinarily be enough that
the plaintiff has raised questIon going to the merits so serious,
substantial, difficult and doubtful as to make them a fair ground
(Footnote continued on next page)
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— 28 —
B. The Consumers of the Merritt Water System Will
Suffer Irreparable Injury if Preliminary Relief is
Not Granted
Bythls preliminary injunction, the United States seeks
to enforce the Act and to remedy the danger that the nitrate
contamination poses to the consumers of the Merritt water system.
The Emergency Order found that the Merritt water system had
delivered water to Its consumers that “significantly exceeded”
the MCL for nitrates and that creates a serious health risk. [ 3
The most recent samples indicate that the levels of nitrate in
the water system continue to significantly exceed the MCL. [ I
The Emergency Order futher found that the level of nitrate
contamination may result In methemoglobinemia, a deadly disease.
Similarly, a toxicologist who studied the Merritt water system
has concluded that the levels of nitrate contamination in the water
system may cause toxic manifestation in children who consume the
water for as brief a period as one day. [ CDC]
Thus, the harm posed by the Merritt water system is
undoubtedly irreparable. At present, there is no alternate source
of potable water, nor have the consumers and public been advised
(Footnote from previous page)
for litigation and thus for more deliberate investigation.” Id.
( citing Continental Oil Co. v. Frontier Refining Co. , 338 F.2d
780, 781—82 (10th Cir. 19614)). Because the United States meets
the other three elements for issuance of a preliminary injunction,
It is entitled to the more liberal fair ground for litigation
standard. In any event, the United States has clearly demonstrated
that it meets even the more stringent “likelihood of success”
requirement. Thus, under either standard, the United States has
met the first prerequisite for the issuance of a preliminary
injunction.
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— 29 —
of the contamination since EPA published a January 1985 warning
in a local newspaper. Again, consumption of the water for as
little as one day can cause serious and even fatal poisonings of
infants. [ Guidance]
Given the serious health threat posed by the water
system, there is no other relief available at a later phase of
this case which could possibly compensate or correct the poisonings
that may result if the injunction is not granted. See Virginia
Petroleum Jobbers Association v. Federal Power Commission , 259
F.2d 921, 925 (D.C.Cir. 1958). Accordingly, the facts establish
that without a preliminary injunction, the consumers of the
? 4 erritt water system will suffer irreparable injury.
C. The Threatened Injury to the Consumers of the
Merritt Water System Outweighs Whatever Damage the
Injunction Will Cause the Defendants .
Generally, under the third prerequisite for a preliminary
injunction, the Court must weigh the threatened injury to the
consumers of the Merritt water system against whatever damage the
injunction will cause the defendants, However, “ [ w]here the
plaintiff is a soverign and where the activity may endanger the
public health, injunctive relief is proper, without resort to
balancing.” Environmental Defense Fund Inc. v. Lamphier , 71L1
F.2d 331, 337—38 ( 1 4th Cir. 1983), quoting Illinois v. Milwaukee ,
599 F.2d 151, 166 (7th Cir. 1979), rev’d on other grounds , 451
U.S. 3014 (1981). Thus, in this action to protect the public
health, It is unnecessary for the court to balance the interests
of the parties.
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— 30 —
The legislative history also indicates that the
traditional balancing requirement Is not applicable to actions
under the Ac to protect public health: “the Committee intends
that courts which are considering remedies In enforcement actions
under [ Section l 4l11J are not to apply traditional balancing
principles used by equity courts. Rather, they are directed to
give utmost weight to the Committee’s paramount objective of
providing maximum feasible protection of the public health . . . .“
House Report at 6 476.
Nonetheless, even under a traditional balancing of the
harm, the balance weighs heavily in favor of granting the requested
relief. As noted by the Emergency Order and by an EPA toxicologist,
consumption of water with nitrate contamination In excess of
10 mg/i may result in fatal poisoning of young infants. Thus, the
threatened injury to the consumers of the Merritt water system is
enormous.
On the other hand, the United States seeks an injunction
requiring the defendants to do only what is already required by
the Act and the NIPDWR and was ordered by EPA In the Emergency
Order. As a public water system, the Merritt water system is
required by law to provide safe drinking water to its consumers.
See 4O C.F.R. § 1141.3, 1141.11. The Emergency Order also requires
an alternative source of potable drinking water. The United
States seeks a preliminary injunction requiring the defendants to
provide an alternative source of potable water.
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— 31 —
As a public water system, the Merritt water system is
required by law to notify persons served by the water system and
the public if the Merritt water system fails to comply with an
applicable MCL. 142 U.S.C. § 300g—3(c); 140 C.F.R. § 1 I1.32. The
Emergency Order requires the Merritt water system to notify all
consumers currently served by the water system and the public
that the existing water supply is contaminated. The United States
seeks a preliminary injunction requiring the defendants to notify
consumers and the public that the Merritt Water system is
contaminated.
And finally, as a public water system, the Merritt
water system is required by law to comply with the Act and the
NIPDWR. Similarly, the Emergency Order requires the Merritt
water system to develop a proposed plan and schedule for bringing
the water system into compliance with the Act and its regulations.
The United States herein seeks a preliminary injunction requiring
the defendants to submit a proposed plan and schedule for bringing
the Merritt water system into compliance with the law.
The United States has carefully considered the preliminary
relief necessary to abate the health threat presented by the
nitrate contamination in the Merritt water system. It has limited
its request for relief to those measures that are required by law
and ordered by the Regional Administrator of EPA in the Emergency
Order and that are necessary to protect the public health. In
light of the extreme hazards pose d by the contamination, the
preliminary relief does not place a heavy burden on the defendants.
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— 32 —
Moreover, in United States v. Neskowin Enterprises,
Inc. , the court rejected the suggestion the cost of complying
with the Act justifies continued noncompliance:
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 19714 U.S. Code Cong. & Ad. News,
61470. 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 not a
justification for persistently failing to
comply with the Act’s Regulations.
114 E.R.C. at 16143.
Any potential damage to the defendants by requiring
them to comply with the law Is far outweighed by the benefit to
the persons served by the Merritt water system if the measures
requested in this motion are Implemented. The economic burden
placed upon the defendants cannot, as a matter of law or equity,
be more important than the serioü and potentially fatal poisoning
of infants that may result if the preliminary injunction is not
granted.
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— 33 —
D. Issuance of the Injunction Will Not Be Adverse to
the Public Interest
As the final prerequisite for issuance of a preliminary
i.zijunction, the United States must establish that the issuance of
the Injunction will not be adverse to the public interest. The
Supreme Court has noted that courts of equity Ttgo much further
both to give and withold relief in furtherance of the public
interest . . . than when only private interests are involved.”
Virginia Railway Co. v. System Federation , 300 U.S. 515, 552
(1937). Indeed, where Congress has indicated its purpose to
assure that water supply systerrs meet minimum national standards
for the protection of public health, it “is in itself a declaration
of public interest and policy which should be persvaslve in
Inducing courts to give relief.” Id.
Implicit In the Act is the legislative conclusion that
the elimination of contaminants in harmful amounts Is necessary
for the public health and that protection of the public from
contaminated water systems is in the public interest. The
preliminary measures sought by the United States will ensure that
the health of consumers of the Nerrltt Water System will not be
threatened or harmed prior to a trial on the merits of the
complaint of the United States. Because the requested injunction
would merely enforce the requirements of the Act, it is inescapably
in the public interest.
Denial of the preliminary injunction, however, will
disserve the public interest by threatening the public health and
by sanctioning the defendants’ callous disregard for the Act, for
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— 3l —
the Emergency Order issued by EPA, and for the health of the
residents of Merritt Mobile Manors.
Al stated by the court In United States v. Price , 688
F.2d 2O 4, 23 )4 (3rd Cir. 1982):
Congress, in the endangerment provisions of
RCRA and SDWA sought to Invoke nothing less
than the full equity powers of the federal
courts In the effort to protect public health,
the environment, and public water supplies
from the pernicious effects of toxic wastes.
Courts should not undermine the will of
Congress by either withholding relief or
granting it grudgingly.
The issuance of the preliminary injunction, therefore,
will not be adverse to the public Interest but will further and
protect the public interest from the defendants’ disregard for
the law.
CONCLUSION
The United States having established the four prerequisites
for the issuance of a preliminary injunction, the Court should
grant the Motion for a Preliminary Injunction and order the
relief requested in the motion.
Respectfully submitted,
F. HENRY HABICHT
Assistant Attorney General
Land and Natural Resources Division
United States Department of Justice
RICHARD ALLEN STACY
Unlted States Attorney
District of Wyoming
-------
— 35 —
By: ______
‘RANCIS LELAN]J PICO
Assistant United States Attorney
District of Wyoming
Room 2139, J.C.0. Mahoney Fed. Ctr.
21 41 Capital Avenue
Cheyenne, Wyoming 82003
(307) 772—2124
ROBERT Ft. KUERN
Attorney, Environmental Enforcement
Section
Land and Natural Resources Division
United States Department of Justice
P. 0. Box 7415
Washington, D.C. 20044—7415
(202) 633—5474
OF COUNSEL:
SANDRA R. MORENO, (8RC)
Assistant Regional Counsel
Region VIII
U.S. Environmental Protection Agency
999 18th Street, Suite 1300
Denver, Colorado 80202—2413
ALAN MORRISSEY, (LE—13 1 1W)
Office of Enforcement and Compliance
Monitoring — Water
U.S. Environmental Protecton Agency
401 M Street, S.W.
Washington, D.C. 20460
-------
1 CAROL E. DINKINS
Assistant Attorney General
2 Land and Natural Resources Division
United States Department of Justice
3 Washington, D.C. 20530
4 CHARLES H. TURNER
United States Attorney
5 THOMAS C. LEE
Assistant United States Attorney
6 312 U.S. Courthouse
Portland, Oregon 97207
7 (503) 423-2101
8 Attorneys for Plaintiff
9 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
10
UNITED STATES OF AMERICA, )
11 )
Plaintiff, ) Civil No.
12 )
vs. ) COMPLAINT
13 )
ROBERT C. COOK AND DENISE D. COOK, )
14 d/b/a WESTGATE MOBILE HOME PARK, )
)
15 Defendants. )
16
The United States of America, through its attorneys
17
undersigned and by the authority of the Attorney General, at
the request of the Administrator of the United States
19
20 Environmental Protection Agency (hereinafter “EPA”), alleges as
follows:
21 1 . This is a civil action under the Safe Drinking
22 Water Act (hereinafter the “SDWA”), 42 U.S.C. §300f et
23 for the assessment of civil penalties and for preliminary and
24 permanent injunctive relief against the defendants for
25 violations of the SDWA and the national primary drinking water
26 regulations, including maximum contaminant levels, monitoring,
27 reporting and notification requirements thereunder.
28
COMPLAINT - PAGE ONE OF EIGHT
Form OBO i83
12.8.76 DOS
-------
1 FIRST CLAIM
2 2. Authority to bring this action is conferred by 42
3 U.S.C. §300g-3(b). At all times relevant, the State of Oregon
4 has not had primary enforcement responsibility under the SDWA.
5 Responsibility for enforcement of the SDWA thus remains solely
6 with EPA.
7 3. This Court has jurisdiction over the subject
8 matter of this action pursuant to 28 U.S.C. §1345 and 42 U.S.C.
9 §300g-3(b).
10 4. Defendants Robert C. Cook and Denise D. Cook
11 reside in Ontario, Oregon and were and are owners and operators
12 of the Westgate Mobile Home Park, an unincorporated entity
13 located in Ontario, Oregon.
14 5. At all relevant times the defendants owned -an-d/or
15 operated, in Naiheur County, Oregon, a public water system
16 at the Westgate Mobile Home Park subject to the SDWA and
17 regulations promulgated thereunder. The system is a “public
18 water system” as defined at 42 U.S.C. §300f(4) and is also a
19 “community water system ” as defined at 40 C.F.R. §141 .2(e)(i)
20 The Westgate Mobile Home Park water system serves at least
21 15 service connections used by year-round residents or regularly
22 serves more than 25 year-round residents.
23 6. On December 24, 1975, the Administrator of EPA
24 promulgated national interim primary drinking water regulations
25 under the SDWA, 40 C.F.R. Part 141 , 40 Fed. Reg. 59570
26 (December 24, 1975); see also 40 C 1 F.R. Part 142, 41 Fed. Reg.
27
28 COMPLAINT - PAGE TWO OF EIGHT
arm OBD-183
128-76 DOJ
-------
1 2918 (January 20, 1976). The regulations specify maximum
2 contaminant levels (MCL’s) and monitoring, analytical, reporting
and public notification requirements. The regulations became
4 effective June 24, 1977 [ 42 U.S.C. §300g-1(a)(3), 40 Fed.
5 Reg. 59 569] and were amended July 9, 1976 (41 Fed. Reg.
6 28403), November 29, 1979 (44 Fed. Reg. 68641) and August 27,
1980 (45 Fed. Reg. 57343).
8 7. Since the time of their acquisition of Westgate
9 Mobile Home Park in June 1981, defendants have continually
10 violated the national primary drinking water regulations by
11 supplying water to users of their system that has contained
12 nitrates in amounts exceeding the MCL of 10 milligrams per
13 liter as nitrogen as set by 40 C.F.R. §141.11.
14 8. EPA has repeatedly notified the defendants of their
15 violation of the MCL for nitrate.
16 9. Defendants t failure to comply with the 40 C.F.R.
17 §141.11 maximum contaminant level for nitrates has been willful.
18 10. Protection of the public health requires that this
19 Court enjoin defendants from committing further violations of
20 the contaminant limitations of 40 C.F.R. §141.11. Defendants
21 are further subject to a civil penalty of not more than $5,000
22 for each such willful violation under 42 U.S.C. §300g-3(b).
23 SECOND CLAIM
24 11. Plaintiff here realleges paragraphs 2 through 6.
25 12. The national interim primary drinking water
26 regulations require suppliers of water to regularly monitor for
27
COMPLAINT - PAGE THREE OF EIGHT
28
Form 080.123
12 8-76 DOJ
-------
1 the presence of contaminants. 40 C.F.R. Part 141, Subpart C.
2 Sampling and analysis for coliform bacteria is required to be
3 performed at least once per month for community water systems
4 that serve a population between twenty-five (25) and one
5 thousand (1000) persons. 40 CPF.R. §141.21(b). Nitrate
6 sampling and analysis is required to be initiated within
7 twenty-four hours of any test measurement showing that the
8 nitrate maximum contaminant level has been exceeded. 40 C.F.R.
9 §141.23(d).
10 13. EPA has repeatedly explained the SDWA sampling
11 and analytical requirements to defendants.
12 14. Between June 1981 and the present, with the
13 exception of November 1981 , defendants have willfully failed
14 to sample and analyze on a monthly basis the level of coliform
15 bacteria in the drinking water supplied by their system, as
16 required by 40 C.F.R. §141 .21
17 15. Following the results of tests conducted by
18 defendants in November 1981 and February 1982, which showed
19 levels of nitrate above the MCL, defendants willfully failed
20 to initiate subsequent analyses for nitrate contamination in
21 the drinking water supplied by their system, as required by
22 40 C.F.R. §141 .23(d).
23 16. Defendants’ willful failures to comply with the
24 sampling and analytical requirements alleged in paragraphs 14
25 and 15 violated 40 C.F.R. § 141 .21 and 141 .23. Protection
26 of the public health requires that this Court enjoin the
27
28 COMPLAINT - PAGE FOUR OF EIGHT
Form 050-183
128.76 DOJ
-------
1 defendants from committing further violations of the monitoring
2 requirements of the national interim primary drinking water
3 regulations. Defendants are subject to a civil penalty of not
4 more than $5,000 for each such willful violation under 42
5 U.s.c. §300-3(b).
6 THIRD CLAIM
7 17. Plaintiff here realleges paragraphs 2 through 6.
8 18. The national interim primary drinking water
9 regulations require the reporting to EPA of the results of each
10 required test, measurement or analysis within the first ten
11 (10) days following the ‘month of measurement or analysis. 40
12 C.F.R. § 141 .31 (a) and 141 .2(h). Said regulations further
13 require reporting to EPA within forty-eight (48) hours of
14 any failure to comply with any primary drinking water regula-
15 tion, including failure to comply with monitoring requirements.
16 40 C.F.R. §141.31(b).
17 19. EPA has repeatedly advised defendants of their
18 obligation to report sampling and analytical results to EPA.
19 20. During the period beginning on or about June 1,
20 1981 and continuing recurrently to the present, defendants
21 willfully failed to report to EPA the results of required
22 sampling and analysis for levels of coliform bacteria in
23 violation of 40 C.F.R. §141 .31 (a). Defendants also willfully
24 failed to report to EPA their failure to comply with the SDWA
25 monitoring regulations, thereby violating 40 C.F.R. §141.31(b).
26
27
28 C OHPLAINT - PAGE FIVE OF EIGHT
Form 000-183
12-8-76 DO
-------
1 21 . Protection of the public health requires that
2 ,this Court enjoin defendants from committing further violations
3 of the reporting requirements of the national interim primary
4 drinking water regulations. Defendants are subject to a civil
5 penalty of not more than $5,000 for each such willful violation
6 under 42 U.S.C. §300g-3(b).
7 FOURTH CLAIM
8 22. Plaintiff here realleges paragraphs 2 through 6.
9 23. The drinking water regulations require public
10 notification of any failure to comply with an applicable
11 maximum contaminant level or failure to perform required
12 sampling and analysis. 40 C.F.R. §141.32(a) and (b).
13 24. Defendants willfully failed to notify the
14 public of their failure to comply with the MCL for nitrates
15 at the times and in the manner specified in 40 C.F.R. §141 .32.
16 25. Defendants also willfully failed to notify
17 persons served by their system of their failure to perform
18 required monitoring for levels of microbiological and nitrate
19 contamination in the drinking water supplied by their system,
20 as required by 40 C.F.R. §S141 .21 and 141 .23, in violation of
21 40 C.F.R. §141.32.
22 26. Protection of the public health requires that
23 this Court enjoin defendants from committing further violations
24 of the public notification requirements of the national interim
25
26
27
COMPLAINT - PAGE SIX OF EiGHT
28
orm 090183
12-8-76 DOJ
-------
1 primary drinking water regulations. Defendants are subject to
2 a civil penalty of not more than $5,000 for each such willful
3 violation under 42 U.S.C. §SOOg-3(b).
4 PRAYER FOR RELIEF
5 WHEREFORE, plaintiff United States of America prays
6 for judgment against defendants as follows:
7 1 . An order preliminarily and permanently enjoining
8 and requiring the defendants to comply with all relevant SDWA
9 regulations, including maximum contaminant levels and
10 requirements for sampling, analysis, reporting and public
11 notification and requiring defendants to undertake interim
12 measures as appropriate to minimize risk to public health.
13 2. Civil penalties comprising the sum of $5,000 for
14 each violation of the maximum contaminant levels allowed by the
15 national interim primary drinking water regulations; for each
16 violation by defendants of sampling and analytical
17 requirements; for each violation by defendants of requirements
18 for reporting contaminant levels to governmental authorities;
19 and for each violation by defendants of requirements for
20 notifying the public of defendants’ failure to conform to the
21 drinking water regulations.
22 3. Such other relief as may be just and proper in the
23 circumstances.
24
25
26
27
28 COMPLAINT - PAGE SEVEN OF EIGHT
Form 080-183
12.8-76 DOJ
-------
1 4. Plaintiff’s costs and disbursements herein to be
2 taxed.
DATED this ____ day of ___________ , 1983.
4
5
Respectfully submitted,
6
d Lt J4 L Ai J
8 CAROL E. DINKINS
Assistant Attorney General
9 Land and Natural Resources Division
United States Department of Justice
Washington, D. C. 20530
11
12
CHARLES H. TURNER
13 United States Attorney
•District of Oregon
14
15
16 By: __________________________________
THOMAS C. LEE
17 Assistant United States Attorney
312 U. S. Courthouse
18 Portland, Oregon 97207
19
20 ______________________________________________
DAVID M. HEINECK
21 SpeciaL Assistant United States Attorney
U. S. Environmental Protection Agency
22 1200 Sixth Avenue
Seattle, Washington 98101
23
24
25
26
27
COMPLAINT - PAGE EIGHT OF EIGHT
28
Form OB -1B3
12-8.76 DOJ
-------
1 CHARLES H. TURNER
United States Attorney
2 District of Oregon
THOMAS C. LEE tfldo sed:
3 Assistant United States Attorney FIP j
3 2 U.S. Courthouse, 620 S.W. Main ROBERT
L.ERSç
.Portland, Oregon 97205
Telephone: 221-2153
5
6 Attorneys for Plaintiff
tSTEVEr J. PIERCE
7 Attorney at Law
I 23 Southwest Third Avenue
8 ‘Ontario, Oregon 97914
Telephone: 889-2197
9
Attorney for Defendants
10
11 IN THE UNITED STATES DISTRICT COURT
12 FOR THE DISTRICT OF OREGON
13
UNiTED STATES OF AMERICA, )
)
14 Plaintiff, ) CIVIL NO. 83-638
15
v. ACCEPTANCE AND
16 ROBERT G. COOK AND DENISE D. COOK, ACKNOWLEDGEMENT
OF SERVICE
d/b/a WESTGATE MOBILE HOME PARK,
17
Defendants.
18
19 Steven J. Pierce, attorney for defendants herein, hereby accepts and
20 acknowledges service on behalf 0 f the above named defendants of a true and
21 correct copy of the Surnonses and Complaints, Consent Form and Pretrial Order Form
22 herein, at Ontario, OR, on the / day of May, 19 3.
23
24
STEVEN PIE CE
25
SUBSCRIBED and SWORN to before me this f ’ day of May, 1983.
OTARY PUBL C OR STA d1 OR GON
My Co ission Expires:J ___________
28 . -. .. ..
m 000 183 Exhibit I
.8.76 DOS
II
-------
SQ ...c 1 t CIA!t.. f-
l43
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. C82-0308
)
ALCOVA ACRES INVESTMENT )
COMPANY, a Corporation, )
)
Defendant. )
___________________________________________________________)
AMENDED COMPLAINT
The United States of America, by its undersigned
attorneys, by the authority of the Attorney General, and
at the request of and on behalf of the Administrator of
the United States Environmental Protection Agency (herein-
after “EPA”) alleges as follows:
FIRST CLAIM FOR RELIEF
1. This is a civil action brought pursuant to
42 U.S.C. 300g-3(b) to enforce the provisions of the Safe
Drinking Water Act, 42 U.S.C. 300f et seq, and implementing
regulations, 40 C.F.R. Part 141, seeking an injunction
requiring defendant to comply with the Safe Drinking Water
Act and implementing regulations, and for civil penalties
for violations of the Safe Drinking water Act and implenen-
ting regulations.
2. This Court has subject r atter jurisdictJon pur-
suant to 28 U.S.C. 1311, 1345, 1355 and 42 U.S.C. 300g(3)(b),
300i.
3. \‘o ue s - p r n tii s c i net p . r ant to
2S U S.C. 1391(b), 39 l(c), 1395(a)
-------
-2-
4. The State of Wyoming has not accepted primary
enforcement responsibility for the Safe Drinking Water Act
as contemplated by 42 U.S.C. 300g-2.
5. Administration and enforcement of the Safe
Drinking Water Act in the State of Wyoming is pursuant to
42 U.S.C. 300g-3 the responsibility of EPA.
6. Defendant, Alcova Acres Investment Company,
is a corporation incorporated under the laws of the State
of Wyoming.
7. Defendant is the owner and operator of a
water system (hereinafter referred to as the Alcova Acres
water system) located in Natrona County, Wyoming, which
regularly provides piped water for human consumption for
over twenty-five (25) year-round residents through more
than fifteen service connections.
8. Defendant has repeatedly been informed by
EPA of the requirements of the Safe Drinking Water Act and
40 C.F.R. Part 141.
9. Pursuant to 42 U.S.C. 300g. defendant is
required in the operation of the Alcova Acres water system
to comply with the provisions of 40 C.F.R. Part 141.
10. Defendant is required under 40 C.F.R. Part
141 to moniLor the Yater pTovid d by the Alcova Acres vater
s ’c rn by u k5ng s. mplcs nd having the ampies L l) &d for
coliform bactrria , 40 C.F.R. 141.21, inorsanic ric ls,
40 C.F.R. lLd.23; or arLic cLe1 ]Ca1S, 0 C.F.R. 141 24, i’d
-------
-3-
radioactivity 40 C.F.R. 141.25-141.26; to report the results
of the monitoring and analysis of the water provided, 40
C.F.R. 141.31; to give public notification of any failure
to comply with the provisions of 40 C.F.R. Part 141, 40 C.F.R.
141.32; and to retain records of the monitoring and analysis
of the water provided, 40 C.F.R. 141.33.
11. The Alcova Acres water system may not exceed
the maximum contaminant levels for inorganic chemicals set
forth in 40 C.F.R. 141.11 and the maximum contaminant levels
for coliform bacteria set forth in 40 C.F.R. 141.14.
12. Defendant has willfully failed to comply with
and continues to remain in non-compliance with the reporting
requirements of 40 C.F.R. 141.31.
SECOND CLAIM FOR RELIEF
13. Paragraphs 1 through 11 are incorporated herein
by reference.
14. Defendant has willfully failed to comply with
and continues to remain in non-compliance with the public
n tification requirements of 40 C.F.R. 141.32.
THIRD CLAIM FOR RELIEF
15. Paragraphs 1 through 11 are incorporated herein
by reference.
16. Defendant has willfully failed to comply
with and continues to remain in non-.-complidnce with the
record maintenance requirements of 40 C.F.R. 141.33.
-------
-4-
FOURTH CLAIM FOR RELIEF
17. Paragraphs 1through 11 are incorporated here-
Ln by reference.
18. In the absence of compliance with the provi-
sions of 40 C.F.R. 141.31 and 141.33, the United States upon
information and belief alleges that defendant has willfully
failed to comply with and continues to remain in non-compliance
with the thonitorirtg and analytical requirements of 40 C.F.R.
141.21 through 141.29.
FIFTH CLAIM FOR RELIEF
19. Paragraphs 1 through 11 are incorpcrated
herein by reference.
20 The Alcova Acres water system has experienced
recurring violations of the maximum contaminant levels for
inorganic chemicals, including but not limited to nitrates
and selenium, as set forth in 40 C.F.R. 141.11.
21. Defendant has willfully failed to take steps
to insure that the Alcova Acres water system does not
exceed the maximum contaminant levels for inorganic chemicals
as set forth in 40 C.F.R. 141.11.
SIXTH CLAIM FOR RELIEF
22. Paragraphs 1 through 11 are incorporated here-
in by reference.
23. Pursuant to 42 U.S.C. §300i, the Adminisirat .or
of EPA may bring suit “upon ieceipt of inform t on that a con-
taininant which is present in or likely to enter a public ater
svsteui nay present an and suDsLaraLial cndan eLnenC.
-------
—5 -
24. Sampling and analysis of the water supply of
the Alcova Acres water system has shown the presence of
significant levels of nitrates, selenium and uranium.
25. Nitrates, selenium and uranium are contaminants
within the definition of 42 U.S.C. 300f(6).
26. The nitrates, seleniirrn and uranium contaminants:
are presenting and may present in the future an imminent and
substantial endangerment to the health of persons using the
Alcova Acres water system.
27. State and local authorities have not acted to
protect the health of persons using the Alcova Acres water
system.
WHEREFORE,plaintiff prays that the Court, acting
pursuant to 42 U.S.C. 300g—3(b) and 300i:
1. Order defendant to forthwith comply with the
monitoring and analytical requirements of 40 C.F.R. 141.21
through 141.29.
2. Order defendant to forthwith comply with the
reporting requirements of 40 C.F.R. 141.31.
3. Order defendant to forthwith comply with
the public notification requirements of 40 C.F.R. 141.32.
4. Order defendant to forthwith comply with
the record maintenance requirements of 40 C F.R. ILI,33.
-------
—6-
5. Order defendant to forthwith commence delivery
of water through the Alcova Acres water system whic h does
‘n t exceed the maximum contaminant levels for inorganic
chemicals.
6. Impose a civil penalty of $5,000 for each day
of violation by defendant of the moi toring and analytical
requirements of 40 C.F.R. 141.21 through 141.29.
7. Impose a civil penalty of $5,000 for each day
ot vi o1ation by defendant of the reporting requirements of
40 C.F.R. 141.31.
8. Impose a ’c ivil penalty of $5,000 for each day
of violation by defendant of the public notification require-
ments of 40 C.F.R. r41.32.
‘9. Impose a civil penalty of $5,000 for each day
of violation by defendant of the record maintenance require-
merit of 40 C.F.R. 141.33.
10. Impose a civil penalty of $5,000 for each
ay the Alcova Acres water system exceeded the maximum contami-
nant levels for inorganic chemicals.
Impose a civil penalty of $5,000 for each day
the Alcova Acres water system exceeded the maximum contaminant
levels for coliformbacteria.
12. Order that p]aintiff reco ’er from defcndant
the costs of this action.
-------
-7—
13. Grant such other relief as it may deem neces-
sary and just.
Respectfully submitted,
‘i V ,
. d- _LLcL. ( - LJ. a
CAROL E. DINKINS
Assistant Attorney General
Land and Natural Resources Division
United States Department of Justice
Washington, D. C. 20530
RICHARD A. STACY
United States Attorney
District of Wyoming
FRANCIS LELAND PICO
Assistant United States Attorney
District of Wyoming
Post Office Box 668
Cheyenne, Wyoming 82001
/_ k/ - —
DEAN KTDUNSNORE
Attorney
Environmental Defense Section
Land and Natural Resources Division
United States Department of Justice
Post Office Box 7415
Benjamin Franklin Station
Washington, D. C. 20044 -7LJ5
-------
CERTIFICAE OF SERVICE
I hereby certify that on this f’ day of Narch 1983,
one copy of the foregoing Amended Complaint was place in the
United States mail postage prepaid, addressed to:
Peter 3. Feeney, Esquire
201 West Wolcott
Suite 141
Post Office Box 437
Casper, Wyoming 83602
‘2: 1 /
.t. ,
DEAN K. DUNSI4ORE
-------
DISCOVERy
-------
/j . ./
1 CHARLES H. TURNER
United States Attorney
2 THOMAS C. LEE
Assistant United States Attorney
312 U. S. Courthouse
620 S. U. Main Street
4 Portland, Oregon 97205
Telephone: (503) 423-2101
5
Attorneys for Plaintiff
6
7
8
IN THE UNITED STATES DISTRICT COURT
g FOR THE DISTRICT OF OREGON
10 UNITED STATES OF Al 1ERICA, )
)
11 Plaintiff, ) Civil No. 83—32
)
12 vs. ) PLAINTIFF’S FIRST SET
) OF INTERROGATORIES,
13 MIDLAND WATER ASSOCIATION and ) REQUESTS FOR ADMISSION
RICHARD ABRAHAMSON, ) AND REQUESTS FOR
14 ) PRODUCTION OF DOCUMENTS
Defendants. )
15 _______________________________________ )
16 Pursuant to Rules 26, 33, 34 and 36, Fed. R. Civ. P. , the
17 plaintiff hereby propounds to the Midland Water Association and Richard
18 Abrahamson, defendants herein, (1) written interrogatories, (2) requests
19 for admissions, and (3) requests for the production of documents. The
20 obligations imposed upon the defendants by Rules 26, 33, 34 and 36 are
21 here incorporated by reference, including, but not limited to, the duty
22 to supplement imposed by Rule 26(e).
23 INSTRUCTIONS
24 1. When asked to identify a person, state the person’s:
25 a. Full name,
26
27
28 PLAINTIFF’S FIRST SET OF INTERROGATOR 1ES — PAGE 1 OF 17
Form CBD-183
12.8-16 Do s
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
b. Business and residence addresses,
c. Employer’s name and address,
d. Position or occupation, and
e. If a corporation, state of incorporation, and location
and address of principal headquarters.
2. When asked to identify a document, state:
a. Its title, or, if it has no title, its subject matter,
b. Its date,
c. The author or signatory;
d. The addressee(s), if any, and
e. The identities of all recipients of all contemporaneous
copies.
3. For each document identified or produced in response to an
interrogatory or a request for production, indicate in writing
(separately or on the document or in some other reasonable manner) the
number of the interrogatory(ies) or request(s) herein to which it
responds.
4. This request covers all documents in the possession, control
or custody of defendants Midland Water Association or Richard Abrahamson,
any of their employees, agents, servants, attorneys, or assigns.
5. If a document is withheld for the reason that such document
is not now within’the possession, custody or control of the defendants
(or any other person or entity identified pursuant to Instruction 4), (a)
identify the document, (b) state whether such document currently exists,
PLAINTIFF’S FIRST SET OF INTERROGATORIES — PAGE 2 OF 17
Form CBO-183
t28 16 DoJ
-------
1 and {c) identify the persons in whose possession, custody or control such
2 document (or a copy thereof) may be found.
3 6. If anything is deleted from a document produced in response
to the interrogatories and requests for production, then:
a. Identify the person who made the deletion, and
6 b. State the reason for the deletion, and
7 c. State the subject matter of the deletion.
8 7. Initial production of documents is requested to commence no
later than June 13, 1983. Absent future agreement, the place of
10 production shall be at the Office of the United States Attorney, 312
U. S. Courthouse, 620 S. W. Main Street, Portland, Oregon 97205, and the
12 time shall be at 11:00 a.m. on June 14, 1983. Undersigned counsel are
prepared to negotiate and agree to any prompt and reasonable system of
14 production procedures.
15 DEFINITIONS
16 As used herein, the following terms have the following
17 definitions:
18 1. °Person’ means any juridicial person, governmental agency,
19 political subdivision, public or private university or other institution
20 of higher learning, or any organization such as a partnership, group,
21 association, or committee.
2. Document 1 ’ means (a) the complete original writing (or a
23 complete copy when the original is not available) unless otherwise
24 stated, and (b) each non—identical copy (whether different from the
25 original because of notes made on the copy or otherwise) of such writing,
26
27
PLAINTIFF’S FIRST SET OF INTERROGATORIES - PAGE 3 OF 17
28
Form OBD-183
12-8-76 DOJ
-------
1 and (c) written materials of any kind and description (together with all
2 worksheets, back-up documents, and other similar materials) whether
inscribed by hand or mechanical means, and (d) magnetic, electronic,
4
nncrofilm, photographic, or other types of recordation (such as aural
recordings, film, video or coriiputertape, or other medium) from which
6
information may be obtained or retrieved.
7 3• “Relating to” means constituting, defining, containing,
8
embodying, reflecting, identifying, stating, referring to, dealing with
or in any way pertaining to.
10
11
INTERROGATORIES AND REQUESTS FOR ADMISSION
12
Interrogatory No. 1 : Describe the source, means of distribution
13
and treatment, if any, of the drinking water currently provided by the
14
Midland Water Association (‘ilidland”).
15
ANSWER :
16
17
18
19
20 -
Interrogatory No. 2 : Identify all the households and
21
individuals currently served by the Midland water system.
22
ANSWER :
23
24
25
26
27
28 PLAiNTIFF’S FIRST SET OF INTERROGATORIES - PAGE 4 OF 17
form OBD 183
2-8.76 DOJ
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1 ReQuest for Admission No. 1 : During each month from July, 1979
2 through the date of these Interrogatories and Requests (‘ the present”),
3 the Midland Water system has served at least twenty—five individuals.
4 ANSWER :
5
6
7
8
Interrogatory No. 3 : If your answer to Request for Admission
10 No. 1 is not a full and unqualified admission of the truth of that
11 statement, then:
12 a. List each month from July 1979 through the present in
13 which the Midland water system has served fewer than
14 twenty—five inthviduals.
15 ANSWER :
16
17
18
19
20 b. For each month listed in response to Interrogatory No.
21 3.a., state the name of each household, business and public
22 facility served by the Midland water system during that
23 month.
24 ANSWER :
25
26
27
28 PLAINTIFF’S FIRST SET OF INTERROG ATORIES - PAGE 5 OF 17
Form CBD•183
128-76 DOJ
-------
1
2 c. State the number of persons in each household arid the
3 number of persons present on a regular basis in each
4 business or public facility listed in response to
interrogatory No. 3.b.
6 ANSWER :
7
8
9
10
11 Reqpest for Admission No. 2 : During each month from July 1979
12 through the present, the Midland water system has provided water for
13 human consumption through at least fifteen service connections.
14 ANSWER :
15
16
17
18
19
20 Interrogatory No. 4 : If your Answer to Request for Admission
21 No. 2 is not a full and unqualified admission of the truth of that
22
statement, then:
23 a. List each month from July 1979 through the present in
24 which the Midland water system has provided water for human
25 consumption through fewer than fifteen service connections.
ANSWER :
27
28 PLAINTIFF’S FIRST SET OF INTERROGATORIES - PAGE 6 OF 17
Form 060 .183
12-8-76 noj
-------
1 b. For each month listed in response to Interrogatory No.
2 4.a., state the name of each household, business and public
3 facility served by the Midland water system during that
4 month.
5 ANSWER :
6
7
8
9
10 c. State the number of persons in each household and the
11 number of persons present on a regular basis in each
12 business or public facility listed in response to
13 Interrogatory No. 4.b.
14 ANSWER :
15
16
17
18
19 Interrogatory No. 5 : State each date from July 1, 1979 through
20 the present on which Midland had water samples analyzed to determine
21 levels of microbiological contaminants in the water supplied by the
22 Midland water system.
23 ANSWER :
24
25
26
27
28 PLAINTIFF’S FIRST SET OF INTERROGATORIES — PAGE 7 OF 17
Form OBD-183
12.8 76 DOJ
-------
1
2 ’ Int rrogatory No. 6 : State each date from July 1, 1979 through
3 the present on which Midland’ had water samples analyzed to determine
4 levels of turbidity in the water supplied by the Midland water system.
5 ANSWER :
6
7
8
9
10 Interrogatory No. 7 : State each date from July 1, 1979 through
11 the present on which Midland had water samples analyzed to determine
12 levels of inorganic chemical contaminants in the water provided by the
13 ’ Midland water system.
14 P NSWER :
15
16
17
18
19 jnterrogatory No. 8 : State each date from July 1, 1979 through
2O the present on which Midland had water samples analyzed to determine
21 levels of organic chemical contaminants in the water provided by the
22 Midland water system.
23 ANSWER :
24
25
26
27
28 PLAINTIFF’S FIRST SET OF INTERROGATORIES — PAGE 8 OF 17
orm CBO-183
l2-8 76 DOJ
-------
1
2 Interrogatory No. 9 : For each date listed in response to
3 Interrogatory Nos. 5, 6, 7 and 8;
4 a. Identify the person(s) who performed such analysis.
5 ANSWER :
6
7
8,
9
.10 b. Specify the analytical method used in performing such
11 analysis.
i2 ANSWER :
.13
14
15
i6
17 c. Identify the person(s) and the amount paid by Midland
18 for each analysis.
19 ANSWER :
20
21
.22
23
24 Interrogatory No. 10 : State each date from July 1, 1979 through
25 the present on which Midland submitted to the United States Environmental
26
27
28 PLAINTIFF’S FIRST SET OF INTERROGATORIES — PACE 9 OF 17
Form OBD.183
12-8.76 DOJ
-------
1 Protection Agency (‘ EPA”) any reports of microbiological, turbidity,
Z inorganic chemical or organic chemical analyses performed upon water
3 samples from the Midland water system.
4 ANSWER :
5
6
7
8
9 Interrogatory No. 11 : For each date listed in response to
10 Interrogatory No. 10;
a. Specify the type of report submitted.
12 ANSWER :
13
14
15
16
17 b. Identify the person(s) who submitted the report on
18 behalf of Midland and the person(s) and office(s) at EPA to
19 which the report was submitted.
20 ANS 4ER :
21
22
23
24
25
26
27
28 P LAINTIFF’S FIRST SET OF INTERROGATORIES - PAGE 10 OF 17
Form oeD.183
12-8-76 DOJ
-------
1 Request for Admission No. 3 : For the months of June 1982 and
2 September 1982, the drinking water supplied by the Midland water system
3 contained co liforrn bacteria in amounts exceeding the maximum contaminant
4 level set by 40 C.F.R. §141.14.
5 ANSWER :
6
7
8
9
10 Interrogatory No. 12 : If your response to Request for Admission
No. 3 is not a full and unqualified admission of the truth of that
12 statement, specify all the facts in support of your contention that
13 violations of the maximum contaminant level for coliform bacteria did not
14 occur in June 1982 and September 1982.
15 ANSWER :
16
17
18
19
20 interrogatory No. 13 : State all the dates from July 1, 1979
21 through the present on which Midland Water Association notified the users
22 of the Midland water system in writing (1) that the water supplied by the
23 water system exceeded maximum contaminant levels for coliform bacteria,
24 or (2) that Midland hac failed to conduct required monitoring for
25 turbidity, microbiological contaminants, or inorganic or organic chemical
26 contaminants.
27
28 PLAINTIFF’S FIRST SET OF INTERROGATORIES - PAGE Il OF 17
Form OBD *83
12 8-76 DOJ
-------
1 ANSWER :
2
4
5
6 Interrogatory No. 14 : For each date listed in response to
Interrogatory No. 13;
8 a. Specify the type of written notice given.
9 ANSWER :
10
11
12
13
14 b. Ident ify each person to whom such written notice was
given.
16 ANSWER :
17
18
19
20
21 Interrogatory No. 15 : Describe the organizational structure and
22 means of governance of the Midland Water Association.
