New York’s rules defeat lawsuits over road-salt pollution
By Ry Rivard
Two years ago a dozen or so Adirondack homeowners prepared to sue the state of New York for polluting their drinking water.
They had evidence that road salt dumped by the New York State Department of Transportation was flowing into their wells, making their water unsafe to drink and reducing their property values.
Their lawsuit never got off the ground. In New York, residents who want to take the state to court often have just 90 days to file a lawsuit. At least some of the afflicted homeowners had learned of their problems years earlier.
They had suffered too long.
Even for homeowners with still undrinkable water, New York’s strict time limits make it nearly impossible to challenge the state in court, the Adirondack Explorer has found. Such rigid and merciless filing deadlines undermined the residents’ case and have insulated the state in other cases where DOT has admitted it is likely polluting water supplies with road salt.
Carina Moore moved into a home along State Route 86 in Gabriels eight years ago. From the first taste of the home’s water, she knew something was wrong.
Even though her family had tested the well for bacteria before buying, they hadn’t tasted water from the tap or checked for sodium and chloride, the two chemicals that make up salt. Later tests ordered by DOT found four times more chloride than federal rules recommend for drinking water.
Moore’s family doesn’t drink the water. Their cat and dog don’t drink the water. The two kids have dry skin that constantly itches.
“Everything you take for granted in a normal, first world country, we don’t have now,” Moore said.
A rallying cry
She and other homeowners began talking with Bill Owens, an attorney and former congressman from Plattsburgh. He knew the residents could be in for a long and expensive fight if they wanted to prove DOT wrong in court. New York, he told the group in summer 2018, “will use all of its resources” to try to wear them down.
Despite that, the planned lawsuit got media attention and became a rallying cry for Adirondack activists as a first-of-its-kind challenge to road salt pollution.
But a legal tradition known as sovereign immunity—originating in England and often summarized as “the king can do no wrong”—survived the American Revolution. It still shields federal, state and local governments from many citizen lawsuits. Under political pressure, government officials have opened themselves up to some lawsuits over the last century, but with all kinds of caveats and restrictions.
In New York, residents can sue the state for almost anything, thanks to a system created to compensate property owners for damage caused by construction of the Erie Canal. But the state put two big conditions in place, allowing it to maintain homefield advantage in court. Every citizen lawsuit against the state is routed through a special court of claims. People have tight time frames to make a claim.
In high doses, salt endangers human health by raising blood pressure, which leads to heart attacks, strokes and kidney disease. The chemical properties of salt that help it fight off snow and ice also ruin cars, appliances and plumbing. Much of that damage is gradual, taking years instead of months to show itself.
It’s hard to know how much damage road salt may be causing to drinking water supplies. One rough estimate, by the team of Virginia Tech researchers who helped uncover the water crisis in Flint, Michigan, found nearly a half-million New Yorkers drink from wells that could be contaminated by salt, though researchers admitted their guess was on the high end.
More exacting research by the Adirondack Watershed Institute at Paul Smith’s College has tested hundreds of wells in the Adirondacks and found more than half of the wells downhill from state roads had elevated salt levels.
So far, the state hasn’t had to quantify the damage or pay for widespread cleanup, despite knowing about salt’s environmental and health dangers for decades.
Evidence piles up
Owens had already tangled with DOT once on behalf of a North Country community. Salt had appeared in water wells around a storage shed uphill from the Village of Dannemora. The state first learned of the problem in 1997. Tests had shown about 20 homes with salty wells by the time the state spent millions of dollars to run a water line to the community.
“That one was really accomplished by political pressure,” Owens said.
Going to court against the state is a different matter.
The legal time limits, which also apply to claims against local governments including town and village highway departments, have repeatedly flummoxed property owners who allege their water is contaminated with road salt.
When homeowners have found salt in their tap water, any delay—even hoping to get the government’s help instead of going to court—can be fatal to their court case. Judges have taken a hard line in road salt cases, the Explorer’s review of rulings found.
A group of dozens of residents with contaminated water in the southern New York town of Greenville repeatedly struggled with the 90-day window.
When residents first filed their claims against the state in November 2002, a judge limited the state’s liability to any damage that happened after August 2002—90 days earlier.
The group—which started out with more than 100 people but dropped to 42 as the case dragged on for 15 years—said DOT and the New York State Thruway Authority caused the problems in Greenville, knew about them since the 1990s, made promises to do something and never followed through.
In 2017, White Plains-based claims Judge Stephen Mignano finally ruled on those allegations. He found it reasonable for the state to apply road salt even if it pollutes drinking water. Then, he added, even if the Greenville residents could prove the state had acted unreasonably, the state still would prevail because the residents hadn’t filed their claim within 90 days of discovering salt in their wells sometime in the mid-1990s.
