Water contamination is an increasingly relevant issue, and both the Environmental Protection Agency (EPA) and individual states have been enacting regulations to protect residents against contaminants. As a result, more water providers are discovering that the chemicals in their water supply are exceeding maximum contaminant levels (MCLs) and are left with the responsibility and financial burden of cleanup. Water contamination is a major health threat, and therefore must be dealt with promptly—a process that can quickly become complicated and costly. In this article, we’ll break down the steps for the most efficient way to deal with water contamination and ultimately hold polluters accountable.
Water Contamination: Chemicals and Sources
It’s important to understand what these contaminants are and where they came from. Many of the contaminants that exist in the environment have resulted 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. Contaminants of concern include per- and poly-fluoroalkyl substances (PFAS), Methyl Tertiary Butyl Ether (MTBE) and 1,2,3 trichloropropane (TCP).
Seven Steps for Success
How and when you respond can significantly impact your ability for a successful outcome. Here are some critical steps for dealing with contaminant removal from water systems.
1. Engage An Engineer to Assess Solutions
Once you have detected a contaminant in your water supply, the first step is to investigate possible solutions. There are several ways to address, mitigate, and respond to water contamination problems, including:
- Water treatment and contaminant removal from the water supply. This may need to be used in conjunction with other solutions. Although you will have to incur upfront costs to move quickly on remediation, you can bring legal action to recover those costs.
- 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 better water quality and potential losses in production.
2. Determine How the Contamination Occurred
In addition to reacting quickly on remediation, you will need to understand how the contamination occurred and investigate who is responsible and whether the impact is ongoing. This research can be time-consuming, but it is 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 experienced professionals 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.
3. Understand the costs
For most contaminated systems, getting back into compliance will require costly treatment measures that could range from hundreds of thousands to millions of dollars for construction and maintenance. For some cash-strapped water systems, these costs could prove catastrophic unless outside funding is secured. The potential costs include:
- Design, construction, and operation of new wells and treatment facilities
- Extension of service to impacted private wells
- Replacement water
- Property damage
4. Determine How to Fund Your Treatment Solution
When faced with treatment costs, many water providers 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 or manufacturing process it may make sense to file a lawsuit. Across the country, water systems are increasingly placing the financial responsibility of treatment costs on the source of the problem, the commercial manufacturers who distribute these toxic chemicals through their defective products.
5. Consider Litigation
In recent years, the public has been increasingly calling for manufacturers to take responsibility for environmental damage to reduce costs for taxpayers, and water providers have identified litigation as a desirable option to cover water treatment costs. Many water systems, municipalities, states, and businesses have in fact seen success in receiving compensation from liable manufacturers. For example, the Golden State Water Company won a suit against Shell and Dow Chemical regarding 1,2,3-TCP contamination, the City of Pomona was awarded $48 million in damages for cleanup of the toxic chemical perchlorate in the groundwater supply, and the State of New Hampshire received over $350 million for methyl tertiary-butyl ether (MTBE) contamination.
6. Choose a Good Legal Team
If you decide on legal action, you’ll want to seek out a firm with many years of experience in water contamination litigation exclusively. A good law firm will work closely with experts like hydrogeologists and engineers, who can help uncover the causes of contamination and speed up the time to recover funds for treatment or replacement water. Firms that do not focus in water contamination litigation tend to be too generalized and may not be able to take a nuanced approach to move through the legal process efficiently. Instead, it would be ideal that the firm you choose has trial experience on water contamination cases, a history of water law settlements, and experience working with water providers, state and local governments, hydrogeologists, and water treatment engineers.
Pursuing litigation can require a large investment of time and resources from the water provider with no guarantee of a favorable result. Therefore, it’s important to consider a firm’s billing structure when assessing next steps. Instead of an hourly billing method, where the client pays a set fee with expenses incurred by attorneys along the way, you may want to seek out a contingency fee arrangement that allows you to pay only if a successful outcome is achieved. This way, water systems only stand to benefit about results, without any upfront or ongoing costs.
7. Act Sooner Than Later
If you are considering bringing legal action, you should be aware of the statutes of limitations, the time limit that applies to every legal claim. Outside of special circumstances, claims brought after the statute of limitations has run out cannot be brought to court, no matter how valid or valuable they are. The time to bring a lawsuit and what triggers the clock varies from state to state, so water providers considering this option should consult with legal counsel at the first opportunity.
It is always important to stay abreast of current regulations and understand how they might change. Water quality standards are not static—they have the potential to become more stringent as testing techniques develop. For example, PFOA and PFOS are already regulated in many states, but there is a whole class of unregulated PFAS chemicals currently undergoing scientific and regulatory scrutiny. The EPA has recently published a proposed 5th Unregulated Contaminant Monitoring Rule (UCMR 5), which would add 29 PFAS substances to be monitored between 2023 and 2025.
Finally, lowering MCLs and tightening federal regulations mean increased pressure on manufacturers’ legal reserves, resulting in fewer funds for remediation. Being among the first to act may result in more generous settlements and ensure that your lawsuit is scheduled into busy court dockets as early as possible. To learn more, reach out to our team where we will be happy to discuss your specific options further.