I 

109TH CONGRESS 

1ST SESSION H. R. 1540 

To amend the Safe Drinking Water Act to provide procedures for claims 

relating to drinking water. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 8, 2005 

Mr. GARY G. MILLER of California (for himself and Mr. CALVERT) 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 

A BILL 

To amend the Safe Drinking Water Act to provide 

procedures for claims relating to drinking water. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Drinking Water Stand5 ards Preservation Act of 2005’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds the following: 
2 

•HR 1540 IH 

1 (1) The safety of drinking water, and the ade2 quacy of water supplies, is a national concern. In the 

3 29 years since Congress first mandated the estab4 lishment of uniform national minimum drinking 

5 water standards, national standards have been es6 tablished for more than 100 contaminants and pa7 rameters. 

8 (2) The States have been authorized to enforce 

9 those standards, and, in appropriate cases, set 

10 stricter standards on a statewide basis. 

11 (3) It is technologically infeasible for a drinking 

12 water system to provide water with a zero level of 

13 contaminants, and a determination that drinking 

14 water must contain no contaminants would threaten 

15 the adequacy of water supplies. 

16 (4) The setting of drinking water standards is 

17 a complex public policy determination requiring a 

18 careful analysis and balancing of a number of fac19 tors, including— 

20 (A) the maximum safe level for each drink21 ing water contaminant; 

22 (B) the technological capability of remov23 ing contaminants from public drinking water 

24 supplies; and 
3 

•HR 1540 IH 

1 (C) the importance of assuring that drink2 ing water is affordable to all Americans. 

3 (5) The setting of these standards is not appro4 priate for individual juries deciding individual cases 

5 in the separate States, but rather is fundamentally 

6 a scientific issue to be resolved by the appropriate 

7 Federal and State agencies in accordance with the 

8 rulemaking provisions of the Safe Drinking Water 

9 Act and the applicable State authorities. 

10 (6) Claims for monetary damages brought 

11 against public water providers under the common 

12 law of the various States based on alleged contami13 nation of drinking water threaten to undermine the 

14 science-based uniform national system of water qual15 ity regulation. 

16 (7) The States should retain maximum flexi17 bility to handle claims for monetary damages 

18 brought against public water providers based on al19 leged contamination of drinking water, including the 

20 authority to decide whether such claims should be 

21 heard by the courts or an administrative agency. 

22 (8) The costs of defending against multiple 

23 legal claims can be financially burdensome to any 

24 water provider, but especially to small systems, and 

25 the imposition of such costs cannot be justified when 
4 

•HR 1540 IH 

1 a supplier complies with the requirements of the 

2 Safe Drinking Water Act. 

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

4 Section 1449 of the Safe Drinking Water Act (42 

5 U.S.C. 300j–8) is amended as follows: 

6 (1) In subsection (e)— 

7 (A) in the first sentence, by striking 

8 ‘‘Nothing’’ and inserting ‘‘Except as provided in 

9 subsection (f), nothing’’; 

10 (B) at the end of the first sentence, by 

11 striking ‘‘or to seek any other relief’’; 

12 (C) in the second sentence, by striking 

13 ‘‘Nothing’’ and inserting ‘‘Except as provided in 

14 subsection (f), nothing’’; and 

15 (D) by inserting after the first sentence 

16 the following: ‘‘Nothing in subsection (f) creates 

17 a new cause of action, and, except as otherwise 

18 explicitly provided in this title, nothing in this 

19 title expands liability otherwise imposed or lim20 its any defense otherwise available under Fed21 eral or State law.’’. 

22 (2) By adding the following new subsection at 

23 the end thereof: 

24 ‘‘(f)(1) No public water system shall be liable in a 

25 civil suit brought before any Federal or State court for 
5 

•HR 1540 IH 

1 damages arising from injury (including personal injury, 

2 death, or property damage) allegedly caused by delivery 

3 of contaminated water, unless the court determines that 

4 the plaintiff has established the following: 

5 ‘‘(A) In the case of a regulated contaminant, 

6 the plaintiff must establish that each of the fol7 lowing criteria are met: 

8 ‘‘(i) The substance in the delivered water 

9 which the plaintiff claims caused the injury was 

10 subject to a Federal or State regulation pre11 scribed under this Act at the time of delivery. 

12 ‘‘(ii) There is substantial scientific evidence 

13 that the substance in the delivered water which 

14 the plaintiff claims caused the injury was of 

15 such a nature, and in such amounts, that it was 

16 reasonably likely to cause the kind of injury of 

17 which the plaintiff complains. 

18 ‘‘(iii) The public water system violated the 

19 regulation referred to in clause (i). 

20 ‘‘(iv) The violation was negligent. 

21 ‘‘(v) The violation caused the injury. 

22 ‘‘(B) In the case of an unregulated contami23 nant, the plaintiff must establish that each of the 

24 following criteria are met: 
6 

•HR 1540 IH 

1 ‘‘(i) The substance in the delivered water 

2 which the plaintiff claims caused the injury was 

3 not subject to any requirements prescribed 

4 under this Act at the time of delivery. 

5 ‘‘(ii) There is substantial scientific evidence 

6 that the substance in the delivered water which 

7 the plaintiff claims caused the injury was of 

8 such a nature, and in such amounts, that it was 

9 reasonably likely to cause the kind of injury of 

10 which the plaintiff complains. 

11 ‘‘(iii) The injury actually was caused by 

12 delivery of water that contained such a sub13 stance. 

14 ‘‘(iv) The public water system knew or 

15 should have known that the substance was in 

16 the drinking water at such a level and was like17 ly to cause the injury. 

18 ‘‘(v) It was feasible for the supplier to have 

19 removed such contaminant to a level below 

20 which it was not likely to cause such injury. 

21 ‘‘(2) The court shall, in a special pretrial proceeding, 

22 subject to the requirements of paragraph (3), determine 

23 whether the plaintiff has established either that criteria 

24 in clauses (i), (ii), and (iii) of paragraph (1)(A) or criteria 
7 

•HR 1540 IH 

1 in clauses (i), (ii), and (v) in paragraph (1)(B) have been 

2 met. 

3 ‘‘(3) The court, in making the determinations re4 quired in paragraphs (1)(A) and (1)(B), shall adopt and 

5 give binding effect to any findings of fact, conclusions of 

6 law, or determination of any agency of a State exercising 

7 primary enforcement authority for purposes of this title. 

8 Nothing in this section limits the jurisdiction or authority 

9 of any State agency to make findings and determinations 

10 with respect to whether— 

11 ‘‘(A) requirements for drinking water quality 

12 adequately protect the public; 

13 ‘‘(B) additional requirements for regulated or 

14 unregulated contaminants are warranted; and 

15 ‘‘(C) public water systems are in compliance 

16 with such requirements.’’. 

Æ