To filter or not to filter: A discussion and analysis of the Massachusetts filtration conflict in the context of the safe drinking water act

Boston College Environmental Affairs Law Review, Summer 1999 by Kavanaugh, James

Given the vital significance of water to human survival, public water suppliers are depended upon to deliver safe drinking water. The Safe Drinking Water Act (SDWA) attempts to realize this purpose by creating standards that public suppliers must satisfy in providing water to communities or municipalities. Under one standard, public suppliers must filter their drinking water if they fail to satisfy certain safety criteria. Whether or not to construct a filtration facility in Metropolitan Boston has spawned a conflict between the Environmental Protection Agency (EPA) and Massachusetts Water Resources Authority (MWRA). EPA insists that MWRA construct the filtration facility, while MWRA asserts that other less costly alternatives are available. This Comment explores the foundation of the SDWA as well as the relevant regulations, discusses the claims posed by both EPA and MWRA regarding filtration, and ultimately concludes that MWRA's position is more sensible.

INTRODUCTION

Tragedy struck Milwaukee, Wisconsin in 1993 when 100 people died and 400,000 others became ill after ingesting a microorganism named Cryptosporidium parvum.l The source of this parasite: drinking water.2 Despite these problems, the U.S. drinking water supply is generally safe,3 partly because of the federal Safe Drinking Water Act (SDWA), enacted in 1974 and amended in 1986 and 1996.4 Nevertheless, potential for disaster exists, as evidenced most visibly by the 1993 Milwaukee epidemic.6

Water filtration has been endorsed as an effective means of protecting consumers from contaminated drinking water.6 Thus a portion of the SDWA mandates that public water suppliers, if unable to comply with prescribed regulations designed to ensure that drinking water is free of contaminants, must filter their drinking water.7

The decision whether or not to construct a filtration plant in Massachusetts has engendered a debate between the Environmental Protection Agency (EPA) and the state Massachusetts Water Resources Authority (MWRA), a subsidiary of the Metropolitan District Commission (MDC). EPA insists that MWRA must build a filtration plant to comply with the SDWA and to ensure safe drinking water, while MWRA insists that it can provide safe drinking water by employing less costly, more creative alternatives.

This Comment examines both direct and collateral concerns surrounding the Massachusetts filtration plant controversy. Part I provides a brief survey of the present quality of drinking water within the United States. Part II examines the applicable provisions of the SDWA and the Surface Water Treatment Rule (SWTR), both of which are central to EPA's position of mandating filtration. Part III delves into the Massachusetts conflict, beginning with a brief history of the Massachusetts water system and concluding with an overview of both EPA's and MWRA's arguments for and against filtration. Part IV surveys the scheme developed in New York to avoid filtration, a plan that other public water systems could use as a model. Finally, Parts V and VI suggest a resolution in which EPA exempts MWRA from building a water filtration facility, at least temporarily, and instead allows MWRA to implement and pursue other less costly alternatives to ensure adequate water quality.

I. THE STATE OF DRINKING WATER IN THE UNITED STATES

Studies indicating that pollution is threatening existing water supplies have prompted concern among both water providers and consumers.8 Still, despite ongoing claims, the U.S. water supply generally provides safe, healthy water.9 Of the more than 55,000 Community Water Systems servicing the U.S. population in 1996, only 4769, or 8.6%, were deemed in violation of health standards.10

Nevertheless, contamination exists, perhaps most visibly in the form of health epidemics attributed to drinking water consumption.11 According to the Centers for Disease Control (CDC) and EPA, from 1986 to 1994, 116 water disease outbreaks occurred within the United States, resulting in 450,000 illnesses.12 In 1985, 3800 people in Pittsfield, Massachusetts became ill after ingesting drinking water containing Giardia lamblia, a protozoa capable of inflicting severe gastrointestinal illness upon humans.'3 Two years later, in Carrolton, Georgia, 13,000 individuals became ill after ingesting drinking water containing the Cryptosporidium parvum parasite.14 In 1993, both New York City (NYC or the City) and Washington, D.C. issued temporary warnings to boil tap water to prevent sickness from two harmful parasites, E. coli and Cryptosporidium.15 Most alarming and conspicuous, however, was the Milwaukee Cryptosporidium outbreak in 1993, which resulted in over 100 deaths and 400,000 illnesses.16

While these incidents attract widespread publicity, the Natural Resources Defense Council (NRDC) and the CDC reported that more troubling data exists regarding the quality of the U.S. drinking water supply. Because consumption of contaminated water does not always result in mass sickness, underreporting of waterborne illness is common.l7 According to the NRDC report, some experts believe that ten waterborne illnesses occur for each one reported, while others believe that the ratio is as great as twenty-five to one.18 Thus, when attempting to determine a cause of illness, often neither physicians nor patients think about contaminated drinking water as a source.l9