Water Contamination Laws: Statute of Limitations Breakdown

3.18.24

For drinking water providers and clean water agencies, the discovery of water contamination can be an unwelcome surprise. In addition to potential health concerns and negative public perception, the high cost of managing pollution often creates a significant financial burden for utilities. As awareness and regulatory momentum build for various contaminants, many systems are finding themselves faced with unexpected challenges. An increasingly popular solution for utilities is to seek to hold polluting manufacturers accountable for cleanup costs through the legal process. This strategy has proven effective for many systems.

There are advantages to acting quickly when considering legal options to fund water contamination solutions. Starting the process sooner rather than later can make for an easier path to cost recovery, as statutes of limitations may bar recovery if systems wait too long after detecting contaminants. That said, requirements are specific to each state and each utility’s situation is unique. By better understanding how statutes of limitations work, water providers and clean water agencies can make the best choices for their communities.

In this blog, we will cover the impact and sources of water contamination, explain the significance of statutes of limitations for utilities considering legal options, and provide insights on how statutes of limitations may affect drinking water providers that have opted out of the 3M and DuPont PFAS settlements. Finally, we’ll share the steps systems should take as soon as possible to take advantage of potential cost recovery sources.

New Water Contaminants, New Challenges

For utility leaders responsible for meeting national and state standards, water quality may seem like a moving target in today’s rapidly evolving regulatory environment. Testing and reporting requirements have come into play for several contaminants such as PFAS,1,4-dioxane, and 1,2,3-TCP, drawing increased attention to these chemicals' presence in water sources across the country. Even systems with a long and successful history of meeting clean water regulations and drinking water standards may encounter challenges when new testing requirements and methodologies reveal previously unknown contaminants. The cost of managing these issues, which may include installing new treatment systems, acquiring alternative water sources, or other strategies, can often be in the millions of dollars for a single system.

What are the Sources of Water Contamination?

Contaminant sources are as varied as the chemicals found in water, be it industrial, agricultural, or even consumer products. Most often the utilities that are tasked with removing these contaminants did not play a role in producing them. In many cases, the chemicals were released into the environment through the manufacture and use of defective products. Often, the manufacturers failed to warn the public and even the government of the health risks caused by these chemicals, leading them to widespread and unregulated use over decades. As a result, these contaminants are now found in many water sources nationwide.

Sources of PFAS contamination vary by location, but may include industrial runoff, the use and cleaning of consumer products, and the use of aqueous film-forming foam (AFFF) in firefighting and/or training exercises at airports and other facilities. Contamination has also occurred in the areas surrounding the 3M and DuPont facilities where the chemicals themselves are produced.

1,4-dioxane can infiltrate into the environment from various sources including direct discharge from industrial facilities, disposal of consumer products, and landfill leachate. Although several states have begun regulating its use, 1,4-dioxane can still be found as a byproduct in many household products such as shampoos, detergents, and cleaning supplies. These products make their way from drains inside homes to wastewater treatment facilities, where they may become a concern for both clean water utilities and nearby drinking water systems.

1,2,3-TCP was present as an impurity in popular agricultural pesticides used for decades starting in the 1940s. Companies like Shell Oil and Dow Chemical Company sold these fumigant pesticides for widespread use in states like California and Hawaii. Evidence shows that the companies knew TCP would enter groundwater supplies and contaminate them, but the manufacturers never shared this information with the farmers. Although the companies stopped making soil fumigants containing TCP in the late 1980s, these persistent chemicals remain in groundwater in affected areas.

As research continues, so does the understanding and awareness of the negative health effects of water contamination. Communities and regulatory authorities are demanding more action to remove these chemicals from drinking water and the environment, but mitigation strategies come at a cost to utilities. This cost extends beyond the initial design and construction of new wells or treatment facilities. Utilities also need to find funding for the ongoing maintenance and operation of these facilities, plus continued testing and monitoring. They may also need to pay for the extension of service to impacted private wells in the area. Faced with such a large financial burden, systems will want to evaluate all available cost recovery options. Litigation can help protect utilities and ratepayers from bearing the cost of contamination while holding polluters accountable for their actions. Utilities considering legal solutions, however, should not delay in starting the process, as statutes of limitations may limit the time remaining to do so.

What is the Statute of Limitations in Water Contamination Cases?

A statute of limitations is a law that defines the maximum time in which an entity may seek recovery for damage they incurred. The time limit varies from state to state but can be as short as two years from when the harmed party discovered the harm.

When a system first detects contaminated drinking water, wastewater effluent, or biosolids, the initial reaction may be to wait for anticipated water pollution laws to be finalized before acting. This, however, might not be in the systems’ best interests, as the remaining time to file a lawsuit against the polluters could already be running out. There is no advantage in waiting, as by doing so utilities may lose the ability to sue and recover the clean-up costs.

Another key element of statutes of limitations beyond the time allowed to seek recovery, is what actually starts the clock for these time limits. These triggering events vary state by state and can have exceptions which pause the start of the clock. Some jurisdictions may start the statute of limitations clock when an entity discovers they are harmed, while others start the clock when the harm actually occurred. That is why it is important to keep in mind that actions that are sometimes taken to avoid exceeding notification levels, such as shutting down or blending water from contaminated wells, can also start the limitations clock. It is important to consult with an attorney who is knowledgeable of the pertinent statute of limitations as soon as contamination is detected or suspected.

Even if it appears that the statute of limitations has run out, it is worthwhile to consult an attorney to learn more. A law firm with extensive experience in water contamination litigation, such as SL Environmental Law Group, can review the facts surrounding each potential case to determine whether legal cost recovery may still be possible.

Considerations for Systems that Opted Out of the PFAS Water Settlements

The time constraints imposed by statutes of limitations apply to systems with any contaminant, including drinking water providers who chose to opt out of the current PFAS settlements with the goal of reserving the right to file future claims against the manufacturers. While some utilities may assume that they should wait until their PFAS detections exceed state or federal regulatory levels before filing a lawsuit, this “wait-and-see" approach may actually prevent them from being able to seek compensation in the future. As mentioned above, depending on the jurisdiction the statute of limitations may begin running as soon as contaminants are detected in any concentration, not only if the levels exceed current regulations. This means that the time to file a claim could already be running out, even if a system’s PFAS levels are below current state standards or proposed national MCLs.

Waiting for an MCL is not required, and as noted above may be counterproductive. For example, SL clients Sunny Slope Water Company and the City of Oceanside each detected TCP in their drinking water sources years before California’s MCL of five parts per trillion was enacted in 2018. SL helped each system file a lawsuit promptly to avoid any issues with statutes of limitations. Both systems successfully recovered TCP cleanup costs, helping them provide clean drinking water in compliance with current MCLs, which were finalized after the lawsuits were filed. Systems considering this approach should seek legal advice from a firm with experience in water contamination litigation right away to avoid missing their chance to file a claim.

Consult an Experienced Legal Team

When starting down the path to legal cost recovery, it is important to have deep knowledge and understanding of the laws and regulations involved. A legal team with experience in water contamination litigation will also benefit from knowledge of past lawsuits that have successfully recovered cleanup funds.