June 15, 2020
DOWNLOAD COMPLAINT HERE:
TRENTON, NJ (MERCER)–Attorney General Gurbir S. Grewal and Department of Environmental Protection (DEP) Commissioner Catherine R. McCabe announced today that the State has filed a lawsuit against the City of Trenton and Trenton Water Works seeking to compel them to take legally required actions to protect and strengthen the City’s water system, including actions necessary to reduce the risk of lead and pathogens in drinking water.
Trenton Water Works (TWW) supplies approximately 29 million gallons of drinking water daily to more than 200,000 people, including residents of Trenton and four neighboring municipalities – Ewing, Hamilton, Hopewell, and Lawrence Townships.
DEP and the City have, over the past decade, executed multiple Administrative Consent Orders (ACOs) in which Trenton agreed to cure its many failures to comply with the Safe Drinking Water Act. Among other things, TWW agreed to replace thousands of lead service lines and cover a finished water reservoir, actions that are necessary for TWW to comply with state and federal law and effectively minimize public health risks. However, due in part to the inaction of Trenton’s City Council, TWW has missed many critical deadlines, has not met its obligations to replace a significant portion of lead service lines, has failed to protect its open, 78-million-gallon reservoir of treated water from contamination and reduce the risk of pathogens in the water supply, and has failed to satisfy a series of other operations and maintenance obligations. Underlying this lawsuit is the Trenton City Council’s May 7, 2020 rejection of TWW’s request for millions of dollars to meet these clear legal obligations.
“After years of mismanagement, and after the Trenton City Council recently failed to take necessary steps to address the serious shortcomings in the City’s water system, the State was left with no choice but to file this suit,” said Attorney General Grewal. “Our lawsuit demands that TWW meet its obligations to reduce the risk of lead exposure by replacing lead service lines, and to comply with a range of other environmental laws that go directly to the health of the public and especially of Trenton’s children. New Jersey’s public water systems must be held to the highest standards and must live up to their environmental and public health obligations.”
“DEP’s singular goal is to ensure safe and reliable drinking water for the people served by Trenton Water Works,” said Commissioner Catherine R. McCabe. “DEP recognizes that Mayor Gusciora has made progress in improving TWW and protecting public health, and recently proposed plans that would enable the system to meet its Safe Drinking Water Act obligations. Unfortunately, in light of the Trenton City Council’s recent refusal to adequately fund drinking water system improvements, it has become all the more clear that TWW will not meet its obligations under the Safe Drinking Water Act and DEP’s orders. DEP has been left no choice but to take legal action, and we have confidence that Attorney General Grewal and his team will help us bring swift relief to the people of Trenton and the communities who rely on TWW for their drinking water.”
Lead Service Lines Issue
As the Complaint explains, lead can occur in drinking water when lead service lines within water distribution systems and household plumbing corrode.
Wherever the lead levels exceed 15 parts per billion for a sufficient number of samples from a single water system — as revealed through tap water sampling — that system has experienced an “Action Level Exceedance” and federal law requires water systems to implement techniques to minimize the risk and to replace a percentage of its lead service lines.
According to today’s lawsuit, the City experienced lead-related Action Level Exceedance events during three monitoring periods in 2017 and 2018. TWW was required to replace seven percent of its lead service lines within a year of its first Action Level Exceedance. TWW did not meet that first deadline, and subsequently entered into an ACO with the DEP in July 2018.
Under that ACO, the TWW committed to replace seven percent of its lead lines – over 2,500 lines in all – by December 31, 2019. The City missed that deadline, and will miss an upcoming deadline in July to replace an additional seven percent of its lead lines, totaling 14%. To date, it has replaced only 828 of its lines, or roughly two percent.
As a result of the City’s failure to meet its agreed-upon obligation to replace many aged and corroding lead service lines, today’s lawsuit argues, DEP has been forced to seek court intervention.
The lawsuit asserts that legal action seeking a court order is required because the defendants have not taken all necessary steps to “mitigate the risk of potential lead contamination in drinking water.” The lawsuit also seeks immediate relief from the Court.
Remaining Environmental Issues
In addition to demanding that TWW replace sufficient lead service lines, the lawsuit addresses TWW’s failures to reduce the risk of contamination in its reservoir, as well as TWW’s inability to comply with other maintenance and operational requirements.
TWW maintains a seven-acre reserve reservoir, which contains millions of gallons of usable, treated water, and provides drinking water to consumers when the system is unable to meet demands. Because that reservoir is uncovered, it is subject to contamination from the elements and from birds or other animals, which poses a continuing risk of introducing pathogens into the water supply.
According to the Complaint filed today, DEP ordered installation of a floating cover to protect the reservoir from contamination more than a decade ago, and it ordered TWW to complete the cover project by 2009. The lawsuit notes that the City did not comply with DEP’s order, and that it missed two extended deadlines in the process.
As a result, in 2018, the City and DEP agreed to an ACO extending the deadline for cover installation until 2023 – with an added requirement that Trenton fulfill a number of interim milestones in 2018 and 2019 to ensure installation of the cover by the agreed-upon deadline.
According to today’s complaint, the City has not completed those steps in a timely manner, and now indicates it wishes to abandon the cover project in lieu of an alternative approach – a series of above ground storage tanks to prevent the contamination of its reserve water supply. To date, Trenton has not formally requested DEP approval of the storage tank project, which is projected to cost tens of millions of dollars. Nor has it provided a schedule for completion, or an indication of how it intends to fund the project.
At the same time, the ACO to which the City and DEP entered also required TWW to meet a series of operations and maintenance requirements, which it has repeatedly failed to do.
Most concerning, just last month, the Trenton City Council rejected TWW’s request for more than $83 million in bonds, which included $50 million for the protection of the finished water in the system, and which was also necessary to ensure that other maintenance and operations obligations are satisfied. That decision has necessitated today’s action; it is part of a pattern of inaction and outright refusal to marshal the resources necessary to meet the City’s legal obligations to effectively run the water system and protect the public health.