New Safe Drinking Water Act Liability for Corporate America

Turner T. Smith Jr. and Steven J. Koorse

Editors' Summary: Public water systems that serve residential communities have been subject to the Environmental Protection Agency's comprehensive regulatory program under the Safe Drinking Water Act since the Act was passed in 1974. EPA has recently extended the coverage of its regulatory program to public water systems that do not serve residential communities, such as industrial and commercial facilities and schools. Many corporations that provide water to employees and other members of the public are thus now subject to substantial new liability. The authors examine how the new SDWA regulatory program affects corporate water suppliers. They observe that the new regulatory requirements could also serve as the legal basis for toxic tort suits for damages caused by water supplied in a corporation's facility. The authors conclude that corporations can minimize their liability by monitoring the regulatory developments and determining which requirements apply well ahead of compliance deadlines. Corporations should also evaluate the integrity of their water systems, select a high-quality laboratory to test their drinking water, and develop a compliance plan for each of their facilities.

[18 ELR 10422]

Corporations face substantial new liability as a result of the drinking water they provide to the public in their plants, office buildings, and other facilities. That liability may arise, not only where the water provided to employees, lessees, and other consumers originates from a source (e.g., a well) owned or controlled directly by the corporation, but even where the water is purchased from a municipal or investor-owned water utility,¹ and is merely passed along by the corporation.

Corporations have long been exposed, at least in theory, to various forms of liability stemming from the water provided on their premises.² Yet, radical changes in the Environmental Protection Agency's (EPA's) regulatory program under the Safe Drinking Water Act (SDWA),³ coupled with the public's heightened concern over the health effects of toxics in their drinking water, have recently made that exposure sufficiently palpable to warrant serious attention by corporate decisionmakers. To illustrate this point, corporate water suppliers (i.e., companies providing water directly from sources they own or control) now face civil penalties of up to $ 25,000 if, by June 19, 1988, they have failed to issue a notice to consumers in their facilities warning about the significant health risks posed by lead in water.⁴

Liability may arise in a variety of forms, the most direct of which stems from federal and state regulatory programs. EPA recently expanded the applicability of its SDWA regulatory program to subject corporate water suppliers (e.g., [18 ELR 10423] industrial and commercial facilities), schools, and other institutions to the same comprehensive and burdensome regulatory scheme previously reserved for traditional water utilities.⁵ Companies that fall into this new category of water supplier, termed "non-transient, non-community water system" (NTNCWS), will be required to comply with quality standards at the water tap for more than 83 contaminants, as well as a variety of onerous monitoring, reporting, and treatment requirements.⁶

NTNCWSs failing to comply with those requirements face liability of up to $ 25,000 per day in civil penalties under federal law, and most states have authority to impose both civiland criminal sanctions for noncompliance with their parallel safe drinking water regulations. Moreover, the SDWA contains a citizen suit provision, which enables any person to seek injunctive relief and reimbursement of legal costs (including attorneys fees) in response to a violation.⁷

Aside from the regulatory liability with which the corporate water supplier (as opposed to the corporate water customer) must now contend, a more subtle form of liability threatens both the unwary corporate water supplier and the corporate water customer. Both types of companies may face workmen's compensation claims or toxic tort actions based on adverse health effects allegedly caused by the drinking water provided on their premises. In addition, the host of new regulatory requirements may serve as the legal basis for novel tort actions (e.g., failure to issue the lead notice may support a "duty to warn" argument).

This Article will examine how the SDWA's regulatory scheme applies to corporate water suppliers and will high-light some of the requirements they will face over the coming years. It will also discuss the nonregulatory liability to which both corporate water suppliers and corporate water customers may be exposed. Finally, it will identify several measures that can be taken to minimize exposure to both forms of liability.

SDWA Applicability

The SDWA applies to virtually all "public water systems," which is broadly defined to cover any "system for the provision to the public of piped water for human consumption, if such system has at least fifteen service connections or regularly serves at least twenty-five individuals."⁸ That definition could be construed to encompass both the corporate water supplier and the corporate water customer. To avoid such broad coverage, Congress carved out an exception that spares the corporate water customer from regulation if it can show that it neither collects, treats, nor sells water, and that it obtains all of its water from, but is not owned by, a public water system.⁹

Prior to their recent revision, EPA's SDWA regulations divided public water systems into two classes: "community water systems" and "non-community water systems."¹⁰ "Community water systems" covered all water systems of the requisite size that serve year-round residents.¹¹ "Non-community water systems" were defined as "public water system[s] that [are] not … community water system[s]."¹²

Under that original regulatory scheme, virtually all corporate water suppliers were considered non-community water systems. Those facilities were subject to a less stringent application of the majority of the SDWA regulations.¹³ Community water system status attached to few corporate suppliers, because most corporate facilities do not serve "year-round residents."¹⁴

EPA has since radically modified its regulatory approach toward corporate suppliers. In 1985, EPA proposed to broaden the definition of "community water system" to encompass certain non-community systems, such as factories and schools. The proposed definition of a community system was, "a public water system which serves at least 15 service connections used by year-round residents or regularly serves at least 25 of the same persons over six months per year."¹⁵ EPA's rationale was that many non-community systems serve the same consumer over an extended period of time, thus posing a health risk akin to that experienced by residents served by community systems.¹⁶

It was not until nearly two years later that EPA issued a final rule on its proposal to redefine "community water system." In it, EPA confirmed its resolve to subject the same set of non-community systems to the full range of SDWA regulatory requirements. However, it accomplished its objective in a manner different from that proposed. Rather than broaden the definition of a community water system, EPA created an entirely new category, entitled "non-transient, non-community water system." EPA defined an NTNCWS as "a public water system that is not a community water system and that regularly serves at least 25 of the same persons over six months per year."¹⁷

[18 ELR 10424]

The distinction between EPA's proposed expansion of the community water system category and EPA's final NTNCWS category is that the proposed approach would have retroactively subjected the covered set of water suppliers to the numerous and more burdensome requirements to which all community systems had been subject since 1975.¹⁸ The NTNCWS category was created specifically to avoid such an effect on the approximately 23,000 systems¹⁹ involved.²⁰ EPA emphasized, however, that NTNCWSs would be subject to all of the new requirements it intends to issue.²¹ Moreover, because EPA intends to reissue all the requirements to which community water systems were subject before the NTNCWS category was created, the distinction between the proposed and final rules regarding corporate suppliers will be short-lived.

The SDWA created in 1974 a regulatory scheme whereby EPA was empowered to issue enforceable standards (maximum contaminant levels, or MCLs) for contaminants in drinking water.²² The SDWA also authorized EPA to impose monitoring, reporting, and other requirements as necessary to "assure a supply of drinking water which dependably complies with" the MCLs it sets.²³ Between 1974 and 1986, when Congress amended the SDWA, EPA had regulated only 22 contaminants.

