THE COURT’S TURN: EPA vs. MWRA ON THE BEST COURSE FORWARD

FOR MWRA’S DRINKING WATER PROGRAM

United States of America,

Plaintiff,

v.

Massachusetts Water Resources Authority ( MWRA) and

Metropolitan District Commission (MDC),

Defendants.

Civil Action No. 98-10267-RGS

This summary was prepared by Nancy C. Kurtz, Associate General Counsel at MWRA, based on notes taken during the trial. Accuracy of quotations have been checked with transcripts where available. For further information, contact Nancy Kurtz at (617) 788-1145 or Nancy.Kurtz@mwra.state.ma.us. (revised 3/28/00)

Synopsis: Will MWRA’s comprehensive strategy to improve drinking water by (1) watershed protection for its two large surface water reservoirs, (2) a new $261 million treatment facility to provide ozonation/chloramination disinfection, and (3) an MWRA-assisted community pipe rehabilitation program sufficiently protect the public health and cost-effectively improve drinking water quality? Or should $180 million in filtration facilities be added as insisted on by EPA? These are the issues on which Judge Stearns of the U.S. District Court of Massachusetts heard testimony from a wide array of water supply and public health experts on 24 days between December 6, 1999 and February 17, 2000. Closing arguments will take place on April 14, 2000. A decision is expected in Spring 2000.

BackgroundIn October 1998, the MWRA Board of Directors voted to build a new water treatment facility using ozonation with chloramination for disinfection and other treatment objectives for the water from Wachusett Reservoir. Water from the Wachusett is used to supply drinking water to about two million people in the greater Boston area. About 50% of the water flowing from the Wachusett Reservoir comes first from Quabbin Reservoir, the larger reservoir to the west which has received a waiver from filtration requirements. MWRA’s treatment technology decision was the culmination of a 10 year process of study and research on the needs of the water supply system, current information on water treatment effectiveness on pathogens of concern, disinfection byproducts, watershed protection and public health concerns, with input from the public and water supply and public health experts. The decision was that an ozonation/chloramination plant would provide appropriate treatment of the MWRA water supply from Wachusett, and that adding filtration to the new plant for $180 million would not provide as much additional benefit as would using funds to rehabilitate old unlined cast iron pipes in the MWRA and local distribution systems. As part of the treatment technology decision, MWRA's Board directed an expanded program of public health surveillance, financial incentives for communities to target rehabilitation of community pipes, and a full review of the need for further treatment including filtration by December 2003.The Board’s decision was presented to the Massachusetts Department of Environmental Protection (DEP) under the provisions of a June 1993 administrative consent order between DEP, MWRA and MDC (the Metropolitan District Commission, the state agency in charge of the reservoirs and watersheds that yield the MWRA’s source water). That consent order allowed MWRA and MDC to pursue a "dual track" for regulatory compliance with the Surface Water Treatment Rule (SWTR) of the Safe Drinking Water Act (SDWA) for the Wachusett Reservoir. It required MWRA to design a filtration plant and to build it, unless MWRA could demonstrate with MDC that the system met the criteria for avoiding filtration and DEP determined that filtration was not required.DEP agreed with the MWRA approach in December 1998 after a hearing and comment period, and determined that filtration was not required for the MWRA system. EPA, however, did not agree and continued to prosecute the enforcement action previously filed under its SDWA "overfiling" rights, seeking to require MWRA to build a filtration plant and contending that the SDWA allowed no other option.In December 1998, the United States moved for partial summary judgment claiming as a matter of law MWRA was in violation of the SWTR and that the Court was required to order filtration. In May 1999, U.S. District Judge Richard Stearns granted the United States’ motion in part, ruling that MWRA was not in compliance with the filtration waiver criteria as a result of its having detected fecal coliform levels in the reservoir above permissible levels on 14 days (in December 1998 and January 1999) out of 130 days tested for the six month period. The SDWA criteria permit exceedances on only 13 days in a six month period (10% of the samples). However, the Court ruled that it had discretion to order a remedy other than filtration and set the question of remedy for trial beginning on October 14, 1999. Judge Stearns reasoned that judicial discretion was necessary since technology evolves more rapidly than legislation and "an overly rigid application of the filtration mandate by the EPA might result in a wasteful expenditure of finite public funds to correct de minimis problems."The trial date was postponed when the United States sought to appeal the ruling, claiming that whether or not the Court has discretion to order a remedy other than filtration was a controlling question of law that should be decided prior to any trial. On October 13, 1999 the U.S. Court of Appeals for the First Circuit denied the Government’s request for appeal, and the trial was scheduled to start on December 6, 1999. Although it is the defendant, MWRA agreed to present its case first. Numerous experts who were involved in the extensive site-specific research that supported the MWRA decision, or who subsequently reviewed the facts, agreed that MWRA’s overall program is a better solution than filtration for MWRA’s system. The United States also produced many experts seeking to demonstrate that filtration provided more protection of public health, and raising questions about the validity and reliability of MWRA data on pathogens and as to the expected performance of the ozonation design. All parties rested on February 17, 2000 after 24 days of testimony. Following preparation of post-trial documents and closing arguments (April 14, 2000), a decision is expected in Spring 2000.

Meanwhile, MWRA has begun site preparation and construction of pipe connections and a 50 million gallon storage tank (the elements of the new plant common to either filtration or ozonation). An early decision will allow MWRA to move forward in Spring 2000 for bids on construction of the new ozonation facility. As part of its Integrated Water Supply Improvement Program, MWRA also has under construction the $728 million, 17.5 mile MetroWest Water Supply Tunnel and $200 million in covered storage projects. MWRA has committed to spend $30 million annually for rehabilitation of MWRA pipes, as well as to provide technical and financial assistance for an interest-free $250 million ten year revolving loan program for community system pipe rehabilitation.