23 - ANSWER :
24
25
26
27
28 PLAINTIFF’S FIRST SET OF INTERROGATORIES — PAGE 12 OF 17
Form OBD-183
12-8-76 DOJ
-------
1
Interrogatory No. 16 : Identify all persons who have served as
officials or managers of the Midland Water Association at any time from
4 July 1, 1979 to the present.
E5 ANSWER :
6
7
8
9
10 Interrogatory No. 17 : State the duties and dates of tenure of
11 each person listed in response to Interrogatory No. 16.
12 ANSWER :
13
14
15
16
17 Interrogatory No. 18 : State the current address of defendant
18 Richard Abrahamson.
ANSWER :
20
21
.22
23
24 Interrogatory No. 19 : Identify the current employer(s), if any,
25 of defendant Richard Abrahamsori.
26
. 27
.28 :PLAtNTIFF’S FIRST SET OF INTERROGATORIES - PAGE 13 OF 17
Form OBD-183
12-8-76 rioJ
-------
1 ANSWER :
2
3
4
5
6 Interrog tory No. 20 : Specify all positions, duties of such
7 positions and dates of such positions held by defendant Richard
8 Abrahanson in the Midland Water Association from July 1, 1979 through the
present.
10 ANSWER :
11
12
13
14
15 Interrogatory No. 21 : Identify all documents presently or to be
16 produced in response to the following Requests for Production of
17 Documents.
18 ANSWER :
19
20
21
22
23 REQUESTS FOR PRODUCTION OF DOCUMENTS
24 1. Produce all articles of association, agreements, rules,
25 by—laws, and other documents relating to the organizational structure of
26 the Midland Water Association.
27
28 PLAINTIFF’S FIRST SET OF INTERROGATOR 1ES — PAGE 14 OF 17
Form 080-183
12-8-76 P0 .1
-------
1 2. Produce all rosters, account books, membership lists and
2 other documents relating to the membership of the Midland Water
3 Association during the period from July 1, 1979 to the present.
4 3. Produce all minutes, records and other documents relating to
5 the events of any meetings of the Midland Water Association or any
6 committee or group thereof at which the requirements of the Safe Drinking
7 Water Act were discussed.
8 4. ..Produce all documents, relatin9 to the election, appointment,
9 offer, acceptance, and resignation or termination of defendant Richard
10 Abrahamson (“Mr. Abrahanison”) to any official or managerial position in
the Midland Water Association.
12 5. Produce all sample receipts, analytical reports, invoices,
13 cancelled checks, and other documents relating to any analyses performed
14 by any person to determine levels of microbiological contaminants in the
15 drinking water provided by the Midland water system.
16 6. Produce all sample receipts, analytical reports, invoices,
17 cancelled checks and other documents relating to any analyses performed
by any person to determine levels of turbidity in the drinking water
provided by the Midland water system.
20 7. Produce all sample receipts, analytical reports, invoices,
21 cancelled checks and other documents relating to any analyses performed
22 by any person to determine levels of inorganic chemical or organic
23 chemical contaminants in the drinking water provided by the Midland water
24 system.
25
26
27
28 PLAINTIFF’S FIRST SET OF INTERROGATORIES — PAGE 15 OF 17
Form OBO 83
12 8-76 DOJ
-------
1 8. Produce all letters, forms and other documents relating to
2 written reports submitted by Mr. Abrahainson or the Midland Water
3 Association to the U. S. Environmental Protection Agency stating the
results of analyses of the drinking water provided by the Midland water
system.
6 9. Produce all posted notices, newspaper notices and other
7 documents relating to written notifications made by Mr. Abrahamson or the
8 Midland Water Association to persons served by Midland concerning
defendants’ violation of maximum contaminant levels for coliforrn
10 bacteria, or concerning defendants’ failure to have water quality tests
11 performed.
12 10. Produce all letters, postcards and other documents relating
13 to written notices of any kind received by Mr. (or Mrs.) Abrahamson or
14 the Midland Water Association from the U. S. Environmental Protection
15 Agency from January 1, 1979 through the present.
16 11. Produce all memoranda and other documents relating to
17 telephone conversations or other verbal communications taking place from
18 January 1, 1979 through the present between Mr. (or Mrs.) Abrahamson and
19 employees of the U. S. Environmental Protection Agency.
20 12. Produce all account books, membership lists and other
21 documents relating to the number of households, businesses and
22 individuals served by Midland during each of the months specified in
23 response to Interogatory Nos. 3.a. and 4.a.
24
25
26
27
28 PLAINTIFF’S FIRST SET OF INTERROGATORIES — PAGE 16 OF 17
Form OBD-183
12-8-76 DOJ
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1 DATED this S’ti day of May, 1983.
2 CHARLES H. TURNER
United States Attorney
3
THOMAS C. LEE
4 Assistant United States Attorney
By: ) ‘,4 //4. /A ;4
7 Special Assistant United States
Attorney
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 PLAINTIFF’S FIRST SET OF INTERROGATORIES — PAGE 17 OF U
Form OBO. R3
12 8-76 DO)
-------
Ted E. Grove
Lucas, Petersen & Huffman
P. 0. Box 288
Clatskanie, Oregon 97016—0288
(503) 728—2662
Attorneys for Defendant
IN THE UNITED STATES
FOR THE DISTRICT
UNITED STATES OF AMERICA,
Plaintiff,
V.
MIDLAND WATER ASSOCIATION and
RICHARD ABRAHAMSON,
Defendants.
ANSNFR TO PLAINTIFF’s FJRST
SET OF INTERPOGATORIES,
REOUEST FOR J’DMISSION AND
RFQUFSTS FOR PPODUCTION OF
DOCUMENTS.
DISTRICT COURT
OF OREGON
Civil No. 23—32
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Page
of enclosed Water Source
Interrogatory No. 1:
Answer: see pages 3 to 10
Analysis.
Interrogatory No. 2:
Answer: See enclosed membership list.
Request for Admission No. 1:
Answer: Yes.
Request for Admissions No. 2:
Answer: Yes.
Interrogatory No. 5:
Answer: See attached testing data.
1 — Answer to Plaintiff’s First Set
of Interrogatories, Request for
Admission and Request for Produc- - -
tion of Documents
LUCA8. PETE 6 Pd £ HUFFNAN
ArTO EVS AT LAW
P0 BOX 288
Attachment 2
-------
1 Interrogatory No. 6 :
2 Answer: See attached testing data.
3 Interrogatory No. 7 :
Answer: None
5 Interrogatory No. 8 :
6 Answer: None
7 Interrogatory No. 9 :
8 Answer: Turbidity saniples were taken by Frnie Raappana,
City of Clatskanie Superintendent, at no cost to Midland.
10 Turbidity meter was used for analysis.
11 Microbiological contaminents were performed by tIater,
12 Food and Research Laboratories, Inc., Portland, Oreqori. Five
13 tube test used for analysis.
14 Interrogatory No. 10 :
15 Answer: EPA has been provided all information of tests
16 noted in Interrogatory 5 and 6.
17 Interrogatory No. 11 :
18 Answer: Microbiological and turbidity tests forwarded
19 to David Heinick by Ted E. Grove, attorney for Midliand.
20 Request for Admission No. 3 :
21 Answer: Midland was notified by the EPA that water samples
22 taken on June 22, 23, 24 and 25, 1982, were in excess of allow—
23 able standards for bacteria. Midland took no independent
24 tests in June or September of 1982.
25 Interrogatory No. 12 :
26 Answer: No samples were taken.
Page 2 — Answer to Plaintiff’,s First Set of
Interrogatories, Reauest for Admission
and Request for Production of Documents
-------
1 Interrogatory No. 13 :
2 Answer: Se.e attached notices of Midland Water Association.
3 Interrogatory No. 14 :
4 (a) Answer: See Interrogatory No. 13.
5 (b) Answer: All persons listed in Interrogatory Nc. 2.
6 Interrogatory No. 15 :
7 Answer: See attached by-laws of Midland Water Association.
8 Interrogatory No. 16 :
9 Answer: Board of Directors - 1982
Wallace Overlund
10 Peter Kynsi
Walter Multanen
11 Richard Abrahamson (Chairman)
12 Board of Directors — 1983
Wallace Overlund (Chairman)
13 Peter Kynsi
Jack Hovden
14 Walter Multanen (Resigned)
James Davis (Fill-in Board Member)
15 Richard Chevron
Chris Nielsen
16
Interrogato yNo. 17
17
Answer: See Interrogatory No. 16.
18
Interrogatory No. 18 :
19
Answer: Route 2 Box 2434
20 Clatskanie, Oregon 97016
21 Interrogatory No. 19 :
22 Answer: None
23 Interrogatory No. 20 :
24 Answer: Chairman of Board of Directors, Midland Water
25 Association — 1982.
26
Page 3 — Answer to Plaintiff t s First Set of
Interrogatories, Reauest for Admission
and Reouest for Production of Documents
-------
1 Interrogatory No. 21 :
2 Answers: (1) Articles ‘of Association and By-Laws -
3 (2) Membership list
4 (3)
5 (4)
6 (5) Sample receipts, analytical reports
(6) Analytical reports
S (7)
9 Dated this 15th day of June, 1983.
10 LUCAS, PETFRSEN & HUFFMAN
11
12 By______________________________
Ted E. Grove OSB #80046
13 Of Attorneys for Defendants
14
15
l’6
17
18
19
20
21
22
23
24
25
26
Page 4 — Answer to Plaintiff’s First Set of
Interrogatories, Request for Admission
and Request for Production of Documents
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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27
28
CHARLES H. TURNER
United States P 1 ttorney
THOMAS C. LEE
Assistant United States Attorney
312 U. S. Courthouse
620 S. W. Main Street
Portland, Oregon 97205
Telephone: (503) 221—2101
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
)
Plaintiff, ) Civil No. 83—1661
vs. ) NOTICE OF TAKING DEPOSITION
) DUCES TECUM
RICHARD PARINEY and MARIANNE PARTNEY,
a married couple, d/b/a PARTNEY
MOBILE HOME PARK, an unincorporated
association, )
Defendants. )
To: Robert W. Collins, Esq. William J. Bridges & Assoc.
Collins & Collins Court Reporters
P. 0. Box 1457 P. 0. Box 223
Pendleton, Oregon 97801 Pendleton, Oregon 97801
PLEASE TAKE NOTICE that the attorney for the United States will
take the oral deposition of the following named individuals at the time
and place noted below:
Mr. Richard Partney February 22, 1984 9:00 a.m.
Mrs. Richard Partney February 22, 1984 11:00 a.m.
Depositions will be held in the jury room of the United States
District Court, located in the Post Office Building in Pendleton, Oregon,
NOTICE OF TAKING DEPOSITION DUCES TECUM - PAGE ONE OF TWO
Form OBD-183
12-8-76 DOJ
-------
1
2 before a court reporter qualified to administer oaths. The deponents are
requested to bring with them all documents that respond to the plaintiff’s
January 11, 1984 Requests for the Prodcution of Documents.
5
6 DATED this fl day of February, 1984.
8 CHARLES H. TURNER
United States Attorney
10 THOMAS C. LEE
Assistant United States Attorney
11
12 By: L / L
13 1’ VID M. HEINECK
Special Assistant United States
14 Attorney
15
16
17
18
19
20
21
22
23
24
25
26
27
28 NOTICE OF TAKING DEPOSITION DUCES TECUM - PAGE TWO OF TWO
Form OBD-183
12-8-76 DOJ
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1
1
2
3 CERTIFICATE OF SERVICE
4
5
UNITED STATES OF AMERICA )
6 )
v. ) Civil No. 83—1661
7 )
RICHARD AND MARIANNE PARTNEY
8 _________________
The undersigned hereby certifies that she is an employee in the
10 Region 10 Office of the U. S. Environmental Protection Agency, Seattle,
11 Washington, and that on the date shown below she mailed the attached
12 Notice of Deposition Duces Tecum by first—class mail, postage prepaid, to:
13 Robert W. Collins, Esq.
Collins & Collins
14 p. 0. Box 1457
Pendleton, Oregon 97801
15
16 /
Date: / 6 /,9é /
17
18
tc. -$--
19 Marian L. Atkinson
20
21
22
23
24
25
26
27
28 NOT C C
Form OBD-183
12-8-76 DOJ
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SUMMARY JUDGMENT MOTION
-------
IL
1 CHARLES H. TURNER
United States Attorney
2 THOMAS C. LEE
Assistant United States Attorney
3 312 U. S.Courthouse
620 S. W. Main Street
4 Portland, Oregon 97205
Telephone: (503) 221-2101
5
Attorneys for Plaintiff
6
7
8
IN ThE UNITED STATES DISTRICT COURT
g FOR THE DISTRICT OF OREGON
10 UNITED STATES OF AMERICA, )
)
11 Plaintiff, ) Civil No. 83-32
)
12 vs. ) MOTION FOR
) SUM ARY JUDGt ENT
13 MIDLAND WATER ASSOCIATION and )
RICHARD ABRAHAMSON, )
14 )
Defendants. )
15 _______________________________________)
16 Plaintiff, United States of America, pursuant to Rule 56(c) and
17 (d) of the Federal Rules of Civil Proceaure, hereby moves the Court for
18 summary judgment declaring that defendants as a matter of law have
19 committed violations of the Safe Drinking Water Act, and imposing
20 monetary civil penalties for such violations. In the alternative, if
21 this matter is not fully adjudicated on this motion, the United States
22 moves for an order pursuant to Rule 56(d) specifying those facts that are
23 not in genuine dispute.
24 This motion is based upon the Complaint; defenoants’ responses
25 to interrogatories, requests for admission and requests for the
26
27
28 MOTION FOR SUr NARY JUDGMENT PAGE 1 OF 2
Focm OBO-183
2-8-?6 fb i
-------
1 production of documents; the Pretrial Order that was loaged with this
2 court on October 6, 1983; the Affidavit and Certificate of Absence of
3 Public Record of ). Larry Worley filed with this motion; and plaintiff’s
4 Memorandum in Support of Summary Judgment filed herewith.
5
6 Respectfully submitted this 25 day of October, 1983.
7 CHARLES H. TURNER
United States Attorney
8
THONAS C. LEE
9 Assistant United States Attorney
ID N. HEINECK
12 Special Assistant United States
Attorney
13
14
15
16
17
18
19
)
21
22
23
24
25
26
27
28 MOTION FOR SUMMARY JUDGtIENT PAGE 2 OF 2
Form OBD-183
2-S-76 DOJ
-------
1 CHARLES H. TURNER
United States Attorney
2 THOMAS C. LEE
Assistant United States Attorney
312 U. S. Courthouse
620 S. W. Main Street
4 Portland, Oregon 97205
Telephone: (503) 221-2101
5
Attorneys for Plaintiff
6
7
8
IN THE UNITED STATES DISTRIC1 COURT
9 FOR THE DISTRICT OF OREGON
10 UNITED STATES OF AMERICA,
11 Plaintiff, ) Civil No. 83-32
12 vs. ) MEMORANDUM IN SUPPORT OF
MOTION FÜR SUMNARY JUDGMENT
13 MIDLAND WATER ASSOCIATION and
RICHARD ABRAHAMSON,
14
Defendants.
15 _________________________________________
16 I. INTRODUCTION
17 Plaintiff, the United States of America, has moved pursuant to Rule
18 56(c) and (d) of the Federal Rules of Civil Procedure for summary judgment as
19 to defendants’ liability for numerous violations of the Safe Drinking Water
20 Act (hereinafter “SDWA”), 42 U.S.C. §300f et! ., and the regulations
21 promulgated thereunder at 40 C.F.R. Part 141. Plaintiff submits that summary
22 judgment on liability is appropriate because the material facts which, as a
23 matter of law, determine the defendants’ liability for 1,520 separate
24 violations of the SDWA and regulations are not now subject to any genuine
25 dispute. Plaintiff further submits that there are no material issues of fact
26 in genuine dispute concerning defendants’ violations of the SDWA and the
27 regulations which would prevent the assessment at this time of appropriate
28 civil penalties.
Form 080.183 MEMORANDUM IN SUPPORT OF NOTION FOR SUMMARY JUDGMENT PAGE 1 OF 19
12-8.76 DOJ
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1 II. STATEMENT OF MATERIAL FACTS NOT IN DISPUTE
2 Examination of the Complaint, defendants’ responses to
3 Interrogatories, Requests for Admission and Requests for Production of
Documents 1/, the proposed Pretrial Order that was lodgeci with the court on
5 October 6, 1983, and the Affidavit and Certificate of J. Larry Worley filed in
6 support of this motion show that there is no genuine issue as to any of the
7 following material facts:
8 1. Pt all times from July 1, 1979 through the present, the t’iidlana
9 Water Association (“Midland”), a cooperative association having its principal
10 place of business in Clatskanie, Oregon, has provided drinking water for hunan
11 consumption to at least 25-year-round residents through at least 15 service
12 connections. The Midland water system is thus a “public water system”
13 pursuant to Section 1401(4) of the SDWA [ 42 U.S.C. §300f(4)], and a “community
14 water system” as defined at 40 C.F.R. §141.2(e)(i). 2/ Midland hac corporate
15 status, as a cooperative corporation under Oregon law, from December 27, 1929
16 through December 27, 1979. 3/
17 2. Defendant Richard Abrahamson, a resident of the State of Cregon,
18 was chairman of the Board of Directors of the Midland Water Association at all
19 times from July 1, 1979 through December, 1982. 4/ Pursuant to the By-Laws of
20 the Association, during his tenure as chairman Mr. Abrahamson had the power to
21
22
23 1/ Consideration of such responses is proper under Federal Rule of Civil
Procedure 56(c). See also, Cordas v. Specialty Restaurants, Inc. , 470
24 F.Supp.760 (D.C. O l979).
2/ Defendants’ responses to Requests for Admission Nos. 1 and 2; Pretrial
25 Urder, paragraph C.1.
3/ Pretrial Order, paragraph C.l.
26 I Defendants’ responses to Interrogatories Nos. 16, 18 and 20.
27
28 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 2 OF 19
Form OBO-183
12 8-76 DOJ
-------
1 exercise management and control over the Midland water system. 5/
2 3. At all times relevant to this action, the regulations required
defendants to sample and analyze at least once per month to determine levels
of jiiicrobiological contaminants in the drinking water supplied by Midland. 40
C.F.R. §141.21. 6/
6 4. Defendants dia not sample and analyze for microbiological
contamin6nts at the Midland system for any month from August, 1979 through
8 December, 1982. 7/
5. Following the filing of this action on January 7, 1983, defendant
10 Midland Water Association commenced monthly sampling and analysis for
11 microbiological contaminants. Samples from the Midland system have been
12 analyzed, and the results reported to EPA, each month from January 1983
13 through the date of lodging of this Pretrial Order. 8/
14 6. On June 22, 23, 24 and 25, 1982, EPA collected eight water
15 samples from the Midland water system. Analysis of these water samples, using
16 the membrane filter technique, showed an average level of 33 bacteria per 100
17
ml of water. 9/
18
7. In June 1982, when EPA conducted the water analyses described in
19
paragraph 7 supra , compliance with the microbiological standard at Midland was
20
21 5/ Articles and By-Laws of Mialand Water Association, proauced by defendants
in response to Request for Production of Documents No. 1; Pretrial Order,
22 paragraph C.2.
6/ Pffidavit ana Certificate of J. Larry Worley, paragraph 3; Pretrial Order,
23 aragraph C.5.
7/ Defendants’ responses to Interrogatory No. 5 and Request for Production of
24 Uocuments No. 5; Pretrial Order, paragraph C.6.
8/ Affidavit and Certificate of J. Larry Worley, paragraph 6.A; Pretrial
25 order, paragraph C.7.
9/ Affidavit and Certificate of William A. Mullen, paragraph 6.E; Pretrial
26 Order, paragraph E.1.
27
28 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 3 OF 19
Form OBD.183
12.8.76 DOJ
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1 based on the results of all analyses taken during a calendar quarter. 40
2 C.F.R. §141.14(c). ]O/
3 8. Neither EPA nor the defendants 11/ conducted any microbiological
4 analyses other than those described in paragraph 6 supra in the three-month
5 period of April-June, 1982.
6 9. On September 16, 1982, EPA Region 10 issued an administrative
7 Notice of Violation to defendants. In that Notice of Violation, EPA advised
8 defendants to take immediate action to alleviate the water contamination, and
9 EPA shortened the period from three months for one month for determining
10 compliance with the microbiological MCL. 12/
11 10. On September 28, 1982, EPA collected four water samples from the
12 Midland system. No other samples were taken by EPA or defendants in that
13 month. The four samples showed an average level of 9 bacteria per 100 ml. 13/
14 11. For each month from January 1983 through September 1983, except
15 for the month of June, 1983, the analytical results that have been submitted
16 by Midland have shown the presence of coliform bacteria in excess of the
17 maximum contaminant level set by 40 C.F.R. §141.14. 14/
18 12. The Midland water system utilizes a surface water source.
Accordingly, defendants at all relevant times have been required to take daily
20 turbidity measurements of the water supplied at Midland. 40 C.F.R. €141.22.
21 Public water systems utilizing surface water sources, such as that operated by
22 defencants, were also required to sample and analyze for inorganic chemical
23 contaminants by June 24, 1978, and to repeat such inorganics tests once per
24
10/ Pretrial Order, paragraphs C.3 and C.4.
25 11/ Defendants’ response to Interrogatory No. 5.
26 12/ Affidavit and Certificate of J. Larry Worley, paragraph 6.E.; Pretrial
Order, paragraph C.4.
27 13/ Affidavit and Certificate of 3. Larry Worley, paragraph 6.E.
T47 Pretrial Order, paragraph C.8.
28
MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 4 OF 19
Form OBD.1a3
12-8-76 DOJ
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1 y ar thereafter. 4O C.F.R §141.23(a)(1). Systems having surface water
2 sàurces such as Midland were also required to complete tests for organic
3 chemical contaminants by June 24, 1978, and ai e ré (iiredto repeat such
analyses at three-year intervals thereafter. 40 C.F.R. §141.24. 15/
13. Defendants made no measurements of th turbidity of the water
6 supplied by Midland from August 1, 1979 through January 31, 1983. 16/
7 14. From February 1, 1983 through September 30, 1983, defendants
8 failed to take turbidity measurements on 20 days in February, 11 days in
March, 9 days in April, 10 days in Nay, 8 days in June, 31 days in July, 9
10 days in August, and 10 days in September, 1983 or, alternatively, have not
11 reported to EPA the results of such turbidity measurements as requirea by 40
12 C.F.R. §141.31(a). 17/
13
15. Defendants aid not conduct any analyses to determine levels of
14 inorganic chemicals in the water supplied by Midland from August 1, 1979,
15
through September 30, 1983. 18/
16 - 16. Defendants did not conduct any analyses to determine amounts of
17 organic chemical contaminants in the ater provided at Midland from August 1,
18 1979 through September 30, 1963. 19/
19
17. Defendants did not notify the U. S. Environmental Protection
20 Agency of any of their failures to perform monitoring for turbidity or for
21
22 T5/ Pretrial Order, paragraph C.9.
16/ Defendants’ response to Interrogatory No. 6; Pretrial Order, paragraph
23
17/ Affidavit and Certificate of J. Larry Worley, paragraph 6.8.; Pretrial
24 Order, paragraph C.ll.
18/ Defendants’ responses to Interrogatory No. 7 and Request for Production
25 of Documents No. 7; Pretrial Order, paragraph C.l2.
19/ Defendants’ responses to Interrogatory No. 8 and Request for Production
26 of Documents No. 8; Pretrial Order, paragraph C.13.
27
28 MEMORANDUM iN SUPPORT OF NOTION FOR SUMMARY JUOChENT PAGE 5 OF 19
Form 080 183
12.&76 DOi
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1 microbiological, inorganic and organic chemical contaminants at the Midland
2 system. 20/
3 18. On January 27, 1983, Midland Water Association notified the
4 public that tests conducted in that month had disclosed that coliform bacteria
5 were present in amounts exceeding the microbiological MCL. A similar public
6 notice, indicating an exceedance of the microbiological MCL for February 1983,
was given by Midland on February 28, 1983. Defendants did not notify the
8 persons served by the Midland water system in writing on any other
9 occasionfrom August 1, 1979 through September 30, 1983 that the drinking water
10 contained coliform bacteria in amounts exceeding the microbiological NCL, or
11 that required microbiological, turbidity, inorganic or organic chemical
12 analyses had not been done. 21/
13 19. Prior to the January 7, 1983 filing of the Complaint in this
14 action, EPA notified defendants on a number of occasions of the various
15 requirements of the SDWA and the regulations. Such notice included letters,
16 postcards, telephone calls and site visits to Midland by EPA personnel. 22/
17 III. ARGUMENT
18 A. There is no genuine issue of material fact as to whether
defendants violated the SDt A and regulations .
19
Section 1414(b) of the Safe Drinking Water Act, 42 U.S.C. §300g-3(b),
20
states that the Administrator [ of EPA] “may bring a civil action in the
21
22 20/ Affidavit and Certificate of J. Larry Worley, paragraph 6.F; defendants’
responses to Requests for Production of Documents Nos. 5, 6 and 7.
23 21/ Defendants’ responses to Interrogatory No. 13 and Request for Production
of Documents No. 9; Affidavit and Certificate of J. Larry Worley, paragraph
24 6.0.
22/ See Affidavit and Certificate of J. Larry Worley, paragraph 7, for a
25 listing of the dates and types of notice EPA made to defendants.
26
27
28 MEMORANDUM IN SUPPORT CF MOTION FOR SUMMARY JUDGMENT PAGE 6 OF 19
Form C’BD-183
12.8-76 DOJ
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1 appropriate United States district court to’ require compliance with a.national
-primary-drinking wa er regulation • • .“ 23/
3 The National Interim Primary Drinking Water Regulations (“the
4 egulatthns”) ‘are ‘c6dified at 40 C.F.R . P rt i4l and in relev nt part became
5 ‘effective on June 24, 1977. 24/ The regulations inter alia set maximum
6 ‘contaminant levels for coliform bacteria, and require suppliers of water to
7 periodically sample and test for contaminants, and report to EPA the results
8 L fsuch tests. If required sampling is not done, water suppliers must notify
9 EPA of that fact. Suppliers must also give written notice to the persons
10 -served by their water system, and to the general public, if contaminant levels
11 have been exceeded or if required monitoring has not been done and the safety
12 of thé drTnking water ãc ord ingly cannot be assured.
13 1. Defendants are subject to the SDWA and the regulations .
14 Section 1401(4) of the SOWA [ 42 U.S.C. §300f(4)] states:
15 (LI) The term “public water system” means a system for the provision
- - of piped water for human consumption, if such system has at least
16 fifteen service connections or regularly serves-at least twenty-five
individuals.
17
18 “Public water systems” are made subject to the 40 C.F.R. Part 141 regulations
19 by Section 1411 of the SDWA (42 U.S.C. §300g). -
20
23/ 42 U.S.C. §300g(b) further states:
21 The court may enter, in an action brought under this subsection, such
judgment as protection of public health may require, taking into
22 consideration the times necessary to comply and the availability of
alternative water supplies; and, if the court deems that there has
23 been a willful violation of the regulation or schedule or other
requirement with respect to which the action was brought, the court
24 may, taking into account the seriousness of the violation, the
population at risk, and other appropriate factors, impose on the
25 violator a civil penalty of not to exceed $5,000 for each aay in
which such violation occurs.
6 24/ See 40 C.F.R. §141.6(a).
27
28 NEI -IORANDUM IN SUPPORT OF NOTION FOR SUMNARY JUDGMENT PAGE 7 OF 19
Form OBD .183
12.8-76 fbi
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1 Defendants’ responses to Requests for Admission Nos. 1 and 2,
2 admitting that Midland has served at least twenty-five individuals through at
least 15 service connections since July, 1979, squarely establishes that
Midland has been a “public water system” at all times relevant to this
action. Defendant Richard Abrahamson, while chairman of the Board of
6 Directors of the Association, was clearly an operator of the Midland system
and was therefore a “supplier of water” as defined in Section 1401(5) of the
8 Act [ 42 U.S.C. §300f(5)].
There can be no genuine issue that defendants at all relevant times
10
have been subject to the SDWA and have committed 1,520 violations of the
11 regulatory requirements described above.
12 2. Defendants have violated the 40 C.F.R. §141.14 Maximum
13 Contaminant Level for coliform bacteria on 10 occasions .
14 Paragraph C.8 of the Pretrial Order and paragraph 6.E. of the
15 Affidavit and Certificate of J. Larry Worley establish that defenoant Miclanc
16 Water Association has violated the 40 C.F.R. §141.14 maximum contaminant level
17 (“MCL”) for coliform bacteria for each month from January through September,
18 1983, with the exception of June 1983. This establishes eight uncontroverted
19 MCL violations.
20 The Affidavit and Certificate of 3. Larry Worley at paragraph 6.E.,
21 also describes two additional MCL violations at Midland, occurring in 1982.
22 One violation was determined as the result of EPA monitoring at Midland on
23 June 22, 23, 24 and 25, 1982. As described in Mr. Worley’s affidavit,
24 laboratory analysis of eight water samples taken at that time showec an
25 average level of 33 coliform bacteria/100 ml. This is far in excess of the 1
26 bacteria/100 ml microbiological MCL set by 40 C.F.R. §141.14. These results
27 clearly demonstrate a violation for the calendar quarter of April through
28
MEMORANDUM EN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 8 OF 19
Form OBD-183
12-8-76 DOJ
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June, 1982: neither EPA nor Midland conducted any other microbiological
analyses during that period.
1 A further MCL violation occurred for the month of September, 1982.
2 Analysis of four water samples obtained by EPA on September 28, 1982 showed an
average of 9 coliform bacteria/lOO ml of water, as described in paragraph 6.E.
of Mr. Worley’s affidavit. The normal three—month period for determining
compliance with the microbiological MCL at Midland had been shortened from one
6 month, pursuant to 40 C,F.R. §141.14(c), by EPA s September 16, 1982 Notice of
Violation.- No other microbiological monitoring was conducted in September,
8 1982. The results of EPA’s September 28, 1982 sampling thus establish an NCL
violation at Midland for that month.
10 -The undisputed facts thus show a total of ten violations of the
11 microbiological MCL at Midland from July, 1979 through September, 1983.
12 3. Defendants have violated the 40 C.F.R. §141.21 monitoring
13 regu - rements for coliforrr bacteria on 41 occasions .
14 Public water systems that serve between 25 and 1,000 persons - - such
15 as l id1and — - are required to sample and analyze for colifcrm bacteria in
16 their water system at least once per month. 40 C.F.R. §141.21(b). The
17 undisputed facts show that defendants did not carry out a single
18 microbiological test from August 1, 1979 (the first full month following July
19 27, 1979, the date on which EPA first notified defendant Mr. Abrahamson in
20 writing of the requirements of the Safe Drinking Water Act 251) through
21 December, 1982. The 41 months during this period in which microbiological
22 samples were not taken constitutes 41 of violations of the Safe Drinking Water
23 Act.
24 4. Defenoants have violated the 40 C.F.R. §141.23 monitoring
requirements for turbidity on 1,388 occasions .
25
Water systems that utilize a surface water source, such as Midland,
26
are required to take turbidity measurements at least once per day. 40 C.F.R.
27
28 f See Affidavit and Certificate of J. Larry Worley, paragraph 7.A.
MEMORANDUt1 IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 9 OF 19
Form 0B0- 83
12 8-76 DOJ
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1 §141.22(a). The uncontroverted facts show that defendants conducted no
2 turbidity tests from August 1, 1979 through January 31, 1983, and in addition
3 failed to conduct such tests on 108 days from February 1, 1983 through
September 30, 1983. 26/ This comprises a total of 1,388 violations of the
turbidity monitoring requirement.
6 5. Defendants have violated the 40 C.F.R. §141.23 monitoring
requirements for inorganic chemicals on 5 occasions .
8 The fact that Midland utlizes a surface water source also required it
to conduct an inorganic chemical analysis within one year of the effective
date of the drinking water regulations, and to repeat such analyses once per
year thereafter. 40 C.F,R. §14l.23(a)(l). The regulations came into effect
12 on June 24, 1977. 40 C.F.R. §141.6. An initial test was thus required by
13 June 24, 1978, and follow-up tests were required in 1979, 1980, 1981, 1982 and
14 1983.
15 EPA first notified defendants in writing of this and other
16 requirements of the Act by letter dated July 26, 1979. 27/ At that point
17 defendants should have immediately tested for inorganic contaminants, to
18 correct their earlier failures to conduct such tests. Nevertheless,
19 defendants failed to correct their past violations, and furthermore repeated
20 their violation of the requirement to test for inorganic chemical contaminants
21 in each subsequent year. From 1979 through 1983, therefore, defencants
22 violated this monitoring requirement on 5 occasions.
23 6. Defendants have violated the dO C.F.R. §141.24 monitoring
requirements for organic chemicals on 2 occasions .
24 The drinking water regulations required public water systems that
25 utilize surface water sources to analyze for organic chemical contaminants
26 within one year of the effective date of the regulations, or by June 24, 1978,
27
28 26/ See paragraph 5. 3. of Affidavit and Certificate of J. Larry Worley.
27/ See Affidavit and Certificate of J. Larry Worley, paragraph 7.B.
Form OBD -183 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 10 OF 19
12.8-76 DOJ
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1 and to repeat such analyses at least once every three years thereafter, or by
2 June 24, 1981. 40 ã.F.R. § 14l.2l(a)(l) and 141.6.
3 It is uncontroverted that defendants performed no such organic analyses from
4 July 1, 1979 through September 30, 1983.
5 As described in paragraph 7.8. of Mr. Worley’s affioavit, EPA in its
6 initial July 26, 1979 letter to the defendants notified them that they should
7 promptly carry out the organics analysis that had been required of them by
8 June 24, 1978. Defendants’ failure to monitor for organic chemical
9 contaminants promptly after the July, 1979 notice, and defendants’ failure to
10 conduct an additional organics analysis by June 24, 1981 establish an
11 additional two uncontested violations of the Safe Drinking Water Act.
12 7. On 50 occasions defendants did not notify EPA as required by 40
13 C.F.R. §141.31(b) that sampling hac not been done .
14 Defendants were required to notify EPA within forty-eight hours of
15 each of their failures to sample for coliform bacteria, turbidity, ana organic
16 and inorganic chemicals at the Midland system. 40 C.F.R. §141.31(b).
17 Defendants failed to take required samples during each of the 50
18 months from August, 1979 through September, 1983. Turbidity measurements were
19 not made during part or all of each such month; no bacterial analyses were
20 conducted for 41 of the months; in some of the months required organic and
21 inorganic tests were not made. Defendants (lid not notify EPA at any time of
22 such monitoring violations. Since notice to EPA was required after each month
23 in which any required sampling was not done, this constitutes an additional SC
24 SDWA violations.
25 This lack of notice to EPA not only violates specific regulatory
26 requirements, but also undermines the statutory scheme of self-monitoring and
27 reporting that is basic to the operation of the SD IA. The legislativ.e history
28 1E ’0RANDUM IN SUPPORT OF MOTION FOR SUN’MARY JUDGMENT PAGE 11 OF 19
Form OBO-183
12-8.76 DOJ
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makes this clear: “The Comittee expects that the Administrator [ of EPA]
2 would require all public water systems to notif:y him frequently of the quality
T of the water bend 5ro ided for human consumption . . . .“ 28/ This
4 tnotlfication can only be accomplished through regular sampling and reporting
to EPA, including reporting that sampling has not been done.
6 8. Defendants have failed to issue adequate public notification
pursuant to 40 C.F.R. §141.32 on 24 occasions .
8 Equally as important as notification to EPA, the SOWA and the
regulations specify that water systems must notify the public when the level
10 of any contaminant exceeds an MCL or when required monitoring has not been
done. 40 C.F.R. §141.32. This requirement carries out a key legislative
12 purpose of the SOWA: “ [ T]he Committee believes that informing the public of
13 the quality of the water being delivered to consumers is a primary purpose of
14 the Act.” 29/
15 The drinking water regulations require two types of public notice,
16 depending on the violation involved. For failure to perform required
17 monitoring, written notice must be given to the water system users within
18 three months of an initial monitoring violation, and the notice must be
19 repeated at three-month intervals thereafter so long as any monitorino
20 violation occurs within each subsequent three—month period. 40 C.F.R.
21 l4l.32( ). An additional notice, distributed to the newspaper and broadcast
22 iiedia as well asthe users, must ’be given withinfourteen days after the water
23 system learns that any MCL has been exceeded. 40 C.F.R. §141.32(b). One
24 public notice was therefore required for each of defendants’ ten violations of
25 the microbiological MCL. The undisputed facts show that defenoants issued
26 28/ H.R. Rep. No. 1185, 93rd Cong., 2d. Sess., reprinted in 1974 U.S. Code
27 • öng. & Ad. News, 6492.
2 / H.R. Rep. No. 1185, 93rd Cong., 2d. Sess., reprinted in 1974 U. S. Code
28 töng. & Ad. News, 6492.
MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 12 OF 19
Form 060-183
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1 such notice only for the months of January and February, 1983. 30/
2 Defendants’ failure to notify the public pursuant to 40 C.F.R. §141.32(b) of
3 the remaining eight MCL exceedances thus constitutes eight public notice
violations.
5 Defendants were also required to notify the public of their repeated
6 violations of monitoring requirements for coliform bacteria, turbidity and
7 inorganic and organic chemical contaminants. Initial public notice of these
8 violations was required by November 1, 1979 — — three months after EPA
9 notified defendants of the SOWA monitoring requirements. Subsequent public
10 notices of these violations were required by February 1, May 1, August 1 and
11 November 1 of each year through the present, since additional SDWA violations
12 occurred at Midland in each three—month period following November 1, 1979.
13 There have been 15 such three-month periods since that date. Public notice of
defendants’ monitoring violations was thus required on a total of 16 occasions
15 since August 1, 1979. However, the uncontroverted facts show that defenoants
16 gave no such notice. 31/
17 Together, defendants’ undisputed failures to notify the public of the
18 MCL and nionitoring violations at Midland thus comprise an additional 24 SDWA
19 violations.
20 B. The Court should impose civil penalties against defenaants for
21 the above-established violations .
22 The above discussion makes clear that there is no genuine issue of
23 fact as to whether defendants have violated the Safe Drinking Water Act. The
24 undisputed facts show 1,520 individual SDWA violations. Similarly, there is
25 30/ See Affidavit and Certificate of J. Larry Worley, paragraph 6.G.
26 defendants’ response to Interrogatory No. 13.
31/ The public notices given by defendants in January and February, 1983
27 F lated only to the MCL violations that occurred in such months, not.the
violations of monitoring requirements.
28
MEMORANDUM IN SUPPORT OF MOTION FOR SUt:MARY JUDGMENT PAGE 13 OF 19
form 080-183
12-8-75 DOJ
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1 no genuine issue of material fact preventing assessment at this time of civil
2 penalties for these violations.
3 Section 1414(b) of the Act [ 42 U.S.C. §300g—(b)] provides that:
[ I]f the court determines that there has been a willful violation of
the regulation . . ., the court may, taking into account the
5 seriousness of the violation, the population at risk, and other
appropriate factors, impose on the violator a civil penalty of not to
6 exceed $5,000 for each day in which such violation occurs. -
7 In the present case, the only conclusion that reasonably can be drawn from the
8 undisputed facts is that defendants’ violations were willful. Each of the
9 described violations occurred after July, 1979, when EPA began a series of
10 direct notices to defendants informing them of the monitoring reporting and
public notification requirements of the SOWA. 32/ The incontrovertible facts
12 show that, despite this notice, defendants continued to violate the Act,
13 establishing a pattern of unresponsiveness and indifference to the
14 requirements of the SDWA and the regulations that continued for over two years
15 despite repeated notice from EPA. Defendants in some respects continued to
16 violate the SDWA even after the January 7, 1983 filing of this case.
17 The United States District Court for the District of Oregon has
18 established the following construction of Hwillfulh as that term is used in
19 the Safe Drinking Water Act:
20 “Careless disregard’ for lawful duties, amounting to “plain
21 indifference” to the requirements of a statute, has been
considered to be a “willful” violation. United States v .
22 Illinois Central Railroad Co. , 303 U.S. 239, 242—243 (1938).
This standard applies particularly to cases involving violations
23 of statutory requiremen ts that are protective of health or
safety. Georgia Electric Co. v. Marshall , 595 F.2d 309, 319
24 (5th Cir. 1979). In such cases it is unnecessary to establish a
“bad purpose” for the violations to be regarded as “willful.”
25 32/ See Affidavit and Certificate of J. Larry Worley, paragraph 7, for a
26 description of the notice made by EPA to defendants. Authenticated copies of
EPA’s letters to defendants are attached to that affidavit.
27
28 EMQRANDUM IN SUPPORT OF MOTION FOR SUtMARY JUDGNENT PAGE 14 OF 19
Form OUD-183
12.8-76 DOJ
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1 The courts have also held that willfulness can be inferred
from a history of numerous violations of the same statute and
2 reguletions. Fairbanks v. Hardin , 429 F.2d 264, 268-269 (9th
Cir. 1970).
United States v. Neskowin Enterprises, Inc. , 14 ERC 1636, 1642 (D.Ore. 1980).
4
Neskowin , like this case, involved violations by a public water system of the
5
Safe Drinking Water Act monitoring, reporting and VICL requirements. The
6
defendants in Neskowin had established a similarly long history of violations
7
of the Act. As in this case, the United States had moved for summary
8
judgment. Applying the “willfulness” standard cited above, the court in
9
Neskowin granted summary judgment against the defencants, concluding that:
10
11
Defendants’ repeated tardiness, and often failure, to submit the
12 required sampling data to EPA certainly demonstrates an
indifference to the Act and its Regulations . Defendants’
13 failure to improve the water system, despite persistent warnings
from EPA and the continued presence of contaminants in the
14 water, scarcely exhibits the concern for public health to be
expected from a water system owner .
