Feds file major action against NY town for drinking water violations, signaling shift in enforcement priorities.

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In what is a clear shift in DOJ/EPA policy involving large enforcement cases under the nation’s Clean Water Act, the Trump Administration has turned its focus to the Safe Drinking Water Act and the risks to public health associated with health-based violations.  Historically, the federal government has focused largely on enforcing against cities discharging raw sewage to the nation’s water ways, including things like combined sewer overflows and sanitary sewer overflows.  Since enactment of SDWA, the feds have largely deferred to state enforcement of drinking water violations.  But in the wake of the Flint Michigan crisis, and a handful of other serious drinking water cases, DOJ/EPA appears poised to more aggressively pursue communities directly for drinking water violations.
Here is DOJ’s announcement.
FOR IMMEDIATE RELEASE
Thursday, April 12, 2018

Town of Ticonderoga Agrees to Bring Drinking Water System Into Compliance

Acting Assistant Attorney General Jeffrey H. Wood for the Environment and Natural Resources Division, U.S. Attorney Grant C. Jaquith for the Northern District of New York, Regional Administrator Pete Lopez for the U.S. Environmental Protection Agency (EPA), and New York State Attorney General Eric T. Schneiderman announced today that the Town of Ticonderoga, New York has entered into a consent decree to bring the town into compliance with the federal Safe Drinking Water Act and Part 5 of the New York State Sanitary Code. Under the terms of the agreement, Ticonderoga will switch the source of about half of the drinking water it provides to a groundwater source.

“Clean drinking water is a priority for all Americans. This agreement is carefully crafted to ensure that the Town of Ticonderoga is able to make required upgrades to its drinking water systems in a timely, cost-effective, and appropriate manner, while also ensuring that local residents are notified immediately if drinking water contamination is found,” said Acting Assistant Attorney General Wood for the Justice Department’s Environment and Natural Resources Division. “We will continue to work with our federal, state, and local partners to ensure compliance with the Safe Drinking Water Act.”

“With this agreement, and with support and technical assistance from the state and federal government, Ticonderoga has a path forward to ensure that the people of Ticonderoga receive clean drinking water,” said EPA Regional Administrator Pete Lopez.

“It is fitting that a town named for its location as the junction of two majestic waterways has committed to provide clean and protected water to its residents,” said United States Attorney Grant C. Jaquith. “We will continue to work with the Environment and Natural Resources Division, the EPA, and state and local authorities to ensure compliance with the federal Safe Drinking Water Act and to protect public health in Ticonderoga and throughout the Northern District of New York.”

“Every New Yorker should have access to safe, clean drinking water, and this agreement ensures that for Ticonderoga residents,” said Attorney General Schneiderman. “My office is proud of this collaborative victory and remains committed to improving environmental safety and public health across our state.”

The Town of Ticonderoga owns and operates an unfiltered drinking water system with an uncovered finished water reservoir that provides drinking water to approximately 5,000 customers. The water system does not meet state and federal regulatory requirements. The town has been out of compliance with a federal Safe Drinking Water Act regulation called the Long Term 2 Enhanced Surface Water Treatment Rule (LT2). Specifically, the system does not have proper treatment for Cryptosporidium. The LT2 rule specifically targets public water systems with surface water as their source, which have higher potential risks of Cryptosporidium contamination. These systems are required to treat unfiltered surface water for Cryptosporidium, which can lead to serious and potentially fatal gastrointestinal illness. The illness poses greater risks to people with weakened immune systems, such as young children, pregnant women, and the elderly. The rule also requires that reservoirs that hold finished drinking water (water that is ready to drink) be covered to protect them from contamination.

Under the terms of the consent decree filed yesterday, the Town of Ticonderoga will install wells to draw drinking water from the groundwater and install a storage tank to ensure a clean and protected water supply—projects that will cost approximately $13 million. The town will also complete improvements to the Baldwin Road filter plant by June 2020. While the work to accomplish these capital improvements is being completed, the consent decree requires the town notify the public immediately if sampling indicates any elevated risk of Cryptosporidium contamination.

In addition to the work required to ensure its system meets federal and state requirements, Ticonderoga has agreed to two additional actions under EPA’s Supplemental Environmental Projects policy. First, the town has agreed to establish a program to notify residents of water system outages or concerns, including boil-water notices. This notification program will also enable notification of other emergencies, including sewer or gas line breakages, flooding, police activity, and severe weather, by phone call, email, or text message. Second, the town will establish a pharmaceutical disposal program to anonymously accept any unwanted pharmaceutical products. The program will reduce the quantity of pharmaceuticals released to the environment that might otherwise make their way into the community’s drinking water. The town will also pay a $50,000 penalty to be divided evenly between the United States and New York State.

The consent decree has been lodged with the U.S. District Court for the Northern District of New York and is subject to public comment for a period of at least 30 days. Notice of the lodging of the consent decree will appear in the Federal Register allowing for a 30-day public comment period before the consent decree can be entered by the court as final judgment. The consent decree will available for viewing at www.justice.gov/enrd/Consent_Decrees.html.

For more information on the Safe Drinking Water Act, please visit: www.epa.gov/sdwa