Summary of TrialWeek 1: December 6 – 8, 1999Opening StatementsThe trial before Judge Stearns began at 9:00 am on December 6, 1999. Since this is a civil enforcement matter, there is no jury. The Judge will decide both issues of fact and of law.Attorneys for MWRA and the Department of Justice (DOJ) made opening statements, summarizing what they hoped the evidence would show. MWRA Attorney John Stevens stated MWRA would show that its plan for a new ozonation plant, supported by watershed protection and accelerated rehabilitation of old distribution pipes, and a focussed analysis based on performance of whether additional treatment, either filtration or an evolving twenty-first century technology, is required, is the best alternative for this particular water system. Ozonation will provide more than sufficient inactivation of pathogens for MWRA’s high quality source water and any further expenditure should focus on replacing old, unlined, corroded tuberculated cast-iron pipes. It makes no sense to spend $180 million to make clean, ozonated water marginally cleaner and put this super clean water in dirty pipes.DOJ Attorney Bunker Henderson contended that the issue is not whether the MWRA’s program should include watershed protection and pipe replacement, but which treatment technology is best. With evidence that pathogens are present in the watershed and make their way into the water supply, even through disinfection processes, filtration, as the historically accepted and commonly used technology, is the best alternative. Filtration will remove particles and solids, lead to lower levels of disinfection byproducts, will provide a barrier if ozonation fails, and can provide benefits sooner than a 30-50 year pipe rehabilitation program.MWRA Begins its Case Following the opening statements, MWRA began its case with the first of its 11 witnesses.Doug MacDonald, MWRA Executive Director, gave an overview of the MWRA system, discussed the dual track approach under the administrative consent order with the state DEP which allowed compliance with the Surface Water Treatment Rule through filtration or by compliance with filtration waiver criteria. He described the components of the MWRA’s Integrated Water Supply Improvement Program, including the MetroWest Water Supply Tunnel and covered storage projects, and other projects to improve water quality. He then related the decision process that led to the Board of Directors' October 1998 decision to use ozonation as the treatment technology at the Walnut Hill Water Treatment Plant.DOJ’s cross-examination focused on the role of the Executive Office of Environmental Affairs (whose secretary is the chairman of MWRA’s Board) and other third parties in the MWRA’s change of course from favoring filtration (when it did not meet the avoidance criteria in 1992) to developing its alternative approach under the dual track consent order and then finally selecting the ozonation plant technology.

Stephen Estes-Smargiassi, MWRA’s Director of Planning, Waterworks Division, described the components of the MWRA system (source, transmission/treatment, and distribution) and discussed various criteria used to evaluate the performance of each component. He compared the system’s performance as of 1990 with its performance following the numerous system improvements made by the MWRA and MDC since then. For source water, pathogen levels are low and fecal coliform levels show vast improvement over the 1990-1993 period. Turbidity remains low and stable. For treatment, with the Cosgrove Interim Disinfection Facility on line, required levels of inactivation for giardia and viruses (as measured by "CT") have been achieved since August 1998. For the distribution system, community total coliform violations seen in 1995-1997 have not recurred, open reservoirs have been replaced by covered storage and disinfection improvements enable a higher disinfectant residual to be maintained in the distribution system. Disinfection byproducts, though higher, are well within regulatory limits.

Water, Water Everywhere: After the water pitcher on the MWRA/MDC’s counsel table had been spilled for the third time in two days, MWRA attorney John Stevens quipped: "It’s a good thing this trial isn’t about fire."

On the third trial day, Mr. Estes-Smargiassi completed his direct examination by discussing the tests MWRA has used to sample for cryptosporidium and giardia in the source water. He referred to EPA draft guidance which suggests that with the low levels of cryptosporidium oocysts MWRA has found, no further treatment is warranted. He then discussed the improvements to be made over the next five years. Expectations for improved performance are based on continued watershed bird control and land acquisition, as well as the ability to manage transfers of Quabbin Reservoir water to improve treatability of Wachusett water; the new treatment plant which will achieve 99% reduction of cryptosporidia, provide centralized residual disinfection and corrosion control, and reduce chlorinated disinfection byproducts; and the benefits of replacing old, unlined cast iron pipes in the MWRA and community distribution systems. Estes-Smargiassi also described MWRA’s program to continue to research and evaluate new technologies and, with local public health agencies and academic researchers, to improve water quality monitoring, develop enhanced water-borne disease surveillance, and contribute to epidemiological research comparing filtered and non-filtered systems. On cross-examination, Estes-Smargiassi was questioned about his background and experience and about the MWRA studies and plans for pipeline rehabilitation as well as historical rates of community pipeline replacement.

Week 2: December 13 – 15, 1999

During the second week of trial, MWRA’s two principal witnesses described the MWRA system, the improvements made to date and the improvements to come, and scientific and technical information and site-specific studies assembled for the Board’s review in making the decision as to treatment technology.

Stephen Estes-Smargiassi completed his testimony on Monday, answering questions about population density in the watershed, future development, the number of septic systems remaining after sewering, and various tests used for sampling for pathogens in the source water.

In response to a debate as to the relevance of evidence of data from other water systems and EPA’s decisions there, the Judge commented that although he was interested in EPA’s judgments, that was not the issue here. EPA is bound by law, but the Court has a different role in interpreting how the law should be applied. He is not looking at whether EPA is right or wrong, but is giving the issue de novo review, reaching an independent decision after reviewing all the evidence. The Judge expressed much interest in reviewing the materials prepared for the MWRA Board to learn whether there was a rational basis for the Board’s decision.