15 .
Viewing the pattern of violations as a whole, I find that
16 defendants willfully violated the Act and its Regulations
and that plaintiff is entitled to recover statutory civil
17 penalties.
18 U. S. v. Neskowin Enterprises, Inc., supra , at 1642. (Emphasis adcied.)
19 It would be difficult to imagine a better application of the word
20 “indifferent” than to the nonresponsiveness exhibitec by defendants throughout
21 the two and one—half year period from mid—1979 through 1982 that EPA was
22 seeking cooperation and compliance with the SDWA regulations. Further, the
23 myriad of violations presented by this motion, representing virtually
24 continuous noncompliance with the SDWA for a period of over two years, are an
25
26
27
28 MEMORANDUM IN SUPPORT OF NOT ION FOR SUMMARY JUDGMENT PAGE 15 OF 19
Form OBD -183
12.8-76 DOJ
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1 extreme enough example of a “history of numerous violations” for this Court’s
2 finding of willfulness to be conclusive. 33/
3 Given the willfulness of defendants’ violations, the court must
4 determine the appropriate amount of civil penalties according to the statutory
5 criteria of “the seriousness of the violation, the population at risk, and
6 other appropriate factors.” Section 1414(b) of the Act [ 42
7 u.S.c.ç300g-3(b)]. The violations involved here posed a serious risk to the
8 public health. Defendants supplied drinking water, to approximately 150
9 persons, that was heavily contaminated with levels of coliform bacteria, at
10 times exceeding the 40 C.F.R. §141.14 microbiological MCL by a factor of
11 thirty or more. Of particular concern to EPA was the finding that the io1ana
12 water contained significant levels of staphylococcus and fecal streptococci
13 ___________________________________
33/ Other courts have adopted the “careless disregard” ano “plain
14 indifference” standard applied by U. S. v. Neskowin Enterprises, Inc. , 14 ERC
1636 (D.Ore. 1980) for determining whether statutory civil violations are
15 “willful.” This construction has been particularly favored under other
legislation whose purpose, like that of the SOWA, is to protect the public
16 health and safety, where a restrictive interpretation would limit the
applicability of civil penalty provisions and thereby defeat the Congressional
17 purpose of protecting public health. The Occupational Safety and Health Act
[ 29 U.S.C. §666(a)], for example, has engendered a number of cases applying
18 the “plain indifference” standard. See, St. Joe Minerals v OSHRC , 647
F.2d 840 (8th Cir. 1981); A. Schonbek and Co., Inc. v. Donovan , 646 E.2d 799
19 (2d Cir. 1981); Messina Construction Co. v. OSHRC , 505 F.2d 701 (1st Cir.
1974). Similar cases have developed under the Fair Labor Standards Act (29
20 U.S.C. §255). See, Brennan v. Heard , 491 F.2d 1 (5th Cir. 1974);
Coleman v. Jiffey June Farms, Inc. , 458 F.2d 1139 (5th Cir. 1972). The Gun
21 Control Act of 1969 (18 U.S.C. §921 et g .) has been similarly construed:
See Prino v. Simon , 606 F.2d 449 (4th Cir. 1979); Lewin v. Blumenthal ,
22 U F.2d 268 (8th Cir. 1979). That willfulness can be inferred from a history
of repeated violations, as held by U. S. v. Neskowin Enterprises , is ratifieu
23 by, Goodman v. Benson , 268 F.2d 896 (7th Cir. 1961) (three violations of
Grain Futures ct); Rex Wine Corp. v. Dunigan , 24 F.2d (2nd Cir. 1955)
24 (continued violations despite warning ten years earlier); and Air Transport
Association v. Civil Aeronautics Board , 199 F.2o 181 (D.C. Cir. 1952)
25 (continued violations of flight regulations despite long correspondence
26 between CAB ond airlines).
27
28 MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT PAGE 16 OF 19
Form CBD-183
12.8-76 noJ
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1 bacteria, which are recognized pathogens. 34/ A complaint about the quality
2 of the drinking water, in fact, first brought the Midland system to EPA’s
3 attention. 35/ The seriousness of these violations is underscorea by
defendants’ persistent failure over more than two years to take any steps to
thitigate the bacterial contamination, failure to sample and analyze for
6 contaminants, and their failure to notify the Midland users either of the
contamination or the fact that required monitoring was not done. This strikes
8 atthe heart of the voluntary reporting arrangement upon which the national
drinking water program is based. Similar factors were present in U. S. v .
10 Neskowin Enterprises, Inc. , and were held to establish a “serious” violation:
11 I view the violations of microbiological contaminant reçulations
12 for drinking water as extremely serious events. The public
health ‘may be in jeopardy when coliform bacteria are allowea to
13 contaminate a public drinking water supply . . .
Though less serious [ than violations of maximum contaminant
4 levels for bacteria], defendants’ failure to report water sample
1 data to EPA deprives both the EPA ano the public of timely
information on the safety or hazards of the water supply .
l j In my view, each type of violation creates potential health
16 risks to which the public should not be exposed. The fact that
numerous violations occurred in each category, demonstrates an
17 irresponsible attitude on the part of the defendants and
- emphasizes the very serious nature of these violations.
18 Neskowin , supra, at -1644.
19
The United States believes that the different types of violations
20 involved in this action are of varying degree of seriousness, and justify
21 different penalty amounts. The two microbiological MCL violations that
22 occurred in 1982 were substantial, posed a serious health risk, and defendants
23 took no corrective action of any kind; civil penalties of $2,500 should be
24 - -.
assessed for each of those violations. The 8 microbiological MCL violations
25
26 34/ See Affidavit and Certificate of J. Larry Worley, paraqraph 6.E.
See Affidavit and Certificate of 3. Larry Worley, paragraph 7.A.
27
28 MEMORAND(Jt’ Jt SUPPORT OF t OTI0N FOR SU ,MARY JUDGt Et T PAGE 17 OF 19
worm OBD-183
12-8-76 DOJ
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1 that occurred in 1983, while less serious in terms of degree of
2 contamination, also created a health risk to the users, and penalties of
3 $500 are appropriate for each of those MCL exceedances. ihe lack of
public notice concerning 8 of these 10 MCL violations kept the public
ignorant of the severity of the water contamination, and shoula invoke
6 penalties of $250 for each of these 8 violations; defendants’ 16 failures
7 to give periodic public notice of the monitoring violations were less -
8 serious, and make appropriate penalties of $100 for each such violation.
Penalties of $100, $250 and $400 should be assessed respectively
10 for each of defendants’ 41 failures to test for coliform bacteria, 5
11 failures to test for inorganic chemicals, and 2 failures to monitor for
12 organic chemicals; such penalty amounts per violation will somewhat more
13 than offset the savings defendants realized by not carrying out such
14 sampling, and, in the case of defendants’ failures to monitor for
15 coliform bacteria, will include a penalty for defendants’ failure to
16 sample despite known bacterial contamination. Defendants’ 1,388
17 turbidity violations should invoke civil penalties of $1,000, to offset
18
the approximate $600 savings realized by not taking such measurements.
19 36/ Finally, a penalty of $10 per violation should be assessed fcr each
20 of defendants’ 50 failures to notify EPA of their violations. The total
21 civil penalty under this suggested approach is $20,250.
22
It is essential that defendants and other water suppliers in
23 Oregon be deterred from ignoring their obligations under the Safe
24
25 36/ See Affidavit and Certificate of J. Larry Worley, paragraph 8, for a
calculation of the approximate economic savings realized by defendants as a
26 result of their noncorpliance.
27
28 ME 1 0RANCUF IN SUPPORT OF MOTION FOR SUt :ARY JUDGMENT PACE 18 OF 19
Form C ’BD.183
12-8.76 DOJ
-------
Drinking Water Act, which cannot work to protect the public health without
-2 individual and voluntary compliance by each water system: 37/
: IV. CONCLUSION
For the above reason, the United States is entitled to judgment
-against defendants imposing civil penalties for each of 1,368 days of
6 violation of the SDWA and its regulations.
7
8 Respectfully subritteci this 2.Sikday of October, 1983.
CHARLES H. TURNER
10 United States Attorney
11 THOMIS C. LEE
Assistant United States Attorney
13 By: k /Ie r J
14 D 0 N. HEINECK
Special Assistant United States Attorney
15
16
17
18
19
20 Deterrence has long been recognized as an appropriate reason to assess
21 civil penalties. See, United States v. Velsicol Chemical Corp. , 12 ERG 1420
(W.D. Tenn. 1978); Collins v. Brown , 268 F.Supp. 198 (D.C. [ .C. 1967); C.J.S.
22 Penalties , §1; and Lloyd A. Fry Roofing Co. v. Pollution Control Board , 42
Ill. App. 3d 412, 361 N.E. 2o 23, 28-29 (1977) (“The assessr’ent of penalties
23 against recalcitrant defendants who have not sought to comply with the Act
voluntarily but who have b) their activities forced the Agency or private
24 citizens to bring action against them may cause other violators to act
promptly and not wait for the prodding of the Agency.”)
25
26
27
28 MEMORANDUM IN SUPPORT CF MOTIOh FOR SUMMARY UDG ENT PACE 19 OF 19
Form OBD .183
12-8.76 DOJ
-------
DEFAULT JUDGMENT MOTION
-------
U.S. ENV . MENTAL PROTECTION
NC?
REGION X
1200 SIXTH AVENUE
SEATTLE, WASHINGTON 98101
‘3
(C
(pLY cMa11 Stop 613
ATTN OF
June 23, 1983
Stevc’n J. Pierce, Esq.
Attorn y at Law -
243 SoutFiwc St Third Av ni
0nt ri’ , Ore on 7’ 1
Re’: Ijnite’l states v. Robert G. Cook and Denise 0. Coop
Civil No. 3-ó38
Dear Mr. Pae’ce:
On May 9, 19 3, the United States filed a complaint in tile above-referenced action.
Th it cornDlalnt was served on you by iiai on May 16, 1983. Rule 12(a) of the Federal
Rules of Civil Procedur° requires servic - of an answ r within 20 days of service of
the sumnons and complaint. Defendants inswer was thus due by no later then June ,
1983. No ans.4er has yet r r ubnitt d. This to notiFy you that the United States
may move for entry of default in this action if an answer or other defense as enu ner3te’
in the Fed ral Rules is not suhmitted imn. diately.
Si ncer’ l
David M. Heineck
Assistant Regional Counsel and
Special Assistont United States Attorney,
District of Oreoon
cc: Thonias C. Lee. Assistant United States Attorney
Exhibic 2
-------
PIERCE & SULLIVAN
Aflomeyt el L w
STEVEN J PIERCE 243 Souihwei 3rd
LARRY A SULLIVAN l_ Onleno Oreqon 97914
5O3) & 9 2197
lJr,r ‘I
July 8, 1983 JUL • J
ii
: ‘‘ J ’LEL.
, )
David M. ilcinc-ck Y
Assistant Regional Counsel
U.S. EnvironmentaL Protection Agency
1200 Sixth Avenue
Seattle, WA 98101
Re: United States v. Cook
Civil No. 83-738
Dear lr. Heineck:
1 acknowledge receipt of your letter dated June 23, 1983. I
delivered the Summons and Complaint to Mr. Bob Cook for action
and asked and requested whether or r oc he desired our firm to
represent him in this mdtter. At that time, he took it upon
himself to respond to the Complaint and it is my understanding
that he filed some type of responsive document with the court in
answer to the Complaint. I do not know whether he complied ‘ ich
any of the court rules with regard to filing a responsive
pleading.
Upon receipt of your letter dated June 23, 1983, 1 contacted Hr.
Cook on June 27, 1983. I advised him that he should take action
immediately in order to protect his interest in this rnact’ r•
expect that you will ‘receive a copy of his responsive plea ng or
responsive document shortly.
You should correspond with Hr. Cook at 1(4 Jest Idaho Avenue,
Ontario, Oregon 97914. His telephone number is (503) 839-3076.
Should you have any questions, do not hesitate to cor1t ict m .
Yours very truly,
PlERqE;& SULLI AL
STEVEN J. L1 RCE
SJP:lw
CC: Bob G. Cook
Exhibit 3
-------
U.S. ENVIRWNMENTAL PROTECTION NCY
OST REGION X
1200 SIXTH AVENUE
SEATTLE, WASHINGTON 96101
PAO
R PiY TO
M/5 61 3
July 15, 1983
Mr. Robert C. Cock
1648 West Idaho Avenue
Ontario, Oregon 57514
Re: United States v. Cook
Civi i o. 53-ó ft , re.)
Dear fr. Cock:
By letter of June 23, 1 C3 (copy enclosed) I aavi sea Steven J. Pierce,
Esq. that the Iinitect States iould apply for entry of default in this
action if there was continued delay in your filing an dr.s .er or other
responsive pleacing to the Unitea States’ complaint in this proceeding.
Mr. Pierce inuicated in a Joly 8, fl.83 letter, ccpy of .h ict. baS se;.t
to you, that he had advised you of the risk of default. Uespi te this
c1c r notice to you, no responsive ple o ing has yet beer fil u. You
could be found in default at any tnne. You are aaain advised to
ir mediately si’brnt an ar s er or other leacjinn as proviced it the Feceral
Rules of Civil Procedure to avoid aefault in this action.
Sincerely
David fl..Heineck
A sistar.t Regional Counsel
Enclosure
cc:, Tho r as C. Lee, Assistant United States Attorney
Exhibit 4
-------
•1 CHARLES H. TUPNER
United States Attorney
2 TI’er AS C. LEE
Assistant United States Attcrney
3 312 U.S. Courthouse
- Portland, Oregon 72O5
F Telephone (503) 221 —2101
I - “ - c_. - i_ “-_4.. .
L L(r ’S 1L!
‘3
7
8 IH THE UHITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
9
UNITED STATES OF AtIERICA,
10 ) Civil No. 3-L3b
Plaintiff,
ii ) APPLICATION TO CLERIc
vs. ) FOR EHTRY OF DEFAULT
12
ROBERT 0. COOK and DENISE D. COOK,
13 d/b/a .t4ESTGATE 1 O13ILE HONE PARK,
)
14 Defendants.
15
Plaintiff hereby applies for entry of the default of all of the
16
efendants herein, pursuant to Rule 55(a) of the Federal Rules of Civil
17
,Procedure and L.R. 125-4, for defendants’ failure to submit an answer or
18 -
otheryise efend this action as requirea t’y law. Defcnc ants’ failLre tu
answer or defend is described in the attached affidavit.
21 DA1 D this z d y of i 14/If , l J3.
22 CHARLES H. TURNER
United States Attorney
23
THOMAS C. LEE
24 Assistant United States Attorney
By: A /k t
AVID N. HEINECJ<
27 Special Assistant United States Attorney
28 APPLICATION TO CLERK FOR EUTRY CF DEFAULT - Page 1 of 1
Form eBO- 83
12-8.76 fl()J
-------
1 CHARLES 1-1. TURHER
United States Attorney
2 TEOflAS C. LEE
Assistant Unitcd States Attorney
3 312 U.S. Courthouse
Portland. Orecon 97205
4 Telephone: (503) 221-2101
5 At r ’ -’. cr P1 ‘i flti tf
‘3
8 IN ThE UNiTED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGQfl
9
UNITED STATES OF AMERICA,
10 ) Civil Ho. 83-638
Plaintiff, )
11 ) AFFIDAVIT IN SUPPORT
vs. ) OF APPLICATION FOR
12 ) ENTRY OF DEFAULT
ROBERT 0. COOK and DENISE D. COOK,
13 d/b/a WESTGATE NUBILE HONE PARK,
14 Defendants. )
DAVID N. HEINECK, being du y sworn upon his oath, according to 1a ,,
deposes and says:
17
1. I ai i a Special Assistant United States Attorney for the District
18
of Oregon and am an Assistant Regional Counsel, United States Environmental
19
Protection Agency, Region 10, Seattle, Washington. I am an attorney of record
20
in this action. I have personal knowledge of the facts set forth in this
21
affidavit.
22
2 2. The United States, plaintiff herein, filed the complaint in this
cause on Nay 9, 1983 against defendants Robert G. Cook and Denise U. Cook, a
24
25 married couple, and against the above-captioned unincorporated association
26 operated by Robert 0. Cook and Denise 17. Cook.
27 AFFIDAVIT OF DAVID HEINECK IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT
28 —Page 1 of 3
Form 09D 183
12 8-76 DOi
-------
1 3. Exar.iination of the Court file and record in this cause shows
2 that Steven J. Pierce, the attorney for defendants, accepted service of the
3 summons and coriplai’nr herein by mail on May 16, 1983. A copy of the Acceptance
of Service is attached to this Affidovit as Exhibit 1.
4. - G’ . fl 1 (J .S LC. 1fl : L. L:,.,t2 3: £cr’. 1c:) ci
- -
sinc the d3tc on .tiicI efcn.iantz herein :ere scrv d wi zh the su imon inc
7 j comp1 int.
8 5 The undersigned has sent two letters to defendants inaicating
that the United States would seek entry of default if defenoants failea to
submit an answer or other defense to plaintiff’s complaint in this cause. The
first such letter was sent to Steven J. Pierce, defendants’ attorney of
12 recora, on June 23, 1983. A copy of that letter is att chea as Exhibit 2.
13 Mr. Pierce responded by letter of July 8, 1983 (Exhibit 3), stating that
14 defendant Robert 0. Cook had apparently decided to act pro se at this st e of
-the proceedings but that he had advisec r r. Cook of the Government’s stated
16 intention to apply for default if necessary. The undersigned sent a seCc.no
17 letter, on this occasion to defendant Robert C. Cook directly, on July 15,
1983 (Exhibit 4) again advising him to submit an answer or defense ir:fliediately
19 to avoid default.
20 6. Defendants have failed to file an ans.;er or otherwi Se defend in
21 response to plaintiff’s complaint, as required by the Federal Rules of Civil
22 Procedure. As of the date of this affidavit, defendants have not servea a
23 copy of any answer, defense or notice of appearance on me or on Charles H.
;24 lurner, United States Attorney for the District of Oregon, or Thomas C. Lee,
25 Assistant United States Attorney, the other attorneys of recor’&’fot plai’ntiff.
26
27
28 AFFIDAVIT OF DAVID HEINECJ< IN SUPPORT OF APPLICATIOU FOR ENTRY OF DEFAULT
— Page 2 of 3
Foini CBD-1 83
12.8-76 DOJ
-------
1 7. This afiiaavit is executed by the undersigned Fr i accoroance with
2 Rule 55(a) of the Fedcral Rules of Civil Procedure nd L.R. 125-4, for the
3 purpose of crab ] iria the plaintiff heroin to obtain an entry of cefaul t against
4 the defendants in this cause.
6: ,ia ’ / /L &r c ,4
W1 v iL .i.
7
a SUBSCRIBED M iD SWORU to before me this 0 2 M aay of July, 1983.
10
NOTARY PUBLIC for the State of
1 1 Washington, County of King,
residing at - S irpn.a-
12
My commission expires: 1—7-47
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27 AFFIDAVIT OF DAVID HEINECK IN SUPPORT OF APPLICATION FOR ENTRY OF DEFAULT
28 —Page S of3
Form OeD-183
12 8-76 DOJ
-------
1 CHARLES H. TURNER
United States Attorney
2 THOMAS C. LEE
Assistant United States Attorney
3 312 U.S. Courthouse
Portland, Oregon 97205
4 Telephone: (503) 221-2101
5 Attorneys for Plaintiff
8 IN THE UNITED STATES DISTRICT CCL’RT
FOR THE DISTRICT OF OREGON
9
UNITED STATES OF AMERICA, )
10 ) Civil No. 83- 3C
Plaintiff,
11 ) ENTRY OF DEFAULT
vs. ) BY THE CLERK
12 )
ROBERT G. COOK and DENISE ). COOK, )
13 d/b/a WESTGATE MOBILE HOH PARK,
14 Defendants. )
15
Based on Plaintiff’s Application and supporting Affidavit for Entry
16
of Default, and an examination of the Court record arc file in this cause, it
17
appears that the above-named defendants herein are in default for failure to
18
plead or otherwise defend as required by law.
19
Accordingly, default is hereby enterco against each of the
defendants, pursuant to Rule 55(a) of the Federal Rules of Civil Proce ure.
22
DATED this day of _________________, 1 83.
23
24
25 CLERK
United States District Court
26 for the District of Oregon
27
28 ENTRY OF DEFAULT BY THE CLERK - Page 1 of 1
Form CBO-183
12.8-76 DOJ
-------
CERTIFICATE OF SERVICE BY MAIL
2
3
UNITED STATES OF AMERICA,
4’
P1 irtiff, )
5
vs.
6 ) Civil ho. E3- L
RObERF G. CQ(JK anu DENISE D. COUK,
7 d/h/a WESTCAT [ ‘iOB1LE HCZ• E PARK,
8 Defendants. )
9’
I The undersigned hereby certifies that she is an employee of the U.S.
10
Environmental Protection Agency and is a person of such age and discretion as
11
to be conpetent to serve papers.
That on July , 1S83 she served a copy of the attacheo
13
Application for Entry of Default, the supporting Affidavit thereto, and a copy
14
of the proposed forr.i for Entry of Default by placing Sale copies in postpaic
15
envelopes addressed to the persons hereinafter named, at the places and
16
addresses stated below, which are the last known addresses, anc by depositing
17
said envelopes and contentsin the Uniteci States Mail at Seattle, Washington.
18
19 Addressees: Thomas C. Lee, ESq.
Assistant United States Attorney
20 312 U.S. Courthouse
620 S.W. Main Street
21 Portlana, Oregon 97205
22 Mr. and Mrs. Robert G. Cook
1648 West Idaho Avenue
23 Ontario, Oregon 97914
24
25
Patricia N. Sugiura
26 -
27
28 CERTIFICATE CF SERVICE BY MAIL — Page 1 of 1
Farm CeO-183
12-8.76 1 )01
-------
1 CHARLES H. TURNER
United States Attorney-
2 THOMAS C. LEE
Assistant United States Attorney
312 U. S. Courthouse
620 S. W. Main Street
4 Portland, Oregon 97205
Telephone: (503) 221-2101
Attorneys for Plaintiff
6
7
8
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
10
UNITED STATES OF AMERICA,
11
Plaintiff,
12 Civil No. 83-ti38
vs.
13 ) PLAINTIFF’S hOTIGU
ROBERT 6. COOK and DENISE D. COOK, ) FOR DEFAULT JUDGhEUT
14 d/b/a WESTGATE MOBILE HOME PARK,
Oral argument reauested
15 Defendants. )
16
Plaintiff, the United States of America, hereby moves the Court
17
to enter default judgment against the above-named defendants in this
18
action pursuant to Rule 55(b)(2) of the Federal Rules of Civil
19
Procedure. The basis for this motion is that defenciants have failea to
20
answer, plead or otherwise defend this action as required by law. This
21
motion is supported by the attached memorandum and affidavits.
22
23
24
25
26
2.
28 iPLAINTIFF’S hOTION FOR DEFAULT JUOGhENT - PAGE 1 (iF 2
Form 080.183
12-8.76 001
-------
2 DATED this Js day of ___________, 1983.
4 CHARLES H. TUR1 ER
United States Attorney
5
6 THOMAS C. LEE
Assistant United States Attorney
7
B By: , .
VID . HE1f ECK
Special Assistant United States
10 Attorney
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 PLAINTIFF’S MOTION FOR DEFAULT ,JUDGNENT - PAGE 2 OF 2
Form OBD 183
12.8.76 1 )03
-------
1 CHARLES H. TURNER
United States Attorney
2 THOMAS C. LEE
Assistant United States Attorney:
312 U. S. Courthouse
620 S. W. Main Street
4 Portland, Oregon 97205
Telephone: (503) 221—2101
5
Attorneys for Plaintiff
6
7
8
9 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
10
UNITED STATES OF AMERICA,
11 )
Plaintiff, )
12 ) Civil No. 83-63E
vs. )
13 ) MEMORANDUM IN SUPPORT
ROBERT G. COOK and DENISE D. COOK, OF PLAINTIFF’S MOTION
14 d/bla WESTGATE MOBILE HOME PARK, ) FOR DEFAULT JUDGMENT
J
15 Defendants. )
16
The United States of America, plaintiff herein, submits this
17
memorandum in support of its Motion for Default Juagment under Rule
18
55(b)(2) of the Federal Rules of Civil Procedure (“FRCP”). The United
19
States seeks a Default Judgment that would enjoin defendants from further
20
violations of the Safe Drinking Water Act (“the Act”), 42 U.S.C.
21,
§300g—3(b), and assess civil penalties for defendants’ past violations.
22
The basis for this motion is the August 2, 1983 Entry of Default
23
by the Clerk in this cause (attached as Exhibit 1 to this memorandum).
24
As described in the United States’ application for that entry of default,
25
the complaint commencing this action was filed on May 9, 1983, and served
26
27
MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT —
28 PAGE 1 OF 11
Form 090-183
12-8.76 DOJ
-------
‘ I. on defendant on May 16, 1983. No answer, other defense, or notice of
2 appearance was filed within t enty days of service, as required by FRCP
3 l (a). The Unite’d States notified defendants in writing prior to the
4 Ent yof Default that default judgment would be sought if defendants
5 persisted in not filing an answer or other defense. Despite this notice,
6 no responsive pleading was submitted. The United States thereafter
7 applied for Entry of Default by the Clerk, and served defendants with a
8 copy of that application. The Clerk entered defendants’ default on
9 August 2, 1983. Defendants have cotinued their disregard of procedural
10 requirements by not filing any answer, defense, or notice of appearance
11 through the date of this mecnorandum.
12 The Clerk’s Entry of Default was proper unuer the standards of
13 FRCP 55(a). See, United States for aid in Behalf of FHA v. Jackson , 25
14 F.Supp.79 (D.Ore.1938). That Rule states that a party must have “failed
15 to plead or otherwise defend as provided by these rules” in order for the
16 Clerk to enter his default. It is a matter of record that defendants
17 have “failed to plead.” Defendants have also “failed to . . . otherwise
18 defend,” as that is interpreted by the courts: “The words ‘otherwise
19 defend’ refer to attacks on the service, or motions to dismiss, or for
20 better particulars, and the like, which may prevent default without
21 -‘presently pleading to the merits. t ’ Bass v. }-loa9lund , 172 F.2d. 205, 210
22 (5th Cir.l949), certiorari denied 338 u.s. 816, 70 S.Ct. 57. No such
23 motions or defenses were submitted prior to the Clerk’s August 2, 1983
24 Entry of Default, and none have been submitted since that time.
25 Defendants’ lack of response to this litigation is consistent with their
26
27 MEMORANDUM IN SUPPORT OF PLAINTIFF’S NOTION FOR DEFAULT JUDGMENT -
PAGE 2 OF 11
28
Form CBO-183
12-8.16 DOJ
-------
1 repeated nonresporisiveness to earlier attempts made by the U. S.
Environrnental Protection Agency (‘ EPA”) to persuade defendants to comply
3 \ oluntarily with the Safe Drinking Water Act. These efforts are
described in the attached Affidavit of William A. Mullen (Exhibit 2 to
.5 this memorandum). Default in this case, in which defenciants have hac
6 abundant notice and time to plead a defense, is the appropriate means of.
7 enforcing compliance with the rules of procedure. Chandler Leasing Corp .
8 v. UCC , 91 F.R.D.81 (N.D.Ill.J981).
9 By their default, defendants have no further stanoing to contest
10 the factual allegations of the United States’ complaint. Thomson v .
11 Wooster , 114 U.S. 104, 5 S.Ct. 788, 29 L.Ed. 105 (1885); Nishimatsu
12 Construction Co. v. Houston Flational Bank , 515 F.2d.l200 (5th Cir.1915);
13 Trans World Airlines, Inc. V. Huahes , 449 F.2d. 51 (2nd Cir.l ,7]), rev’a .
14 n other grounds 409 U.S. 363, 93 S.Ct. 647. The pertinent facts
15 established by defendants’ default are as follows:
16
17 1. Defendants Robert G. Cook and Denise D. Cook
18 (“defendants”) are residents of the State of Oregon.
19
20 2. At all relevant times, defendants have owned and operated a
21 trailer park located in Ontario, Oregon, having the assumeci
,22 business name of Westgate Mobile Home Park (“Westgate”).
,23 Westgate is an unincorporated business entity.
24
25
26
27 MEMORANDUM IN SUPPORT OF PLAINTIFF’S hOTION FOR DEFAULT JUDGtIENT -
.28 PAGE3OF 11
Form 060 183
12.8-76 DOJ
-------
1 3. The defenaants have owned and operated a water system at
2 Westgate that has provided drinking water through at least 15
3 connections used by year-round residents, or has regularly
4 served at least 25 year-round residents.
5
6 4. Because of Westgate’s number of service connections or
7 residents, the water system operated by defendants was at all
8 relevant times a “community water system’ as definen at 40
9 C.F.R. §141.21(b) and defendants were subject to the
10 requirements of the Safe Drinking Water Act (“the Act”), 42
11 U.S.C. §300f et q. Regulations promulgated under the Act
12 required defendants to 1) limit the concentration of nitrates in
13 the drinking water provided at Westgate to a rnaxiniurn level of 10
14 milligrams per liter (40 C.F.R. §141.11); 2) sample and analyze
15 the drinking water for nitrates within twenty-four hours of any
16 test measurement showing that the nitrate maximum contaminant
17 level (“MCL”) has been exceeded (40 C.F.R. §141.23); 3) sample
18 and analyze the water supplied by the Westyate water system at
19 least once each month for levels of bacterial contaminants (40
20 C.F.R. §141.21); 4) report to EPA on whether or not each
21 required sampling was done (40 C.F.R. §141.31); and 5) notify
22 the persons served by the Westyate water system of any
23 exceedance of the nitrate MCL or any failure by defendants to
24 sample the drinking water or report test results to EPA (40
25 C.F.R. §141.32).
26
27 ME ’10RANDUM IN SUPPORT OF PLAI T1FF’S iOTION FOR DEFAULT JUDG E T —
PAGE 4 OF 11
28
Form OOD1e3
12 8.76 DOJ
-------
I
2 5. EPA repeatedly notified defendants of the Safe Drinking
Water Act requirements for limiting nitrate contamination, and
4 for monitoring and reporting to EPA on the quality of the
5 drinking water provided at Westgate.
6
6. From June 1981, the time of defendants’ acquisition of
8 Westgate, to May 9, 1983, the date of the United States’
complaint in this action, defendants continually and willfully
10 supplied drinking water at Westgate that contained nitrates in
11 amounts exceeding the MCL of 10 milligrams per liter, thereby
12 violating 40 C.F.R. §141.11.
13
14 7. Following the results of tests conducted by defenoants in
15 November 1981 and February 1982, which showed levels of nitrate
16 above the MCL, defen Jants willfully faileci to conduct subsequent
17 analyses for nitrate contamination in the drinking water
18 supplied by the Westgate system, thereby violating 40 C.F.R.
19 §141.23(d).
20
21 8. Between June 1981 and May 1983, with the exception of
22 Novemoer 1981, defendants willfully failed to sample and analyze
23 on a monthly basis the level of coliform bacteria in the -
24 drinking water supplied by their system, thereby violating 40
25 C.F.R. §141.21.
26
27 ME 10RANDUM IN SUPPORT OF PLAINTIFF’S NOTION FOR DEFAULT JUDGMENT -
PAGE 5 OF 11
25
Fovm 080 83
28•76 DOJ
-------
I
2 9. Beginning in June 1981 and continuing recurrently to May
1983, defendants willfully failed to report to EPA the results
of required sampling and analysis for coliforrn bacteria, thereby
violating 40 C.F.R. §141.31(a).
6
10. Beginning in June 1981 and continuing until May 1983,
8 defendants willfully failed to report to EPA their failure to
comply with the riionitoring requirements for nitrates ana
10 coliform bacteria, thereby violating 40 C.F.R. §141.31(b).
11
12
11. Defendants willfully failea to n ’ify the public, at the
13 times and in the manner specified in 40 C.F.R. 5141.32, that the
14 drinking water provided at Westgate contained nitrates in
15 concentrations that exceeded the MCL for this contaminant.
16
17 12. Defendants also willfully failea to notify persons served
18 by the Westgate system of their failure to perform required
19
monitoring for levels of microbiological and nitrate
20
contamination in the drinking water supplied by their system, in
21
violation of 40 C.F.R. §141.32.
22
23 The above facts were alleged in the United States’ complaint and
24
are deemed admitted by defendants’ default. Danning v. Lavine , 572 F.2d.
25
1386 (9th Cir.1978); Thomson v. Wooster, supra . These facts conclusively
26
27 MEMORANDUM IN SUPPORT OF PLAINTIFF’S i0TIOt1 FOR DEFAULT JUDGMENT
28 PAGE 6 OF 11
Form CBD-183
12-8-76 DOJ
-------
1 show that defendants are liable for numerous violations of the nitrate
2 MCL and the water quality sampling, reporting and public notification
requirements of the Safe Drinking Water Act. Proceedings on default
judgment in this action are thus limited to the issue of appropriate
civil penalties for defenoants’ violations, taking evidence on this issue
6 where necessary. Pope v. United States , 323 U.S. 1, 65 S.Ct. 16 (1944).
7 The Safe Drinking Water Act provides a maximum civil penalty of
8 $5,000 per day of violation:
9
10 {I]f the court determines that there has been a willful
11 violation of the regulation or schedule or other requirement
with respect to which the action was brought, the court may,
12 taking into account the seriousness of the violation, the
population at risk, ano other appropriate factors, impose a
13 civil penalty of not to exceed $5 000 for each day in which such
violation continues. (Emphasis aaciea.)
42 U.S.C. §300g-3(b). The facts alleged in the complaint demonstrate 708
15 days of violation by defendants.l/
15 The “willfulness’ of these violations was alleged in Paragraphs
17 9, 14, 15, 20, 24 and 25 of the United States’ complaint and was admitted
18 by defendants’ default. Danninq v. Lavine, supra . in addition, the
19 factual basis for finding the violations to be “willful” is shown in
20
21 1/ This number is the total number of days from June 1, 1981 to May 9,
1983. The first date was alleged in the complaint to have been the
22 approximate date on which defendants acquired the Westgate Mobile Hone
Park. The latter date was the date the complaint was filed. The
23 complaint alleged that defendants had violated the nitrate MCL
continually from the time they acquired Westyate. Defendants’ efau1t
24 thus establishes daily violations of this MCL. Defendants’ other
violations, such as their failure to sample, report to EPA or notify the
25 public of the water contamination, add to the t)pes but not the total
number of days of violations at issue. As cited above, the Safe Drinking
26 Water Act sets a maximum penalty of $5,000 even though more than
one violation may occur on a given day.
27
MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT -
28 PAGE 7 OF 11
form OBD-183
12-8-76 DOJ
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1 the complaint in in the attached affidavit of William A. Mullen (Exhibit
2 2 to this memorandum). The complaint and affidavit state that there were
3 numerous occasions on which EPA, in writing and in person, informed
4 defendants of the Act’s requirements. Defendants nevertheless persisted
5 in their noncompliance. This conduct establishes that defenoants’
6 violations were “willful”, as a matter of law:
7 “Careless disregard” for lawful duties, amounting to “plain
indifference” to the requirements of a statute, has been
8 considered to be a “willful” violation. United States v.
Illinois Central Railroad Co. , 303 U.S. 239, 242-243 (1938).
9 This standard applies particularly to cases involving violations
of statutory requirements that are protective of health or
10 safety. Georqia Electric Co. v. Marshall , 595 F.2d. 309, 319
(5th Cir.l979). In such cases it is unnecessary to establish a
11 “bad purpose” for the violations to be regarded as “willful.”
The courts have also held that willfulness can be inferrea
12 from a history of numerous violations of the same statute and
regulations. Fairbanks v. Hardin , 429 F.2a. 264, 268—269 (9th
13 Cir.1970).
14 United States v. Neskowin Enterprises, Inc. , 14 ERC 1636, 1642
15 (D.Ore.1980). Neskowin , like this case, involved enforcement of the Safe
Drinking Water Act. In Neskowin the Court concluded that “Oefenciants’
17 repeated tardiness, and often failure, to submit the required sampling
18 data to EPA certainly demonstrates an indifference to the Act ano its
19 Regulations.” At 1642. Similar indifference and willfulness is evident
20 from defendants’ persistent disregard of the Act in this case.
21 Given the willfulness of defendants’ noncompliance, defendants
22 are potentially liable for a maximum civil penalty of $3,540,000 for
23 ‘their 708 days of admitted violation (at the statutory maximum of $5,000
24 per day). Such a penalty is obviously only theoretical in a case such as
25 this. The United States believes that a much lower civil penalty is
26
27 MEMORANDUM IN SUPPORT OF PLAINTIFF’S NOTION FOR DEFAULT JUDGMENT
PAGE 8 OF 11
28
Form CBD-183
28-76 DOS
-------
1 appropriate in view of the penalty criteria specified by the statute.
2 The Safe Drinking Water Act as cited supra requires that the number of
3 persons put at risk by the violations, the “seriousness” of the
violations, and “other factors” be consioered in setting a-civil
penalty. The attached affidavit of William A. Mullen makes clear that
only a relatively small number of persons received water from the
7 Westgate water system. As for the seriousness of defendants’ violations,
EPA has no evidence that the nitrate contamination at Westgate adversely
affected human health. Nevertheless, defendants’ water system suppliea
10 water to a trailer park that served the traveling public. The high level
of nitrates created a health risk to infants (who could develop the
12 disease methenioglobineni la), and defendants repeatedly failea to compJy in
13 virtually any respect with the Act, as alleged in the complaint and
14 described in more detail in Mr. Mullen’s affidavit. Similar factors were
15 present in United States v. Neskowin Enterprises, Inc. , 14 ERC 1636
16 (D.Ore.1980), and were held to establish a “serious” violation:
1,
18 Though less serious [ than violations of maximum contaminant
19 levels for bacteria], defendants’ failure to report water sample
data to EPA deprives both athe EPA and the public of timely
20 information on the safety or hazards of the water supply. And
where, as here, a large tourist population uses the water
21 supply, public notification of any water hazards is especially
critical.
22 In my view, each type of violation creates potential health
- risks to which the public should not be exposed. The fact that
23 numerous violations occurred in each category, demonstrates an
irresponsible attitude on the part of the defendants ana
24 emphasizes the very serious nature of these violations.
25 Neskowin, supra , at 1644.
26
27 MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FCR DEFAULT JUDGMENT -
PAGE 9 OF 11
28
Form 090-193
12.8.76 Dos
-------
Despite potential penalties of $5,000 per day, the Court in
2 Neskowin imposed a civil penalty of $100 per dayfor each of 264 days of
3’ violation, for a civil penalty of $26, 00. The United States believes
4 that setting a specific amount of penalty per day is a reasonable
5 approach. In view of the fact that defendants’ violations in this case
6 occurred on a greater number of days that the violations at issue in
7 Ueskowin , the United States believes that a civil penalty of $50 rather
8 than $100 for each of the 708 days of defendants’ violations provides the
9 basis for an appropriate penalty. Default judgment in this action shculd
10 thus include assessment of a civil penalty in the amount of $35,400.
11 A final matter is the issue of whether defendants must be given
12 notice of this motion for default judgment. Rule 55(b)(2) of the Federal
13 Rules of Civil Procedures states:
14 If the party against whom judgment by default is sought has
appeared in the action, he . . . shall be served with written
15 notice of the application for judgment at least 3 days prior to
16 the hearing on the application. (Emphasis added.)
17 An “appearance” normally involves “some presentation or submission to the
18 court.” Turner v. Salvatierra , 680 F.2d. 199 (5th Cir.l978). Defendants
have submitted nothing to this court. They accordingly have not
20 “appeared” in the usual manner, and it would be procedurally proper to
enter default judgment in this action without serving notice to
22 defendants. Defendants have also not mailed any letters or made any
23 other informal contact with the plaintiff in response to the complaint.
24 They have therefore failed to make even a “constructive” appearance:
[ An appearance] may arise by implication from defenoants’
25 seeking, taking, or agreeing to some step or proceeding in the
26 cause beneficial to himself or detrimental to plaintiff other
than one contesting solely the jurisdiction.
27 MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR DEFAULT JUIIGMENT -
PAGE 10 OF 11
28
orm 080.183
2-8 .76 DOJ
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1 6 C.J.S., Appearances, l2. Accord, Dalminter, Inc. v. Jessie Eawards ,
2 Inc. , 27 F.R.D. 491 (O.C.Tex. 1961). Nevertheless, because defendants
are apparently acting pro se in this action, the United States is willing
4
to waive the FRCP 55(b)(2) appearance requirement. The United States
.5
accordingly has given defendants written notice of this motion for
6
default judgment.
7
DATED this ___ day of ri 4 &v 1983.
CHARLES H. TURNER
10 United States Attorney
11 THOMAS C. LEE
Assistant United States Attorney
12
13 By: i .
14 .k 4VIU t i. HEINELJK
Special Assistant Unitea States
15 Attorney
16
17
18
19
20
21
22
23
24
25
26
27 MEflGRA DUN IN SUPPORT OF PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT —
PAGE 11 OF 11
28
Form OBD-183
12-8 .76 DOJ
-------
ECEWED
1
tiLt1 X i
ia ct
OREGON
CHARLES H. TURNER
United States Attorney )U 21 H ‘ 3
THOMAS C. LEE UG
Assistant United States Attort ’r.
