Professional Documents
Culture Documents
_____________
Campbell, Senior Circuit Judge,
Campbell, Senior Circuit Judge,
____________________
and Fuste,* District Judge.
and Fuste,* District Judge.
______________
____________________
____________________
CYR,
CYR,
of
Berkshire
giardiasis
Circuit Judge.
Circuit Judge.
_____________
County,
(otherwise
contaminated water
during
tions
in
Massachusetts,
known as
who
"beaver
supplied by
City and
allegedly contracted
fever")
the City of
Pittsfield ("City")
of 1985, brought
law.1
Summary
from drinking
We affirm.
I
I
BACKGROUND
BACKGROUND
__________
case, we
recite the relevant facts in the light most favorable to the non-
See,
___
e.g., Siegal
____ ______
v. American Honda Motor Co., 921 F.2d 15, 17 (1st Cir. 1990).
________________________
In November
voir to
supply area
drinking water
while other
____________________
City water
Reservoir
with the
Due
The Ashley
to a major mal-
giardia
lamblia pathogen.2
Other
area
On
December 13, a
of
December several
"boil water"
order was
issued.
By
the end
On December 23,
1985, the
Ashley Reservoir
was shut
down, but
A new
operation in January
would not
any post-1985
be removed even
by the
new
an
linked to
a "citizens' action"
relief
and civil
U.S.C.
to
Count III
1983.
Count
Count
Safe Drinking
penalties.
pursuant to the
1988.
II alleged
equita-
a "public
to 42
the Magnuson-Moss
Warranty Act,
15 U.S.C.
2301,
et seq.
__ ___
____________________
2The giardia
beaver.
lamblia inhabits
4
of the
Other counts
setts law.
magistrate
judge
ordered
all
further
interrogatories
and
served by December 8.
elaborate" discovery
judge ruled on
granted
all motions
by February 9, 1990,
and leave
was
issues surviving
the summary
judgment proceedings
would be
allowed to
proceed after
proceedings were
concluded.
five remaining
"well-meant but
were
motions
nightmarishly
to compel,
fairly described
confusing and
unhelpful."
September 6, the
judgment
until
November 30
the motions
admonished about
stated
that
summary judgment."
and
Most
conference held on
At a status
as
may
for
Plaintiffs
Fed. R. Civ.
were
P. 56(f)
opposition to
for
summary judgment,
and
oral
held
in
January 1991.
(the original
1991 hearing,
pending a
discovery
and
ruling on
recommendation in
granted
judgment motion.
proposing that
Expert
on all federal
claims.
defendants be
The district
On
July 1991,
summary judgment
proceeded.
the summary
See 28
___
636(b)(1).
Appellants challenge the
1991,
R.
DISCUSSION
__________
violation.
Our
review is
"[s]ummary judgment
the light
and we
will
most favorable
to the nonmoving
absent an ongoing
conclude that
record, viewed in
party, reveals
that
there
is no
entitled to
genuine factual
dispute and
judgment as a matter
of law."
the moving
Siegal,
______
party was
921 F.2d at
17.
A.
A.
SDWA Preemption
SDWA Preemption
_______________
on
v.
National Sea
_____________
Clammers Ass'n, 453 U.S. 1 (1981), the district court ruled that
_______________
the
enforcement
environmental
scheme under
statutes at
ciently comprehensive
to preclude the
that
are
issue
SDWA, like
suits under
law remedies,
clear,
under the
id. at 20,
___
and
comprehensive to pre-
id. at 22.
___
appellants
"suffi-
congressional intent
1983,"
whole is sufficiently
far from
those
in Sea Clammers,3 is
_____________
. . . to demonstrate
remedy of
the SDWA as a
the
Although
appear to
their
contend:
first, that several of their claims stem from events not regulat-
ed by the SDWA and thus that the SDWA does not preclude relief on
their federal
in concluding that
appellants'
____________________
formulation of
preemption.
a section
1983
claim could
not withstand
SDWA
1.
1.
federal common
cannot escape
field [of
agency."
Milwaukee
_________
v.