Our Man on the Job: As Steve Estes-Smargiassi stepped down, Judge Stearns commented: "Whatever the decision I or the Court of Appeals may reach, I feel better knowing you’re on the job, although I am disappointed you don’t know the number of cats and dogs in the watershed."

Phillippe Daniel, with the consulting firm of Camp Dresser & McKee, described his experience with other water systems as well as the research program he supervised to gather information for the Board’s decision. He explained the grounds for his opinions that ozonation is sufficient to protect public health from pathogens in the case of the MWRA system, that ozonation is not likely to create problems with regrowth in the distribution system, and that greater marginal benefits will come from spending money on pipes rather than additional treatment for the system. In eight hours on the stand over three days, Mr. Daniel described the three treatment alternatives designed by CDM and considered by MWRA and the extensive program of research conducted to answer questions about disinfection effectiveness, disinfection byproduct levels, and the potential for regrowth after ozonation given the significant percentage of unlined, cast iron corroded pipe in the MWRA and community distribution systems. His testimony also covered pathogen monitoring, watershed and reservoir characteristics, determining the required ozone dose to obtain the desired inactivation of pathogens for MWRA water and design of ozone disinfection to achieve 99% inactivation of cryptosporidia, and studies on the relationship of organic matter to regrowth in the MWRA distribution system.

On cross-examination, Daniel was questioned about the reliability of test methods used to measure cryptosporidia, the risks from the presence of development and human activity in the watershed, pathogen presence in biofilm regrowth in the distribution system, the data used to develop the ozone design criteria for MWRA, comparisons between MWRA and other systems, particularly as to the level of natural organic material in the source water which may lead to increased ozone demand and less effective disinfection, and the various models used to predict the impact of ozone on regrowth for MWRA. Daniel agreed that, assuming the same programs for watershed protection and pipeline rehabilitation, filtration offered some benefits for public health over ozonation, but characterized this as a "marginal benefit of diminishing utility."

Week 3: December 20-22, 1999

During the third week of trial, MWRA presented six witnesses, nearly completing its direct case. The testimony ranged from the fine points of DNA fingerprinting to the use of hovercraft to scare gulls from the reservoir.

Dr. Stephen Edberg of Yale University described his molecular fingerprinting work on bacteria found in the MWRA system in 1997 and 1998. His view is that fecal coliform is not a good indicator of either contamination or other pathogens and fecal coliform in the source water is not a threat to public health. In Dr. Edberg’s view, the fecal coliform source water filtration avoidance criterium is calibrated to a particular test method in the SWTR; the enhanced method used by MWRA for fecal coliform monitoring on average yields 25% greater recovery than the designated EPA method; and there would have been no exceedance in December 1998 and January 1999 using the designated method. His view is that neither the results of coliform testing nor of molecular fingerprinting are relevant to the decision of which treatment to provide.

Science Quiz: Judge Stearns, in a question to Dr. Edberg as to how molecular fingerprinting of bacteria worked, impressed all parties with his knowledge of genetics by actually using the correct number of base pairs of DNA in a bacterium.

Dr. Anne Camper of Montana State University’s Center for Biofilm Engineering explained concerns about biofilm (microbes on pipe surfaces) and regrowth (microbes that grow in the water column after treatment) in water supply systems. AOC (assimilable organic carbon) and BDOC (biodegradable dissolved organic carbon) are two common measures of the organic "food" that may contribute to regrowth potential. Far more important determinants of regrowth potential in Dr. Camper’s view are corrodable pipe surfaces and the level and type of disinfectant residual. She described her research using MWRA water and MWRA pipe to show that ozone treatment was not likely to increase biofilm growth in the distribution system. She concludes that filtration is not necessary to control regrowth; replacing and relining corroded pipes are the best measures to control regrowth.

Dr. George Rutherford, a former state health officer of California, stated his view that it is premature to require filtration for the MWRA system and that public health dollars can be better spent than for the marginal benefit filtration would provide at this time.

Dr. Charles Haas of Drexel University, using several accepted methodologies for assessing risk, found that the level of risk of exposure to cryptosporidium from MWRA water after treatment with ozone, based on occurrence levels in the MWRA system, the effectiveness of the planned ozonation treatment design, and on standard assumptions regarding infectivity and water consumption, would be well below 1 in 10,000. This is the standard used by EPA in its surface water treatment rules. Although filtration would further reduce risk, it is not necessary because risk would already be below the level deemed acceptable for public health in regulatory settings.

Hugh Firminger, the president and founder of Hovertechnics, Inc., the manufacturer of the hovercraft used by MDC in its bird control program, detailed the superiority of the newly purchased Model 800 and its ability to handle reliably a variety of difficult weather conditions at Wachusett, including cold, rough weather, snow, partial ice cover, and irregular terrain.

Best Piece of Evidence: The 3-minute video demonstrating the Hovercraft Model 800 capably handling wave, wind and ice conditions on Lake Michigan.

John Scannell, head of the MDC bird control program, described the development of the program and measures implemented over the years to improve its effectiveness. In particular, he noted the critical importance of ongoing harassment by boat and the tendency to see higher fecal coliform levels when weather conditions at the reservoir have prevented boat use in the past. Scannell was cross-examined on the effectiveness of the bird control measures used, such as pyrotechnics, trapping, and boat harassment, in reducing the number of gulls nesting on the reservoir over the period the program has been in effect and on the existence of factors, such as local food sources (e.g., landfills), the presence of eagles or adverse weather conditions, which cannot be controlled by MDC. It was shown that the inability to use boats on certain days did not result in high fecal coliform levels on those days. Scannell clarified on re-direct that missing one day may not impact the program but in his experience missing several days, as occurred in December, 1998 – January, 1999, made it more difficult to move the birds.