312 LLS. Courthouse
Portland, Oregon 97205
Telephone: (503) 221—2101 7J
AUG 17
Attorneys for Plaintiff
OFFICE OF REGIONALr
EPA
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA,
Civil No. 83-638
Plaintiff,
ENTRY OF DEFAULT
vs. ) BY THE CLERK
ROBERT G. COOK and DENISE D. COOK, )
d/b/a WESTGATE MOBILE HOME PARK,
)
Defendants. )
Based on Plaintiff’s Application and supporting Affidavit for Entry
of Default, and an examination of the Court record and file in this cause, it
appears that the above—named defendants herein are in default for failure to
plead or otherwise defend as required by law.
- Accordingly, default is hereby entered against each of the
defendants, pursuant to Rule 55(a) of the Federal Rules of Civil Procedure.
DATED this _______ day of ________________, 1983.
ENTRY OF DEFAULT BY THE CLERK — Page 1 a
United States District Court
for the District of Oregon
EXHIBIT 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(I
080-183
-------
2
3
4
5
6
7
8 CHARLES H. TURNER
United States Attorney
9 THOMAS C. LEE
Assistant United States Attorney
10 312 U.S. Courthouse
620 S.W. Main Street
11 Portland, Oregon 97205
12 Telephone: (503) 221—2101
Attorneys for Plaintiff
13
14
15 IN THE UNITED STATES DISTRICT COURT
16 FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA, )
17 )
Plaintiff, ) Civil No. 83-638
18 )
19 vs. I
20 ROBERT G: COOK and DENISE D. COOK, AFFIDAVIT
21 dfb/a WESTGATE MOBILE HOME PARK, )
Defendants. )
22 __________________________________________)
23 I, WILLIAM A. MULLEN, being first duly sworn on oath, do depose and
24 say:
25 1. I am Chief of the Drinking Water Program for the U.S.
26 Environmental Protection Agency (“EPA”), Region 10, Seattle, Washington,
27
28 AFFIDAVIT OF WILLIAM A. MULLEN: Page 1 of 8
Form OBO-183 EXILIBtT 2
12.8-76 DO)
-------
1 and have been in that position since 1971. The purpose of this affidavit
2 is to document defendant’s violations of the Safe Drinking Water Act (42
3 U.S.C. §300f et .)(the IISOWAU or the “Act”) and the regulations
4 thereunder (the National Interim Primary Drinking water regulations, 40
C.F.R. Part 141).
6 2. From approximately June 1981 through June 1983, defendants
Robert 6. Cook and Denise D. Cook owned and/or operated a trailer park
8 known as the Westgate Mobile Home Park (‘Westgate”), near Ontario, in
Malheur County, Oregon. The water system operated in conjunction with
10 Westgate serves approximately 200 year-round residents. The size of this
ii system qualifies it as a public water system subject to the requirements
12 of the Act.
13 3. The SDWA and the regulations promulgated thereunder specify
14 maximum contaminant levels (“MCL’S”) for drinking water provided by
15 public water systems. Nitrate is one of the substances for which an MCL
16 has been set. The nitrate MCL Is 10 milligrams per liter (40 C.F.R.
17 §141.11). The nitrate MCL was set at this level because nitrate
18 concentrations above 10 milligrams per liter have been found to create a
19 health risk, particularly for infants under six months of age. Their
20 digestive system converts nitrates (NO 3 ) to nitrites (NO 2 ), which
21 react with hemoglobin in the blood to form rnethenioglob-in. This compound
22 prevents hemoglobin from carrying out its function of transporting oxygen
23 within the body. The resulting disease, methemoglobinemia, essentially
24 causes varying degrees of biological suffocation, in severe cases
25 manifested as the “blue baby” syndrome.
26 4. From the time of defendants’ acquisition of the Westgate tlobile
27
28 AFFIDAVIT OF WILLIAM A. MULLEN: Page 2 of 8
Form C’BD 183
I2- .76 no
-------
1 Home Park in June 1981, the drinking water provided at Westgate
2 consistently exceeded the nitrate MCL of 10 milligrams per liter. Tests
3 conducted on three water samples taken in January 1983, for example,
4 showed an average concentration of 24 milligrams per liter, more than
5 twice the nitrate MCL.
6 5. The SOWA requires public water systems to sample and analyze the
7 quality of the drinking water provided by their system and to report
8 analytical results to EPA (when the State has not assumed primary
g enforcement responsibility under the SDWA, as is true in Oregon).
10 Failure to sample and report deprives EPA and the public of adequate
11 information on the safety of the drinking water.
12 6. From June 1981 to June 1983, defendants repeatedly failed to
13 report the results of bacteriological sampling for the drinking water
14 supplied at Westgate. In addition, defendants failed to carry out
15 additional tests following their receipt of November 1981 and February
16 1982 test results that disclosed exceedances of the nitrate MCL. Such
17 additional analyses are required by 40 C.F.R. §141.23(d).
18 7. The following is a summary of EPA’s attempts to obtain
19 defendants’ voluntary compliance with the Safe Drinking Water Act:
20 A. “ On March 2, 1981 (prior to defendants’ June 1981 purchase of the
21 Westgate Mobile Home Park), Steven J. Pierce, defendants’
22 attorney, contacted EPA by telephone to ascertain the SDWA
23 requirements relating to maximum nitrate level and monitoring
24 and reporting requirements. The relevant requirements of the
25 SOWA were explained at that time to Mr. Pierce.
26 B. On September 30, 1981, the former owner, Mr. Peck, wrote a
27
28 AFFIDAVIT OF WILLIAM A. MULLEN: Page 3 of 8
Form OBD.183
12-8-76 POJ
-------
• letter to EPA in which he stated that defendants had purchased
2 Westgate in June 1981, and that “In lieu of an adequate down
3 payment, the purchasers agreed to make the necessary
4 iniprovements to the water system.. .to comply with the EPA
5 standards.”
6 C. On September 30, 1981, defendant Mr. Cook telephoned EPA to
7 discuss monitoring and reporting requirements. He stated that
8 no bacteriological or nitrate testing had been performed in
g August.or September 1981. EPA again informed him of the SOWA
10 requirements relating to nitrate contamination and monitoring
11 and reporting.
12 0. On November 6, 1981, the former owner, Mr. Peck, mailed EPA a
13 copy of the letter he wrote to defendants Mr. and Mrs. Cook in
14 which he notified them “that the actions required to bring the
15 water supply system to within all the standards required by the
16 Environmental Protection Agency must be taken within thirty (30)
17 days.”
18 E. On November 16, 1981, EPA received a telephone call from Lou
19 Cook, who is the defendant Mr. Cook’s brother and who had been
20 operating the Westgate water system for five months. Lou Cook
21 reported that he had called in engineers regarding the nitrate
22 problem, but they couldn’t guarantee that treatment would lower
23 the nitrate levels enough to meet the standards. He also stated
24 that he couldn’t afford to hook up to the City of Ontario’s
25 ater system. -
26 F. On January 12, 1982, EPA mailed a certified letter to the former
27
28 AFFIDAVIT OF WILLIAM A. MULLEN: Page 4 of 8
form 060-183
12.8-76 DOJ
-------
1 owner, Mr. Peck, to inform him of the continuing problems of
2 non-reporting and nitrate MCL violations, on January 19, 1982,
3 EPA mailed another certified letter to Mr. Peck to notify him of
4 an incorrect statement in EPA’s previous letter (the inorganic
5 chemical monitoring period is a three year interval, not a one
6 year interval as was indicated in the January 12 letter).
G. On January 21, 1982, the County of Maiheur denied Westgate
8 Mobile Home Park a license for traveler’s and tourists
9 accommodations due to the high nitrate levels in the drinking
10 water.
11 H. On January 24, 1982, the former owner, Mr. Peck, mailea a letter
12 to EPA describing his interactions with the defendants Mr. and
13 Mrs. Cook, his efforts to correct the non—reporting problem arid
14 the status of foreclosure proceedings.
15 I. On February 26, 1982, EPA received a call from Mr. Steven
16 Pierce, defendant Mr. Cook’s attorney. EPA requested proof of a
17 sale transaction in order to substitute Mr. Cook as the new
18 Westgate owner for EPA’s records.
19 J. On March 2, 1982, EPA telephoned Mr. Pierce to provide him with
20 technical and health infoniiation regarding nitrates.
21 K. On March 8, 1982, defendants’ attorney mailed a letter to EPA
22 which proposed solutions for the nitrate contamination occurring
23 at the Westgate Mobile Home Park.
24 1. On April 26, 1982, EPA mailed a letter to defendants’ attorney
25 providing comments on the proposed solution for nitrate
26 contamination at Westgate.
27
28 FFJ!JAVIT OF WILLIAM A. MULLEN: Page 5 of 8
Form C9D-183
12-8.76 DOJ
-------
11. On April 30, 1982, defendant’s attorney mailed a response letter
2 to EPA indicating they would research alternative solutions to
3. the problem.
4 N. On May 24, 1982,..EPA mailed a certified letter to defendant’s
5 attorney suggesting additional alternative solutions to the
6 nitrate problem.
7 0. On January 21, 1983, EPA sent to Steven J. Pierce, defendants’
8 attdrney, the results of analyses conducted on water samples
9 that EPA had obtained during a January 12, 1983 inspection of
10 Westgate. These test results showed substantial violations of
11 the nitrate MCL.
12 P. On January 21, 1983, EPA issued a press release notifying the
13 public of the nitrate contamination found in the drinking water
14 provided at Westgate.
15 Q. On January 21, 1983, defendant Mr. Cook telephoned EPA regarding
16 the reported nitrate violations and other SDWA violations at
17 West gate. The specific legal obligations of the SOWA were again
18 explained to Mr. Cook at that time.
19 R. On February 1, 1983, EPA issued a Formal Notice of Violation to
20 defendants for their SOWA violations. That Notice required
21 defendants to immediately take all necessary action to prevent
22 future violations of the nitrate MCL, to comply with the SDWA
23 requirements for bacteriological and nitrate testing, to
24 immediately notify the users of the water at Westgate of the
25 violations, and to provide information to EPA regarding the
26 corrective action that had been or would be taken to meet these
27
28 AFFIDAVIT OF WILLIAM A. MULLEN: Page 6 of 8
aim 080.183
?-8-?6 f b i
-------
1 requirementS. EPA received no response of any kind from
2 defend nts following this order.
8. On the basis of the information available to EPA, defendants
4 have not issued arty public notification to the persons served by their
5 water system concerning their violations of the nitrate MCL or their
6 failure to comply with the monitoring and reporting requirements of the
Safe Drinking Water Act and the 40 C.F.R. Part 141 regulations.
8 9. The following is an approximate calculation of the economic
g savings that accrued to the defendants in not performing water sampling
io and analysis at the Glen Villa Trailer Park as required by the SDWA for
ii the 25 months between June 1981 and June 1983. The bacteriological
12 ana1ys s costs are calculated by using an approximate fee of $15.00 each
13 and the nitrate tests are estimated at l4.00 each. These are standard
14 lab fees in the Malheur County area. In addition, an estimate is
15 included of the financial benefit that defendants realized by not
16 investing in measures (specifically, connecting the Westgate water system
ii to the system operated by the City of Ontario) that would correct the
18 problem of nitrate contamination.
19 a. Bacteriological testing — required monthly
20
21 June 1981 — May 1983 (month in which complaint was filed) =
24 months (testing performed by defendant — one (1) month)
22
23 months x $15/month = $345.00
23
b. Two nitrate tests required after both the November 1981 and
24 February 1982 tests’that showed exceedances of the nitrate CL
25 4 tests x $14.00 each = $56.00
26
27
28 AFFIDAVIT OF WILLIAM A. MULLEN: Page 1 of 8
Form 000-183
2-8-76 DOJ
-------
1
c. Economic savings from not entering into financing to pay
2 estimated $40,000 cost of connecting Westgate to Ontario water
system.
24 months at 12 percent per annum simple interest =
4 ________
5 Defendants’ total economic savings from non compliance =
lO’ 00 1. 00
6
7 The above calculation of savings accrued does not include the costs of
8 postage for mailing samples to the lab, postage for mailing analytical
9 results to EPA, printing and postage for issuance of public notices or
10 imputed interest on the amounts that should have been spent for
11 monitoring and reporting over the period of non-compliance. Such savings
12 were realized by defendants but are somewhat difficult to quantify.
13
14
15
16
17 l4 ill iam A. Mufle (
18 Chief, Drinking Water Branch
19
20
Subscribed and sworn to before me this ___________ day of September, 1983.
21
22
::
Notary Public in and for the State of Washington,
25 /
County of King, residing at 4- .. // _
26
My commission expires: _____________________
27
28 AFFIDAVIT OF WILLIAM A. MULLEN: Page 8 of 8
F , rm O O-183
2.8.76 DOJ
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ATTACHMENT A
Reporting History of Westgate Mobile Home Park
Summary of Data Received Since June 1981
Bacteriological Monitoring
Date Sampled Timely Other Comments
Month/Year Reporting Reporting
11/81 2 (1) 21100 ml
05/82 1 County Sample
Inorganic Chemical Monitoring
Date Sampled
Month/Year Well #1 Well #2
11/81 14.5 mg/i 25.0 mg/i
01 /83 24 mg/l 23 mg/l
25 mg/i
-------
ATTACHNENT B
Summary of Verbal Contacts Between EPA
and Westgate Mobile Home Park
Date Description
3/2/81 Telephone call from defendant Mr Cook to EPA re: results of
1/12/83 EPA inspection that showed nitrate contamination at
West gate.
9/29/81 EPA phone call to Westgate re: non—reporting of Bacti and
sale of Westgate Mobile Home Park.
9/30/81 Westgate phone call to EPA re: non-reporting of Bacti. Sale
of Westgate Mobile Home Park not final yet.
10/19/81 Westgate phone call to EPA re: ownership status. No proof of
sale so Alan Peck is still the owner.
11/6/81 Westgate letter to EPA: prospective buyers given notification
by Alan Peck to take corrective actions required by NOV
within 30 days.
11/16/81 Westgate phone call to EPA re: nitrate MCL violation,
pass ible solutions and questionable ownership of system.
2/26/82 Westyate attorney phone call to EPA re: foreclosure against
Cook
3/2/82 EPA phone call to Westgate attorney re: nitrate information
1/2/83 Telephone call from Steven J. Pierce, defendants’ attorney,
re: SOWA requirements for bacteriological and nitrate
sampling and reporting, and SOWA standards for maximum
allowable nitrate levels.
-------
ATTACHMENT ‘C
Summary of Written Cornunications
Between EPA and Westyate Mobile Home Park
‘ Date Description
9/30/81 Westgate letter to EPA re: sale of Westgate Mobile Home Park
in June 1981. New owner has decided to delay hook—up
1/12/82 .EPA letter to Westgate re: ownership and public notification
requirements
1/19/82 EPA letter to Westgate: addendum to the 1—12—82 letter
1/24/82 Westgate letter to EPA re: foreclosure proceedings against
the Cooks
3/8/82 Westgate letter to EPA re: proposed solutions for nitrate
contamination
4/26/82 EPA letter to l4estgate: response to proposed solutions for
nitrate contamination.
4/30/82 Westyate letter to EPA re: proposed solutions to nitrate
problem
5/24/82 EPA letter to Westgate re: possible solutions to nitrate
problem
1/21/83 EPA letter to Westgate re: results of tests conducted by EPA
showing violations of nitrate MCL at Westgate.
2/1/83 Formal EPA Notice of Violation issued to defendants requiring
immediate compliance with nitrate MCL, with requirements that
defendants notify the public of their violations, and with
requirements for nitrate and bacteriological sampling and
reporting.
-------
1 CHARLES H. TURNER
Unitea States Attorney
2 THOMAS C. LEE
Assistant United States Attorney
312 U. S. Courthouse
620 S. W. Main Street
4 Portland, Oregon 97205
Telepnone: (503) 221—2101
5
Attorneys for Plaintiff
6
7
8
9 IN THE UNITED STATES DISTRICT COURT
FOR TriE UISTR1CT uF OREGON
10
UNITED STATES OF A IERICA, )
11
Piaintiff,
12 ) Civil No. 63-638
vs. )
13 AFFIDAVIT OF
ROBERT G. COOK and DENISE D. COOK, DEFENDANTS’
14 d/b/a WESIGATE MOBILE HUME PARK, ) MILITARY SERVICE
15 Defenoants.
16
17 Harold R. Rogers, being duly sworn upon his oath, accorainçj to
18 law, deposes äna Says:
19 1. I am an employee of the Unitea States Environmental
20 Protection Agency (“EPA”), Oregon Operations Office, 522S. W. Fifth
21 Avenue, Portlanci, Oregon 97204. My position is tnat of an Environmental
22 Protection Specialist in the EPA Safe Drinking Water Program in Oregon.
23 My specific duties include contacting operators and owners of puulic
24 drinking water systems to ensure their compliance with the requirements
25 of the Safe Drinkiny Water Act, 42 U.S.C. 3OOf et 9..
26
27
28 —.--- -- .---—
EXHIBtT 3
Farm C 8D-1S3
12-8-76 DOJ
-------
1 2. In the course of my duties in the EPA Safe DrinKing Water
2 Program, I contacted aefendant Robert G. Cook by telephone in nud-1 8l
and again in early 1983 concerning his obligations to comply with the
4 nitrate maximun contaminant levels ano with the water quaUty monitoring
and reporting requirements of the Safe DrinKing water Act.
6 3. Basea on my dealings with the defendants, I believe that
7 aefendants Robert G. Cook and Denise 0. CooK are not currently in the
8 active military service of the Unitea States.
9
HAWLU F. RUGEr S /
12 Environmental Protection
Speci al ist
13
Subscribeu and sworn to this day of __________ lYB3.
16
17 Notary Puolic in anu tor tne
State of Oregon, Multnomah County,
18 residing at yq.L4- ç “ ‘/ 3
19 P I /A-J, Oi 72 ./5
20
21
22
23
24
25
26
27
28
Form 080483
12-8.76 DOJ
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1 CHARLES H. TURNER
United States Attorney
2 THOMAS C. LEE
Assistant United States Attorney
3 312 U. S. Courthouse
620 S. W. ham Street
Portland, Oregon 97205
Telephone: (503) 221-2101
6 Attorneys for Plaintiff
7
8
IN THE UNITED STATES DISTRICT COURT
10 FOR THE DISTRICT OF OREGON
UNITED STATES OF AMERICA, )
11 )
Plaintiff, )
12 ) Civil No. 83-638
vs.
13 ) JUDGMENT
ROBERT 6. COOK and DENISE 0. COOK,
14 d/b/a WESTGATE MOBILE HOME PARK,
15 Defendants.
16
17 This cause caine on to be heard on _____________________, on
plaintiff’s Motion for Default Judgment against the above-named
defendants pursuant to F.R. Civ. Proc. Rule 55(b)(2).
20 The Court has considered plaintiff’s mation, the argument of
21 counsel for plaintiff, and the defendants’ failure to plead or otherwise
22 defend as required by the Federal Rules of Civil Proceaure. The Court
23 has determined that plaintiff is entitled to default judgment against
24 defendants, assessing civil penalties and ordering injunctive relief
25 against defendants as required in plaintiff’s complaint, for defendants’
26 violations of the Safe Drinking Water Act, 42 U.S.C. §300f et g.
27
28 JUDGtIENT - PAGE 1 OF 2
Form CBD-183
12-8-76 DO)
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1 Therefore:
2 IT IS ORDERED that plaintiff’s Notion for Default Judgment
against defendants Robert G. Cook and Denise 0. Cook, doing business as
Westgate Mobile Home Park, is granted, saia defendants to pay the United
States Government a civil penalty of $35,400.00 for their Safe Drinking
6 Water Act violations.
7 II IS FURTHER ORDERED that defendants Robert 0. Cook aria Denise
8 D. Cook shall henceforth comply in all respects with the applicable
requirements of the Safe Drinking Water Act, and the 40 C.F.R. Part 141
10 regulations promulgated thereunder, concerning maximum contaminant levels
for nitrates, water quality sampling, analysis, and reporting of
12 analytical results to the U. S. Environmental Protection Agency, ano
13 notification to the public in the event that maximum contaminant levels
14 are exceeded or defendants fail to perform required monitoring or
15 reporting.
16 IT IS FURTHER ORDERED that defendants shall pay the costs ana
17 disbursements incurred by the Government in this action, except that the
18 Government’s attorney fees shall not be taxed to defendants.
19
20 ORDERED AND DECREED THIS DAY OF _____________, 1983.
21
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23 UNITED STATES DJSTHICT JUDGE
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28 JUDGMENT - PAGE 2 OF 2
Form 000 183
12 8.76 DOJ
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1 CERTIFICATE CF SERVICE BY MAlL
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UNITED STATES OF AMERICA, )
9 )
Plaintiff, ) Civil No. 83-638
10 )
vs. )
11 )
ROBERT C. COOK and DENISE D. COOK, )
12 d/b/a WESTGATE iOBILE HOME PARK, )
)
13 Defenaants. )
_______________________________________________________________________________________________ )
14
15 The undersigned hereby certifies that she is an employee of the
16 Li. S. Environmental Protection Agency and is a person of such age ana
discretion as to be competent to serve papers.
18 That / , 1983, she served a copy of the
19 attached Motion for Default Judgment, the supporting iemorandum and
20 Affidavits thereto, ana a copy of the proposed form for judgment b .
21 placing said copies in postpaid envelopes addressed to the persons
22 hereinafter named, at the places and addresses stated below, which are
23 the last known addresses, and by depositing said envelopes and contents
24 in the United States Mail at Seattle, Washington.
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26
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28 CERTIFICATE OF SERVICE - PAGE 1 OF 2
worm OBD-183
12-8.76 DOJ
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1 Addressees: Thomas C. Lee
Assistant United States Attorney
2 Office of United States Attorney
312 U. S. Courthouse
3 620 S. W. Main Street
Portland, Oregon 97205
4
Robert G. Cook and Denise D. Cook
5 1648 West Idaho 1 venue
Ontario, Oregon 97914
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8 , • _ -i - — c - -‘ i — -- .-— —
t4arian L. Rtkinson
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Corm OBD.183
2-8-76 fb i
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PRETRIAL ORDER
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U.S. ENVIRO .MENTAL PROTECTION At. _NCY
REGION X
1200 SIXTH AVENUE
SEATTLE, WASHINGTON 98101
PRO
!U613
September 15, 1983
Ted E. Grove, Esq.
Lucas, Petersen & 1-Iuffnian
P. 0. Box 288
Clatskanie, Oregon 97016
Re: U. S. v. Midland Water Association, et al
Civil No. 83-32
Dear Ted:
According to my records, a Pretrial Oraer must be lodged with the court in
this action by October 6, 1983. L. R. 235-2 requires plaintiffs to propose
Pretrial Orders to other parties within twenty days before the lodging date.
Accordingly, enclosed is a proposed Order. You will notice that I listea
nearly all of the material facts in the first category provided in the Order —
— agreed facts whose relevance is not disputed. Based upon your responses to
EPA’s interrogatories, I believe that such facts truly are not in dispute. If
you disagree, you may place these facts under other headings, such as “Facts
which are not admittea but which will not be controverted at trial,” or
“Contentions of fact.” You may well also want to incluae additional issues of
fact or law in this Pretrial Order. For example, it may be appropirate to
give more specifics on Midland’s so far unsuccessful attempts to obtain grant
funding for improvements to the water system.
Let me know of any objections or changes you have to this proposed Order.
ncere y,
A
David M. Heineck
Assistant Regional Counsel and
Special Assistant United States Attorney,
District of Oregon
Enclosure
-------
CHARLES H. TURNER
United States Attorney
•ThOt1AS C. LEE
Assistant Unitea States Attorney
312 U.S. Courthouse
620 S.W. flain Street
portland, Oregon 97205
Telephone: (503) 221—2101
Attorneys for Plaintiff
UNITED STATES OF AF’ERICA,
)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Plaintiff,
vs.
MIDLAND WATER ASSOCIATION and
RIChARD ABRAHN SON,
Defendants.
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Civil No. 83—32
PRETRIAL ORDER
The following Pretrial Order is lodged with the court pursuant to
L. R. 235-2.
A. Nature of Action
This action involves alleged violations by the
Safe Drinking Water Act, 42 U.S.C. 3OOf et q. (the “SOWA”
the National Interim Primary Drinking Water Regulations, 40
(the “regulations”). Defendant t’iidland Water Association,
association is alleged to be a “public water system” and a
system” that is subject to the requirements of the Act and
Defendant Richard Abrahamson is alleged to have been the
PRETRIAL ORDER - PAGE 1 OF 8
defendants of the
or the Act”), and
C.F.R. Part 141
a cooperative
“community water
the regulations.
Form 080.183
12.8-76 DOJ
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operat oy of the, Midland water system from 1979 through 1982, during which time
2 a number of SDWA violations are claimed to have occurred. Such violations
3 include: providing drinking water at 1 ,idland that contained coliform bacteria
4 in amounts exceedng the maximum contaminant levels (“MCLs”) set by the
5 regulations; failing to analyze the water at Midland for turbidity, coliform
6 bacteria; and organic and inorganic chemicals; failing to in inform EPA that
7 required analyses haa not been done; and failing to give public notice of
8 these violations, as required by the Act.
9 Trial in this case will be to the court.
10 B. Subject £‘ atter Jurisdiction
11 This Court has jurisdiction over the subject matter of this
12 action pursuant to 28 U.S.C. §1345, since this is an action commenced by the
13 United States. Subject matter jurisdiction is also provided by Section
1414(b) of the Safe Drinking Water Act, 42 U.S.C. §300g-3(b), which grants the
15 Administrator of the Ii. S. Environmental Protection Agency the authority to
16 commence civil actions in the United States district courts to require
17 compliance with the SDWA and assess civil penalties as appropriate for any
18 violations.
19 C. Aareed Facts as to which Relevance is Not Disputed .
20 1. At all tjjji s from July 1, 1979 through the present the
21 fl id1and Water Association (“Midland”), a cooperative having its principal
22 place of business in Clatskanie, Oregon, has served at least 25 year-round
23 residents through at least 15 service connections. The Midlana water system
24 is thus a public water system and a community water system that is subject to
25 the MCL, monitoring, reporting and public notification requirements of the
26
27
28 PRETRIAL ORDER - PAGE 2 CF 8
Form OBD.183
12-8-76 DOJ
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1 Act. Midland had corporate status under Oregon law from December 27, 1929
2 through December 27, 1979.
2. Defendant Richard Abrahamson was chairman of the Boaro
of Directors of the Midland Water Association at all times from July 1, 1979
through 1982. Pursuant to the By-Laws of the Association, during his tenure
6 as chairman Mr. Abrahamson had the power to exercise management and control
over the Midland water system.
8 3. The drinking water regulations set a maximum
contaminant level for coliform bacteria of 1 bacteria per 100 rnilliters ( “ml ”)
10 of water. 40 C.F.R. §141.14. For conmunity water systens such as Mioland,
11 compliance with this microbiological standard is determined upon sampling
12 during a three-month period, although EPA has the discretion to specify a
13 one-month period for determining compliance. 40 C.F.R. §141.14(c).
14 4. On September 16, 1982, EPA Region 10 issuea an
administrative Notice of Violation to defendants. In that Notice of
16 Violation, EPA exercised its discretion to shorten the period from three
17
months to one month for determining compliance with the microbiological MCL.
18
5. At all times relevant to this action, the regulations
19
required defendants to sample anc analyze at least once per month to determine
20
levels of microbiological contaminants in the water supplied by Nidlanc. 40
21
C.F.R. §141.21.
22
6. Defendants did not sample and analyze for
23
microbiological contaminants at the Mioland system for any month from July,
24
1979 through December, 1982.
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28 PRETRIAL ORDER - PAGE 3 OF 8
Form CBD-183
12-8-76 )Oj
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1 7. Following the filing of this action, defendant Nidlano
2 Water Association commenced monthly sampling and analysis for microbiological
3 contaminants. Samples from the Midland system have been analyzed, and the
results reported to EPA, each month from January 1983 through the date of’
5 lodging of this Pretrial Order.
6 8. For the microbiolooical analyses that defendants have
7 conducted from January 1983 through the present, defendants have utilized the
8 “fermentation tube” methoa of analysis. The microbiological MCL set for this
9 method states that the MCL is exeeded whenever coliform bacteria are found in
10 more than 10 percent of all of the tubes analyzed in any one month. 40 C.F.R.
11 §141.13(b). For each month from January 1983 through the date of lodging of
12 this Pretrial Order, except for the month of June 1963, the analytical results
13 that have been submitted by defendant Midland Water Association have shown
that coliform bacteria were present in more than 10 percent of all tubes
15 analyzed in such month.
16 9. The Midland water system utiizes a surface water
17 source. Accordingly, defendants at all relevant times have been required to
18 take turbidity measurements of the water supplied by Midland on a daily
19 basis. 40 C.F.R. §141.22. Public water systems utilizing surface water -
20 sources, such as that operated by defendants, were also required to sample ana
21
analyze for inorganic chemical contaminants by dune 24, 1978, ana to repeat
22 such inorganics tests once per year thereafter. 40 C.F.R. §l41.23(a)(l).
23 Systems having surface water sources such as Midland were also required to
24 complete tests for organic chemical contaminants by June 24, 1978, and are
25 required to repeat such analyses at three-year intervals thereafter. 40
26 C.F.R. §141.24.
27
28 PRETRIAL ORDER - PAGE 4 CF 8
Form OBD-183
12-8-76 DOJ
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1 10. Defendants made no measurements of the turbidity of
2 the water supplied by Midland between July 1, l979and-Februaryi1, 1983.”..
11. From February 1983 to the date of lodging of this
Pretrial Order, defendant Midland Water Association has taken turbidity
measurements on many of the days in each month.
6
12. Defendants have not conducted any analyses to
determine levels of inorganic chemicals in the water supplied by Nidland from
8 July 1, 1979 to the date of lodging of this Pretrial Order.
13. Defendants have not conducted ny analyses tc
10 determine amounts of organic chemical contaminants in the water proviaed at
11 Midland from July 1, 1979 to the oate of lodging of this Pretrial Oraer.
12
14. The 40 C.F.R. Part 141 regulations require public
13
water systen s such as Midland to notify EPA within 48 hours of any failure to
14 perform required water quality monitoring. 40 C.F.R. §141.31(b). Defendants
15
did not notify EPA within the required time of any of the failures to sample
16
and analyze described in paragraphs 6, 10, 12 and 13 above.
17
15. Defendant Midland Water Association elected a new
18
Board of Directors in 1983. The new directors are Wallace Overlund
19
(Chairman), Peter Kynsi, Jack Hovden, James Davis, Richard Chevron and Chris
20
Nielson. These directors have retained the engineering firm of H—G-E
21
Engineering, of Portland, Oregon, to propose measures to bring Midland into
22
compliance with the Act, and to coordinte efforts to obtain funding for such
23
improvements through government grants. With the assistance of H-G-E
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28 PRETRIAL ORDER - PAGE 5 OF 8
Form OBD.183
128.76 DOi
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1 Engineering, Midland has submitted two applications for grant funding in 1983,
2 one for funding under the HUD Block Grant Program and another for assistance
under Jobs Bill funding. Unfortunately, both of these applications were
4
rejected.
0. Acreed Facts as to Which Relevance is Disputed .
6
None.
7
E. Facts that are not admitted but which will not be
8 controvertea at trial .
1. On June 22, 23, 24 and 25, 1982, EPA collected water
10 samples from the Midland water system. No other samples were taken by EPA or
ii by defendants in the three-month period of April, May and June, 1982.
12 Analysis of these water samples showed an average level of 33 coliform
13 bacteria/lOO ml in the drinking water provided by defendants.
14 2. On September 28, 1982, EPA again obtained water samples
15 from the Midland water system. No other samples were taken by EPA or by
16 defendants during that month. Analysis of all of the water samples taken on
17 September 28, 1982 showed an average level of 9 bacteria/lOO ml.
18 F. Contentions of Fact: Plaintiff
19 1. In 1982 and 1983, defendant Richard Abrahamson made
20 statements to the newspaper and television media indicating that he was aware
21 of the monitoring and reporting requirements of the SOWA, but that water
22 monitoring had not been conducted since they would only confirm that the water
23 at Midland did not comply with the MCL for coliform bacteria.
24 2. On June 22, 1982, defendant Mr. Abrahamson stated to Mr.
25 Harold Rogers of the EPA that the water at Midland had not been tested since
26 he knew the water was contaminated with coliform bacteria.
27
28 PRETRIAL ORDER - PAGE 6 OF 8
Form C 1 BD-183
12-8-76 DOJ
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1 Er In 1979 and 1982, EPA received inquiries from users of the
2 Midland water system concerning possible health risks posed by the presence of
coliform bacteria in the water provided by Midland. Two users reported
digestive tract infections and inquired as to whether such infections could
have been caused by the coliform bacteria in the Mialano drinking water.
6 G. Contentions of Fact: Defendant -
1. Defendants question EPA’s claim that on specific dates
8 prior to the January 7, 1983 filing of the Complaint in this action, EPA
notified defendants of the various requirements of the SDWA aria the
10
regulations.
11
H. Contentions of Law: Plaintiff
12
1. Defendants’ violations of the Safe Drinking Water Act
13
and the regulations were willful within the meaning of Section 1414(b) of the
14
Act, 42 U.S.C. §300g-3(b), and subject the defendants to statutory civil
15
penalties. -
1 6
2. During his term as Chairman of the Board of Directors,
17
defendant Richard Abreahamson was an operator of the Midland water system
18
within the meaning of Section §1401(5) of the Safe Drinking Water Act, 42
19
U.S.C. §300f(5).
20
I. Contentions of Law: Defendant
21
None.
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28 PRETRIAL ORDER - PAGE 7 OF 8
Form 080-183
12-8-76 DOJ
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J. Amendments to Pleadings
In the view of the parties, no amendments need to be maae to the
pleadings in this action.
p ?’ hi, / - - k
t11 Attorneys for Plairitirf
—‘ ‘•‘\ ./•_ /
\ ‘( v..—,
(,- ‘
Of Attorneys for Uefenaants
IT IS ORDERED that the foregoing Pretrial Order is
_______________ Approvea as locigea.
________________ Approvea as amendea by
1 nterli neati on.
1983.
day of
U. S. DISTRICT JUDGE/MAGISTRATE
DATED this
PRETRIAL ORDER - PAGE 2 OF 2
Form 06D-183
12.8.76 DOJ
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CERTIFICATE OF SERVICE BY MAIL
2
3
UNITED STATES OF AMERICA
4
vs. ) CIVIL NO. 83-32
5
MIDLAND WATER ASSOCIATION, et a].
6 ______________)
7 The undersigned hereby certified that she is an employee of the
8 U. S. Environmental Protection Agency and is a person of such age and
9 discretion as to be competent to serve papers.
10 That on October 6, 1983 she served copies of the attached
11 proposed Pretrial Order by placing said copies in postpaid envelopes aadressed
‘12 to the person(s) hereinafter named, at the place(s) and address(es) stated
13 below, which is/are the last known address(es), and by depositing sala
envelopes and contents in the United States Mail at Seattle, Washington
15
16 Addressee(s): Thomas C. Lee
Assistant United States Attorney
17 Office of United States Attorney
312 U. S. Courthouse
18 620 S. W. Main Street
Portland, Oregon 97205
19
Ted E. Grove, Esq.
20 Lucas, Petersen & Huffman
P. 0. Box 288
21 Clatskanie, Oregon 97016—0268
24 Marian L. Atkinson
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Form 080-183
12-8-76 Doj
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JUDGMENT
-------
CHARLES H. TURNER
United States Attorney SF S ‘: F”
THOMAS C. LEE
Assistant United States Attor iey
3 2 U. S. Courthouse
620 S. ain Street
Portlano, Oregon 97205
Telephone: (503) 221-2101
Attorn3ys for Plaintiff
Certified to b, a true end co’roc’I
copy of on inal JiI.d jnjnj office
—
M. CI -U SI. Clerk
‘ ii f’ - De2uty
- -
I N THE UNITED STATES DISTRICT COURT
FOR THE DISTRicT OF OR [ GGN
UNITED STATES CF AMERICA,
/(
OCT I? ‘ P’ i1
CLL
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6 I.) .i.’
Plaintiff,
vs.
ROBERT C. COON and DENISE 0. COOK,
d/b/a WESTGATE MOBILE HOME PARK,
Defendants.
)
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Ci i1 No. 83—638
JUDGMENT
This Cause carre on to be heard on , on
plaintiff’s Motion for Default J iocrnent aoainst the above—named
defencants pursuant to F.R. Cjv. Proc. R l 55(b)(2).
Tne Ccurt has consloerec plaintiff’s motion, the arGument of
counsel for plaintiff, ano the defen nts’ failure to pleac or otherwise
defend as reqinrea b the Federal Rules of Civil ProceaLre. The Court
has determired triot plaintiff is entitlea to default Jud r ent against
aefer,cants, assessir c civil penaltiec and orcermn Ir.Jurlctlve relief
against deferaar t as r quJrea ir plaintiffs cc pi int, for cefendants’
violations of tne Saf€ C’ - in :inc .ater kt, ‘2 U.S.C. 3f et sea.
-
-------
1 Therefore:
2 IT IS ORDERED that plaintiff’s otion for Default Judgment
3 a inst Gefendants Robert C. Cook and Denise 0. Cook, doing business as
Westcate t obile Home Park, is granted, saio aefenaants to pay the United
I; States Governgent a civil penalty of $35,400.00 for their Safe Drinking
6 Water Act violations.
7 IT IS FURTHER ORDERED that oefencants Robert C. Cook anc Denise
8 • Cook-shall henceforth co ply in all respects itn the apDulcaole
9 requirements of the Safe DrinKino water Act, anc the 40 C.F.R. Part 4i
10 regulations promulgated thereunaer, concerninQ maximum Ccntamlranc levels
for nitrates, .ater quality sampling, analysis, ana reportinc of
12 analytical results to the U. S. Environmental Protection Acenc)’, cnc
notification to the public in the event that ai urn con:aTiinant levels
14 are exceeced Or defencants fail to perf&r recuirec monitoring or
15 reportinc.
IT IS FuRTHER C DER . that Ge er,dants shall pa the costs e .o
17 d sburse. ents incurred by the Government in tnis action, except that the
18 Government’s attorney fees shall not be taxec to oe encants.
20 ORDERED DECREED THIS 7 / DA _______
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i O - L LI,
C S2
-8?6 L)OJ -
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1 SIDNEY I. LE7 /\K
UniLed States AtLorn y
2 District of Oregon
3 THOMAS C. LEE
Assistant United States Attorney
4 312 U.s. Courthouse, P.O. Box 71
Portland, Oregon 97207
5 Tel: 221—2153
Attorneys for Plaintiff
6
7
8 IN THE UNITED STATES DISTRICT COURT
9 FOR THE DISTRICT OF OREGON
10 UNITED STATES OF AMERICA,
11 Plaintiff,
CIVIL NO. 79—23
12 STATE OF OREGON,
13 Plaintiff—
Intervener, ) SATISFACTION OF JUDGISIENT
14
v.
15
NESKQNIN ENTERPRISES, et al.,
16
Defendants.
17
The Judgment in the above-entitled case, entered with the
18
U.S. District Court for the District of Oregon on November 19, 1979,
19
for $5,327.00, having been satisfied and paid in full, the Clerk of
20
the United States District Court is hereby authorized to enter
21
Satisfaction of Judgment against defendant Newkowin Enterprises, et
22
Dated this 28th day of January, 1980.
23
SIDNEY I. LEZAK
24 United States Attorney
25
26
!OMAS C. LEE
27 Assistant United States Attorney
28
m 060 183
76 DOJ
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1 CLRTIF)CA’l’n or SEnvrcr: fly NAIl .
2 I J creby certify that I have riiade service of LJic forey)1r1(J
3 Satisfaction of Judgment on the parties hurein by cleposiLincj in
4 the United States Post Office at Portland, Oregon, on January 28,
5 1980, a certified true, exact and full copy thereof, enclosed in
6 an envelope with postage thereon prepaid, addressed to:
7 DAVID RHOTEN
Rhoten, Rhoten and Speerstra
8 Attorneys at Law
300 Pioneer Trust Bldg.
9 Salem, OR 97301
10 ROBERT D. WASSON
Tillamook County District Attorney
11 P.O. l3ox 72
Tillamook, OR 97141
12
HERBERT R. DcSELMS
13 Attorney at Law
P.O. Box 254
14 Lincoln City, OR 97367
15 ELIZABETH MERRILL
Attorney at Law
16 P.O. Bo< 46
Tillarriook, OR 97141
17
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19 -THOMAS C. LEE
Assistant United States Attorney
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28 PAGE 2 — SATISFACTIO i OF JUDGMENT
tm C’BD•183
a-76 DOJ
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CONSENT DECREE
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1 CHARLES H. TURNER
United States Attorney
2 THO LAS C. LEE
Assistant United States Attorney
3 312 U.S. Courthouse
620 S.W. Main Street
4 Portland, Oregon 97205
Telephone: (503) 221—2101
5
Attorneys for Plaintiff
6
7
8
IN THE UNITED STATES DISTRICT COURT
9 FOR THE DISTRICT OF OREGON
10 UNITED STATES OF AMERICA, )
) Civil No. 82-6362-E
11 Plaintiff,
)
12 vs.
) STIPULATION
13 GLEN VILLA TRAILER PARK, an ) AND
Unincorporated business, and ) CONSENT DECREE
14 JOSEPHINE MAHONEY and DONALD )
MAHONEY, a married couple,
15 )
Defendants.
