A JOB "WELL" DONE?

A couple of recent stories concerning privately-owned water wells caught my attention. Probably millions of homes and commercial entities receive their water from individual wells of various depths and water qualities.

In May, 2012, the National Ground Water Association (NGWA) issued a caution that owners of private water wells should have their water tested annually for bacteria, nitrates and other contaminants of "local concern". NGWA cited as an example where some bedrock wells in Massachusetts contain naturally-occuring arsenic and uranium.

Also in May of this year, it was reported that the U.S. Geological Survey (USGS) has conducted a study of public, private and monitoring wells for presence of trace elements ("Trace-Elements and Radon in Groundwater Across the United States, 1992-2003"). The USGS research found that approximately 20% of the raw water from the wells contained at least one trace element, such as arsenic, uranium and manganese, at levels considered to be a potential health concern. The study also found that radon exceeded the proposed EPA MCL in 65% of the wells tested. In about 10% of the wells, two or more trace elements were found which exceeded health benchmarks and, in combination, could enhance the toxicity of the water.

Private well testing should be performed by a certified drinking water testing laboratory. Experience teaches that testing for some trace elements and contaminants may be expensive due to the procedures and equipment required, and not all laboratories may be willing to test residential samples. Laboratories will have appropriate procedures for the gathering of samples. Filling a washed mayo or jelly jar will not do it.

It would seem that potential types of contaminants can be locality-based, such as the example referenced in Massachusetts, or iron, manganese and radium found in parts of Illinois, or nitrates found in farming areas.

What if undesired contamination is found in a test and verified by follow-up tests? Generally, some form of treatment of the raw water may be available, such as disinfection for bacteria and reverse osmosis or anion or cation exchange for trace elements.

Well testing, and doing something about adverse results, generally is a personal choice. Not every well owner will be able to boast of a "job well done."

CHIPS OFF THE OLD BLOCK

Recently, I read that a city in Washington has paved sidewalks with a concrete mix containing crushed toilets. The city calls the mix "Poticrete." The toilets were repurposed from retrofitted residential housing authority buildings.*

The story provoked my thinking about toilets. For example, why are almost all toilets white? Most cars today are said to be white because they are more readily seen. Dinnerware frequently is white to better show off food. So, why are toilets white? Of course, in the 60s and 70s, toilets often came in colors, such as blue, yellow and brown-what were they intended to show?

Toilets can differ in ways other than color. An outhouse has only a cutout in a board, crawling with spiders and other varmints. In Europe, they seem to have devices where one cannot find the flush handle. In Russia, the toilet can be only a hole in the floor surrounded by dazzling mosaic tiles. In the United States, modern toilets seem more like hungry shop vacs.

Something I have pondered for years: why are rooms with toilets called "restrooms?" Does anyone actually go to a restroom to rest? I did work one summer as a student for a company where some employees often went to a restroom to sleep in a stall to avoid working. Increased incidents of hemorrhoids were reported.

In Europe, restrooms often are called "water closets." But, they are not closets at all, and toilets are rarely found in closets. There was one exception, We once stayed in an apartment in a central European city, where the toilet was in a tiny closet--a fact which I discovered when I inadvertently opened the closet door to hang a coat on the nose of the occupant.

Why are toilets called toilets? Why are they sometimes called "stools?" Webster's dictionary provides a definition of "stool" as "a seat used as a symbol of office or authority." There may be a political meaning somewhere in that.

Another perplexing thing is toilet water. We flush toilets to dispose of toilet water. But when we call it "eau de toilette" we pour it on our bodies.

Old toilets may become remnants of civilization's history. Long in the future, archaeologists may be studying pieces of concrete with chips of toilet--like fossils of early, extinct life--trying to figure out what devices called toilets were. Maybe they were some sort of calendars, or storage vessels or cooking implements, they may speculate. Or, maybe they simply were the thrones of great leaders.
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*(Water Environment & Technology magazine, May, 2012, P.31)

IS TALK MORE VALUED THAN WATER?

Last week, there was a news report that more people in the world have cell phones than have running water or electricity. Since last week also was "National Drinking Water Week", I got to thinking about this situation.

