As the end of the 2022 New York State legislative session on June 2 approaches, Suffolk County Water Authority officials are hoping that the Assembly and Senate will act under the wire to pass two bills designed to hold polluters financially accountable for mitigation costs rather than taxpayers and water users.
There is an estimated $1 billion on the line for Long Island, according to SCWA officials.
“These two bills are kind of a one-two punch in the State Legislature that would protect the rights of New York State taxpayers against companies that have polluted Long Island’s groundwater,” said Daniel Dubois, SCWA’s director of external affairs, during a call last week.
The first bill is what’s being called the “Polluters Pay Bill,” Dubois said, and it would amend state public health law to ensure that the parties responsible for polluting groundwater can’t deduct from their financial liability any state grants that are given to water suppliers to help remediate pollution.
Using round numbers as an example, he explained that under this legislation, if SCWA receives a $5 million grant from the state to help cover the costs of a $10 million water treatment project, the polluter will still be liable for the full $10 million in damages.
“This bill would make sure that they would have to pay the full amount, and then we as a provider would then return the funding that we got from the state back to state taxpayers,” he said. “So the end result is that the polluter pays, the water provider is made whole and taxpayers aren’t on the hook for treating those pollutants.”
Under the existing law, the polluter could argue to the court that SCWA had only suffered $5 million in damages, and the polluter would be let off the hook for the other half of the cost that the taxpayers covered.
The Senate passed the bill last year but it stalled in the Assembly, and this year both houses would need to pass it before it is sent to Governor Kathy Hochul’s desk for her signature.
The second piece of legislation that SCWA is hoping the Legislature will approve is a statute of limitations revival bill. Dubois said it is a technical fix to a 2019 state law that was intended to clarify the statute of limitations for water providers and municipalities to go after chemical companies that caused pollution. He said the intent of the bill was to be retroactive, but an unrelated 2020 U.S. Court of Appeals decision said that when a legislature alters a statute of limitations to revive past cases, it must be explicit and unequivocal in its language.
“That decision by the Court of Appeals has been applied to one court case that we’re aware of,” Dubois said. “The Hicksville Water District was in court going after a polluter, and it was thrown out in federal District Court, applying this Court of Appeals decision. So the revival bill would clarify that language — make it unequivocal that the legislature intended to revive past cases. So without this, it really puts all of the cases across New York State from all the water providers in jeopardy, and it could mean that their customers [and] New York state taxpayers are on the hook for paying.”
Assemblyman Fred W. Thiele Jr. of Sag Harbor and Senator James Gaughran of Northport, a former chairman of SCWA, sponsor both bills.
To help cover the costs of removing contaminants of emerging concern — namely, 1,4-Dioxane and the perfluorinated compounds PFOS and PFOA — from the water supply, the water authority added a $20 quarterly surcharge to water bills in 2020. If courts hold chemical manufacturers financially liable for the contamination, it could mean relief for ratepayers.