16 _____________________________________)
17 Plaintiff, United States of America, on behalf of the United States
18 Environmental Protection Agency (“EPA’), having filed a Complaint herein on
19 November 12, 1982 alleging that defendants have violated the Safe Drinking
20 Water Act (“SDWA”), 42 U.S.C. §3OOfet ., and the parties by their attorneys
21 having consented to entry of this Decree;
22 NOW, THEREFORE, before the taking of any testimony herein, and without
23 trial or adjudication of any issue of fact or law herein, and upon consent of
24 the parties, by their attorneys and authorized officials, it is
25 HEREBY STIPULATED AS FOLLOWS:
26 1. This Court has jurisdiction of the subject matter of this action
27 pursuant to 28 U.S.C. Section 1345 and Section 1414(b) of the Safe Drinking
28 STIPULATION AND CONSENT DECREE - Page 1 of 11
orm OBD.183
12.8.76 DOJ
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i Water Act, 42 U.S.C. 3O0g—3(b), and jurisdiction over the parties hereto.
2 The complaint filed herein states a claim upon which relief can be granted
3 against defendants.
4 2. The ptovisions of this Consent Decree shall apply to and be
5 binding upon the parties to this action, their officers, directors, agents,
6 servants, employees and successors or assigns. Defendants shall give notice
7 of this Consent Decree to any successors in interest prior to transfer of
8 ownership and shall simultaneously verify to plaintiff that defendants have
g given such notice.
10 - 3. Defendant Glen Villa Trailer Park is an assumed business name
11 for a trailer park located in Glendale, Oregon. It is not an incorporateo
12 entity. Defendants Josephine and Donald Mahoney have at all relevant times
13 been the principal operators of the Glen Villa Trailer Park.
14 4. Defendants operate a public water system at the Glen Villa
16 Trailer Park (hereinafter “Glen Villa”) that provides piped water for human
16 consumption. The water system is subject to the requirements of the SDWA and
17 the regulations promulgated thereunder. Glen Villa obtains its water from a
18 ground water’source. Glen Villa is a “community water system” ana is a
19 supplier of water as defined at 40 C.F.R. §141.2(e)(i). Glen Villa serves at
20 least 15 sei-’vice connections used by year—round residents or regularly serves
21 at least 25 year-round residents.
22 5. Defendants are required by the national interim primary arinking
23 water regulations (40 C.F.R. Part 141) (hereinafter “the regulations”) to
24 conduct microbiological sampling and analysis at least once per mor th to
25 determine levels.of.coljforrn bacteria in the water supplied by Glen Villa. 40
26 C.F.R. §141.21(b). Bet jeen July 1977 and the date of this Agreement-—except
27
28 STIPULATIOIJ AND COUSEPJT DECREE — Page 2 of 11
orm CBD-183
12-8-76 DOJ
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1 for the months of May, 1979; February, March and October, 1981 ; February
2 through August and October and December 1982; and January, 1983-—Defendants
3 failed to conduct such sampling. These failures violated 40 C.F.R. §141.21(b).
4 6. Community water systems that utilize ground water sources, such
as the system operated by defendants, were also required to have sampled and
analyzed their water for evels of inorganic chemical contaminants by June 24,
1979, and are required to repeat such tests at least once every three years
8 thereafter 40 C.F.R. §141.23(a)(2). Defendants have not conducted such
rests, and have thereby violated said regulation.
10 7. Defendants are required by the regulations, 40 C.F.R. §141.31(a),
to report to EPA within the first ten days following the month in which test
12 results are received. Defendants failed to timely report to EPA the results
13 of water samples taken by Defendants in the months of February and March, 1981
14 and February through August and October and December, 1982. These delays in
15 reporting violated 40 C.F.R. §141.31 (a).
16 8. Defendants are required to notify EPA within 48 hours of any
17 noncompliance with the national primary drinking water regulations, including
18 any failure to comply with monitoring requirements. 40 C.F.R. §141.3(b).
19 Defendants did not notify EPA t any time of any of the monitoring violations
20 described in paragraphs 5 and 6 above. These failures to ,notify EPA violated
21 40 C.F.R. . 141.31(b). -
22 9. Community water systems are also required to notify the persons
23 they serve of any failure to comply with the drinking water regulations,
24 including faflure to perform required monitoring. 40 C.F.R. §141.32(a).
25 Defendants did not notify the persons served by the Glen Villa system of their
26 failure to conduct required monitoring for bacteriological and inorganic
27 contaminants at the system, thereby violating 40 C.F.R. §141.32(a).
28 STIPULATION AND CONSENT DECREE - Page 3 of 11
:orm OBD-183
28-76 DO!
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1 10. Defendants were notified by EPA of the sarnpl ing, reporting and
2 public notification requirements described in paragraphs 5-9 above. The dates
of such EPA notification were by letters dated April 14, 1977; May 26, 1977;
4 June 23, 1977; September 15, 1977; October 26, 1977; November 18, 1977; June
5 29, 1978; November l,’l978 andFebruary 23, 1979:’ EPA1ssoed aformalEadrnin
6 istrative Notice of Violation to defendants on May 21, 1979. Subsequent
7 letters were sent on January 18, 1980; September 18, 1980 and September 22,
8 1981. Postcards reiterating the requirements of the Safe Drinking Water Act
g were sent on March 2, 1982 and March 26, 1982. Such notice establishes that
10 defendants’ violations described above were willful and entitle plaintiff to
11 the relief set forth in this Decree.
12 11. Defendants have begun to comply with the requirements of the
13 SDWA and the regulations promulgated thereunder. Defendants have recently
14 conducted microbiological monitoring and have commenced timely reporting of
15 test results to EPA as required by 40 C.F.R. S14l.2l(b).
16 NOW, THEREFORE, based on the foregoing, it is hereby ORDERED,
17 ADJUDGED AND DECREED as follows:
18
SECTION ONE
19
Compliance Measures
20
1. Within thirty days of entry of this Decree, defendants shall
21
comply with the provisions of 40 C.F.R. § l4l.2l(a) and (b) by collecting at
22
least one sample per month of water supplied by the Glen Villa system and
23
analyzing the sample to determine the level of microbiological contamination
24
at the system. Such monthly sample shall be collected by no later than the
25
15th day of each calendar month. Compliance with the maximum microbiological
26
contaminant level shall be based upon sampling during each one—month period,
27
28 STIPULATION AND CONSENT DECREE - Page 4 of 11
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and shall be deterniined according to either the membrane filter-technique.
. .IC4
specified in 40 C.F.,R. 14l or the fermentation tube method specified in
. i Ccz).
.40 C.F.R. §l4l. .4f1TT. If such analysis shows the presence of coliforrn bacteria
esceecLvi’j * o e \( ie4 i
in the amounts . .spccificcrfor these test rnctho-d -by-40 C.F.R. §141.14(a) and
(b), defendants shall collect and analyze the additional check samples as
6 described by 40 C.F.R. § l,41.21(d)(1)—(4).
-2. -.Within thirty days of the date of entry of this Decree, defend—
8 ants shall comply with the provisions of 40 C.F.R. §141.23(a) by conducting an
( i fpccific4 L 0 c.f.R . ,qi.i (f)
.ana1ysis to determine levels of the inorganic chemical contaminants listea in
40 C.F.R. §141.11(b) in the water provided by the Glen Villa system. If the
level of any inorganic chemical listed in §141.11(b) is found to exceed the
12 maximum contaminant level established by that section, defendants shall in
13 addition collect one water sample per week for each of the first three weeks
14 following the date that defendants become aware of such a finding, and
15 defendants shall conduct an inorganic chemical analysis of each water sample
collected. These raddftional water samples shall be collected at the same
point as the first sample which indicated an exceedance of the allowable
18 levels for inorganic chemicals.
.19 3. Defendants shall notify EPA within 24 hours of the time they
20 . become aware of test results from anyAsampling conducted pursuant to paragraph
21 1 above that indicates an exceedance of the 40 C.F.R. §l41.l4ra xithum ontam-
22 inant level for microbiological contaminants, on the besis of an average-e-f
23 - pll samples taken during a calendar month . Defendants shall also notify EPA
24 within 24 hours of the time they become aware that the average of the four
.25 water samples taken pursuant to paragraph 2 above shows an exceedance of any
26 of the maximum contaminant levels for inorganic chemicals listed in 40 C.FR.
27
28 .STIPULATION AND CONSENT DECREE - Page 5 of 11
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1 §141.11(b). Notification shall be by telephone to the EPA Oregon Operations
2 Office in Portland; Oregon at (503) 221—3250. This’telephone notice shall be
3 followed by written ‘notice to EPA; at the address listed in para raphr7belt ’;
4 postmarked within 48 hours of the time thatde.fendan -ts learn of such
5 exceedances of allowable levels for microbiological or inorganic chemical
6 contaminants.
7 4. Defendants shall notify EPA in rlriting of any failure to conduct
8 the sampling or analysis required by paragraphs 1 and 2 above. Such notice
shall be sent-’ta the address listed in paragraph 7 below, and postmarked not
10 l’ater than 48 hours after the time such ‘sampling -and analysis :was :required.
11 pursuant to this Decree..
12 5. In the event that 1) the tests conducted pursuant to paragraph 1
above indicate an exceedance for any one-month period of the 40 C.F.R. §141.14
14 maximum contaminant level for microbiological contamination, 2) the average of
15 the four tests required by paragraph 2 above demonstrate an exceedance of any
16 40C.F.R. §141.11(b) maximum contaminant level •for inorganic chemical,or 3)
17 defendants fail to conduct any of the tests required by paragraphs 1 and 2
18 above by the rtimes required by this Decree, defendants shall notify in writing
19 all of the households served by the Glen Villa system and the general public
20 of such violations in accordance with the public notification provisions of 40
21 C.F.R. §141.32(a) and (b). Defendants shall submit to EPA a representative
22 copy of each such public notification, in a letter postmarked within five days
23 of the completion of such public notice, mailed to the address listed in
24 paragraph 7 below.
25 6 ’.’ Defend nts ‘shall by the tenth day of each month mail to EPA, at
26 the address given in paragraph 7 below, a statement identifying all sampling
21
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1 and analysis of defendants’ water supply conducted during the preceding month
2 and setting forth all the results of such analysis.
3 7. Within 30 days of the date of entry of this Decree, the defend-
4 ants shall certify to EPA that the public has been notified 1) that defendants
5 in the past have not complied with Safe Drinking Water Act requirements to
6 sample and test the water supplied by the Glen Villa system for levels of
7 bacterial and inorganic chemical contaminants, and 2) that defendants will
8 henceforth comply with these SDWA requirements. The notice shall also include
9 the statement regarding public availability of records as specified in
10 paragraph 8 below of this Section. Defendants shall certify that such written
11 notice has been delivered to each household served by the Glen Villa system,
12 to at least one principal radio station and one principal television station
13 serving the Glendale, Oregon area, and that such notice has been published for
14 at least three consecutive days in a newspaper or newspapers of general
15 circulation serving the Glendale, Oregon area. Such certification shall be
16 made to the following address:
17 Chief, Drinking Water Branch
Mail Stop 409
18 U. S. Environmental Protection Agency
1200 Sixth Avenue
19 Seattle, Washington 98101
20 8. Defendants shall comply with the record maintenance provisions
21 of 40 C.F.R. §141.33. Defendants shall include in the public notice required
22 by paragraph 7 above of this Section a statement indicating that the records
23 of required testing for coliforin bacteria and inorganic chemicals, and the
24 other records described by 40 C.F.R. §141.33, will be retained and made avail-
25 able for public inspection. The notice required by paragraph 7 above of this
26 Section shall also provide the name, address, and telephone number of the
27 custodian of such records.
28 STIPULATION AHD CONSENT DECREE — Page 7 of 11
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1 .9. Any authorized representative ‘of the U. S. Environmental
2 Protection Agency,. upon’preséntatio’n of-hiscredentials, may at any time enter
3 upon the premises of the Glen Villa Trailer Park described herein for the ’•
4 purpose of determining compliance with the sampling, testing, reporting,
5 public notificatioh and recordkeeping provisions of this Decree.
6
SECTION .TWO
8 Stipulated Penalties for Violations of Consent Decree
9 1. If defendants fail to comply with the requirements of Section One
10 of this Decree, upon written demand of the United States, the defendants shall
11 incur and pay to the United States within ten (10) days of’ the demand, stipu-
12 Thtêd ivf1 nalties’as follows for each’day (not necessarily consecutive) of
13 viOlation that occurs between the date of entry and the date of expiration of
14 the Decree:
15
Penalty per Day
16 Daysof Violation ‘ In Violation
17 1 to 5 days siso.oo
5 to 10 days $250.00
18 More than 10 days $500.00
19 2. Stipulated penalties ‘due pursuant to this Section shall be paid
20 by cashier’s check made payable to the “Treasurer, United States of America,”
21 and delivered to the Office ofRegional Counsel,’Mail Stop 6l3;’Uv S.”Environ-
22 mental Protection Agency, 1200 Sixth Avenue, Seattle, Washington 98101.
23 3. Any dispute with respect to defendants’ liability for a stipu—
24 lated penalty shall be resolvedbythis Court.
25 4. The provisions of this Section shall not be construed to limit
26 any other remedies, including but not limited to an action to compel compliance
27
28 STIPULATIOt AND CONSENT DECREE - Page 8 of 11
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i with the terms of this Decree or with the requirements of the-Safe, Drinking
:2 water Act or the regulations promulgated thereunder,.available to plaintiff,,
for violations of this Decree or any other provisions of law. This Section
hall not limit the right of the United States to take whatever steps it deems
5 necessary, including imposition of civil penalties, for any noncompliance with
.6 the maximum contaminant levels set forth in Subpart B of 40 C.F.R. Part 141.
7
8 SECTION FOUR
9 Penalties for Past Violations
10 in. full settlement of the Complaint of the United States in this
11 matter, defendants agree to pay a civil penalty in the amount of TWO THOUSAND
12 FIVE HUNDRED DOLLARS (R,500.0O). Defendants shall pay such civil penalty
13 within fifteen days of the date of entry of this Decree by a cashier’s check
14 made payable to the “Treasurer, United States of America,” and delivered to
15 the Office of Regional Counsel, Mail Stop 613, U. S. Environmental Protection
16 Agency, 1200 Sixth Avenue, Seattle, Washington 98101.
17
1.8 SECTION FIVE
19 General Provisions
20 - 1. All copies of microbiological and inorganic chemical-test
results, reports, and notifications submitted by defendants to EPA as required
22 by Section One of this Decree shall be subject to public inspection and shall
23 not be treated by EPA as confidential.
24 2. This Consent Decree in no way affects or relieves defendants of
25 responsibilityto comply with any other Federal, State or local laws or regu-
26 lations.
27
28 STIPuLATION AND CONSENT DECREE - Page 9 of 11
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1 3. Any modification of this Consent Decree must be in writing and
2 approved by this Court.
3 4. This Court shall retain jurisdiction of this cause solely for the
4 purpose of enabling any party to apply to the Court at any time for such
5 further relief as may be appropriate to interpret, enforce, modify or terminate
6 the Decree. Otherwise, this Decree shall terminate on December 1, 1984, or A
o t ç .cfler f..;Lr .c h o.v.ipI j t. ’ $% c ‘rovs , of 1% l b&rcI i IA Qr.
7 5. It is further ordered that each party shall bear its own costs
8 in this litigation, including attorney’s fees.
9
10 Entered this — day of , 1983.
11
12
United States District Judge
13
STIPULATED, AGREED and APPROVED for entry waiving notice.
14
GLEN VILLA TRAILER PARK
15 JOSEPHINE MAHONEY
DONALD MAHONEY UNITED STATES OF AMERICA
16
By - By:
Steven E. Rich , . r-ieni, \IlWJI IIL.,
19 Attorney for Defendants ‘ (‘ j Acting Ass4- tant Attorney General
Land and Natural Resources Division
20 V U.S. Department of Justice
21
Charles H. Turner
22 United States Attorney
23
24 Thomas C. Lee
Assistant United States Attorney
26 District of Oregon
26
27
28 STIPULATION AND CONSENT DECREE - Page 10 of 11
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1
2 Cotfftney N. Price
Special Counsel for Enforcement
‘U:S.-Environmental Protection Agency
David N. Heineck
6 Assistant Regional Counsel
U.S. Environmental Protection
7 Agency, Region 10, and
Special Assistant United States
8 Attorney, District of Oregon
9
10
11
12
13
14
15
16
17
18
19
21
22
23
24
25
26
27
28 STIPULATION AND CONSENT DECREE - Page 11 of 11
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1 CHARLES H. TURNER
United States Attorney
2 THOMAS C. LEE
Assistant United States Attorney
3 312 U.S. Courthouse
620 S.W. Main Street
4 Portland, Oregon 97205
Telephone: (503) 221-2101
5
Attorneys for Plaintiff
6
7
8
IN THE UNITED STATES DISTRICT COURT
9 FOR THE DISTRICT OF OREGON
10 UNITED STATES OF AMERICA, )
) Civil No. 82—6362—E
11 Plaintiff, )
)
12 vs. )
) STIPULATION
13 GLEN VILLA TRAILER PARK, an ) AND
unincorporated business, and ) CONSENT DECREE
14 JOSEPHINE MAHONEY and DONALD
MAHONEY, a married couple,
15 )
Defendants. )
16 _____________________________________)
17 Plaintiff, United States of America, on behalf of the United States
18 Environmental Protection Agency ( EPA”), having filed a Complaint herein on
19 November 12, 1982 alleging that defendants have violated the Safe Drinking
20 Water Act ( SDWA”), 42 U.S.C. §3O0fet ., and the parties by their attorneys
21 having consented to entry of this Decree;
22 NOW, THEREFORE, before the taking of any testimony herein, and without
23 trial or adjudication of any issue of fact or law herein, and upon consent of
24 the parties, by their attorneys and authorized officials, it is
25 HEREBY STIPULATED AS FOLLOWS:
26 1. This Court has jurisdiction of the subject matter of this action
27 pursuant to 28 U.S.C. Section 1345 and Section 1414(b) of the Safe Drinking
28 STIPULATION AND CONSENT DECREE - Page 1 of 11
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1 Water Act, 42 U.S.C. 3OOg-3(b), and jurisdiction over the parties hereto.
2 The Complaint filed herein states a claim upon which relief can be granted
3 against defendants.
4 2. The pfovisions of this Consent Decree shall apply to and be
5 binding upon the parties to this action, their officers, directors, agents,
6 servants, employees and successors or assigns. Defendants shall give notice
7 of this Consent Decree to any successors in interest prior to transfer of
8 ownership and shall simultaneously verify to plaintiff that defendants have
g given such notice.
10 3. - Defendant Glen Villa Trailer Park is an assumed business name
11 for a trailer park located in Glendale, Oregon. It is not an incorporateo
12 entity. Defendants Josephine and Donalu Mahoney have at all relevant times
13 been the principal operators of the Glen Villa Trailer Park.
14 4. Defendants operate a public water system at the Glen Villa
15 Trailer Park (hereinafter “Glen Villa”) that provides piped water for human
16 consumption. The water system is subject to the requirements of the SDWA and
17 the regulations promulgated thereunder.. Glen Villa obtains its water from a
18 ground watersource. Glen Villa is a “community water system” ana is a
19 supplier of water as’defined at 40 C.F.R. §141.2(e)(i). Glen Villaserves at
20 least 15 service connections used by year-round residents or regularly serves
21 at least 25 year-round residents.
22 5. Defendants are required by the national interim primary arinking
23 water regulations (40 C.F.R. Part 141 ) (hereinafter “the regulations”) to
24 conduct microbiological sampling and analysis at least once per mor,th to
25 determine levels..of.coliform bacteria in the water supplied by Glen Villa. 40
26 C.F.R. §141.21(b). Between July 1977 and the date of this Agreement—-except
27
28 STIPULATIOU AND CCUSENT DECREE - Page 2 of 11
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1 for the months of May, 1979; February, March and October, 1981: February
2 through August and October and December 1982; and January, 1983-—Defendants
3 fafledto conduct such sampling. These failures violated 40 C.F.R. §141.21(b).
4 6. Community water systems that utilize ground water sources, such
as the system operated by defendants, were also required to have sampled and
analyzed their water for levels of inorganic chemical contaminants by June 24,
1979, and are required to repeat such tests at least once every three years
8 thereafter.. 40 C.F.R. §141.23(a)(2). Defendants have not conducted such
jests, and j ave thereby violated said regulation.
10 7. Defendants are required by the regulations, 40 C.F.R. §141.31 (a),
to report to EPA within the first ten days following the month in which test
12 results are received. Defendants failed to timely report to EPA the results
13 of water samples taken by Defendants in the months of February and March, 1981
14 and February through August and October and December, 1982. These delays in
reporting violated 40 C.F.R. §l41.3l(a).
16 8. Defendants are required to notify EPA within 48 hours of any
17 noncompliance with the national primary drinking water regulations, including
18 any failure to comply with monitoring requirements. 40 C.F.R. §141.3(b).
19 Defendants did not notify EPA t any time of any of the monitoring violations
20 described in paragraphs 5 and 6 above. These failures to notify EPA violated
4,0 C.F.R.,. 141.31(b).
22 9. Community water systems are also required to notify the persons
23 they serve of any failure to comply with the drinking water regulations,
24 including faflure to perform required monitoring. 40 C.F.R. §141.32(a).
25 Defendants did not notify the persons served by the Glen Villa system of their
26 failure to conduct required monitoring for bacteriological and inorganic
27 contaminants at the system, thereby violating 40 C.F.R. §141.32(a).
28 STIPULATION AND CONSENT DECREE - Page 3 of 11
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1 10. Defendants were notified by EPA of the sampling, reporting and
2 public notification requirements described in paragraphs 5—9 above. The dates
of such EPA notification were by letters dated April 14, 1977; May 26, 1977;
4 June 23, 1977; September 15, 1977; October 26, 1977; November 18, 1977; June
5 29, 1978; November l,i978’and February 23, 1979. ‘ EPAissued aforma1’ adrnjn—
6 istrative Notice of Violation to defendants on May 21, 1979. Subsequent
7 letters were sent on January 18, 1980; September 18, 1980 and September 22,
8 1981. Postcards reiterating the requirements of the Safe Drinking Water Act
were sent on March 2, 1982 and March 26, 1982. Such notice establishes that
10 defendants’ violations described above were willful and entitle plaintiff to
11 the relief set forth in this Decree.
12 11. Defendants have begun to comply with the requirements of the
13 SDWA and the regulations promulgated thereunder. Defendants have recently
14 conducted microbiological monitoring and have commenced timely reporting of
15 test results to EPA as required by 40 C.F.R. §141.21(b).
16 NOW, THEREFORE, based on the foregoing, it is hereby ORDERED,
17 ADJUDGED AND DECREED as follows:
18
SECTION ONE
19
Compl iance Measures
20
1. Within thirty days of entry of this Decree, defendants shall
21
comply with the provisions of 40 C.F.R. § l4l.21(a) and (b) by collecting at
22 fl ‘1
least one sample per month of water supplied by the Glen Villa system and
23 S
analyzing the sample to determine the level of microbiological contamination
24
at the system. Such monthly sample shall be collected by no later than the
25
15th day of each calendar month. Compliance with the maximum microbiological
26 5 -
contaminant level shall be based upon sampling during each one—month period,
27 : S
28 STIPULATION AND CONSENT DECREE - Page 4 of 11
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and shall be determined according to either the membrane filter. technique
specified ,i,n 40 C.F.,R. l41, or the •fermeatation tube method specified in
• -40 C.F.R. §l4l.].4 -t 1. If such analysis shows the presence of coliform bacteria
e) C4ed.’ , 4 o e ‘ Je4
.in tf aniounts spccif c for the5c tcst mcth 40 C.F.R. §141.14(a) ‘and
2(b), defendants shall collect and analyze the additional check samples as
6 -4escribed by 4Q C.F.R.-, §S1.41.21 (d)(1)—(4).
2. - Within thirty days of the date of entry of this Decree, defend-
.8 ants shall comply with the provisions of 40 C.F.R. §141.23(a) by conducting an
ai rp c f. ’ 4 £ e C.f.t “ • U)
9 analysisAto determine levels of the inorganic chemical contaminants listed in
c4OC.F.R. §141.11(b) in the water provided by the Glen Villa system. If the
level of any inorganic chemical listed in §141.11(b) is found to exceed the
12 maximum contaminant level established by that section, defendants shall in
13 addition collect one water sample per week for each of the first three weeks
14 fo11owing the date that defendants become aware of such a finding, and
15 -defendants shall conduct an inorganic chemical analysis of each water sample
collected. These additiona1 :water samp1 s shall be collected-at the same
point as the first sample which indicated an exceedance of the allowable
18 levels for inorganic chemicals.
.19 3. Defendants shall notify EPA within 24 hours of the time they
2O become aware of test results from anY samp1ing conducted pursuant to paragraph
21 1 above that indicates an exceedance of the 40 C.F.R. §141.14 maximum contam—
:22 inant level for microbiological contaminants 4 Un the bis f an average—s-f
‘23 - all arn 1e taken during a ea1en ar men h . Defendants shall also notify EPA
24 within 24 hours of the time they become aware that the average of the four
25 water samples tákén pursuant to paragr ph 2 above shows an exceedance of any
26 of the maximum contaminantlevels for inorganic ct emicals listed in 40 C.FR.
:27
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1 §141.11(b). Notification shall be by telephone to the EPA Oregon Operations
2 Office in Portland; Oregon at (503) 221-3250. This telephone notice shall be’
3 followed by ’written notice to EPA, at the address listed’jn
4 postmarked within 48 hours of the time that.dsfendants learn of such -
5 exceedances of allowable levels for microbiological or inorganic chemical
6 contaminants.
7 4. Defendants shall notify EPA in writing of any failure to conduct
8 the sampling or analysis required by paragraphs 1 and 2 above. Such notice
shall be sent-to theaddress listed in’paragraph 7 below, and postniarked not
10 l’ater than 48 hours after the time such sampling ‘and analysis was .requi red -
11 pursuant to this Decree..
12 - 5. In the event that 1) the tests conducted purstiant to paragraph 1
13 above indicate an exceedance for any one-month period of the 40 C.F.R. §141.14
maximum contaminant level for microbiological contamination, 2) the average of
15 the four tests required by paragraph 2 above demonstrate an exceedance of any
16 40 C.F.R. §141.11(b) maximum contaminant level ‘for inorganic chemica1 ’, or 3)
17 defendants fail to conduct any of the tests required by paragraphs 1 and 2
18 above ‘by thertirnes required by this Decree, defendants shall notify in writing
19 all of the households ‘served by the Glen Villa system and the general public
20 of such violations in accordance with the public notification ‘provisions of -40
21 C.F.R. §l41.32(a) and (b). Defendants shall submit to EPA a-representative
22 copy of each such public notification, ‘in a letter postmarked within five days
23 of, the completion of such public notice, mailed to ‘the address listed in
24 paragraph 7 below.
25 .6.’ Defend nts shall by the tenth day of each month mail to EPA, at
26 the address given in paragraph 7 below, a statement identifying all sampling
27
28 STIPULATION AND CONSENT DECREE - Page 6 of ‘11
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i and analysis of defendants’ water supply conducted during the preceding month
:2 ‘and settir g forth all the results of such analysis.
3 7. Within 30 days of the date of entry of this Decree, the defend—
4 änts shall certify ‘to EPA that the public has been notified 1) that defendants
5 4n the past have not comp1 ied with Safe Drfnking Water Act requirernents to
6 sample and test the water stpplied by the Glen Villa system for levels of
7 bacterial and inorganic chemical contaminants, and 2) that defendants will
8 henceforth .cornply with these SDWA requirements. The notice shall also include
9 the statement regarding public availability of records as specified in
10 paragraph 8 below of this Section. Defendants shall certify that such written
ii notice has been delivered to each household served by the Glen Villa system,
12 to at least one principal radio station and one principal television station
13 serving the Glendale, Oregon area, and that such notice has been published for
14 at least thre& consecutive days in a newspaper or newspapers of general
15 circulation serving the Glendale, Oregon area. Such certification shall be
16 made to the following address:
17 Chief, Drinking Water Branch
Mail Stop 409
18 U. S. Environmental Protection Agency
1200 Sixth Avenue
19 Seattle, Washington 98101
20 8. Defendants shall comply with the record maintenance provisions
21 bf 40 C.F.R. §141.33. Defendants shall include in the public’ iiotice’ required
22 b ’ paragraph 7 above of this Section a statement indicati that the records
23 àf required testing for coliforrn bacteria and inbrganic chemicals, and the
24 other records described by 40 C.F.R. §141.33, will be retained and made avail-
25 able for public inspection. The notice required’ by paragraph 7 above of this
26 Section shall also provide the name, address, and telephone number of the
27 custodian of such records.
28 STIPULATION AND CONSENT DECREE - Page 7 of 11
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1 9. Any authorized representative of the U. S. Environmental
2 Protection Agency, upon presentation of his credentials, may at any time enter
3 upon the premises’of the’ Glen Villa Trailer Park described herein for the
4 purpose of determining compliance with the sampling, testing, reporting,
5 public notificatich and recordkeeping pro isions of this Decree.
6
7 SECTION-TWO
8 Stipulated Penalties for Violations of Consent Decree
9 1. If defendants fail to comply with the requirements of Section One
10 of this Decree, upon written demand of the United States, the defendantsshall
11 incur and pay to the United States within ten (10) days of the demand, stipu —
12 Thtë 1 ivi1 ehaltiesas follows for each”day (not necessarily consecutive) of
13 violation that occurs between the date of entry and the date of expiration of
14 ‘the Decree:
15
Penalty per Day
16 Daysof Violation In Violation
17 1 to 5 days $150.00
5 to 10 days $250.00
18 More than 10 days $500.00
19 2. Stipulated penalties due pursuant to this Section shall be paid
20 by cashier’s check made payable to the “Treasurer, United States of America,”
21 and delivered to the Office ofRegional Counsel, Mail Stop 6l3’,U.S.’Envjron-
22 mental Protection Agency, 1200 Sixth Avenue, Seattle, Washington 98101.
23 3. Any dispute with respect to defendants’ liability for a stipu-
24 lated penalty shall be resolved by’this Court.
25 4. The provisions of this Section shall not be construed to limit
26 any other remedies, including but not limited to an action to cor-pel compliance
27
28 STIPULATIOU AND CONSENT DECREE - Page 8 of 11
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i with the terms of this Decree or with the requirements: of. he -Safe, Drinking
:2 4ater Act or the regulations promvlgated thereunder, avai1 b1eto plaintiff,
:3 Sor violations of this Decree or any other provisions of law. This Seclion
hal1 not limit the right of the United States to take whatever steps it deerns
5 necessary, including imposition of civil penalties, for any noncompliance with
the maximum contaminant levels set forth in Subpart B of 40 C.F.R. Part 141.
I
8 SECTION FOUR
9 Penalties for Past Violations
10 In full settlement of the Complaint of the United States in this
ii matter, defendants agree to pay a civil penalty in the amount of TWO THOUSAWD
12 FIVE HUNDRED DOLLARS ($2,500.00). Defendants shall pay such civil .penalty
13 within fifteen days of the date of entry of this Decree by a cashier’s check
14 made payable to the “Treasurer, United States of America,” and delivered to
15 the Office of Regional Counsel, Mail Stop 613, U. S. Environmental Protection
16 Agency, 1200 Sixth Avenue, Seattle, Washington 98101.
17
1.8 SECTION FIVE
19 General Provisions
20 1. All copies of microbiological and inorganic chemical -test
results, reports, and notifications submitted by defendants to EPA as required
22 by Section One of this Decree shall be subject to public inspection and shall
23 not be treated by EPA as confidential.
24 2. This Consent Decree in no way affects or relieves defendants of
responsibility to comply with any other Federal, State or local aws or regu-
26 :! :ions.
V
28 STIpULATION AND CONSENT DECREE — Page 9 of 11
:orm OBD -183
2.8-76 DOJ
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3. Any modification of this Consent Decree must be in writing and
approved by this Court.
4. This Court shall retain jurisdiction of this cause solely for the
purpose of enabling any party to apply to the Court at any time for such
further relief as may be appropriate to interpret, enforce, modify or terminate
the Decree. Otherwise, this Decree shall terminate on December 1, 1984, or A’
, iob thc aflcr 4 f ..(ur.c. o beft icL %.r h C. ..apt 1 yi 1 cq b&rc /j l r.
5. It is further ordered that each party shall bear its own costs
in this litigation, including attorney’s fees.
Entered this_______ day of _________, 1983.
United States District Judge
STIPULATED, AGREED and APPROVED for entry waiving notice.
GLEN VILLA TRAILER PARK
JOSEPHINE MAHONEY
DONALD MAHONEY UNITED STATES OF AMERICA
By _ By:
‘ Stev if E. Rich —
Attorney for Defendants
STIPULATION AND CONSENT DECREE - Page 10 of 11
• 1 lenry ç -iabicL .,
Acting Ass4- stant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
Charles H. Turner
United States Attorney
Thomas C. Lee
Assistant United States Attorney
District of Oregon
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:orm 080-183
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2 Coü tney H. Price
Special Counsel for Enforcement
U:S.”Environmenta1 Protection Agency
David M. Heineck
6 Assistant Regional Counsel
U.S. Environmental Protection
7 Agency, Region 10, and
Special Assistant United States
8 Attorney, District of Oregon
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U.S. Department of Justice
DTB:LWP
90—5—1—1—2787
‘ashtngton, 0 C 20530
December 14, 1989
Jesse W. Grider, Clerk
United States District Court
Western District of Kentucky
213 Federal Building
Bowling Green, KY 42101
Re: United States v. Dale Moreau, et al. ,
W.D. Ky., Civil No. C87-0068-BG(M )
Dear Mr. Grider:
Enclosed for filing in the above-referenced case please find
the original and one copy of each of the following documents: (1)
Notice of Lodging of Consent Decree (2) proposed Consent Decree;
(3) Stipulation for Substitution of Parties; and (4) proposed
Order for Substitution of Parties. -
Thank you for your assistance in this matter.
Sincerely,
Richard B. Stewart
Assisant Attorney General
Land . ’ and Natural Resources Division
By:
Lawrence W. Puckett, Attorney
Environmental Enforcement Section
Land and Natural Resources Division
U.S. Department of Justice
(202) 633—1196
cc: Richard A. Dennis
AUSA, Louisville
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
UNITED STATES OF ANERICA,
Plaintiff,
)
v. ) Civil Action No. 87-0068-BG(M)
)
DALE MOREAtJ; MATIELEA MOREAU;
DELTA OIL CORPORATION; F.
GILBERT BICKEL; and HTF, INC.,)
Defendants.
)
NOTICE OF LODGING OF CONSENT DECREE
Comes now the Plaintiff United States, by counsel, and
for its Notice of Lodging states as follows:
The Consent Decree attached hereto has been signed by
Plaintiff United States and Defendants Dale and Matielea Moreau,
Delta Oil Corporation, HTF, Inc., and Sununershade Oil Co. (The
parties are simultaneously filing a stipulation for the
substitution of Suinmershade for defendant F. Gilbert Bickel.)
Pursuant to 28 C.F.R. § 50.7, after lodging this Decree
with the Court, plaintiff must notify the public of its right
during a thirty-day period to submit counnents on this decree.
Plaintiff will do so by publishing in the Federal Register a
notice of its lodging of this Decree. At the conclusion of the
thirty—day conunent period, plaintiff will provide this Court with
copies of any public comments and with plaintiff’s response to
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—2—
those coirunents. Plaintiff may then ask the Court to sign and
enter the Decree.
Respectfully submitted,
RICHARD B. STEWART
Assistant Attorney General
Land and Natural Resources Division
JOSEPH M. WMITTLE
United States Attorney
RICHARD A. DENNIS
Assistant U. S. Attorney
NCE W. PUCKETT, Attorney
Environmental Enforcement Section
Land and Natural Resources Division
United States Department of Justice
P.O. Box 7611
Benjamin Franklin Station
Washington, D.C. 20044
(202) 633—1196
OF COUNSEL:
MELISSA HEATH
Office of Regional Counsel
Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
(404) 347—2335
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UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF KENTUCKY
OWENSBORO DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v. ) CIVIL ACTION NO. 87-0048—O(CS)
ROSKEE CORPORATION,
Defendant.
Consent Decree
Plaintiff, United States of America, on behalf of the
Administrator of the United States Environmental Protection
Agency (“EPA”), filed a Complaint in the above—captioned matter
on April 3, 1987, alleging that Defendant, Roskee Corporation,
violated Part C of the Safe Drinking Water Act (the “Act”), 42
U.S.C. §300h et and its implementing regulations codified
at 40 C.F.R. Parts 144, 146 and 147, in its operation of four
active enhanced recovery underground injection wells (“the Wells”)
located in Henderson County, Kentucky, and designated as Bruck
4-W7, Dunn Leach 2-W5, Dunn Leach 2-W2 and Clary—Birk 3—W19
injection wells.
Without trial or adjudication of any issue of fact or law in
this case, the parties have agreed to this Consent Decree through
their attorneys and authorized officials in full settlement of
all civil liability of Defendant for violations of the Act alleged
in the Complaint in this matter.
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—2—
The Court having considered the Complaint and the proposed
Consent Decree and such public comments as have been made, NOW
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED as follows:
1. This Court has jurisdiction over the subject matter
herein and the parties hereto pursuant to §l423(b)(l) of the Act,
42 U.S.C. §300h—2(b)(l). The Complaint states a claim upon which
relief may be granted against Defendant pursuant to §1423(b)(l)
of the Act, 42 U.S.C. S300h—2(b)(l). Defendant does business in
this judicial district and venue before this Court is appropriate.
2. The provisions of this Consent Decree shall apply to and
be binding upon Defendant, its officers, directors, employees,
agents and contractors acting on behalf of Defendant, and its
assigns and successors in interest. Defendant shall give notice
of this Consent Decree to any assigns and successors in interest
prior to transfer of interest, and shall simultaneously verify to
the U.S. EPA, Region IV, Office of Regional Counsel and the
United States Attorney for the Western District of Kentucky at
their respective addresses set forth in Paragraph 10 of this
Consent Decree, that such notice has been given. In any action
to enforce this Consent Decree, Defendant shall not raise as a
defense the failure by any of its officers, directors, employees,
agents, or contractors to take actions necessary to comply with
the provisions hereof.
3. The Court finds that the settlement of these matters is
in the public interest, and that the entry of this Decree is the
most appropriate means of resolving these matters.
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—3—
4. This Consent Decree in no way affects or relieves
Defendant of its responsibility to comply with any federal,
state or local requirement or law.
5. Nothing in this Consent Decree shall preclude the
United States from seeking other relief from, or sanctions
against Defendant for, violations of this Decree or for
alleged violations of applicable law not covered by this
Decree, including but not limited to injunctive relief and/or
penalties for violations of the Act authorized under S1423 of
the Act, 42 U.S.C. §300h—2.
6. In settlement of Plaintiff’s claim for civil penalties
under Section 1423 of the Act, 42 U.S.C. S300h—2, and allega-
tions in the Complaint in this matter, Defendant shall pay
the sum of twenty—five thousand dollars ($25,000.00), payable
by certified or cashier’s check to the’Treasurer, United
States of America, in twelve (12) equal installments of
$2,083.33 each on the first day of each calender month, the
first installment being due on the first day of the month
immediately following entry of this Decree. Defendant shall
render payment of each installment to Plaintiff at the United
States Attorney for the Western District of Kentucky at the
following Address:
Room 211
U.S. Post Office and Courthouse
601 Broadway
Louisville, Kentucky 40202
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—4—
In the event Defendant fails to pay any installment in full
within ten (10) days after the same is due, Defendant shall also
pay the following: a) interest on the past—due amount at the rate
based upon the current value of funds to the United States Treasury
established pursuant to Section 11 of the Debt Collection Act of
1982 (31 U.S.C. S3717) as of the date of this Consent; b) a late
payment handling charge of $20.00, plus an additional $10.00 for
each subsequent 30—day period the past—due amount remains unpaid;
and C) a late payment penalty in the amount of six percent (6%)
of any past—due principal amount not paid within ninety (90) days
after the due date. In the event Defendant fails to pay any
installment in full within thirty (30) days after the same is
due, Plaintiff may at its option by written notice to Denfendant
accelerate the payment of the remaining balance and declare the
same immediately due and payable. In such event the foregoing
interest, handling charge and late payment penalty provisions
shall also apply.
7. Defendant shall submit technically complete applications
for underground injection control (UIC) permits for the Wells
that Defendant plans to continue to operate as enhanced recovery
underground injection wells, in accordance with the following
schedule. Defendant also agrees not to operate the Wells known
as Dunn Leach 2—W9, Schlensker 5-W6 and Williams 6—W6 as enhanced
recovery underground injection wells, and further agrees to
complete plugging and abandonment of these wells in accordance
with an EPA—approved plugging and abandonment plan, and to give
EPA at least 30 days’ prior written notice of the date or dates
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—5—
of actual plugging of these Wells.
