NOTICES
PENNSYLVANIA PUBLIC UTILITY COMISSION
Investigation Into Pennsylvania American Water Company's High Fluoride Concentration Incident and of Existing Notification and Reporting Requirements; Doc. No. I-00050109
[36 Pa.B. 1460] Public Meeting held
March 2, 2006Commissioners Present: Wendell F. Holland, Chairperson, statement follows; James H. Cawley, Vice Chairperson, recusing; Bill Shane; Kim Pizzingrilli; Terrance J. Fitzpatrick
Final Investigation Order and
Release of Staff ReportBy the Commission:
At our December 15, 2005 Public Meeting, the Commission adopted the Joint Motion of Chairman Wendell F. Holland and Commissioner Kim Pizzingrilli that directed the Law Bureau and the Bureau of Fixed Utility Services (FUS) to investigate an incident that occurred at the Pennsylvania American Water Company's (PAWC) Yellow Breeches Water Treatment Plant (YB Plant) in Fairview Township, Cumberland County, that resulted in excessive levels of fluoride in its drinking water.1 This incident affected approximately 34,000 customers of PAWC located in eastern Cumberland County and northern York County. Specifically, the elevated level of fluoride concentration was the result of a chemical spill of approximately 372 gallons of hydroflurosilic acid in the fluoridation process at the plant. The Commission also directed Law Bureau and FUS to review and to evaluate the Commission's existing regulations and to submit a report to the Commission within 60 days of the entry date of the order incorporating the motion.2 That order was entered on December 23, 2005.
The order concluded that it was critically important that the Commission determine: (1) whether all operational aspects of the utility were fully functioning to adequately respond to the situation in a timely manner; (2) whether the public received information in a timely manner; (3) whether adequate supplies of drinking water were provided and/or available in convenient locations; (4) whether the information provided to the public was sufficient to inform consumers of the effects of excessive fluoride; (5) whether the reporting requirements in the Commission's regulations at 52 Pa. Code § 67.1 were properly followed; (6) whether enhancements need to be made to the Commission's reporting requirements; and (7) whether additional steps can be taken by the Commission to assist utilities in responding to future emergency situations, particularly in keeping the public informed and assisting consumers as needed.
The Commission also noted in its order that it was equally important to evaluate not only this incident but to ensure that the regulated utilities are prepared to respond to future incidents. In addition, the Commission noted that as part of the self-certification process in its regulations at 52 Pa. Code §§ 101.1--101.7, utilities are to develop and maintain several types of emergency and security-related plans. Furthermore, the order directed that utilities should also assess whether technological enhancements in communications can be made to keep the public better informed as they respond to the operational issues involved in resolving emergency situations.
Staff Investigation and Findings
Pursuant to the December 23, 2005 order, Commission staff conducted an investigation into the cause of the high fluoride incident, the level of compliance by PAWC with the Public Utility Code and our regulations with regard to safe and reliable water service, and the applicable notification procedures. The investigation also addressed whether these procedures were complied with and whether any improvements in the notification procedures are warranted. As part of its inquiry, Commission staff met with representatives from DEP, the Cumberland County Emergency Management Services, PAWC, and the OCA. Commission staff prepared an investigative report based upon the site visit, meetings with PAWC, and the representatives of the agencies listed above. The Commission wishes to acknowledge that PAWC cooperated fully with its investigation, including making its employees and facilities available and responding fully to all data requests.
A. Operational Response of PAWC
This order will address the seven areas of concern noted in the Commission's December 23, 2005 order. The first area of concern is the operational response of PAWC. In the report, Commission staff noted that PAWC admitted that the fluoride spill was the result of operator error when the Plant Operator No. 1 on duty chose to bypass the manually-operated, spring loaded switch that controls the pumping of fluoride from the storage tank to the two day tanks by inserting a plastic circular union between a pipe and the switch which kept the switch depressed so as to keep the pump continuously pumping fluoride in to the two day tanks. Plant Operator No. 1 used the bypass mechanism at approximately 7:30 A.M. and then left the area with the bypass in place to perform other duties in the plant. Plant Operator No. 1 never disengaged the bypass he created before ending his shift at 8:30 A.M. Plant Operator No. 2, who started his shift at 8:00 A.M., was alerted that the SCADA system was malfunctioning. Strong hydroflurosilic acid fumes kept him from entering the building to turn off the switch. As a result, the pump kept pumping fluoride until approximately 1:30 P.M., when it was deactivated by the Hazardous Material Response team.
At 2:30 P.M., after several water samples had been taken, DEP and PAWC decided to issue a ''DO NOT CONSUME'' advisory to the public. The ''DO NOT CONSUME'' advisory was actually released to the public at approximately 4:20 P.M. after PAWC and DEP officials agreed on the final version of the advisory. Water samples continued to be taken through the evening and into the night for analysis. It was not until between midnight and 8 A.M. the next day that the samples indicated that the fluoride levels had dropped to an acceptable level. At approximately noon on Sunday, December 11th, PAWC lifted the ''DO NOT CONSUME'' advisory.
PAWC notified the Commission of the spill on Sunday, December 11, 2005, at approximately 1:30 P.M. (after the advisory had been lifted) by voice mail to a member of the FUS Water Division and a member of the Bureau of Consumer Services' Hotline. PAWC did not speak with the Commission's designated emergency contact person until Monday, December 12, 2005.
PAWC's own internal investigation found that bypassing this switch was a common occurrence among its operators with some even using a block of wood to create the bypass. PAWC, however, stated that it did not have any prior knowledge that the operators were using any sort of bypass, which it also asserted was against company policy.
PAWC agreed to review the layout of all of its other plants in Pennsylvania to determine if any of them had similar safety issues. After review, PAWC verified to Commission staff that none of its other seven water treatment plants that use bulk storage tanks to store liquid fluoride are similar to the YB Plant in terms of plant layout, containment methods, or in their set up of SCADA monitoring that could lead to a similar fluoride incident such as occurred at the YB Plant.
Additionally, PAWC has taken several steps to ensure that this type of incident is not repeated. PAWC has replaced the switch at the YB Plant with one that is not as susceptible to tampering. PAWC has also installed a probe in the spill containment unit that will set off an alarm when any liquid leaks into the containment unit. Moreover, PAWC has committed to providing operator education and training relating to how to avoid and respond to situations involving chemicals. We recommend that such training emphasize the importance of not bypassing switches or other safety devices controlling chemicals under any circumstances and that such conduct is against company policy. Such improper actions warrant strong disciplinary action, including possible termination of employment.
Lastly, PAWC states that its new water plant, which will replace the YB Plant, will begin operation in the spring of 2006. This plant will be technologically advanced in terms of spill containment and automatic controls. According to PAWC, the new plant's modernized features will further minimize the likelihood of this type of spill occurring in the future.
In the Commission's judgment, PAWC's admission that the operator's action to override the switch causing the spill was a common practice among its operators and that the company only learned of during its own internal investigation raises serious public safety concerns. PAWC and all utilities are reminded that this type of conduct can never be tolerated, and that utilities must take all necessary steps to ensure that a similar lapse in safety procedures does not occur in the future.
On the other hand, we support the remedial steps taken by PAWC in the wake of this incident to minimize the risk of similar operator errors and misconduct from occurring in the future. We believe that what occurred here can happen in other water plants as well, especially older, less technologically advanced plants. We, therefore, direct all water utilities to perform regular self-inspections of their plants to ensure they comply with all state and federal safety regulations. We especially encourage water utilities to review their existing operations and safety features to ensure they have adequate safeguards in place to avoid any chemical spills that can disrupt their operations. In this latter regard, the water utilities should particularly examine whether their plants are susceptible to similar bypass devices being used to pump chemicals into their tanks. If they are, preventive measure such as replacing switches or incorporating alarm systems should be performed immediately.
We agree with the OCA's input that treatment plant operators must have sufficient training and retraining as part of their business practices to avoid the type of situation that occurred at the YB Plant. With this order, all water utilities are hereby put on notice that the failure to identify and correct the types of safety deficiencies identified in this investigation may result in prosecution and the imposition of appropriate sanctions.
B. Timeliness and Adequacy of Public Notice
The second, fourth and sixth area of concern is the timeliness and adequacy of public notice and possible enhancements to the Commission's reporting requirements. A significant aspect of the investigation focused on both the level of sufficiency and timeliness of the ''DO NOT COMSUME'' advisory notice provided by PAWC to the public following the fluoride spill and on whether enhancements are needed to the Commission's reporting/notice requirements. The OCA provided valuable input on each of these reporting/notice issues.
