Filter Foes: Boston Ruling Aids Plant Fight

By JORDAN MOSS

Opponents of city plans to construct a filtration plant in Van Cortlandt Park are pointing to a court decision in Massachusetts as further evidence that avoiding construction of the facility is permitted under federal law.

Although Judge Richard G. Stearns found that Greater Boston's water supply violated the Safe Drinking Water Act on occasion, he postponed ordering a filtration plant pending further review and court arguments next fall. Massachusetts water officials said the ruling means that the court wants the federal government to prove that filtration is a better remedy than other methods of protecting and cleaning the water.

"What the judge said was he wants to see the science behind it," said Massachusetts Water Resources Authority (MWRA) spokesman David Gilmartin. Local activists here, who note that Croton water meets all federal standards, hope the decision sets the stage for requiring the federal government to prove that the water system needs to be filtered before a filtration plant is built.

Massachusetts environmental officials have been arguing against filtration of the Greater Boston's drinking water supply from the Quabbin and Wachusett reservoirs. But, as with the Croton in New York, federal regulators are adamant that filtration is required and took the MWRA to court in a bid to force the agency's hand.

The opening seen by local activists is in Stearns' interpretation of the Safe Drinking Water Act (SDWA), a federal law under which the federal Environmental Protection Agency (EPA) has mandated the construction of filtration facilities in both states. In his ruling, Stearns said the law gives the courts leeway in assessing the need for filtration. Citing specific sections of the Act to support his case, Stearns wrote: "Why Congress might not have wanted to eliminate judicial discretion in ordering compliance with the SDWA is not difficult to imagine. Technology evolves more rapidly than typically does legislation, and there is an inherent danger in attempting to legislate today's science as the foreordained solution for tomorrow's problems. Congress may also have been concerned that an overly rigid application of the filtration mandate by the EPA [Environmental Protection Agency] might result in a wasteful expenditure of finite public funds to correct de minimis [minimal] problems, or even exacerbate problems that the legislators had not foreseen. In sum, while the issue is by no means open and shut, I agree with the MWRA that the SDWA does not deprive a court of discretion in fashioning remedies for a violation of the SWTR [Surface Water Treatment Rule, the regulation devised by the EPA to implement the SDWA]."

John Klotz, a lawyer for Bronx and Westchester activists fighting the plant, said the ruling is relevant to two federal cases he is bringing in a bid to fight the federal government's efforts to force the city to filter the Croton.

"What the Massachusetts court showed, is that a district court does have the authority to look at the situation and construct the appropriate remedy," Klotz said.

Karen Argenti, a long-time opponent of the city's plan to build the plant, first at the Jerome Park Reservoir, and now at the golf course in Van Cortlandt Park, said the Massachusetts case is important because it shows that the EPA is not the final word on water protection and that state and local governments hold primary responsibility for protection of the water supply.

"What Massachusetts is saying they've decided is the water can be taken care of based on better methods than building a filtration plant," Argenti said. "What the Department of Environmental Protection should be saying is, 'We know that new technologies coming up will be better able to protect the water than building a filtration plant and we can prove that to you."

Argenti, who is a plaintiff in the two Croton cases, said that the Stearns decision proves that localities have the upper hand because the Boston water supply has, on occasion, violated some of the 11 avoidance criteria set forth by the EPA in the SWTR, and the Croton hasn't. "They're in worse shape than we are because we're not in violation," Argenti said. "We're compliant with all 11 avoidance criteria."

(The EPA did not respond to a call for comment by press time.)

Officials with the city's Department of Environmental Protection (DEP) see it differently. Charles Sturkin, the agency's chief of staff, said the city agreed to filter in 1992 by not applying for filtration avoidance and entering into an agreement to filter with the state Department of Health, and therefore does not have much choice but to proceed with plans to build the plant.

Argenti steadfastly argues that "there is no requirement for the water supplier to apply for an avoidance determination."

Sturkin said it was possible that the technology to avoid filtration could evolve, but added, "Right now we don't see it and the federal regulators don't factor it in to the determination they have to make. They don't account for what the future technology will be."

One important difference in the two states is that in Massachusetts the lead agency responsible for the water system is vigorously advocating its case in court. In New York, the DEP has agreed to filter, and the only zealous advocates for filtration avoidance are outside government in the form of civic and environmental organizations.

Argenti and other activists hope the city's environmental officials will look to their colleagues in Boston for inspiration. "They should be as strong as the people in Boston, in defending the system that they're running and how they're maintaining it," she said.

[ -back to index page- ]

News | Opinion | Schools | Features | Ongoing Story | Home
About Us | Past Issues