As mentioned earlier,²⁴ non-community systems — and thus corporate suppliers — were originally only subject to the regulations applicable to 3 of the 22 contaminants. Furthermore, monitoring requirements for the 3 contaminants were less rigorous than those applicable to community systems. Finally, the laboratory expenses for sample analysis was generally less than $ 20 per sample.

By contrast, the 1986 Amendments have set in motion a series of EPA rulemakings that, over the coming years, will impose a substantial administrative and financial burden on all water systems, including corporate NTNCWSs.²⁵ The Amendments require EPA to promulgate MCLs for 83 contaminants by June 19, 1989.²⁶ To date, EPA has issued final MCLs for 8 contaminants,²⁷ and has either proposed in the Federal Register, or is in the process of developing, MCLs for several others.²⁸ The Amendments also require EPA, starting on January 1, 1988, to publish a triennial priority list of additional contaminants that may require regulation and to issue regulations for at least 25 listed contaminants within three years of the publication of that list.²⁹

NTNCWSs are required to achieve and maintain compliance with each of the MCLs that EPA issues.³⁰ In some instances, that will necessitate the installation of treatment facilities, which can be relatively costly to construct, operate, and maintain. Furthermore, the Amendments direct EPA to issue treatment technique regulations that will eventually require most NTNCWSs to install filtration and disinfection systems.³¹ While some NTNCWSs might find it cost-effective to use bottled water or point-of-use devices (e.g., tap filters) to achieve compliance with the MCLs, EPA flatly prohibits such practices.³²

In addition, each MCL or treatment technique that EPA promulgates carries with it certain compliance monitoring requirements. The laboratory costs for performing analytical tests on the large number of regulated contaminants could be substantial, depending on the monitoring frequency imposed by EPA.³³ And, aside from compliance monitoring requirements, some NTNCWSs may be required to conduct periodic monitoring for 51 of the so-called "unregulated contaminants" (i.e., contaminants for which MCLs have not been issued).³⁴

Finally, NTNCWSs are subject to strict public notification requirements. In response to the Amendments,³⁵ EPA recently promulgated a rule³⁶ requiring NTNCWSs to provide expeditious notice to their consumers following virtually any violation of the drinking water regulations.³⁷

[18 ELR 10425]

Perhaps the single most controversial and unprecedented requirement imposed under the SDWA to date involves lead notification. Lead is a controversial contaminant from a regulatory perspective, not only because of its reported health effects,³⁸ but because of its unusual origin in tap water. While most drinking water contaminants originate in the water source itself (i.e., the groundwater or surface water supply), the source is not normally responsible for elevated lead levels at the tap.³⁹ Instead, EPA has determined that lead is introduced predominantly by the water supply distribution system (i.e., the system of pipes carrying water from the source to the consumer's tap).⁴⁰ Many water utilities have lead pipes or service connections within their distribution systems, and most plumbing systems within residential and nonresidential buildings contain lead solder or flux.⁴¹ The lead contained in these system components has a tendency to leach into water at a rate influenced by factors such as corrosivity of the water,⁴² age of the system,⁴³ contact time,⁴⁴ pipe length and diameter,⁴⁵ water temperature,⁴⁶ and galvanic corrosion.

In the Amendments, Congress mandated that, by June 19, 1988,⁴⁷ all public water systems must issue a notice regarding lead in drinking water. The Amendments further require that those systems send notice to "persons that may be affected by lead contamination."⁴⁸ In its implementing regulations,⁴⁹ EPA has strictly construed that duty to apply to community systems and NTNCWSs,⁵⁰ unless they can show that the entire water system — including each consumer's plumbing system — is "lead free."⁵¹ Thus, notification must be provided whether or not a system is currently in violation of the lead MCL⁵² — indeed, it must be provided even if, as with NTNCWSs, the system is not subject to the lead MCL.⁵³

As to content, the Amendments specify that the notice must address (1) the possible sources of lead that may be present in the water supply, (2) the adverse health effects that lead consumption can cause, (3) the methods reasonably available to reduce lead content in water, (4) the steps the system is actually taking to bring about such reduction, and (5) the necessity for seeking alternative water supplies.⁵⁴ EPA has published specific language⁵⁵ that water systems are required to include in the notices they issue.⁵⁶ That language describes in rather graphic detail the potential health effects of lead.⁵⁷ Consequently, the notice is likely to have an unsettling effect on its audience. Corporate suppliers that have not issued a lead notice would be well advised to anticipate, and to develop a strategy to deal with, such a reaction among their employees.

By its terms, the EPA lead notice provision applies exclusively to the owner or operator of both community systems and NTNCWSs that are not "lead free." There is no apparent regulatory duty on the part of the recipient of such notice — the corporate water customer — to disseminate the notice to others (e.g., the residents, lessees, or employees within a building supplied by a water utility).⁵⁸ Corporate customers that receive the lead notice may nonetheless find it prudent to disseminate the notice, or some variation on it, to the consumers within their facilities. That decision should be made with advice of counsel,⁵⁹ because it requires an understanding of state law on the issue of a corporate water customer's "duty to warn."⁶⁰ The "duty to warn" argument can arise with [18 ELR 10426] respect to any public health notice that a corporate customer receives, but it is particularly relevant in the lead notice context, because EPA has found that much of the lead that arrives at the tap originates from the building plumbing system, not from the supply source.⁶¹ Such an action could arise under a common law tort theory, as discussed below, or on the basis of a "right to know" statute whose terms could be construed to cover toxics in a company's water system.⁶²

SDWA Enforcement Mechanisms

The SDWA imposes harsh penalties on water systems failing to comply with EPA's drinking water regulations. EPA is authorized to file suit in federal district court seeking an injunction and/or up to $ 25,000 in civil penalties for each day in which a violation of the drinking water regulations occurs.⁶³ In addition, EPA can seek a one-time civil penalty of up to $ 25,000 against a system failing to comply with public notification requirements.⁶⁴ Finally, the Amendments have enhanced EPA's enforcement arsenal by authorizing the Agency to issue administrative compliance orders,⁶⁵ and to enforce those orders administratively by imposing civil penalties of up to $ 5,000⁶⁶ after notice and an opportunity for a hearing on the record in accordance with the Administrative Procedure Act.⁶⁷ That administrative penalty power eliminates the burden of enlisting the cooperation of EPA headquarters and the U.S. Department of Justice each time an EPA regional office chooses to seek civil penalties. EPA may also enforce an administrative order by filing an action in an appropriate federal district court seeking up to $ 25,000 per day in civil penalties.⁶⁸

