Monday, August 17, 2020

Road salt and lawsuits

When Americans try to work something out but fail, we head to court.

But that option isn’t available for many long-suffering New Yorkers with water made undrinkable by road salt.

Road salt has been a known threat to the environment and human health for decades. Yet, the state of New York, which applies about as much per mile of roadway as any other state, depending on the year, has done little to prevent, clean up or truly quantify much of the problem.

That has stood out to me in several months of reporting on how road salt is fouling up water in and around the Adirondacks. The scale of the problem is so uncertain that hundreds of thousands of New Yorkers may have salty water without even knowing it.

But when they do find out, they have a heck of a time trying to make things right.

In the current issue of the magazine, I explore what happens when homeowners try to take the state to court. These are homeowners who have salty water they believe is caused by the New York State Department of Transportation’s wintertime road salting.

Very often, they can’t really take the state to court.

Sure, they can pay an attorney, file paperwork, even appear before a judge and have a trial, but for all practical purposes, they are blocked from actually getting a decision on the merits of their case. That’s because state law gives the state home court advantage. Generally, if a homeowner doesn’t file the case within 90 days of realizing there might be a problem, their case gets tossed.

That means the state can tell someone they have unsafe water, that the state likely caused the water to be unsafe and then refuse to do anything about it. And if the homeowner waits, hoping the state will change its mind — boom, it’s too late.

There’s both historical and practical logic behind this. The historical reason is that governments in the United States maintain a level of legal protection inherited from English law – a legal tradition known as sovereign immunity, often summarized as “the king can do no wrong,” which survived the American Revolution.

There’s also a practical reason or two. The state doesn’t want to be blindsided by claims about supposed wrongs that happened years ago or the massive unbudgeted expenses that can come from major environmental lawsuits.

But the current system has created a real patchwork of state action and inaction. In some cases, the state will step in and get people a replacement water supply, either by sending them bottles of water or by drilling them a new well. The head of DOT, Marie Therese Dominguez, already has the power to pay to drill new wells for residents, but the law doesn’t require her to act and DOT has so far declined to tell the Adirondack Explorer how often she does.

In other cases, the state has even considered buying out property owners with contaminated water – and in at least one case 30 years ago, it did. This is a point worth emphasizing: The state has so screwed up people’s property with salt that it has considered using taxpayer dollars to buy it from them, rather than deal with trying to clean it up.

Most of the people I interviewed, though, got nothing but the cold shoulder from the state. That means they are stuck drinking unsafe water or ponying up to buy bottled water even as they live in one of the most protected wilderness areas in the world.

We’re going to continue to explore why this is happening, since road salt is one of the major sources of pollution in the Adirondacks, which is otherwise relatively well protected from industrial contamination.

If you have any comments, questions or tips about this ongoing investigation, please email me or join me for an online discussion about water quality in the Adirondacks on Aug. 25.

Photo: A state highway truck dumps road salt in Tupper Lake. By Mike Lynch/Adirondack Explorer

Editor’s note: This originally ran in Ry’s weekly “Water Line” newsletter. Click here to subscribe. Click here to read other stories by him.

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Ry is a reporter who covered water-quality issues for the Explorer.


6 Responses

  1. Todd Eastman says:

    A-Salt on decency!

    Sovereign immunity exists with an understanding that the sovereign has acted in a manner generally considered “in good faith”…

    … if not… well see what the public will say.?

  2. Ethan says:

    I’d be very interested in learning about safer alternative options to salt.
    I’m aware that not too many years ago the controversial use of fly ash on NY roads became an issue. What can be used that does not have a negative impact on wells, streams, lakes and air quality?


    Agreed Todd Eastman. I truly find it astonishing that we value bare pavement over all other life and drinkable water. We Humans are truly messed up!!

  4. Charlie S says:

    “I truly find it astonishing that we value bare pavement over all other life and drinkable water. We Humans are truly messed up!!”

    Yes sir! Messed up is putting it mildly. We, or our progeny, are going to pay dearly for our selfishness, impatience, apathy, neurosis and ignorance!

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