Safe Drinking Water Act Deal: Feds Sue Westchester Joint Waterworks

WESTCHESTER COUNTY, NY — The federal government just took Sound Shore communities to court for failures to protect drinking water and have reached a binding agreement to improve tap water for 120,000 Westchester residents.

Damian Williams, the U.S. 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 EPA; and Lisa F. Garcia, the Regional Administrator for Region 2 of the EPA, announced on Monday that the U.S. 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.

At the same time, the federal officials announced a Consent Decree resolving the case.

The lawsuit claims that the towns and the joint water provider violated the federal Safe Drinking Water Act (SDWA) in 2019 due to the presence of contaminants in the public water system at higher amounts than allowed by the EPA, and that afterwards, the WJWW violated an EPA order requiring the construction of a water filtration plant by certain deadlines.

The Consent Decree requires the towns to build a drinking water filtration plant estimated to cost $138 million, take steps to protect source water quality, and pay a $600,000 civil penalty to the U.S.

"Public water systems have the critical responsibility of ensuring that our communities have safe drinking water," Williams said. "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."

According to court documents, the WJWW and the municipalities failed to ensure that the drinking water they supply to around 120,000 Westchester County residents complies with federal limits on potentially cancer-causing disinfection byproducts from water treatment. The municipalities named own and/or operate the public WJWW system.

During the first three quarters of 2019, the WJWW Water System violated the Safe Drinking Water Act and its "Stage 2 Disinfectants and Disinfection Byproducts Rule" 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 has taken various short-term measures to reduce risk to its consumers, the utility failed to take necessary corrective actions, including a failure to build and operate a filtration plant as required by an EPA order.

"Today’s agreement kickstarts a path to ensuring a reliable and healthy source of water for 120,000 residents of Westchester County," Kim said. "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."

The federal officials said compliance with the Safe Drinking Water Act is not only a public health necessity but also a matter of environmental justice. At least one of the municipalities depending on the defendants' drinking water is overburdened and underserved, facing disproportionate environmental and other burdens, according to those officials.

The lawsuit seeks an injunction for the defendants named in the suit to comply with both the Safe Drinking Water Act and the EPA’s order, including by building a filtration plant and paying civil penalties. The state is 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.

"Everyone living in the United States deserves safe drinking water," Uhlmann said. "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."

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

• The WJWW directly supplies water to around 60,000 individuals in the Town/Village of Harrison, the Village of Mamaroneck, and the Town of Mamaroneck, as well as parts of the City of Rye and the City of New Rochelle, and indirectly supplies water to around 60,000 additional residents of the Village of Larchmont, the City of Rye, the Village of Rye Brook, and the Village of Port Chester.
• The 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 three quarters of 2019, the WJWW Water System contained water with levels of HAA5 over 0.060 mg/L, as determined by testing performed by the WJWW and reported to the EPA.
• The EPA issued an order on November 26, 2019, which required, among other things, that the WJWW ensure the WJWW Water System’s compliance with the Stage 2 DBPR by building and operating a filtration plant by certain dates. The order required construction to begin by January 1, 2022.
• The WJWW has not yet begun construction of, and does not operate, a filtration plant.

The Consent Decree requires the defendants to build and start operating a filtration plant by July 1, 2029, with an estimated cost of $138 million. The Consent Decree also establishes various deadlines for the construction project and requires the WJWW to continue to ensure the safety of its water supply until the filtration plant is operational.

"WJWW has been working diligently to move this project forward," Paul Kutzy, P.E., Manager, Westchester Joint Water Works said in reaction to the agreement. "Our number-one priority is to protect the safety of our drinking water supply and the health of our residents. To be clear, the water supplied to WJWW customers has been, and continues to be, safe to drink."

The Consent Decree also requires the WJWW to pay a $600,000 civil penalty to the U.S. and to spend at least $900,000 on a separate 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 project is expected to improve source water quality in the reservoir by decreasing natural organic material and turbidity.

The Consent Decree resolves claims by NY 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 the state a $650,000 civil penalty and spend at least $6,800,000 on two NYS water quality benefit projects.

Williams thanked the attorneys and enforcement staff at EPA Region 2 for their work. He also thanked the NYS Department of Health and the NY Attorney General’s Office for their collaboration.

The case is being handled by the Environmental Protection Unit of the Office’s Civil Division, with Assistant U.S. Attorneys Samuel Dolinger and Tomoko Onozawa in charge of the case.

"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," Garcia said. "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."

For its part, the nonprofit public benefit corporation said it has been working to build the plant for some time.

The Board of Trustees of Westchester Joint Water Works issued the following statement in repsponse to the agreement:

On December 17, 2019, the Board of Trustees of Westchester Joint Water Works (WJWW), with the support of its member municipalities (Village of Mamaroneck, Town of Mamaroneck and Town/Village of Harrison), enacted a resolution committing to the construction of a drinking water filtration plant for WJWW’s Rye Lake water source. Since that date, WJWW has completed the required environmental review under New York State law, prepared final engineering plans, submitted applications for the required State and local permits, defeated a State court lawsuit challenging the siting of the filtration plant, and entered into a contract with the County of Westchester to acquire the land to build the plant.

Earlier this month, WJWW and the three municipalities entered into a settlement agreement with the U.S. Department of Justice, U.S. Environmental Protection Agency, NY State Attorney General’s Office and State Department of Health in the form of a proposed consent decree, which was lodged with the federal court on June 24, 2024 along with the expected Complaint and necessary paperwork from the State of New York to join in the omnibus settlement. In recognition of WJWW’s good faith efforts and the significant progress it has made in moving the filtration plant project forward, the settlement agreement resolves the governments’ claims for civil penalties at less than one percent of the statutory maximum penalties available under federal and state law.

This story was updated to include statements from WJWW officials.