Heroism in the Line of Duty: John Scannell of the MDC resumed the stand to complete his cross-examination on Monday with his left hand in a cast. He had broken two fingers while maneuvering the boat trailer and truck during the bird harassment program at the Reservoir the night before. Only after he was sure the intake was safe from gull feces did he report to the hospital for medical care! He apologized to the Judge for not wearing a jacket, but it wouldn’t fit over the cast.

Week 4 : January 3 - 6, 2000

The testimony of John Scannell both closed the old and opened the new millennium. MWRA presented its two final witnesses.

Suzanne Condon of the Massachusetts Department of Public Health (DPH) described the process followed by DPH that led to the October 1, 1998 letter to Doug MacDonald from DPH Commissioner Howard Koh, M.D. In that letter, DPH concluded that the MWRA’s approach to pursue watershed protection, ozonation/chloramination, and pipe rehabilitation seemed reasonable, and recommended a program of enhanced public health surveillance. On cross-examination, Ms. Condon described her agency’s public health goal "to put resources where they do the most good sooner rather than later." She agreed that DPH did not compare ozonation and filtration, but focussed on whether DPH was comfortable with MWRA’s approach.

Marco Aieta of Montgomery Watson completed MWRA’s direct case with a brief history of drinking water treatment, the factors one reviews to make treatment decisions, and his work advising other unfiltered systems about treatment. Turbidity was a core element in treatment recommendations for other systems, as high levels of turbidity compromise disinfection effectiveness. Dr. Aieta stated he "found no reason whatsoever why MWRA should filter" its water supply since the water quality is very good and not likely to experience degradation. Turbidity is consistently low, unlike some of the western systems, showing that in a "well-designed reservoir in a partly developed watershed you can have better turbidity performance than in an undeveloped watershed." He agreed that MWRA should be addressing its weakest link, the condition of pipes, and that ozonation would not adversely affect the distribution system where "the heart of the problem is unlined cast iron pipes." Dr. Aieta also described the mouse infectivity studies he supervised to determine the dose of ozone necessary to obtain 99% inactivation of cryptosporidium in MWRA water. In his opinion, MWRA should be doing exactly what it is doing: watershed protection, adding ozonation for 99% inactivation of cryptosporidium, and improving the condition of the distribution system.

The Government in cross-examination questioned Dr. Aieta about characteristics of the MWRA system that differ from other systems, the impact of turbidity on disinfection effectiveness, and the variability of the data obtained in the Montgomery Watson mouse infectivity study. On redirect, Dr. Aieta confirmed that based on the inactivation study, MWRA water can be expected to be easier to disinfect with ozone than 90% of other systems.

MWRA Rests; United States Begins its Case

After presenting eleven witnesses, MWRA attorneys rested their case on January 5, 2000, approximately one hour into the twelfth day of trial. The United States introduced the first of its twelve witnesses.

The Government’s case began with Richard (Skip) Hull of EPA, who described several tables and charts he had prepared using MWRA water quality data and MDC files on Watershed Protection Act implementation. The data included Quabbin transfers, Wachusett precipitation, virus monitoring at Cosgrove, Cosgrove fecal coliform, total coliform, cryptosporidium and giardia monitoring. On cross examination, MWRA attorney Jonathan Ettinger clarified that Mr. Hull’s chart did not distinguish between presumed and confirmed cryptosporidium oocysts. Comparisons of EPA’s spreadsheet to MDC determinations illustrated a number of cases in which the information recorded by EPA staff was unclear, misleading or incomplete.

Dr. Joan Rose, a microbiologist at the University of South Florida, described the range of microorganisms (bacteria, viruses, protozoa, and algae) that constituted a risk of waterborne disease and the segments of the population who were particularly sensitive to these diseases. She also focused on the potential sources of pathogens in the watershed (both human and animal) and the basis for her view that pathogens like giardia and cryptosporidium entering streams in the watershed could survive and be transported to the intake, particularly as a result of storm events. In her opinion, a multiple barrier approach, consisting of the best supply, watershed protection, treatment including filtration and disinfection, and maintenance of the distribution system, is the best approach.

More Heroism: Runner-up to John Scannell is DOJ attorney Bunker Henderson who valiantly tried to pronounce some 15 Latin names of bacteria, viruses and protozoa in his examination of Dr. Rose.

On cross-examination, Dr. Rose agreed that EPA’s rules allow compliance with the Surface Water Treatment Rule without filtration, but she believes that public health protection against cryptosporidia requires filtration and that the SWTR does not adequately protect the public health in that regard. Although she criticized Dr. Haas’s risk assessment, she agreed he was an expert in the field and had used a methodology they both had used in the past. With respect to the "tongue twister" list of microorganisms she had presented, she agreed that most were easily disinfected with chlorine or ozone. Her concern about the impact of storm events was based largely on storm event data from riverine sources where turbidity levels correlated with cryptosporidium and giardia occurrence, not the case at Wachusett. In response to questioning by Judge Stearns, Dr. Rose stated she based her assessment on what would provide the highest degree of protection of public health, that she would impose stricter standards than EPA has in the past, and that she was not asked to consider cost-benefit factors in her opinion.