In its comments, the OCA was critical of both the timeliness and adequacy of PAWC's public notice efforts. The OCA states that while PAWC may have met the minimum requirements in its tariff, Rule 14.1,3 and applicable DEP regulations at 25 Pa. Code § 109.408, regarding notice to the public, PAWC did not ''provide actual, timely notice to many of the affected customers.'' OCA Comments at 6. Similarly, on the issue of adequacy of the public notice, the OCA correctly points out that the press release used by PAWC failed: (1) to identify when the fluoride spill entered the drinking water distribution system, 25 Pa. Code § 109.411(a)(2); (2) to include any of the required adverse health effects language, 25 Pa. Code § 109.411(a)(3) & (d)(1) or (d)(2); and (3) to identify the population at risk, including any subpopulations of customers that are particularly vulnerable to the contaminant in their drinking water, 25 Pa. Code § 109.411(a)(4). OCA Comments at 4.
In addition to the notice-deficiency issues identified by the OCA, PAWC also acknowledged, in response to our inquiry, that it did not use its website to notify the public about the incident and its water advisory. In fact, it was not until Monday morning, December 12, 2005, a full two days after the incident, that PAWC first used its website when it announced that the ''DO NOT CONSUME'' advisory had been lifted.
While both DEP and PAWC agree that PAWC complied with the existing notification procedures established in DEP's regulations, we find that the utilized notification procedures adopted by PAWC failed to notify adequately large numbers of consumers in a timely and reasonable manner about the hydroflurosilic acid spill and the ''DO NOT CONSUME'' advisory. For its part, the OCA believes that the public notice issue for service interruptions needs to be addressed in a specific Commission regulation or other directive such as a policy statement.
In evaluating this recommendation, the Commission is cognizant of the detailed public notice requirements already contained in DEP's regulations and further understand that DEP is currently reviewing those regulations for possible amendment. We do not agree that it is necessary to impose an additional layer of public notice regulations on water utilities. At the same time, however, we agree with the OCA's objective that it would be beneficial for the Commission to provide guidance to the industry on the types of notice necessary to meet the reasonable standard imposed on utilities under 66 Pa.C.S. § 1501.
We, therefore, direct the Law Bureau and the Bureau of Fixed Utility Services to prepare a proposed Policy Statement on Public Notice Standards Relating to Unscheduled Water Service Interruptions to be considered at a future public meeting. The objective of this new policy statement will be to provide guidance to the industry regarding the types of public notice that will be deemed acceptable and appropriate in meeting the reasonable standard in section 1501 when there are unscheduled water service interruptions.
The policy statement should suggest actual and timely notice whenever a situation arises where the water is unsafe to drink, taking full advantage of existing technology such as the Reverse 911, e-mail and text message notifications to customers who have elected to receive such notice, and fax/e-mail notification to local radio and television stations, cable systems, newspapers, and other media. OCA Comments at 6-7. Other types of direct/personal notification, such as doorknob flyers, where feasible, should be considered. The use of the affected utility's and the Commission's website should also be considered. This policy statement should also include language that makes it clear that all water utilities must conform to the public notice requirements established by DEP which concern unscheduled service interruptions. After tentative approval at a future public meeting, the policy statement will then be subject to a 30-day public comment period by interested parties before final action is taken to adopt, modify, or reject the final proposal.
C. Adequacy of Alternative Drinking Water Supplies
The third area of concern is the adequateness of alternative drinking water supplies. PAWC provided water buffaloes with potable water at two locations in its service territory after issuing the ''DO NOT CONSUME'' advisory. The OCA's only comment on this issue was that the Commission should encourage water utilities to provide safe drinking water supplies to as many locations as reasonably possible within the affected area whenever the drinking water is unsafe to drink. PAWC reported no problems or complaints about the number of water buffaloes it used in this particular instance. PAWC also stated that it did not experience an unusual demand for drinking water that could not be met by the alternative supplies it offered to the public at no charge. Similarly, DEP did not indicate that more water buffaloes were needed to meet the demand for drinking water in this case.
From the information gathered in this investigation, the adequateness of alternative drinking water supplies was not a serious issue in relation to this particular incident. Perhaps that was due in part to the fact that the advisory lasted less than a day and that the contaminant was fluoride and not a more serious or dangerous chemical. We do agree with the OCA that water utilities must take this responsibility seriously whenever their water supplies become unsafe to drink, and they must take every necessary step to ensure sufficient alternative drinking water supplies are available to their customers whenever there is a ''DO NOT CONSUME'' advisory in place.
D. Compliance with 52 Pa. Code § 67.1 (Notice to Commission)
The fifth issue is PAWC's compliance with 52 Pa. Code § 67.1. PAWC asserted to staff that its failure to notify Commission officials until the day after the spill did not violate 52 Pa. Code § 67.1 because this provision was not applicable as there was no ''service interruption'' as defined by that section. Specifically, subsection 67.1(c) provides that a utility ''shall notify the Commission by telephone within one hour after preliminary assessment of conditions reasonably indicates'' that there is under subsection (b) ''an unscheduled service interruption'' affecting ''2,500 or 5.0%, whichever is less, of their total customers . . . in a single incident for six or more projected consecutive hours.''
PAWC's position is that the term ''service interruption'' is not defined in the regulation but asserts that the common understanding of this term requires an outage, supply cut-off, or cessation of service. PAWC contends that since this fluoride incident did not result in a loss of water service, i.e., customers did have water that could be used for all purposes other than consumption, there was no service interruption. The OCA disagrees with PAWC's interpretation of section 67.1, and encourages the Commission to clarify, by regulation or order, that the phrase ''service interruption'' in section 67.1 refers not only to water outages but also to situations where the water is available but unsafe to drink.
The Commission disagrees with PAWC's interpretation that the requirement in 52 Pa. Code § 67.1 to notify the Commission of an incident by telephone is only triggered when there is a total outage of service. Without a doubt, water for consumption is the most vital and important aspect of service provided by a water utility, and if consumers cannot drink it, then from their perspective, and ours, service has been interrupted.
By this order, the Commission puts the water industry on notice that ''service interruption'' covers any interruption of service that affects the quantity or quality of water delivered to the customer. In arriving at this conclusion, we take administrative notice that a similar regulation of DEP defines a ''service interruption'' as ''affecting quantity or quality of the water delivered to the customer.'' 25 Pa. Code § 109.708 (emphasis added).
The Commission believes it is necessary to take the additional step of amending our regulations to ensure that regulated water utilities have a clear understanding of what the Commission deems a ''service interruption.'' It is critically important that utilities affected by 52 Pa. Code § 67.1 understand their obligation to provide the Commission with telephone and written notification in the event of a service interruption that affects either the quantity or quality of the water delivered to the customer. This will enable the Commission to ensure that utilities are furnishing adequate, efficient, safe and reasonable service consistent with the Public Utility Code. 66 Pa.C.S. § 1501.
Until this regulation is promulgated, however, we fully expect all water utilities in the future to act accordingly in providing us with telephone and written notification as prescribed by this interpretation of section 67.1 as any other interpretation of this phrase would eviscerate the otherwise clear intent of section 67.1's notice provisions.
E. Additional Steps to Inform and Assist Consumers
The seventh issue concerns whether additional steps can be taken by the Commission to assist utilities in responding to future emergency situations, particularly keeping the public informed and assisting consumers as needed. During the course of the investigation, PAWC advised that its failure to contact the designated Commission emergency contact person about the incident was partially attributable to the company's inability to obtain up-to-date emergency contact information on the Commission's home web page after the accident occurred. This attempt to shift responsibility partially to the Commission loses any credibility, however, when we learned from FUS that it had directly provided PAWC with the Commission's emergency contact information after another incident occurred earlier in 2005 affecting the same water treatment plant.
In any event, we note that it is each utility's responsibility to have current Commission emergency contact information readily accessible at their facilities. However, we will consider possible options for making the Commission's emergency contact information more readily available to utilities in the future.4
In its comments, the OCA made several helpful suggestions that the Commission may use to assist utilities in responding to future emergency situations. They are: (1) hold a public input meeting to hear from affected consumers on the topic of how they can best be notified of future emergency situations; (2) create an opt-in e-mail and text alert mechanism on its website to complement the use of such mechanisms by individual utilities; (3) during emergencies, the Commission could post updates on its website and provide a toll-free hotline for questions; and (4) direct all regulated utilities to modify their respective tariffs to include specific references to applicable state and federal public notice requirements. OCA Comments at 8. In this latter regard, the OCA offered the following suggested tariff language insert:
As soon as preliminary assessment of conditions reasonably indicates that customers will experience service that is unsuitable for household purposes or otherwise inadequate, the Company shall, at a minimum, provide notice to customers in accordance with the regulations of the Commission, 52 Pa. Code § 67.1, et seq., and the Pennsylvania Department of Environmental Protection, [25 Pa. Code § 109.407, et seq.]Id.