Task to be Accomplished: Date
a. Submit to EPA annual reports summarizing Sept. 30, 1987
the monitoring or the nature of injected
fluids from June 24, 1984 to April 30,
1987.
b. Submit to EPA technically complete UIC Oct. 15, 1987
permit applications for underground
injection wells Dunn Leach 2—W5,
Dunn Leach 2—W2, Clary—Birk 3—W19,
and Bruck 4—W7:
C. Complete plugging and abandonment of Nov. 30, 1987
the following underground injection
wells in compliance with an EPA—approved
plugging and abandonment plan: Dunn Leach
2—W9, Dunn Leach 2—W3, Clary—Birk 3—W9;
Schlensker 5—W6; and Williams 6—W6.
d. Comply with all requirements of the Dec. 31, 1987
Act, its implementing regulations,
and any uIC permit issued to Defendant
byEPP
Defendant shall take and document (through the submission of
copies of all related correspondence, plans, etc. to the Water
Management Division of EPA Region IV) all necessary efforts to
accomplish the above. If Defendant does not have an effective
UIC permit for any of the Wells on December 31, 1987, Defendant
shall cease all underground injection into such unpermitted Well
or Wells until it obtains authorization to inject pursuant to an
effective UIC permit and complies with Part C of the SDWA and its
implementing regulations, 40 C.F.R. Parts 144, 146, and 147.
8. If any event beyond the control and without the fault
of Defendant, its officers, directors, employees, agents, and con-
tractors acting on behalf of Defendant, or successors or assigns of
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—6—
Defendant, occurs which causes or may cause a delay in the achieve-
ment of any construction related remedial actions required under
Paragraph 7 above, Defendant shall notify EPA orally within
forty—eight (48) hours of the time Defendant has knowledge of the
occurrence of such event. Defendant shall submit a written
report of said event by certified mail to EPA and counsel of
record for the United States, within five (5) days after the date
Defendant received knowledge of the event. Said report shall
describe the anticipated length of the delay, the cause(s) of the
delay, and the measure(s) taken or to be taken to prevent or
minimize any such delay and to comply with the pertinent require-
ments of this Decree as soon as possible, and the timetable by
which those measures are proposed to be implemented. Failure by
Defendant to comply with the notice and reporting requirements of
this Paragraph constitutes a waiver of Defendant’s right to
obtain an extension of time for its obligations under this Para-
graph based on such incident, and Defendant shall remain liable
for stipulated penalties.
Unless EPA notifies Defendant, by certified mail posted
within 30 days after EPA’S of receipt of any written request for
extension of time from Defendant pursuant to the provisions above,
that grounds for an extension as set forth in this Paragraph do
not exist or that the extension sought is too lengthy in light of
the circumstances which caused the delay, the parties shall be
deemed to have concurred in the extension and shall, within 60
days after EPA’S receipt of Defendant’s written request for ex-
tension of time, submit to the Court a stipulation for an exten—
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—7—
sion of time for the particular schedule items affected. If EPA
notifies Defendant of its determination that the extension sought
is too lengthy in light of the circumstances which caused the
delay or that the grounds for such delay are insufficient, then
any party may submit the matter to the Court for resolution.
The burden of proving that any delay is caused by circum-
stances beyond the control of and without the fault of Defendant,
and the length of the delay attributable to such circumstances,
shall rest with Defendant. Financial, economic or business
conditions or changes in same, unanticipated or increased costs
or expenses, or problems relating to technological infeasibility
associated with the implementation of actions called for by this
Decree, shall not be a basis for extensions of time. An exten-
sion of one compliance date based on a particular incident(s)
does not automatically result in extensions of subsequent
compliance dates; Defendant must meet the requirements of this
Paragraph regarding each remedial action requirement for which an
extension is sought. Plaintiff reserves any and all legal and
equitable remedies available to enforce the provisions of this
Decree. Defendant shall adopt and implement all measures to
avoid and minimize the effect of any event which causes a delay
in compliance with any requirement of this Decree.
9. Defendant agrees to pay stipulated civil penalties for
violation of the conditions set forth in Paragraph 7 from the
date of entry of the Consent Decree until the termination date of
this Decree. Defendant shall pay a stipulated civil penalty for
each violation as follows:
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—8—
(a) For failure to meet each of the milestone dates
listed in Paragraph 7 above, including the reporting
and notice requirements, the following amounts:
Penalty Per Day
Per Well Per
Period of Failure to Comply Violation
1st to 30th day $250.00
31st to 90th day $1000.00
over 90 days $5000.00
(b) For failure to cease injection as specified in
Paragraph 7 above, the amount of $25,000 per
day of injection per Well.
(c) For each failure to completely submit any report
required by Paragraph 10, the amount of $100 per
day per report.
Any payment required by the terms of this Paragraph 9 shall
be made by certified or cashier’s check payable to the Treasurer,
United States of America. Each payment shall be accompanied by
Defendant’s short written statement explaining how the total
penalty amount was computed. The stipulated civil penalties set
forth above shall be in addition to any other remedies or sanctions
which may be available to EPA.
10. Commencing on the 28th day of the month following the
date of entry of this Consent Decree and on the 28th day of each
month thereafter until the termination of this Consent Decree,
Defendant shall send a report, in writing, of each task accomplished
pursuant to Paragraph 7 and each violation of a milestone date or
reporting or notice requirement set forth in Paragraph 7 above,
that occurred during the preceding month. If any condition has
been violated, then the report shall state each condition violated,
and the details thereof. If any milestone date is violated, the
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—9—
report shall state the number of days of such violation and
estimated date completion will be achieved. If a request for an
extension of time pursuant to the provisions of Paragraph 8 is
pending at the time any report is submitted, that fact shall be
noted in the report. This report shall be sent by registered
mail or its equivalent to the following addresses:
Bruce R. Barrett, Director
Water Management Division
U.S. Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
Melissa Allen Heath
Office of Regional Counsel
U.S. Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365 -
with a copy to:
United States Attorney
Western District of Kentucky
Room 211
U.S. Post Office and Courthouse
601 Broadway
Louisville, Kentucky 40202
The report sent to the Director, EPA Water Management Division,
shall be accompanied by Defendant’s penalty payment as stipulated
in Paragraph 9 above for all violations which occurred during the
period covered by the report, if any, unless a request for exten-
sion of time pursuant to the provisions of Paragraph 8 is pending
at that time. In such event, Defendant’s penalty payment shall
be due and payable within ten (10) days of receipt from EPA of
written demand for payment.
11. During the pendency of this Consent Decree, EPA shall
have the authority, to the extent authorized by $1445 of the Act,
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— 10 —
42 U.S.C. S300j—4, to enter Defendant’s facility and all construc-
tion locations at reasonable times for the purpose of examining
and inspecting the facility and copying records, logs, contracts
or other documents which EPA needs to assess compliance with the
Consent Decree.
12. This Consent Decree in no way limits or otherwise affects
the right of entry held by Plaintiff pursuant to any other appli-
cable laws, regulations, or permits.
13. This Consent Decree is not and shall not be interpreted
to be a permit for the underground injection of fluids under Part
C of the Act, 42 U.S.C. S300h, et nor shall it in any way
relieve Defendant of any obligation imposed by any permit issued
thereunder, or of its obligation to comply with all applicable
requirements of the Act and regulations promulgated thereunder,
or other applicable requirements of lo a1, state, or federal law.
Nothing contained herein shall be construed to prevent or limit
Plaintiff’s rights to obtain penalties or injunctive relief under
Section 1423 of Act or other federal statutes and regulations for
violations of the Act.
14. The parties may mutually agree to changes in any terms
or conditions of this Consent Decree. Any such modification shall
be in writing, signed by the parties and filed with the Court
upon signing.
15. The Court shall retain jurisdiction to modify and
enforce the terms and conditions of this Decree and to resolve
disputes arising hereunder as may be necesary or appropriate for
the construction or execution of this Decree until the Decree
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— 11 —
terminates according to the terms of Paragraph 18.
16. Each party shall bear its own costs and disbursements in
this action.
17. This Decree does not modify or affect in any way Defen-
dant’s responsibility to achieve and maintain compliance with all
applicable federal and state laws, regulations, and permits. Com-
pliance with this Decree shall not be a defense to any actions sub-
sequently commenced pursuant to such laws, regulations, or permits
for matters not covered by this Consent Decree.
18. This Decree shall terminate when the United States certi-
fies in writing to the Court that Defendant has fulfilled all con-
ditions of Paragraphs 6 through 10, inclusive, of this Decree.
Entered:
Date
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— 12 —
WE HEREBY CONSENT to entry of the foregoing Consent Decree,
subject to the public notice requirements at 28 C.F.R. S50.7.
FOR ROSKEE CORPORATION
A)
W. CASSIDY SON, III, ESQ.
Attorney for Defendant
Sheffer, Hoffman, Neel,
Wilson & Thomason
300 1st Street
Henderson, KY 42420
FOR THE UNITED STATES OF AMERICA
RJ J 4
UNITED STAT S ATTORNEY
By: Assistant United States Attorney
ROGER 3. MARZULLA
Acting Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
THOMAS L. ADAMS
Assistant Administrator for
Enforcement and Compliance Monto ing
U.S. Environmental Protection A nc
1 M Street, N.W.
Washington, D.C. 20460
AWRENCE PUCKET
Attorney, Environmental Enforcement
Section
Land & Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
(202) 633—1999
ME SSA A EN HEATh
Assistant Regional Counsel
U.S. Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
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15 J F
UN.Ll!j.n S’IE TFS ENVSROt\1:)’IT T P} C ii .C1.i ON ACF OY
REG O JIV
IN THE 1 iZ’ TTER OF
No. 4-u:fcC--026.-g2
V ADCO, INC., LP P1 Y M. VA1J fl ,
and FRANC M. VADFN, in their own
riglil and d/h/a A. Aau er Mu Lc ) FACTS, FINI1NGS
City Ex c L Sewer & Drain Cle nirg,) ANT)
EME1 CENCV
Rc pondonts ) ADMTNlSTRp. ’pJ’v ORDFR
Nashv i3 le, Ten sseo
Proce djng under Section 1431
of the SdEC U iILking Wat i AoL,
j2U .S.C § QQi_ — _)
STATUTORY AUTHORITY
The following findings are made and Order issued under the
authority vested in the 2’ ‘lnhilistraLor of the United States
Envirorimc ita1 Protection Age cy (“EPA’) by Sec Jon 1431(a)(l) of
the Safe Drinking Water Act (“SDWA’), 42 U.s.c. § 300i(a)(1).
The AdrninisLrator has delegated the authority to take these
actions to th . Regional Administrator for Region IV.
FAC iS
1. VADCO, In . (“VADCO”), is a Tennessee corporation with
its principel. offices in Nashville, Tennessee. VADCO is
authorjzec to do business in the State of Tennessee. VADCO is a
“person” within the meaning of Section 1401(12) of the SDWA, 42
U.S.C. § 300f(12).
2. Larry M. Vaden and Th n es H. Vade i (the “Vad ns”) aLe
natural persons and residents of the State of Tennessee. The
Vadenis are “persons” within the me r1inJ of Section 1401(1.2) of
th SLc i , 42 U.S.C. § 300i(L’).
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—2--
3. VADCO and/c the VC dCnS (iiidLvidualiy “Re porido L” or
colleet3vely “ResporiclenUs”) own and/or operate a sepL - je c3ispor l
sit’ ( the “Sit e” ) at a locat:iori iii Wil son County TerI1en eE’,
north o.C the Ccdars of Lehano , Stat.e Borcr and south of Lcb ic i 1
Teriricsscc, with an entrance on Burnt Housc’ Road. The Stt is
mapped on the Vine Quadrangle, 7.5 M te Series (Topo r phic),
prepared by the U.S. Geological Survey (“L 5”). Respondents
reportedly dispost of sept 9 e ori gi uating primarily frt iu
restaurant grease traps and domestic septic tanks into trenches
dug at the Site for this purpose.
4. In response to a citizen’s complaint, contact with t
State of Tenne .sec, and subsequent contacts from elecL :’d
represcntatjves, EPA representatives inspected the Site on Aprd
23, 1992, May 26, 1992, and June 15 through 19, 1992. On the
latter trip, EPA’s Environmc iit i Services Division (“ESD”) and
the USGS, Nashville office, took samples of fluids front SOuL, of
ti-re pits and trenches at the Site id from groundwater at several
locations near the Site. The sampling res ‘ts, including a map
showing the locations from which samples were tak€’n, are set
forth in the repo L attached hereto as Exhibit A and by titis
reference made a part hereof. The results evidence contam ’Lriatiori
of und • jround sources of drinki.ng water as a result of the
disposal of materials in the pits and trenches at the Site.
Contajujnants include but are not limLted to fecal coliforni
bacte.ri and toluene.
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5. Focal. ecU for- is a coniam QaIIt with ri the iiteanincj ci
Sec on 1401(6) of the SD !A. 42 U,S.C, § 300f(6). Micro o oc l
CXpCL’c sources agr that pc hogcns thnl gain cn anc utc
bodies o waLer arrive there via luLestinal di charge of huri ans
or other animals. The detec Led p esence of Fecal Ccli fonii (“rc”)
bacteria in water bc’ ies s rves as an indicator of these anii al
fecal—type bacteria. Though low levels of animal-type bacLeria
are gener 1’y found in water bodies, large concent aLioi- usu lly
are indicntjve of human wasLe sources.
Although FC presence is an indicator of animal focal contami — 1
nation, the unc1erlyJn composition of sewage microorganisms wi 1
include fungi, protozoa, algae, and viruses as well as ba Leria 0
Se a 9 e is also a potent potcxiLjal. source of pathogenic protozoa,
bacteria, and viruses. Dysentery (infection of the lower
intestin i ti-act char&cterjzed by pain, fever, severe diarrhea),
cholera (an acut , often fatal infectious disease characterj ed
by watery diarrhea, vomiting, cramps, suppression of urine, and
coliaps€), and typhoid fever (an acute, highly infectious disease
characterized by red rashes, high fever, bronchitis;, and
intestinal herriorrhagjI g) are examples of diseases which may occur
as a result of sewage exposure. Viruses including the hepatitis
virus are excreted t .ough the feces of an infected host and thus
can be encountered in sewage -polluted waters. Overall, the FC
test for bacterial conL injnation can be indicative of the
presence of a multitude of pathogenic organfsms.
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Th Ma” im.j ’ Coritait jnant LCVL 1 (“MCL”) for FCs is 3 ess th t 1
per 100 iml.ij1Ltcrs (< 1/300 mis). The FC count for th sE i ’
taken i to ! the Coil ns property is the highc’st of the w Lci
smple i which wore tdkt-’n, This sample had l ‘ 1 s of 1,200/100
mis. Similarly, the Hidden Spring Cave’s spring a d the Site’s
pond prc’duc d counts of 270/100 mis and 34 )1100 mis respscLive1y.
Provided that. the springs and the pond are inclica ive of an
associated contaminated drinking waLer aquifer in the area, the
MCL has been exceeded.
6. Toluene is a contaminant within the rite-fling of Section
1401(6) of the SDWA, 42 U.S.C. § 300f(6). Toluene is a clear,
colorless liquid originating from pet o1euni soui:ce with a nu !vber
of industrL l appiic jon . There is a ten—day drinking water
health adviso level for children whos. exposuie to toluene is
2000 micrograms per liter (ugh). The long—tenn (up to 7 years)
drinking wateL health advisory level for adults ir 7,000 ugh.
EPA has established an MCL for toluerie in drinking water of 1,000
ugh. (Drinking Water Regulations and Health Advisories, 1992.)
Long-term expos” to toluene at low concentLatjons may
result in central nervous system depression. Short-term acute
exposure to toluene may result in alt ed organ weights of the
liver and kidney. [ Toxicity Profile fo Toluene, Agency for
Toxic Substances and Disease Registry (“ATSDR”), 1989.] The
available data for toluene indicates that acute toxicity to
fre h •;aLer arniatc life occurs at coucentratjon as low as 17,500
u /i and ‘ Lt1d o L L a ovyCL couc LLCd i on . a1t i spe .Lcs t1ic L
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—5—
are ii c’ 5C’ isi L ye t ri tho e te . Lr i . ( rthJ c’nL or Quality
CrJe ia, 1980. ) Amoiirj samples Ca] lec ’cl to d - e by EP1 , the
ieve o.i tOIUE’flO h gh ”:t in the sample tak’ ti aL tlis Cal] ins
pro i: rty, at 2300 ugh . This coiitcrairiaLjon le”c] excecds both
the MCL and the ten day hc-lLh ac visory ]eqe] f or children.
7. It is a reasonable possibility that other contantinanbs,
inciudjyjct huL not limited to purgeable and extLactable organics,
and metals, may be pressri as addi dana] contaiairiaiiL in the
underground source of d inking water.
FIND INGS
8. The suirLciai acjuifer in the greater Lebanon area and
ower aquifers which are hydrologically interconnected with the
urf icial aqul let are unuercjLc:’uncl sources of drinking water
‘(“USDWs”) within the nic ning of regLilatioils pioruuhjated pursu.-int
to the SDWA aL 40 C.F.R. § 144.3.
9. Thcie USD s are utilized as a souice of drinking water by
numerOus reside -jts of the area.
10. Ba od upon the data received and analysis by EPA’s
laboratory and toxicologists, the Regional Administrator finds
that a contajiiirjnn is present or is likely to enter a USDW that
may present art immineriL and substantial endangerment to the
health of persons.
ii. Based upon the correlation between the data obtained
from saiitpli ng locations art the Site and frorc g oundwater at
iocdtjor).s ofi Site and investigation into other possible sources
-------
—6
of COfl Uhi’ ni s, EPA has determire-J thai Fe. poudr’ift.s have Ly
thai acilvities caused or cori r1buted to tb. ed ei r ent.
12. Ei?A has deteu irted that the aprrop ate state and lOCd ’
authorities have not acted to protect the heal Lit of Lersons
e;tdange-cecl by Such contamination, EPA has consulted with the
State of Tennessee, Bureau of the Environment, regarding the
correctness of the information on which this Order is based and
to dcterjuNj what actions such authority is or wil.i be ta]d.ncj.
13. The Regional Administrator therefore finds tha the
actions descrLbed below are authorized under Section 1431 of the
SD A, 42 U.s.c. § 3001, and are necessary in order to protect the
health of persons who are or may be users of the US1)Ws in the
area,
ORLTh:R
Based upon the foregoing facts and findings, taking into
account the imminent and substantial endangerment to the health
of persons and such other matter-s as justice may requ re,
including the adj’-inistratjve record, and under authority of
Section 1431 of the SDWA, 42 U.S.C. § 3001, the Regional
Adminjstrat)r hereL orders compliance with the provisions of
Paragraphs ]4 through 28 following.
14. The provtsions of this OrdEr shall apply to and be
binding upon Respondents, their successL :s and assigns, and Shrdl
apply 1methec or not Respondents’ activities in connection wiLh
the Site have occui red while doing bur i.ness by any other name,
irI( id I ‘LO b’ i’u.i’iiuJ Lc i to A. iin ic. City Ex L Se ’v
-------
—7—
an 1 Dr ’ n Clc nirig. Notice of this OrcL r shall he gi.vc’n to an
SU .1 in inLerest. pr n to tr - Iei of the fad] Ly or 3 c
operaUr n. 1\ct on oi inaction of eny persons, firms,
Con Lrcictors, emp] oyees, a iL , or acti i 0 unc 1 or,
thrciug i or for Respo;icic ‘Ls, shall noL excuse any fa iure of
Res nncJenLs to fully pe jCo ru tbei obligations under this Ordcr.
15. Respondents shall inuiiedL- eJ y am 1 without delay upon
re : .pt of this Order cease all addiLional haulinu to thc SILe,
acc’utar ce of wastes at the Site, and di posa1 activities at the
Site. Within forty—eight (48) hours of the effective date of
this Ordo , Respond; s shall proviie EPA with written
cerLific tjo 1 that a] 1 activities have ceased as specified in
this Par icjaph 15. Such cerUficalion shall be mac 1 : in
c’. )plianc J with Paragraphs 23 and 24 herein.
16. Respondents shall within seven (7) calendar days present
to EPA a proposal for sampling of all residential drinking watr
wells on real p.. perty bordering Richrt-tor 1 d iop Road, from Highway
231 to the eastern levy of Hurricane Creek (as defined by the 650
foot elevation contour on the eastern side of the creek); all
res [ dentia]. drinking water wells on real property boideriiig
Chicken House Road, from Highway 231 to the unnE od road which
lies east of the disposal area and iuns north to south connecting
Chjckc’n House Road to Burnt House Road; all residential drinking
water wells on real property hordex.iiig Hi.gliwey 231, between
Chckcr( House Road and Richrno-ud Sho Road; and any ot.Iicr
resi LiC 1J iel di-; i J ny Lcr wL’ L ; ie. Lud LAwcen Lliose roe 3’ . a d
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—8. -
the 5j ’. Suç1-i pi o i l sh J 1 outU ne the rn riner in whi h sur
well.s are to be loe& ;’ d au J tlL j r cape -‘ting sLa u dot’ JU’
the loc iti.ons to be sainpl e- , the iuc’tlxo’3ulogy artd pro oc’olc for
sam 1ing, and the pa Lies t.h wij 1 perform the s ’ 1 ’ 1 iig, ptov dt
labor 1 !orv analysis complc the data on beh:J. oi
Respondents. Sampling shall at a minimum include te tin for the
COnst1t nLs on the lisb atbacl-iecj hereLo as Exhih t B. Such
proposal shall iflClU( ’ ie i e sampling to dcLen ttne 1 lt
hazards in the area, a ’ well as long-term sampling over a ont -
year period to monitor progres of the contamination in the
aq ;ifer. Sampling shall be done periodically unde. difi erenL
rainfall conditions. The area of sam ipling may be exp ncl d at the
recomn ndatjorj of Responclen or their agentc or upon £L’ her
demand fro i EPA, if EPA deLerirtjrjes that sampling incUcates thaL
the extent of contamination has extended fu Lht t than tho c
sampling points, or upon iher reasonable justification by EPA
17. Respondents shall coimnerice residential drinking w r
well sanipflng i mediately upon receipt of EPA’s writben appro a1
of the proposal, If EPA disapproves the proposal, Respondents
shall amend the proposal based on the cormuents of EPA, and
resubmit the proposal within seven (7) calendar days thereafter.
If such amend proposal is not approved by EPA, EPA may dictate
the requirements of a sampling program to be immediately c 1 rried
out by Respondents, including but not limiLed to the field
methods, ana1y ica1 protocols, consultants, la’ irabc ’ii 0 ’., Or
c’L.Iiei Et:nL -. Lo b
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—9-.
18. In the e’ienL any s p p1ir of a residential d :inkir’
water well indjcaLeE. that the USDW has been a fe cted by
CC’Iitam ,iants co 1 te t with SaIuplircj of the Site, EPA s1i l l
inform Rcsoonde,Ls of that fact, arid Responi-’eits shall bec iu ,
within seven (7) calencL days after notif.icat on by EPA, to
provJde an interim water su )y of ten (10) gallons of potable
water per person per day, delivered to those perso! ’; dopE cident.
upon such drinking waLer well. In the event that fuirth
sampling supports a conclusion that such drinking water weJ.l can
no longer deliver potable drinking water, Respondents shLl.L
furnish a perxn nerit. alternate source of drinking water for t
persons dependent upon such drinking wa!:er well, in a manner
approved by EPA.
19. Respondents shall within seven (7) calendar days after
receipt of this Order present to EPA accurate copies of all
records which indicate the sources, quantities, and composition
of materials disposed of at the Site, and identification of all
persons employed or otherwise utilized for hauling materials to
the Sit and disposing of them at the Site. Respondents shall in
addition prepare and present to EPA a complete and accurate
suinxna -y of such records within ten (10) days after receipt of
this Order. Respondents shall also prepare and present to EPA
within fourteen (14) calendar days after receipt of thi Order an
accurate map or diagram indicating the location at the Site of
all trenches, pLts, sinkholes, or other depressions used for
di 1 t l of nlaL -i arid ally a e - whc iua Lea. ir. ls iu ‘y h .ve
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-. 10 —
becn spilled, spccd, or Otlieiw se distribuLecl o cr the gr urc-
ouLsid . 01 SUc-h pity, ti enches or other clepress on .
20. Res ’on - ’iLs sh 1.l prepare and pres nL to EP1 within
thirLy (30) c ler ch r days after recei 1 L of this OLder, a wriLL u
propc) E1l for the remc diation of the Site and propi disp s l of
all contain.iinmts, whether broujht on Site by flespon&nt:s or by
other parti.es ‘nd wherever disposed of on the Site. Such
proposal shall include but shall not be limited to testing,
sampling, and other methods for determination of the nature and
ch . racterjsLjcs of materials as necessary to detei nine the
apPropriate meLhocl of disposal for the maberials, and a sched ile
for completion of all such activities and final reinediation and
d pos i. In delerjinatjorj o the nature and c racter st.cs of
InaLerials and in planning I or proper disposal, Respondents shall
comply with all applicable local, staLe, and federal laws and
regulations, including but not limited to the Solid Waste
Disposal Act, as amended by the Resource Conservation and
Recovery Act (‘RCR ”), 42 U.S.c. § 6901 and all
regulati on - promu] gated thereunder.
21. Respondents shall comj ience re ;’ediation and proper
disposal immediately upon receipt of EPA’S written approval of
the remcdiatjon proposal. If EPA disapproves the remediation
propo a], Respondents shall, amend the proposal bacod on the
cormncrits of EPA, and resubmit the proposal within seven (7)
calendar days ther-’fter. If such amc’nded proposal .is not
ap. L ’ LrJ\, Ei / nr&y di L Le LIL Lt: cjtL I t it iiL o r€ di J.
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— 11 —
arid di oc.ai to be irrLmad]d .e1y car’ led out b r esj ie7- ts,
iriclij’-ijr r buL no; limited to tFie fi lr’ i’ ct1Kd , 8rlaiyLical
protoc:c di o al sites, cor1sult.-u ts, iaboraLoric , or other
agenis to be used.
22. Re ponderjLs shal) within 48 hours a L c receipt or Uti
Order inform EPA, by te1egv rn, facsimile or exprc rj mail ing
service, whether they intend to comply with th provisions of
thi s Order in a timely manner.
GENERAL PROVIS] ONS
23. All subii.itta ls required by thi Order shall he mailed to ’
the following address:
Thomas Hansen, ChIc f
Underground Injection Control Section
Groundw ter Protecbioi-i Branch
Water Management Division
U.S. EnvironxpciiLa] Protection Agency
Region IV
345 Couftiancl Street
Atlanta, Georgia 30365
24. All reports required to be submitted to EPA pursuant to
this Order shall be accompanied by the following statement signed
by each individual Respondent (the Vadens) a d by a responsible
corporate officer of Respondent VADCO:
I certify under penalty of law that this document and all
attachments were prepared by me or 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 any and
all per -ons directly responsible for gathering the infor—
rnation, I certify that the information is, to the best of
my knowled- e and belief, true, accurate, and complete. I
am awElre that there are significant penalties for
suhmtting felse information, including t)e possibility
o F I ‘ i r sc> ri ’j t for krr r j r i
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— 12 —
25. Th s Order does not coii LituLe a waiver, suspension or
modji 1( t Loll of th tcr s arid condjt ons of the SDcIA. Issua 1 ce
of Ui k. Order is not an el.cct-inn by E:PA to foi e o ally c vl1. or
ally crLininai action otherwise author.i zed urLdec the SDWA. Ari 1
opcr iLio-is not covered by this Order may be subject to separate
enforcenleilt action under the SDWA. Nothing herein shall be
construted as limiting EPA’s authority to address any further
COflLcui nation under this authority or any other legal author ty.
26. Violation of the terms of this Order may subject
Respondents to further enforcement act i.on, including a civil
action in tJnj.ted States District Court to enforce the Order
and/or to recover civil penalties not to exceed $5,000 per day
for vLol tions of the compliance teinis of this Order.
Respondents hail be deemed jointly and severally liable in any
SUCh subsequent action.
27. During the pendency of this Order, EPA shall have the
authority, to the extent authorized by the SDWA, 42 U.S.C. § 300f
çj. or otherwise by law, to enter the Site and all related
locations owned or operated by any Respondent at reasonable times
upon reasonable notice and request for the purpose of . . amin ing
and inspectitlg the facility and copyLng records, contracts or
other documents which EPA needs to assess compliance with this
Order.
28. This Order shall not be tnterpretecl to relieve any
RCSPOfldOflL. of the duty to comply with any provisi.orj of the SUWA,
l s I irt 1 c; Lirig regulaL Lori ,, os any othei local, staLe ox
-------
-. 13 -.
federal ]aw. NoLhjiio conLd I e j herein sh 11 be constL( ea to
pi ccludr’ or limit EPA’s i i ’ LS to obtain pen l1J e or 1nju11c ivo
rel ic C uucler oLher fe ctaJ st t-ucs and reguiations, iriclnd ng h i
noL limited to the RCRA and the Coi prchenbive Environmental
Respoi1s( , Conipon -.;.Lion, arid Liability AcL (“CERCLA”) , 42 U,S.C
§ 9601 etseq.
EFFECTTVj DATE
Pursuant to Section 1431 of the SDWA, 42 U.s.c. § 300i, this
Order is effecti.ve upon issuance.
FOR THE UNITED S t i’ATFS ENVIRONME ThJ
PROThCrf ON AGENCY:
Greer C. Tidweil
Regional Administrator
Region IV
Date
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REPORTED SDWA CASES
-------
U S v Alder Creek Waler Company
I4ERC 1413
B The Liability for Civil Penalties Without
Fault
The City’s second ground for dismissal,
that liability may not be imposed for civil
penalties pursuant to 33 U S C
§1321(b)(6) without a finding of fault and
that the Coast Guard found no negligence
on the City’s part on three of the occasions
alleged in the complaint, is not cognizable
on a motion to dismiss pursuant to Rule 12
(b)(6) The legal sufficiency of the com-
plaint is the sole matter in issue on such a
motion and the complaint does not set
forth the Coast Guard’s conclusions of
law Althdugh the City has not moved for
summary judgment, it has submitted a
copy of a decision by the Acting Chief
Counsel of the United States Coast Guard
in which a “strict l!abilitX” standaid is ap-
plied Treating the City s second ground
for dismissal as a motion for partial sum-
mary judgment, the motion is denied
“The civil penalty provision [ of 33
U S C § 1321 (b)(6)] is clearly one of strict
liability . . and every court which has
considered the question has so held
United States v Marathon Pipe Line Co , 12
E R C 1588, 1590 (7th Cir Dec 22,
1978), citing Tug Ocean Prince, Itic v United
States, 436 F Supp 907, 924 (S D N V
1977), aff’d in part & rev’d in part, 584 F 2d
1151 (1978), United States v Atlantic
Richfield Co, 429 F Supp 830, 836-37 [ 9
ERC 1993] (E D Pa 1977), Ward v Cole-
man, 423 F Supp 1352, 1357 (W D 0kb
1976) United States v General Ztlotors Corp
4O3FSupp 1151, 1157 [ 9ERC 1945] (I)
Conn 1975), United States v Eureka Pipeline
Co, 401 FSupp 934. 942 (ND \V Va
1975)
Conclas ion
The City’s motion is denied in a!l re-
spects
So Ordered
S..”
U.S. v. ALDER CREEK WATER
COMPANY
U.S. District Court
District of Oregon
UNITED STA1 ES OF AMERICA.
Plaintiff, v ALDER CREEK WATER
COMPANY, aLa ALDER CREEK ATER
COMPANY, INC. and GERALD 1 BEN-
NETT, aLa “RED” BENNETT, indi’,idu-
ally, Defendants, No 79-1090, November
6, 1979 -
WATER
1. Federal, state, and local regulation
— In general ( 28.OI)
Federal, state, and local regulation —
— Water quality standards ( 28. 14)
Liability by industry — In general
( 32.O1)
Water company’s removal of En iron-
mental Protection Agency installed
recording nephelometer from residence,
in order to hinder EPA’s efforts to test
quality of sater served to residence bs
company’s %satcrs stem under Safe Drink-
ing Water Act, makes company liable to
agency for any damage or loss resulting
from removal and subject to court ordci
barring removal in future
2. Federal, state, and local regulation
— In general ( 28.01)
Liability by industry — In general
( 32.0l)
Water companY %%hose past actions in
operation of public water systems cre in
violation of Safe Drinking Water Act is re-
quired to issue adequate public notifica-
uon to users and consumers ofconspan)’s
failure to comply with Act
United States brings suit against a %%atcr
company challenging the adequacy of
measures taken by the company to bring
its public water systems in compliance ith
the Safe Drinking Water Act.
On plaintiffs Inouon for preliminary in-
junction
Motion granted
Thomas C Lee. assistant U S attorney,
Portland, Ore , for plaintiff
Brian O’Brien. Portland, Ore , for de-
fendants
Full Text of Opunon
JUBA,J
On October 19, 1979, plaintiffs Motion
for Preliminary Injunction was regulai 1%
heard, the parties to this cause having ap-
peat ad and being represented by counsel.
and the Court, having considered the e i-
dence and oral testimony taken at the
hearing and the e hihits recci ed into e i-
dence. finds as follows
-------
I4ERC 1414
U S v Alder Creek lVaier Company
I Jurisdicuon e\ists os c i the parties
and (he subject matter of this action pursu-
ant to 28 Usc §1345 and -12 USC
§300g-3(b), the Safe Drinking \ ‘ater Act
II At all times material, defendant
Alder Creek Water Compan , Inc has
been and presently is, the owner of live
public water systems ssithin the meaning
ofthe Safe Drinking Water Act Said public
Isater systems are located in Clackarnas
County, Oregon, and are known as the
Alder Creek-Barlow, Country Club. River-
side. Wildss nod, and Sleepy 1-lolloss water
systems The Alder Creek-Bar loss and
Country Club water systems utilize water
obtained in sshole or in part from surface
sources, ss hile the Ris erside, Vildwood
and Sleeps l-Iolloss s%ater systems utiliie
subsurface, or ground ssater sources De-
fendant. Gerald I “Red” Bennett, is the
president of the Alder Creek atcr Corn-
pans’. Inc and is the principal stockholder
and operator of all fist’ isater sssiems
lii Defendants’ operation of the Alder
Creek-Barlov. and Country Club public
%satcr s\s(eIns h is been and continues to
be in wilful rolatron of numerous pros
sions of the Safe Drinking Water Act, 42
U S C § 300 g- I, et seq and the regulations
promulgated thereunder, specifically, 40
cr R §141 14, maximum microbiologi-
cal contaminant lesels 40 C FR §141 13
maximum contaminant levels for turbidi-
ty, 40 C FR § 141 21 microbiological
monitoring rcquiiements, 40 C F R
§ 141 22 turbidity monitoring require-
ments 40 C FR §141 23 and 40 C FR
§ 14 I 24 monitoring requirements for in-
organic and organic contaminants, 40
CF R §141 31 reporting requirements,
and 40 C F R § 141 32 public notification
requirements
IV Defendants’ past actions in opera-
uon of the Alder Creek-Barlow and Coun-
try Club water systems have not been ade-
quate to achieve compliance sith the Safe
Drinking Vatcr ct and regulations, how-
ever, defendant Bennett has testified that.
within the sscck ofihe hearing, lie acquim cd_
and installed on the Alder Creek-Bar low
and Counti y Club systems hiypochlor ma-
tors is hich are meter drr eii with floss pro-
portional control, which, lclendaiit be—
his is is ill be adeqri.mie to disiiile ti tire (ii 0
systems’ ‘satcr — —
\.‘ l)efeniclarin also has testified diii . 111
ap )roscd nepheloineter br pti poses of
curbiclits contaminant monitoi ing is as re—
ceirils obtained bs the Alder Ci eeL \ oer
Coinpan’.
VI Ins cii oftestiinons challenging die
adequac’. of defendants’ measures, it is
likely that violations of the SDWA and
regulations, may occur in the future Has’.-
ever, in ord r tojuclge the adequacy of the
chlorination facilities the defendant has in-
stalled at the Alder Creek-Bailow and
Country Club systems, this Court shall act
to protect the health and safety of the users
of the subject is ater systems, and the pub-
lic in general. sihile not requiring defend-
ant to purchase additional equipment until
further hearing is held
VII In order to test the water purveyed
by defendants’ Country Club system, the
Ens ironmental Protection Agency (here-
inafter EPA) injuly, l979, installed a con-
tinuous recording nephelometer at the
first house sersed b ’ . the water ssstem r\l-
though the EP. had the pci mission of the
property oss ncr for such installation, de-
fendant Bennett informed the owner that
f e siould terminate water service to her
house because of the connection of the
Agency’s equipment 1)efendant Bennett
subsequentls remosed from the ossner’s
porch and took into his own possession the
EPA’s equipment
VIII This C ui t has jur isdictionm and
authoi ity’ to issue a mandator Oi (let
reqtiiring defendants, their officers,
agents, servants. eriiploy ees, attornes’s and
other persons in actise concert or par-
ticipation wih them to take immediate
measures, as specifically’ described belors.
to minnmnr7c tIme risk to public health at the
Alder Creek-Barlow and Country’ Club
siater systems The requit cmenis of the
Order are imposed pursuant to this
Court’s jurisdiction and authiorits under
42 U S C §300g-3(b) to protect the public
health Accordingly’,
IT IS HEREBY ORDERED that Plain-
tifFs Motion for Preliminary Injunction is
granted and defendants, and each of them,
are enjoined and directed as follows
PUBLIC IIE.ILT11 slE ISURES
I Defciid,int’. shall immediately upon
jhie entry’ of_this Oi der. maintain and ad-
just the r nidersoti DC-30 chilor Imtaior e’ .—
rstiimg at tIme Alder Cm eeL-Barbs’.’ siater sys-
(ciii, 10(1 t lie Anderson I)C—2() chlor nrmator.
c’isrlmmg mt the ( ountrs Club ss.mici ssstern.
in a mariner which s ill pro ’ . ide continu—
oimslv, rliroiiglioimj these drstn rhutioni s
(tills, free icsidtial rlilor rite Ic’. els 1)1 ,rt
least 0 4 mg/I ‘I Imese adjtmstiimenmts shill he
made as of rent ,is indrcated bs the tests r e-
qiinrcd mi paragr.mpli 4(a) bebos’. . hut ihe—
ferid.rmmts sh.ill nor melocaie or posit mon ilie
chlom mnatoi s at any location is here less
-------
US u AlderCreek 1t ’afrr Company
14 ERC 1415
than thirty minutes of chlorine contact
time is pros ided at all times, including pe-
riods of peak flow, prior to delivery of
vater to the first customer
2 Defendants shall keep legible re-
cords of maintenance required by the
chlorination devices specified abose, and
indicate the periods r ’hen the devices are
clogged with debris, or otherwise malfunc-
tioning, including periods of shut-dossn,
however brief Said records shall be made
available to the EPA upon request
3 Defendants shall, within tsso rseeks of
the date of entry of this Oider, construct
adequate facilities to house and protect
the subject chlorination devices on both
the Alder Creek-Barlos% and Country Club
systems Such housing facilities shall at a
minimum be
a Capable f being locked, and
b Equipped with adequate lighting
and souicc of electric power
4 Defendants are directed, upon and
from the date of entry of this Order and
during the pendency of this action, to sam-
ple and ana!y?e and record the analysis of
tire water in thc Alder Creek-Barlow and
Country Club systems at the following lo-
cations for the following parameters and at
the following frequencies
a Defendants shall sample and ana-
lyze for free chlorine residual at each
system twice a day One sample from
each system shall be taken between 6 00
a m and 1000 a in , and one from each
system between 4 00 p iii and 8 00 p m
Defendants shall lotate the sampling
sites among all the locations specified
below, so that no two consecutive sam-
ple locations are the same
Alder Creek-Barlow S stcm
I Thompson — E Alder Hts Dr
2. Fitch 53196 Sylvan Way
3 Flatt — 20220 E Forest Fern
4 Furnish — E Summertime Dr
Couritry Club System
I Ponichello
2 Jones
3 Bachnian -
4 Lowe
b Defendants shall perform micro-
biological sampling and analysis at
each system twice a week, in the man-
ner prescribed hs 40 C_F R § 141 21,
the hr st s.implriig to he performed on
Moirdas irior mug and the sicond to be
performed on ‘ . edncsdas morning l)e-
lendants shalt rotjte the locations ofihis
sampling among the locations identified
in subparagraph a above, so that no uso
cs consecutive sample locations are the
- same
c Defendants shall sample and aria-
lyze for turbidity contamination at each
system at least tss ice a das, at the times
specified in subparagraph a abos c arid at
the locations required by 40 C F R
§ 141 22(a) The turbidity contaminant
sampling shall be performed on an ap-
proved riephelometer and in the man-
ner prescribed by 40 C F,R § 141 22
5. Defendants shall record and shall
keep arid maintain legible records of the
results of all sampling and analssis re-
quired by paragraph 4 of this Order, and
shall report the results of all such tests to
EPA on a sseekls basis, such reports to he
postriiarked no later than the Monday fol-
lowing the week in which the tests rscre
performed or. in the case of microbiologi-
cal tests (subparagraph b), the iseek fol-
lowing the completion of the anal .srs b)
the certified laborators
6 Defendants shall imniediatels obtain
and utiliie a N, N-dreths l-p-pheri—
ylenediatninc (DPD) test kit in tire pci -
formance of all fiee chloi ire iesrdual rest-
ing required by paragraph 4(a) of this
Order.
