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.
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