In regard to a possible public input hearing, the Commission believes that this issue can be addressed at the time that the policy statement discussed above is developed, if it is determined that such a hearing will aid the process. On the tariff issue, while the OCA recommends that all regulated water utilities should file a tariff amendment within 90 days of the entry of the order to indicate that they comply with 52 Pa. Code § 67.1 and DEP's regulations at 25 Pa. Code §§ 109.407--109.416, we believe this requirement is onerous and unnecessary to impose on utilities since they are required by law to comply with these stated provisions. Rather than impose the burden of filing amended tariffs, the Commission finds sufficient that all regulated water utilities be served a copy of this order to remind them of their legal obligation to comply with Commission regulations.
Regarding the recommendations made by the OCA that would require changes to our website, we note that the primary responsibility for alerting water customers rests with the utility, and we also note DEP recently announced that it will propose revised notification procedures for the companies to adopt that incorporate the suggestions advocated by the OCA. DEP's proposals will, for example, embrace current technology advances in the communications field that will allow utilities to provide an opt-in system so customers can request to be contacted by e-mail, text message, beeper, cell phone or other personal electronic devices. Accordingly, we decline to adopt the OCA's website and toll-free hotline recommendations at this time since they appear to be duplicative of DEP's current initiatives regarding customer notice.
F. Obligation to Update Emergency Response Plans
In addition to the seven previously identified areas that were to be examined, the Commission's investigation also uncovered that the Emergency Response Plan adopted by PAWC for the YB Plant dated 1993 is clearly outdated. PAWC admitted that its PAWC's Emergency Response Plan for its Central Operations is also outdated, and this plan, in any event, was not at the YB Plant at the time of the incident. While staff did not undertake an exhaustive review of these plans, our summary review revealed that neither plan, for example, has current phone contacts for the Commission even though the Commission has provided to all public utilities emergency contact information and will continue to provide utilities with updated contact information as required. Commission staff found that the phone numbers in these two plans were woefully out-of-date and basically useless. PAWC advised that its new plant scheduled to be operational in March 2006 will have an updated and accurate Emergency Response Plan. This response does not address, however, PAWC's failure to have updated and accurate information in the current plans.
Pursuant to section 67.1 of our regulations, the Commission has a duty to maintain telephone lines for the purpose of emergency notification from utilities. 52 Pa. Code § 67.1. The Commission fulfills this obligation by providing all utilities with current emergency numbers of our emergency personnel. It is incumbent upon the utility to retain updated contact information in their Emergency Response Plan. Indeed, the Commission's Public Utility Preparedness Through Self-Certification regulations requires that Emergency Response Plans of jurisdictional utilities include notification of the appropriate emergency services and emergency preparedness support agencies and organizations. 52 Pa. Code § 101.3(a)(4)(iii). In order for a utility to adhere to this requirement, the regulations require that it annually certify to the Commission that its plans have been reviewed and updated. 52 Pa. Code § 101.3(d). As stated above, PAWC admitted that its relevant Emergency Response Plans did not contain current Commission emergency contact numbers.
The findings of this report should be a reminder to all utilities that it is critically important to update their Emergency Response Plans, at a minimum, on an annual basis so that they are prepared in the event of an emergency. Utilities have an obligation pursuant to 52 Pa. Code §§ 101.1--101.7 to develop and maintain written physical and cyber security, emergency response and business continuity plans, and to review, test and update them annually. In addition, an annual self-certification form is required to be filed with the Commission attesting that the plans have been updated and tested. A copy of this order will be served on all local exchange carriers, electric distribution companies, natural gas distribution companies, and water and wastewater utilities to serve as a reminder of their important obligations under our regulations at 52 Pa. Code §§ 101.1--101.7.
Finally, to address this deficiency in the present case, we hereby direct PAWC to review all its Emergency Response Plans for plants within Pennsylvania and to verify, with FUS, that all its plans are up to date. In addition, we shall direct the Bureau of Audits to initiate a general program to audit, as it deems appropriate, water utility emergency response plans to ensure they comply with all applicable laws and regulations, including the self-certification process as provided in our regulations at 52 Pa. Code §§ 101.1--101.7, and to take whatever further action may be warranted.
Conclusion
Based upon this investigation, we conclude that the spill was a result of operator error, the incident was not reported to appropriate Commission personnel in a timely manner, and the public was not adequately notified that a ''DO NOT CONSUME'' advisory was in effect. The public was also not notified of the possible dangers of drinking water with an elevated level of fluoride concentration. As a result of this incident and investigation, PAWC has taken swift and positive steps to ensure that this type of chemical spill incident does not occur again. Because the purpose of this investigation was remedial and not punitive, we will not impose any fines against PAWC for failing to comply with applicable public utility laws and regulations.
Moreover, to provide assistance to utilities and consumers, the Staff's investigation report will be made public. In this way, the Commission, in cooperation with utilities and other state agencies, can work together to address the notice and safety issues involved in chemical spills and to improve every water utility's performance in this important area; Therefore,
It Is Ordered That:
1. The staff investigation report is released to the public.
2. All jurisdictional water utilities are encouraged to perform regular self-inspections of their plants to ensure safety compliance and to provide operator education and safety training relating to how to avoid and respond to situations involving chemical spills.
3. The Law Bureau and the Bureau of Fixed Utility Services are directed to prepare a proposed Policy Statement on Public Notice Standards Relating to Unscheduled Water Service Interruptions to provide guidance to the industry regarding the types of public notice that will be deemed acceptable and appropriate in meeting the reasonable standard in section 1501 of the Public Utility Code when there are unscheduled water service interruptions.
4. All jurisdictional water utilities are encouraged to take every necessary step to ensure sufficient alternative drinking water supplies are available to their customers whenever there is a ''DO NOT CONSUME'' advisory in place.
5. A proposed rulemaking is hereby instituted to amend 52 Pa. Code § 67.1 to address the Commission's interpretation of the phrase ''service interruption'' to cover any interruption of service that affects either the quantity or quality of the water delivered to the customer.
6. Pennsylvania American Water Company is directed to review all of its Emergency Response Plans for plants within Pennsylvania and to verify with the Bureau of Fixed Utility Services that all of its plans are up to date. This review shall be completed within 90 days of the entry date of this order.
7. The Bureau of Audits is directed to initiate a general program to audit, as it deems appropriate, water utilities' Emergency Response Plans to ensure that they are up to date and comply with all applicable laws and regulations, including the self-certification process as provided in 52 Pa. Code §§ 101.1--101.7, and to take whatever further action may be warranted.
8. Copies of this order be served on the Office of Trial Staff, the Office of Consumer Advocate, the Office of Small Business Advocate, the central and regional offices of the Pennsylvania Department of Environmental Resources, the Pennsylvania Chapter of the National Association of Water Companies, and all jurisdictional local exchange carriers, electric distribution companies, natural gas distribution companies, and water and wastewater utilities.
9. A copy of this order be published in the Pennsylvania Bulletin.
10. This docket be marked closed.
JAMES J. MCNULTY,
Secretary
Staff Report on Investigation into Pennsylvania American Water Company's High Fluoride Concen- tration Incident and of Existing Notification and Reporting Requirements; Doc. No. I-00050109 I. History of the Proceeding
On December 10, 2005, an incident occurred at the Pennsylvania American Water Company's (PAWC) Yellow Breeches Water Treatment Plant (YB Plant) in Fairview Township, Cumberland County, which resulted in excessive levels of fluoride in its drinking water. This incident affected approximately 34,000 customers of PAWC located in eastern Cumberland County and northern York County. Specifically, the elevated level of fluoride concentration was the result of a chemical spill of approximately 372 gallons of hydroflurosilic acid (fluoride) used in the fluoridation process at the plant.5 On Saturday, December 10, 2005, the Pennsylvania Department of Environmental Protection (DEP) authorized a ''DO NOT CONSUME'' advisory between 2:30 P.M. and 3:00 P.M. for PAWC's entire distribution system for that plant; the restriction was subsequently lifted around noon, 12:00 P.M., on Sunday, December 11, 2005.
At its December 15, 2005 Public Meeting, the Commission adopted the Joint Motion of Chairman Wendell F. Holland and Commissioner Kim Pizzingrilli that directed the Law Bureau and the Bureau of Fixed Utility Services (FUS) to investigate the high fluoride incident as well as to review and to evaluate the Commission's existing regulations and to submit a report to the Commission within 60 days of the entry date of the Order incorporating the motion.6 That Order was entered on December 23, 2005.