Illinois,
________
451 U.S.
304,
317
Cir. 1984)
standard, FWPCA
(under same
maritime
question
is
whether federal
held to have
preempted
When the
statutory
the field, we
or
federal common
law
assump-
Id. at 317-18.
___
The establishment of
the Milwaukee
_________
gress meant
v. Illinois
________
to reserve the
governance of public
meeting
that Con-
drinking water
and indeterminate
equity jurisprudence."
We have
maxims of
that Congress
with its
to assure
that water supply systems serving the public meet minimum nation_______
al
__
ville, Inc.
___________
public health."
City of Evans______________
604 F.2d
1008, 1016
n.25 (7th Cir. 1979) (quoting H.R. Rep. No. 93-1185, reprinted in
[1974] U.S. Code
(emphasis added).
each public
water system in
each State."
the
42
U.S.C.
300g.
The
the Envi-
Id.
___
300g-1(b)(1).
drinking
is authorized
to
Id.
___
which allows
300g-1(b)(4).
list treatment
The Adminis-
techniques to
achieve
certain
circumstances,
require particular
niques.
Id.
___
to
300g-1(b)(6)-(7).
treatment
tech-
other
means
permit greater
States,
3 years."
Id.
___
the Administrator
Id.
___
established under
of
the
compliance.
tion
protection
300g-2-3.
for enforcement
is
empowered
Thus,
the
health of
reviewed at
Finally,
al-
remains with
to enforce
regulatory
State
scheme
_________
10
supra,
_____
EPA did
particularly because
lamblia contamination at
the present
litigation.
the
the time of
"'once Congress
has
addressed a
from scrutinizing
the
prompted
nature of
v. Illi_____
324).
Conner,
______
In other
national concern,
our
the congressional
giardia
occupied, not
not regulate
1982)).
Provided
in
the
the
be regulated.
not
The comprehensiveness
diminished, nor
field
rendered
it is within
is the congressional
unclear,
merely
by reason
intent to
of
agency's discretionary
spectrum of regulatory
power with
Milwaukee,
_________
issued
451
. . .
U.S. at
under
treated discharges
324-25
which it was
n.18
[the FWPCA]
the province of
do
occupy the
the
regulatory
(complaint that
not
control
in a sufficiently stringent
See
___
"permits
overflows or
____________________
29.
11
permits
under the Act cannot deal with these subjects," does not
Section 1983
Section 1983
____________
Appellants'
section
1983
claims
are
based
on
two
contentions.
First,
they contend
Second,
they assert a
under the
violation of
their
We find merit in
neither claim.
Appellants
unless
may
Congress intended
section
1983 to
they may
preclude
to preserve
redress
devices provided in a
sive,
not pursue
their section
a right
SDWA violations.
1983 claims
of action
"When
under
the remedial
suffice to
demonstrate congressional
1983."
preclude
761
F.2d 76,
scheme
under Resource
precludes
issue
82-83 (1st
under
intent to
also Garcia v.
____ ______
Cir. 1985)
Conservation
(comprehensive enforcement
and Recovery
1983).
Like
Act
("RCRA")
the statutes at
of action on
both
____________________
regulations, id.
___
as much
against violators
300g-3(g)(1).
A civil
300g-3(b),
of the
penalty, amounting to
SDWA regulations.
State is
See
___
id.
___
300g-3(b),
300g-3(g)(3)(A).
tions at least as
the State
"has adopted
the enforcement
2(a)(2).
States
of such
and that
adequate procedures
State regulations."
Id.
___
300g-
"pertaining
Appeals for
to the
water regulations
Id.
___
and is implementing
the Administrator
for
SDWA
300j-7.
the District
establishment of
of
Columbia Circuit
national
primary drinking
Finally,
level goals)."
enforcement pro-
to perform
300j-8.
gous to other
As
any non-discretionary
duty under
the SDWA.
closely analo-
sufficiently comprehen-
sive to
evince a clear
congressional intent
to preempt
relief
by the SDWA.6
____________________
6Nor does the
to safe
present analysis.
as the SDWA,
alleged
even
assuming a
public drinking
"fundamental constitutional
water, it
alter the
preclude rights
deprivations
of
of action under
constitutional
would not
section 1983
rights
in
the
such
for
field
of the Handicapped
Act provides
exclusive
remedy even
where
plaintiffs
assert
constitutional
Act of 1972,
provides
"clearly violated
(1989).
