In a perfect world, the legislation Mayor Bill Peduto’s staff wrote and submitted to city council to start solving Pittsburgh’s lead crisis wouldn’t have been necessary.

That’s because, until last week, Peduto and his staff saw that bill as a “secondary” measure that the city would only take if lawmakers in Harrisburg were unable to grant the Pittsburgh Water and Sewer Authority the power to replace lead water lines under homeowners’ yards and driveways.

The water authority [PWSA] already has the power to replace lead service lines on public property but must stop at the private property line. However, replacing only part of a lead line can actually increase lead exposure and the agency halted partial line replacements in early June.

At this point, Pittsburgh officials say they are unwilling to wait any longer on Harrisburg, currently embroiled in the state budget conundrum, and city council is expected to pass Peduto’s bill tomorrow. But the run- up to this point was the result of a complex policy strategy — and parallel solutions — that’s caused residents to wait months for a concrete plan.

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There have been two main pieces of legislation in question to address full lead line replacement: One in Harrisburg that would amend state law and one in city council that would apply to only the city of Pittsburgh and its 70,933 service lines.

Between the two main pieces of legislation in question, city officials prefer the proposed bill written by state Sen. Wayne Fontana (D-Allegheny). It would offer a clear directive to PWSA that yes, they could replace the privately owned lead lines if homeowners permitted. A second bill Fontana authored would allow PWSA to dip into a pot of state money to help pay for the replacements.

Peduto’s legislation, on the other hand, offers a convoluted legal workaround. It says the city could authorize PWSA to replace lead lines as a matter of public safety and, unlike the water authority, the city was not subject to the Municipal Authorities Act, the law that governs authorities like PWSA and is currently preventing it from replacing the private-side lines.

Peduto said in a June interview that he didn’t “want to rush into a short-term solution,” which, at the time, is how he viewed his bill.

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“If we get [Fontana’s] bill passed through the House, we won’t need it. But if for any reason the House should decide they’re not going to pass it, then we’ll need it,” he said. “But it’s going to be much more complicated than just allowing the municipal authority to remove private lines.”

The complications include figuring out how to pay for the line replacements and how to establish a system of contracts that will allow the water authority to work on each homeowner's property.

But as Harrisburg became mired in budget debates, Peduto made the decision to run with his bill despite the roadblocks. In a council meeting last Wednesday, Peduto’s legislation came up for discussion after more than a month of delay. The mayor’s chief of staff, Kevin Acklin, said the city simply couldn’t wait for Harrisburg any longer.

“We had held this bill for one reason: because we felt Harrisburg was going to come through,” he told reporters. For now, it’s clear that’s not happening.

Fontana’s bills

Since PWSA began publicly acknowledging the city’s lead crisis, officials have been scratching their heads as to how they could locate and replace water lines made of lead. While PWSA has been building a map for the past few months of where the lines are — the first piece to the puzzle — its solicitor, Mark Nowak, has argued that state law prevents the authority from simply replacing the full lines. While some have raised questions about Nowak’s interpretation, the PWSA has maintained that it needed direction from the state before it could replace privately owned lines.

Enter Fontana. In April and May this year, he introduced two bills in the state Senate, one of which would provide that direction. One bill, SB 656, would amend the Municipal Authorities Act to simply allow PWSA to replace privately owned lead lines. Only a vote on floor of the House of Representatives and a signature from Gov. Tom Wolf stand in its way. The other, SB 639, would allow the Pennsylvania Infrastructure Investment Authority (PENNVEST) to supply funding for private line replacements. Like SB 656, that bill passed the Senate but is awaiting discussion from a House committee and a vote. The representative who chairs the committee, John Maher (R-Allegheny), said he has concerns about using PENNVEST money for work on private property and that he hasn’t yet heard from Peduto. Acklin and Peduto both said they’d reach out to Maher and would continue to lobby lawmakers in Harrisburg.

As the spring wore on and Fontana’s two bills stalled in the Senate for a brief period of time (they both ended up passing unanimously), Peduto’s staff began drafting its own legislation. In early June, Peduto’s administration approached Councilman Dan Gilman and asked him to sponsor and introduce the bill in council, which he did on June 13. At that point, it appeared to council that the city was moving away from Fontana’s bills and going in its own direction.

But the same day, Peduto and Acklin were in Harrisburg, lobbying lawmakers. Over the course of the day, the pair met with House Speaker Mike Turzai, Gov. Tom Wolf and Democratic leaders in the House. Peduto also held a press conference about climate change with Sens. Fontana, Jay Costa and Anthony Williams. Peduto said he and Wolf discussed Fontana’s bills and that the governor supports those measures. J.J. Abbott, Wolf’s spokesman, confirmed Peduto’s account of the meeting.

Peduto said he told Turzai in a meeting that he wouldn’t oppose his legislation that would give the state Public Utilities Commission (PUC) oversight of PWSA. He said Turzai also worked in to that bill some language from Fontana’s SB 656. Peduto also said he met with House majority leader Rep. Dave Reed (R-Indiana) and discussed with him an idea of rallying a group of Republicans and Democrats to move the PENNVEST bill through committee and schedule it for a vote.

