State officials won’t say how many Elkhorn residents might have been exposed to dangerous levels of arsenic and other chemicals for eight months in 2018, but the state could take legal action in the matter, adding to the recently announced criminal case.

Criminal charges were recently filed against an Elkhorn Waterworks employee in the matter, nearly three years after the Department of Natural Resources discovered the city water utility was not adding a cancer-limiting chemical to the water.

The state Department of Justice is also considering civil action in the matter, DNR and Department of Justice officials confirmed. But officials demurred when asked exactly what kind of civil action or when it might begin.

“The matter is an open investigation, and we are unable to comment at this time,” Department of Justice spokeswoman Samantha Standley said in an emailed statement. Standley did not respond to a follow-up question.

“The department is following the stepped enforcement process,” said DNR spokeswoman Molly Meister, in an email. “The case has been referred to the Department of Justice, therefore no additional information is available.”

Christopher J. Robers is charged with second-degree reckless endangerment and misconduct in office/failing to perform known duties, both as a party to a crime. The Gazette could find no mention of anyone else being charged.

Robers made his initial court appearance Monday and was released on a signature bond. A preliminary hearing is set for Nov. 5.

Robers was charged as a party to the crime, which suggests someone else could be criminally liable for the arsenic levels. District Attorney Zeke Wiedenfeld said he could not comment on any other potential charges or defendants.

Wiedenfeld would only confirm in an email that “at this time no one else is charged.”

Sadie Derouin of the DNR Bureau of Law Enforcement, who has been involved in the case from the beginning, said her department’s stepped enforcement process addresses environmental violations “at the lowest level of enforcement appropriate for the circumstances.”

Those steps could start with a notice of violation, which could “escalate to other steps, like some sort of special order or referral to the Department of Justice. We may jump around in the steps depending on the situation.”

A presentation Derouin gave to a DNR study group earlier this year indicates that referral to a prosecutor is the highest, or most serious, step in the process.

Elkhorn City Administrator James Heilman told The Gazette the city has not retained an attorney for anything related to the arsenic violations.

Heilman, who was not city administrator at the time of the violation, stressed that city residents are not in any danger from the water system now because the water is being treated.

Derouin said the state’s civil action would relate to a “notice of violation” sent to Elkhorn officials on Jan. 29, 2019. The notice refers to a DNR “sanitary survey” of the Elkhorn water system in October 2018, which showed Elkhorn wasn’t using its arsenic-treatment system.

The DNR then tested the water twice and found levels of 20 and 17 parts per billion of arsenic, well above the maximum allowable level of 10 ppb, the notice states.

The notice led to an “enforcement conference” that February. A DNR memo says city officials at the conference claimed they didn’t believe they were doing anything wrong when they started adding water from Well 9 to the city water supply without treating it for arsenic.

The arsenic system was in place, but it wasn’t used from the time the well started supplying city water in January 2018 through the end of October that year, the memo indicates.

The DNR conference summary states that Well 9 was pumping 300,000 gallons a day from January through the end of October 2018 without treatment to reduce arsenic levels. It was only after the DNR inspected the well that the water was treated, starting that Oct. 31.

“Elkhorn (officials) believed they would be specifically told by the (DNR) at what point they should start adding the ferric chloride,” the memo states.

Arsenic occurs naturally in groundwater in many parts of the country. A process using ferric chloride reduces those levels.

The DNR was not responsible for telling the city to start treatment because “ferric chloride was an expected component of the treatment system, as indicated in previous plan-approval documents,” according to the memo.

During the conference, DNR officials “discussed the risks to public health if drinking water contaminants are not monitored and treated for as required,” the summary states.

Elkhorn officials knew the arsenic levels in Well 9 were well above the “maximum containment level” of 10 ppb but never reported that to the DNR, the summary states.

The DNR conducted an inspection before the well went online in January 2018, when a chemical container for ferric chloride was present, but city officials didn’t tell the inspector that container was empty, according to the summary.

Ferric chloride supplies did not arrive until that March, but they were not used until about eight months later.

Doug Snyder of city consultant Baxter and Woodman Consulting Engineers told the DNR at the conference that Well 9 had been operated “intermittently.” Yet records showed the well was pumping an average of 300,000 gallons a day.

“Elkhorn stated Well 9 was designed to meet 50% of the average daily demand but was contributing 30% … and that’s why Elkhorn believed operations to be considered intermittent,” the memo states.

Elkhorn officials also told the DNR it was unlikely the public was served water with arsenic exceeding the allowable level because the water was mixed with water from other wells. But DNR officials said that based on the layout of the water distribution system, some parts of the city would have received water only from Well 9.

“The (DNR) stated it was difficult to know who received, or how much arsenic was received, by those served by the distribution system,” the memo states.

The summary says the DNR also told city officials the city’s notice to residents of the arsenic levels was not posted for a long enough time and told the city to repost it with a statement that “water exceeding the arsenic (allowable level) was served to the public starting in January 2018.”


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