Trivia Question of the Week: How many cryptosporidia can fit on a period? After testifying it was a million, Dr. Rose agreed on cross-examination it was probably only about 10,000.

Week 5: January 13 – 14, 2000

The trial had now lasted for 15 days with 16 witnesses and nearly 52 hours of testimony with 7 scheduled days of trial remaining. The Court also set a schedule for closing arguments (early April) in order to reach a decision by the end of April.

James Edzwald, professor of civil and environmental engineering at the University of Massachusetts (Amherst), was the only witness of the day. Dr. Edzwald testified that ozone used alone as treatment could disinfect pathogens, "bleach" dissolved organic matter to reduce color, and destroy most taste and odor causing compounds. When used with filtration, ozonation improved the performance of filters to achieve lower particle counts and longer filter runs. He believes CDM used an inappropriate equation to calculate the decay curves used to determine the "CT" value (a measure of the concentration and time needed for effective disinfection) for MWRA’s ozone design. In his opinion, the required ozone dose would be difficult to achieve with historic total organic carbon (TOC) levels at Wachusett, and an ozone dose of 2.5 mg/l was "not quite there" given his calculations of normalized demand of 0.7. An increase in ozone dose to achieve CT would lead to more biodegradable dissolved organic carbon (BDOC) in the distribution system and potential regrowth or biolfilm development. Dr. Edzwald’s overall view is that the filtration design developed but not selected by MWRA is state of the art, cost effective, will reduce TOC, inactivate and remove pathogens, and remove taste and odor, and that filtration is the "prudent" choice.

On cross-examination, MWRA attorney Jonathan Ettinger explored Dr. Edzwald’s report on the 1997-1998 study of organic matter in the MWRA system, pointing out the variability of the data points and questioning the basis for the report’s conclusions that the ozone/chloramination option "consistently" produced elevated BDOC in the system, a description which Dr. Edzwald retracted. The witness also admitted that the BDOC study did not find a seasonal change in BDOC in the distribution system, possibly because MWRA’s treatment processes were changed during the time of the study. Dr. Edzwald agreed that CDM was continuing to pilot the ozone process to get more information, that ozone demand and decay values would be constantly monitored at the new plant, and that ozone doses could be raised to meet CT. He also agreed that achieving 4 log removal, using DAF/filtration, means removing 99.99%. This is only 1% more than is achieved by 2 log removal (99%), not twice as much.

Tit for Tat: In acknowledging the objection made by MWRA attorney Jonathan Ettinger to the subject areas of Dr. Edzwald’s testimony, on the ground that the Government had filed no expert report or otherwise disclosed adequately the substance of his opinion testimony, Judge Stearns allowed examination to proceed on three topics and promised that MWRA could have its own "surprise witness" at an appropriate time. The Government’s "technically correct" position is that disclosure of expert opinions is required only of paid experts and Dr. Edzwald was testifying under subpoena without compensation, despite the fact that he met voluntarily with the United States’ attorney, and spent a week reviewing documents provided to him by the United States.

John Shawcross, MWRA’s Director of Capital Engineering and Construction for Waterworks, was called under subpoena by the Government. He was asked to enumerate his world wide experience with designing water treatment and water systems, from Tynemouth, England, to Bangladesh and Burma (Myanmar). He also described the studies done to evaluate the treatment options for MWRA, leading to two distinct cost effective alternatives, ozonation and DAF/ozonation/high rate filtration with BAC. Shawcross expressed his own view that DAF/ozone/filtration treatment would produce better water and protection for public health than ozone treatment alone. On cross-examination, Shawcross explained that the quality of Wachusett water is good, with low and stable turbidity and moderate TOC, and that he has confidence that the designs prepared under his review will achieve their design objectives, although he would prefer filtration.

Spelling Bee: John Shawcross gets an "A", and the court reporter’s gratitude, for voluntarily spelling most of the names of the exotic places he has worked and the international experts he has retained ("Susumu Kawamura"), as well as some of the less well known MWRA acronyms, such as "WASM" (Weston Aqueduct Supply Mains).

Jennifer Clancy, a microbiologist heading up her own research and consulting company, was called next. Her area of expertise is the development and testing of methods to detect cryptosporidium and giardia in water supplies and other applied research. She described the testing methods for cryptosporidium as they were developed in the early 1990’s and as they have been evolving. She compared the new 1622/1623 method to the method required to be used in the EPA’s Information Collection Rule (ICR). She finds the new method to be "quite robust," with a recovery rate of 40–50% in samples spiked with cryptosporidium, rather than 11 – 35% for the earlier versions of the method. She does not believe it is appropriate to use the ICR data to make decisions about the level of treatment needed to protect public health.

Week 6: January 18 – 21, 2000

The United States presented four witnesses during the four days of trial.

Jennifer Clancy’s cross-examination by MWRA attorney John Stevens continued. Dr. Clancy conceded that mouse infectivity studies, such as that on which MWRA’s ozone design is based, are the "gold standard" for determining inactivation of pathogens. She also agreed that the MWRA in sampling weekly and analyzing a large volume of the sample was taking steps to improve detection of cryptosporidium using the ICR method, and agreed that in using that method the MWRA had not detected any viable oocysts at the intake in the last 4 years.

Arithmetic Test: Jennifer Clancy must have felt like a student taking Massachusetts’ new MCAS (Massachusetts Comprehensive Assessment System) test when John Stevens asked her to figure out, without a calculator, the total number of liters sampled in a study of storm events on the Delaware River. With 5 liters sampled every week day for 3 weeks, the right answer was 75 liters. (This compares to the 100 liters the MWRA samples every week for cryptosporidium.)

