New Statute of Limitations For Water Provider Contamination Claims
Amidst a sea of water-contamination lawsuits and emergent contaminant regulations, New York extends the statute of limitations for water provider claims against polluters.
On November 4, 2019, New York Governor Andrew Cuomo signed legislation (S.3337C/A.5477C) amending the New York Civil Practice Law and Rules (CPLR) to effectively lengthen the statute of limitations for claims filed by public water districts related to contamination of public drinking water supplies. The new law is codified as CPLR § 214-h.
Prior to the new legislation, water provider contamination claims were subject to the three-year statute of limitations under CPLR § 214-c(2). Under the old provision, water providers had to bring a claim within three years of the date the provider discovered or should have discovered the presence of contaminants in their water supply.
The new legislation provides a new, more generous statute of limitation that specifically applies to public and wholesale water suppliers. Now, water providers can bring a civil claim against polluters within three years of: (a) the detection of a contaminant-level exceedance; (b) the last wrongful act by any person who contributed to the presence of a contaminant; or, (c) the date the contaminant exceedance is last detected.
Notably, the contaminant exceedances mentioned above are defined broadly. The new statute of limitations applies to contaminant detection in excess of “any notification level, action level, maximum contaminant level, or maximum contaminant level goal established by the Commissioner of Health, Department of Health, or [EPA].” This not only allows claims for known contaminants like lead, but also allows water providers to bring claims for emergent contaminants not yet regulated by the EPA, such as perfluorooctane (PFOS), perfluorooctanoic acid (PFOA), and 1,4-dioxane. Further, the new legislation allows water providers to bring claims for exceedances of “notification levels,” rather than “maximum contaminant levels,” so water providers can hold the polluting party responsible for remediation costs before the drinking water is unsafe for public consumption.
The Department of Health began the rulemaking process to regulate PFOS, PFOA, and 1,4-dioxane in July 2019, but the proposed regulations have not yet been enacted. When those regulations are enacted, water providers will have up to three years to file suit for contamination detected in excess of the new standards. Further, because the new legislation provides that the three-year statute of limitations can begin on the date the contaminant exceedance is “last detected,” an intelligible argument could be made that the limitations period is reset each time a contaminant exceedance is detected. It also provides that the three-year period shall apply to each raw water well and plant intake for each contaminant separately, and the expiration of the three-year period at one well or plant intake shall not affect the three-year period for another well or plant intake.
Although some of this new legislation is still in murky waters, many are championing it as a significant step toward tackling emergent contaminants in public drinking water supplies and holding polluting parties responsible. The full text and legislative history of the new legislation is available here: https://www.nysenate.gov/legislation/bills/2019/s3337/amendment/c