Tens of thousands of Americans will learn this year that the water just underneath their home-their groundwater-is contaminated with chemicals that some nearby factory dumped probably decades ago, and left to bleed down through the soil, infiltrate the groundwater, and ultimately migrate into your neighborhood.
I’ve been representing families in exactly this predicament for nearly 18 years. This is what I’ve learned they should be doing/asking in response to this news:
(1) Talk to an experienced environmental lawyer about your legal rights and options. Contaminated groundwater, and what to do about it, involves some complicated legal, scientific and sometimes political issues. Also, while you are going to need access to accurate information, and quickly, in order to make good decisions to protect you family, those most likely to have the information-the polluter and sometimes government-may not want to give it to you. A lawyer can help you get it.
(2) Has the polluter been identified, and does it have the very significant resources that will probably be necessary to protect the families that it has put in harms’ way? In my experience, it is sometimes obvious who the responsible polluter is, sometimes less so. What if the polluter’s identity cannot be readily determined? Also, what if the polluter is bankrupt, or lacks the potentially millions of dollars necessary to fix the problem-which happens in many cases? Uncertainty over the polluter’s identity and/or financial ability to pay for the work and protection necessary can be major impediments to getting the help your family needs.
(3) Determine how your family might be exposed. Is the groundwater your family’s source of water for drinking, bathing, etc., usually by means of a private well? If so, then you are potentially exposed every time you turn on the kitchen faucet, or the bathroom shower head, for example. In this case, you urgently need a short term solution that eliminates, or at least minimizes, your family’s exposure to the chemicals in the water. Bottled water is one possibility. So is an in-home filter that is proven to trap the chemicals before they get to the faucet or shower head. But recognize that these are only short-term solutions. For the longer term, you will need access to a clean water supply (if it is even available), and a legally-enforceable commitment from the polluter to clean up the contamination. The polluter should pay for all of this, of course, but almost never does without being sued. Your lawyer can help you think through the costs and benefits of filing such a suit.
(4) Is vapor intrusion a potential problem? This has to do with several factors, including the nature of the chemicals in the groundwater, how shallow the contaminated groundwater is, and the age and construction of your home. Specifically, there are certain chemicals-known as “Volatile Organic Compounds” (VOCs)– that readily turn into a gas in groundwater, and then migrate back upwards through the soil, and look to escape into openings in any basements overhead. The shallower the groundwater that is contaminated with the chemicals, the less distance the chemicals have to travel in gas form to get to your basement. And the older your home, the greater the chance that it either does not have a basement, has a dirt basement floor, a crawl space or has a concrete basement floor with large cracks in it. In all these circumstances, it is very easy for the VOC-laced vapor to slip into the breathing space of your home. There is testing that can tell you the likelihood that this is occurring (“testing for vapor intrusion”), and there are systems available to protect your home (as best as technology allows) against the threat of vapor intrusion. These are usually called “vapor mitigation systems”. What your family ultimately needs and deserves, of course, is a clean-up of the chemicals in the groundwater, because that is where the threat is coming from. If all of this sounds expensive, that’s because it is. So, once again, you probably need to at least threaten a lawsuit, and more likely file and prosecute one, in order to get the necessary action.
(5) Whose side is government on? Silly question, right? Not really. In probably half of my cases, the government’s environmental agency that is supposed to be protecting the people against the contamination actually does its job, and moves aggressively not only to inform citizens of the problem, but also to force the polluter to test (to see who is threatened) and clean up. However, in the other half of my cases, the agency is unwilling to take this action, even though it usually has the legal authority to do so. There are several possible reasons for this, including that the environmental agency is incompetent and/or underfunded-often the case with many state agencies; the polluter is politically powerful and so the agency feels its hands are tied; or the agency has known about the contamination for years, feels it therefore cannot admit that it is a serious problem (or else it will look bad for its years of inaction), and so winds up trying to convince everyone that the contamination is not that serious.
(6) How many families are affected? This has to do with the legal and other leverage you have to force a solution. While, of course, you will hope that fewer, rather than more, families are affected, the truth is that groundwater contamination seldom impacts only a few families. Most of the time, it is dozens or even hundreds. The bottom line is that the more families that are affected, the more leverage all of you have to force a quicker solution.
(7) Has the value of your home been diminished? The easy answer is “yes”. Logically, people will be far less interested in buying a home that is threatened with a contaminated water supply or vapor intrusion. The tougher question is: can at least some of the value ultimately be restored? The answer here is also “yes”. But how much value can be restored, and when, really have to do with how soon the affected families can be protected against the contamination, and how long it will take to get a thorough clean up. If, for example, contaminated groundwater is coming into the home, then the value of the home will not begin to meaningfully recover until there is no way for the contamination to enter the home, either because the home has been switched to a permanent, safe water supply, or the contamination has been fully removed from the groundwater.
In summary, I’ll go back to what I said first: if you learn that your groundwater is contaminated, please appreciate that this is a very complicated problem, and you should have an experienced advocate (lawyer) advising you on how best to protect your family, and assert your legal rights, if necessary. After all, the polluter has a lawyer-probably many–and government does, too. You are the one most seriously affected. You should not be the only one without a lawyer.