William Walker, a self-employed consulting environmental engineer who has done a lot of water quality modeling and analysis for government agencies and some water utilities, prepared a number of maps, using MassGIS data and land use information from aerial photography (taken in 1992-1993), to show watershed land use characteristics (in the general categories of urban, agricultural and undeveloped.) Based on rainfall data and MDC and MWRA fecal coliform monitoring, he also prepared time series charts to demonstrate that fecal coliform levels and rainstorm events were statistically correlated, although only at the 1% level. This analysis, he believes, rebuts the hypothesis that no fecal coliform from the tributaries reaches the intake at Cosgrove. On cross-examination, MWRA attorney John Stevens brought out a number of anomalies in the testimony. Although Walker was careful to exclude the Worcester part of the watershed because it does not contribute much flow to the reservoir, he admitted that he was not asked to review the characteristics of the Quabbin/Ware watershed although he was aware that about half of the water comes from this much higher quality source. When asked about the impact of sewering on the Gates Brook area, which he found to be the part of the watershed with the most development, the highest population density and the poorest soils for on site septic systems, he stated it was too difficult to forecast the future impact of control measures such as the sewering. When asked about the one day he used as an example of high fecal coliform following rain on the three previous days, Walker had to admit that a possible explanation was that the MDC had not been able to use a boat for bird control for the preceding three days.

Judge’s View: In sustaining MWRA’s objection to DOJ’s question to elicit an opinion on treatment from William Walker, Judge Stearns stated: "I know that his opinion will be what has been the opinion of every other witness in this case, that if you can afford it, filtration is better. But that’s not what this case is about."

Michael Messner, an EPA mathematical statistician, described the national survey of cryptosporidium and giardia occurrence recently completed under EPA’s Information Collection Rule (ICR). He stated that the data so far suggest there is a weak relationship between turbidity and pathogen occurrence, that recoveries of "spiked" cryptosporidium in samples varied widely with a mean recovery of 12%. He criticized the assumptions and techniques used in the risk assessment performed by Dr. Charles Haas, witness for MWRA. Using cryptosporidium occurrence data from early (pre-1995) MWRA sampling which Haas had excluded, Messner found more than 2 log removal with ozonation would be required to achieve a health goal of 1 infection in 10,000 persons. MWRA attorney Jonathan Ettinger cross-examined Dr. Messner on the niceties of Poisson distributions, Monte Carlo techniques, and one- and two-tailed tests for statistical correlation. The issues of quality assurance for ICR data, still under discussion by the EPA FACA (Federal Advisory Committee Act) committee, were discussed, but Messner agreed that none of the MWRA’s data set from 1995 onwards would be excluded under the proposed approach.

Kevin Reilly, EPA’s drinking water coordinator for Massachusetts, described his role in developing the Surface Water Treatment Rule and his involvement in the MWRA system and decision process since 1986. Mr. Reilly described his concern about population density and growth in the watershed, and failing septic systems and those that could fail in the future. His testimony was interrupted to allow the next witness from out of town.

Bruce Rittmann, a professor at Northwestern University specializing in environmental biotechnology, described the problems in distribution systems due to regrowth (organisms that grow in the system after treatment) and biofilm (the layer of organisms on pipe walls). In his view, only "food" causes such organisms to grow, although factors such as temperature, disinfectant residual, and pipe material can affect how fast they can use the food to grow. Dr. Rittmann reviewed the data from all the MWRA studies and concluded that the MWRA’s planned ozone dose would greatly increase regrowth problems and risks in the MWRA system, and that MWRA cannot maintain a sufficient disinfectant residual to control regrowth because the AOC levels will "overwhelm" it. Based on his review of data from Portland, Maine, he also believes that system has serious regrowth problems (but it has not to date violated the Total Coliform Rule which permits only 5% of samples for coliform in the distribution system to show positive.) He does not believe the Black & Veatch "red water study" and BDOC modeling done as part of MWRA’s site specific studies are reliable enough to be used for treatment decisions. In his opinion, biological filtration ought to be installed to minimize regrowth, as well as to constitute one of the multiple barriers to pathogens. On cross-examination, by MWRA attorney Jonathan Ettinger, Dr. Rittmann maintained his view that increasing BDOC (with ozonation) will always lead to an increase in regrowth, although he conceded that this was an area where respected researchers could disagree. When confronted "up close and personal" with the now-famous MWRA rusty pipe sample (Exhibit 17), he agreed that a pipe like that would affect regrowth if the water contained BDOC. Although admitting that MWRA had done "perhaps a little more than the norm" of site specific studies, he believes that the state of knowledge is improving and that his own work was likely to give us a better handle on what is going on, even sooner than five years from now.

Week 7: January 24 – 26, 2000

During the final scheduled week, three witnesses testified for the United States.

