United States District Court, S.D. New York
JEFFREY L. LEVIN, Individually and on Behalf of all Others Similarly Situated, Plaintiffs,
THE COUNTY OF WESTCHESTER and WESTCHESTER COUNTY WATER DISTRICT NO. 1, Defendants.
OPINION AND ORDER
Vincent L. Briccetti United States District Judge.
Jeffrey L. Levin brings this putative class action against
defendants The County of Westchester (“County”)
and Westchester County Water District No. 1
(“District”), alleging violations of the Safe
Drinking Water Act (“SDWA”), 42 U.S.C. § 300
et seq. Plaintiff also alleges a claim under Section
349 of the New York General Business Law for deceptive and
fraudulent business practices, as well as state law contract
and negligence claims.
the Court is defendants' motion to dismiss the amended
complaint pursuant to Rule 12(b)(6). (Doc. #26).
reasons set forth below, the motion is GRANTED.
Court has subject matter jurisdiction under 28 U.S.C. §
following factual background is drawn from “the facts
alleged in the [amended] complaint, documents attached to the
[amended] complaint as exhibits, and documents incorporated
by reference in the [amended] complaint.” See
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d
Cir. 2010). For purposes of deciding the pending motion, the
Court accepts as true all well-pleaded factual allegations in
the amended complaint and draws all reasonable inferences in
District operates the Kensico-Bronx (“KB”)
Pipeline, which runs from the Kensico Reservoir at its
northern end to the Bronx at its southern end.
Pipeline carries water from two sources: the Kensico
Reservoir and Shaft 22 of the Delaware Aqueduct (“Shaft
22”). The Kensico Reservoir is an unfiltered water
source that is open to the atmosphere and subject to surface
runoff. The Kensico Reservoir supplies the northern KB
Pipeline by gravity flow. Shaft 22 supplies the southern
portion. Both the Kensico Reservoir and Shaft 22 are owned by
the City of New York.
District transmits water from these sources via the KB
Pipeline to the water systems of the cities of White Plains,
Yonkers, and Mount Vernon, and the Village of Scarsdale (the
“Member Municipalities”), which in turn
distribute water to consumers within those systems.
SDWA requires public water systems to take various steps to
protect the public water supply from contamination by
pollutants. These steps include protecting the source water,
treating the water, monitoring water-quality, and providing
information to the public.
is a microbial pathogen that causes cryptosporidiosis, a
gastrointestinal illness in humans that, in turn, causes
symptoms including diarrhea, nausea, and abdominal cramps.
Cryptosporidium is most often spread through drinking and
January 5, 2006, the United States Environmental Protection
Agency (“EPA”) enacted the Long Term 2 Enhanced
Surface Water Treatment Rule (“LT2”).
See 40 C.F.R. Part 141, Subpart W. One purpose of
LT2 is to supplement the SDWA and existing federal
regulations by requiring public water systems that use an
unfiltered surface-water source to implement specified
water-treatment protocols to prevent Cryptosporidium
August 6, 2013, the United States, on behalf of the EPA,
commenced a civil action against the County, alleging the
District is a public water system subject to LT2, and that
the County had failed to comply with the requirements of LT2
by April 1, 2012-the compliance date applicable to the
District. See United States v. County of
Westchester, 13 Civ. 5475 (NSR) (S.D.N.Y. 2013) (the
“EPA Action”). Following the denial of motions to
dismiss filed by the County and for summary judgment filed by
the United States, and the completion of discovery, ...