The delivery of water into our homes, and the safety of that water, is usually taken for granted. We turn on the tap and water comes out, which we assume is safe to drink and use for cooking. But, for a variety of reasons, many people no longer make that assumption quite so readily. As a result, regulatory agencies and citizens have become more engaged. A public water supply must handle violations of the drinking water standards and rules and the possible defense of enforcement actions or suits in a way that ensures the quality of drinking water while minimizing liability for the public water supply.
Public water systems and municipalities are facing an inordinate level of scrutiny due to high profile cases of contaminated drinking water. The most famous, or infamous, drinking water crisis is the Flint, Michigan situation, which, by most accounts, was brought about by very poor decision-making. Flint began using the Flint River as a water source, in what appears to be a cost-cutting move. Even though water from the Flint River was known to require treatment, proper anti-corrosive agents were not used, resulting in lead leaching from the aging service lines. Testing revealed that lead levels in residential water were well over the standard set by EPA of 15 parts per billion.
Louisiana has had its own problems. In St. Joseph, Louisiana, for example, water containing elevated levels of lead and copper were found in drinking water, prompting Governor Edwards to declare a public health emergency. The Governor’s statement blamed a “poorly maintained and deteriorating water distribution system.” Bottled drinking water was supplied.
While the problems in St. Joseph may be extreme, they are not unique. In 2015, 527 of the 1,386 regulated systems had some form of violation of state and/or federal regulations relating to maximum contaminant levels, treatment technique, or monitoring. Of course, most of these violations do not amount to the seriousness of the situation in St. Joseph. Nevertheless, their prevalence is a cause for concern.
To ensure a safe drinking water supply, the Louisiana Department of Health (DHH) has issued numerous standards. Obviously, compliance with the National Primary Drinking Water Regulations established by EPA is critical. These standards establish safe levels of microorganisms, disinfectants, disinfectant by-products, and inorganic and organic chemicals. Louisiana has specific rules, such as the Total Coliform Rule, the Louisiana Surface Water Treatment Rule, the Louisiana Disinfectants and Disinfection Byproducts Rule, and the Louisiana Lead and Copper Rule. Each public water supply must comply with the maximum contaminant levels, maximum residual disinfectant levels, and treatment technique requirements included in these standards and rules.
A public water supply cannot operate in secrecy, either. A failure to abide by or comply with the standards and rules will trigger the Public Notification Rule. This rule requires that the public be informed of these failures, generally through newspaper notices within a certain period of time. The transparency brought about through public notice of problems allows the public to assess how the violations affect their water supply.
DHH has several methods to assist in meeting the standards and alleviating potential problems with the public water supply. Some methods are cooperative, such as providing loans to upgrade infrastructure, while other methods include inspections, monitoring and enforcement.
DHH administers the Drinking Water Revolving Loan Fund, which assists public water systems in financing needed drinking water infrastructure improvements through low-interest loans and technical assistance. The Louisiana Department of Environmental Quality has a similar program. Additionally, annual operator training is required by the Operator Certification Rule, which assists in keeping operators up-to-date in the rules, regulations, and various operational requirements.
DHH has the Safe Drinking Water Program which inspects the public water systems for compliance with state and federal drinking water regulations. According to DHH, the “Safe Drinking Water Program objective is to prevent illness and death that can occur from waterborne disease outbreaks or chemical exposure associated with contaminated drinking water.” It accomplishes this goal through monitoring (i.e., collecting water samples to determine the level of contamination, if any), inspections, and engineering review of plans for new or modified systems.
Inspections and monitoring can lead to the discovery of violations. The DHH has administrative and judicial enforcement powers to address any violations that are uncovered.
Administratively, it may issue orders modifying, suspending, or revoking permits or requiring persons to comply with a rule or permit. An order may also require remedial action to prevent harm to the public health, safety, or welfare. These administrative actions may be appealed in accordance with the Administrative Procedure Act.
DHH may also issue an administrative action for civil penalties of up to $3,000 per day for each day and/or act of violation of an administrative compliance order. La. R.S. 40:5.9(A)(3). The regulations note that these penalties “are assessed only on the basis of non-compliance with corrective orders, rather than on the basis of the mere existence of a violation. LAC 51:XII.501.A. In other words, if a water supply takes appropriate corrective action and follows the terms of an administrative order, within the deadlines established by that order, civil penalties should not be assessed.
Judicially, DHH may institute a civil action, seeking injunctive relief, without bond, when there is reason to believe that administrative orders will not be obeyed, when there is evidence that the public water system has failed to comply with previously issued orders, or when necessary to assist in enforcing emergency orders when there exists serious and imminent danger to public health. Also, a civil action may be brought to require compliance the statute, rules, a prior order, a civil penalty assessment, or any schedule or other requirement imposed pursuant to a permit.
In addition to the DHH, citizens who have consumed tainted drinking water may have a cause of action against the public water supply. Problems such as odor, color, and contamination can provide grounds for a suit. Obviously, defending these actions can be costly.
To maintain, or regain, the public’s trust in safe drinking water and avoid public notices of violations, enforcement actions, and possible tort suits, public water supplies must be proactive. They must objectively evaluate their infrastructure (such as pipes, valves, and pumps) to determine if they can be operated safely. For example, is lead leaching from a pipe into the water supply? If the system, or a part of it, cannot be operated safely, the problem must be promptly repaired. Loans are available and should be negotiated as quickly as possible to make funds available.
In the meantime, it is likely that exceedances of the rules and standards have occurred. The public water supply should respond promptly and appropriately to the results of monitoring or inspections. For example, if monitoring shows an exceedance or an inspection notes a lack of proper treatment, a response to DHH should be submitted, explaining what will be done to address the findings. If an administrative action is issued and includes a deadline, action must be taken within that deadline and all such actions communicated to the DHH. If actions cannot be completed within the deadline, an extension should be requested so that the terms of the order are not violated, which could lead to civil penalties.
Although public water supplies are surely committed to providing safe drinking water, there are numerous obstacles to overcome to successfully do so. As evidenced by the number of violations found in 2015, even well-run and well-intentioned public water supplies may encounter problems. When problems do occur, proper and experienced guidance and representation through the loan, inspection, monitoring, and/or enforcement process is critical and will likely serve to minimize potential liability.
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