The Order concluded that it was critically important that the Commission determine: (1) whether all operational aspects of the utility were fully functioning to adequately respond to the situation in a timely manner; (2) whether the public received information in a timely manner; (3) whether adequate supplies of drinking water were provided and/or available in convenient locations; (4) whether the information provided to the public was sufficient to inform consumers of the effects of excessive fluoride; (5) whether the reporting requirements in the Commission's regulations at 52 Pa. Code § 67.1 were properly followed; (6) whether enhancements need to be made to the Commission's reporting requirements; and (7) whether additional steps can be taken by the Commission to assist utilities in responding to future emergency situations, particularly in keeping the public informed and assisting consumers as needed.
The Commission also noted in its Order that it was equally important to evaluate not only this incident but to ensure that the regulated utilities are prepared to respond to future incidents. In addition, the Commission noted that as part of the self-certification process in its regulations at 52 Pa. Code §§ 101.1--101.7, utilities are to develop and maintain several types of emergency and security-related plans. Furthermore, the Order directed that utilities should also assess whether technological enhancements in communications can be made to keep the public better informed as they respond to the operational issues involved in resolving emergency situations.
II. Factual Findings
Pursuant to the December 23, 2005 Order, Commission staff conducted an investigation into the cause of the high fluoride incident, the level of compliance by PAWC with the Public Utility Code and our regulations with regard to safe and reliable water service, and the applicable notification procedures. The investigation also addressed whether these procedures were complied with and whether any improvements in the notification procedures are warranted. As part of its inquiry, Commission staff met with representatives from DEP, the Cumberland County Emergency Management Services, PAWC, and the OCA and made a site visit of the water treatment plant in question and the new plant scheduled to go on line this spring.7
PAWC has acknowledged that the December 10, 2005 incident at the YB Plant was the result of human error. The YB Plant consists of two filter plants known as Plant 1 and Plant 2. Plant 1 was built in 1907 and Plant 2, where the spill occurred, was built in the 1950's. The two plants are within 50 yards of each other.
Plant Operator No. 1 started his shift, midnight to 8 A.M., on December 10, 2005. He was the only employee working in the YB Plant other than a security guard on duty. At approximately 7:30 A.M., while the filter backwash was still in process, Plant Operator No. 1 started to refill the fluoride day tanks that are located on the third floor of Plant 2. The bulk fluoride tank is stored in a 1,950 gallon tank also located on the third floor of Plant 2 near the day tanks. The bulk tank has a maximum allowed volume of 1,500 gallons due to weight load limitations on the floor. A diaphragm pump is used to feed the liquid fluoride from the bulk tank into the two day tanks. At the time of the incident, the switch that controlled the pump was a spring-loaded switch that must be manually pressed by the operator in order for the pump to operate. The switch was constructed to prevent the pump from running unattended and causing an overflow of and spill from the day tank. Utilizing proper procedure, i.e., the operator manually holding the switch down, it takes about 20 minutes to fill the day tanks; a process that has to be repeated daily, 365 days a year.
On this particular morning and against Company policy, Plant Operator No. 1 chose to bypass the switch's shut off mechanism by inserting a plastic circular union between a nearby pipe and the switch which kept the switch depressed and the pump pumping fluoride into the day tanks. Plant Operator No. 1 then left the area with the bypass in place to perform other duties in the plant.
Plant Operator No. 1 never disengaged the bypass he had created before ending his shift at 8:30 A.M. The pump kept pumping fluoride to the day tanks from approximately 7:30 A.M. until the pump was deactivated by the Hazardous Materials Response Team (HAZ MAT) at approximately 1:30 P.M. that day when they were finally able to enter inside the plant in appropriate protective gear and disengage the jammed switch.
When the spill exceeded the spill containment unit capacity, the fluoride spilled onto the floor. The growing spill reached the Supervisory Control and Data Acquisition (SCADA) computer system, located directly beneath the fluoride tanks on the floor below, and caused it to malfunction. When the SCADA reading device located in Plant 2 malfunctioned, Plant Operator No. 2, who had started his shift at 8 A.M. on December 10th and was in Plant 1, went to Plant 2 to determine what caused it to malfunction. When he opened the door to Plant 2, he could not enter the building to turn off the switch or to prevent the treated water containing the high fluoride levels from being pumped into the distribution system because of the strong hydroflurosilicic acid fumes. He immediately contacted the PAWC supervisory officials on call about the leak. Plant Operator No. 2 also called Plant Operator No. 1 who recalled that he had forgotten to disengage the fluoride switch bypass. The PAWC officials contacted York County Emergency Management Agency (York EMA) to advise it of the chemical spill and recommended that HAZ MAT be dispatched. Sometime shortly thereafter, York EMA notified DEP of the incident. HAZ MAT arrived at the plant at approximately 10:45 A.M.
Sometime thereafter, York EMA notified DEP of the incident. PAWC also considered diluting the concentration by increasing the production of drinking water at its Silver Spring Water Treatment Plant; however, that plant was already operating at near its maximum production capacity.
Throughout the morning and early afternoon, PAWC, in conjunction with the HAZ MAT and DEP, worked on sampling the water and trying to stop the spill. At approximately 1:30 P.M., HAZ MAT disengaged the bypass and stopped the pumping of fluoride by closing two valves.
At approximately 2:30 P.M., some of the several water samples taken indicated a result of 20 parts per million (ppm) and these results were shared with DEP. At that time, it was still undetermined the levels needed to raise health issues. There was discussion that 50 ppm may cause problems for dialysis patients. At 2:30 P.M., DEP and PAWC decided to issue a ''DO NOT CONSUME'' advisory to the public. The ''DO NOT CONSUME'' advisory was released to the public at approximately 4:20 P.M. after several edits by PAWC and DEP officials.
It was decided by PAWC and DEP that due to the uncertainty of the triggering mechanism that they would elevate the situation to a ''Tier I'' event8 per DEP regulations because of the potential short-term health risk exposure effects. Under DEP regulations, a Tier I event requires public notice within 24 hours of its occurrence. While DEP's regulations require notice to the public within 24 hours of a Tier 1 event, the regulations also make clear that notification must be provided ''as soon as possible,'' leaving no doubt that notice should be provided as early as possible.
Water samples continued to be taken through the evening and into the night for analysis. It was not until between midnight and 8 A.M. the next day that the samples indicated that the fluoride levels had dropped to below 2 ppm. At approximately noon on Sunday, December 11th, PAWC lifted the ''DO NOT CONSUME'' advisory.
PAWC notified the Commission of the spill on Sunday, December 11, 2005, at approximately 1:30 P.M. (after the advisory had been lifted) via a voice mail to a member of the FUS Water Division and a member of the Bureau of Consumer Services' Hotline. PAWC did not speak with the Commission's designed emergency contact person until Monday, December 12, 2005. PAWC advised that following its own internal investigation into the incident, it fired Plant Operator No. 1 on December 16, 2005, for his actions in causing the spill. On January 18, 2006, PAWC sent letters to the 34,000 affected customers to explain what had happened on December 10, 2006.
Cumberland County Emergency Management Services officials' main complaint was the lack of notice of the spill, i.e., not being advised by PAWC or DEP as to what was happening before the public notice finally came out. The Cumberland County Emergency Management Services' officials expressed frustration in not being able to provide more accurate information to their elected officials who were concerned about the public safety within their county.
In staff's meeting with DEP officials, DEP expressed concerns regarding whether PAWC complied with its notice requirements as set forth in its regulations. DEP also noted that PAWC failed to have a company spokesperson on hand to assume responsibility in notifying the public and media as it is required to do, and that there were conflicting public notices as a result of the lack of coordination between DEP and PAWC. DEP also acknowledged that there was a delay in the release of the public notice due to its inability to obtain accurate information from the federal Environmental Protection Agency regarding what level of fluoride concentration would be considered a health risk. Finally, DEP was also reviewing PAWC's Emergency Response Plan and similar documents to ensure they are adequate and up-to-date. DEP's investigation is ongoing and the DEP will provide the Commission with a copy of the report when it is final.9
Commission staff also met with the OCA staff and received comments from the OCA that were filed on February 7, 2006. The OCA's comments addressed each of the seven identified areas of concern discussed in the Commission's December 23, 2005 Order. The OCA noted in its comments that the fluoride spill presents an opportunity for the Commission to provide additional guidance to utilities on notice requirements. The OCA stated that utilities must be prepared to give actual, personal, timely notice to customers in any event that endangers public health and safety; it is not enough to rely upon broadcast stations and newspapers to deliver the message.
