Second Quarter 2004

Discovery of Lead in Drinking Water Raises Policy and Liability Questions

Holland & Knight Newsletter
Amy L. Edwards | Michael Galano


The Washington Post recently reported that the District of Columbia Water and Sewer Authority (WASA) and the Army Corps of Engineers (Corps) rejected warnings from consultants who said, as early as 1994, that lead contamination was a threat due to the two agencies’ mismanagement of the District’s water supply. The revelation comes following the discovery that of the 6,118 homes tested by WASA in 2003, more than 4,000 came back with lead levels above the federal limit of 15 parts per billion. Approximately 157 of these homes had water with lead levels of more than 300 parts per billion. Essentially, more than 1 million residents relied on a water supply that for at least two years showed unsafe levels of lead.

Potential Liability?

It has been reported that WASA and the Corps dismissed warnings received as early as 1994 that lead contamination was a serious threat to the water supply. Correcting the problem at that time would have required changing the water treatment plan by adding phosphate, which was estimated to cost more than $870,000 per year. However, WASA and the Corps did not make modifications – in part because the change was considered too expensive, and partly because they believed the science was unproven. At the time, other large cities that had lead service pipes, including Chicago, switched to phosphates and have for the most part avoided high lead levels in their water supply. In November 2000, because of fear of cancer-causing byproducts, the Corps halted its use of chlorine in its disinfection process and switched to using chloramines. However, at that time EPA warned utilities in written guidelines that a significant change in disinfection treatment could increase lead corrosion and urged utilities to carefully monitor the possible effects of chloramines.

At a minimum, WASA is facing a substantial financial burden as it must now replace lead service lines until the high lead levels are brought under control. Potentially more devastating is the possibility that WASA, or other city or federal agencies, could be sued and perhaps found liable for negligence. A Washington, D.C. law firm recently filed a class-action suit in Superior Court against the District government and WASA on the grounds that officials concealed information about lead contamination and exposed residents to unnecessary health risks.

The lawyers indicated the number of plaintiffs could total in the tens of thousands and that, if successful, monetary damages could reach into the tens of millions of dollars. Additionally, the attorneys have filed a notice of intent to begin a separate suit against WASA, EPA and the Corps on behalf of pregnant women, parents and property owners whose homes have water with high lead levels. The attorneys will seek damages for WASA customers who have been exposed to allegedly unsafe water and who have incurred costs for filters, high water bills, replacement of lead service lines on private property and the flushing of taps. They also will seek punitive damages.

It is unclear whether any of these parties is potentially liable. The District government maintains that it did not cause the problem because it is the Corps, a federal agency, that operates the Washington Aqueduct and is responsible for water treatment. Corps officials said they did not act because they were not asked to do so by either their customers or federal regulators. WASA is a quasi-independent agency overseen by board members appointed by the District, Arlington and Falls Church.

Federal Regulations to be Examined

On March 18, members of the U.S. House of Representatives Committee on Government Reform wrote EPA to urge the agency to change its rules governing lead contamination of tap water. In the seven page letter, Committee members characterized the current regulations as “weak” and requested significant changes in the way localities must test for lead, control corrosion of pipes and notify residents of contamination problems. Should such reforms be enacted, utilities across the nation would be required to increase testing and report more data to EPA.

Should Other Cities Be Concerned?

In the wake of the WASA disclosures, cities and counties surrounding Washington, D.C., began testing their water supplies. No doubt officials in countless other jurisdictions across the nation have begun discretely testing their water supply, treatment procedures and distribution systems. Only time will tell how widespread this problem will be and who is liable, if anyone. Stay tuned.

Related Insights