OF 
DEPARTNIENT OF ENVIRONMENTAL PROTECTION

In The Matter Of:

Pittsburgh Water and Sewer Authority Violations of the Safe

Penn Liberty Plaza 1 Drinking Water Act and the Rules and
1200 Penn Avenue Regulations Promulgated Pursuant Thereto
Pittsburgh, PA 15222 Regarding the Lead and Copper Rule

CONSENT ORDER AND AGREEMENT

This Consent Order and Agreement is entered into this 211?? day of [y 

2017, by and between the Commonwealth of Department of Environmental
Protection (Department) and the Pittsburgh Water and Sewer Authority (PWSA).

The Department has found and determined the following:

A. The Department is the agency with the duty and authority to administer and
enforce the Safe Drinking Water Act, Act of May 1, 1984, PL. 206, as amended,
35 RS. 721.1-721 .17 (Safe Drinking Water Act); Section 19l7?A of the Administrative Code
of 1929, Act of April 9, 1929, PL. 177, as amended, 71 PS. 510?17 (Administrative Code);
and the rules and regulations promulgated thereunder (Regulations).

B. PWSA is a municipal authority with a business address of Penn Liberty Plaza 1,
1200 Penn Avenue, Pittsburgh, 15222. PWSA is a ?person? and a ?supplier of
water,? as those terms are de?ned in Section 3 of the Safe Drinking Water Act, 35 PS. 721.3,
and Section 1 of the Regulations, 25 Pa. Code 109.1.

C. PWSA leases, operates, and is the permittee of a ?public water system? and, more
speci?cally, a ?community water system,? as those terms are de?ned in Section 3 of the Safe

Drinking Water Act, 35 P. 8. 721.3, and Section 1 of the Regulations, 25 Pa. Code 109.1.

 

 public water system consists of water sources, storage facilities, treatment facilities and
a distribution system (System). PWSA provides drinking water through the System to
approximately 520,000 people in the Pittsburgh, area, including approximately
250,000 residential customers. PWSA operates the System pursuant to multiple public water
supply permits issued by the Department, and has been assigned Public Water System

Identi?cation Number 5020038. The City of Pittsburgh owns the System and leases it to PWSA.

Failure to Treat as Permitted

D. Section 7(a) of the Safe Drinking Water Act, 35 PS. provides that it is
unlawful for any person to substantially modify a community water system without first having
received a written permit from the Department authorizing such modification. ?Substantial
modification? includes changes which may affect the quality of water served to the public or
may be prejudicial to the public health and safety.

E. Section 109.1105(a) of the Regulations, 25 Pa. Code provides that
a person may not substantially modify corrosion control treatment facilities without having
obtained appropriate permit approvals from the Department authorizing such modi?cation.
Section 109.501(b) of the Regulations, 25 Pa. Code provides that a person may not
substantially modify a permitted public water system without ?rst obtaining an amended
construction permit from the Department pursuant to Section 

F. On July 26, 1995, the Department approved corrosion control feasibility
study, which identified the use of lime and soda ash as the optimal corrosion control treatment
for System. use of optimal corrosion control treatment is required for
compliance with the Regulations under 25 Pa. Code Chapter 109, Subchapter K, Lead and

Copper, and was incorporated by reference in Public Water Supply Permit No. 

 

as amended, which sets forth the applicable water quality parameters (WQPs) to monitor the
effectiveness of corrosion control treatment.

G. In April of 2014, PWSA made substantial modi?cation to its corrosion control
treatment facilities and to its public water system by substituting caustic soda for soda ash as the
primary chemical for corrosion control without ?rst obtaining an amended construction permit
from the Department, in violation of Sections 109.501(b) and 109.1105(a) of the Regulations,
25 Pa. Code 109.501(b) and and Section 7(a) of the Safe Drinking Water Act,
35 PS. 721 PWSA has informed the Department that in early 2016, it reinstituted the use
of soda ash in the System.

H. On April 25, 2016, after learning of unauthorized substantial
modi?cation to the corrosion control treatment facilities at its System, the Department issued an
Administrative Order to PWSA directing the Authority to undertake a number of actions to,
among other things: investigate lead levels within the System and evaluate impacts from
change in corrosion control chemicals; provide public notice to its consumers regarding
the change of corrosion control chemicals and measures to evaluate impacts; conduct a
feasibility study and develop recommendations for optimization of corrosion control treatment
for the System; and submit a ?nal report of the study to the Department with all data and
recommendations for optimal corrosion control protection within the System.

