Liability issues make sewer upkeep critical
Courts have determined that local governments that own, operate and maintain sanitary sewer systems can be held responsible for contaminated soil and groundwater caused by the release of hazardous materials even if the governments did not discharge the materials into the sewer system. Although proper maintenance of sewer infrastructure always has been important, the threat of litigation has the potential to make sewer maintenance even more critical.
In a current case, Lodi, Calif., is trying to persuade a federal judge that it is not liable for the groundwater contamination caused by chemicals and solvents that area businesses once routinely dumped down their drains and that escaped through sewer leaks. Two court cases in the 1990s with differing results serve as benchmarks for current litigations. In 1992, a federal court ruled that San Joaquin County, Calif., was not liable for the contamination of area water and soil because it had taken precautions to prevent leaks from its sewer system. The county’s sewer lines were found to be built and maintained according to industry standards, and the court found the county could not have predicted that residents or businesses would violate a county ordinance by releasing cleaning solvents into the sewer.
However, three years later, the U.S. Court of Appeals upheld a lower court’s decision that the Washington (D.C.) Suburban Sanitary Commission was responsible for the leak of hazardous substances from its sewer system. The court found the commission knew the substances were being discharged into its sewer and failed to take precautions against contamination despite awareness of cracks in the sewer pipes.
In many cities and counties, sanitary sewers were designed and constructed according to the prevailing and generally accepted standards and practices of the time. Although sewer owners and operators are not required to design, construct or maintain watertight, leak-free sewers, they are required to maintain an “adequate standard of care.”
There is no definitive regulation concerning the standard of care for the operation of a sewer system, but there are numerous guides for managers to consider, such as the Alexandria, Va.-based Water Environment Federation’s Wastewater Collection Systems Management Manual of Practice No. 7. That guidance is based on sound engineering and management principles, but it does not constitute published standards by a governmental regulatory agency, and it may not be practicable or applicable in all instances.
Because no definitive standard of care exists, sewer owners and operators should at least respond to emergencies to protect residents, conduct routine preventive maintenance on the sewers, implement regulations and penalties for discharges, and perform system upgrades when needed. Those actions can show that sewer owners are taking precautions to prevent hazardous leaks and can reduce the chances of cities and counties finding themselves on the wrong side of a court ruling.
Frederick Stanin and Frank Oliveri are project manager/senior hydrogeologist and associate, respectively, for White Plains, N.Y.-based Malcolm Pirnie, an environmental engineering, science and consulting firm.
(Note of disclosure: A Malcolm Pirnie official — not either of the co-authors — is a court-appointed expert in the Lodi, Calif., case.)