In addition, the OCA stated that Commission report should be made public and that the Commission should follow the release of the report with a public input hearing. Furthermore, the OCA stated that the water utilities must evaluate their treatment plants and ensure that older plants, as well as new plants, have adequate safeguards. Finally, the OCA stated that the Commission should encourage water utilities to provide safe water supplies at as many locations in or near the affected service areas as possible during all periods when water is unsafe or otherwise unavailable. The OCA's comments will be discussed in greater detail in the next section of this report.
III. Analysis
As discussed above, the December 23, 2005 Order concluded that the instant review focus on the following seven critically important areas: (1) whether all operational aspects of the utility were fully functioning to adequately respond to the situation in a timely manner; (2) whether the public received information in a timely manner; (3) whether adequate supplies of drinking water were provided and/or available in convenient locations; (4) whether the information provided to the public was sufficient to inform consumers of the effects of excessive fluoride; (5) whether the reporting requirements in 52 Pa. Code § 67.1 were properly followed; (6) whether enhancements need to be made to the Commission's reporting requirements; and (7) whether additional steps can be taken by the Commission to assist utilities in responding to future emergency situations, particularly in keeping the public informed and assisting consumers as needed. We will address each of these areas below.
A. Operational Response (Issue 1)
PAWC admitted that the fluoride spill was the result of operator error when the plant operator on duty bypassed the manually-operated, spring-loaded switch that controls the pumping of fluoride from the storage tank to the two day tanks by inserting a plastic circular union between a pipe and the switch. This artificial bypass kept the switch depressed so as to keep the pump pumping fluoride into the two day tanks. PAWC's own internal investigation also found that bypassing this switch was a common occurrence among its operators with some using, alternatively, a block of wood to create the bypass. PAWC, however, stated that it did not have any prior knowledge that the operators were using any sort of bypass, which it also asserted was against company policy.
In addition, the day tanks into which the fluoride was pumped rests in a spill containment unit that is intended to take in any overflow if the day tanks' capacity is exceeded. However, in this case, when the capacity of the spill containment unit was also exceeded, the fluoride spilled onto the floor, which ultimately shorted the SCADA system when the system's wires and instruments became wet from the fluoride, and into the water tanks.
As part of staff's investigation, PAWC agreed to review the layout of the chemical tanks at all its plants in Pennsylvania to determine if any of them have similar safety issues--no alarm system in containment unit, spring-loaded switch controlling the pump that can be manually bypassed, etc.--that needed to be corrected. PAWC subsequently verified in writing to Commission staff that none of its other seven water treatment plants that use bulk storage tanks to store liquid fluoride are similar to the YB Plant in terms of plant layout, containment methods, or in their set up of SCADA monitoring that could lead to a similar fluoride incident such as occurred at the YB Plant.
Additionally, PAWC has replaced the switch at the YB Plant with one that is not as susceptible to tampering. PAWC also stated that while an alarm in the day tank is not standard practice because the switch controlling the pump at the time was spring-loaded (so that it must be held down in order to pump the fluoride into the day tanks), PAWC has nevertheless installed a probe in the spill containment unit that will set off an alarm when any liquid leaks into the containment unit.
PAWC has also committed to providing operator education and training relating to how to avoid and respond to situations involving chemical spills. Such training should also emphasize the importance of not bypassing switches or other safety devices controlling chemicals under any circumstances and that such conduct is against company policy that warrants strong disciplinary action, including possible termination of employment.
Finally, PAWC states that its new water plant will begin operation in the spring of 2006. This plant will be technologically advanced in terms of spill containment and automatic controls. According to PAWC, the new plant's modernized features will further minimize the likelihood of this type of spill occurring in the future.
From staff's perspective, PAWC's admission that the operator's action to override the switch causing the spill and that this override was a common practice among its operators at that plant is very disturbing. We believe PAWC and all other utilities must be reminded that this type of conduct can never be tolerated, and that utilities must take all necessary steps to ensure that similar occurrences do not occur in the future.
We do support, on the other hand, the steps taken by PAWC to minimize the risk of similar operator errors from occurring again. However, we believe what occurred here can happen in other water plants as well, especially in older, less technologically advanced plants. We, therefore, recommend that the Commission encourage all water utilities to perform regular self-inspections of their plants to ensure they comply with all state and federal safety regulations.
We especially encourage water utilities to review their existing operations and safety features to ensure they have adequate safeguards in place to avoid any chemical spills that can disrupt their operations. In this latter regard, the water utilities should particularly examine whether their plants are susceptible to similar attempts to bypass safety features used to control the pumping of chemicals. If they are, then preventive measures such as replacing switches or incorporating alarm systems should be performed immediately. We also agree with the OCA that treatment plant operators must have sufficient training and retraining as part of their business practices to avoid the type of situation that occurred at the YB Plant. The Commission should place all water utilities on notice that the failure to identify and correct the types of safety deficiencies identified in this investigation may result in prosecution and the imposition of appropriate sanctions.
B. Timeliness and Adequacy of Public Notice and Possible Enhancements to the Commission's Reporting Requirements (Issues 2, 4 and 6)
A significant aspect of the investigation focused on both the sufficiency and timeliness of the DO NOT CONSUME advisory notice provided by PAWC to the public following the hydroflurosilic acid spill and also on whether enhancements are needed to the Commission's reporting/notice requirements. We particularly want to thank the OCA for its valuable input on each of these reporting/notice issues.
As discussed above, the OCA was critical of both the timeliness and adequacy of PAWC's public notice efforts. On the issue of timeliness, while the OCA acknowledged that PAWC may have met the minimum requirements in its tariff, Rule 14.1,10 and applicable DEP regulations at 25 Pa. Code § 109.408, regarding notice to the public, PAWC did not ''provide actual, timely notice to many of the affected customers.'' OCA Comments at 6. Similarly, on the issue of adequacy of the public notice, the OCA correctly points out that the press release used by PAWC failed: (1) to identify when the fluoride spill entered the drinking water distribution system, 25 Pa. Code § 109.411(a)(2); (2) to include any of the required adverse health effects language, 25 Pa. Code § 109.411(a)(3) & (d)(1) or (d)(2); and (3) to identify the population at risk, including any subpopulations of customers that are particularly vulnerable to the contaminant in their drinking water, 25 Pa. Code § 109.411(a)(4). OCA Comments at 4.
In addition to the notice-deficiency issues identified by the OCA, PAWC also acknowledged, in response to our inquiry, that it did not use its website to notify the public about the incident and its water advisory. In fact, it was not until Monday morning, December 12, 2005, a full two days after the incident, that PAWC first used its website to announce that the DO NOT CONSUME advisory had been lifted.
While both DEP and PAWC agree that PAWC complied with the existing notification procedures established in DEP's regulations, we find that the utilized notification procedures adopted by PAWC failed to notify adequately large numbers of consumers in a timely and reasonable manner about the hydroflurosilic acid spill and the DO NOT CONSUME advisory. The OCA believes that the public notice issue for service interruptions needs to be addressed in a specific Commission regulation or other directive such as a policy statement.
In evaluating this recommendation, Commission staff is cognizant of the detailed public notice requirements already contained in DEP's regulations and further understand that DEP is currently reviewing those regulations for possible amendment. We do not propose, therefore, that it is necessary to impose an additional layer of public notice regulations on water utilities. At the same time, however, we agree with the OCA's objective that it would be beneficial for the Commission to provide guidance to the industry on the types of notice necessary to meet the reasonable service standard imposed on utilities under the Public Utility Code at 66 Pa.C.S. § 1501.
We, therefore, recommend that the Commission direct the Law Bureau and the Bureau of Fixed Utility Services to prepare a proposed Policy Statement on Public Notice Standards Relating to Unscheduled Water Service Interruptions to be considered at a future Public Meeting. The objective of this new policy statement will be to provide guidance to the industry regarding the types of public notice that will be deemed acceptable and appropriate in meeting the reasonable standard in section 1501 when there are unscheduled water service interruptions. The policy statement should suggest actual and timely notice whenever a situation arises where the water is unsafe to drink, taking full advantage of existing technology such as the Reverse 911, e-mail and text message notifications to customers who have elected to receive such notice, and fax/e-mail notification to local radio and television stations, cable systems, newspapers, and other media. OCA Comments at 6-7. Other types of direct/personal notification, such as doorknob flyers, where feasible, should be considered. The use of the affected utility's and the Commission's website should also be considered. This Policy Statement should also include language that makes it clear that all water utilities must conform to the public notice requirements established by DEP which concern unscheduled service interruptions. After tentative approval at a future public meeting, the policy statement will then be subject to a 30-day public comment period by interested parties before final action is taken to adopt, modify, or reject the final proposal.