While federal enforcement authority is formidable, EPA actively encourages the individual states to take the lead on enforcement matters.⁶⁹ With few exceptions, the states have developed individual drinking water programs at least as stringent as EPA's,⁷⁰ and EPA has delegated to such states the authority to administer the SDWA program within their borders.⁷¹ As to enforcement protocol, EPA and the "primacy" states generally enter into enforcement agreements, which set out the types of violations to which enforcement priority will be given, and the manner in which enforcement will be taken.⁷² While the Amendments anticipate that primacy states will take the lead in most instances, EPA maintains independent enforcement authority. Indeed, where a state fails to take appropriate enforcement action within 30 days after EPA has notified it of a violation, the Amendments state that EPA "shall" commence an enforcement action.⁷³

Where neither EPA nor the state has commenced and is diligently prosecuting a civil court action in response to a violation of the drinking water regulations, any person may bring an action seeking injunctive relief under the SDWA citizen suit provision.⁷⁴ Unlike the Federal Water Pollution Control Act (FWPCA, or the Clean Water Act),⁷⁵ the SDWA does not authorize citizens to impose civil penalties. Nonetheless, the specter of a federal court order to install an expensive treatment system in accordance with an ambitious compliance schedule — one that may well impair the owner's ability to develop a "least-cost" strategy — gives citizens considerable clout. In addition, citizens may be entitled to reimbursement of costs, including reasonable attorneys and expert witness fees.⁷⁶

While no citizen suits have been filed to date under the SDWA, the Amendments have generated considerable interest among groups such as Trial Lawyers for Justice, Concern, Inc., National Campaign Against Toxics, and the League of Women Voters.

In short, corporate water suppliers face a host of new regulatory requirements over the coming years. To ensure compliance with those burdensome requirements, EPA and the states, armed with substantial penalty power, are stepping up their enforcement efforts. In light of these developments, corporate water suppliers face the challenge of keeping apprised of, participating in, and preparing to comply with the several rulemakings that EPA and the states will be issuing to implement their comprehensive regulatory programs.

Nonregulatory Liability

In addition to liability stemming from the SDWA, corporations [18 ELR 10427] may face workmen's compensation or common law tort claims brought to redress injuries allegedly caused by the water flowing from their facilities' taps. Congress made clear in the SDWA that the citizen suit provision, which expressly authorizes only injunctive relief, should not be construed to "restrict any right which any person (or class of persons) may have under any statute or common law to seek any other form of relief."⁷⁷

As to employee claims,⁷⁸ injuries caused by the consumption of water on company premises may be compensable under a workmen's compensation statute, depending on the scope of the applicable statute and its judicial interpretation. In some states, workmen's compensation statutes have been construed to allow recovery for injuries sustained from acute (i.e., immediate or short-term) exposure to drinking water contaminants, such as viruses.⁷⁹ In addition, some compensation statutes have been construed to allow recovery for injuries sustained from chronic (i.e., long-term) exposure to various chemicals in the workplace.⁸⁰ Although none of the reported cases has involved chronic exposure to chemicals in drinking water, injuries resulting from such exposure would undoubtedly be compensable under many compensation statutes. Moreover, because compensability under workmen's compensation statutes is generally determined on the basis of factors other than fault,⁸¹ it is quite possible that corporations could face such compensation act claims even if the alleged injuries arose from contaminants present in the water piped in from a water utility.⁸²

In addition to, or in lieu of, workmen's compensation claims, employees may attempt to bring common law tort actions against their employers.⁸³ Both corporate suppliers and corporate customers are vulnerable to such actions, which might be based on theories such as strict liability,⁸⁴ negligence,⁸⁵ negligence per se,⁸⁶ or some other theory arising out of state law.⁸⁷ Most workmen's compensation statutes contain an exclusivity provision barring such action if the injury is compensable under the statute. Thus, where a particular injury is deemed compensable under a workmen's compensation statute, an action brought under a common law theory would be vulnerable to dismissal.

Nonetheless, there may be circumstances where, notwithstanding the employer's general immunity from civil suit, an employee may overcome a motion to dismiss. For example, a corporation may be barred from invoking the exclusivity provision if it has failed to comply with the requirements of the compensation statute.⁸⁸ Depending on the applicable law, an employee may also be free to pursue common law remedies for injuries sustained as a result of the employer's violation of a statutory provision intended to protect employees.⁸⁹ While the case law is sparse in this area, it is conceivable that failure to comply with the SDWA requirements (e.g., issuing the lead notice) could pierce the employer's veil of immunity from common law remedies.⁹⁰

Finally, an employee may overcome a motion to dismiss in some states if the complaint alleges that the injury resulted from an intentional tort committed by the employer. The case of Blankenship v. Cincinnati Milacron Chemicals, Inc.⁹¹ involved just such a claim. The plaintiffs, consisting of eight current or former employees (and a number of their spouses), had sued the defendant chemical company seeking compensatory and punitive damages arising out of their exposure to toxic chemicals in defendant's facilities. In their complaint, plaintiffs alleged that defendant, with knowledge of the hazardous working conditions in its plant, intentionally failed both to correct and to warn plaintiffs of such conditions.⁹² Finding that plaintiffs' action was barred under the applicable workmen's compensation statute, the trial court dismissed the case, and that dismissal was affirmed by the state appeals court.⁹³ The Supreme Court of Ohio subsequently reversed, holding that a claim for damages based on an intentional tort necessarily falls outside of the Workmen's Compensation [18 ELR 10428] Act's coverage, since it does not involve an injury arising out of the course of employment.⁹⁴

In a subsequent case, the Supreme Court of Ohio went on to define intentional tort as a deliberate act by an employer with either a desire to bring about the consequences of the act or knowledge that the consequences are substantially certain to follow.⁹⁵ It remains to be seen whether plaintiffs in states embracing Ohio's definition of intentional tort can successfully use that theory in common law claims based on alleged drinking water injuries. Even if a direct correlation between exposure to a toxic chemical and certain adverse health effects can be established, however, plaintiffs will face a formidable challenge showing that the employer knew that those health effects were substantially certain to follow the exposure.⁹⁶

As in any other tort suit based on allegations of damage arising from exposure to toxic substances, plaintiffs suing corporate water suppliers or corporate water customers will undoubtedly face a considerable burden establishing a causative link between exposure to a contaminant and the health effects allegedly sustained as a result of that exposure. Issues of causation may well turn on the way in which EPA characterizes health risks. EPA regulates contaminants by issuing tap standards (MCLs) that are as close as "feasible"⁹⁷ to the "level at which no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety."⁹⁸ For contaminants that EPA does not regulate as carcinogens,⁹⁹ EPA takes the position that there is a threshold exposure limit below which there is "no" significant risk to humans. EPA establishes MCLs as close as feasible to that threshold limit, but does not quantify the risk associated with consumption of water exceeding that MCL. For those contaminants that EPA does regulate as carcinogens,¹⁰⁰ EPA claims that any exposure poses some risk, which it quantifies in terms of additional cancer incidences anticipated to arise in a certain population size (e.g., one additional cancer per 100,000 persons, or "10-5"). EPA's risk evaluation practices may make it difficult for plaintiffs to establish "substantial certainty" for purposes of avoiding the workmen's compensation bar. EPA's practices may prove to be less of an obstacle for a plaintiff attempting to prove causation in a proceeding turning on a "more probable than not" standard.

