U.S. Attorney Announces Consent Decree With Westchester Drinking Water Provider And Three Municipalities For Violating The Federal Safe Drinking Water Act

 

Defendants to Construct $138 Million Drinking Water Filtration Plant, Take Steps to Protect Source Water Quality, and Pay a Total of $1.25 Million in Civil

Damian Williams, the United States Attorney for the Southern District of New York; Todd Kim, the Assistant Attorney General for the Environment and Natural Resources Division of the Justice Department; David M. Uhlmann, the Assistant Administrator for the Office of Enforcement and Compliance Assurance of the Environmental Protection Agency (“EPA”); and Lisa F. Garcia, the Regional Administrator for Region 2 of the EPA, announced that the United States filed a civil lawsuit against the WESTCHESTER JOINT WATER WORKS (“WJWW”), the TOWN/VILLAGE OF HARRISON, the VILLAGE OF MAMARONECK, and the TOWN OF MAMARONECK (collectively, “the defendants”), along with a Consent Decree resolving the case.  The lawsuit alleges that the defendants violated the federal Safe Drinking Water Act (“SDWA”) in 2019 due to the presence of contaminants in the public water system in excess of the level set by EPA, and thereafter WJWW violated an EPA administrative order requiring the construction of a water filtration plant by specified deadlines.  The Consent Decree requires the defendants to construct a drinking water filtration plant projected to cost $138 million, take steps to protect source water quality, and pay a $600,000 civil penalty to the United States. 

U.S. Attorney Damian Williams said: “Public water systems have the critical responsibility of ensuring that our communities have safe drinking water.  Thanks to today’s settlement, Westchester Joint Water Works will finally construct a long-delayed drinking water filtration facility to protect the Westchester County communities it serves.” 

Assistant Attorney General Todd Kim said: “This agreement kickstarts a path to ensuring a reliable and healthy source of water for 120,000 residents of Westchester County.  The building of a much-needed water filtration plant will address the source of the Safe Drinking Water Act violations and will help secure the area’s long-term needs.”

EPA Assistant Administrator David Uhlmann said: “Everyone living in the United States deserves safe drinking water.  Today’s agreement requires Westchester Joint Water Works to construct a new filtration system to prevent contaminated drinking water and to protect the quality of the water for a water system that serves multiple communities, including at least one that has been overburdened by environmental impacts.  Westchester residents should expect nothing less.”

EPA Regional Administrator Lisa F. Garcia said: “WJWW will build a drinking water filtration plant that will ensure clean and safe drinking water for 120,000 people in Westchester County, immediately pay a $600,000 civil penalty to the federal government and implement a $900,000 Supplemental Environmental Project to improve source water quality through decreased stormwater discharge into the Kensico Reservoir.  We are happy to partner with the State of New York to address this long-standing violation of the Safe Drinking Water Act and protect public health.”

According to the allegations of the Complaint, the Consent Decree filed with the Court, and other public records:

The defendants failed to ensure that the drinking water they supply to approximately 120,000 Westchester County residents complies with federal limits on potentially cancer-causing disinfection byproducts resulting from water treatment.  Specifically, the defendants own and/or operate a public water system (the “WJWW Water System”).  During the first, second, and third quarters of 2019, the WJWW Water System violated the SDWA and its Stage 2 Disinfectants and Disinfection Byproducts Rule (“Stage 2 DBPR”) because it supplied water exceeding legal limits for certain chemicals resulting from the disinfection process — specifically, five regulated haloacetic acids known as “HAA5.”  Although the WJWW Water System has taken certain short-term measures to mitigate risk to its consumers, defendants have failed to implement necessary corrective actions — including WJWW’s failure to construct and operate a filtration plant required by an EPA administrative order. 

Compliance with the SDWA is not only a public health necessity but also a matter of environmental justice.  At least one of the municipalities relying on defendants’ drinking water is overburdened and underserved, facing disproportionate environmental and other burdens.

The United States’ lawsuit seeks an injunction compelling defendants to comply with the SDWA and EPA’s administrative order, including by constructing a filtration plant, and civil monetary penalties.  The State of New York is contemporaneously joining the lawsuit to assert its own claims under state law and a previously entered state court judgment requiring the construction and operation of a filtration plant.

In the Consent Decree, the defendants admit, acknowledge, and accept responsibility for the following, among other matters:

• WJWW directly supplies water to approximately 60,000 individuals in the Town/Village of Harrison, the Village of Mamaroneck, and the Town of Mamaroneck, as well as portions of the City of Rye and the City of New Rochelle, and indirectly supplies drinking water to an additional approximately 60,000 residents of the Village of Larchmont, the City of Rye, the Village of Rye Brook, and the Village of Port Chester.
• EPA has set the “maximum contaminant level” for the five regulated disinfectant byproducts known as HAA5 at the level of 0.060 mg/L.
• In the first, second, and third quarters of 2019, the WJWW Water System contained water with levels of HAA5 in excess of 0.060 mg/L, as determined by testing performed by WJWW and reported to EPA.
• EPA issued an administrative order dated November 26, 2019, which required, among other things, that WJWW ensure the WJWW Water System’s compliance with the Stage 2 DBPR by constructing and operating a filtration plant by certain milestone dates.  The administrative order required construction to commence by January 1, 2022.
• WJWW has not yet commenced construction of, and does not operate, a filtration plant.

The Consent Decree requires defendants to build and commence operation of a filtration plant by July 1, 2029.  WJWW has publicly estimated the cost of the project to be $138 million.  The Consent Decree also establishes various interim deadlines for the construction project and requires WJWW to continue to implement measures to ensure the safety of its water supply until the filtration plant is operational.

The Consent Decree also requires WJWW to pay a $600,000 civil penalty to the United States and to spend at least $900,000 on a supplemental environmental project to modify an extended detention basin in the Rye Lake portion of the Kensico Reservoir and manage invasive species in the area.  This supplemental environmental project is expected to improve source water quality in the Reservoir by decreasing natural organic material and turbidity.

The Consent Decree resolves claims by New York to enforce a previous state judgment against WJWW for violating separate regulations requiring the implementation of filtration.  In addition to the construction of the filtration facility, the defendants will pay New York a $650,000 civil penalty and spend at least $6,800,000 on two state water quality benefit projects.

The Consent Decree is subject to public comment and approval by the Court.  Notice of the proposed Consent Decree will be published in the Federal Register, and the public will have the opportunity to submit comments on the Consent Decree for a period of at least 30 days before the parties seek the Court’s approval.

Mr. Williams thanked the attorneys and enforcement staff at EPA Region 2 for their critical work on this matter.  He also thanked the New York State Department of Health and the New York Attorney General’s Office for their collaboration.