The water contamination in Flint, Michigan, has raised awareness of an issue that rarely gets attention, even though we all use the public water supply. All too often we simply assume our water meets all applicable standards and is safe to use. Unfortunately, that is not always the case.
In Flint, as many as 8,000 children under age 6 were exposed to lead after a budget-cutting decision to switch drinking water sources. But Flint is not alone. The New York Times reported similar incidents of lead in drinking water occurred in Washington, D.C., in 2001; Columbia, South Carolina, in 2005; Durham, North Carolina, in 2006; and even Jackson, Mississippi, last July. While most drinking water systems provide safe drinking water, these events highlight even stringent rules and regulations cannot prevent every threat, such as contaminants in water obtained from streams or lead leaching into water from old pipes.
The Safe Drinking Water Act (SDWA) allows EPA to set legal limits for contaminants in drinking water. At this time, multiple contaminants are regulated under the SDWA, including lead, copper, certain microbes and a myriad of chemicals. There are even limits on the amount of disinfectant and disinfectant byproducts that can be found in drinking water.
Lead is an ongoing problem. The current standard requires corrective actions be taken if lead concentrations exceed an action level of 15 parts per billion. Lead in old pipes, plumbing fittings and fixtures, solder and flux contributes to the amount of lead in our drinking water. The SDWA contains a prohibition against the use of lead in pipes and associated equipment. Since 1986, these items are supposed to be “lead free.” However, millions of older pipes remain in service, ready to leach lead due to simple jostling or a change in water chemistry that may lead to further corrosion.
One feature of the SDWA is the requirement the public be informed if there is a problem with their drinking water. The Public Notification Rule requires consumers be alerted if there is risk to public health, if the water does not meet drinking water standards or if the water system fails to test its water. Further, the SDWA requires “consumer confidence reports” be provided by community water systems to their customers.
All too often, though, it seems the public is not properly informed of the excess contaminants in their drinking water supply. In some of the cases noted above, the public was not informed for months after the government became aware of the problem. The public, though, is not without a remedy.
The SDWA contains a remedy for citizens to sue when any person, which includes a municipality that may be in charge of a drinking water supply, is in violation of any requirement prescribed under the SDWA or its regulations. Penalties, costs and attorneys’ fees may be awarded. These types of actions can serve as a deterrent to violators who try to avoid compliance with the regulations.
The general prohibitions against citizen suits apply, including notice to the alleged violator prior to suit and a bar to a suit when the state is diligently prosecuting an action for the same violations. Municipalities or private water systems that supply drinking water should, as a first measure, comply with the rules but seek a binding resolution with the regulatory authority if it finds it is not able to meet the standards or is otherwise in violation. At that point, the alleged violator may have a possible defense against a citizen suit.
We certainly tend to trust our drinking water is safe. Most municipalities and water systems work hard to make sure it is safe. But our drinking water supply can contain contaminants at levels we may never suspect. When that happens, information should be made available for affected citizens to understand the risk and assert any appropriate remedies.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality.
For more information, contact John B. King at jbk@bswllp.com or call (225) 381-8014.