I. PWSA submitted a corrosion control study plan and schedule on May 24, 2016
pursuant to the Administrative Order. On June 24, 2016, the Department provided PWSA with
its comments on the plan and conditionally approved the plan subject to incorporation
of the modi?cations discussed in the Department?s comment letter dated June 24, 2016. PWSA

subsequently submitted to the Department a revised version of the plan dated July 14, 2016,

 

which incorporated the Department?s suggested modi?cations (Plan). Under the Han, PWSA
was to complete its corrosion control treatment feasibility study by the end of June 2017 and
submit the ?nal report and recommendations to the Department by July 30, 20l7. As of the date
of this Consent Order and Agreement, PWSA has not completed the corrosion control treatment
feasibility study required under the Order to develop recommendations for optimal corrosion
control within its System. Further, PWSA has not evaluated impacts to the System from its
change of corrosion control chemicals as required under the Order. failure to complete
these activities by June 30, 2017 is in violation of the Department?s Order, Section 13(a) of the
Safe Drinking Water Act, 35 PS. and Sections 109.4 and of the
Regulations, 25 Pa. Code 109.4 and 

J. Section 703(a) of the Regulations, 25 Pa. Code provides that public
water system facilities approved by written permit from the Department shall be operated in a
manner consistent with the terms and conditions of the permit to achieve the level of treatment
for which the facilities were designed.

K. From August 26, 2016 until July 27, 2017, PWSA failed to operate the treatment
facilities in accordance with Permit No. in violation of Section 109.703(a) of
the Regulations, by failing to maintain and utilize equipment necessary to feed dry lime for raw
water pH adjustment. The Department issued to the Authority Construction Permit No. 0216544
on April 18, 2017, for the installation of liquid lime (calcium hydroxide) as a replacement for the
dry lime used for pH control in the raw water. The Department issued to the Authority
Operation Permit No. 0217533 on July 10, 2017 to begin using the liquid lime feed system. On

July 27, 2017, PWSA instituted liquid lime feed for the System.

 

 

Lead Action Level Exceedanees 2 01 6

L. PWSA is required, pursuant to the regulations, to conduct regular and speci?c
lead and copper monitoring in order to evaluate the level of these substances in the public
drinking water and the effectiveness of the System?s corrosion controls.

M. Section 109.1102(a) of the Regulations, 25 Pa. Code establishes an
action level for lead at 0.015 mg/L, and provides that the action level is exceeded when the
concentration in more than 10% of the tap water samples collected during the monitoring period
(known as the 90?:1 percentile amount) is greater than the action level.

N. PWSA conducted lead and copper monitoring of its System between January 1,
2016 and June 30, 2016 and between July 1, 2016 and December 31, 2016. The results showed a
lead level of 0.022 mg/L and 0.018 mg/L, respectively, at the 90th percentile, which exceeded the
action level for lead. PWSA conducted lead and copper monitoring of its System between
January 1, 2017 and June 30, 2017. The results showed a lead level of 0.015 at the 90th
percentile, which equaled but did not exceed the action level for lead.

0. Section of the Regulations, 25 Pa. Code 
requires a system such as PWSA that exceeds the lead action level when conducting lead and
copper tap monitoring to initiate lead service line replacement. The first year of lead service line
replacement begins on the ?rst day following the end of the monitoring period in which the lead
action level was exceeded. For PWSA, this first year of required lead service line replacement

began on July 1, 2016, and ended on June 30, 2017.

Failure to Conduct System Materials Evaluation
P. Section of the Regulations, 25 Pa. Code 109.1 107(a)(6), requires

that a water system that is required to initiate lead service line replacement submit to the

 

Department within the ?rst three months of the ?rst year of lead service line replacement:
evidence that a materials evaluation of the system that meets the requirements of Section
109.1 103(g)(1) of the Regulations, 25 Pa. Code has been conducted; a
schedule for replacing at least 7% of the lead service lines identi?ed in the materials evaluation;
and the initial number of lead service lines in its distribution system and the portions owned by
the system based on a materials evaluation.

Q. Section ofthe Regulations, 25 Pa. Code 
requires water suppliers to complete a materials evaluation that includes the review of:

plumbing codes, permits and records in the ?les of the building

departments of each municipality served by the system which indicate the plumbing
materials that are installed within structures connected to the distribution system;

(2) inspections and records of the distribution system that indicate the material
composition of the service connections that connect a structure to the distribution system;
and

(3) existing water quality information indicating locations that may be
particularly susceptible to high lead or copper concentrations.

R. As a result of its exceedance of the lead action level, PWSA was required, under
25 Pa. Code to complete a materials evaluation by September 30, 2017 to
determine the initial number of lead service lines in its system that would be subject to the 7%
lead service line replacement requirements of Section of the Regulations, 25 Pa.
Code and a schedule for replacing at least 7% of the identi?ed lead service
lines. On September 30, 2016, PWSA submitted to the Department a ?Lead Service Line
Inventory Estimate,? stating to the Department that does not currently have an accurate
material inventory of the approximately 80,000 active service lines in their system.? PWSA
requested that it be allowed to utilize its Lead Service Line Inventory Estimate to calculate the

initial number of lead service line replacements it is required to perform, and the Department

 

