What happens when state law keeps a city from ensuring clean water for its citizens? Pittsburgh, Pennsylvania is dealing with that exact scenario as Mayor Bill Peduto is working with the city council to bypass the state Municipal Authorities Act and enable the Pittsburgh Water and Sewer Authority (PWSA) to replace lead pipes on private land.
Last year, the Pennsylvania Department of Environmental Protection (DEP) issued an administrative order after PWSA changed their corrosion control method without approval. Administrative Order, Commonwealth of Pennsylvania, Department of Environmental Protection, Violations of the Pennsylvania Safe Drinking Water Act and Regulations (Apr. 25, 2016). This order enabled PWSA to replace 7% of lead contaminated public water lines each month. After just one month and 49 partial pipe replacements, Pittsburgh has halted that program in search of more permanent and effective measures after four out of eight locations tested still had lead levels above the EPA standard of fifteen parts per billion and the partial pipe replacements were found to agitate the lead and cause it to break away and leak into the water.
The PWSA is responsible for managing public municipal water and sewer systems within Pittsburgh. Until now, it was unclear whether the PWSA could replace lead pipes located on private property. Mayor Peduto thinks that his plan will work, a legal maneuver which has the PWSA working with the city government and public works, who will then act as a go-between with individuals. The deal will allow those with lead pipes on both the public and private ends to have their water lines replaced by the PWSA.
Pittsburgh argues that replacing lead lines on private property is within the scope of their power, pursuant to the 1974 Home Rule Charter. The Home Rule Charter allows the city to perform duties that are not expressly forbidden by state law. See Pittsburgh, Pennsylvania Code of Ordinances § 101. Councilman Corey O’Connor is skeptical however, as the city has been stating for months that they cannot legally change the pipes on private land. What has changed? Kevin Acklin, the mayor’s chief of staff, says the Municipal Authorities Act does not expressly forbid these actions by the city of Pittsburgh, who will be the liaison between the private citizens and PWSA. The city will be the contracting party for all of the PWSA work, and will create temporary construction easements, keeping the work within the public parameters.
Most critiques of the proposal stem back to the single bit of case law surrounding a clause in the Municipal Authorities Act, § 5607(b)(2), which states the PWSA cannot “unnecessarily burden or interfere with existing business.” 53 Pa. Cons. Stat. Ann. § 5607(b)(2). This clause led to a lawsuit in 2011 when PWSA had instituted a pipe insurance program for when customers sewer or water lines broke. The program’s low cost of only five dollars a month, and its opt-out nature, meant that most PWSA customers were enrolled. Plumbers were hit hard, their businesses undercut as PWSA was now fixing both the public and private pipe issues. Dominion Prods. & Servs., Inc. v. Pittsburgh Water & Sewer Auth., 44 A.3d 697 (Pa. Commw. Ct. 2011). The court agreed that this practice impeded on business, arguing that if the city performed the work, no one would be likely to call a plumber. Those involved in the original lawsuit believe that this case is no different, but some state legislators are calling the law unclear and stating that it really doesn’t make any mention in the area of public to private pipe replacement. Using a single piece of case law to decide whether to work in the public interest of the citizens of Pittsburgh is also contentious.
The City Council will review the resolution this week. City of Pittsburgh Bill No: 2017-1613. Their conversation will center around whether this bill undercuts business as prohibited in Dominion. The City Council will also need to address whether residents who have paid out-of-pocket for the replacement of lead pipes on private property would be eligible for reimbursement. The City of Pittsburgh has not released a cost estimate, but Pennsylvania American Water, the private water provider for Pittsburgh residents who are not a part of the PWSA system, has already applied to the Public Utility Commission to replace the 18,000 full lead lines in their system. Estimating the cost at $3,500 per replacement, this $63 million project would be paid for by $0.11 monthly surcharges on water bills.
A growing number of cities are becoming aware of lead pipes in the wake of Flint, Michigan’s water crisis. In older neighborhoods and areas where the residents might not be able to replace the water lines themselves, measures like these are imperative to ensure clean water. The vast differences between cities that control their own municipalities and cities like Pittsburgh mean that there is no one size fits all formula, but if Mayor Peduto’s plan is a success, hopefully other cities in Pennsylvania can begin to follow Pittsburgh’s lead.
J. Dale Shoemaker, “A judge, a law and a lead crisis: Inside the legal battle over removing Pittsburgh’s lead pipes,” PublicSource (June 19, 2017).