Aside from claims brought by employees or their survivors, corporate water suppliers may face liability as a result of tort claims brought by nonemployees alleging that they have sustained injuries due to consumption of water on company premises. Conceivably, such a suit could be brought by a visitor, an independent contractor, or anyone else not covered by the applicable workmen's compensation scheme.

While toxic tort suits against water suppliers are rare, and the obstacles facing a tort plaintiff are substantial, neither the likelihood of toxic tort suits being filed, nor the substantial legal costs incurred in defending them, should be regarded lightly. A settlement accord reportedly totalling $ 8 million¹⁰¹ was reached in the much-celebrated case involving claims by eight families in Woburn, Massachusetts, seeking damages for health effects allegedly caused by consumption of contaminated drinking water.¹⁰² In a similar case, a judge awarded more than $ 3.9 million to a plaintiff who alleged adverse health effects stemming from consumption of contaminated well water.¹⁰³ Both cases were brought against companies that allegedly contaminated the water supply with toxic substances. Thus, the issue of water supplier liability was not directly raised. However, at least one case against a "supplier" is currently pending,¹⁰⁴ and it is conceivable that others will follow.

Suggestions to Minimize Liability

For companies with NTNCWSs, the most prudent course to follow involves (1) monitoring EPA and state rulemaking activity to determine whether and in what manner to participate; and (2) identifying, well in advance of compliance deadlines, which requirements apply, and determining how compliance can be some achieved. In some instances, NTNCWSs may be entitled to variances or exemptions¹⁰⁵ from EPA's requirements.

As to participation in rulemaking activities, companies with NTNCWSs should seriously consider their role in ensuring the reasonableness of the comprehensive regulatory program that will be unfolding over the next few years. Due to their relatively small size, oftentimes remote location, the large number of taps per facility, and other [18 ELR 10429] distinctive features, NTNCWSs may not always be affected by EPA's regulatory requirements in the same way as water utilities. It may therefore be appropriate to bring those differences to EPA's attention when it solicits comments during the rulemaking process.

An example of the distinctive nature of NTNCWSs arose in a recent rulemaking where EPA prohibited the use of bottled water and point-of-use devices (e.g., tap filters) as a means of complying with the MCLs.¹⁰⁶ The basis of EPA's position,¹⁰⁷ whatever its merits, arguably does not apply equally to water utilities and corporate water suppliers. Unlike water utilities, who relinquish control over water once it enters a consumer's residence, corporate water suppliers generally maintain a high degree of control over the water used in their facilities. Through proper posting, a corporate supplier using bottled water or point-of-use devices would be able to protect the health of employees to substantially the same extent possible with a central treatment facility. Moreover, in some situations, a corporate supplier may find it economically impracticable to install a central treatment facility (e.g., in locations where water quality is poor, or where a water source simply is unavailable except at great distance). EPA's position on bottled water was challenged,¹⁰⁸ but the suit was dismissed voluntarily before it could be decided on the merits.

Another example of the distinctive nature of NTNCWSs recently arose in EPA's rulemaking proposal for regulating coliform bacteria.¹⁰⁹ There, EPA proposed to require water systems to test for the presence of coliform bacteria. Where the coliform test shows signs of interferences, the proposal would require systems to perform follow-up tests on heterotrophic bacteria.¹¹⁰ For NTNCWSs in remote locations, compliance with that requirement could be impracticable. Heterotrophic bacteria testing must be performed within eight hours after the water sample is collected,¹¹¹ and it may not be feasible to install a laboratory at each corporate facility or, alternatively, to transport samples to a commercial laboratory within an eight-hour period. EPA proposed a solution to the dilemma that may not be acceptable to NTNCWSs: systems unable to comply with the monitoring requirement will not be held liable for violating a monitoring requirement, but instead must settle for an irrebuttable presumption that the sample, had it been analyzed, would have failed the test.¹¹² All systems to which the proposed presumption would attach would immediately become subject to additional coliform testing requirements.¹¹³ Moreover, the presumed test failure would be counted against the system in a compliance determination.¹¹⁴ It remains to be seen how EPA will ultimately resolve this dilemma when it issues its final rule.

Once regulations are promulgated,¹¹⁵ there are a number of measures corporations can take to achieve and maintain compliance in a timely and cost-effective manner. Incidentally, many of the following measures may also assist companies in rulemaking activities and in communicating effectively with union and employee representatives. First, corporate water suppliers should be familiar with the integrity of the water sources that are used or are available for use by their facilities. In some cases, companies may determine that compliance with SDWA requirements can be achieved most economically by switching sources, or by switching during certain periods of the year. It may also be prudent to protect the integrity of existing supplies by curtailing activities, such as waste storage or disposal, in the vicinity of the company's water supply source.

Second, companies should evaluate the water treatment and plumbing systems currently serving their facilities. In view of the potential liability described above, some companies may decide to update or supplement their treatment systems to achieve compliance or to improve reliability. Companies may also decide to make changes in their plumbing systems or in the water coolers they use.¹¹⁶

Third, NTNCWSs ought to pay close attention to the performance of the laboratories retained to analyze the water quality at their facilities. A laboratory whose quality control system is wanting may produce results showing an MCL violation where none in fact exists.¹¹⁷ In the eyes of EPA, states, and citizen groups, the analytical results produced by a laboratory are binding in an enforcement action.¹¹⁸ With civil penalties of up to $ 25,000 per day, the significance of selecting a high-quality laboratory cannot be overemphasized.

Finally, corporate suppliers should develop, for each of their facilities, a compliance plan that considers both the [18 ELR 10430] regulatory and nonregulatory liability discussed above. In setting priorities, it would be useful to know whether sensitive persons (i.e., children or pregnant women) are served by the water system. There may be circumstances where a company may seek to minimize exposure to nonregulatory liability by taking action beyond that required under the SDWA.¹¹⁹ That may involve additional treatment facilities or measures to reduce the amount of lead leaching into water from company plumbing systems.¹²⁰ Indeed, even though NTNCWSs are not currently subject to the MCL for lead (0.05 mg/liter or 50 parts per billion), a company with a system exhibiting concentrations of lead in excess of that limit may nonetheless find it prudent to take action designed to reduce those lead levels.¹²¹ In addition, because EPA has imposed monitoring requirements on only some of the contaminants that may cause adverse health effects, it may be prudent to have company supplies analyzed for a larger range of compounds on a periodic basis.