Every day counts
The ruling showed the state has other arguments against road salt cases—namely, that allegations of water pollution shouldn’t get in the way of its duty to protect the driving public. But it also showed how the state usually wins with the help of a timing technicality.
In an appeal of Mignano’s ruling, an attorney for the residents argued that strict deadlines don’t make sense because DOT is applying more road salt each winter, causing new damage each time.
Every day can count, as George Potanovic, an environmental activist, learned.
He remembers when people used to bring bottles to fill up on the delicious well water at his house in Stony Point, a town along the Hudson River. Then, in September 1994, following a harsh winter where lots of road salt was used, he received a letter from Rockland County saying it had found elevated levels of salt in his water. That November, he received a second letter with new test results that showed the salt levels were even higher and the water was totally unsafe to drink, rendering his home effectively worthless.
He ended up on the phone with Robert Kennedy Jr., the prominent environmental attorney. Kennedy warned Potanovic that he would have to act fast to sue Rockland County, which took care of the nearby roads and is protected by the same filing deadlines as the state.
Potanovic filed a claim against the county in January 1995, 41 days after he got the November letter.
It was already too late.
Judges ruled the 90-day clock started ticking when Potanovic received the first letter, not the second. Potanovic argued that only the second letter revealed the real damage.
“I acted as quickly as any human being could have acted,” he said. “I was even more knowledgeable than the average person.”
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Now, judges and other government attorneys have cited that case as precedent to dismiss other road salt claims.
In a 2018 court filing, the state attorney general’s office cited the Potanovic case and Judge Mignano’s ruling against the Greenville families to get another road salt case thrown out. In that case, the Sweeney family, with a farm just southwest of the Adirondack Park, notified the state that it intended to sue DOT in February 2004. A few days earlier a state official had admitted in a letter that the state had polluted the farm with road salt.
But in 2006 an attorney for the Sweeneys—who would eventually have his law license suspended for other reasons—missed a second filing deadline by as few as five days. An assistant state attorney general, G. Lawrence Dillon, successfully argued that that was a fatal blow to the Sweeneys’ claim.
Road salt lawsuits aren’t the only cases subject to tight time limits. The 90-day filing deadline also applies to simpler accident cases involving state vehicles and property. The limit has a purpose, to keep the state from being blindsided by claims about supposed wrongs that happened years ago.
The state, by contrast, seems to have no deadline for dealing with road salt contamination. As far back as 1971, the state DOT has known that it can pollute water supplies by improperly stockpiling road salt out in the open. After years of attention on the problem, DOT now keeps salt in sheds and the state is paying to help town and village highway departments cover their salt piles.
But that salt is also a problem after it leaves those sheds and is dumped by the ton on roadways across the state. New York has guidelines for how much salt it should apply to roadways, but no system for detecting where salt may be accumulating to a dangerous degree.
Moore, the Gabriels resident with salty water, said it has been hard to get anything from DOT and she doesn’t think there is any end in sight.
A lawsuit seemed like it could help. But time limits aren’t the only thing that upended Owens’ case before it went to court.
Owens told his would-be clients that his initial retainer would cost the group $25,000, and he guessed that wouldn’t be enough to finish the fight. At least one other person dropped out because of that figure, reckoning it would be better to spend money on a new well and hope for clean water than to spend money on a lawsuit they might not win.
Moore said she also pulled back because different people wanted different things from the case, and she didn’t believe Owens had a clear plan. Now, should Moore ever change her mind and decide to take the state to court, it’s likely too late. Her water remains undrinkable.
The tight time frames have the attention of Adirondack activists who want to force the state to do something about salt pollution.
Lee Keet, a founder of AdkAction and a member of the Adirondack Council’s government relations team, said there is a “big gaping hole” in the law. (Keet is also a trustee with the Cloudsplitter Foundation, which has helped fund Adirondack Explorer journalism.)
“If one of the state’s salt trucks runs off the road and damages my garage,” he said, “it’s very clear the date of the injury, so it’s not unreasonable for the state to have a time limit on when you can file the claim.”
The damage caused by the salt that truck spreads on the road is different, even though the same time limits can apply.
Pushing for change
Last year, as some Adirondack activists tried to get lawmakers to act on road salt, they discussed changing the rules for property owners harmed by the state’s winter road maintenance.
One idea was to extend the deadline for people to file claims. Others included setting up a victim compensation fund. 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 declined to say how often she does.
Those concrete steps didn’t make it into legislation sponsored by Sen. Betty Little, R-Queensbury, and Assemblyman Billy Jones, D-Plattsburgh. Their proposal, which both chambers recently approved, would instead create a road salt task force to study the issues, including some way to give relief to property owners who can prove they’ve been harmed by road salt.
Task forces are a way to get everyone on the same page, Adirondack Council lobbyist Kevin Chlad said. An earlier task force on invasive species, for instance, eventually helped lead to boat-washing stations to prevent their spread to new lakes.