Water Testing for Legal Purposes
By Marianne Metzger
When testing water, one must consider the intended use of the results, before determining what type of tests needs to be done. When testing for legal purposes, either to meet regulatory requirement or results to be used in litigation, there are many things to consider. This article will focus on the legality of testing water and of what you should be informed before beginning.
Publicly regulated water supplies have a variety of testing performed based upon federal regulation under US EPA’s Safe Drinking Water Act (SDWA). These regulations are often carried out by the state; however, the state may also impose additional testing requirements and stricter, enforceable contaminant levels. For example, the national maximum contaminant level (MCL) of nitrate is 10 mg/L; many states enforce a stricter standard of five mg/L. Public water supplies are regulated based upon size of population served. Transient water supplies, like campgrounds, restaurants and hotels that serve different people on a regular basis, are not as highly tested as larger urban areas, like New York City or Chicago, which serve the same population on a regular basis. Public water supplies are also regulated based upon the source of the water supply; the Surface Treatment Rule is associated with surface water, and the Ground Water Rule ia associated with groundwater. These different rules are aimed at addressing problems specific to each type of water source.
Private water wells primarily remain unregulated. When purchasing a home, there may be state or local requirements for water testing when the home’s water is supplied by a private well. These regulations are meant to protect the buyer’s investment in a new home that is supplied by well water. Examples of state and locally regulated programs include the New Jersey Private Well Testing Act and the Rockland County, NY testing requirements. Additionally, there may be further local requirements by townships and county governments.
Testing requirements can vary greatly by geographic location. For example, New Jersey has different testing requirements for each county, based upon which contaminants are likely to occur, past testing data and geological studies. Township requirements may be as simple as a bacteria test to determine if there is any immediate threat of illness. Responsible homebuyers may include additional testing in the real estate agreement to determine further safety criteria, such as for lead, arsenic or radiological contaminants. Homeowners may be concerned about their water supply being at risk due to activities including drilling for gas or oil, other mining activities, frequent pesticide spraying and other land-use projects that can affect the local environment. In the case of gas and oil drilling, testing prior to any drilling activity would provide the best legal baseline of the water quality.
What to test for?
Federal, state and local regulations will primarily dictate testing requirements for home sales and public water supplies. Occasionally, some local testing requirements can be vague and open to interpretation. For example, many local townships will require what they refer to as a potability test, usually a limited analysis including testing for bacteria and sometimes nitrate levels.
The term potable can be defined differently. For example, the Water Quality Association defines potable drinking water as, “a water supply which meets US EPA and/or state water quality standards and that is considered safe and fit for human consumption.” The US EPA regulation encompasses over 100 different contaminants for different water supplies.
When testing to establish a legal baseline of water quality, there are a few factors that need to take into consideration. Gather as much background information on the water supply source as possible. This should include depth of well, water level, flowrates, any prior testing results, installed water treatment equipment, and proximity to likely sources of water contamination, including roadway, parking lots and heavy-duty mining equipment. Test for things already known to be in the source, which may include iron, manganese or hardness that make themselves known in very obvious ways with staining, taste and odor. Other common water quality parameters to consider include testing for bacteria, nitrates, TDS or conductivity, as well as common indicators of the typical fracking fluid, such as chlorides, barium and sodium. These levels may change when drilling activities occur, as they may disturb the aquifer and geological formations.
In the case of gas drilling, hydro fracturing (commonly referred to as fracking) is used, which denotes a mixture of various chemicals, and a proppant (suspended particulate) that forms a slurry mixture. Proppants are commonly made up of natural sand particles or artificial ceramic used to hold open fracture openings in geologic formations for gas or oil to flow through to the surface. These fractures can now potentially carry any chemicals used in the mixture, as well as the natural gas itself (and commonly, methane or ethane), into the aquifer, depending on a variety of factors.
Gas drilling companies are subject to various regulations and are required to test private water supplies within a certain vicinity of the gas well drill site. These distances can range from 300 to over 1,000 feet (91.4 to 304.8 meters), depending on the state. Homeowners may want to protect the quality of their private well water, so testing may be considered, even if the well is located beyond the distance required by law. They may also want an independent analysis done in addition to what the gas company may be providing. The baseline water quality testing can get expensive because of sampling requirements and chainof-custody costs, so there are a variety of options based upon the most common indicators of contamination due to gas or oil drilling activities.
