Cape County business owner responds to attorney general lawsuit over drinking water violations

Thursday, September 8, 2011

A Jackson couple who operate Class Act Family Fitness Center are being sued by the Missouri attorney general for violations of the state's Safe Drinking Water Law, but they say they're trying to comply.

A suit filed in Cape Girardeau County Circuit Court accuses the couple of illegally using an unapproved well to serve patrons at their business.

In May 2010, the Missouri Department of Natural Resources began investigating the center after more than 30 people got sick from drinking or otherwise coming into contact with the water there. The Missouri Department of Health and Senior Services at that time confirmed that 15 of those affected had been infected by E. coli bacteria.

The DNR then issued an emergency abatement order requiring Shawn and Lynn McNally to immediately stop serving drinking water to the public.

In response, they severed all connections to public drinking water fountains, hand-washing sinks and public showers within the fitness center.

But they continue to provide toilet services to their customers and provide them with hand sanitizer gel and bottled water.

In a news release, Attorney General Chris Koster said the couple has refused to install a compliant drinking water system that would restore hand-washing services to the fitness center. However, the McNallys say they're trying to find a solution.

"We have been attempting to resolve these issues with the DNR," Shawn McNally said. "We have not served water to the public; however, our family of six live on the premises and continue to use the water without incident."

Through their attorney, the couple requested permission from DNR to install a water chlorination system and hired a local engineer to design it, but they say DNR would not agree to allow it. Shawn McNally said he was willing to invest the $8,000 a system like that would cost.

"We attempted to annex into the city of Jackson in order to receive city water and were turned down by the board of aldermen, without so much as an explanation why," Shawn McNally said.

Board members and city staff expressed concerns at a March meeting that the property at 2336 S. Old Orchard Road isn't compliant with Jackson building codes. At that meeting, McNally said he was willing to make upgrades in order to comply.

He also inquired about obtaining water from the city of Cape Girardeau, but he said he was told by city officials that it wasn't financially feasible.

The suit by the attorney general alleges the McNallys violated state drinking water regulations at their fitness center by failing to:

* Obtain authorization to construct, alter or extend a transient noncommunity water system

* Obtain a permit to dispense drinking water

* Obtain authorization to alter the water source supply

* Monitor for microbiological contamination levels for total coliform

* Meet required levels of microbiological contamination levels.

Shawn McNally says he was never told he needed to obtain a permit to dispense drinking water and that the well on his property was built in the 1970s and has been used without incident since that time.

He also doesn't believe DNR can say with certainty the sick children came into contact with the E. coli at his business. He believes there could have been cross-contamination and says the only test of his water that came back positive for E. coli was taken from improperly sanitized taps. He has since had to install a special tap for DNR to use to test his water, and he said all those tests, funded by DNR, have come back without any problems.

"DNR continues to test our water supply on a weekly basis to try and find something wrong with it," Shawn McNally said. "From the very beginning they have not had a single test result they have taken which has shown any conclusive evidence of a bad water supply to the best of our knowledge. If they had, they certainly would not allow us to consume the water for our own personal use."

Koster is asking the court to issue preliminary and permanent injunctions requiring the defendants to comply with the Safe Drinking Water Law; to immediately construct a compliant public water system or connect Class Act Family Fitness to a compliant system; to assess a civil penalty of $50 per day for the first violation and $100 per day for each additional violation; and to require the defendants to pay all costs associated with the case.

About 300 to 400 students come to Class Act each week for lessons and special events, Shawn McNally said.

Since the DNR began its investigation, McNally said he has seen a decrease in business.

He said he appreciates his loyal customers who have continued to endure the inconvenience of using hand sanitizer and drinking bottled water in the interim as he continues to work to resolve this issue.

According to the Cape Girardeau County circuit clerk's office, a hearing date in the case has not yet been set.

mmiller@semissourian.com

388-3646

Pertinent address:

2336 County Road 307, Jackson, MO

Map of pertinent addresses

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