Everything you need to know about the criminal case against the PWSA

What are the facts? What are the charges? Is this a “warning shot across the bow”?

Pennsylvania Attorney General Josh Shapiro is pictured.

Pennsylvania Attorney General Josh Shapiro is pictured.

FLICKR / JOSH SHAPIRO
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Pennsylvania’s top cop has charged the Pittsburgh Water and Sewer Authority with 161 criminal counts relating to PWSA’s handling of a lead water crisis and lead remediation efforts.

The charges allege violations of the state’s Safe Drinking Water Act and were filed by Pennsylvania Attorney General Josh Shapiro’s office last week.

It’s certainly unusual for a utility to be criminally charged, but it’s not unheard of. In California, the state’s largest utility, PG&E, was convicted on felony counts related to a deadly pipeline explosion in 2010 that saw the company fined $3 million and its employees ordered to perform thousands of hours of community service. The company could also face charges of murder and manslaughter related to last year’s deadly wildfires in California.

Shapiro’s office could not recall a prior instance of a utility, public or otherwise, being criminally charged in Pennsylvania but says the case against PWSA follows a “rigorous exam of the facts.”

But what are those facts? What do the charges mean? What are the potential punishments? And is this an attempt by law enforcement officials, in a state plagued by water quality issues, to prove they’re finally taking it seriously?

We attempt to answer these questions and more here.

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What are the charges?

There are 161 counts in total, all third-degree misdemeanor violations of Pennsylvania’s Safe Drinking Water Act.

In a press conference on Friday, Shapiro said that under the law, PWSA was required to take three steps to address a lead level above 15 parts per billion that was found in Pittsburgh’s water system in 2016. Fifteen parts per billion is the federal threshold for intervention.

The first step involved replacing 7 percent of lead service lines by June of 2017.

The second mandated that consumers be notified at least 45 days before line replacements due to an associated and temporary rise in the risk of lead exposure. And the third required the collection of samples from replaced lines to analyze lead content within 72 hours of the new pipes being installed.

Shapiro said PWSA “admitted its failure to provide many residents with advance notice of the lines’ replacement” and “acknowledged it had not collected water samples from those same residences with new pipes within 72 hours of installation.”

On the latter claim, PWSA Executive Director Robert Weimar told The Incline by phone that it was customers who collected the samples, adding, “We can give people sample bottles but we can’t mandate they take the samples. The fact that folks didn’t do something within 72 hours may be an issue, but it’s hard for us to be held responsible.”

The authority also fell short of the mandated 7 percent lead line replacement goal, hitting just 415 service lines of the 1,314 needed by June of 2017. (Line replacements continued after that and continue today.)

But the charges filed by the AG’s office last week relate specifically to PWSA’s alleged failure to properly notify residents of service line replacements and to collect water samples within three days of those replacements being completed.

This as the Pennsylvania DEP already fined the PWSA $2.4 million for, among other things, its failure to meet the June 2017 deadline for lead line replacements.

How did the charges come about?

After that DEP fine and a related consent decree, Shapiro says representatives of the DEP referred the case to him for a criminal investigation.

“The referral was narrowly tailored to review PWSA’s failure to notify residents and its failure to sample water after replacement lines were installed,” reads a press release from Shapiro’s office.

After receiving the referral, Shapiro’s office launched an investigation that ultimately produced the 161 charges filed against the authority last week.

The DEP declined comment for this article when reached by The Incline.

Why 161 counts?

The 161 counts correspond to 161 households in Pittsburgh where Shapiro says the authority failed to notify residents of its water line replacements and failed to conduct sampling.

Weimar said these figures were self-reported to the DEP as part of PWSA’s consent decree with the environmental agency.

The consent decree says the PWSA failed to provide notice of service line replacements to 60 homes between 2016 and 2017 and failed to collect a sample of water after replacements had been completed at 149 homes in that same time period. Some homes were counted in both categories.

Health officials insist there is no safe level of lead, with children younger than 6 especially vulnerable to lead poisoning, which can severely affect mental and physical development, according to the Mayo Clinic.