 

approved this request for the ?rst year of required line replacements only, which ended on June
30, 2017, but found the Lead Service Line Inventory Estimate to be insuf?cient as a complete
materials evaluation. As of September 30, 2016, and since that date, PWSA has failed to submit
a materials evaluation of the System that meets the requirements of Section of
the Regulations, 25 Pa. Code and a lead service line replacement schedule, in
violation of Sections and 109.1 103(g)(1) of the Regulations, 25 Pa. Code

and 

Failure to Replace Lead Service Lines

S. Section of the Regulations, 25 Pa. Code 
requires water suppliers that exceed the lead action level to replace annually at least 7% of the
initial number of lead service lines in place in their system at the beginning of the ?rst year of
replacement. Under Section of the Regulations, 25 Pa. Code a
water supplier is required to replace the system owned portion of the lead service line.

T. Within the ?Lead Service Line Inventory Estimate? it submitted, PWSA estimated
that the System had 19,152 lead service lines and therefore PWSA would need to replace at least
1,341 lead se1vice lines prior to June 30, 2017.

U. On June 30, 2017, PWSA reported to the Department that only 415 lead service
lines had been replaced of the required 1,341, in violation of Section of the

Regulations, 25 Pa. Code 

ailare to Meet Notice and Sampling Requirements
V. Section of the Regulations, 25 Pa. Code 
requires water suppliers conducting partial lead service line replacements to notify the owner of

the other portion of the service line that the water Supplier will replace the system-owned portion

7

 

of the line, and to offer to replace the privately owned portion of the service line at the owner?s
expense, unless prohibited by law. If the entire length of service line is not replaced at the same
time, the water supplier must: provide notice to the residents of all buildings served by the
line at least 45 days prior to commencing partial line replacement with speci?c information
regarding partial replacement and that the system wili, at its own expense, collect a sample from
each partially-replaced lead service line that is representative of the water in the service line for
analysis of lead content within 72 hours after completion of the partial replacement of the service
line; and (ii) collect the sample and report the results of the analysis to the owner and the
residents served by the line within 3 business days of receiving the results.

W. During the period of 2016?2017, PWSA performed non?emergency partial lead
service line replacements of the lines serving at least 60 residences without ?rst providing the
residents of these structures at least 45 days advance notice of the Authority?s intention to
perform a partial line replacement, in violation of Section 109.1 107(d)(4) of the Regulations,

25 Pa. Code For at least 149 residences, PWSA failed to collect a sample of
the water from the structures for analysis within 72 hours of partial replacement of the lead
service line, in violation of Section 109.1 lO7(d)(4) of the Regulations, 25 Pa. Code


X. The violations described in Paragraphs G, I, K, R, and W, above, constitute a
public nuisance under Section 12 of the Safe Drinking Water Act, 35 PS. 721.12, and subject
PWSA to a claim for civil penalties under Section 13(g) of the Safe Drinking Water Act, 35 PS.


Y. PWSA has informed the Department that, if and when PWSA meets the lead

action level during two consecutive 6?month monitoring periods under the Lead and Copper

 

Rule Regulations, such that it no longer is required to conduct 7% annual lead selvice line
replacement, PWSA intends to continue to replace lead service lines in accordance with a water

main and service line replacement plan that PWSA will establish.

After full and complete negotiation of all matters set forth in this Consent Order and
Agreement and upon mutual exchange of covenants contained herein, the parties desiring to
avoid litigation and intending to be legally bound, it is hereby ORDERED by the Department
and AGREED to by PWSA as follows:

1. Authority. This Consent Order and Agreement is an Order of the Department
authorized and issued pursuant to Section 5 of the Safe Drinking Water Act, 35 RS. 721.5; and
Section l9l7-A of the Administrative Code, 71 RS. 510-17.

2. Findings.

a. PWSA agrees that the findings in Paragraphs A through are true and
correct and, in any matter or proceeding involving PWSA and the Department, PWSA shall not
challenge the accuracy or validity of these findings.

b. The parties do not authorize any other persons to use the ?ndings in this
Consent Order and Agreement in any matter or proceeding.

3. Corrective Action. PWSA shall undertake and complete the following tasks
pursuant to the following schedule:

a. For any structure for which PWSA completes a partial lead service line
replacement (in which the portion of the lead service line not owned by PWSA remains in
service for the structure), PWSA shall report this as a partial lead service line replacement as part
of the reporting required by 25 Pa. Code 109.1 107(a)(6) and comply with the advance

notification and follow?up testing requirements set forth in 25 Pa. Code 109.1 

 

 

