Suppose that a water utility is in compliance with all applicable safe drinking water standards and regulations. Then, one day, an unregulated chemical contaminate migrates in the ground to its wells or spills into a river just above its intake. Suppose further that this contaminant is not removed by conventional treatment processes and enters into the utility's finished water and is distributed system-wide to its customers. Will the utility face possible liability for unsafe water at customers' taps? Or is compliance with standards and regulations a defense to such claims?
It will be interesting to see how the current West Virginia chemical spill situation fully plays out. In 2002, the California Supreme Court held that claims for damages from contaminated drinking water against regulated water utilities who met all standards were preempted by the jurisdiction of the state public utilities commission. However, claims against unregulated water utilities were allowed to proceed, even though the utilities met the applicable standards *
One of the more immediate effects of the West Virginia chemical spill situation is the introduction in the US Senate of the Chemical Safety and Drinking Water Protection Act, proposing tighter regulation of chemical facilities with the objective of enhancing protection against chemical spills which could threaten water sources of supply. The proposed statute would require regular state inspections of above ground chemical storage facilities; require industries to develop state approved emergency response plans ; allow states to recover their response costs; and aid utilities in having tools and information to respond to emergencies. On February 4, a Senate hearing was held on the West Virginia spill issues.
The Wall Street Journal reported that, after the chemical spill in West Virginia contaminated its water system, the affected utility's officials said they were unfamiliar with the contaminant and did not know it was being stored.about one mile upstream from its river intake. ** In 1996, a federal program required states to conduct source water assessments regarding their respective water utility systems. However, the program did not require development of source water protection plans. After 9/11, water utilities were required to conduct vulnerability assessments, but these were intended to identify threats from terrorism, not pollutants.
It would seem that a proactive water utility could consider some possible measures to mitigate against risk of contamination of its sources of supply, including:
1. A utility could seek to establish more effective channels of communication with state agencies involved in monitoring industrial activity in proximity to the utility's sources of supply, including any state source water protection plan.
2. Years ago, a Chicago television weather man invented a "vice president in charge of looking out the window" to make sure his forecast were consistent with what actually was happening outside. A utility could conduct its own survey of nearby chemical storage and process facilities--in other words, actually look for itself and ask questions. And, based on such investigation, it could develop an assessment of risks to its system.
3. A utility should have an emergency response plan in place which anticipates the possibility of contamination from an unknown or unregulated contaminate introduced into its source water by chemical spill, chemical migration, or other toxic spill.
4. A utility should have adequate insurance coverage for possible contamination outbreaks.
Surprises may be welcome for milestone birthday parties, but not for water utility operations!
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* Hartwell Corporation v. Superior COurt of Ventura County, 38 P.3rd 1098 (CA 2002)
** February 4, 2014, P. A3
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