Companies that receive water directly from a water utility should consult with legal counsel regarding what, if anything, they ought to do about a lead notice, or any other public health-oriented notice, received from the water utility. As noted earlier, there may be instances where a company will find it prudent to make the consumers within its facilities aware of the notice, notwithstanding the absence of any regulatory duty to do so.

Conclusion

Corporations face exposure to liability as a result of the water flowing from the taps in their office buildings, plants, and other facilities. Where companies collect and distribute drinking water directly from their own sources, they are subject to the comprehensive and onerous regulatory scheme spawned by the Safe Drinking Water Act, as amended. The cost of compliance can be substantial, but, with penalties of up to $ 25,000 per day, non-compliance may be even costlier. Those corporate suppliers, as well as companies whose water is piped in from a water utility, may also be subject to multimillion dollar tort suits for damages caused by the water supplied in their facilities. Corporations can minimize exposure to that liability by keeping abreast of regulatory requirements, evaluating the integrity of their water systems, and taking measures to supply "safe" drinking water to the consumers in their facilities.

Mr. Smith, a graduate of Princeton University and Harvard Law School, has taught environmental law and is presently a partner with the firm of Hunton & Williams of Richmond, Virginia. Mr. Koorse is an associate with that firm and is also a registered professional engineer who spent several years in the U.S. Environmental Protection Agency's enforcement and water supply programs.

1. This Article does not address the liability facing such traditional water utilities. While the water utility and the corporate water supplier share many of the same risks, the former may be exposed to liability under additional theories, such as products liability and contract law. See Moody v. City of Galveston, 524 S.W.2d 583 (Civ. App. Tex. 1975) (water utility held strictly liable for injuries stemming from ignition of gas in drinking water).

2. For example, there have been several workmen's compensation cases involving injuries allegedly sustained from drinking water. See infra notes 77-82 and accompanying text.

3. The SDWA was enacted in 1974. Safe Drinking Water Act, Pub. L. No. 93-523, 88 Stat. 1660 (1974) (codified at 42 U.S.C. § 300f et seq. (1976)). It was first amended in 1977. Pub. L. No. 95-190, 91 Stat. 1393 (1977) (codified at 42 U.S.C. § 300f et seq. (1982)). Concerned by reports of a lax EPA and state enforcement effort in the face of widespread drinking water contamination, Congress substantially amended the SDWA once again in 1986. Pub. L. No. 99-339, 100 Stat. 642 (1986) (to be codified at 42 U.S.C. § 300f et seq. (Supp. 1987)). In doing so, it fortified EPA's enforcement powers and directed EPA to issue a host of strict new regulatory requirements over the coming years. Id. For an analysis of the 1986 Amendments, see ENVIRONMENTAL LAW REPORTER, CLEAN WATER DESKBOOK 453-462 (1988).

4. 52 Fed. Reg. 41549 (Oct. 28, 1987) (to be codified at 40 C.F.R. § 141.34). By contrast, corporate water customers (i.e., companies that provide water that has been piped in from a water utility) have no regulatory duty to issue the lead notice to consumers in their facilities. Nevertheless, providing such notice may reduce exposure to toxic tort liability. See infra notes 58-62 and accompanying text.

5. Corporate water customers continue to be exempt from SDWA requirements.

6. 52 Fed. Reg. 25690, 25695 (July 8, 1987).

7. The SDWA does not authorize citizens to impose civil penalties on violating suppliers.

8. SDWA § 1401(4), 42 U.S.C.A. § 300f (West 1988 & Supp. 1988), ELR STAT. SDWA 41102.

9. Id. at § 1411, § 300g. Where a corporate water customer otherwise covered by the exception decides to treat the water piped in from a water utility (e.g., by installing a water softener), it may conceivably lose the benefit of the exception. H.R. REP. No. 1185, 93d Cong., 2d Sess. 16, reprinted in 1974. U.S. Code Cong. & Admin. News 6454, 6469 (emphasis placed on all elements of the exception being met). This may be of significance to companies that treat the water purchased from a utility to a higher quality in order to satisfy process water specifications. If the potable supply line to the corporate facilities originates at the corporate treatment facility, rather than at the water utility, the corporation would probably be considered a corporate water supplier. Companies in such a situation may find it more cost-effective to modify their plumbing systems than to comply with the comprehensive SDWA regulatory scheme.

10. 40 Fed. Reg. 59570 (Dec. 24, 1975).

11. Id. "Community system" was defined as "a public water system which serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents."

12. Id. Non-community systems included facilities ranging from camp-grounds and rest stops to schools and factories.

13. Id. Under the original scheme, non-community suppliers were only subject to regulation for those contaminants that posed acute health effects. Thus, out of the 22 contaminants for which tap standards (maximum contaminant levels, or MCLs) were set for community systems, only 3 applied to non-community systems: bacteria, turbidity (because it harbors bacteria and interferes with disinfection), and nitrate (because it can have a lethal effect on infants). In addition, non-community suppliers were subject to substantially less rigorous monitoring requirements than community systems.

14. Of course, as noted above, corporate water customers were entirely exempt from EPA's regulations, so long as they satisfied the criteria of SDWA § 1411, 42 U.S.C.A. § 300g, ELR STAT. SDWA 41102.

15. 50 Fed. Reg. 46902, 46918 (Nov. 13, 1985) (emphasis added).

16. Id.

17. 52 Fed. Reg. at 25695 (July 8, 1987) (emphasis added).

18. See supra note 13.

19. 50 Fed. Reg. at 46918 (Nov. 13, 1985).

20. 52 Fed. Reg. at 25695 (July 8, 1987). For example, an MCL for lead was originally in effect and thus does not apply to NTNCWSs. However, EPA intends to issue a revised MCL for lead, at which time it will apply to NTNCWSs.

21. Id.

22. SDWA § 1412, 42 U.S.C.A. § 300g-1, ELR STAT. SDWA 41102.

23. SDWA § 1401(1)(D), 42 U.S.C.A. § 300f(1)(D), ELR STAT. SDWA 41102.

24. See supra note 13.

25. See infra note 105.

26. SDWA § 1412(b)(1), 42 U.S.C.A. § 300g-1(b)(1), ELR STAT. SDWA 41102. These 83 contaminants include the 22 for which EPA has already issued regulations. Thus, EPA must regulate 61 new contaminants by June 19, 1989.

27. 52 Fed. Reg. at 25690 (July 8, 1987).

28. See, e.g., 52 Fed. Reg. 42178 (Nov. 3, 1987).

29. SDWA § 1412(b)(3), 42 U.S.C.A. § 300g-1(b)(3), ELR STAT. SDWA 41103. EPA has issued the first priority list. 53 Fed. Reg. 1892 (Jan. 22, 1988).