 

for every owner, resident and tenant of the structure. In addition, PWSA shall, for each owner,
resident and tenant of the structure:

i. provide (via door hanger noti?cation) an additional advance
noti?cation not more than five (5) days and not less than seventy-two (72) hours
prior to the initiation of work;

ii. upon initiation of partial lead service line replacement, provide (by
in?person delivery or by leaving at the front door of the residence) NSF -certi?ed
lead removal filters and replacement cartridges for six (6) months of use;

if initial follow?up testing of the water is not conducted because
the resident failed to collect the sample, provide (via door hanger notification) a
second notice for follow?up testing; and

iv. if initial follow?up testing of water from the line shows that the
lead level exceeds 0.015 rng/L, offer (via door hanger noti?cation with self?
addressed postage pre?paid mailer) NSF?certified replacement cartridges for an
additional six (6) months of use and provide sample bottles for subsequent follow-
up lead testing every three (3) months a?er partial lead service line replacement
until: the lead level in the water from the line is at or below 0.015 mg/L and
the water from the line is at or below the pre-replacement lead level, if available;
or the resident has failed to return samples on two consecutive sampling
opportunities.

v. In the case of emergency water main and service line repairs or
replacements, PWSA may, under 25 Pa. Code provide a

shorter time period for noti?cation to affected residents. In the case of

10

 

emergencies, PWSA shall provide affected residents with as much advance notice
as is possible prior to conducting a partial lead service line replacement. If no
advance notice is possible, PWSA shall provide concurrent noti?cation to
affected residents at the time it performs the partial lead service line replacement.
PWSA shall submit documentation to the Department within ten (10) days of the
repair or replacement demonstrating the emergency circumstance, which
documentation shall also include the date, address and description of repairs or
replacements made. Provision of lead ?lters and cartridges and follow~up testing
must still be completed according to the other requirements of Paragraph 
above.

b. i. On or before December 31, 2017, PWSA shall submit to the
Department an interim report of the results of the corrosion control treatment
feasibility study required Within the Plan submitted and approved under Paragraph
4.a. of the Administrative Order. PWSA shall submit a ?nal report in accordance
with 25 Pa. Code and on or before
March 31, 2018. This paragraph supersedes the requirement for PWSA to submit
the results and final report of its corrosion control feasibility study by July 30,
2017 as discussed in Paragraph 1, above, and required under Paragraph 4.a. of the
Administrative Order. All other requirements in Paragraphs 4a. and 4b. of the
Administrative Order remain in full force and effect. In the event the Department
notifies PWSA of any deficiencies in the study, PWSA shall fully address all such
de?ciencies within the time period requested by the Department until the study is

deemed acceptable by the Department?s written notice to PWSA.

11

 

ii. Within 90 days of the Department?s written approval of 
feasibility study, PWSA shall submit to the Department a complete and
technically suf?cient application for an amended construction permit to construct
the optimal corrosion control treatment identi?ed by corrosion control
study. PWSA shall fully address any de?ciencies raised by the Department
within the time frame requested.

Within 180 days of the date the Department issues an amended
construction permit to PWSA to modify the corrosion control treatment facilities
for the System, PWSA shall complete construction of the modi?cations in
accordance with the amended construction permit and submit to the Department a
certi?cation of construction to request an amended operation permit. PWSA shall
begin operation of the modi?ed corrosion control treatment facilities immediately
upon issuance of an amended operation permit by the Department.

iv. Upon commencing operation of the modi?ed corrosion control
treatment facilities, PWSA shall conduct two consecutive 6-month periods of
follow?up lead and copper tap monitoring at a minimum of one hundred (100)
Tier 1 sites. During this time, PWSA also shall conduct monitoring of the
applicable corrosion control treatment water quality parameter performance
requirements (WQP) every 2 weeks at each entry point within the System and
at 25 locations Within the distribution system.

v. Within 30 days of the end of the second period of follow-up tap
monitoring required under Paragraph 3.b.iv., above, PWSA shall submit to the

Department a request for designation of optimal corrosion control treatment

12

 

WQP. PWSA shall fully address any de?ciencies raised by the Department
within the time frame requested.

vi. Following the Department?s designation of optimal corrosion
control treatment WQP for System, PWSA shall continue to conduct
WQP monitoring every 2 weeks at each entry point and at 25 locations
within the distribution system for a period of one year.

c. i. On or before December 31, 2017, PWSA shall provide the
Department with a Data Summary (in a spreadsheet or spreadsheets) from its GIS
system utilizing all inspections and records currently in the possession of or
accessible to PWSA, which includes scanned historical records (for City?owned
service lines), curb box inspections completed through that date, and field studies
completed through that date.

ii. On or before March 3 2018, PWSA shall provide the Department
with: an updated materials evaluation containing all of the lead service line
information from the Data Summary, as well as any additional lead service line
information collected and processed subsequent to the Data Summary; and a
lead service line replacement schedule in conformance with the requirements of
this Consent Order and Agreement.

