New York State residents have long enjoyed high quality, affordable potable water; the result of the State’s protected source waters and reservoirs, and robust testing and filtration programs. In fact, most New Yorkers have taken the quality of their potable water for granted. But in recent weeks two upstate New York towns – Hoosick Falls and Petersburg – have detected elevated levels of perfluorooctanoic acid (PFOA) in their drinking water supplies, leading state and federal authorities to warn residents against using tap water for human consumption.
There is no reason to believe that the elevated PFOA levels detected in the Hoosick Falls and Petersburg water supplies are indicative of a far-reaching problem with the safety of New York’s municipal water supply systems. However, given the recent tragedy in Flint, Michigan, where elevated levels of lead in the city’s water system were apparently ignored by city, state and federal regulators, and initial criticisms leveled by residents against the State for its response in Hoosick Falls, the State has sprung into action on several fronts. These actions may impact the operations of those providing private and public potable water as well as manufacturing companies throughout New York State whose operations have or may be impacting the quality of the water source.
As with Hoosick Falls, the State may move aggressively to place sites, including operating manufacturing plants with a potential nexus to contaminated drinking water supplies, on the State’s Superfund list. This can create significant issues particularly for operating facilities, including defaults in lending relationships, stigma, potential claims for the cost of addressing the contamination and/or providing replacement /upgraded water supply systems, as well as make the companies targets for toxic tort actions. The recent visit to Hoosick Falls by Erin Brockovich and the law firm that she works with is evidence of this.
As a consequence of these developments and the resulting political pressure, the State has announced the creation of a water quality task force, which will require the testing of groundwater sources statewide. During a press conference announcing the creation of the task force, New York Governor Andrew Cuomo promised that groundwater testing will be comprehensive, and will, for example, include testing of salinity levels near salt mines in Orleans County and the North country, and PCB contamination on Long Island. The testing will exceed that required by the federal government. This may, depending on the testing and public pressure, lead to more aggressive testing of potable water supplies statewide.
These efforts may result in the identification of a number of new Superfund sites across the State, including operating manufacturing facilities or the reopening of sites that had previously been considered remediated. It could also result in increased costs for municipalities due to increased monitoring and compliance costs. Lastly, there may be increased costs for enhanced water treatment and/or identification of new drinking water sources.
The scope of the problem is unknown at this time, and there is a possibility that these problems may not be isolated. The results of the statewide groundwater evaluation plus growing public pressure could create a level of State Superfund activity that has not been seen in years.