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United States v. County of Westchester, New York

United States District Court, S.D. New York

April 28, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
THE COUNTY OF WESTCHESTER, NEW YORK, Defendant.

OPINION AND ORDER

NELSON S. ROMAN, District Judge.

Plaintiff the United States of America ("Plaintiff") commenced the instant action against Westchester County ("Defendant"), asserting federal claims under the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq. ("SDWA"), for failing to treat the drinking water that it provides to its residents through its Water District No. 1 to rid it of the dangerous parasite Cryptosporidium. Defendant now moves, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the complaint in its entirety. Defendant aver that Plaintiff has failed to adequately allege in its complaint that Westchester County Water District No. 1 meets the definition of a public water system and community water system under the SDWA and its implementing regulations. Plaintiff cross moves for partial summary judgment on the issue of defendant's liability pursuant to Rule 56 of the Federal Rules of Civil Procedure, asserting there is no genuine dispute of material fact and Plaintiff is entitled to judgment as a matter of law. For the following reasons, Defendant's motion to dismiss is denied and Plaintiff's motion for summary judgment is denied.

I. THE FACTS

The facts are gleaned from the parties' 56.1 statements, affidavits, and exhibits submitted with this motion, and are not in dispute except where noted.

In 1964, District No. 1 was formed in order to purchase the KB Pipe Line from New York City ("NYC") and to serve the municipalities of Mount Vernon, Scarsdale, White Plains and Yonkers. Declaration of Thomas J. Lauro sworn to on March 21, 2014 ("Lauro Decl."), ¶ 4. In or around 1966, District No. 1 purchased the KB Pipe Line and has operated it ever since. Id.

District No. 1 purchases water from the NYC water supply. The water is obtained from two sources, the Kensico Reservoir/Dam and via Shaft No. 22 of the Delaware Aqueduct. The water purchased from the NYC water supply is then sold by District No. 1 to municipalities in Westchester County. These municipalities take said water through their own connections to the KB Pipe Line. Arnett Decl. ¶ 3.

District No. 1 provides water via pipes. Kraft Decl. Ex. D at US000965 (District No. 1 conveys water "through the 48" Kensico-Bronx pipeline to various take off points that serve the District's member municipalities of White Plains, Scarsdale, Mount Vernon and Yonkers"); Kraft Decl. Ex. J at USA000941 (same). The Commissioner of the Westchester Department of Environmental Facilities is designated as the administrative head of District No. 1. See Lauro Decl., ¶ 1.

Mount Vernon, Scarsdale, White Plains, and Yonkers obtain water from District No. 1. Kraft Decl. Ex. J at USA000941 (District No. 1 provides water to "District No. 1's member municipalities of White Plains, Scarsdale, Mount Vernon and Yonkers."). The Town of North Castle, although not a District No. 1 member, takes a portion of its water from the public water system of the City of White Plains.

Water taken directly from the KB Pipe Line goes through certain municipalities' own distribution systems before that water is distributed to their individual residents. See Lauro Decl. ¶ 8.

The City of Yonkers owns and operates a public water system that receives some of its water from District No. 1 and provides water to more than 100, 000 individuals. Barcelo Decl. Ex. B at WC017240 (Yonkers' system "serve[s] the 195, 976 residents of the City of Yonkers"); Barcelo Decl. Ex. C at WC017226 (the distribution system maintained by the City of Yonkers serves 196, 086 individuals).

District No. 1 obtains some of the water that it provides to the Municipalities directly from the Kensico Reservoir. Kraft Decl. Ex. J at USA000941 ("District No. 1 takes [raw] water... directly from the Kensico Reservoir...."). Kensico Reservoir is an unfiltered water source. Kraft Decl. ¶ 5, Ex A. Kensico Reservoir is a reservoir in New York State that is open to the atmosphere and subject to surface runoff. Kraft Decl. ¶ 7.

District No. 1 provides treatment to the water it obtains from Kensico Reservoir. Barcelo Decl. Ex. A at WC018156 (treatment for water obtained from Kensico Dam includes "[d]isinfection using sodium hypochlorite, pH adjustment with sodium hydroxide (caustic soda) and corrosion control using orthophosphate"); Kraft Decl. Ex. J at USA000942 ("District No. 1 provides chlorination, caustic and corrosion control at Kensico Dam...").

In a letter to the Environmental Protection Agency ("EPA") dated May 12, 2010, the County described District No. 1 as "a Schedule 1 system" pursuant to the Enhanced Water Treatment Rule. Kraft Decl. Ex G at USA000962. In a letter to the EPA dated December 13, 2011, the County stated that "District No. 1 is a Schedule 1 system required to provide [treatment pursuant to the Enhanced Water Treatment Rule] by April 1, 2012." Kraft Decl. Ex J at USA000941.

On or about April 26, 2002, the County submitted an application to the EPA for Security Planning Grants ("Application"). In the application, the County stated that District No. 1 "serves a population of about 187, 000 people." Kraft Decl. Ex. K at USA001741 (explaining that District No. 1 "serves a population of about 187, 000" by "supply[ing] water from... Kensico Reservoir... to the [Municipalities ...


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