30. 52 Fed. Reg. at 25695 (July 8, 1987).

31. SDWA § 1412(b)(7), 42 U.S.C.A. § 300g-1(b)(7), ELR STAT. SDWA 41103. While water suppliers employ a variety of treatment processes, depending on factors such as source quality and financial capability, conventional treatment typically involves turbidity removal through flocculation and sedimentation, followed by disinfection. To comply with the Amendments, many water suppliers will have to install more sophisticated technology such as lime softening, sand filtration, granular activated carbon, reverse osmosis, or ion exchange systems.

32. 52 Fed. Reg. at 25716 (July 8, 1987) (to be codified at 40 C.F.R. § 141.101). Bottled water and point-of-use devices may, however, be used on a temporary basis to avoid an unreasonable risk to health. Id.

33. Compared to the approximately $ 20 per sample costs that corporate suppliers had to bear when they were classified as non-community systems, corporate suppliers now face sampling costs in excess of $ 1000 per sample.

34. EPA has carved out an exception from the requirement to monitor for unregulated contaminants. Systems "serving fewer than 150 service connections" may, in lieu of monitoring, send a letter to the state authority specifying that their system is available for sampling. 52 Fed. Reg. 25715 (July 8, 1987) (to be codified at 40 C.F.R. § 141.40(k)). This exception arguably would be available to a corporate supplier whose water system extends to fewer than 150 different buildings (assuming one service connection per building). It is curious that, unlike the statutory definition of "public water system," which establishes a threshold test based on either the number of service connections served (15) or the number of individuals served (25), the unregulated contaminant provision speaks to "service connections" exclusively. While ordinarily that distinction is not particularly significant, given that EPA apparently considers there to be about 1.66 individuals per service connection, the distinction can be quite important in the context of NTNCWSs. A service connection in an NTNCWS could conceivably serve hundreds of individuals. Thus, tying the exception to service connections, rather than to individuals served, will greatly expand the number of NTNCWSs to which it will apply.

35. SDWA § 1414(c), 42 U.S.C.A. § 300g-3(c), ELR STAT. SDWA 41105.

36. 52 Fed. Reg. 41534 (Oct. 28, 1987).

37. For NTNCWSs, several modes of notification are available, including (1) one-time mail notice, (2) newspaper notice once per month for three consecutive months, (3) hand delivery (e.g., as a stuffer in a paycheck envelope), or (4) by posting continuously in a conspicuous place for three consecutive months. 52 Fed. Reg. at 41549 (Oct. 28, 1987) (to be codified at 40 C.F.R. § 141.34).

38. AGENCY FOR TOXIC SUBSTANCES AND DISEASE REGISTRY, U.S. PUBLIC HEALTH SERVICE, DRAFT TOXICOLOGICAL PROFILE FOR LEAD (Feb. 1988).

39. See EPA PROPOSED MAXIMUM CONTAMINANT LEVEL GOAL AND NATIONAL PRIMARY DRINKING WATER REGULATION FOR CORROSION BY-PRODUCTS: LEAD AND COPPER, PRELIMINARY REVIEW DRAFT, February 12, 1988.

40. Id.

41. The Amendments have instituted a prospective "lead ban," mandating that all pipe, solder, or flux used after June 19, 1986, in the installation or repair of any public water system or any plumbing in a residential or nonresidential facility connected to a public water system must be "lead free." SDWA § 1417(a)(1), 42 U.S.C.A. § 300g-b(a)(1), ELR STAT. SDWA 41108. "Lead free" is defined as not containing more than 0.2 percent lead, for solders and flux, or 8 percent lead, for pipes and pipe fittings. Id. at (d).

42. Water corrosivity is influenced largely by the pH and carbonate alkalinity of the water. EPA has found that water with a low pH (less than 7.5) and low carbonate alkalinity (less than 20 mg/liter CO₃) is generally more aggressive toward lead than water with higher pH valves (8.5-9.5) and higher carbonate alkalinity (50 mg/liter CO₃).

43. The age of the lead components is relevant because, over time, carbonate deposits may build up on the lead surface, thereby inhibiting the leaching process.

44. The longer water is exposed to lead, the more leaching will occur. Thus, the first few gallons of water drawn in the morning ("first flush") will often contain higher concentrations of lead than water drawn later in the day.

45. The longer the lead pipe or service connection to the customer, and the smaller the diameter of those pipes and service connections, the greater the opportunity for leaching — thus the greater the concentration of lead that can be expected.

46. The greater the water temperatures, the more leaching that can be expected.

47. Depending on the mode of notice used, NTNCWSs may have an additional duty to provide notice beyond June 19, 1988. See supra note 37.

48. SDWA § 1417(a)(2), 42 U.S.C.A. § 300g-6(a)(2), ELR STAT. SDWA § 41108.

49. 52 Fed. Reg. at 41549 (Oct. 28, 1987) (to be codified at 40 C.F.R. § 141.34(a)(2)).

50. The statutory definition of "public water system" subsumes community systems, non-community systems, and NTNCWSs. Interestingly, EPA specifically imposed the notice requirement on all community systems and NTNCWSs, but not on non-community systems.

51. See supra note 41.

52. 52 Fed. Reg. at 41549 (Oct. 28, 1987) (to be codified at 40 C.F.R. § 141.34(a)(1)).

53. See supra note 20.

54. SDWA § 1417, 42 U.S.C.A. § 300g-6, ELR STAT. SDWA 41108.

55. 52 Fed. Reg. at 41549 (Oct. 28, 1987) (to be codified at 40 C.F.R. § 141.34(d)).

56. NTNCWSs may supplement EPA's mandatory notice language but only to the extent that the added language does not "frustrate the purpose of the notice." 52 Fed. Reg. at 41549 (Oct. 28, 1987) (to be codified at 40 C.F.R. § 141.34(c)(2)).

57. For example, the notice states, in pertinent part, "Too much lead in the human body can cause serious damage to the brain, kidneys, nervous system, and red blood cells. The greatest risk is to young children and pregnant women." 52 Fed. Reg. at 41549 (Oct. 28, 1987) (to be codified at 40 C.F.R. § 141.34(d)). Interestingly, while EPA's mandatory notice speaks to the consequences of "too much," it does not specify how much is "too much."

58. EPA has made clear, however, that the lead notification requirements do apply to consecutive systems (i.e., a public water system that supplies water to another public water system, which then distributes the water to the consumer). 52 Fed. Reg. at 41544 (Oct. 28, 1987).

59. In developing a strategy to avoid tort actions based on "duty to warn" grounds, corporations must be cautious about making statements that may later appear as admissions in a tort suit.

