Recent developments in groundwater testing and regulation have made it easier to ensure safe public drinking water for all. If harmful contaminants have been detected in your water source, it’s crucial to take action to comply with the law and protect your community from exposure to health risks.
While the Environmental Protection Agency sets national standards for drinking water purity, many states have put stricter regulations in place to protect their residents against man-made contaminants such as per- and poly-fluoroalkyl substances, Methyl Tertiary Butyl Ether and 1, 2, 3 trichloropropane. Research suggests that exposure to these contaminants can have serious health implications, including increased risk of cancer, weakened immune systems, increased cholesterol levels and potential birth defects, among others.
Many of the threats posed to public drinking water today arise from the use of defective commercial products near surface and groundwater sources, or from consumer products that release harmful chemicals into the water system through everyday use.
Shifting the costs to those responsible
Whether the source of pollution is natural or man-made, the public often has to bear the burden of funding treatment costs through rate increases. But with man-made contaminants, water utilities and their constituents are increasingly pushing for more accountability.
Toxic man-made chemicals showing up in water systems is not new, but it has become more common, as municipalities are now increasing mandatory testing due to state and federal regulations. As municipalities become more aware of the man-made contaminants in their water systems, and as the public sentiment shifts toward holding corporate polluters accountable for the environmental damage, litigation is becoming a water provider’s best line of defense.
The good news is municipalities are having success in seeking compensation from the manufacturers responsible. A precedence has been set, and the legal team at SL Environmental Law Group has not lost a water contamination case yet. Some recent wins include over $250 million settlement for the state of New Hampshire; $26.5 million for St. Louis, Mich.; $30 million for Clovis, Calif.; $9 million for Livingston, Calif.; and many smaller settlements that have all lifted the cost burden of water remediation from small to medium-sized utilities.
Whether your municipality is facing new maximum contaminant levels or has recently discovered the presence of a contaminant in your water system, you need to act swiftly regardless of funding. Protecting citizens and preserving your legal rights are vital. Transparency is crucial from the beginning, and keeping the public informed as you determine the next steps and decide whether or not to pursue litigation is important.
Although some water utility leaders are reluctant to draw unwanted attention to harmful contamination, the Flint, Mich., crisis is a strong reminder of the repercussions of failing to be fully transparent.
How and when you respond can significantly impact your ability for a successful legal outcome. Here are some critical first steps:
Step 1: Engage an engineer to assess solutions
Once you’ve detected a contaminant in your water supply, the first step is to investigate possible solutions. There are many ways to address, mitigate and respond to water contamination problems, including:
- Water treatment. Various media can remove certain contaminants from the water supply, and novel adsorbents are being developed regularly. Treatment may need to be used in conjunction with other solutions.
- Purchasing alternative water sources. This can be a costly short-term option and may disrupt existing water treatment solutions, since the introduction of water from a new source may impact existing treatment.
- Abandoning or drilling new wells. This may be the costliest of choices due to the uncertainty of finding greater water quality and potential losses in production.
The cost of additional water treatment is significant but often necessary. Although you’ll have to incur upfront costs to move quickly on remediation, you can then bring legal action to recover those costs.
Step 2: Determine how the contamination occurred
In addition to reacting quickly on remediation, you’ll need to understand how the contamination occurred in the first place. This calls for an investigation of who was responsible and whether the impact is ongoing. This research can be time-consuming, but it’s crucial for predicting whether levels may increase over time. The more you understand the reason for contamination, the more confident you can be in your chosen solution.
Naming the parties responsible for contamination can also help prepare you for pursuing compensation. This process is easier with the help of a team of experts in water contamination law, who can work with you to identify contamination sources even if you decide not to move forward with litigation to recover funds.
SL Environmental Law Group works closely with expert witnesses, like hydrogeologists and engineers, who can help uncover the causes of contamination. This step is critical in determining a successful legal outcome and can speed up the time to recover funds for treatment or replacement water.
Step 3: Determine how to fund your treatment solution
When faced with treatment costs, many water utilities decide to pay for these expenses by either increasing water rates, issuing bonds or finding applicable government grants. In instances when contamination occurs due to natural causes, these may be the best options available.
However, when a detected contaminant can be traced to the use of a commercial product use or manufacturing process, it may make sense to file a lawsuit. Across the country, water systems are placing the financial responsibility of treatment costs on the source of the problem: the commercial manufacturers whose defective products have resulted in the contamination of public drinking water.
Choosing a water law firm to guide you through the process
The steps listed above aren’t easy to navigate without experts to advise you along the way. Many water utilities decide to work with a firm that has a specific focus on water law to increase their chances of successful cost recovery after contamination is found. In your search for the right team to serve as your trusted advisors, there are a few criteria to consider.
Seek out a firm with many years of experience in water law exclusively. Firms covering broader environmental law can be too generalized to understand the nuanced approach it takes to move through the legal process efficiently. The firm you choose should draw from experience working with water utilities, state and local governments, engineers, hydrogeologists and water treatment technologists — they should also be able to point to a long history of water law settlements and verdicts won by their team.
Pursuing litigation often requires a large investment of time and resources from the utility with no guarantee of a favorable result. To move forward confidently, utilities must consider another important factor in assessing a law firm: their billing structure. Instead of an hourly billing method, where the client pays a set fee along with any expenses incurred by attorneys along the way, seek out a contingency fee arrangement that allows you to pay only when a settlement or trial verdict is won.
At SL Environmental Law Group our approach is unique. Rather than rely on federal acts involving time- and resource-intensive procedures, we use well-established legal theories based on common law and work at the local level. This technique has proven effective for our clients, allowing us to move quickly and efficiently through the court system and focus on reclaiming damages from a single polluter rather than a group of ancillary stakeholders.
A note of caution
The length of the statute of limitations, the starting point for measuring contaminants and other factors vary considerably from state to state, so water systems who are considering bringing a lawsuit against those responsible for the contamination should consult with legal counsel at the first opportunity, to ensure they are within the legal timeframe for filing a lawsuit.
Additionally, the trend for lowering and setting low MCLs and the tightening of federal regulations means more municipalities will be stepping up, which can put pressure on the manufacturer’s legal reserves, resulting in smaller settlements. Being among the first to take action may result in more generous settlements and also ensures your lawsuit is scheduled into busy court dockets as early as possible.
Assess the regulatory outlook
It’s important to both understand current regulations and have a sense of how they might change. Water quality standards are not static — they have the potential to become more stringent as new testing techniques are developed and health impacts are studied.
For example, PFOA and PFOS are chemicals that are commonly being considered for regulation by states. However, there is a whole class of unregulated PFAS chemicals that are currently undergoing scientific and regulatory scrutiny. The EPA has recently published a proposed 5th Unregulated Contaminant Monitoring Rule. This would add a further 29 PFAS substances to be monitored in sample collection between 2023 and 2025.
Any response to contamination should take into consideration possible regulatory changes that may impact treatment options. Building in some kind of protection against these unknowns is important, and a good legal team can help with recommendations to achieve this.
Visit www.slenvironment.com for more information.