On or before December 31, 2020, PWSA shall provide a
supplemental materials evaluation to the Department for all residential structures
(single family and multi?family) connected to the system for which PWSA has not
been able to confirm the absence of lead service lines, based on the sources of

information listed in 25 Pa. Code and the results of

13

 

 inspection of service lines (including curb box inspections, if technically
feasible, and other ?eld studies, if technically feasible), or both. PWSA shall also
identify the ownership of all portions of each line.

iv. On or before December 31, 2022, PWSA shall provide a
supplemental materials evaluation to the Department for all structures connected
to the system, based on the sources of information listed in 25 Pa. Code
and and any updated information PWSA has developed
from other sources.

v. In the event the Department noti?es PWSA of any de?ciencies in
any of the Data Summary or materials evaluation submissions by PWSA under
this paragraph, PWSA shall fully address all de?ciencies within the time period
requested by the Department until the Data Summary or materials evaluation is
deemed acceptable by the Department.

(1. On or before June 30, 2018, PWSA shall have, since July 1, 2016,
replaced at least 1,341 lead service lines in place within the System. If PWSA determines that it
has the legal authority and available funding to replace the privately owned portion of lead
service lines when it replaces the City?owned portions, PWSA may submit a revised schedule for
full line replacements, which the Department will consider in its sole discretion. PWSA waives
any right that it may have to challenge the Department?s decision in this regard.

e. Lead service line replacements:

i. Unless PWSA has met the 90th percentile lead action level during
two consecutive rounds of 6-month monitoring by June 30, 2018, PWSA shall, on

or before December 31, 2018, replace at least an additional 7% of the lead service

14

 

lines in place within the System, based upon the updated materials evaluation that
PWSA is required to submit to the Department by March 31, 2018 and that has
been accepted as compliant by the Department pursuant to Paragraph 3 .0.

ii. Thereafter, unless and until PWSA has met the 90th percentile lead
action level during two consecutive rounds of 6?month monitoring by June 30 of
each calendar year, PWSA shall, on or before June 30th of the following calendar
year, have replaced at least an additional 7% of the lead service lines within the
System, based upon the most recently updated materials evaluation that has been
accepted as compliant by the Department pursuant to Paragraph 3.0. To calculate
the 7% amount, PWSA shall add the total number of lead service lines identi?ed
in the updated materials evaluation and the total number of lead service lines
replaced by PWSA since July 1, 2016, and then calculate 7% of that combined
total.

If PWSA does meet the 90th percentile lead action level during two
consecutive rounds of 6?month monitoring, but thereafter exceeds the 90th
percentile lead action level, PWSA shall comply with all applicable requirements
of the Regulations.

f. Every three (3) months, beginning on the date three (3) months after the

date of this Consent Order and Agreement, PWSA shall provide to the Department a written

report, detailing: the progress and status of implementation of the Plan submitted

pursuant to Paragraph 4a. of the Administrative Order; repeat public notice and public education

tasks; consumer tap notices; 72?hour partial line replacement sample results; and 

compliance with the requirements of this Consent Order and Agreement, including but not

15

 

limited to any locations where PWSA has not complied with the provisions of Paragraph 3.21.,
above. Upon request by the Department, PWSA shall provide, within the time frame requested
by the Department, information regarding lead service line replacement activities, including
noti?cation to residents; the results of the follow?up lead testing referenced in Paragraph 3.a.iv.,
above; outreach efforts to obtain follow?up samples; and the status of provision of 
certi?ed lead removal ?lters. The requirement for progress reports set forth in
Paragraph 4.a. of the Administrative Order is superseded by the reporting requirements contained
herein. All other requirements in Paragraphs 4.a. and 4b. of the Administrative Order remain in
full force and effect.

g. PWSA shall provide repeat Tier 2 public notice to its customers within
thirty (30) days following each six~month lead sampling event for which PWSA exceeds 0.015
nig/L of lead. This notice is in addition to the public education program required under Section
109.1104 of the Regulations, 25 Pa. Code 109.1104. The notice shall include the 90th
percentile value of the monitoring results, and any updates to the measures PWSA is undertaking
under its approved Plan under Paragraph 4.a. of the Administrative Order, including 
progress in conducting its investigation, determining the effect of changes to treatment methods,
and developing recommendations for optimization of corrosion control within the System.

h. PWSA shall use adequately and appropriately quali?ed staff or
consultants to perform the corrective actions required under this Consent Order and Agreement.

4. Civil Penalty Settlement.

a. Within thirty (30) days of execution of this Consent Order and Agreement,

and subject to the provisions of Paragraphs 4.1). and 4.0., below, PWSA shall pay a civil penalty

in the amount of TWO MILLION FOUR HUNDRED THOUSAND DOLLARS ($2,400,000)

16

 

for the violations set forth in Paragraphs G, I, K, R, and W, for the dates set forth above and no
others. The payment shall be made by corporate check or the like made payable to the
?Commonwealth of Safe Drinking Water Fund? and sent to Renee Diehl,
Operations Sections Chief, Department of Environmental Protection, 400 Water?'ont Drive,
Pittsburgh, PA 15222-4745.

b. Community Environmental Project. Up to ONE MILLION EIGHT
HUNDRED THOUSAND DOLLARS ($1,800,000) of the civil penalty assessed in this Consent
Order and Agreement may be paid by PWSA by performing a Community Environmental
Project acceptable to the Department as described below. If the Department does not approve
proposed Community Environmental Project within ninety (90) days of execution of
this Consent Order and Agreement, then PWSA shall pay the unpaid portion of the civil penalty
arnOunt pursuant to Paragraph 4.21., above, within one hundred twenty (120) days of execution of
this Consent Order and Agreement.

