BILL NUMBER: S8763A

SPONSOR: GAUGHRAN
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to the
statute of limitations for public water suppliers to commence an action,
civil claim, or cause of action for injury to property

 
PURPOSE:

This bill amends section 214-h of the civil practice law and rules by
adding a new paragraph i of subdivision one and a new subdivision five
to provide for a revival of actions involving emerging contaminants that
have been or ever will be identified or listed pursuant section one
thousand one hundred twelve of the public health law or any other law.

 
SUMMARY OF PROVISIONS:

Section one adds paragraph i of subdivision one and defines "emerging
contaminant" as any physical, chemical, microbiological or radiological
substance that has ever been, ever will be, or ever will be required to
              

be identified or listed as an emerging contaminant pursuant to para-
graphs a, b, or c of subdivision 3 of section 1112 of the public health
law or any other law.

Section two adds subdivision five which allows any action involving an
emerging contaminant that is barred due to an expired statute of limita-
tions to be revived and allows any such action to be commenced and pros-
ecuted provided that the action is commenced before or in accordance
with the time periods set forth in subdivision two of this section.

 
JUSTIFICATION:

Parts m and r of chapter 57 of the laws of 2017 amended the public
health law by adding sections 1112 and 1113 requiring the commissioner
of the department of health to identify and list emerging contaminants
and to promulgate regulations regarding emerging contaminants after
recommendations from a new drinking water advisory council. These new
drinking water regulations have and will continue to result in new and
significant costs for public water suppliers, their customers, and the
state. Public water suppliers can mitigate these costs through liti-
gation against polluters who caused or who are responsible for the
contamination of sources of water supply.

Section 214-h of the civil practice law and rules was established in
chapter 332 of the laws of 2019 to clarify the statute of limitations
for public water suppliers and make it clear that, among other things, a
public water supplier may commence an action within three years of the
latest of the following events: (1) the detection of a contaminant that
exceeds any notification level, action level, maximum contaminant level,
or maximum contaminant level goal established by the department of
health or the United States Environmental Protection Agency,(2) the last
wrongful act by any person whose conduct substantially contributed to
the presence of a contaminant in a source of water supply, or (3) the
date the contaminant is last detected in the raw water of each well or
plant intake sampling point in excess of any notification level, action
level, maximum contaminant level, or maximum contaminant level goal.
While 214-h was intended to be remedial in nature and have retroactive
effect, a recent Court of Appeals decision entitled Regina Metropolitan
Co. v. New York State Division of Housing and Community Renewal, 35
N.Y.3d 332 (2020) may call the retroactive effect of the language of
section 214-h into question.

This amendment to section 214-h is intended make it clear that section
214-h is intended to have retroactive effect and to revive any actions
involving emerging contaminants that have ever been identified in or
listed, or that have ever been required to be identified or listed,
pursuant to section one thousand one hundred twelve of the public health
law or any other law.

 
LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATION:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.