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New York Extends Limitations Period For Emerging Contaminant Claims By Water Suppliers – Environmental Law

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On October 5, 2022, New York Governor Kathy Hochul signed a bill
allowing public water suppliers to prosecute previously time-barred
claims relating to emerging contaminants in their water supply
wells. N.Y. CPLR 214-h (amended by S.8763/A.9824A).
The bill amends Section 214-h of the New York Civil Practice Law
& Rules (CPLR), enacted in 2019, which allows a water supplier
three years to file suit from the date it last detects a
contaminant in a given supply well. According to the sponsor memo
supporting the bill, the intent of the new amendment is to clarify
that Section 214-h has a retroactive effect and to revive certain
actions involving emerging contaminants that previously would have
been time-barred.

Specifically, newly amended Section 214-h allows public water
suppliers to commence and prosecute actions involving an emerging
contaminant—even where such claims would otherwise have been
barred by the statute of limitations—before or within 18
months of the new provision’s effective date of October 5,
2022. The amendment defines emerging contaminants as “any
physical, chemical, microbiological or radiological substance that
has ever been or ever will be identified or listed” under
Section 1112 of New York’s Public Health Law or “any other
law.” See N.Y. Public Health Law §
1112(3)(a)–(c).

New York State Senator Jim Gaughran, who formerly served as
Chairman of the Board of the Suffolk County Water Authority (SCWA),
sponsored the bill. SCWA is the largest supplier of groundwater in
the United States and has filed at least four major lawsuits
seeking damages for alleged contamination of its water supply wells
by methyl tertiary butyl ether (MTBE); perchloroethylene; per-and
polyfluoroalkyl substances (PFAS); and 1,4-dioxane.

The amendment may lead to an increase in the number of lawsuits
brought by public water providers in New York alleging
contamination of their supply wells. In addition, defendants in
these actions will need to carefully assess the availability of
limitations-based defenses in ongoing and newly commenced lawsuits
and may need to rely more heavily on other defenses to such
claims.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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