B.
B.
The SDWA
The SDWA
________
Having
determined
ground that
notice
however,
as we
We
only
actionable
granted
appellants had
provision.
appellants'
that
failed to
need not
agree with
the
reach
abide by
the SDWA
district court
14
the SDWA's
notice issue,
that appellants
failed
to demonstrate
a genuine
issue of
material fact
as to
in violation
__ _________
citizens' suits
of any requirements
The Supreme
49, 64 (1987).
the citizen
past."
language
authorizing citi-
or intermittent
violation."
or
300j-8(a)(1) (emphasis
1365(a), as not
"continuous
42 U.S.C.
"al-
prescribed by
33 U.S.C.
suits absent
against persons
be addressed by
not in the
Id. at 59.7
___
Appellants
do
not
disagree
that
Gwaltney
________
governs.
"continuous or intermittent
violation."
As
their com-
improperly
evidence
extended Gwaltney
________
of an
ongoing
by requiring
violation
appellants to
in order
As appellants
to
avoid
character-
ize it, the district court ruling caused their "initial jurisdiction to disappear."
____________________
Appellants'
characterization of
the issue
reflects a
supported motion
can avoid
sufficient to
material
v.
establish
the existence
makes a
judgment only
("nonmoving
its
summary
party cannot
162,
off summary
claim
original).8
or defense
is
a genuine
at least
164 (1st
issue
Cir.
of
Price
_____
1991)
judgment unless
it
essential element of
_________ _______
trialworthy")
As plaintiffs-appellants produced no
evidence
931 F.2d
fend
the opposing
by presenting
of
Upon
(emphasis in
expert affida-
rational
trier of
jurisdictional
fact to
prerequisite
find
to
an "on-going"
the maintenance
violation, a
of
their SDWA
Restrictions on Discovery
Restrictions on Discovery
_________________________
Appellants
curtailed discovery
ability
judgment.
to
claim that
as of
authenticate
As
the district
court prematurely
consequence, the
needed
to
prejudiced their
oppose
magistrate judge
summary
struck the
and supported as
provided in this
by affidavits or
__ __________ __
specific facts
district court's
begin until
as otherwise provided
__ _________ ________
after the
added).9
in this rule,
__ ____ ____
is a
genuine
refusal to permit
expert discovery
to
been concluded.
party who
genuinely requires
additional time to
hatch'
marshal
F.2d 985,
988 (1st
Cir.
(1) articulate a
____________________
9Appellants
strike.
raise
no
direct
challenge to
the
order
to
for failure
Price,
_____
931 F.2d
988).
abuse of
to
at
have conducted
164 (quoting
discretion.
Id. at
___
the discovery
earlier.'"
Paterson-Leitch, 840
_______________
good
F.2d at
have not
yet completed
discovery."
The affidavit
plausible
basis
(Rule 56(f)
for the
coverable' material
did the
See Paterson-Leitch,
___ _______________
affidavit "should
party's
belief
articulate some
that specified
_________
that "speci-
added).
'dis-
Nor
for summary
than factual
grounds.
Rule 56(f)
discovered
but provides
further
material
no realistic
discovery would
violation
_________
without
disclose
which there
on legal rather
importantly, the
something might be
basis for
evidence of
could be no
No document stricken
believing that
an ongoing
_______
SDWA
____
genuine issue
of
by the district
an ongoing
18
SDWA violation.
specific fact
were forewarned
expect to
by the magistrate
information
have reasonable
they
disclosed that
would generate
to identify any
________
discover, even
though they
reliance on
to
what
expect would
be
disputes of
fact."
Finally,
appellants
ascribe
no
"cause"
for
their
ity of
the case.
Nevertheless, more
the
filing of
The case
complex issues.
than two
elapsed between
the original
complaint and
the granting
of the
motion for summary judgment, and summary judgment was not granted
until
more than
a year
after appellants
summary
allowed
appellants ample
ery;11
164
adequate non-expert
its discretion by
aware that
time for
were made
diligence.
discov-
in refusing Rule