7. Defendants are prohibited from dos-
ing with chlorine, otlici ss ise knots ii as
“batch chlorinating”, any water drstribiir-
ed by any water system Ott ned b) diem
8 Defendants shall keep and ni.iintjmn
legible records indicating the dails
amounts arid strength of chlorine, and
chlorine solution utilized by the Alden
Creek \Vater Company ni rue open anon of
its Alder Creek-Ban 1 ow arid Counitrs Club
water systems Said i ecords of clslornrie
usage shall be made available to EPA upon
request
9 Defendants shall, within tsso weeks of
the date of entry of dims Oidei , eomph
with the inorganic and organic sampling
and analysis requincnilcnts of 40 C F H
§ 141 23 and § 141 24 at ALL s stcms
ossned and operated by the Alder Creek
Water Conipan iv, and shall submit the re-
sults of said analyses to EPA no later than
six weeks from tire date of enurs of this
Order The samples shall be collected iii
the presence of an 1’ P \ emplos cc arid after
pros idirig EP ‘. rs iris -IS hours ads anice to—
ti( e
10 Defendants shall subniint all re
qurred anals incal reports no El’- at the
times specified in a mariner ts huh is legi-
ble, clear Is’ nrrdrcating the dare. location of
sample collection, the name of the sam-
-------
I4ERC 1416
U S a I tder Creek U’ater Coinpati’v
pier, name of thc laboratory or person
doing the anals sis, and the method ofanal-
sis, and such reports shall otherwise be in
compliance ith the National Interim Pit—
mars Drinking Water Regulations
II No pros ision of this Ot der shall he
construed to ss’aise an ’ requirements im-
posed upon defendants in the opei anon of
any uater system or systems owned by
dtem, sshethcr such requirements are im-
posed b the Safe Drinking Water Act and
regulations promulgated thereunder, or
by an other statute, regulation orjudicial
or administratise piocceding
COOPERATIO\’ il’ITJI EP.4
12 upontimclynoticetodefendauhlso l ’
defendants’ counsel, Brian W O’Brien,
defendants shall allots El” personnel to
be piesen sshen an) of the required sam-
pling specified elsess here in this Order is
performed by the defendants Upon timely
notice to defendants or defendants’ coun-
sel, defendants shall alloss EPA to obtain
what is commonly referred to as a “split”
sample for put poses of cornparziu’C test-
ing For purposes of this paragraph only.
“timely notice’’ shall l)e deemed to hasc
been made when EPA personnel tele-
phone defendant Bennett or his counsel at
least on the day prior to such sampling
(fl 13 Defendant Bennett shall im-
mediately retum n ALL equipment taken by
him from the Bat nes i esidence to the EPA,
specifically to Nit Don Gipe at 522 S W
Fifth Avenue, Veon Building. Second
Floor, Portland, Oregon l)clendant Ben-
nett shall promptly reimburse EPA foi any
damage or loss incurred as a result of de-
fendant s removal of said Pt operty, upon
notilication by EPA of the extent and value
of such damagc or loss
14 Defendants shall not remove. tamp-
er ts ith or intei let c iii an manmier with any
EPA equipment locatcd on )rivate Pt oper-
ty of icsidcnces sersed bs tie Alder Cicek
Water Coinpaiiv. or at ans’ other location
not on defendants’ property Defendants
shall not retaliate against or inal e thu eats
of an kind to .inv l)Ct son s ho consents to
EP\ cntei ing his/her property fou die put -
pose of inspecting ;he water therein or
who coopeiates ssidi EPA for any other
purpose -
15 Defendants shall allow EP-\, upon
notice made bs EPA to defendant Bennett
or to defendant s counsel in the manner
prescribed b ) paragraph 17 of this Order,
to obtain access to the rass’ ssater intake,
treatment facilities, and storage facilities at
the Alder Creek-Barloss and Country Club
water systems for the purpose of obtaining
comparative samples
[ 2] 16 Defendants shall ss ithin us o
weeks of the date of entlv of this Order
issue adequate public notification to all
users and consumers ofts ater sen ed bs all
of its 55 ater s stems of their failure to coin-
ply ssuth the Safe Drinking Water Act and
regulations Said pul)lic notiuicatioii shall
be approved b) EPA prior to issuaiiCc
IT IS FURTI-IER ORI)ERED THAT
17 EPA shall notif’v clclendamit Bennett
or defendants’ t..ounscl Brian \V O’Bu ten.
of its intent to sample the water ft om ans
of the defendants’ systems ss lieiics ci such
sampling us to be done on defendants’
property or a or in the inimecliate area of
the intake of defendants’ water svsteitis
Notice shall be gisen prior to obtaining the
samples and may be given b) telephone.
whether or not defendant or his counsel is
present to respond
18 EPA shall immediately designate
SuLanne R Rowan, an EPA emplosee ie-
quested by defendaiit, to be one of the
samplers tespoutsible for testing the ssater
in defendant’s water systems
19 El’ \ shall toutinely inform defend-
ant of the i csults of ans’ and all sanupks
taken by EPA front defendants’ tsater s)s-
teins —
20 Perfot mance of the terms of this
Omdcr is subject to die supei vision of El’-\
1 lie pai ties to this action may appl to the
Court for intci pi etatioii or modil uatuon of
thus Ordci , (oi res mess of the couiipliaitcc bs
defendants dieress nIt, and for enforce-
metit of the tet nis hereof -
DAThD this 6 d iy of Nosember. 1979
-------
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U.S. v. NES O\V1N
LNTERI’RISES, INC.
lj S l)tslrie( Court
I)isti It.t of Oregon
I, ‘sill I) ‘sI \II°s UI \\iI RIC\.
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W A FI’,R
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l’ederal, stale, and local regulatioti —
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( 28.(P5 I)
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( 32 01)
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I-Il R(’ I bIM
I’ psi mit I I i,i let/inset, Inc
( iilot i Ii) fit’ At I ati(l Rct itlatnnts ,itiil
(f( ’leg ,iIC(l ,itithur its to the states to do so
Some states, including Om cgon, declined
tc.i accept i his csporisthiltts Accoi cfrngls
the I us iroriiticrital Pr otection Agency
(El’ \( has tinder Liken the task of appls ung
the pr Os usuotis of the Act and Regulations
to the public ater systems in Or cgon
Defendants ss etc Iii St notified bs I’.Pr\ of
the r equrr cunents of the ,Aci on June 23.
1977 1 hes ssere I c-notified hs EPA on rtu-
melons later dates
Diii ung Jolt 1977 Fl’ ‘t personnel i_ui—
kctcd tss cuts -sesert bacici iological staten
samples front defendants’ ater S) stciins
and anals ied tssentv of them using the
mcnihr ane filter technique All sampling
and aiials sis performed hs ER- as in ,tc—
cord,ioc e ss it It Standard ‘slethods for the
E arnnriation of Water and ‘A asiess tier,’’
and )I opei tisrodial cah’gruai dc u crc
used I lie I eiiiainiiig seseil s iiiiI)les 0 etc
anals ‘ed l)s the Pot tfand Bun cair of Water
Works, an EPA certified laboratory,
using the membrane filter technique’
Some of the sanil)les ci,ntarriecl e\cc’ssis e
let cls of bactcu ia
EPA Region 10 iii Seattle, \‘asliiiigtoii.
stthseqiientl’, received i lii cc Ixicten iologr_
il sample’s front dcleiid,iuits sateu svs—
lenis lot the tnoriifi of July 1977, too ha it i’—
i iologicai s tritl>l( s for August 1977, mid
uric’ l)ictei nolstgic,iI s.iiri )le for September
1977 1 firs dat,i Stis f)CI soii ,ilfv givi. i i to
F PA repi eseiil.uI is i_s ts Ito isitcil Neskoo iii
on june 7 1978 \ll l)aCter ri)logical sarii—
pIes subntittccf by defendants utrliiccl the
niiiftiple tithe fer ine’ntation technique, t
The membrane filter rechnuque is an ac-
ceptr_d mci hod liii rest liig for ific f)t i_settee’ if
I),i(iiii,i 1O(’ I R t 1 12 1 (i) \sfii(u iIoiisui
is pimeimi ,mi Time i)otiOnii ul ,i humid hut stiiit ii
ii,mtt_i .uiiiItle is l )uIui_(f liii’ i),iCil_ui,i us i,uiim . hii
tim ufie filter .miiif gioos (iii ii wutil ii ,mni iii iilm_miii’
lii ml \leiuiltu.iuues of (lit li_nenit sun_s ate mused it)
s,uii_fi Sf)U fit ui_pm_s of hi_ti rem I lie ituinuri.mer of
5.iinif)l( 5 iilft_i it’d cii Ii initinifi .111(1 tiit usci,1 1
iituiuilmt_i iii I u,i i_u t_ii ,iI iufuniics }tieseiit ft_ti_i inline
t%iui_ ’ili(_i 1 iitii,iiitiii ‘ I I liii nui ,i iiiuiuiuu
miii n iiI ii t ,I i ,t u t .11 ((>111 mmumui,iii r Ii t Is Ii is in —
tu rn _u Si. it) ( I I’i. kt ii I t( ,u)(I)—( ’i)
I lii iiiiiliijili__ tiilii_ ti_nuiit’nin,iiiuiui ti_u iiuiiuiuiu
1st 5 I Si mi_s if iihii ill if miii suiliui titus ui_ni—
mm ii )u_ ii piitium li_ui iii i ,iI i_tuunili Iimsiiht i_i, Ii
umuh i’ plai ( II . 111 miii c_it, (I i till,’ hit, tutu ii
. 1 mi,iriuius ud mlii uu,uieu mu itt mi_sic_rh is mni m_i mi_il
Silt 1,11 i t_ii,mI m4m(ouihu null tf)Ifl_ lu iii ilim. imis ..im ._cI
him I I iii (iii I ’ iiuin( (I ii I, 1 d ,ii id u)Ti ,h Ii It
,iiiil flu_u mmiii ti_cl iii m iii minim! ii iii in iii tutu if
I iii ’ iii Iuitii 1 uui is ilso ii_ucir_ i, ._tI ,ms ,mmm hi it (ii ,m
hi u. miii thud ui i( suiii_ tuii ilui_ f)ih_sI_ttdm._ Ut ().fl it—
arid rio mirhe’s sliooeul prmsriis e evidence iii
euliliar rut (_onit,iiiiiii,ui iou
Pin sti.irit to If) CI’ R 14 I 14(c), rofa—
tioits ni the bacteriofoiric,ml tui,i\iiiitinn con—
iari)irm,irit lesc’l’, ni_me uiinpmuted on the as—
ci age of ,mll rcstifts for the thin cc month pe—
r ri_id Ji_ils , August arid ‘ief)LeuI )l)e ’r 1977 An
as erige of thin ts perccnt i_if all samples
t,mkeii if tiring iii is per iocf cont,uuntcd exces-
site ies el’, of li ,ucici hi
On Juls’ 15 1977 F l’-\ notified defend’
ants of the r esuilts of EP- c Juft 1977 n ater
antIs sec ,inicl told thieni that tfies should
notuft the public of a potential health haz—
arci On Jo!’. 20, 1977, EPA personnel
again discussed the rcqtiurenie’nits of the
Act it nIt dcfcnd.ints and told theni that
piilsluc notification n as necess,srs EPA
Suibse(fLiu_n itls contacted defendants by
telephone or letter \migttst 2-f I 77, Sep’
timber 2, 977 Os tober 19, 1977, Dccem-
hi_i 2, 1977 anti l)c eniher 12 I J77 Ott
cacti occasion delend,urits is c_ic mnifor rued
iii the r equir eunerits of the Sit and the
Regnlat ions 1,1’ -\ i ec’is ed no t CspouiSe
ft unit the (lefcnd,ints i cg,mi dung these coin—
iiiiuttut.it ions
On .Spr nI 20. 1978 I’ l’\ issitml Notice
of \‘iol,mtiuin to cft’fend,iiits 1 his nmotncc iii—
lou nited thicitu tfi,ii this wet ciii uI muon oh
the Scm .mnd (lii c ned thieni tim umit 1 )Is I he
Nt)tu(l_ (if \‘ioi,iuuutii ,ul’usi stain_il that coin—
)ii,uuiCe si itli tIme Sm t is i_tiild iii lie hit iii e
ic c,ilctiLuted oni a oiie—miuonitfi, i.uihit’r tItan
three—mouth l),isIs Ii’ S did riou ieccisc
.urtt rCSpOniSL’ ii orii ific dc-f euicl,irits to the
Notice ol \‘iolitioii
EPA sited cfeferid,ints’ o ,itcr st stem in
J trite 1978, arid o arnied defendanis diat
they continued to be mu s iolatiori of the Act
and Regmrlatuons During this sisut. defend-
ants presented El’-S pcrsonne’l wit Ii several
rimoriihs of riumir ol)molom4ncah .umtd cur hudits
uriuniunlir trig (1.11.1 ii line Ii fu,mcl titit pies iomis 1 i’
bet_it i t’f)om tm.d to tIme I’ P 5
EPA m cm cit cd I i_’puir Is of set em .ml iii—
5 1,iii( es of gasin(iciiter itic at Neskots iii iii
JutE’ 11)78 5 saiintan s’ stir set Si is ( orirhmirt—
cml o (rum_li uufmm ,uucd that due is,iIem sssie’nri
55, 15 rue ituost likels cause of this otiihi eak
I ln’im_’stilns md fits suiim sut’mrgrst’ni iofe—
ft’nuif unut s oil Suiguist —I 1 )7M On \ngiict
21, 1978, II ’ S irsiorruicd cleui_’nud.irtts uhmt
lies sfmmmuilml n,uke i_cr lain mitten unit coutitol
mitt, isumies tti )mltii’ct ifie puif)IR Iim_’,i!tlu 1)e—
mu ill ( I It kIlt 21(i) 5 tuuul,tuittiu mit time
cmi u ’ ,uuiiiuiui liii iii m , mI .t t_ ii.iI I uumii,mnimimm,liii li_ui_Is is
cii mi_i urmiuii_I i)t mimi. niiiuiiiit u it! iiiht s tulimi_li sfmuuus
i isuui ic’ u tuft itt iii ii) ittim ii liii mi_rim \pr 40
( I R I II I Thh((2)(u)—immi)
-------
t ’ S v \ P(! Ou ’lll 1 ?lf(’?f)l 1 5 1%
Ill i ( iI
fcndaiits icknos edged ret pt ol II> Vs
(COi ) llllCi l(Llt toils tin) C( 1 11C ’.it(f .l(l(h—
tion il tulle loi (OiIli)letl t.)t ) (>1 tiit_ 55(11k
Oti O tuber 21 107$ dt ftiid,iiits siih—
IllItted elc’seil ulll(l (>hIoIl)gIt ,tI S.iilll)IIS I Ou
th& month of August I 97$ — ll of thus (i,lt,i
5% IS i pot ted f)CsOil(I the ‘lO—dis Ilii limit
i cquum cillent uinpos id bs 40 C I’ R
§ 14 I 31(a) All elcscn sai1lI)lc tscu C ana-
Is icd usung the multiple tube let ilit nl.itron
tCChfli( 1 1iC incl iluile shoss ed es ldCul( C of
coliform Coiiianiinal ion
Dui ung August 197$ boo es er. F l’ ’\ per-
sound had collected to cuts irlicu ol)uologl—
cal samples from defendants atci ss stein
and auialvzcd them using tile ulleinhi ane
Filter technique File Oregon State l-lcalth
l) uslOil also had taken to cuts —Si\
microbiological salnl)ies Ii urn tile oalei
system These sainl)fes o cue ,iii,ils icd bs
(he Oregon State I le,ilth l)is usioti l,.iboi
tots using the multiple tiibc let mi miiai lull
technique Both tiii 1 P saitiples .uid the
Or egori State I Icaith I )is isiuui saunl)les
contained eVeessis c icts ifs cu b,iet ii a
Duuung Fcbt imars I 979, EPA ( oflected
hactet ioIogical samples Ii (Sill dcfeil(l .liits
oater ss stein and aiiils ed thciii usiiig tile
inimbrane liii ci t ciliiuqiie \gauu. some
of the samples runt . 1 imied c’ ecssis e k s els
of hat tutu On \lav 14 I 970, EPA Rcgioii
10 i eceus ed bact ci iologlc.il saiiiplt’s Ii uiui
Ncskosuu 1 ss.iiei ss stein loi tile iiiuitilis of
Jauiiiat ) and Icl)i u iu 1979
During the mouth of Ipi ii 1079 tiic Ui—
egon State I lealtlt l)is isioit coilet ted tin
samples front tile sesLoss in atet ss stein
and analyicd them using the mukiple tube
fermentation technique A significant pro-
portion of these samples ‘scre fotuiid to
contain coirfom in bacteria
From the cfTectise date of tile Regula-
lions on June 2 f, 1077, to the present 1’ I’ \
Region 10 has not i cceuvccl tins
nuuciohiologrcal siuilpliiig i estilts Ii oin (lu—
feitdartts outer ss’steiil tom ilu uitoiitli’, of
ICl)l tiai y. \pi il. \I,is auitl July 197$ ,tiitl
\lai cii and ‘\pt ml 197’)
For tile pci 10(1 Jtinc 2 I. 1977 to tile pie-
sent, I’ PA Region 10 lets riot i eceis ed
ttirhidiis t oiltaiillil,lilt .111.115 s lioni the
\t Sko Sslil ‘‘..tt Lt 55 51(111 iou liii iiiuuiitfis iii
Ills’ tumguIsi S())leiill)L’i .lil(i i) ‘t iiii ci
1977. Jtiiiiiis 11 17$, .iinl J.uiiiu,tis , \Iiiu ii
Ul(l r\l)ltl 1979 ?tdtlitioui.ijfs (i.it.i 51111—
iituttctj 1)5 clcleuitf,iiiis for ulie 101100 ing
ulloiltils 5’, as II I 0 1111)11. t i ( )(lOI)i i 111(1 ‘\ll—
‘( ‘ulli)Cl 1977 It iunu,tis \I.iu I I ‘spi ii
\lav, Juuic hilt iinl ‘ sllt ilsl l)7$
I’ I’ \ Re ioii 10 11,15 ilot I itist’d I t stilts
of i( ’(ltiIie(i illot 4.iill( I uilt.liiliil,iill .iii.tls—
ti Iioiui tItli. iid.iiiis 5551(111 IOu tIn. 1)111)1(1
Juiie 107$ it lilt ui(” ,Cuil
1’,i ‘s Rcgiiot If) li.is ilol ut eised ((>f)les
(If nit nt’o s iiierli,i })tlI)Ilt llotl((S isstim’tI l>s
deb ’itd.Illls I’ P’s l(’( eit((l 1551) ( 0 i( S (II
C(lilsliillcl i>iui)hiu 11(1111 1 ’ 155111(1 I)’,
‘t ltel SsSt ilii fi>i till’ iiiiiu(l tils
l’)77 titt uuigli \l.is I 1)71) 1k f iil(l .llltS
adillil clisti lh)tituilt 4 tOll toulSluuuleu 1)111) 111
not i tt s (lul mug thus pci tin. 1
I P’s Region hO iecis cd ttiu bulits 111(1 111—
toi uitg (i,it,i Ii 001 del(uld ,i llls 5s .ltei 5551(111
55111(11 sf1055 cul a luloiltills .15 (‘I .lgc Ill LVI (‘55
(tf fc’tie’u.tf tIll l ucii s st,iiicf,ii (Is ftu tltt
IllOultils uI I ebu nuts, \Iaidl Api ii \i ,is
August September .iild ‘sos cullbcu 197$
.iutl I tin uau 11)71)
Oit \pi il —4 l97 ) J)l.iiiltlIIs fihid tills ic—
11(111 5(1 , kiiit. lil)iiui( lise u ciii .intl tiit’ lilt—
P05itl it of sl.lltitoi s tisil peit_ilties Oil
‘sEts 7, 979 tIll’, (1)1111 isstii’tl .111 oi dci
l. r.uulllili 4 l)l.tiiltitls iiuouullll fol )i(’lillllll,ll S
uil )LillfilOil I Ite ((liii I Iouiil(f I l,lt Opel_i—
IiOil tif tIle ‘ai(i i)til)iit Is .utei 55 si(’iil .lt
\eskoss in hs (icI(ii(I_iiijs Ills I)cCll ,ltl(l
I OiltiilILeS to l)e ill ‘lOl ,ili(tu) itl the S ,ift
l)i lllklill.t ‘S’s _ii i
Iii Jiils I )79 lii’ (lCIlii(i .iills ‘sl’ie 101111(1
to 1)1, iui toult (ilij)l of this 1 0111 t’s oidet of
ti.ls 7, I ‘.)7)) \i 515 (‘I il iie,ti liii4’ 1111(1
thiiotit i suit ills (f(Ie’ui(i,liiis 5%L•ie oudeit.d
It) ((Ii iL’( i 5.ii 1(1 115 ilit ( hi,tiiit .il ll(’fi( icilt I i ’s
iui thil 0,11(1 ‘ ,ssteuli I flu’ sst’ie .115(1 1)1 —
dci i’d to leiilll)lil se ilie pl.iiiiff for ils e\—
l)elisc’s 110 lii it’d iii ill’estlg.lliiig the Coil—
lCiil 1 )t 1)1 ()se( uil lull
I! I’IOLI rio’ ,s Or mr Ii’I’LlC IBLL
!?LC(’LI !‘IO\,S
Section I-I 14(b) of tile Act, 42 U S C
§ 300 1- 1(b) states that tile Admuilmsti atom of
I P \ ‘‘mat hi iuig a us ii ,ictuoil il ilie .11)1)10—
puiaic I lulled St,iiis dustuutt eI,liul to C-
liii ‘ llllIl di,iii t’ Is II Ii .u 11.11 utuii,ul I iili.ll
I iiikuim_ ts,ilt’m u(’t ltl,luil1ll hI sim ii ami .u —
iR)li tile (01111 Ill_Is (ili(’u ‘sill II pii(igillt ill
_is i)iott’l luoll uiI iilth ii. lit ,ihihi 111.1% 111111111’
takiiig imiti touusitleuatioii lilt tiiil( iie es—
S,ii\ tIlt Oulll)l 5 .111(1 liii’ ,i\,lil,ll)iiils iii . 111 1 i —
11,1101 ss,Ilu I SiiI)i)li(’S 14 I I liii (olli
fiioi ’ , iii ii till uIt It Il(l,iuil his tsillfiiils sill—
1.11111 .lii 5 11. ttiI,iililui liii. ((Ill i il_IS iumij)ls(
(it ii l)(’il_lhi it S II lie) Ill S ’ (hUl l tIll (‘.11 ii this
iii 55 liii Ii ,i s iof.ii lInt 111(1111 ( If 1 1 \iiil ‘iui
tIlt. lu 1(11 lobe OiO .i(iu’i eul ho iiui (1)1111 ill
.1551551104 (IS il 1)1 ii.ihi S R ‘‘tiit “1.11—
(111511(55 III till’ ii liii 1(111 .111(1 1 lii 1)IhilllI I —
11(111 .11 11 5k ‘ 14
I0.iiiitift ( Iuiu( uils .111(1 (ft Iu’unf,llll’ ,
ill Ii ( Ii 11% It it tht ft iiul,iiut Ss I It’ siihii’ I II )
-------
I It t I i i I I )
C S i i \ rsi.otio ii I it in pi ises I u
lit’ j ut ’’ isioht ’. of ilit’ Si I •iiid Rtgtil.iiioiis
liii Iti L ltii C I e 1 it.titdI iiittiiutittl t i! ilut
tt(ftiiit’t’ittiii s ( I I iltt’St’ Itei, iihi iiiuiis and
1¼ t l 10111 1(1 h ilit ttiiii I Ii ) lit iii iiif,iiioii
ilie S.ile l)i inking 55 .itez St I in pl.tin—
tilt’. it’li liii 0111 ’ I t’hli ,iilliiuiZ isstie i s the
tIiiIitliei ( (I i()l.iiiIiiiS liii II)ili.lI)l( i i i iht
tltfciitl.iiiis ,iiitl t he tiuiOthii( Of t ILl 1 Iieii.tI—
lit’. i l l lit’ I I I .11 (ltd
I lie ti,liei ‘. 1 sit’iii St,I’, C(iit(’ftit li(e(l lii
ilk’ \tsl.ouiii httgtoti.ul 5 5. 1 1cr l)tsiiict .incl
tletend.itiis teaset l it) hi - lie D I I iit•i s of lie
s;sicin v u Stugust 3 97q I’faiuitill seeks
ctiiiiiii,uii jitcignicril .IS 10 defendants’ lId—
litijis liii ciLil )Ci).ulhies lou iol,ituois oc—
niiu tog ,ui iot to 51j 7, I 070, the daic D II
iilittlt 111% ((1(111 t4iiilietl jii.itntitFs iiioiioo
ho 1)1 tliiItlli ii i hi1 ti) 1 11(11 1
1 .i stti iiii tI le h R ouiitsted ,tfhth,is it ii i
S\’ufltaiii S \hillen, f)l,iliiiltl (onicri d ls ihi:ii
tilt 1 1111110 hiii4 ¼ iiil.iiiitnis 1¼ ei C coi;iiiiiiieil
In I (IC clef eiid.iiii
-S I oiloitott of llr/noinig Pi tiijistoiii of JO
Cl I ? I I I fl(r,j
—JO C I- 14 h-Il 31 (.i) itot ides iii
111111 f).lut
(.t) I ‘uepi u ltei 1 .1 sli m iei lepot mug
jiCi 1(1(1 ‘4 let ifitti tile Lli f)Iitl of
½l,iitl shill ieioii 1 to 1’ P S I o iiliiii —It)
tl,is s 1 1 11 1 (0 1 uiig . 1 lesi. iticasiiieioelit In
.iii.il lLls uttjitii Cd I ii I)C iii.ole . the
i esulis of tli,ii lesI , nteastn cineni 1) 1
• 11¼ 5
l ii i Itt iii 1 SlIti i ¼s Ui:ii I C(fiiil ci i
10 1( 1 iil)tt)h)L 1CII hejiD i is I¼ei C ultit ‘.itii—
iiiiittth Dii si\ Vt C.ishitti s I li ii L4 liii 1 1 )1 1—
i.lliii lI,l ili I t’f)lit is Is Cl C m iliii iiii if o & I I l it—
50111 lie liii i i —(li ; time Itinmit liii ijidits ic—
full Is Ii (‘It 11 11 1 5lll)iiliiittl out eight tat a—
sun is and at leasi fnvu i t-ptii is iou till huiliiv
.tii,tl Li ’ . lI d C incotnpleie 1 fins. ihe IC—
l1 1i thii4 0 1. (SHil l’. 1% 111 l It 11 .111 itt It t . 1 tot,tl
I II l iii \—‘i\ Di (.151(11 15 1 5cc \iutiiinihi\ 5)
l It itiid.tiiis liLt i nt l tit est iuii,’tI .Iii¼ t LI—
itt itt lit (iiltiiilt tii ilit St t.iti’.
I ItIhtltIOi 11 / I /u \lmmtlot ittm /‘itotluon if U)
( / I : t i ii )Ito)
flit 1(1)111 Iiili.L it Içtiiitutitttis sf(tt dit(l lit
—14)(’ I It I II ‘Sl(.a).tsslitmit ili.ii .Ii(t’fti.t—
lilt iuitoiliiii tiim. lii’ , lit’t i i I Itui iiieil I lit
It i. lSl.t1i¼t’ liusmittt it t (lit’ St i st leo ‘1 lit ’
4 ltuhiitlliittt’’sittisihiIi It t —Siluiiiiui’ii.tiiti
if I I ’ S st tim m l i i i il fimili’ .tll I1IhliI it at ti
‘ i s It IllS iii iiiittf hiiiii It t tjittiiils it t lilt
1(1 1 liii i i i tIlt %%.tit i htinii 4 uiti’.itlt (1 (iii
Iiiiuii,lit C ltui siuilll)ittlhi flits notiuicatoiti
c_il l itiil’ lit I i toui)f)hislit(l thui iiiigh regtilai
liltiultui)l 1104 .incl [ tit.lIL’.I’. ilit iesulis 1)1
olitthi . 1 1 C lilt lilt 11 111 itil I I ) 1.1’ 5
hit Rt’giulaiions I C it ut the tlefenclants
1 0 .. inoiiiloi the s’,iiei sssicm 1 1) 1
u lturlohIt ilog it .1 1 .1 uicl u i orga inc Con talon
liMits . 1 1 1 ( 1 ttiil)idit . re 40 CF 14
k I-Il 21, 141 22 .intl I I I 23. icspeciiie-
h s liii those 111 ( 1 11th ’, iii 15 Itith the defend—
,lilis l,tilttl (0 It’f)lti t tlit’ results of nequtrec l
iiii4 it’) 1)11 1 siiaill to 40 C F It
*4 31(a) . thcrc us also a concomitant
;ioh,Ii tin of die sainpliog I cc 1 tuircmcnts
I ’ .ini cli i ant Jotfe 1 )cndcot dtmts noses to
s:tniiult tom l iii l)idliIL .1! t’OChl iCj)i eschltaiI le
11011111) each cl I st 1 1 1) 11 1 tout ss stein ins ols cd
pil l sti.i;ii Ii i —It) C I R I II 22 Because
I lit \cskit’.s iii o ,i(i,o 5 ¼ sit’iii lIsts 1110 I attlel
th.tii tine sow u, t’ the tlefeinlaiits had the
dtii I io tike i i i 0 s.ii liplt’s cIt I i c ia ;. one
(iouii the iiot iii soiii tt anti one front ilIt
sottill ‘ .1)111 (C .-Stcoi tling it) Mi \hiIlen s
.iflmcl.t ; ii delencf.ititc s 01_lied tic relesaot
li1iliiii0iIii P 10 ’ is follioss si ’ . siola—
11(111 5 of 40 Ci R SIll 2 1 ( h), lout 111111—
cli ed tuiiet —N’tl S ioh,iiiouis of 4(1 C F 14
t 141 22. tilt 1 (lilt ¼ ti)l.hLitii( itt —to C FR
S I 11 21, fin a total of fcmtut I ll iii(fi cdl l lhiiC
(L —tiitle S litlillinis (See Sipei1di B)
Sg,ltht c tl.,oit ,iiiis liast’ f ah ltth to tout—
this e li plaiiiifls c,mItInl,i(litul of ihest’
V hitl,i ili (Its
C ’ 1 11 ( 1( 1 ii cot n/the \ftcu ohtologienl S los I ttitF i l
(,oit louiionttt I Icr/ c cr1 no i /i l ii (0 C ’ I H
‘) ) I I l
-It) (‘ I’ 14 141 II seis hi, if, the mast—
110(1 1 1 1 iiiil.tuiuiui,ilui l ist ’ 1 ’. till (1( 111(11 in bat—
it ’ll.! Nitte si,tiitltitls .11 C fIi esu ibetl, tie—
jut’iiihiiii (lii 11 lIli Ii ulalt litIl ittetlitit l (S
i ( Stt l 1).iia liSt (1111 1 .mlctil.iiii ig touuif)Iiance
15 li ,ISt’d t(ui ittfiii uii.tlutiii •us,iil,ib le to
I PS (till omhuh l io -(2 1 5 C J0Og—1 ffl2)
li i 11115 t,ist_ iltt il_ti_i hi,tst’ t tulisisitil ofcle
IehI(l_iliis il ls it tI Ii.I .1’ 1 1 1) 1)1 itil it) LPA.
I’P\s th,li,l .Iticl titia iulmtaiiitil I i inn the Oi —
tgon Si_tie I It .11 1 Ii l)it isitni
Compliance with maxumum micro-
biolcigtcal levels us based upon sam-
1i 1 004 ito tuit ,t ilitt t’lhliIl lthI pci ho d ii0It’S
(((lIt in 1st iiitfuu •iii it —If) C I it § I Il 1 4 (t)
SM dti,nkt) in I’,iii Ill of SIt \Ihllleul 5
d,ts ii tug,
-------
I S u \ ec! on’s n 1n let pi sec. 1111
I—I F Rc l(1 I
tiLt\li1IUliI C0iitjiflttr fflt icctI iitljtit tis for
the compliance periods Juls — • il t,ritsl Sep_
tcn ibcr I 977 \itgusc I 97 I (hi Lt.ii
1979 and Apt it t 979 (Sec Appettdi (4
\\ ith respect to mict ohtologic.rl ni.s r-
mum coritaminatit ics etc Iol.ittons he
legislatis C intent is cleat
It should be noted in this regard that a
tolatton Occurs is henes er a It1.t tmlrm
corita mi Ira ut ics ci is e cecdccI h o c s —
ccci htteflc
File t eSenCe oft. ohfoi Iii I)acret ta iii is atet
is an indicator that conditions in tire o ne,
stcm arc lasot able for the C\tstCtrce of
disease-causing organisms EP ‘s
peatedis informed cleleridjtits of tol.t-
Irons of the InlCiol)lohor.,rrcal ‘cotltrnhtiiaril
ici d c and requested defetidatits to. pit -
lot m tire necessat cot rectiolis to assist e
that conlamutlatit cc etc is etc nor e’.-
ieecled D fend.stiis has C riot tirspiti cd airs
material f.sct regarding these tolatrons
I) I solatson of i b 1 Tat Lath h ‘I In s in sin
Con Ia nit nant Lev /i te / fit,!!, us 10 C I II
lii I3(a (b
[ he nfla tuitttn corttaflrti] .tmti tesci stan—
(1111(15 lot till litiltic iOtii,liiltit,titts .it( 1 (1110(1
at 4(1 I. I R I— Il I ‘((a) ,ttr,i (h) ‘ ‘ >itlclc on
tile basis of tlztta Sitl)lttttli(I 1, 5 (Icletid_irits
lot iu >tit tile 11(11th _lIl(h ‘ . 1 ) 11th SIll I_i(1 is lIen
Soul ccc. iol ,itionr ., of tire one 11 1115 lilt 1)5th—
o s’liiidar(l (10 C I R § I-fl I (( i) or Ice
ft c unit as cm-age lot Us o coniselirt ice d_ic
standard (10 C F R § I-I I 13(h)) oc sit ted
ifl One arid/or 1)0th ss’stCrns (1(11 rug I chin—
at v, Man cli (2 toltilois). Aptil (2 iol .t-
Id at 617),
lilt. u1l,l’it l ltltit ( litll_ttititl (tii It Sits tot tui_
t)t(I ,is Inc 5I >Ptt_tttle III 1)11111 iolitttlltitii i ‘s_li, I
“5511 iii ’ . .ititl tio ,t—c l (iil )tilttltis 5(((t ‘.51(1115
ttSil (i sun_t ee ss_ttt soul, is iii islit ,j i_ tot iii
I li tii.t’,titittti i I lunL.tlirtuu ii list is toot lttt ))t(ltt s
in) 1 ltilI lflg isitt t tla.lsllrt (I II .1 1(1)1(51 lti,iUS ,
(till) it 1ttIts) lot Ire ‘IisiiiI ,itt ,o ,i , ‘.551) ill lit
(i) O to lilt Iit ,Iiis huh (II) _I5 ii , iii utituit of
1)5 1 tirsicit/iti .i 5’(u_li. /i 1)111 shUnt i , I II
‘—‘‘ ‘ lit_it liii ’ tot io._is,’i ttiit , , ,Iits itijits iii IS
I)c altos ( II ii lii slitijilli I of 55 11) I (.Ini (It ili
l. illSit.tie ill utii’ ‘.,i_it& lit_ti I/it iilt . Il ( I ins Iiul st s
‘hot’’. ItiOt till III) Ill li i liIiis 11114
I) In tine nit Ii ilisitult litotni
(2) l’i ic iuii lit.tiiilt tl.liiCi ’ iii .111 tilt list
(ltstuiftt 1,1111 .igilit (Iii t ’iI , 4hit)tll lilt. OIi ’ ,ii liii—
ibm ‘ .551 1_Ill li
(‘1) ililtIf, It ssijhi ciii, ttl i)iltlltl 4i( ii iti lit—
ilihit_Uliult’,
1)1 Ii5i tiiihit)ii tutu’. I to , ,) ii Ill lSbi 5)1
If list, ((luSh illl%( (ItS’. JillT ’ .ui ,liii II I I II
ttt)l)s)_ \l_ts Jitit i’ (2 %Io)l .tt onls) \ilgll..r
Se 1 )ten )I)em (4 ttoi.stiiiits) .tmtd \oi (1111)11
(‘1 ‘ttih .iiiotis) 19 1 M .111(1 Ii in tnt, 1970)
l)Cfct )dtnit., Ii.isi (loitirritnttitl a tot_ti of
sesctitec•n ‘iO i .ttt()tiS iii liii tIlt l)I( IIIS uri ,I\l—
1111101 (otltanrimlatit ICS dc (Sec -‘sPPertdu\
I)) I)cfcuicla i do 111)1 (itsJ)tti ( ploititill’s
calcitLitions
I. Iauftsi e to Is cute I (leqtua to I’cslilu-
\ olsJ u altos, in I tolalu in of JO C I R
I4I 32
Pnl,lic noirflcatioii iS a pi batS P° ’
of the Act 1 Ire Regulations t eqitit e the
Siti)I)itCr of ssatct to nottf pet sotis sets eel
I)c the ccstetIr of l uiIttue It) toriupic ssttli
tnra’ .rnnilrnul conitautitic lilt cc els :urd resting
pt ()Ccditt cs \ itt ten not see ns to he gtc cut
tt least ecets In t_•e itillittlis so long .tc tii(
f.itli li e (Otiiiitij . , \(I(hit tort_ills riot do
tIOtI tht (high tire treSs S tuiedn .t Is It) he giseti
lot fititis c to coin )hs is itir iii.l\tttiltmir (Ott—
tatlutir trti lt. st. l ’ . -I )) ( I R I-Il ‘(2(a) (hi
On lie h.ssss of lIre \‘eskoss it is.itet sc s-
tillS tlt_ (\Iiiilhiii iiiI(t (1I)ittlhO ) io__it _ttitl lIlt 1)1 (1—
Its cun 1.ti,cint,iiii heci’l s nol_itisiur’. rirei di ’—
I eptin till ,4 5 ti)I .itltlIrs sit itt-it
Ptti)ift itotuce nzt , tet titi cd (lii ‘ ascIi ()( .i-
‘.1011’, .1 1 1( 1 111)l iCc tliictiigit Ihte hISs’. iritit,_u
55.0’, ii’oitttictl OIl ‘.I\ 1111 IsillIlS I I’ \ he—
iittls 111(111 tIC ili ,it 01111(1, tittlic (‘ ss_ (—.
141St it oil ((ills list> (t((,iSU)ii ’ , lii lilt 10 ‘sIts
1979 I liii ’ , .t ttitil ul & ICS( l ii tI)ilttutls iti
tire pithlr i lot Ificntionl ii gitlot air,’. isis t
ClOthed us the pl.ittittli I ri—se rI)I,iti t ,i rs
.11 C liirdis 1 nit (’(l hi the tlefi’nicI.cntis
I/I I\I/’OSI!Ia’s (li VI \ Ill!! ‘s
\ I ) ill]cs/I ,
I’hle ‘set j>ittsuttc s ili_ci Iii’ 1001111 has os—
‘ .(Ss (i i ii hn1 1I.ilties 11(11 Iso ‘._ ciii S’ O(i()
lot e_it.hi d.is a ssillhicl c iol,ttnotti ill iris I egtt_
lil 10)11 (t( (ibis I’l_tttnt ill (((lit 0, ttcl’. tin_it itt
it oott l sir Its’., i.e i ’ .Iih)hisli , ili.tt tIc. fti,iI-
tills it>l,itiooir . ool liii I(c’gril_iiiotiis ‘scie
is hun lii lI_titriiIIs ‘.iiis ti , t . ’ iuitt t ,rs
1 1(ls (1 11(1 I_itt’, I ti4 .cr hiiii nit se s IlIi ,lll ,)it .
Lsi_lI)h rs l l i 11.1111 III oil iltlI( 5I 0Ii ’ .t5(’ti
011(1 gt’ttt i_il itt , hut C (lit tli fill lOt itt
cILh(’tillIIils II) iii’ IC t )iIlt(tti( lit (ii iii , ,
I I in ( I tiiitti Ill ,‘ hi, iii st’. it 0,11 itt (liii i (14
hit 1111101 I til, lfli i/irs I ut s i ii 111,4 iii ins, II 1
till t)ttsihlt ((t ._ I ”.I )tt.tli Its till 1I ’ . i Ii lilt ‘so I
II R Ri 1 t ‘ . ‘ . I ISt ill ( iiii , 4 _iol “. ,‘.‘. ( (-
I I lilt, 1 nit i 07 I t ‘s I .k ( ‘1114 5 ‘sO I , is’.
-------
141 itt 1642
[ S p \ eshnzt’tit L itt er /n ices, f ur
it egtcla Wi cit l iii lacka cia 1 5K a I at itt tide
,ittZties P 1 ° t 1 pt’tslstetl lot a peiiitd of
(5 % (1 Sea l . and tol uti l ittL ul et en ,ultti t he fil-
ing of this cast I lie l.itt iliac set eial con—
tCii9)t heat I 11)4 5 P. C cc reqi lit ed I liotigl i be-
sotic l the elite foi s littli cit ii pt nalties .1 1 C
sotiglu. deccionsn a les defendants’ persist-
ent and obsc itiate clisi egai ci of the Act’s
i cc ttic tmenis
Defendants concede c hat ‘l t flccc e P.c cc.