Does it mean that people believe communication is more important than drinking water? Without electricity, how do people recharge their cell phone batteries? Are people more willing to accept charges for cell phones than costs to obtain or maintain water?

Another report announced that in 2010, there were 670 million cell phones in India, but only 366 million people had access to private toilets, leaving 665 million people without such access.

However, another report states that approximately 880,000 British every year have accidents involving cell phones falling into toilets. Apparently, the problem does not dampen usage, although it may increase sales of new devices. Also apparently, social media has replaced newspapers and catalogs as bathroom procedure. Ever wonder where the next tweet or e-mail you receive originates?

Maybe, communication and water can be combined. I found one provider that makes available to cell phone users the download of a running water ringtone. Calls then would make quite a splash. In my freshman college year, my room was at the top of a five story walk-up. We communicated to residents on the first floor by tapping a form of morse code on the hot water radiator pipes--much to the aggravation of the second, third and fourth floors.

My mind wandered further. I pictured a person having no running water, but having a need to both communicate and to seek personal relief, going to an outhouse with a cell phone. What happens if the cell phone accidentally slips from fingers and falls into the abyss? Does one attempt to retrieve it? What happens if the cell phone then rings with that delightful running water ringtone? Would that constitute as a call of nature?

IS "VALUE" OF WATER RELEVANT TO RATES?

Recently, I read an article which asserts that whether a water utility charges sufficient rates depends upon the perceived "value" of the water service it provides. The article submits that the ability to raise rates to provide revenue requirements for infrastructure improvements depends upon customer acknowledgement of the "value" of water. It added that the starting point for water utilities to achieve approval for rate increases is for utilities and their customers to understand the full "value" of water, and the need for customers to pay for this value.

However, contrary to these assertions, the so-called "value" of water has nothing to do with well-established rate-maaking principles. As enunciated in many court decisions and statutes, and echoed in the American Water Works Association rate-making manuals, the only proper basis for setting reasonable rates for water service is cost of service.

Reliance on the "value" of water service to justify rates is misguided and can deliver a wrong message to customers. First, "value" in this setting is a subjective term, and can mean different things to different water users. Indeed, as I wrote in my previous posting, who remembers, and therefore values, the water that flows from a faucet? People appear to value water only after it stops flowing.

Second, setting of rates based on recovery of costs of service necessarily requires objective numbers. Subjective opinion of "value" is incapable of quantification and does not advance establishment of revenue requirements.

Third, that water is essential for life, public health and safety, and is useful for production of food and products, is not in dispute. However, that rates must be increased from time to time to fund operating expenses, depreciation, debt service and reserves--all of which are costs of service--also is not in dispute.

Customers will understand that rates for water service must recover the costs to provide that service, with adequate communication to those customers. There is no reason to interject amorphous concepts of "value" in the rate-making equation to confuse both utilities and their customers. Instead, utilities should perform frequent reviews of the adequacy of their rates, and have the courage to increase rates when needed instead of trying to appease customers by deferring needed maintenance or infrastructure upgrades to avoid rate adjustments.

The fact is that the "value" of safe and adequate water service depends upon ongoing recovery of all costs of service, not upon philosophical verbiage about "value."

WHO REMEMBERS THE WATER?

We are told that water is valuable: that water is essential for all life--human, animal and vegetation; that water is essential for public health; that water is essential for public safety and fire protection; that water is essential for cleanliness; and that water is essential for production of food, goods and services. But, who remembers the water that we use? Who remembers the water in our shower this morning or any of yesterdays' mornings? Who remembers the water that is flushed down our toilets? Who remembers the water that made our coffee and tea during any day? Who remembers the water we sprayed on the garden or splashed down the driveway when we washed our car? Who remembers our first glass of water or any glass of water, for that matter? Who remembers the water churning in our washing machine or in our dishwasher? Who remembers the water that cleaned our floor and then was washed down the drain? Who remembers the water that was used to make soup or to wash the vegetables that went into the soup? So, who remembers water? If water really is valuable, how come we do not remember using it, yet alone protecting it like our other valuables? Maybe we will not value water, and remember it, until it is disappears.

INSURANCE POLLUTION EXCLUSION APPLIED TO WATER SUPPLY CONTAMINATION

Certain residents sued their village and village officials seeking damages for alleged contamination of water furnished by the municipal water system. The village continued to use for many years a well contaminated by perc, a dry cleaning solvent, which had migrated into the soil and ground water. The state also sued the village to compel remediation.