C. Adequateness of Alternative Drinking Water Supplies (Issue 3)
PAWC provided water buffaloes with potable water at two locations in its service territory after issuing the DO NOT CONSUME advisory. The OCA's only comment on this issue was that the Commission should encourage water utilities to provide safe drinking water supplies to as many locations as reasonably possible within the affected area whenever the drinking water is unsafe to drink. PAWC, for its part, reported no problems or complaints about the number of water buffaloes it used in this particular instance. PAWC also stated that it did not experience an unusual demand for drinking water that could not be met by the alternative supplies it offered to the public at no charge. Similarly, DEP did not indicate that the lack of water buffaloes was a problem in this case.
From the information we gathered in our review, the adequateness of alternative drinking water supplies was not a serious issue in relation to this particular incident. Perhaps that was due in part to the fact that the advisory lasted less than a day and that the contaminant was fluoride and not a more serious or dangerous chemical. We do agree with the OCA that water utilities must take this responsibility seriously whenever their water supplies become unsafe to drink, and that in this regard they must take every necessary step to ensure sufficient alternative drinking water supplies are available to their customers whenever there is a DO NOT CONSUME advisory in place.
D. Compliance with 52 Pa. Code § 67.1 (Issue 5)
PAWC asserted to staff that its failure to notify Commission officials until the day after the spill did not violate 52 Pa. Code § 67.1 because this provision was not applicable as there was no ''service interruption'' as defined by that section. Specifically, subsection 67.1(c) provides that a utility ''shall notify the Commission by telephone within one hour after preliminary assessment of conditions reasonably indicates'' that there is under subsection (b) ''an unscheduled service interruption'' affecting ''2,500 or 5.0%, whichever is less, of their total customers . . . in a single incident for six or more projected consecutive hours.'' PAWC's position is that the term ''service interruption'' is not defined in the regulation but asserts that the common understanding of this term requires an outage, supply cut-off, or cessation of service. PAWC contends that since this fluoride incident did not result in a loss of water service, i.e., customers did have water that could be used for all purposes other than consumption, there was no service interruption. The OCA, for its part, disagrees with PAWC's interpretation of section 67.1, and encourages the Commission to clarify, by regulation or order, that the phrase ''service interruption'' in section 67.1 refers not only to water outages but also to situations where the water is available but unsafe to drink.
Commission staff disagrees with PAWC's interpretation of 52 Pa. Code § 67.1's provision for telephonic notification of an incident to the Commission that it is not triggered unless there is total outage of service. Without a doubt, water for consumption is the most vital and important aspect of service provided by a water utility, and if consumers cannot drink it, then from their perspective, and ours, service has been interrupted. In arriving at this conclusion, we also take administrative notice that a similar regulation of DEP defines a ''service interruption'' as ''affecting quantity or quality of the water delivered to the customer.'' 25 Pa. Code § 109.708 (emphasis added). We believe it would serve little purpose and, in fact, would be confusing to interpret the phrase ''service interruption'' in section 67.1 as it relates to water utilities differently than the term is defined in the DEP regulation.
We recommend, therefore, that the Commission should put the water industry on notice that ''service interruption'' in section 67.1, as the Commission defines it, covers any interruption of service that affects either the quantity or quality of the water delivered to the customer. Any other interpretation of this phrase would eviscerate the otherwise clear intent of its notice provisions. We would fully expect all water utilities in the future to act accordingly in providing us with telephone and written notification as prescribed by this section. Further, we recommend that the Commission should direct in its Order that failure to do so by any water utility in the future may lead to an investigation by the Commission and possible sanctions being imposed on the utility, including, but not limited to, civil penalties under 66 Pa.C.S. § 3301.
E. Additional Steps to Assist Utilities in Future Emergency Situations (Issue 7)
During the course of the investigation, PAWC advised that its failure to contact the designated Commission emergency contact person about the incident was partially attributable to the company's inability to obtain up-to-date emergency contact information on the Commission's home web page after the accident occurred. It is each utility's responsibility to have current Commission emergency contact information readily accessible at their facilities, an issue we will address further in Subsection F, below. In the instant case, PAWC's attempt to shift responsibility partially to the Commission loses any credibility because FUS had directly provided PAWC with the Commission's emergency contact information after another incident earlier in 2005 affecting the same water treatment plant. Notwithstanding this finding, the Commission may wish to consider possible options for making its emergency contact information more readily available to utilities in the future.11
The OCA, in its comments, made several recommendations that can be taken by the Commission to assist utilities in responding to future emergency situations. They are: (1) hold a public input meeting to hear from affected consumers on the topic of how they can best be notified of future emergency situations; (2) create an opt-in e-mail and text alert mechanism on its website to complement the use of such mechanisms by individual utilities; (3) during emergencies, the Commission could post updates on its website and provide a toll-free hotline for questions; and (4) direct all regulated utilities to modify their respective tariffs to include specific references to applicable state and federal public notice requirements. OCA Comments at 8. In this latter regard, the OCA offered the following suggested tariff language insert:
As soon as preliminary assessment of conditions reasonably indicates that customers will experience service that is unsuitable for household purposes or otherwise inadequate, the Company shall, at a minimum, provide notice to customers in accordance with the regulations of the Commission, 52 Pa. Code § 67.1, et seq., and the Pennsylvania Department of Environmental Protection, [25 Pa. Code § 109.407, et seq.]Id.
In regard to a possible public input hearing, we believe that issue can be addressed by Commission staff assigned to develop the policy statement discussed in Subsection B above if they determine such a hearing will aid their process. On the tariff issue, we agree with the OCA that notice language for water utilities should be inserted into their tariffs as the utilities are already required to meet these existing legal standards. However, the language the OCA proposes is not technically correct as the Commission's regulation only provides notice to the Commission and not to customers. We, therefore, recommend that all water utilities should be directed to review their existing tariffs to ensure language identical or comparable to the following modified language is inserted into their existing tariffs filed with the Commission:
As soon as preliminary assessment of conditions reasonably indicates that customers will experience service that is unsuitable for household purposes or otherwise inadequate, the Company shall, at a minimum, provide notice to the Commission in accordance with the regulations of the Commission, 52 Pa. Code § 67.1, et seq., and notice to customers in accordance with regulations of the Pennsylvania Department of Environmental Protection, [25 Pa. Code § 109.407, et seq.]As to the other two recommendations made by the OCA that would require changes to our website, we note that the primary responsibility for alerting water customers rests with the utility, and we also note DEP recently announced that it will propose revised notification procedures for the companies to adopt that incorporate the suggestions advocated by the OCA. DEP's proposals will, for example, embrace current technology advances in the communications field that will allow utilities to provide an opt-in system so customers can request to be contacted by e-mail, text message, beeper, cell phone or other personal electronic devices. Accordingly, we recommend that the Commission not adopt the OCA's website and toll-free hotline proposals at this time as they appear to be duplicative of DEP's current initiatives regarding customer notice.
F. PAWC's Failure to Properly Update Its Emergency Response Plan
In addition to the seven previously identified areas that were to be examined, the Commission's investigation also uncovered that the Emergency Response Plan adopted by PAWC for the YB Plant dated 1993 is clearly outdated. PAWC similarly admitted that the PAWC's Emergency Response Plan for its Central Operations is also outdated. PAWC officials also acknowledged that the Central Operations Plan was not at the YB Plant at the time of the incident. While staff did not undertake an exhaustive review of these plans, our summary review revealed that neither plan, for example, has current phone contacts for the Commission even though the Commission has provided to all public utilities emergency contact information and will continue to provide utilities with updated contact information as required. Commission staff found that the phone numbers in these two plans were woefully out-of-date and basically useless. PAWC advised that its new plant scheduled to be operational in March 2006 will have an updated and accurate Emergency Response Plan.
