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Levin v. The County of Westchester

United States District Court, S.D. New York

August 2, 2017

JEFFREY L. LEVIN, Individually and on Behalf of all Others Similarly Situated, Plaintiffs,
v.
THE COUNTY OF WESTCHESTER and WESTCHESTER COUNTY WATER DISTRICT NO. 1, Defendants.

          OPINION AND ORDER

          Vincent L. Briccetti United States District Judge.

         Plaintiff 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.

         Before the Court is defendants' motion to dismiss the amended complaint pursuant to Rule 12(b)(6). (Doc. #26).

         For the reasons set forth below, the motion is GRANTED.

         The Court has subject matter jurisdiction under 28 U.S.C. § 1331.

         BACKGROUND

         The 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 plaintiff's favor.

         The District operates the Kensico-Bronx (“KB”) Pipeline, which runs from the Kensico Reservoir at its northern end to the Bronx at its southern end.

         The KB 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.

         The 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.

         The 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.

         Cryptosporidium 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 recreational water.

         On 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 contamination.

         On 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, ...


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