The insurer for the village sued in federal court for a declaration that the insurer had no duty to defend the suits against the village or to indemnify the village if the residents and the state should prevail in their suits.

The insurance policies at issue were public entity general liability policies issued to municipalities. They contained a pollution exclusion of the same kind found in commercial general liability policies. The pollution exclusion excluded from coverage bodily injuries, property damage and personal injuries arising from the discharge and dispersal of pollutants and also excluded expenses arising from orders to clean up or respond to the effects of pollution.

THe federal Seventh Court of Appeals affirmed the District Court holding that the pollution exclusion applied to relieve the insurers from any responsibility for the suits by the residents and the state against the village. The Court stated: "There is no doubt that perc is a 'contaminant' within the meaning of the policies; and the tort plaintiffs are complaining about its 'dispersal' by the Village from the contaminated well to their homes via the system of water mains that connects the well to the homes."

THe Court explained that a prime rationale for the pollution exclusion relates to the impossibility of adjusting insurance premiums for the greater risk of loss potential from high risk insurance customers. Thus, the exclusion forces high risk potential polluters to self identify by buying pollution coverage. (Scottsdale Indemnity Co. and National Casualty Co. v. Village of Crestwood, US Ct App, 7th Cir., Nos. 11-2385, 11-2556,11-2583, March 12, 2012)

The lesson of this decision for a water utility, of course, is twofold: first, read and understand the utility's general liability policy, including the pollution exclusion; and second, purchase a pollution coverage rider sufficient to cover potential contamination issues.

DOES EPA HAVE JURISDICTION OVER YOUR BIRDBATH?

With the media frenzy during the recent Supreme Court oral argument in the "Obamacare" case, an important Supreme Court decision issued also in March largely was ignored.

A couple owned a 2/3 acre residential lot in Idaho, near a lake but separated from it by several lots containing permanent structures. To prepare their lot for construction of a house, they caused a portion of the lot to be filled with dirt and rock.

Months later, the couple received a compliance order from EPA. The order found that the lot contained wetlands adjacent to the lake, that the lake is a "navigable water," that the couple discharged fill material into wetlands on the site, and that they caused fill material to enter into waters of the United States and thereby discharged pollutants from a point source-a violation of the federal Clean Water Act. The compliance order demanded restoration of the lot.

The Clean Water Act provides for a civil penalty of up to $37,500 per day of violation. If a party fails to comply with a compliance order, the penalty increases to up to a total of $75,000 per day of non-compliance.

The couple believed that their lot is not subject to the Clean Water Act. However, their request for a hearing before EPA was denied. Accordingly, the couple filed suit in federal District Court for judicial review under the federal Administrative Procedure Act claiming that the compliance order was arbitrary and capricious and denied due process. The District Court dismissed the complaint and the Court of Appeals affirmed, concluding that the Clean Water Act precludes judicial review of EPA compliance orders. The Supreme Court then agreed to hear the case.

Before the Supreme Court, EPA argued that there can be no judicial review of its compliance orders. The Supreme Court unanimously disagreed, holding that the compliance order in this case is a final agency action for which there is no adequate remedy other than review under the Administrative Procedure Act, and the Clean Water Act does not preclude such review.
Justice Scalia wrote:"there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of
regulated parties into 'voluntary compliance' without the opportunity for judicial review-even judicial review of the question whether the regulated party is within EPA's jurisdiction."

In a concurring opinion, Justice Alito was blunt: "The position taken in this case by the Federal Government-a position that the Court now squarely rejects-would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees."

The appeal before the Supreme Court involved only the right to judicial review of an agency order, not the shadowy question whether the couple's lot in fact is a jurisdictional wetland. That question presumably will be addressed by the remand to the lower courts and ultimately may wind up in the Supreme Court again. However, the Court's decision allowing judicial review of the compliance order suggests its response to regulatory orders and mandates imposed without due process protections. (Sackett v. Environmental Protection Agency, Supreme Court No. 10-1062, March 21, 2012)

So. could EPA have jurisdiction over your birdbath? The question may not be just for the birds.