60. It is conceivable that a tort plaintiff might allege that a corporate water customer in receipt of a lead notice has a duty to warn "downstream" consumers, and that the company is liable for any injuries that could be linked to the company's nonfeasance.

61. Where a water utility notifies by newspaper advertisement rather than direct communication to the corporate customer, it may be possible, especially where the employees reside within the newspaper distribution territory, to argue that sufficient warning has already been provided.

62. It is also possible that a tort plaintiff may attempt to allege that violation of a "right to know" statute constitutes negligence per se.

63. SDWA § 1414(b)(2), 42 U.S.C.A. § 300g-3(b)(2), ELR STAT. SDWA 41104.

64. SDWA § 1414(c), 42 U.S.C.A. § 300g-3(c), ELR STAT. SDWA 41105.

65. SDWA § 1414(g)(1), 42 U.S.C.A. § 300g-3(g)(1), ELR STAT. SDWA 41105. EPA takes the position that administrative compliance orders issued under SDWA § 1414(g)(1) do not constitute final agency action and thus are not entitled to "preenforcement review." U.S. EPA, "PWS & UIC ADMINISTRATIVE ORDER ISSUANCE GUIDANCE," OFFICE OF DRINKING WATER, OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING (Nov. 28, 1986).

66. SDWA § 1414(g)(3)(B), 42 U.S.C.A. § 300g-3(g)(3)(B), ELR STAT. SDWA 41105.

67. 5 U.S.C. § 554 (1982). EPA claims that it intends to issue a rule setting out administrative procedures for penalty proceedings akin to those in 40 C.F.R. part 22. U.S. EPA, "PWS & UIC ADMINISTRATIVE ORDER ISSUANCE GUIDANCE," OFFICE OF DRINKING WATER, OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING (Nov. 28, 1986). Judicial review of an administrative penalty decision is available in an appropriate federal circuit court. SDWA § 1448, 42 U.S.C.A. § 300j-7, ELR STAT. SDWA 41114.

68. The Amendments specify that, in a penalty collection action, the validity of the underlying liability findings in any order for which appeal has been completed or waived shall not be subject to review. SDWA § 1414(g)(3)(D), 42 U.S.C.A. § 300g-3(G)(3)(D), ELR STAT. SDWA 41105.

69. MEMORANDUM FROM MICHAEL B. COOK TO EPA REGIONS, GUIDANCE FOR FY 1987 PWSS ENFORCEMENT AGREEMENTS (Aug. 8, 1986).

70. Some states have even stricter programs than EPA's, including provision for criminal penalties. See, e.g., VA. CODE ANN. § 32.1-27 (1985 Replacement Vol.).

71. SDWA § 1413, 42 U.S.C.A. § 300g-2, ELR STAT. SDWA 41104.

72. MEMORANDUM, supra note 69.

73. SDWA § 1413, 42 U.S.C.A. § 300g-2, ELR STAT. SDWA 41104. Prior to the Amendments, the SDWA stated that EPA "may" take an enforcement action where the state failed to act. Congress' decision to replace "may" with "shall" suggests that it intends EPA to monitor and follow up on state enforcement activities more aggressively than it has in the past.

74. SDWA § 1449, 42 U.S.C.A. § 300j-8, ELR STAT. SDWA 41120.

75. See FWPCA § 505, 33 U.S.C. § 1365, ELR STAT. FWPCA 059.

76. SDWA § 1449(d), 42 U.S.C.A. § 300j-8(d), ELR STAT. SDWA 41120.

77. SDWA § 1449(e), 42 U.S.C.A. § 300j-8(e), ELR STAT. SDWA 41120.

78. Where the employee is deceased, the compensation statute may offer coverage to certain classes of survivors.

79. Compare Permanent Constr. Co. v. Industrial Comm., 43 N.E.2d 557 (Ill. 1942) (typhoid fever is compensable) with State ex rel. Faribault Woolen Mills Co. v. District Court, 164 N.W. 810 (Minn. 1917) (typhoid fever is not compensable).

80. See, e.g., Oakes v. Workmen's Compensation Appeals Bd., 445 A.2d 838 (Commw. Ct. Pa. 1982) (injury need not result from sudden occurrence to be compensable); Globe Union v. Baker, 310 A.2d 883 (Super. Ct. Del. 1973) (injuries arising from chronic exposure to lead dust at automobile plant held compensable).

81. See Crowell v. Benson, 285 U.S. 22 (1932) (interpreting federal compensation statute); Reed Tool Co. v. Copelins, 689 S.W.2d 404 (Sup. Ct. Tex. 1985) (interpreting state compensation statute).

82. Cf. Permanent Constr. Co. v. Industrial Comm., 43 N.E.2d 557 (Ill. 1942) (holding that typhoid fever is compensable under compensation act where sustained by construction workers at a hospital site as a result of consumption of water that had been brought to them in buckets from a state hospital, at which numerous incidents of typhoid fever had broken out among inmates and visitors).

83. It is equally conceivable that, where the employee is deceased, corporate water suppliers may face survival actions or wrongful death actions.

84. While strict liability theory has traditionally been applied against "sellers" of defective products, a plaintiff might nonetheless attempt to argue that it applies to corporations whose water supply is in a defective condition unreasonably dangerous to the consumer.

85. Under a negligence theory, a plaintiff might argue that certain injuries were sustained because a corporate supplier's conduct fell below the reasonable standard applicable to entities providing potable water. A plaintiff might also argue that a corporate water customer has a duty to provide reasonable notice to all consumers of all potential health problems of which it is aware, particularly when the corporation has received a notice (e.g., the lead notice) from a water utility warning of such health risks.

86. Under a negligency per se theory, a plaintiff might argue that a company failing to comply with a specific regulatory requirement is liable for any damages that the regulation was intended to prevent. Again, this theory might be used where a corporate water supplier fails to meet the June 19, 1988, deadline for issuing the lead notice.

87. Some state constitutions authorize the courts to fashion remedies where existing remedies are inadequate to resolve disputes. See WIS. CONST. Art. I, § 9.

88. See, e.g., Ferguson v. Hospital Corp. International, Ltd., 769 F.2d 268 (5th Cir.), reh'g denied, 776 F.2d 105 (1985) (failure to comply with notice provisions of compensation statute).

89. See, e.g., Ohio Automatic Sprinkler Co. v. Fender, 141 N.E. 269 (Ohio 1923). But see Hatcher v. Bullard Co., 477 A.2d 1035 (Super. Ct. Conn. 1984) (Connecticut court held that violation of safety standard under OSHA would not pierce employer's veil of immunity from common law remedies).

90. However, in light of the Supreme Court's opinion in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 11 ELR 20682 (1981), it is unlikely that the SDWA establishes a private right of action under federal law for damages resulting from violation of its provisions.

