Proposed EDNY Consent Decree Mandates Upgrades to Hillview Reservoir in Yonkers Over the Next Thirty Years

The Eastern District of New York filed a Safe Drinking Water Act complaint this week against the City of New York and the NYC Department of Environmental Protection, seeking to require the City to cover the Hillview Reservoir in Yonkers, part of the City’s public water system. At the same time, the EDNY also lodged a proposed Consent Decree and Judgment with the Court that would require the City to address the cover and upgrades at the reservoir over the next thirty years, at a cost of over $2 billion.

The Hillview Reservior is an open water storage facility that distributes water to City residents. The water entering the reservoir receives chlorine and ultraviolet treatment before entering the reservoir, but the finished water in the reservoir is subject to recontamination before it continues on its path.  The complaint alleges that public health would be threatened if the Hillview Reservoir water were recontaminated, because sufficient microbial treatment is not available downstream.

In 2006, EPA promulgated the LT2 Rule, which addressed the risks in uncovered finished water storage facilities by requiring public water discharge systems to cover the facilities or provide specified treatment of the discharge. EPA’s goal was to protect the finished water from being contaminated by birds, animals and other sources.

The City had already entered into an Administrative Order with the NYS Department of Health in 1996, under state law, to cover the reservoir, but the City did not meet the performance dates. In May 2010, the City agreed with EPA to an Administrative Order on Consent to cover the reservoir. Again, the City failed to meet the performance deadlines.

The complaint asserts claims for violation of the LT2 Rule and the EPA Administrative Order on Consent, and asks the Court to enjoin future violations, order the City to complete construction of a Hillview Reservoir cover, and assess a civil money penalty.

The proposed Consent Decree requires the City to cover the reservoir, and also to construct two other projects, summarized in an EDNY press release. The Kensico Eastview Connection will be a new underground aqueduct, expected to cost $1 billion and be completed by 2035. The Hillview Reservoir Improvements include extensive repairs to the Hillview Reservoir, and are estimated to cost $375 million by their completion in 2033. The cover of the reservoir’s East Basin is expected to be completed in 2042, with the West Basin cover being completed in 2049. The City’s cost estimate for the cover in 2009 was $1.6 billion, although the cost under the Consent Decree may be lower depending on the type of cover selected. In the interim, the City will agree to enhanced wildlife management, additional sampling, and a response procedure. The City will also pay a $1 million penalty to the United States, pay $50,000 to New York State, and implement a $200,000 Water Quality Benefit Project.

The EDNY will publish a notice of lodging of the Consent Decree in the Federal Register, which will solicit public comment for thirty days. After the public comment period closes, the EDNY will evaluate comments and advise the Court whether the Consent Decree should be entered. New York State has filed an unopposed motion to intervene in the action.