To amend the Safe Drinking Water Act to provide procedures for claims relating to drinking water.

January 8, 2003

Mr. GARY G. MILLER of California (for himself, Mr. CALVERT, and Mr. DOOLEY of California) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

To amend the Safe Drinking Water Act to provide procedures for claims relating to drinking water.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Drinking Water Standards Preservation Act of 2003'.

SEC. 2. FINDINGS.

The Congress finds the following:

(1) The safety of drinking water, and the adequacy of water supplies, is a national concern. In the 29 years since Congress first mandated the establishment of uniform national minimum drinking water standards, national standards have been established for more than 100 contaminants and parameters.

(2) The States have been authorized to enforce those standards, and, in appropriate cases, set stricter standards on a statewide basis.

(3) It is technologically infeasible for a drinking water system to provide water with a zero level of contaminants, and a determination that drinking water must contain no contaminants would threaten the adequacy of water supplies.

(4) The setting of drinking water standards is a complex public policy determination requiring a careful analysis and balancing of a number of factors, including--

(A) the maximum safe level for each drinking water contaminant, the technological capability of removing contaminants from public drinking water supplies; and

(B) the importance of assuring that drinking water is affordable to all Americans.

(5) The setting of these standards is not appropriate for individual juries deciding individual cases in the separate States, but rather is fundamentally a scientific issue to be resolved by the appropriate Federal and State agencies in accordance with the rulemaking provisions of the Safe Drinking Water Act and the applicable State authorities.

(6) Claims for monetary damages brought against public water providers under the common law of the various States based on alleged contamination of drinking water threaten to undermine the science-based uniform national system of water quality regulation.

(7) The States should retain maximum flexibility to handle claims for monetary damages brought against public water providers based on alleged contamination of drinking water, including the authority to decide whether such claims should be heard by the courts or an administrative agency.

(8) The costs of defending against multiple legal claims can be financially burdensome to any water provider, but especially to small systems, and the imposition of such costs cannot be justified when a supplier complies with the requirements of the Safe Drinking Water Act.

SEC. 3. AMENDMENTS TO THE SAFE DRINKING WATER ACT.

Section 1449 of the Safe Drinking Water Act (42 U.S.C. 300j-8) is amended as follows:

(1) By striking `Nothing' in the first sentence of subsection (e) and inserting `(1) Except as provided in subsection (f), nothing'.

(2) By striking `or to seek any other relief' at the end of the first sentence of subsection (e).

(3) By adding after the first sentence of subsection (e) the following: `Nothing in subsection (f) creates a new cause of action, and, except as otherwise explicitly provided in this title, nothing in this title expands liability otherwise imposed or limits any defense otherwise available under Federal or State law.' .

(4) By striking `Nothing' in the second sentence of subsection (e) and inserting `Except as provided in subsection (f), nothing'.

(5) By adding the following new subsection at the end thereof:

`(f)(1) No public water system shall be liable in a civil suit brought before any Federal or State court for damages arising from injury (including personal injury, death, or property damage) allegedly caused by delivery of contaminated water, unless the court determines that the plaintiff has established the following:

`(A) In the case of a regulated contaminant, the plaintiff must establish that each of the following criteria are met:

`(i) The substance in the delivered water which the plaintiff claims caused the injury was subject to a Federal or State regulation prescribed under this Act at the time of delivery.

`(ii) There is substantial scientific evidence that the substance in the delivered water which the plaintiff claims caused the injury was of such a nature, and in such amounts, that it was reasonably likely to cause the kind of injury of which the plaintiff complains.

`(iii) The public water system violated the regulation referred to in clause (i).

`(iv) The violation was negligent.

`(v) The violation caused the injury.

`(B) In the case of an unregulated contaminant, the plaintiff must establish that each of the following criteria are met:

`(i) The substance in the delivered water which the plaintiff claims caused the injury was not subject to any requirements prescribed under this Act at the time of delivery.

`(ii) There is substantial scientific evidence that the substance in the delivered water which the plaintiff claims caused the injury was of such a nature, and in such amounts, that it was reasonably likely to cause the kind of injury of which the plaintiff complains.

`(iii) The injury actually was caused by delivery of water that contained such a substance.

`(iv) The public water system knew or should have known that the substance was in the drinking water at such a level and was likely to cause the injury.

`(v) It was feasible for the supplier to have removed such contaminant to a level below which it was not likely to cause such injury.

`(2) The court shall, in a special pretrial proceeding, subject to the requirements of paragraph (3), determine whether the plaintiff has established either that criteria in clauses (i), (ii), and (iii) of paragraph (1)(A) or criteria in clauses (i), (ii), and (v) in paragraph (1)(B) have been met.

`(3) The court, in making the determinations required in paragraphs (1)(A) and (1)(B), shall adopt and give binding effect to any findings of fact, conclusions of law, or determination of any agency of a State exercising primary enforcement authority for purposes of this title. Nothing in this section limits the jurisdiction or authority of any State agency to make findings and determinations with respect to whether--

`(A) requirements for drinking water quality adequately protect the public;

`(B) additional requirements for regulated or unregulated contaminants are warranted; and

`(C) public water systems are in compliance with such requirements.'.

END