91. 433 N.E.2d 572 (Ohio 1982).

92. Id. at 574.

93. Id.

94. Id. at 576.

95. Jones v. VIP Development Co., 472 N.E.2d 1046 (Ohio 1984); accord, Trupiano v. Swift & Co., 755 F.2d 442 (5th Cir. 1985) (interpreting Louisiana law to embrace the substantial certainty showing); Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex. 1985) (interpreting Texas law to embrace the substantial certainty showing). But see Miller v. Ensco, Inc., 692 S.W.2d 615, 617 (Sup. Ct. Ark. 1985) (holding that, to be intentional, the employer must desire to bring about the consequences of the act); LARSON, THE LAW OF WORKMEN'S COMPENSATION, Vol. 2A, 68.32(a), Chap. XIII, n. 43.9, at pp. 13-46 (the Blankenship decision is "out of line").

96. See e.g., Helton v. King Kwik Minit Market, Inc., 195 N.E.2d 62 (C.P. Ohio 1985) (seven assaults during a 1,200-day period is insufficient frequency to support the claim that employer knew that assault on plaintiff was substantially certain to occur).

97. The Amendments define "feasible" as "feasible with the use of the best technology, treatment techniques and other means which the Administrator finds, after examination for efficacy under field conditions and not solely under laboratory conditions, are available (taking cost into consideration)." SDWA § 1412(b)(5), 42 U.S.C.A. § 300g-1(b)(5), ELR STAT. SDWA 41103.

98. SDWA § 1412(b)(4), 42 U.S.C. § 300g-1(b)(4), ELR STAT. SDWA 41103.

99. EPA has established a three-tier classification system for the contaminants it regulates. Only Category I chemicals (i.e., those that show strong evidence of carcinogenicity) are regulated as carcinogens. Category II chemicals (i.e., those that show equivocal evidence of carcinogenicity) and Category III chemicals (i.e., those that show inadequate or no evidence of carcinogenicity) are regulated on the basis of their chronic toxic effects (i.e., health effects other than carcinogenic responses). 50 Fed. Reg. 46944-49 (Nov. 13, 1985).

100. 50 Fed. Reg. at 46944 (Nov. 13, 1985).

101. See 1 TOXICS L. REP. (BNA) No. 16, at 432 (Sept. 24, 1986). A $ 1 million settlement had been reached previously between the plaintiffs and Unifirst Corp. Id.

102. Anderson v. W. R. Grace & Co., No. 82-1672-S (D. Mass. Feb. 22, 1986).

103. Potter v. Firestone Tire and Rubber Co., No. 81723 (Cal. 1987).

104. Freese v. U.S., No. 86-CV10173-BC (E.D. Mich.) (action against U.S. Air Force alleging, inter alia, failure to warn plaintiff infant's mother about risk of injury from exposure to toxic chemicals in the Air Force base's water supply).

105. Variances, SDWA § 1415, 42 U.S.C.A. § 300g-4, ELR STAT. SDWA 41105, and exemptions, SDWA § 1416, 42 U.S.C.A. § 300g-5, ELR STAT. SDWA 41106, offer a water supplier temporary relief from compliance under limited circumstances, and subject to strict procedural requirements.

106. 52 Fed. Reg. 25716 (July 8, 1987) (to be codified at 40 C.F.R. § 141.101).

107. EPA claimed that "bottled water does not provide the same level of protection as central treatment (i.e., persons may choose not to drink bottled water) and bottled water might allow significant exposure to water which does not meet the drinking water standard during showering and other applications." Id. at 25701. EPA's authority under the SDWA to ban the use of bottled water and point-of-use devices, as well as to limit exposure to contaminants through routes other than through ingestion, is questionable.

108. International Bottled Water Association v. EPA, No. 87-1413 (D.C. Cir.).

109. 52 Fed. Reg. 42224 (Nov. 3, 1987).

110. Interferences in the coliform test are deemed to be present when the sample exhibits confluent growth, contains colonies too numerous to count, or yields a turbid liquid medium. Id. at 42235. EPA considers heterotrophic bacteria as one possible cause of such interference.

111. Id. at 42235. EPA proposed not only to limit the time between sampling and analysis to eight hours, but also to require that such samples be refrigerated during that period. Id.

112. Id.

113. Id. at 42236.

114. To remain in compliance under the proposed rule, systems serving no more than 3,300 persons must not show the presence of coliform bacteria in more than one sample per month or in more than three samples per year. 52 Fed. Reg. 42245 (Nov. 3, 1987). A failure of the heterotrophic bacteria test, or a decision not to perform that test, counts as the equivalent of one presence. Id. at 42236.

115. The SDWA provides a 45-day period in which to appeal a final EPA rulemaking in the U.S. Court of Appeals for the District of Columbia. SDWA § 1448, 42 U.S.C.A. § 300j-7, ELR STAT. SDWA 41120. Failure to file a petition within the 45-day period will likely result in dismissal, unless the petition is based solely on grounds arising after that period. Id.

116. There has recently been much controversy regarding the contribution of lead by various types of water coolers. INDUSTRY OFFICIALS SAY WATER COOLER STUDIES MAY BE PREMATURE, INACCURATELY CONDUCTED, 18 [CURRENT DEVELOPMENTS] ENV'T. REP. (BNA) No. 38, at 2014 (Jan. 15, 1988).

117. Even high-quality laboratories will exhibit considerable variability in the results they produce. See 52 Fed. Reg. at 25705-06 (July 8, 1987). While such variability is inherent in virtually all analytical measurement methods, it can be reduced considerably through appropriate laboratory practices. Id.

118. While the statutory scheme differs somewhat, the Clean Water Act has been consistently construed to restrict evidence of laboratory error as a defense to liability. See, e.g., Sierra Club v. Union Oil Company of California, 813 F.2d 1480, 17 ELR 20547 (9th Cir. 1987).

119. While compliance with the SDWA regulations will presumably protect consumers from the adverse health effects of the contaminants addressed, EPA has thus far regulated only a few of the hundreds of contaminants that may cause adverse health effects. Moreover, compliance per se cannot generally be relied on as a defense to a tort action. Cf. Borland v. Sanders Lead Co., 369 So. 2d 563, 15 ELR 20934 (Ala. 1979) (compliance with Clean Air Act not a bar to common law action seeking damages arising from activities regulated under that statute).

120. Companies served by a water utility should bear in mind that the installation of treatment facilities may subject them to the SDWA's onerous regulatory scheme. See supra note 9.

121. In the mandatory lead notice language, EPA states that "[b]ased on new health information, EPA is likely to lower [the 0.05 mg/liter] standard significantly." 52 Fed. Reg. 41549 (Oct. 28, 1987) (to be codified at 40 C.F.R. § 141.34(d)).