Kevin Reilly (cont’d): Reilly discussed the risks of contamination of the watershed from sewer pipes, agricultural activities, animals such as beavers, human access to MDC lands, the limits of the Watershed Protection Act, risks of hazardous materials on roads and railroads. In sum, his view is that there are too many people and activities in the watershed for Wachusett Reservoir to remain an unfiltered source. He also discussed his opinion that the MWRA system is experiencing breakthrough due to algae and other organic matter shielding coliform, and other pathogens, from disinfection. Reilly claims that filtration would provide many benefits, and that a single barrier (disinfection with ozone) would not achieve an adequate margin of safety. On cross-examination, MWRA attorney John Stevens compared Reilly’s list of watershed risks with the comments contained in John DeVillars’ November 1996 letter to Doug MacDonald. In that letter, Mr. DeVillars commended MWRA and MDC on many of the items Reilly found insufficient. Turning to the criteria for avoiding filtration, which Reilly admitted in his deposition were "sufficiently protective of public health," Mr. Stevens established that as of today, MWRA is in compliance with those criteria. Other points on cross-examination were:

• comparing "apples to apples," the MDC/MWRA watersheds have both lower population and dairy cow densities than the comparable watersheds in the New York system which has a filtration waiver (whether looking at the watershed as a whole in each system, or at Wachusett vs. Kensico as the lower level reservoirs).
• coliform positives at Commonwealth Avenue pump station involve benign non-fecal bacteria and are inconsistent with both Reilly’s view that breakthrough is occurring due to organic matter shielding coliform from treatment (since coliform positives at this pump station don’t correlate with periods of high levels of algae) and with Dr. Rittmann’s regrowth theory (because coliform positives at this pump station don’t correlate with periods when TOC, the coliform "food," is high).

Free Advertisement: As examples of human activity in the watershed that could potentially contaminate the water supply, Kevin Reilly noted two popular eating places, Bob’s Hot Dog Stand and Tish’s Dishes, a truck stand only 100 yards from a tributary. Based on his personal experience, he stated that the "food is good and the scenery is pretty."

David Ozonoff, professor of environmental health at Boston University School of Public Health, was retained by EPA in late 1998 to evaluate the public health benefits of the treatment options considered by MWRA. His opinion is that from a public health perspective DAF/filtration is most advisable and offers substantial public health benefits. Dr. Ozonoff enumerated nine of these, including removal of particulates, lower DBPs, better taste, odor and clarity, emergency response flexibility, and decreased cost of drugs and medical care. Ozonoff also found the additional cost of 6 cents per day per household for filtration to be "highly affordable," representing only 36 seconds of work at minimum wage at McDonald’s. On cross-examination, MWRA attorney John Stevens reviewed Dr. Ozonoff’s credentials in detail, to demonstrate that very few, if any, have anything to do with microbiological contaminants in drinking water. Dr. Ozonoff’s testimony in other lawsuits mostly relates to asbestos, but in one Arizona case, Dr. Ozonoff’s expert testimony on the causation of the plaintiffs’ illnesses (allegedly from chemical contamination of drinking water) and testimony of other witnesses relying on it were found to be without scientific basis and excluded by the court. John Stevens covered the "top nine" list of benefits from filtration identified by Ozonoff, in "Late Night Order." Dr. Ozonoff agreed that both ozonation alone and DAF/ozone/filtration represent a drastic reduction in disinfection byproducts, a "very good" thing. On Dr. Ozonoff’s #1 reason, that filtration gives an additional 100 fold reduction in cryptosporidium over ozonation, Stevens brought out that ozonation alone (at approximately $300 million) would inactivate 99% of the pathogens present. The addition of filtration (at an additional $180 million) would only achieve removal of a portion of the remaining 1%. Dr. Ozonoff was also directed to the review of the treatment technology decision by the Massachusetts Medical Society, which decided not to take a vote on the addition of filtration, but strongly supported watershed protection, pipe rehabilitation, enhanced health effects monitoring, and at least ozonation.

Good Authority: After John Stevens’ cross-examination of Dr. Ozonoff on the Arizona case, Judge Stearns asked: "Are you through with that case? For some reason you passed over page 18 which quotes me." (The Arizona judge had indeed quoted and relied upon a Stearns opinion which had excluded expert testimony as fundamentally unsound.)

Ephraim King, chief of EPA’s Standards and Risk Management Branch in the Office of Water, a last minute addition to the United States witness list, testified concerning EPA’s February 1999 "Draft Final" Guidance Manual for unfiltered systems (referenced by MWRA witnesses in assessing how the MWRA system would fare as an unfiltered system). He stated that this manual was sent out for technical input to stakeholders and other interested parties, but that it had not been finalized because of the technical issues raised in comments. It was now not a priority to finalize, although all seven other guidance manuals relating to the Interim Enhanced Surface Water Treatment Rule had been finalized. The import of his testimony was that unfiltered systems such as MWRA should not rely on the process set out in the draft final manual to determine whether or not additional monitoring for pathogens, or additional treatment should be considered.

Parting Words: At the completion of testimony on January 26, 2000, Judge Stearns thanked the parties for the intelligent and competent presentation of this important public policy matter, one of the most interesting trials he has been involved in. He commented that it was a shame this trial could not have been televised because the public’s confidence in both MWRA and EPA would have been inspired.

Day 23: February 10, 2000

Trial reconvened to hear the testimony of the Government’s last witness.

David Hiltebrand, although not an engineer, advises government agencies and utilities on appropriate treatment for water supplies. He is employed by AH Environmental. Hiltebrand believes that the information on MWRA’s ozone-only treatment alternative is inadequate to reliably predict its performance. His first concern relates to the CT value established by Montgomery Watson for MWRA water. This CT value is questionable, Hiltebrand claims, because there is two log variability in the "best fit" line used, and no safety factor was applied to account for variability in the study and information used. A second concern relates to the ability of the plant as designed by CDM to achieve a sufficient ozone concentration for 2 log removal of cryptosporidium under all conditions. Focussing on the demonstration testing done in 1994-1995, Hiltebrand criticized the use by CDM of only a single data point for cold water and the lack of data for residual ozone values. He feels that the more recent bench scale testing done failed to demonstrate how much ozone was needed to generate sufficient ozone residual, particularly since all such testing was done when TOC levels in the source water were relatively low. Although there is capacity to increase the ozone dose, he feels this would be at the expense of potential bacterial regrowth problems in the distribution system. In his view, Portland, Maine, which uses ozone without filtration, is on the verge of regrowth problems.

