Sewage Failure in Blackout Puts City Under Court's Thumb

New York Times
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February 8, 2006

Sewage Failure in Blackout Puts City Under Court's Thumb
By ANTHONY DePALMA

New York City's Department of Environmental Protection admitted yesterday that its failure to maintain and repair backup generators at several sewage treatment plants violated environmental laws and caused the illegal discharge of 30 million gallons of untreated human waste into the East River during the 2003 blackout.

As a result, a federal judge ordered the agency to submit to court oversight for at least three years as part of a probation sentence, under which the department or its employees cannot violate federal, state or local laws.

This is the second time in five years that the department has been put under court supervision and on probation for violating federal environmental laws.

Michael J. Garcia, the United States attorney whose office has been investigating the department for more than five years, said the agency had failed to meet a basic responsibility of ensuring that the pumps were in good working order so they could be used in an emergency like the blackout, which knocked out power to 50 million people in the Northeastern United States.

"The New York City Department of Environmental Protection is entrusted with performing critical functions for all New Yorkers, including the provision of drinking water and the prevention of water pollution," Mr. Garcia said in a statement. "Today's proceeding is an important milestone in achieving the goal of this federal prosecution: to ensure that the D.E.P. complies with all applicable environmental and worker safety laws while carrying out its responsibilities."

The legal penalty is the latest embarrassment for one of the city's largest bureaucracies, an agency of more than 6,000 employees that oversees an enormous system of aqueducts and reservoirs from Staten Island to the Catskill Mountains.

The department was put on probation and forced to submit to a court-mandated monitor in 2001 after a federal investigation found a renegade attitude among some workers in the upstate watershed who ignored federal environmental laws or treated them as mere nuisances.

Among other things, the prosecutors found that the department had allowed mercury to enter the vast reservoirs that provide the city with more than a billion gallons of potable water a day. It was also using equipment that was contaminated with PCB's near the water supply.

Emily Lloyd, the department's commissioner, said she would have preferred to resolve the sewage violation in some other way other than back in the courtroom, but she said she understood the court's position.

"The fact of the matter is that we were already under probation," she said. "The expectation is that you don't make mistakes."

The department's past problems have played out largely out of public view. Nearly 900 of its employees work in the 2,000-square-mile upstate watershed, as far as 125 miles from the city. Most do not report to a central headquarters, and communication in the region is spotty.

Since he began his oversight in 2001, the monitor, A. Patrick Nucciarone, has documented how the department, which was an independent authority with sweeping powers until 1978, had developed its own culture, one ruled by engineers who neither lived nor worked in New York City, and who treated some federal regulations as mere irritants.

Some workers at the city's reservoirs upstate were not treating potential pollutants as serious hazards because they believed that the vast quantities of water would dilute any threat so much that that it could pose no danger.

Mr. Nucciarone has told the court that despite occasional violations � as in the case of an employee who was convicted last year of falsifying water quality records � the department, under Ms. Lloyd and her predecessor, Christopher Ward, has made substantial improvements in management and communications, clearing up violations and imposing new standards and regulations.

But problems remain. In yesterday's proceeding in United States District Court in White Plains, department officials admitted that backup power systems in two of the city's 14 sewage treatment plants that should have kicked in immediately after the lights went out in August 2003 did not function properly.

Without electricity to run the pumps, thousands of gallons of wastewater were dumped into New York waterways, forcing the closing of city beaches and increasing the amount of fecal coliform, or human waste, in the water to unsafe levels.

Officials said employees knew that the diesel-powered generators at the wastewater treatment plant in Red Hook, Brooklyn, had not worked for two years. There also were unaddressed problems at the North River plant on the Hudson River.

Workers tried repeatedly to have the motors repaired, or to hire contractors to fix them, but never completed the job. On the day the blackout began, the critical machines were inoperable.

The malfunctioning generators and the resultant discharge of sewage are violations of federal and state laws. But the department will not be prosecuted for those violations. Instead, the department admitted to violating the terms of the court ruling from 2001.

Department officials questioned whether the United States attorney's office had unfairly singled out New York, since the sewage systems in many other cities also failed during the blackout.

For example, Cleveland discharged at least 60 million gallons of raw sewage into the Cuyahoga River, Lake Erie, and other bodies of water near the city because it had no backup power during the blackout. And Detroit was under an advisory to boil water for a week after the city's water treatment plants lost power.

Neither city has faced federal prosecution as a result of those failures, city officials said.

"We wish that the U.S. attorney's office had recognized that there was a massive blackout and that the D.E.P.'s conduct didn't warrant a probation violation," said Paul Schectman, the department's lawyer. "But since we were on probation already, and we had failed to comply with the regulations, their heightened scrutiny is understandable."

Judge Charles L. Brieant of the United States District Court in White Plains said yesterday that improvements in the department's upstate operations had been significant.

"We mustn't lose site of the progress that's been made despite this very serious violation," the judge said. He ordered the special monitor's supervision of the watershed to end on schedule in August.

However, the department itself will remain on probation, and the monitor will shift his attention to the Bureau of Wastewater Treatment. The term of probation will be at least three years, but if the situation does not improve sufficiently, it could be extended for up to two years.

The department will also have to develop an aggressive new compliance program that will train its employees to deal with environmental, health and safety regulations to avoid future violations.

Anne C. Ryan, the assistant United States attorney who handled the case, called the treatment plant malfunction "a serious violation" of the department's probation. But she said the extended probation and the new compliance program represented a step toward "reforming the culture and practices of this agency."

While the violations and the extended monitoring probation have damaged the reputation of the department, Commissioner Lloyd said, none of the violations had had a lasting impact on the quality of the water the department provides to the city.

"The quality of the water in the rivers and the harbor has continued to get better, very significantly better over time, and that is a progression that is not questioned, and will only continue," Ms. Lloyd said.