THE FOCUS ON WATER AFTER FLINT

WHAT'S IN YOUR WATER?  DO YOU NEED TO FIND OUT? 

By Greta K. Kolcon, Esq.

The Flint Water Crisis has focused the nation on water quality standards and testing.  Questions abound, but consistent themes include how did this situation occur and how do we prevent it from happening again.  The increased focus has led to widespread review of our nation's water infrastructure, and there are new pieces of proposed legislation at the federal and state level.  Drinking water quality issues have replaced fracking articles in newspapers across the country. 

The Safe Drinking Water Act:  Limited in Scope

The principal federal legislation dealing with water quality for drinking water, the Safe Drinking Water Act (SDWA), was originally passed in 1974 and amended and reauthorized in 1986 and 1996.  However, it only applies to public water systems, which are those systems having at least 15 service connections or serve at least 25 people for at least 60 days a year.  Pursuant to this legislation, the Environmental Protection Agency has authority to establish national standards for drinking water to protect against health effects from exposure to naturally-occurring and man-made contaminants.  If you receive your water from a public water system, you may be familiar with the annual disclosure report of testing of that water.  The Environmental Protection Agency posts municipal water-quality reports at epa.gov/safewater. 

The important thing to understand about the Safe Drinking Water Act is that it does not regulate all drinking water, including private wells.  It also does not ensure that water coming out of a tap is safe.  While the water supply may be considered safe, and the water coming through the supply line may be considered safe, there may be lead pipes between the supply line and the tap.  Although installation of lead water pipes was outlawed by federal law in 1986, some fixtures that contained up to 8 percent lead were still allowed to be labeled as "lead free."  Perhaps more importantly, the law impacted new plumbing installations.  Lead pipes in older homes and buildings may not have been removed, and may contribute to increased, and even unsafe, levels of lead in water from a tap.

 New Emergency Regulations In Effect for Schools in New York State

 Until just recently, schools in New York were not required to test their drinking water for lead, although schools could participate in a voluntary program.  New York Governor Andrew M. Cuomo signed landmark legislation on September 6, 2016, which mandates that school across the state test drinking water for lead contamination.  Emergency regulations were promptly issued by the New York State Department of Health, which require testing to be completed and reported by October 31, 2016. 

 Unsafe Water May Impact Human Health & Create Liability

 Lead in water is only one potential contaminant that impacts human health, but it is a dangerous one.  Above ground, lead poisoning of children due to the prevalence of lead-based paint used throughout heavily populated urban areas before 1978 has been a source of widespread litigation over the last few decades.  According to the United Stated Department of Health and Human Services, lead poisoning is the number one environmental threat to the health of children in the United States.  The effects of lead poisoning can be extremely serious, including permanent injuries to the brain and nervous system, and even death. 

There are many other contaminants that can impact drinking water, including pesticide run off, cleaning products, parasites, bacteria, and cosmetic products like plastic microbeads.  The EPA maintains a list of contaminants, but the standards are not necessarily strict enough to ensure water "safety."  If your home was built before lead-free pipes were mandated in 1986 or if you use well water, a test is the best way to assess the quality of the drinking water at your home.  Water filters may help improve the quality of water, but without appropriate testing, you will not really know what is in your water.  And, while boiling water may kill bacteria, it could also concentrate other harmful contaminants like nitrate, arsenic and lead.  If your water is tested and is not safe, consider further investigation.  Removal and replacement of lead water pipes under your sink may be less expensive and hazardous in the long run than using a water filter.

If you are running a daycare or a business, and even if you are not currently required by statute or regulation to test your water, you should be prepared to have your patrons, customers, or employees asking questions.  The reasonable standard of care often changes as public education develops, so the failure to test drinking water at your business five years ago may be viewed through a different lens than the failure to test drinking water at your business today.  Additional new laws will likely proliferate as our country begins to focus on the infrastructure under the ground and the safety and security of our drinking water supply. 

For legal assistance or specific recommendations regarding your situation, please contact your Woods Oviatt lawyer. 

Greta K. Kolcon, Esq. is a Partner in the firm’s Litigation Department and can be reached at [email protected] or (585) 987-2812.