The D.C. Water and Sewer Authority violated federal law by failing to properly notify the public of unsafe levels of lead in its drinking water and withholding key test results that would have revealed Washington's lead problem earlier, the U.S. Environmental Protection Agency said yesterday.
After a four-month investigation, the agency concluded that WASA violated the Safe Drinking Water Act in six categories and had detected high levels of lead in early 2001, a year before the utility notified the EPA that Washington's drinking water had unsafe lead levels.
"This was a serious breach of the protection under the Lead and Copper Rule," said Jon Capacasa, water chief for the EPA regional office that oversees the District. "It would have triggered the action level a year earlier and started the lead line replacement and other remedies a year earlier. . . . We are outraged that the data was not reported."
The EPA laid out its findings of violations in an administrative order, a compromise agreement that WASA signed and that carries no fines or sanctions. Under the order, WASA promised to remedy the lead corrosion problem with numerous actions, most of which are required by law or had been previously proposed or begun by WASA. If WASA does not fulfill the promises, the EPA can seek penalties in court.
The EPA could have sought to fine WASA as much as $32,500 a day for each violation. Two elected officials yesterday called the order a toothless substitute. Washington's pervasive lead problem prompted angry demands from residents and elected officials and spurred congressional hearings and five investigations.
WASA officials did not admit or deny the violations in the agreement. General Manager Jerry N. Johnson instead pledged that WASA would do more than federal law required to address residents' concerns and to restore confidence in the utility.
"This order is basic common sense," Johnson said. "It's a way to move forward. We need to stop looking in the rearview mirror of who knew what when and start to focus on serving the residents of the District."
WASA first began finding high lead readings in water samples taken from homes in 2000 and officially exceeded the level the federal government considers safe in 2002. It found thousands of homes with elevated levels of lead in 2003. But most Washingtonians were unaware of the problem. WASA sent customers limited, vague information about lead levels and failed to notify many homeowners whose water had high lead results.
The order ends months of legal finger-pointing between WASA and the EPA, its primary regulator, over which agency held more responsibility for the lead problem, which EPA officials described to Congress in March as the worst seen by regulators. The EPA notified WASA that month that it had found evidence of six violations in a cursory review, then ordered the authority to turn over thousands of pages of records and testing results dating back to 1994.
EPA officials said their most troubling discovery was that WASA officials withheld six crucial test results from customers' homes showing elevated lead levels in late 2000 and early 2001. If reported as legally required, EPA officials said, the results would have put Washington over the federal action level, forcing WASA to address the lead problem.
The EPA also found that from 1998 to 2003, WASA was deficient by failing to conduct enough tests, to document why it selected different homes to test from year to year and to explain how its testing sites met federal standards.
WASA asserted that its water quality official, Seema Bhat, withheld test results only after consulting with her primary regulatory contact at EPA's Region III office, George Rizzo.
WASA fired Bhat in 2003, saying she failed to keep her bosses informed. She has sued WASA, arguing that she was fired because she repeatedly alerted EPA officials to rising lead levels in District water.
Bryan Schwartz, Bhat's attorney, said he found the violations the EPA cited puzzling. Bhat's suit has turned up extensive evidence that Rizzo regularly gave her guidance about and approved her sampling decisions.
"If they had a problem with the way she was conducting sampling, then what they're really saying they had a problem with [was] the way they were guiding her," Schwartz said.
Local officials and citizens debated whether the EPA had treated WASA's violations with enough severity or shouldered enough blame. Some believed the EPA should have issued fines or a more powerful emergency order to protect the public health.
"There's no question that EPA should have issued some fines and instilled some accountability," said D.C. Council member Adrian M. Fenty (D-Ward 4). "No one has been fired. No one has been penalized. . . . It gives the impression to the citizenry that you can make mistakes so grand they affect people's health and there are no consequences. "
Johnson said he plans to go far beyond the order, speeding up replacement of lines, helping needy residents replace their portion of the line and hiring a lead coordinator.
D.C. Council member Carol Schwartz (R-At Large) accused EPA officials yesterday at a council hearing of focusing on WASA's violations and pretending to be tough with an order demanding remedies, most of which have already begun.
"What about your own dereliction of duty?" she said. " What corrective actions are you going to take?"
At the same hearing, officials with the Washington Aqueduct, which treats and supplies water for WASA, reported that treating a portion of the system with phosphate, which coats the pipes and reduces corrosion, is going well, with no reports of reddish water. The aqueduct hopes to start adding phosphates to the entire system Aug. 9.
Staff writers David Nakamura, D'Vera Cohn and Jo Becker contributed to this report.