Video: Water Service Line Replacement: What to Expect

How unusual are these charges?

Again, it’s unclear exactly how rare this is in Pennsylvania. But Lara Fowler, a senior lecturer in law at Penn State and assistant director of the university’s Institutes of Energy and the Environment, said attempts to hold utilities accountable are becoming more common nationwide.

“I think it seems to be getting more common because people are super sensitive about the lead question,” Fowler said, pointing to the lead water crisis in Flint, Mich., and one building right now in Newark, N.J.

Fowler also pointed to water quality issues in communities across Pennsylvania, not just Pittsburgh. A 2016 USA Today report labeled Pennsylvania the nation’s leader in schools and daycares with water containing high levels of lead. And Fowler said charges like those filed against the PWSA may be part of an official effort to send a signal that the issue won’t be overlooked and will be aggressively approached if institutional or personal failings are found to have played a role.

“It’s a warning shot across the bow,” Fowler said of the charges against PWSA. “Sometimes if you can make an example of a community or an entity you can get others to take notice.”

Why make this a criminal case instead of a civil one?

The DEP’s own consent decree with PWSA says the authority could face civil penalties for the same violations of the Safe Drinking Water Act used to justify Shapiro’s filing of 161 criminal counts. The consent decree makes no mention of criminal penalties.

But the Office of the Attorney General of Pennsylvania said the law clearly allows for criminal penalties to be pursued and criminal charges to be levied in cases like this.

Shapiro said the PWSA knew it was required to notify residents before lead service lines were replaced and that it knew it was required to conduct sampling once those replacements had occurred. “Yet it failed to do both,” Shapiro added, “and that makes PWSA criminally liable.”

Will anyone face jail time?  

No. It’s important to note that the charges here were filed against the PWSA as an entity, not the individuals working for or overseeing the authority.

It was a different story in Flint, Mich., where a now infamous lead crisis saw 15 individuals, including city and state officials, charged by that state’s attorney general.

Pennsylvania’s Safe Drinking Water Act itself allows for charges to be brought against an entity or individuals.

In Pittsburgh, Shapiro said his office found no evidence that individuals within the PWSA intended to harm consumers but rather that the organization as a whole demonstrated “ineptness,” “negligence” and “a lack of training and experience.”

Shapiro described it as an organizational failure within the PWSA, which has been plagued by accusations of mismanagement and high turnover in recent years. A 2017 report by Pennsylvania Auditor General Eugene DePasquale cited “deteriorating infrastructure and financial distress” at PWSA that had been caused by “years of mismanagement, lack of leadership, and impaired decision making due, in part, to influence by Pittsburgh city officials.”

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What are the potential penalties?

While each charge carries a maximum penalty of a year in prison, obviously the PWSA as an entity cannot be jailed. And officials say no one will be as a result of these charges.

Instead, the PWSA is facing fines totaling $201,250 to $2 million or $1,250 to $12,500 per count.

And that raises questions of its own for consumers.

Where will that money come from?  

PWSA officials said a fine would ultimately come from sewer and water fees paid by ratepayers. Weimar said rates paid by consumers are the authority’s only source of funding.

But PWSA officials stopped short of saying that a fine in this case would cause them to raise rates further. This with a double-digit rate hike already being pursued.

Asked about the costs of this legal case being passed on to consumers, Shapiro on Friday said he’s confident PWSA can absorb them.

Weimar didn’t disagree but said it’s still the diversion of money that could otherwise have been put into the system and much-needed improvements.

“I’m not sure where he thinks or how he thinks that money becomes available,” Weimar added of Shapiro.

Where will the case be heard?

In the Allegheny County court system. Proceedings have yet to be scheduled.

What does PWSA have to say about all of this?

In a written statement, Weimar said the authority was “deeply disappointed” with Shapiro’s decision, pointing out that the PWSA self-reported the violations to the DEP, agreed to a civil penalty of $2.4 million, and has since established “one of the most comprehensive lead service line replacement programs in the nation.”

Weimar added, “We will defend these charges.”