On cross-examination, MWRA attorney John Stevens brought out several instances where Hiltebrand had misunderstood or had lacked information in preparing his expert report. Stevens had Hiltebrand compare the site specific CT calculation done by Montgomery Watson for MWRA with the procedures outlined in the EPA guidance manual for the Surface Water Treatment Rule. Hiltebrand agreed the Montgomery Watson study was superior to the studies used by EPA to set national CT values for giardia. Hiltebrand had no advice for what kind of a safety factor Montgomery Watson should have applied, and the EPA guidance lacked any requirement, advice or reliable references for application of safety factors. With respect to the potential for TOC to affect ozone demand, Hiltebrand agreed on review of the Portland data that the ozone dose required for sufficient CT had no response to changes in TOC. Hiltebrand also had to admit TOC levels at the Wachusett had exceeded 4 only twice in the last nine years, and in fact had crept above 3 only rarely, conceding TOC levels of 1 – 3 are low for surface water. In the winter, the period Hiltebrand expressed concerns about, Wachusett experiences its lowest TOC and lowest algae levels. Ultimately, Hiltebrand acknowledged that the ozone-only plant "certainly" would be able to deliver enough ozone to meet the calculated CT.

Groundhog Day: In examining the TOC levels during the winter at Wachusett, John Stevens asked Mr. Hiltebrand how he would define the winter season. When Hiltebrand offered both the first and fourth quarters, Stevens objected "You can’t have six months of winter!"

United States Rests

Day 24: February 17, 2000

MWRA Presents Rebuttal

Each side was given one hour to examine MWRA’s rebuttal witness.

Marco Aieta, who had earlier testified as part of MWRA’s direct case, returned to the stand to cover items in rebuttal to the Government’s witnesses. On direct examination by John Stevens, Dr. Aieta made the following points: (1) although variability in a mouse infectivity study is inevitable, the results of the study for the MWRA are replicable and reliably predict what the MWRA has to do in order to inactivate 99% of any cryptosporidia that may be in its water 100% of the time; (2) Professor Edzwald is mistaken about the relationship between ozone demand and TOC, which is only one of many factors affecting demand and will not affect the MWRA’s ability to inactivate pathogens with ozone; (3) membrane filtration could well become a superior alternative to conventional filtration over the next 5 to 10 years, and pilot studies would determine whether the modest pretreatment such as microscreening was necessary; and (4) in response to Kevin Reilly’s expressed curiosity about this winter’s test results, fecal coliform levels continued to be relatively higher using the enhanced method, but were low in absolute terms, with no results above 20 cfu per 100 ml, results near zero when the reservoir froze and the gulls departed, and not a single cryptosporidium detected at the Cosgrove intake. Cross-examination concerned EPA’s setting standards for the inactivation of giardia by chlorine, variability among different source waters in the mouse infectivity study and tests to determine ozone demand.

Safe Bet: Upon Bunker Henderson’s objection when John Stevens asked Dr. Aieta which study was the superior study – the Montgomery – Watson cryptosporidium infectivity study or EPA’s giardia CT study – Judge Stearns overruled the objection, but said he would wager $1000 that he knew the answer. Aieta’s answer: "You’re a winner!"

MWRA Rests

Following the close of testimony, Judge Stearns shared his working outline of the decision he will write, following closing arguments. The outline has nine chapters, and will cover:

1. Historical foundation of the Metropolitan Boston water supply system (featuring the Judge’s "namesake" Ric [actually Frederic] Stearns, the architect of the system).
2. Description of the distribution system and historical neglect leading to MWRA’s pipe replacement program.
3. Description of the watersheds, emphasizing development, and future trends, pressures and stresses, and MDC management practices.
4. Legal framework, evolution of the National Water Policy in the SDWA and SWTR, and amendments, reflecting the thinking of Congress over time.
5. Scientific framework of microbiological threats and effectiveness of treatments in inactivating or removing contaminants.
6. Discussion of MWRA water quality over the last ten years using the filtration avoidance criteria as a bench test for comparison purposes.
7. Political discussion of the evolution and rupture between EPA and MWRA over approaches to treatment, leading up to this lawsuit.
8. Description of the two treatment alternatives before the Court, with relative benefits and drawbacks, if any.


9. Answer to the question: in the Court’s judgment, does protection of the public health require construction of filtration?

Trial Statistics

Trial Landmarks:

Longest direct examination: 4.7 hrs - Steve Estes-Smargiassi by John Stevens

Longest cross examination: 5 hrs - Phillippe Daniel by Bunker Henderson

Longest total time on stand: 8 hrs - tie for Steve Estes-Smargiassi and Phillippe Daniel

Longest cross in relation to direct: Doug MacDonald (2.7 hrs. vs 1.0 hr.)

Shortest cross in relation to direct: John Shawcross (.3 hr vs 1.4 hr. )

Most days on stand: 3 days – Steve Estes-Smargiassi, Phillippe Daniel and Kevin Reilly (3 way tie)

Most millennia on stand: 2 – John Scannell (Dec. 22, 1999 to Jan. 3, 2000).

Based on trial statistics, the Government spent on average 20% more time cross-examining MWRA witnesses than was taken for their direct testimony and 30% more time on their own witnesses than MWRA took for cross-examination.

Schedule for Remainder of Trial

April 14, 2000, 9:30 am: closing arguments

Expected Spring, 2000: Decision