0. Within sixty (60) days of execution of this Consent Order and Agreement,
PWSA may submit a detailed proposal for a Community Environmental Project that will result in
the distribution, through a suitable third party administrator, of grant money or low?interest loan
money to low income homeowners in the PWSA service system to assist these homeowners in
their replacement of privately owned lead service lines on their property. No funds utilized
under the Community Environmental Project shall be expended for administrative or oversight
costs, nor used to fulfill any activity required of PWSA under law. Any funds that have not been
utilized to ful?ll the purpose of the approved Community Environmental Project within three (3)

years from the execution of this Consent Order and Agreement shall be paid to the Department

17

 

as civil penalties pursuant to Paragraph within sixty (60) days of termination of that time
period.

d. PWSA shall not deduct any costs incurred in connection with or in any
way associated with the Community Environmental Project described in Paragraph 4 for any tax
purpose or otherwise obtain favorable tax treatment for those costs. If requested to do so by the
Department, PWSA shall submit an af?davit of the of?cial responsible for the ?nancial affairs of
PWSA certifying that PWSA has not deducted or otherwise obtained favorable tax treatment of
any of the costs of the Community Environmental Project.

e. PWSA agrees that whenever it publicizes, in any way, the Community
Environmental Project, it will state that the Project was undertaken as part of the settlement of an
enforcement action with the Department.

f. PWSA shall submit to the Department an af?davit of the of?cial
responsible for overseeing the Project every ninety (90) days, beginning upon the approval by
the Department of proposed Community Environmental Project. The affidavit shall
describe the dates and amounts of all funds allocated and distributed pursuant to the approved
Project, including but not limited to the locations and funding amounts per location of funds
used. PWSA shall provide the Department with any other documentation and information
requested by the Department.

5. Stipulated Civil Penalties.

a. In the event PWSA fails to comply in a timely manner with the provisions
of Paragraph 3 of this Consent Order and Agreement, PWSA shall be in violation of this Consent
Order and Agreement and, in addition to other applicable remedies, shall pay a civil penalty in

the amount determined under the following schedule:

18

 

i. For any violation of Paragraph 3a., $500 per violation per
residence;

ii. For any violation of Paragraphs 3.b. or 3.0., $250 per day for each
violation;

For any violation of Paragraphs 3.d. or $200 per month for
each line not replaced;

iv. For any violation of Paragraph the Department reserves the
right to determine and assess appropriate civil penalties based on the
circumstances of the violation and the factors enumerated in Section 13(g) of the
Safe Drinking Water Act;

V. For any violation of Paragraph $250 per day for each
violation.

b. Stipulated civil penalty payments shall be payable on or before
the ?fteenth day of each succeeding month, and shall be forwarded as described in Paragraph 4
(Civil Penalty Settlement), above.

c. Any payment under this paragraph shall neither waive duty to
meet its obligations under this Consent Order and Agreement nor preclude the Department from
commencing an action to compel compliance with the terms and conditions of this
Consent Order and Agreement. The payment resolves only liability for civil penalties
arising from the violation of this Consent Order and Agreement for which the payment is made.

d. Stipulated civil penalties shall be due automatically and without notice.

6. Remedies for Failure to Complete Community Environmental Proiect. In the

event that PWSA fails to complete its obligations under the approved Community Environmental

19

 

Project referred to in Paragraph 4, PWSA shall pay an additional stipulated penalty in the amount
of $5,000. In this event, or if operation of the System terminates or is transferred to
another entity during the term of the Community Environmental Project, PWSA shall within
?fteen (15) days of receipt of written noti?cation from the Department, pay all funds that have
not been utilized to ful?ll the purpose of the approved Community Environmental Project to the
Department as civil penalties pursuant to Paragraph 4.a.

7. Additional Remedies.

 

a. In the event PWSA fails to comply with any provision of this Consent
Order and Agreement, the Department may, in addition to the remedies prescribed herein, pursue
any remedy available for a violation of an order of the Department, including an action to
enforce this Consent Order and Agreement.

b. The remedies provided by this paragraph and Paragraph 5 (Stipulated
Civil Penalties) are cumulative and the exercise of one does not preclude the exercise of any
other. The failure of the Department to pursue any remedy shall not be deemed to be a waiver of
that remedy. The payment of a stipulated civil penalty, however, shall preclude any further
assessment of civil penalties for the violation for which the stipulated penalty is paid.