Homeowners may opt to test for the basics, but there are extenuating circumstances to consider n addition to drilling activity, such as truck traffic, which could result in chemical spills or fuel tank leaks. Testing for volatile organics or total petroleum hydrocarbons prior to the drilling activity with no detections can help provide the basis that the drilling company may be responsible for the contamination. A laboratory familiar with the regulations and water quality issues can help determine which test may be appropriate for each situation.
Finding the right lab
When testing for legal purposes, a certified laboratory must be used. There are a couple of different ways in which laboratories are certified. There is direct state certification, wherein a laboratory must apply directly to the state in which they seek certification. Sometimes states will allow reciprocal certification, which means they will accept another state’s certification. This is where it can get tricky, as not all states regulate all contaminants. Certification can only be gained for the contaminants the lab is certified for in the original state in which your reciprocal certification is based. There is also the National Environmental Laboratory Accreditation Program (NELAP)—an attempt at a unified laboratory certification program—so laboratories are meeting one certification criterion instead of fifty different state criteria. There are currently 14 states that have adopted NELAP for environmental laboratory certification programs. These include: California, Florida, Illinois, Kansas, Louisiana, Minnesota, New Hampshire, New Jersey, New York, Pennsylvania, Oregon, Texas, Utah and Virginia. When checking laboratory certification, make sure the laboratory is certified to run the necessary analysis. Labs are certified by the type of analysis they run; for example, drinking water labs run testing methods based upon the Safe Drinking Water Act, while wastewater labs run methods based upon Clean Water Act testing requirements.
When samples for analysis have legal implications, an independent third-party should collect them. There may be additional state requirements depending on the type of samples being collected. For example, in order to meet SDWA requirements in various states (including Pennsylvania, New Jersey and New York, to name a few), any samples being collected for a public water supply must be accomplished by a state-licensed operator. There are other states that have entirely separate sample-collection requirements and certifications. Some state certification programs for laboratories include sample collection.
Those collecting samples should maintain a field-sampling notebook. This book should contain information such as date and time sampled, sample location, and any persons present while sampling is being done. For outside sampling, one should note weather conditions, as rain and wind can affect sample results. Any water treatment equipment present should also be recorded, as well as whether the sample was collected prior to any equipment or after. When determining a legal baseline of water quality, one should collect samples prior to any treatment equipment to determine the raw water quality. In addition to the field notebook, there is also the chain-of-custody form, a legal document that accompanies the sample from time of collection all the way to the laboratory, and throughout the laboratories processes to the final report. Samples must be sent to the lab in such a way that they arrive within proper holding times and temperature requirements.
Results can be reported in a variety of units of measure, the most common being milligrams per liter (mg/L) or micrograms per liter (μg/L). Milligrams per liter is also referred to as parts per million, and micrograms per liter as parts per billion. Reports will contain the laboratory’s certification for the state identification on the report, along with all the sample collection information. They will have a column for the method detection level (MDL), which is the lowest level at which the laboratory can detect that contaminant.
Some laboratories will also report against standards such as the SDWA or the CWA. Additionally, there may be data qualifiers, which can be a result of matrix interference, meaning some part of the laboratory quality control falls outside the acceptable criteria. This could be due to the presence of other contaminants such as sodium, chloride or sulfur compounds that can interfere with certain water analysis and may require a qualifier on the data describing the failure. In some cases, these interfering compounds can cause the laboratory to dilute a sample, which can also raise the method’s detection levels. In many cases, re-collecting a sample may end with the same results with data being qualified. Additional analysis can be accomplished to determine the cause of failure. Laboratories running certified analysis are required to maintain records (for over ten years in some cases) to maintain chain of custody of the results.
Testing water can become complex when considering the results may be used to meet regulatory requirements, or for litigation, or simply to determine what is in the water. It’s important to cover certification, proper sampling and maintain a chain of custody for any water supplies that are tested for possible litigation purposes.
About the author
Marianne Metzger has spent 14 years working in the water quality industry, with 12 years at National Testing Laboratories, and holding various positions including customer service, technical support, sales and, most currently, General Products Manager.