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 Gkolcon@woodsoviatt.com or (585) 987-2812.