8. Reservation of Rights. The Department reserves the right to require additional

 

measures to achieve compliance with applicable law. PWSA reserves the right to challenge any
action which the Department may take to require those measures.

9. Liability of PWSA. PWSA shall be liable for any violations of the Consent Order
and Agreement, including those caused by, contributed to, or allowed by its officers, agents,

employees, or contractors. Except as provided in Paragraph 10.0., PWSA also shall be liable for

20

 

any Violation of this Consent Order and Agreement caused by, contributed to, or allowed by its
successors and assigns.

10. Transfer of Site.

a. The duties and obligations under this Consent Order and Agreement shall
not be modi?ed, diminished, terminated or otherwise altered by the transfer of any legal or
equitable interest in the Water System or any part thereof.

b. if PWSA intends to transfer any legal or equitable interest in the Water
System which is affected by this Consent Order and Agreement, PWSA shall serve a copy of this
Consent Order and Agreement upon the prospective transferee of the legal and equitable interest
at least thirty (30) days prior to the contemplated transfer and shall simultaneously inform the
Southwest Regional Office of the Department of such intent.

c. The Department in its sole discretion may agree to modify or terminate
duties and obligations under this Consent Order and Agreement upon transfer of the
PWSA System or any part thereof. PWSA waives any right that it may have to challenge the
Department?s decision in this regard.

ll. Department Consent to Transfer. Assignment or Termination of Lease. During
the term of this Consent Order and Agreement, PWSA shall not approve or consent to the
transfer, assignment or termination of its lease and operation of the System unless the intended
new owner and/or operator of the water system ?rst enters into a consent order and agreement
with the Department in which it obligates itself to timely complete all of obligations that

are required under this Consent Order and Agreement.

21

 

12. Correspondence with Department. All correspondence with the Department
concerning this Consent Order and Agreement shall be addressed to:

Renee Diehl, Operations Section Chief

Department of Environmental Protection

Southwest Regional Of?ce

400 Waterfront Drive

Pittsburgh, 15222-4745

Telephone: 412.442.4210 Facsimile: 412.442.4242

13. Correspondence with PWSA. All correspondence with PWSA concerning this

 

Consent Order and Agreement shall be addressed to:

Robert Weimar, Interim Executive Director

Pittsburgh Water and Sewer Authority

Penn Liberty Plaza 1

1200 Penn Avenue

Pittsburgh, PA 15222

Telephone: 412?255-2579
PWSA shall notify the Department whenever there is a change in the contact person?s name,
title, or address. Service of any notice or any legal process for any purpose under this Consent
Order and Agreement, including its enforcement, may be made by mailing a copy by first class
mail to the above address.

14. Force Majeure.

a. In the event that PWSA is prevented from complying in a timely manner
with any time limit imposed in this Consent Order and Agreement solely because of a strike, ?re,
?ood, act of God, or other circumstance beyond the Authority?s control and which PWSA, by the
exercise of all reasonable diligence, is unable to prevent, then PWSA may petition the

Department for an extension of time. An increase in the cost of performing the obligations set

forth in this Consent Order and Agreement shall not constitute circumstances beyond 

22

 

control. economic inability to comply with any of the obligations of this Consent Order
and Agreement shall not be grounds for any extension of time.

b. PWSA shall only be entitled to the bene?ts of this paragraph if PWSA
notifies the Department within five (5) working days by telephone and within ten (10) working
days in writing of the date it becomes aware or reasonably should have become aware of the
event impeding performance. The written submission shall include all necessary documentation,
as well as a notarized affidavit from an authorized individual specifying the reasons for the
delay, the expected duration of the delay, and the efforts which have been made and are being
made by PWSA to mitigate the effects of the event and to minimize the length of the delay. The
initial written submission may be supplemented within ten (10) working days of its submission.
failure to comply with the requirements of this paragraph speci?cally and in a timely
fashion shall render this paragraph null and of no effect as to the particular incident involved.

0. The Department will decide whether to grant all or part of the extension
requested on the basis of all documentation submitted by PWSA and other information available
to the Department. In any subsequent litigation, PWSA shall have the burden of proving that the
Department?s refusal to grant the requested extension was an abuse of discretion based upon the
information then available to it.

15. Severability. The paragraphs of this Consent Order and Agreement shall be
severable and should any part hereof be declared invalid or unenforceable, the remainder shall
continue in full force and effect between the parties.

16. Entire Agreement. This Consent Order and Agreement shall constitute the entire

integrated agreement of the parties. No prior or contemporaneous communications or prior

23

 

drafts shall be relevant or admissible for purposes of determining the meaning or extent of any
provisions herein in any litigation or any other proceeding.

17. Attorney Fees. The parties shall bear their respective attorney fees, expenses and
other costs in the prosecution or defense of this matter or any related matters, arising prior to
execution of this Consent Order and Agreement.

18. Modi?cations. No changes, additions, modifications, or amendments of this
Consent Order and Agreement shall be effective unless they are set out in writing and signed by
the parties hereto.