This promise does not address, however, PAWC's failure to have updated and accurate information in the current plans. This failure to update the plans is especially troubling because PAWC has an obligation each year to certify to the Commission and DEP that its plans are up-to-date pursuant to 52 Pa. Code §§ 101.1--101.7 and 25 Pa.C.S. § 109.707, respectively. Specifically, the Commission's regulation provides, in pertinent part:
52 Pa. Code § 101.3. Plan requirements.
(a) A jurisdictional utility shall develop and maintain written physical and cyber security, emergency response and business continuity plans. . . .(b) A jurisdictional utility shall review and update these plans annually.(c) A jurisdictional utility shall maintain and implement an annual testing schedule of these plans.(d) A jurisdictional utility shall demonstrate compliance with subsections (a)--(c), through submittal of a Self Certification Form which is available at the Secretary's Bureau and on the Commission's website.DEP's regulation on the same topic provides as follows:
25 Pa. Code § 109.707. Emergency response plan.
(a) A community water supplier shall develop a plan for the provision of safe and adequate drinking water under emergency circumstances, and submit the plan to the Department for approval by December 8, 1985. . . .(c) The plan shall be reviewed and updated at least annually.To address this deficiency, we recommend that PAWC should be directed to review all its Emergency Response Plans for plants within Pennsylvania and to verify within the next several months, through a Commission field review, that all its plans are up to date. In addition, we encourage the Bureau of Audits to consider auditing, as it deems appropriate, water utility emergency response plans to ensure they comply with all applicable laws and regulations, including the self-certification process as provided in our regulations at 52 Pa. Code §§ 101.1--101.7, and to take whatever further action may be warranted.
V. Conclusion
Commission staff's investigation found that the fluoride spill at PAWC's YB Water Treatment Plant on December 10, 2005, was the result of operator error. Commission staff is satisfied that PAWC has taken the necessary corrective steps at this plant to ensure that a similar spill will not occur in the future. These corrective steps included replacing the manually-operated, spring loaded switch that controls the pumping of fluoride into the day tanks at the plant, adding an alarm system in the containment unit in which the day tanks sit, and providing additional operator education and training relating to how to avoid and respond to situations involving chemical spills. It is critically important that all water utilities learn from this incident and adopt similar precautionary measures to avoid chemical spills affecting their potable water supplies. The Commission must place the industry on notice that is will not tolerate lax safety standards at water plants located in Pennsylvania, and that water utilities act at their peril if they allow unsafe conditions to persist at their plants.
In regard to our findings on the public notification issue, while PAWC appears to have met the existing DEP notification procedures established in its regulations, more clearly could have been done to ensure actual and timely notification of the affected population in this case. We do not recommend, however, that the Commission, at this time, attempt to impose another layer of public notification regulations, given DEP's already detailed public notification requirements and its current efforts to amend its regulations in response to the same shortfalls identified by our investigation. Instead, we believe a more productive course would be to develop and adopt a Policy Statement on Public Notice Standards Relating to Unscheduled Water Service Interruptions that would provide guidance to the industry on the types of notice that would comply with the Commission's interpretation of the reasonable service standard contained in the Public Utility Code at 66 Pa.C.S. § 1501.
On the issue of compliance with the Commission's existing regulation at 52 Pa. Code § 67.1, we disagree with PAWC's interpretation that this section was not applicable because there was no ''service interruption'' because consumers still had water during the disruption. Adoption of such a narrow interpretation of our regulation would exclude an important class of disruptions where the quality of the drinking water has been contaminated as occurred in this case. This interpretation would also create confusion with a similar regulation of DEP addressing service interruptions that expressly includes disruptions that affect the quality, as well as the quantity, of the water delivered to customers. The Commission must make clear that its interpretation of this regulation includes disruptions affecting the quality and quantity of drinking water available to the public.
Finally, another troubling finding was that PAWC's Emergency Response Plans for the affected plant and its operations in the region were both woefully out of date. This failure to have updated and accurate information in the current plans is also disturbing because PAWC has an obligation each year to certify to the Commission and DEP that its plans are up-to-date pursuant to their respective regulations. PAWC should be directed to review all their plans for plants within Pennsylvania to verify that they are current. The Bureau of Audits should also consider examining the need to audit water utility emergency response plans to ensure they comply with all applicable laws and regulations, and to take whatever further action may be warranted.
Statement of Chairman Wendell F. Holland Public Meeting March 2, 2006; MAR-2006--L-0022*
Investigation into Pennsylvania-American Water Company's High Fluoride Concentration Incident and of Existing Notification and Reporting Requirements; Doc. No. I-00050109 Before us for consideration is the Investigation into Pennsylvania-American Water Company's (PAWC) High Fluoride Concentration Incident and of Existing Notification and Reporting Requirements. The investigation was initiated as a result of the Commission's December 15, 2005 adoption of the Motion Commissioner Kim Pizzingrilli and I prepared jointly. Staff found, among other things, that PAWC:
1) Acknowledged that the incident was a result of human error (a plant operator bypassed a switch and forgot to disengage it when he left; PAWC has since implemented corrective measures);
2) Did not report to appropriate Commission personnel in a timely manner;
3) Did not properly notify the public of the possible dangers of drinking water with an elevated level of fluoride concentration;
4) Did not identify the population at risk, including any subpopulations of customers that are particularly vulnerable to the contaminant in their drinking water;
5) Did not use its website to notify the public about the water advisory;
6) Admitted that the Emergency Response Plan for the plant where the spill occurred had not been updated since 1993;
7) Admitted that the Emergency Response Plan for its Central Operations is also outdated;
8) Had phone numbers for Commission contacts within these two Emergency Response Plans which Staff deemed to be ''woefully out of date and basically useless'';12 and
9) Nonetheless, certified to the Commission that its physical and cyber security, emergency response and business continuity plans were current, pursuant to Commission requirements at 52 Pa. Code §§ 101.1--101.7.
Staff recommendations include, among other things, that the investigatory report be released to the public and that a proposed Policy Statement be prepared on Public Notice Standards Relating to Unscheduled Water Service Interruptions. While I wholeheartedly agree with these recommendations, I would like to offer several comments on the report, along with:
1) A differing opinion related to what constitutes the provision of adequate alternative water during an emergency;
2) A recommendation that interim customer notification enhancements be implemented prior to the adoption of the proposed policy statement (which could take at least six months to enable time for public comment); and
3) A further recommendation that customer notification guidelines be extended to include service issues affecting the character of service, beyond those of contamination, as will be explained.
First, however, I offer my thanks to our Staff for diligently producing this productive and insightful report in such an expeditious manner, particularly considering the very tight timeframe. Next, I must commend the other commenters, most particularly the Office of Consumer Advocate (OCA), whose input was invaluable.
Appropriate Notice--I completely agree with OCA's statement that ''utilities must be prepared to file actual, personal, timely notice to customers in any event that endangers public health and safety; it is not enough to rely upon broadcast stations and newspapers to deliver the message.''13 Innumerable reasons abound as to why this antiquated notification methodology does not come anywhere close to meeting the needs of today's threats from terrorism, meeting, in ''real time,'' the needs and expectations of today's customers, and does not utilize today's technological capabilities. If a contaminant is found in the water, all customers need to know as immediately as possible. Had the fluoride spill involved a lethal contaminant, I shudder to think of what could have happened.
Institute Interim Enhancements--Our directive to initiate a proposed policy statement on customer notification guidelines should help mitigate this situation. But that process will take time, particularly to enable input from all essential parties. In the interim, I recommend and encourage PAWC and all other water utilities to take whatever immediate steps that can be taken now prior to the issuance of guidelines. This can be tested and enhanced over time. The interim steps should be looked upon as a living protocol with enhancements continuously adopted as technology advances and experience of what is effective becomes known.
These interim or additional forms of notification (depending on the incident) can be as simple and as immediate as:
1) Including a recording on the utility's 24/7 emergency phone line that a particular situation has occurred in a particular location, the potential impact, and a listing of actions customers can take, with updates as often as needed, and
2) The same information should be available on the utility's web site as soon as possible.
Still fairly simple, but requiring additional effort, would be for utilities today to begin review of Reverse 911, instant faxing, text messages, or email blasts to customers on an opt-in basis, to supplant traditional messages to the media. Review of these newer methods should have already begun at all large water companies. Smaller water utilities should be reviewing their customer notification procedures as well to determine if they be enhanced, taking into account their level of resources being less than those of the larger water utilities.
Expand Customer Notification to All Adverse Situations--There is no question that customer notification enhancements should be implemented in all safety related issues such as the fluoride spill. But I believe customer notification enhancements can be taken a step further within our new proposed notification guidelines. Enhanced customer notification should be extremely beneficial in situations that may not appear to have direct or immediate health and safety ramifications (as specified within boil water or do not consume advisories), but customers should be alerted that their water quality or quantity may be affected. These situations can include localized events such as a main break, hydrant repair, flushing or other event that most assuredly can be expected to adversely impact at least a number of customers. With notice, a number of common household activities could be rescheduled if customers knew their water could be either in short supply, discolored, sediment-laden or otherwise unpleasant to use on a short-term basis while the problem was being fixed. Customers could then choose if they wanted to drink this type of water, serve it to their family and friends, make ice cubes, cook with it, wash dishes with it, bathe or shower in it, or do the laundry.
