S.10, addressing liability for the cost of extending a municipal water system relate to the release of PFOA, recently passed both the House and Senate and is expected to be signed by the Governor. As reported previously, S.10 as introduced was seriously flawed and risked setting a number of negative precedents for chemical regulation and liability issues generally. AIV succeeded in getting some very modest changes made in the Senate, but was successful in getting several more made in the House. Although we still believe that existing law is sufficient to address the purposes of the bill, and that it still sets a troubling precedent for cutting corners in due process, diligence, and fairness in regulation and liability, it is noticeably improved over the version as introduced.
The following are highlights of improvements AIV was able to secure:
- Clarifying that use of the new liability provisions was discretionary and not automatic for every case of PFOA contamination.
- Requiring some consideration of cost when deciding to use the new liability provisions (AIV sought stronger cost effectiveness criteria but ANR was staunchly opposed).
- Restricting liability to parties connected to the actual site of contamination (as introduced, any party who released PFOA anywhere in the state could be liable for a municipal water extension anywhere in the state).
- Restricting liability for extending municipal water systems to failed or potentially failed wells (as introduced, liability extended to potentially contaminated, but not necessarily failed, systems).
- Clarifying that the legal defenses against liability that exist in current law would also be available in this new statute.
- Ensuring that parties have access to de novo appeals (as introduced, appeals would only be on the record, which, given the lack of sufficient due process, would have placed potentially liable parties at an unreasonable disadvantage).
- Providing for reasonable time frames to make payments (as introduced, a party could be required to make a full payment before a project even went through initial planning).
As reported previously, the House version of S.10, H.116, would create liability for municipal water system extensions related to any hazardous material contamination rather than just PFOA. With the expected enactment of S.10, it is not clear whether there will be any effort to move H.116 next year. Given that serious concerns with S.10 remain despite the changes that AIV was able to secure, we would be seriously concerned if H.116 were to be taken up, and we will remain on the look out for any such possibility, either on its own or in connection to the larger debate on chemical regulations and liabilities expected next year (see related post here).
As of this writing, S.10 has not yet been sent to the Governor, but he is expected to sign it into law.