1 10 cloWN cc clinical olat tons of cite \ct
o ccli I especi t o the \ c-skou c it stat er ss sWill
II e s coiiceiicl host ccci cha t cit c i 1)1 ihil-
ices sliottid not be iticposed because (lies
made reasonable .itcenll)ts to (111) 1 Ot e cite
st stem a ltec LI ’ -\ notified them of cci (Jill
functional pc oblecus Defendants also at-
tempt to shift the blaciie for acic’ colatcoics
Ic oin tliemsc Is es to others 1 Ices coccteticl
that L1’. s test tcsulcs and detii.tttcls hot
complia nce co nflicted o cmii those c iteii lit
(lit State of Ocegoci I ites .ihso totttiil.itti
that the time ft ames lot ocnf)itance im-
posed In Li’ \ tic- uni e.isoiiable
Dcfeitcl,tncs ,ttti Wine pm obleitts stitli cite
o atet ss stein cc i pin y is cachet hick of
Itcuc ls o iclc o hicli to ptcccitast- itecessat ‘.
ec ttipttiettt, ,tnci iii iiiipt it tt’c sei stCe (nil—
cteccion tic \‘eskoo iii la)clgc and the Cold—
en Cose Restatii ,cict flies eocttetcd chc ,it
ans’ (lola ) s i ll 101)01 tiiig 01 f’achcc e to i eport
o etc c.itisccl lit Ia , cit cleft’ cc es ol s.tiicple
unitIes. cIte aitiottiit 1)1 tunic (icfcitdatcts
sf)citt in juu Iii ial and ,udmiitcitstr_titse lie _ti —
itigs, atici t lteii etc oneotis lielcil chit cite
()iegon Ron ci of I It tlth stotild hoc oai ci
test i esu lcs to 1- PA Itt stint . clefecidaiccs
tItu s thc ,it tilts trccecttioti.thlt udated _icis
itegtcl.ittoiis flits .ci gut chat tlce at (0(1 (is
I easoctal)ly as POsstl)le cii tiuikt . 111 (11(1 .
ccotthlc.soitte oattt ststeitt ccnct 1 ik ssitft
I - P ks chjci.tcicfs
Cat eless chuscugar ci’’ liii hio Itti chictces.
.ifllotctttiiit4 ci, I 1i lici iiiclthlc’i ciii e to cite
icc 1 itlcctnecics of a stacicte, his in_cit c_ctctsid—
creel ( ( I be a ‘P. ilIful’’ tcolacion I ‘uifcd
Sin less Illoituit C ritical Racitnau(( , 30’S II S
219, 2-12—2 I’S (1938) I htts scandac ci iii—
P ut’s Pal citiii.it Is’ to c d 15C5 lit S oft tug tiol,t—
0115 itt stattitoi 5 t euititi cccii tics c hic ,ii
f)i i)tt(ct%( iii lit,tltht iii sifecs (.i’oigca 1 lie-
!, w (. 5’ ‘Iou s/tall, 595 1’ 2c1 ‘(09, 3 19 (‘fit It
Cit 11)71)) li i stic it t,ises it it tiiitie( t stat
to esc,ibuislt ,t bid ott iost fun cite siola—
tiot i (tu lie i ei ai dcc l as ‘‘o iilf iii
1 Ito I OUt ts itise ,ilsuu ltt’lul cli.it o i hifit l—
ness c.tct lit icilct cccl lcocii a Iccscuccs cil c ut—
iiteccutis s’tuiI.ttiotus of clue sad ie st,tttitc ,ciui
c ’gitf_itiucics 1 auuluuiucLs Ilaoliit 121) I 2d
2(u I 2(iK-2tcO cud 1 (.1 1 I ‘170) flu, fttuilaitts
ccjteatt ii t,ittliuiess .citcl olccci f.iiltiic Iii
stil)iitit tI m t I (hilt cd l s.icnijtliccg (liLt l ii I 1’ \
ccc canc ls cieiiionstt ices an cnuitlfcrencc to
lie -\ct and its itt gtclacion s 1)efcndants’
laclticc c l i tiiiiitucte tI m . o,ilei s%stem, dc —
sptte pci sistciit 0 ,ccic tugs Ii occi EPA and
the conticic itch presetict ccl contactitiiants in
clue ss atci , scarcels e htcbtts the toncern lot
itcilihic health to L W e\pettecI Ii oni a ‘sater
St stUnt u ,tt not
1 cci It Cit P 56(c ) .ifloss s hoc the grant -
ccig ol sticnlnai s jttdhc4ttiec ic f the court
finds ( I) clici c is no gcttccitte issue ot t ant
tn,tccc cal h.oA .uicl (2) t ue tons itug pat it is
elicit led to _jttdgtcuc nt as a in.ittei of lass
‘I lit’ 1110% til5 p. 1 It) has the htit dcci ofcscab—
lisltinig die absence of a triable tcsitc offact
Cnli_ [ ou stun Pacific u nit!, s Sma/l Busstuiecs . ld—
tiiuiriutualillui Si? I ’ 2ch 21 5. 221) (flihi Cit
1977), i1e(ioc s’ I I trio, 533 L 2d 429, 432
( D i It Cti i 976) - il t easoctable clotibts Ott
chic c \tsteltce ofa geiicticie issue ofniatertai
lact sho uld lie I esolt ccl agaitist the urns IN
Pat is fin lot 1% oi ls cit/na I lie p_it is op—
l)OStilS stntiiitat t iitcigtneict ts enctilec l to all
I,csoc ab lc- mutt c’itcc-s i s ltccic c,cn lie dt a’s c i
Ii cictu tue et idence dir/a’s s S 11 kcess Si
Cit . ‘389 I.,iS 158-159(1970)
\‘cessicig t he p.cttec ci of s nul,ittons as a
ohnhe_ I litcd that deheciul.ciuts ss cl lficlis sin—
laud cIte . 5cc cud its Regulations cull 573
sepai .ctc occascocis, ,incl chat plttiictll is
entit lc ci to cec’nei scattnoc s cit ii penalties
iii lit .intu,sI itt to cfcsctcssetl Iseln is
i i \iuuoltico
l)c’fc—cccfacuts ccniccccth. atccl I)l.cctttclf ac—
kcinsu lc’dgc s, tInt ccitctccitcecl pc osectcccon
foi itcjtitcc cite c chef cii this case us 111.11)—
f)I opt tact- becactse clef end.citc s it o longer
unsii, cpc’c.ttc cci coccic ol lit- \eskcusscci
o.tcec svstc-cui I losses c-c, coicticutiech pc ose—
cclticcdc liii c ut iiiill(tsiti(tli (II hialit ltis acid
ccsih liii s cttlaimuuis of lao c)cctcc -
rcnLr dttc ing cIclti d ,itits 1)0110(1 iii ossner—
ship is utcul citoot auci u epi esecits a Inc cout—
ti 050155 subject in pticliccal rc’solct c mc i
Poct’c/l s ,\l (untuual,l, ‘Sc)5 1 1 S 18/u (1069)
As dcc ’ Stipt eccce tutu t ccccced in Pnn’ell.
11cc 17 I s c,uiaic ltisLilttes of stc,I_tticccc _cic’
t_clt ucl,uc l cs fuc Ito ,
‘ it t i_cuhucit it t ic’ tusi c siscl,ccic ,ts
11 12 lilt lltdcls illiiitticucnig sit h_ct icinis
ti icuiti(uIuil .lou ii. ,I iccuiicmicum llit ti,ilatitumts
I icon t _cmi cc Ilc lumcttc it tug sit
It) ctcn c t.hcusuluugst aI icu.csiccctictc tuiictanu lcu—ntit
it s t I s ccuhcctccius
17 itci iuiilict itu,c—sitttiuttt tuiilc,ictuclu,utui Ittcl
scsI sit ,uus
I t 1 t 1 ct icucli I Sit ul,ic citils
u7’t cocci u uI_tunics
-------
V 3 z’ \ i’skoain 1tlietp tie! 1w
141 i ( ihi I
sshcr c scs ci at lot ins of i chef ,ir C ic—
quested .iiid OilS? 01 tiiS?SC Cqtii. Sb sub—
scquentls becomes moot the C 01111 hjs
still [ to consider j he i cniaiiiiilg i c—
quests
1(1 at —10(1 ri S Iii the complaint tiled in
this ease piaiiitifls sought iii jitrict is c i cliii
si cii as Ci ’ ii penalties toi deieitdants
s tolatioris of the -\ct Plaintiff’s ciaitii for
the iillj)OsitI()n ol cii ii l)tihiltiCs lO( uSes Oil
defendants conduct during the lime I X ii-
oct that thes mined and opciaied the
Neskoss in Is titer cistern Defendants ita-
butts foi cii ii penalties is pt escittis an
issue subject tojuidicial i esolution
C Seleciice Enfotcernetit
Defendants allege that continued prose.
Ctition for ciii penalties constitutes a sin-
gliilg out ofdcfcndants from all otliii pu-
sate is ater conipailics iii a indictise arid
punitis e iulanoci - lie issue of select is e
enforcement is as r ecenils adcii eiscd iii
I inlet! Slates s Siiepp. 595 I 2d 92() (-I ili Cii
I 979) fhei c the Court of \pl)cals stated
We see no merit in the defense of selec-
use enforcement, and sic think that the
drsti ict court con cctls rejected it
[ T}here is a basic legal reason is li the
defense is unas ailable l)eiinclaist hIs
cited and is e has c found, no author its
suggesting that the defense of seitctis e
eriforccmeiit, iioi malls applied iiicr
nat cases, should l)e e tendecl to ciii! at-
I ions
I d at 933 Although thi Simpi eme Coin
reversed the Cowt of Appeals oil otlici
grotincls, .18 V S 1. \\ 3 1 I b (1 clii ii:mi v I’)
I 9 0), it kit intact the i easuiliiig 1)1 the .lj)—
pi hale court m cgai cling seli_ ci is e iiloi c—
i iwo t
Plaintiff denies an ’ nious e to use (Ic-
fenchints as an c aniple foi othic i ss it. r
supphrci s Hoss cser as con cciii noied i)s
the l)larfltifl, he deter me nc-c ol tile dc ii nd—
ants and others has hcen and LOritinti(s to
an icCel)t .ii)le u eason for the assi ssiiic it
ol ciii peualues uiuird Stales I c hi ns!
Cliriuuica! Couf, 12 E R C 1420 (\V I) 1 cnn
1978), Col!iio 5 13i wii 268 I upp I
21)1 Ii) (:1) c i’)67) 1 his is pZ IRirl iils
liul wiic-ie .I l)rOte( liii ’ iii .iitli St ,UiiIc is iii—
oh ed and oltruitai s i ornipii.itice hi tile
iiidiviciuai s ater supplier is esscnl al
I) S tze of DeJsnda uils 11(11( 1 ii its
lacilities die SO (ni( thus Iii iiii.tlI is,tili 519)—
l)li(i5 thu iiiiti ,itt is titniitii liuiuii ihti iii—
til.)ii siotild iiesei liase isiler huh 1 lie I ed—
ciat Gosci iliiieiit (ie(i(k(i ii 550111(1 uuisithI
such issleitis It iS 1111)01 t.iiit 0) note thu it
l-1-\ ( 1 ( 1 1_S not luavc.nitiiui its to itqiiui i. tlit
tiistahi.itiiiit 1)1 ails p. t tiiiilii 5s ,ltei Si st( Ii
lii mole in Oiegoni ,irici otliei states ssliii hi
has e riot accepted pi multi s e rdoi c i nuici ii
I tSpOhlsui)lhiti undei tue Set, is 1) act as thiS?
iin;hi I eiiliii cennieiit ,iiithiou its lii this it—
gaid. is hen s iolatlorls of the le(lei .il sian-
dat ds ai e discos ci ed, Li’-S pci soiuiuc I unas
recorurne nil c-or nec-tic nilCIsti its 1 lii e osi
of COnIl)tr hii1 € lioss Cs CF IS dete I liii ii. ii
)i iuiitii Is bi tin.. techiiiolo icai rue thod’, sc-
ecied hi die ssaiet supI)liei
Couign css is as ssell ass at C (If tile impact
that costs night has e oii small is aid ‘55—
mews is lien u passed i he Au •\ceor ding to
the iegtslaiis e h iisior s of tile -Set
It us esicient that ishitut is a ieasoi i ,iisle
cost br a large ruieti opolit in (or legion—
tO) ptil)hic ssatcm sistent nilas flU! 1)1 I (‘. 1—
soriable foi a sill.! 11 ‘,i stern ii huh seui CS
ielatis s_Is (sic) less huSCi s lie ( .uuitlntiit—
tee belies ci, 111)0 ci en ihuai the (judilts ol
tiii_ ‘sat ioit S (ii uiukiiig is lt(’i (III ouili l)C
upgiacicd if mite ss steuris is hichi taos ide
is ater to tile I)ublle ai e’ oi gantied so Is to
be tile most COst-C Ileciis e 11 general
this utleails lii qer si stein’, ale to be en-
cotmn aged 111(1 stii.illt i si steiiis discouir -
aged
II R Rep N) ii .S ‘) ‘hd (‘oiig 2d ‘n’ss
I Cf)i irite(l mu 107-I (a ‘, Code C uiiu & -Sd
Ness s, h—h 70 lii stu king a h.il iiee hctsseeii
tecltiioiogu&.tl costs .uiuci hue mI S_i (I liii 5 .Iili—
ills sir urikiiii4 s atei . it isis dent thi,it (_oil—
1)1.111(1 lii uiii.li S & u ill)hi.ISmS (Iii tltc iiul —
lie hte.liiih —Sitituutiglu tlue 1(1St (11! u)ltll)lI Iris_I
this he hiiqiucu 11)1 .1 stui.ill ss.ite’i ‘islet!!
OOiiCh. Ibis is riot a lhistilIGltI (iiI for iii i—
Slslerlths faihuiug ts> eoillphi 15 itIl illS? \ct
R egiui ,itioiss
E LI I c \ionuiou tog lbi!ui’,
mu ihihi ’rtii,uiii 5 iii !’. tileh& ’ is iii) hi.ir l eiu—
(lemIch thi.it ,iiti uti,iiftuii& tiu)ii uul liii
‘seskoss iii is tIlci 5551 (‘iii 55.15 t lie l( I ii.ii
alise ol juts 1(111)1 it t ihluiCis iii till’
\ c koss iii mica l)i Ieridaiits 1)111 pout 0 ,1 —
111.1111 tltc tint I .hIuse for the })iIl) !( iii
thi.tt (n.LIti cii .it \tsLiu iii l>i . 1Ss( 111 1114 the
II ‘& Il (O ’s 11(11 hiss’ eulI )li14hi l)t0l t 0
uih(>iuuloi p1)9)11 ii iii ss,ht(t ssstcuuis iii
goum
I)ctend.iruts ( Ocr look the hat I tit_ut I I’ I
L.intriot Os ci sec is atel Si shIll’. sift Ii .ls tili
u s. leridaiit s , iuiiicss ihic ss,itci Si its nil
Defendants argue that lie coSts of iii-
siihi;ituon if adle(j liItC ssatct ii catrilent
-------
I I I tt( lb14
(I S v Neskowrn Enierpnces, Inc
40 ii i i tUIlstiCiiti(liists s.iiltt)Ies .iiid te—
1 )1)1 N 5i ,itti i 1 ii.ilits djt,i to P \ iii a I OIL Is
ltsfiiiiii Iti iiii,ii iesiniiisitiitits lot toni—
P ’ iiii4 5 % itli the A t iiicl its Regtil.itioiis be-
gins is itti the rude. iciir il is.itii stil)jiliCi \s
I his case cIeiuonst rates, this is a t espOnsi—
bihts that the delendaitts }i.ise t,ikeu alt ton
Iighds
F \ niiibes of Do\sJol l\ ho Ii Peiio!ttrs \Io be
IiIipiisri(
Section 14 t - 1 (h) oldie Act states that the
( 1 1t h t ‘‘11 1,1 5 liiil)n’.C OIt the InfiRM J
in i i peiralts of nut to es. ced S5 000 mi
p/ic)? do s ’ in is loch such inlat ion occtii S
(emphasis added) \ hue 57’s sepai ate in-
starn Cs of s totatuon occut t e el at defend-
antc 5’, stein seseral of these instances oc-
ccii ted during a single 2-1—houu period -\n
anals sic of alt s uotations shnsss that de-
lendzitits uolatect one 01 miii C I eqiiii c -
n 1ents of ttue Act on 264 class
G ti’rouiil i [ Pnin1flrs
In assessing pen.th e s, the coot t m ust
considei “t he cci ions ue s of t hi 5 iot,i—
tions 42 U S C §300g-3(h) I s te s s the
siotattoirs of iiiirr obtohtgrcal cout,tmin,iiit
regutitions for di inking utel is e t I c ult—
ls sei ious es Cut 5 IlK’ 1 )tiblii lit,ilt Ii mis’ l)C
in ,jeopar ci i ;s hen i olifur ni l)actei Ia aie at—
tossed to cuntaiiiiit,itc . 1 iil)IiL di iiikiiig
‘s’atet siippls Hit’ till l)uitits 5 ini,itinits ,ilsi)
i sose a t lii eat to thuc public ltc’,ilth l)ecause
thes tend to indica t c’ t tu,it the ii .uei suppli
is inadcqiiatels’ disunfecreci
Fiioiigh less sei bus, clcleuitt,ints (aitiiu e
to i epoi I ss atei saiiiplc data tø I’ PA ile—
n is es 1)0th the EPA an d tire public uftinre-
v infot mation on the s,ifets iii haiai ds of
the ssat ci supp ls And ss hei e. as het e a
Lit t4C totiiist poptilatioir uses b ut’ ‘sa I d
suppis public iii>iiiicatioii of an ;iater
tia,ards is especialls ci itical
Ii i i lls Vitis , e,ich tV1)e (if s’iiul,iiinii cre-
ates J)iiteiiti.iI health i isks tn ssliicii rio.
pul illic should not i e e’spi)sc(i I lie fact
that niiincious sii)l.itioiis 01 flit i eel iii cit Ii
iii a l ,i i itit . 11 1 ( 111 of his ,il tici usii iii sti fijitu I
iii f)tiIiiiulI’ iuioiliiii Iii siiuuuliIJi 5 uiiti,’iuiiin \ti
\hiiilt i i si,iieti iti,ii ittit iii uiuiic ii i lie it giiti—
tiiiiis tscit siiil,iicul mi ‘2lm’ il,iss Ai die iut,uiilim4
nit tlit iuiiii 1( 11 15 liii siiiiiiui,ii tiiilttnim ii t’imiuii”t
ii lit m l liii itt 111( 1)1 utit_if bItt ( smmn i rli,ii ida—
totus iii c liii ed on 2 /il i ar I a i than 2ti5 iI,iss
I lit ttiiii i . 11 ((lilt (I i S iitiiiiii tiliji i iit(ii Ii mtuui
I I) iiiiSi I liii ilt’lt’iid,iuiis Iii’ ligirit ttl 24i I cl,it S i S
( (I I it_i
at c gui s, detiioiist i ,ites .ifl ii responsible
attitiiife miii the tiit i 4)1 iht defendants Jilt!
ciriplim si /i s the c i i st_i iiriis nature of
iltest’ 5 iot,ititins \ pc’natis of tine hiindiecl
tliitl,ii 5 (SI (10) pci cIa ’ Itir tat_l i of the 264
( 1 , 1 5 (Mi ½ liii Ii i(il,itii)iis ii i the Regula—
tioirs t IC (liii eel is 11)1)1 ilj)t i,iie
Il’ CO\CL( S1O\
Pl,iiii:;f rs iimsit oin ho stiitiinai v judg-
nueut is granted I)cfendanis’ motion for
suiiimar s 1 tidgnient is denied
l)cfeiidaurrs ,ii e iiiilci ed iii pas to the
pIaiiititl ai,ituitni 5 ci ’ ii peii.ihiies in ilie stiiii
of to cuts -sis thousand loin irundi ed d cl—
Lii s (520. 100)
[ lie Clerk is dir ected to entei judgment
accoi dturgls
-------
I-I I R( I -,
APPENDIX A
(All based on submittals by Neskowin Enterprises, Inc
Section 01 Regulations Violated Type of Violation and Period
Non-Compliance
No Data Received Late Data Incomplete Data
4OCFR Section
141 31 Month Received
Reporting Feb 1978 Jul 1977 —\
Apr 1978 Aug 1977
May 1978 Sep 1977
Jul 1978 Oct 1977
Mar 1979 Nov 1977 6/7/78 N/A
Apr 1979 Dcc 1977
-
Jan 1978
Mar 1978
Aug 1978 10/24/78
Jan 1979 5/14/79
rob 1979
4OCFR
Section 14131
Turbidity Reporting Jul 1977 Ovt 1977 Oct 1977
Aug 1977 Nov 1977 L 6/7/78 Nov 1977
Sep 1977 Feb 1978 1 reb 1978
Dci. 1977 Mar 978) Mar 1978
Jan 1978 Apr 978
Jan 979 May 1978
Mar 979 Jun 1978
- Apr 1979 Jul 1978
Aug 1978 10/24/78 Aug 1978
Feb 1979 5/14/79
40 CFR Section
31
Inorganic Reporting
No organic sample results have been rcceiscd io date for analyses
which should Itas c hecri completed during the period from Junc
25, 1976 to June 24. 979. to tullill carl inorganic sampling
requirements for a surface ‘%atcr system
APPENDI\ B
(All Based on Subniittals by Neskowin [ ntcrprises, Inc
Section of Regulation Violated Type of Violation and Period of
Non-Compliance
No Sampling/Analyses
Completed
40 CFR § 141 21
Microbiological
Sampling Analyses reb 1978
Apr 1978
May 1978
6
Jul 1978
violations
Mar 1979
Apr 1979
40 CFR § 141 22
Turbidity and
Analyses Jul 1977 (31 x 2)
(Entry Point North
Aug 1977 (31 2)
South System Intakes)
Sep 1977 (30 x 2)
Dci. 1977 (31 x 2)
92
Jan 1978 (71 x 2)
Jan 1979 (31 x 2)
Mar 1979 (31 x 2)
Apr 1979 (31) x 2)
40 CFR § 141 23
No inorganic ‘.ampling or anal)ccs has
Inorganic Sampling and
Analysts h en completed dniriiig die period froiii
Juno 25, 1979 io Juite 24, 1979, to fulfill I siolaiiou
yearly inorganic requirements for a
surface waler c>sicm
-------
4 I R(: 16 T h
US v Nes?.ow,n Enterprises. Inc
4OCFR § 141 14
Nlicrobiologieal
Masumuiss Contaminant Lesels
• 3QO samples ssirli 4 or more colonies per
lOG ml
(standard Sr,)
Ariihmeric \Iean of 7 4 colonies per lOG
ml
(standard, I colons per (00 ml)
ioc 0 samples ssith 4 or mcire colonies
per 1(X) nil
(standard 5°s)
Arithmetic \Iean of II 3 i.olorstes per
100 nil
(standard. I colony per 100 ml)
9 5 ’e tubes posiirse
(standard I0 o)
21 6t 5 samples sssh 3 or more positise
s bes
(standard 5 0 )
Ør 5 samples “ith 4 or more colonies
pcr 1 (83 ml
(standjrd SX’o)
Arithmetic mean of) I colonies per
IOU ml
(standard, I colons per 100 ml)
32 5 o tubes positise
(standard l0°’o)
4 samples ssith 3 or more posture tubes
(standard. more than I siniples sshen less
Fran 20 samples are e\ansmriej(
APPENDIX C
(Bused on Subosittals by EPA. OSI -ID aisd Niskovin Enierprists, m t
Settiots of Regulations
Violated
Sampler/
8 Collected
Analysis
Methodtt I
Type of Violation and Period of
Non.Conrpliamtce
4OCFR § 141 14(a)(3) EPA/27 NIb
NEItt/6 NIT
IF
Juu l y
Aug
.
Sep
40 CFR § 141 t4(a)(l) EPA/27
NEI/6 \1T
July 1977
Ann
Sep
4OCFR § 141 14(a)(3) EPA/20 MF
Aug 1978
4OCFR §141 14(a)(l) EPA 20 NIF
Aug 1978
4OCFR § 141 14(b)(IXi) OSHDl 3 /26 NIT
NE I/Il
Aug 1978
40 CFR § 141 I4(bli l)(iii) OSHDI 5 ½o MT
Aug 978
NEI/l 1
4OCFR § 141 14(a)(3) EPA/39 \1F
reb 1979
- NEI/I
40 CFR § 141 14(a)(l) EPA/3 MF
feb 1979
NE I/1
40 CFR § 141 I4(b ((l)(s) OSHD/I0 NIT
Apr 1979
40 CFR § 141 14(b)(I)( ut) 05 1 -ID/ b NIT
Apr 1979
ItlN1r Membrane Filter Technique
NIT—Nlulttple Tube Fermentation Tcelsnique
()lN [ l_Nesko.,sin Enterprises, Inc
1 lOSHD—0regon State Health Department
APPEND iX D
(All Based on Submittals by Neskossin Enterprises. Inc
4ocrRseetion 14113
Turbidity
Maximum Contaminant Level
Section of Regulation
Violated
40 CFR Section 141 (3(a)
40 CIR Section 141 13(b )
4OCIRSectton (41 13(a)
4OCFR Section 141 13(b)
Average 1 utrbidtty Lesel &
Period of Non Compliance
Section of Regulatton
Violated
Aserage Turbidity [ esel &
l\riod at Non Compliance
North Source (Itsitic Crtek)
40CfR Section 141
13(a )
South SisureL I11as k Creek)
Feb 1978 21
Mar 1978 2 I
Apr 1978 I 9
Jun1978 17
Aug1978 27
Sep1978 22
NIir 1978 18
Apr 1978 I 9
May 1978 17
Jun1978 16
Sep1978 19
Feb1979 16
Sep 1978
2-Day(2&3) 90
(3&43 100
Nos 1978 20
Nos 1978
2.Day (17 & 18) 7 18
(IS & 19) 1032
-------
1’ \ pc)ou’sn Lnteipi liPS lirr
I—f I ’ RC i (10
We 1101(1 thit the 1 P sat lances and e —
l ,’llllitR)llS .tt issue III ,I C .11 C s(Il) 5l .li11i\C dc—
illetitS of i egtii.itioii ililtiel ( ( IC I cdc’r iI
\ .itei l’olltii lOll Cotiti of —\ct nd 1101
‘gaps iii LP . s 5t .itlitoi .ttithor its or .td-
Ilililistratlorl. .tncl tli.it tile Scretat S. pur-
stl.lnt to sc ction 702(.i) (1), lUdS not altet
I hese ai iaiies and e\enrp( toils by
pr orntilg.iting inure 5(1 ingeni pros I StOt IS
insofar as I lie .ir i.rnces and c sculpt tolls
to sot face coal mining operations
I IRIS. SectiOns 71 I 7(j) . 1 11(1 7171 7(.t) of
the interim i egulattotis are incotlsistcrlt
ssiih Zl%% tithes do. in fact. conflict s itii
Ll’- piactice Because there is great con-
fusion as to s%hat thc .1’A ctanci .ircls arc
and ss hethet tlies ate esen t clevant to sur-
face mining and because tllC Disti tet
Coot t found it uiiriecessars to address
such speciflcs und r its ie s of sect 1(111
702(4(3), s e remand to the District ( ‘our
lie issues of getier .tl ar i.iticc from ilu—
tiiei ical CflltIellt Illllit.itiOtlS truI the titc 1 is—
ill ClOt at of suSf)ended solids in es aluating
COiti 1 )IiiIlCC s it It efllj ,ieitt limits [ lie Dis—
ti ict Court ss tll (idler mine ss hethei the
1)105 iSlOns sought bs’ the StIr f,tce ?dirici
.ire .ip 1 )licd hs EP. (1; t .if unites 1 ind illtiSt
cottscqutc iitfs . l)etotllc pat t of the Scci e—
tai s’s litter un i eguI toi piogi •litl
I I CO\CL MO\
[ 4] lot the (oi egoiiig I( .ROilS , sse .iffii iii
tile f)Isti Itt Coui t’s r cjcttic)ii of the Stir —
‘tnt, to the e\i&iil prissililc rising the ht ’,t Iti Ii—
itulug thu Clinic ,is.iif .il,Ic additrm i,rI •i,rti ib’i—
l o s s of so s/sroded muds Is Ill ems/low or r stirs/f ilium (b
I/u /fl’ (lIfl/ (tlP(t 1(111(111 isis .ithit rlf liii, liii—
gitige ol swioui si ‘ (lr)( i0)(it)(i) liii 5 turi,ttc
Niirt is trr4tic, tsiulr .itt 1.5 .1 I sirtgitssu i.ii liii—
1(151 (I) ((11111(11 5(151)1 rufc ’sI sitluls (l)rtti iI)iIit(I
> 5 tIll. hOming ilf)Ci _i1io sl. intl 1011 5ii 5 1 )Cii(k(i
sohitI .IIR ’.I(f’ , (>11.51.111 Iii liii cs.Iici Ilcosiiig
,l(i s ’. 1111111 silts (loin ii_iutii. sI lii 01111.1 10(11—
IIutliuitg SOuls 15 (1111111 ItI liii })i>tfI.iiIts.ui ‘ (I
Uiiilt i ihit Silt lii l.liiit is 5 1(1%’ cmt it it I I’ \
P1,1(1111’ IS iii irii,isttic siis 1 iiiidtii solols ott
gross’ It_isis ottli i ‘ iLil to I i.if Iiitiiu ,s cur I I)
( I R i’ l (if (I t7$) ()‘ > cI iiiti ’ ,i iittuittttltss
rlrl—gri)ss sl.uti(l.iiui 1*1111 Ii ositilit li_itt ui
iti (4l1( ’l ((lii((IiII,it 5iris ( (I 11 (111(4 iii-.—
hl ,iit (_(l hiiitii 1111111 SiltS iii (Ii .111. hull tji_iitii
iii l i r liii. Itilt i_il 5 ’ii i l’ottriuioii ( i,iitiiij ti
I 1(0 55 c ci 51.111(111 l ‘ (t >)( It))(tS i) I \f)i(sSI%
‘t lt(s 111.11 lii liii (‘ 51 iii ‘Itilt ttiiiiitl >tiitiiits l il
‘tiSJ)u , uu sf& II ‘iIhttl 5 lit liii 1( ssiil it( (titI(tii tiii s
St_I I >’ .11)1 iii .11111. ‘11.111, III 11.1111.11 f.tsc
tilt 1(11(11. ii (( I lit 5lII4t_ i_ 5111111 li_it s’i liii
ii i(lr(( ll)/(i ( ,f(ut SI 1515 5 (SI (1.11_lit I > ISIS .I I.llI
111(111 ‘((11 (01 i( 12(,i)( 1) tu,n I(t (lltiIti ( 4 ((I
gross ‘ lt ( 4ih l.iii l hlt iii tOni IllS 1%
itiit (s u itith I I st:pta
U.S. v. NESKOWIN
ENTERPRISES, INC.
U.S District Court
District of Oregon
l.ice cIiiier s’ thur cc gcnter.iI ch.tllcrtges 10
the’ mit tirhi rt_gt IIiltoi ls .is.l c c huule.iiitf spe—
ethic ch tffeiige to the eitlor errleiil I cgtil.u—
ttOrls coilcdt Iitrtt4 stir l.ir ititriltig oil hmisft.iii
i.iiids Vs c’ t es erse the I)istu 1.1 Coin t. (105%—
cscr. ,is to thte I .000—loot (fist.inl(e fitriii,t—
lioir—orl l)l.istiil ( 4 tue one trOll PCI st ’tu>iisl
Iit .I ’siiiltiifl fruitrt.tiion till pc.ik p_ti tick se—
lIlt_itS 1)1 ricitreed hs hI.isttilg arid titu.
gi .iitdf.ttlier c-’serttpr ion ft_tn sut f_ice ttiiririig
on 1)1 rite fjrull,htlds arid cse hold ins .tfid
those pros isriiris of the interim reguf.ttor c
pr ogi .tnl I iiiaffs . cce retitaitch the issue of
rhe interim efficient regttfat rOlls to the l)ts—
rict Couti I for proceedings, s dctzitfccl
abos e, riot lIlCOilSisteilt cctth this 01)1111011
.-IJJi i sited ui Jnu II u evem sed itt pail a itd t r—
tr io iuded
U I’l 1.1) S] \] iS 01 -\MLRIC-\
Pf,tinittff S I \ I F Oh- ()RI’(.O\. l’f .iiiitifl—
(miter ‘eliot s N I_’ >I Q\\ I \ F\ II- R.
PRI’,i S. I\(. . ct .iI . i)clciiif,irtts. No 7i)_
324 Nos CliiI)(_l 10 I 070
wAT I:R
Court jurisdiction and procedure —
In general (*40 01)
Cotirt jurisdiction and proccdure —
IHJUI ICtiOIIS (*40.7 I)
Court jurisdiction and procedure —
Remedies Ill general (*40 61)
S ,ifc- I)r riLing Vs 11cr -\ iofamoi s ccfitt
Jr e found iii (IS ii doritci iif)t fl)i fiihirtg to
dOtlif)f% cstiii COlitt S 01 (((‘is , ,IIC li.tf)fC Ii)
(.its’cr lilliCilt (( Sr C\h)l_’rlsCs lilt_Ill II. (I Iii ill—
%‘CsIi ( 4.itlrtg ,irith (hut uiirterttirig rof.titotts ol
t)Iil t I II ft iS
ttiitt&’tf ii.itts l)iiii ( 45 it 111>11 Ii) i (‘(t >S(i
5 hId uiiii_’ti iii 111% 5. sIIt4_iIiitt4 .11111
(lIlt. Itritt_’titiitl4 ii>f,ii I(liiS lis I_(htitp.ihiil.
fuirritl in tis if (1)111(111111 (ii . 1 1)111 t 5 Ill sit I
( )ii If ,ititr ill’ 111(11 not toi I I Itilh)liI SI’—
iiierlt ( If e’cI)c’ilsc’s
\Ioi lOll (41 11111. (I
Siefitc’s I I c,,iL I.’ .tllilini(’% .imt(f
I htutni,is ( . Ice ,lssist,Iltl E “ .uIIu >irit c
h’l itil tin ( )i i’ lull (.iuc I I Ititit Ill
-------
I4LRC I-l-l()
l ’enriecoii ( u/qnr I .oij)(I;(I(l(;r p LIit’llollrprellt( lI_IlII/JlOr’erflefl( f3O(lid
l Oi)Ci I ,tssoii (11511 ICI .11101 tiCS. I il—
laniook, Ore for StaLe of Oregon
Herbert l)eScliris, Lincoln (‘rrv, Ore
.111(1 D.is id Rhot cii Saleni. Ore for d i-
lendants
Its rc’(ftft I I date iritls t i sLJtC 1_OUt t pro-
let cli rigs
Fill! Fe t of Opotrolr
SOL O\IO\.Jtidge
Plaintiff, United St.itc 5 (Gos eminent),
filed an action against detendarus
Neskoss in Enter pr ises, liii Coastal Lnign-
ncering & Consti nulonl. Inc , Lester E
Fulti and C \V Ianofl, Jr , for s ioLiting
the Safe Drinking Vs ater Act, 42 U S C
§ 300 g.I el.req
On sl 7, 1979, rite Honorable George
E Juba. U S Magistiare, granted plain—
till’s 11101 Iou tot a picliliiinan np tii rc ti 0 n i
On Juls ID. V)7 ) I found detcii l.ii its ii
civil contempt of tire Court’s Mas 7, 1979
Order On J oh 19. 1979, I ordered de-
kndarits to oniplv ,with cci tarn i equll c —
merits and if thc iailcd, tlics is otilcl he
lined
‘I his action is now bcfur c tire corn t on
the motion of tile Gus ci ninnent arid the
motion of thi Inter error —State of ()i egoir
For their e\f)cnises in iriscstig.itirng .111(1
(l01_tIiilcn Itinig oef iuda, t 5 ioii tnoirs of Lire
(Our IS 01 lcr
D (fr ’z iclarits con r -nd ili,rt tire Curser n—
iiicilt is ilul eiiritled I I) ills eslIgttioiu C\—
l)Cnses tirrdcr [ Ire ‘raft’ I)i inking Vs irer Act
llrc- Cove hindu is riot .rskinrg ion e peir_
ses under thc Act R tirei , it secks e pcn-
ses for the civil coil tempt pr osecu Ito ii
L g Coot/a’; c v Bu icks love c Rouge Co 22 I
US 418, -143-44(191 I)
A Court may aw,ii d coniplainairt losses
reasonably flowing Fr 0th rlOfl_COiiil)ii,ir ç t ’
and c ’spelrscs i casorrrh,l ’ incur red iii rue
attcrlr 1 )t to erifur cc coinpln.tricc ‘‘ \ou 111(1) 1
Bridge DuugCo v Banner, 529 I ’ 2d 822,826
(5t ii Cii I 97(1), I (ill (the .Si0 ’l (0 V ruled
.Sfrp(wou/iers lute , 54 I’ 2d I 3 ’i( r, 131-I (3rd
Cir 11)76) I iirs relict is .is,uilrh,lc- to tecler —
il agcric cs as sst’li - iitig.uiils
\ 1 U It v bier! S25, luileiuiett I ( of
Operating 1’ rig . .111 -(10. Itt) I 2d l22 ’ ,,
I 220 (lid (.ir l )7t)) (rut deiiurd -fIll I) ‘r
976 (11)7 I). I or ted Slates t’ .r ei’!uouiiud, i 7(1
I ” Supp 881 886 (N I) Iii ), off d . 508
I- 2d 2’) (7th (: 1(17.1)
I lie Is tlreicfurr c entitled to
$5,327 01) lutr c pcr1scs iifl tin it (I ill—
Vcstigalriii,r .inirl (h (s(’iirniciiuniig dt It’nid.irits’
‘iol.itiu,ii’, (If Ins ((unIt Ut d Is
lire ‘SI,lie of oregon is nor entitled I I) Its
t’ I t ’ Ises I ii St,itiil c’ , ( itch iii SuIh)l)u)n I I I I
KENNECOTF COPPER
CORI’ORATION v.
ENVIRONMENTAL
IMPROVEMENT BOARD
New Mexico Court of Appeals
KENNLCOTI’ COPPER CORPORA.
‘lION Appellant. t ’sLW MEXICO EN-
\ lRO\\IE\ I AL I\lPRO E\IENT
BO-\R [ ), ‘ ppcllce. No 39 42 ,Jairuai’ 5 ID,
1980
AIR
Federal, state, and local regulation —
Authority to regulate ( 48 02)
Federal, slate, and local regulation —
Stautory construction — iii general
( 4S.05 I)
Federal, state, and local regulation —
Air qtralitv standards ( 48 25)
Federal, state, and local regulation —
Administrative agencies — Proce-
dure helore agencies ( 48.621)
Liability by industry — In general
( 52.0I)
State .ugenrcs has atitfionirs to adopt. in
on dci to conrtpls ssrnii federal ( ‘heart -tin Act
i (. ‘9tiirCiiICnlLs, .iIl )(tllUtIOri 51. 111(111 ds
1111)1 c stringent than r C(l li ed 1)5 st.itc law
STATUTES
Federal— Clean Air Act — Air quality
standards ( 95.03 12)
( )nisti ned
Copper for 1)111 .iliont .ipl)e.tls ft u)in a
stile tgcni S’s (lecisloti I I) jtioitinilt .ine an
.tnii cri(ltirc ’rir no .u st.Itc ’ (lii.ilnts rcgiil.i—
11(11 1 linitrirnig stillnii (ln)\n(iC (‘iiitssU)Ii ’ , in ( liii
its C\Istitig (OI)l,er sureltet s
\flin lord
AIm ( ‘(I ‘u. J l’n .rtincn I’r .ttl rcn ‘reeger.
l)oolittle 8.. l’ar trier. Washington I) ( ,tnnd
I Inltort l)t(k 5rini, i - I)tu kson i 8. \ otirrg.
‘uihscn (‘its “ \l hrr .lh)l) (’ll ,riiI ..
ill l rnnganii.rnn, .itnoi nies gcrici.rl iti uld
S i ,tr d ‘ ‘ r’ltioti I. \lr’n nm ,issnst.Inil
-------
, d ‘fPs J f?&4.bJI j
/ ( C J 9/
IN THE UNITED STATES DISTRICT COURT
• I c a E MIDDLE DISTRICT OF PENNSYLVANIA
UNIT P ’STATES. 9F AMERICA, )
)
Plaintiff, )
)
v. ) .Civil Action No. 80—0647
WILLIAM B. TE iNY, et al., ) F I L ED
) HARR!S8URG.
Defendants. )
)djLL 2 71 3
DOr 44 ’ b ffi CLERK
ORDER AND JUDGMENT PE1 _ ft/ ‘
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. §S 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”).
-------
—2—
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 pro-
mulgated, 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 re-
gulations, 40 C.F.R. 141 .2(e), define a “public water system” as
a “system 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.”
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8. The national interim primary drinking water
regulations, 40 C.F.R. 141 .2(e)(i), 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 re-
gulations, 40 C.FR. 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 regula-
tions, 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 coliforin 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 CUF.R. 141 .31(a), require suppliers of water for
community water systems to report the results of any tests re-
quired by the regulations to the EPA within forty (40) days of the
testing, where there is no EPA approved state program.
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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.
1 . The Commonwealth of Pennsylvania at i o time re-
levant 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 tFIe persons served by the water
system written notice of any failure to comply with its require—
menta, 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.
8. 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
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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 re-
quirement 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
healthmay require, taking into consideration the
time necessary to comply and the availability of
alternative water supplies; arid, if the court
determines that there has been a willful violation
of 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.
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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 anlaysis requirements of the
national interim primary drinking water regulations.
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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 beexi 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).
Z6. 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
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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. 141.31(a).
d. To report any failure to comply with the national
interim 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. 141.31(b).
e. To notify the users of theRidgeland drinking water
system of any failue 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
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1 1s ‘hér eby assessed against the defendants, p ursuant to the Safe
D.rinking Water Act and regulations promulgated thereunder.
I
William W. Caidwell
qnited States District Judge
Date: July ? , 1983
a ti1’. reCOL
at
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eputY G1 I
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