I believe that the notifications procedures used by PAWC are no longer appropriate today, especially in light of today's advances in technology. Just imagine the benefits of sparing customers from the adverse impact of service challenges cited above. Imagine if the customer were a restaurant that unknowingly served food prepared with such water, served drinking water and washed dishes. Similarly, imagine the implications if the customer were a hospital, nursing home or school with or without being given the helpful knowledge to take precautionary steps. Imagine the benefits of an ''Adverse Service Possibility Alert.''
I use the ''just imagine'' scenario to make this point about philosophical points of view. When management is considering how to proceed, a review of its actions should always include placing themselves in the shoes of the customers to see if the customers' needs and expectations are being met. Everyone then benefits: the customers, the shareholders, the community.
I recommend incorporating within the new notification guidelines a method of notifying customers (who choose to be notified) so that they can be alerted that an event happened and that:
a) Their water quality or quantity could be affected, and
b) They may choose to double check the appearance and quantity of their water service prior to starting any water using activity.
PAWC's Emergency Response Plan--In this post-September 11, 2001 era, with companies having allocated significant expenditures and resources to assess vulnerability and to implement those recommendations, and with all the innumerable lessons to have been learned from the responses to Hurricanes Katrina and Rita, I am appalled to learn from the Staff report that PAWC's Emergency Response Plan for the Yellow Breeches plant had not been updated since 1993. If ever there were a time that emergency preparedness activities were on the forefront of water utilities' radar screen, that time is indeed now and has been since September 11, 2001 or possibly dating back to the Oklahoma City bombings. If there ever were a time that a plan from 1993 could be more out-of-date, it would be now.
The recent flooding of last fall would have been yet another trigger of emergency plan review (which should be ongoing, not annual). This glaring failure leads me to yet another glaring failure related to PAWC's utility self-certification obligation to the Commission and to the DEP that its plans are current, pursuant to 52 Pa. Code §§ 101.1--101.7 and 25 Pa.C.S. § 109.707. Commission regulations require utilities to review and update their physical and cyber security, emergency response and business continuity plans on an annual basis. I ask myself how could PAWC file with this Commission signed statements certifying compliance when the Emergency Response Plan for its Yellow Breeches plant had not been updated since 1993.
I wholeheartedly agree with Staff's recommendation that PAWC review all of its Emergency Response Plans and verify that they are current. I completely agree that the Audits Bureau should be encouraged to audit all utilities' progress with their emergency response plans to ensure no other utility is deficient in this area.
Availability of Alternative Water--While the Staff investigation did not find sufficient evidence to fault PAWC with regard to its provision of alternative water supplies during the time period when the ''Do Not Consume Alert'' was in effect, logic dictates another direction. Imagine 30,000 customers without drinking water and with no knowledge of when safe water would be available. Imagine standing in line at night in the cold (and/or in the ice, snow or rain) to obtain water in a ''container'' you have brought with you (if you knew to do so). Imagine if that ''container'' is an unsanitary bucket or other non-sanitized vessel. Imagine that bottled water is not available. Imagine if you are a senior citizen or injured or have the flu. Imagine, over time, local food and supply stores are running low or out of their bottled water. I find PAWC's provision of alternative water--water buffaloes at two locations--even if it met current standards--to be unacceptable.
Free bottled water needs to be available at numerous sites conveniently located throughout the service area. If the outage or contamination is potentially of a longer duration, utility coordination must be done with local vendors. In that way, it can be ensured that adequate quantities of bottled water will be shipped into the area to supplement what the water utility should provide.
Definition of ''Service Interruption''--I am perplexed by PAWC's interpretation of ''service interruption'' as used in the context of Commission outage reporting requirements at 52 Pa. Code § 67.1. The company explained to Staff that its failure to notify the Commission until the day after the spill was because the event did not result in an ''outage, supply cut-off, or cessation of service.''14 If customers cannot drink the water, it would seem obvious that, since it is no longer available for drinking or cooking (and possibly bathing or cleaning, depending on the incident or information delivered about the incident), service has been interrupted for these household purposes. I wholeheartedly agree with Staff's statement that: ''Without a doubt, water for consumption is the most vital and important aspect of service provided by a water utility, and if consumers cannot drink it, then from their perspective, and ours, service has been interrupted.''15
Future Ramifications--This incident has several ramifications--namely, spills, terrorism, emergency response preparedness for disasters, and notifying customers as soon as possible by utilizing today's technology. I reiterate Staff's conclusion: we will not tolerate lax safety standards at water plants in the Commonwealth. We also will not tolerate avoidance of taking care of customers' needs by providing them with less than timely and useful information.
For utility management to determine the appropriate notification actions, management need only place itself in the shoes of the customer. The ultimate guide is to determine, as if they were the customer, and their family would be affected personally, what information would be essential in order to protect their own health and safety and that of their family.
On the one hand, I view this incident as a wake-up call to the management of PAWC, that the failures admitted to must not be repeated. This incident has provided PAWC with an opportunity to take corrective measures (some of which have already been completed) and, going forward, to participate in the development and implementation of enhanced customer notification procedures that should improve customers' daily lives. Finally, the entire water industry, both in this state, as well as nationwide, should benefit from the lessons learned in this incident. In fact, the energy industry could benefit from lessons learned here as well.
[Pa.B. Doc. No. 06-509. Filed for public inspection March 24, 2006, 9:00 a.m.] _______
1 Pursuant to 66 Pa.C.S. § 331(a), the Commission may, on its own motion and whenever it may be necessary in the performance of its duties, investigate and examine the condition and management of a public utility.
2 In addition to the investigation by the Commission, the Pennsylvania Department of Environmental Protection (DEP), and the Office of Consumer Advocate (OCA) also are conducting their own independent investigations of this incident.
3 Rule 14.1 of the PAWC Tariff Water Pa PUC No., at 35, states, in relevant part, that ''the company will, so far as circumstances permit, notify Customers to be affected by any interruption in the water service.''
4 We note that 52 Pa.C.S. § 67.1(c) and (d) state that the Commission will maintain telephone lines for the purpose of emergency notification from utilities and the Commission will notify each utility of the emergency numbers to be called. The Commission has met its obligations under these provisions. Specifically, FUS maintains a Commission emergency contact list and has provided this information to each utility in the state. It is, in turn, the duty of each utility to maintain current contact information, as certified to the Commission pursuant to 52 Pa.C.S. §§ 101.1--101.7.
5 Subsequently, PAWC determined that less than 100 gallons of the 372 gallons spilled actually reached the plant's potable water supply.
6 In addition to the investigation by the Commission, DEP and the Office of Consumer Advocate (OCA) also are conducting their own independent investigations of this incident.
7 Commission staff acknowledges that PAWC cooperated fully with its investigation. PAWC made its employees and facilities available upon request and responded fully to all our data requests.
8 DEP has a three-tier notice system. A Tier 1 notice is required for situations with significant potential to have serious adverse effects on human health as a result of short-term exposure. These situations have the potential to cause acute health effects within hours or days of the time that the contaminant is consumed. A Tier 2 notice is required for other situations with the potential to have serious, but not immediate, adverse effects on human health. These situations have the potential to cause chronic health effects that may occur after persons consume a contaminant at levels over the health standard for many years. A Tier 3 notice is required for all other situations not included in Tier 1 or 2. United States Environmental Protection Agency, Publication Notification Regulations for Public Water Systems, May 4, 2000.
9 On February 16, 2006, the Governor's Office issued a press release directing DEP to strengthen the notification procedures that public water utilities must follow to alert residents when there is an imminent threat to drinking water supplies.
10 Rule 14.1 of PAWC Tariff Water PA PUC No., at 35, states, in relevant part, that ''[t]he Company will, so far as circumstances permit, notify Customers to be affected by any interruptions in the water service.''
11 We note that 52 Pa.C.S. § 67.1(c) and (d) state that the Commission will maintain telephone lines for the purpose of emergency notification from utilities and the Commission will notify each utility of the emergency numbers to be called. The Commission has met its obligations under these provisions. Specifically, FUS maintains a Commission emergency contact list and has provided this information to each utility in the state. It is, in turn, the duty of each utility to maintain current contact information, as certified to the Commission pursuant to 52 Pa.C.S. §§ 101.1--101.7.
12 Staff Report on Investigation into Pennsylvania American Water Company's High Fluoride Concentration Incident and of Existing Notification and Reporting Requirements, Docket No. I-00050109, page 20.
13 Ibid., p. 8
14 Ibid., p. 17.
15 Ibid.
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