19. Lles. A title used at the beginning of any paragraph of this Consent Order and
Agreement may be used to aid in the construction of that paragraph, but shall not be treated as
controlling.

20. Decisions Under Consent Order. Any decision which the Department makes

 

under the provisions of this Consent Order and Agreement, including a notice that stipulated
civil penalties are due, is intended to be neither a ?nal action under 25 Pa. Code 1021.2, nor an
adjudication under 2 Pa. C.S. 101. Any objection which PWSA may have to the decision will
be preserved until the Department enforces this Consent Order and Agreement.
21. Dispute Resolution.

a. PWSA may initiate dispute resolution under this paragraph, in response to
any decision required of the Department under Paragraphs or 3.c.

b. To initiate dispute resolution, PWSA shall provide written notice to the
Department Within ten (10) days of the decision in dispute. PWSA shall have an additional ten

days to provide the Department with a written list of objections to the decision in dispute, the

24

 

relevant facts, analysis and opinions and other supporting data Statement of Position"). The
Department shall have twenty (20) days to provide its Statement of Position.

0. Within the twenty (20) day period following receipt of the Department?s
Statement of Position, the Safe Drinking Water Program Manager and representative
shall confer in an attempt to resolve the dispute. In the event the parties are unable to resolve the
dispute within this period, the Statements of Position shall be provided to the Department?s
Southwest Regional Director to issue a ?nal decision resolving the dispute.

d. During the pendency of the dispute resolution procedures set forth in
subparagraphs b. and any obligation to be performed under this Consent Order and
Agreement which is the subject of such dispute and any associated activities whose performance
is directly dependent upon the resolution of the dispute shall be postponed for a period of time
not to exceed the actual time taken to resolve the dispute pursuant to subparagraphs b. and c. or
as otherwise agreed by the parties. All other obligations and activities shall be completed in
accordance with the terms of this Consent Order and Agreement.

c. Any time period for dispute resolution set forth herein may be extended by
written agreement of the parties.

22. Termination. The obligations of this Consent Order and Agreement shall
terminate when the Department determines in writing that PWSA has complied with the
requirements of Paragraphs 3.a. 3.e.ii., 4, 5, and 6, and has met the lead action level
during two consecutive 6?month monitoring periods.

23. Resolution. Attached hereto as Appendix A is a resolution of the Board of PWSA

authorizing its signatories below to enter into this Consent Order and Agreement on its behalf.

25

 

IN WITNESS WHEREOF, the parties hereto have caused this Consent Order and

Agreement to be executed by their duly authorized representatives. The undersigned

representatives of PWSA certify under penalty of law, as provided by 18 Pa. C.S. 4904, that

they are authorized to execute this Consent Order and Agreement on behalf of that

PWSA consents to the entry of this Consent Order and Agreement as a ?nal ORDER of the

Department; and that PWSA hereby knowingly waives its right to appeal this Consent Order and

Agreement and to challenge its content or validity, which rights may be available under Section

4 of the Environmental Hearing Board Act, Act ofJuly 13, 1988, P.L. 530, 35 PS. 7514; the

Administrative Agency Law, 2 Pa. C.S. 103(a) and Chapters 5A and or any other

provisions of law. Signature by attorney certi?es only that the agreement has been

signed a?er consulting with counsel.

FOR PITTSBURGH WATER AND
SEWER AUTHORITY:



Robert Weimar
Interim Executive Director
Pittsburgh Water and Sewer Authority

gal/7?7 c, 
Davyid Ries
Attorney for Pittsburgh Water
and Sewer Authority

 

26

FOR THE COMMONWEALTH OF
DEPARTMENT OF
ENVIRONIVIENTAL PROTECTION:

?agsm

 

Alan Eichler
Environmental Program Manager
Bureau of Safe Drinking Water

?ax/0AM

 

H. Herman
Regional Counsel

Gail Guenther
Assistant Counsel
Southwest Of?ce of Chief Counsel

RESOLUTION NO. 222 OF 2017

THE PITTSBURGH WATER AND SEWER AUTHORITY
Allegheny County, 

The undersigned, an authorized representative of The Pittsburgh Water and
Sewer Authority, hereby certi?es that at a meeting held on the 17th day of
November, 2017, after due notice, at which a quorum was present, the ?Authority

Board? unanimously adopted the following Resolution:

RESOLVED, that The Pittsburgh Water and Sewer Authority (the
?Governing Body?) shall be, and the same hereby is authorized to
execute and enter into the Consent Order and Agreement with the
Department of Environmental Protection.
Appropriate of?cers of the Governing Body are hereby authorized
to execute all certi?cations and documentation required in
connection with the Amendment.

I hereby certify that the above Resolution is in full force and effect as of the

17th day of November, 2017.

WITNESS:

i/J/ iiwi 474/ 

Elk/?4, 
Bebbie Lestitian
Chair, PWSA Board

 

 

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