Under the Consent Decree, New York City Will Pay the United States a $1 Million Civil Penalty for Past Violations of Federal Requirements of the Safe Drinking Water Act
Richard P. Donoghue, United States Attorney for the Eastern District of New York, Jeffrey Bossert Clark, Assistant Attorney General for the Environmental and Natural Resources Division of the United States Department of Justice, and Andrew Wheeler, Administrator of the United States Environmental Protection Agency (EPA), announced today that the United States filed suit under the Safe Drinking Water Act against the City of New York and the New York City Department of Environmental Protection (the City) for failure to cover the Hillview Reservoir (the Reservoir), located in Yonkers, New York, in violation of federal regulation and federal and state administrative orders. A Consent Decree requiring the City to cover the Reservoir and pay a civil penalty was also lodged with the Court. Following a 30-day public comment period, the United States will review the comments and, if appropriate, move for entry of the Consent Decree by the Court.
“The United States brought this action to ensure that New York City covers the Hillview Reservoir to protect the drinking water City residents receive from the Catskill-Delaware Drinking Water Supply. This Office will continue to monitor and enforce the Consent Decree through completion of its requirements,” said United States Attorney Richard P. Donoghue.
“Today we take the necessary steps to fix a serious public-health problem,” said Assistant Attorney General Jeffrey Bossert Clark for the Department of Justice’s Environment and Natural Resources Division. “Congress enacted the Safe Drinking Water Act to ensure that every American has access to safe water to drink. And we vindicate that Act by ensuring in our enforcement action that the City of New York will comply this federal law by protecting against contaminants aerially deposited into the Hillview Reservoir, which millions of New Yorkers depend for their everyday drinking water needs.”
“New York City failed to comply with Safe Drinking Water Act requirements that keep drinking water safe from harmful bacteria and viruses, even when it was under an order to do so,” said EPA Administrator Wheeler. “EPA will ensure the City complies with the decree and takes the necessary steps to prevent its drinking water from harming the health of its residents.”
The Reservoir is part of New York City’s public water system. It is an open storage facility and is the last stop for drinking water before it enters the City Water Tunnels for distribution to City residents. The 90-acre Reservoir receives nearly a billion gallons of water each day through the Catskill and Delaware Aqueducts, and serves as a holding tank that allows the City to meet daily peak water demand. It is divided into two segments, the East and West Basins. Prior to the water entering the Reservoir, it receives a first treatment of chlorine and ultraviolet treatment. Since the Reservoir is downstream of these treatments and is an open storage facility, the finished water[1] in the Reservoir is subject to recontamination with microbial pathogens, such as viruses, Giardia and Cryptosporidium, from birds, animals and other sources. Giardia and Cryptosporidium are protozoa that can cause potentially fatal gastrointestinal illness in humans. If the water in the Reservoir were to be re-contaminated, public health would be threatened, since sufficient microbial treatment is not available downstream of the Reservoir. A cover is necessary to prevent recontamination by such pathogens. Until the cover is in operation, the City is required to take active measures to control wildlife in and around the Reservoir and monitor the Reservoir to ensure that the water is safe for drinking.
The City has been required to cover the Reservoir since it first executed an Administrative Order with the State of New York on January 26, 1999. On March 6, 2006, the City also became obligated to cover the Reservoir under federal regulation, specifically the Safe Drinking Water Act. The regulation required uncovered finished water storage facilities, such as the Reservoir, to be covered by April 1, 2009, or for the discharge from the uncovered finished water storage facilities to be treated to achieve inactivation and/or removal of microbial contaminants. In May 2010, EPA entered into an Administrative Order requiring the City to meet a series of milestones leading to the completion of a cover for the Reservoir. The first milestone date was January 31, 2017. The City failed to meet that date, and this lawsuit followed.
The Consent Decree contains requirements for construction of two projects in addition to the cover, the Kensico Eastview Connection (KEC) and the Hillview Reservoir Improvements (HRI). The KEC entails the construction of a new underground aqueduct segment between Kensico and Eastview that replaces the previously planned Catskill Aqueduct Pressurization Project. The HRI requires extensive repairs to the Hillview Reservoir, including replacing the sluice gates that control water flow and building a new connection between the reservoir and water distribution tunnels. The completion of the KEC is expected to take until 2035. The City estimates the construction cost of the KEC to be approximately $1 billion. The HRI project will be conducted concurrently with the KEC and is anticipated to be completed by 2033. The City estimates the construction cost of the HRI to be approximately $375 million. While the KEC and HRI construction and repair work are underway, the City will conduct facilities planning and design work for the Hillview cover. Following the completion of the KEC and the HRI, the East Basin cover will be constructed, with expected commencement of full operation in 2042, and then the West Basin cover will be constructed, with expected commencement of full operation in 2049. The City’s estimate in 2009 for the cost of its then planned concrete cover for the 90-acre Reservoir was $1.6 billion. The actual cost of the cover may be lower, should the City choose a different type of cover.
Because the schedule in the Consent Decree is lengthy, and there is a possibility that the schedule could be accelerated under certain circumstances, the Consent Decree provides for potential acceleration. The Consent Decree also requires the City to implement Interim Measures to protect the water until the Hillview Reservoir cover is in full operation including: (1) enhanced wildlife management at the Reservoir; (2) weekly sampling of source water for Cryptosporidium and Giardia at the Kensico Reservoir effluent(s), and Cryptosporidium and Giardia sampling at the Reservoir effluent; (3) quality control sampling of the Reservoir effluent; and (4) implementation of a Cryptosporidium and Giardia Action Plan for response procedures for elevated Cryptosporidium and Giardia at the Reservoir.
In addition, under the Consent Decree, the City will pay the United States a civil penalty of $1 million for its past violations of federal requirements. The Consent Decree also provides that the City will pay New York State $50,000, and implement a state Water Quality Benefit Project in the amount of $200,000 to settle the State’s claim for penalties for violations of a State administrative order.
The civil negotiations and settlement were handled by the Office’s Civil Division. Assistant United States Attorney Deborah B. Zwany is in charge of this matter, working together with Elizabeth Yu, U.S. Department of Justice, Environment and Natural Resources Division, Phyllis Kaplan Feinmark, Regional Counsel’s Office, EPA Region 2, Doughlas McKenna, Chief of the Water Compliance Branch, EPA Region 2 and Nicole Kraft, Chief of the Ground Water Compliance Section, EPA Region 2, Gavin McCabe from the New York State Attorney General’s Office, and Roger Sokol from the New York State Department of Health’s Bureau of Water Supply Protection.
[1] Finished water is water that has been introduced into the distribution system of a public water system and is intended for distribution and consumption without further treatment, except as necessary to maintain water quality in the distribution system.
