Why Did Westchester Fail to Comply With the Safe Drinking Water Act?

Despite a lawsuit charging that Westchester water does not meet federal standards, Westchester County Health Commissioner Dr. Sherlita Amler is confident that our drinking water is safe. She said, "I want to assure residents in Mount Vernon, Scarsdale, White Plains and Yonkers that their drinking water is safe. Questions have been raised about a legal action brought by the Department of Justice regarding Water District No. 1's compliance with EPA regulations, but no public health advisories have been issued about the safety of the water relating to cryptosporidium and no reported cryptosporidium illnesses have been associated with the water supply. In addition, the water used by Water District No. 1 is continuously monitored for safety, tested weekly by New York City Department of Environmental Protection. Regarding the lawsuit, the county has been continuously working with the member municipalities of Water District No. 1 to bring it into full compliance with EPA regulations. It is important to note that this is a regulatory issue dealing with enhanced water treatment. It is not about any specific health or safety violations because there are none."

Though the experts agree that Scarsdale water is safe to drink, many questions have arisen about why Westchester County and Water District 1 failed to comply with an EPA mandate issued in 2006 to provide secondary disinfection of water from the Kensico Reservoir.

Now, seven years later, the County missed a key deadline, and has been served with a lawsuit from the U.S. Attorney's Office on behalf of the EPA and could face fines of $37,500 for each day of the violation after January 12, 2009.

How did we reach this impasse? Why weren't measures taken to upgrade water treatment plants to eradicate two parasites, Giardia and Cryptosporidium, from the water supply?

We spoke to Communications Manager David Simpson at County Executive Rob Astorino's office to get some history on the issue and here is his view of what transpired.

He explained that Water District #1 is served by two pumping stations, and that two thirds of the district south of Crestwood draws water from the Catskill Aqueduct that is pumped through the newly renovated Ardsley Road Pumping Station. That facility was under construction from 2009 – 2012 and when it re-opened in December 2012, it brought water that was UV treated in NYC to southern Westchester.

However, the renovation of the Ardsley Road pumping station did not solve the issue for the balance of the Water District No. 1, including Scarsdale, which receives untreated water from the Kensico Reservoir. In order to address the problem, the County first considered a $100,000,000 plan to pump UV treated water from a plant in New York City, but the infrastructure would have taken years to build and the cost would be borne by the users.

Simpson says that the County advised the EPA that they would not meet the deadline in December 2011 but did not hear back from the EPA until they heard from the Department of Justice in November 2012 who sought a legal remedy. The EPA wanted the County to sign a consent decree but the County objected as this would have put everyone in the County on the line for an issue affecting only customers of Water District No.1.

What Simpson did not say is that according to the US Department of Justice complaint, the EPA sent a later dated September 20, 2011 to Water District #1 requesting documentation and certification that it would comply with the rule by April 1, 2012. EPA advised that failure to respond to its letter could result in a civil penalty of up to $37,500, daily penalties of $32,500 per day of violation and sanctions under the SDWA. The letter was returned to the EPA marked "Unclaimed."

The County now has a much more economical solution that could be implemented by the summer of 2014. Rather than use water from Kensico, they hope to transport the treated water from the southern district to Water District No. 1's second pumping station, Reeves Newsom, for distribution to the northern part of the district. A bond act to finance the work is now before the Westchester County Board of Legislators. Simpson says the County Executive is "mystified about why they were hit with a lawsuit," and added, "Maybe they just wanted to collect the fines."

Deputy Village Manager Steve Pappalardo provided a statement on behalf of the Scarsdale Village Manager's Office contending that the County and Water District #1 were working to solve the problem. He said, "The County has been continuously working with the member municipalities of Water District No. 1 as well as other water suppliers in the County to complete a comprehensive project to meet the secondary disinfection requirement."

As for the solution, Pappalardo said, "The Village of Scarsdale as well as the other District 1 members have been encouraging the County to move forward with a project to comply with the Federal Safe Drinking Water Act while understanding that the project presents multiple challenges in terms of the number of parties involved, breadth of its scope and its significant costs which have caused delay in implementation. The County is currently considering a way to comply expeditiously with the Safe Drinking Water Act by providing UV treated water from the New York City Department of Environmental Protection's (NYCDEP) UV facility at Shaft 22 in Eastview, by "back feeding" the system at an estimated cost of $10 million. In order to provide the UV treated water and maintain existing backup feeds for all District 1 members, this alternative will require siting one or more smaller UV plants in White Plains. The County is currently working with the NYCDEP to obtain necessary information on Shaft 22 subsequent to performing a hydraulic analysis to determine if this alternative can meet the District's peak water demands while maintaining adequate pressure."

In order to get views from the US Department of Justice and the EPA we sent the following questions to their offices:

1) Was the August 6 complaint against Westchester the only one filed by the U.S. Attorney regarding the treatment of Cryptosporidium or is it part of a larger national initiative by the EPA?

2) The Ardsley Road Pumping Station which pumps UV treated water was recently reopened. Why did this not demonstrate the District's willingness to comply? How did this figure into the EPA's decision to file the complaint?

3) Did the County block efforts to remedy the situation or simply fail to act quickly enough?

4) What is the estimate of the cost to Westchester County to defend the lawsuit and pay the fines? How would these funds be raised?

Both the Department of Justice and the EPA declined to respond, saying "they don't make speculative comments on ongoing cases."

It's not clear whether the failure was a deliberate effort to disregard the federal ruling or an inability to comply. It's also not clear whether the federal lawsuit is politically motivated as County Executive Rob Astorino is already at odds with the federal government over his management of the affordable housing settlement and has taken an aggressive stance against federal intervention in county affairs.

Whatever the reason for the lawsuit, the County now faces steep fines and the need to defend the lawsuit while they continue to search for a solution to provide UV treated water to customers.