City council, though, was focused on moving forward with Peduto’s bills. And that was the reason for a briefing the mayor’s staff and PWSA officials held for council members on June 19. Even though council members and staff raised a number of serious questions about the legislation, including whether or not it had a solid legal footing, members and staff who attended said it was clear the city was done waiting on Harrisburg.

That briefing, though, was the only formal meeting Peduto’s staff held with council members. The mayor said last Thursday that while his staff provided information to all council members who asked for it, he could have been more transparent about his plans. (Gilman said he received weekly updates.)

“We certainly could have provided additional information but at the same time it was always made clear to council that this would be required to be able to remove the lead lines and that we were going to pursue the other option, which we pursued first,” he said.

Two days after the briefing, Fontana’s bills passed the Senate. The legislation before city council stalled. Week after week they appeared on council’s agenda and week after week Gilman asked council to hold off on discussing them. When Fontana’s bills failed to sail through the House, Peduto blamed lawmakers in Harrisburg for the delay of the city’s proposal, indicating that the state bills were preferable to his own. On Twitter, Peduto and Stephen Miskin, Turzai’s spokesperson, exchanged terse words about the bills.

This is utterly ludicrous. @billpeduto Blames Harrisburg For Delay Of Lead-Related Bills In City Council https://t.co/jCHM3JLqoc — Stephen A. Miskin (@Sam1963) July 13, 2017

Unanimous approval in the Senate, but House won't even bring it Committee... #sad https://t.co/wbdEC4NAU3 — bill peduto (@billpeduto) July 13, 2017

At the time, Fontana expressed his own gripes.

“It becomes a political thing more than it is a practical thing here. I mean, why would you hold the bill up when it's not partisan?” he said. “Are you holding it up because I'm a Democrat and I wrote the bill? Are you holding it just up because he's a Democratic mayor? Is that the reason? ... It's frustrating … [the bill] should be run and somebody needs to tell us why it's not getting run.”

Eventually, though, it became clear that legislators were not going to move forward on either Fontana’s bill or the PUC oversight bill until after the state passed a budget.

“To think we’re going to blindly take up bills that last week of June, it’s crazy,” Miskin said. “And then to have local bills held up?”

The budget process is still ongoing and it could be nearly two months before the PWSA-related bills are passed, if approved.

A path forward

City council’s preliminary vote last Wednesday — and its final vote tomorrow — would allow the city to implement Peduto’s bill, though there are still many unanswered questions.

For one, the city has yet to come up with a plan for how the replacements will be paid for.

Preliminary ideas include the city, PWSA and homeowners sharing the cost, although Acklin said using PENNVEST money would be ideal. If homeowners have to pay for the line replacements, Acklin said they’d set up a scale based on income and other factors, so residents who can’t afford the work would pay less. Acklin said the city should have a funding plan by the end of August.

The city is also pursuing a consent decree from the state Department of Environmental Protection that would provide the city some legal protection as it starts to replace lines and would allow PWSA to add orthophosphate to the water to help control lead corrosion. Robert Weimar, the PWSA director, said orthophosphate could lower lead contamination significantly, well below 10 parts per billion. PWSA hadn’t used phosphates before because doing so could have caused algal blooms at some of the reservoirs. Officials in Flint, Michigan, also chose to not use those chemicals because of that risk. But Acklin said he thinks PWSA has found a way to avoid that problem. He hopes that agreement is in place by mid-September.

Once the state passes a budget, and lawmakers come back from summer recess, Acklin said he still hopes they’ll pass Fontana’s bills and that he’s open to lobbying Maher, the committee chair currently holding onto the PENNVEST bill, to pass it. If the bills pass, Acklin said the work of replacing lead lines will shift fully to PWSA, rather than being shared between the authority and the city.

“We still want action from Harrisburg. That is the best long-term solution to this problem,” Acklin said. “Give us the power to replace the lines for the agency that is best suited to replace it — which is PWSA — help us out with some funding, we’ll even take a loan ... and get us a consent decree.”

To some Republicans in Harrisburg, though, Acklin’s ask is a tall order. Both Maher and Miskin expressed misgivings about using PENNVEST money for private line replacements. Essentially, Maher said, it asks “all of Pennsylvania to pay for something that affects part of Pennsylvania.” The bill isn’t limited to PWSA or Pittsburgh, but Pittsburgh would likely be the first to benefit if it passes.

“Right now, a lot of people are looking to Harrisburg for money and Harrisburg doesn’t have discretionary money to throw around,” Miskin said. “This legislation is asking for a major policy change.”

Even still, Acklin and Peduto said they’re committed to getting work started now, so they can eventually eliminate lead in Pittsburgh’s drinking water. City council is expected to consider a funding plan by the end of August, after its members come back from a month-long recess. A change to the state law would be “ideal” and that remains the end goal, Peduto said. “It’s always been about, how do we completely change this to ensure quality water for 50 years, not five minutes?”

You can reach J. Dale Shoemaker at 412-515-0069 or dale@publicsource.org. He’s on Twitter at @JDale_Shoemaker.