Taking the Lead
Handling claims arising from lead contamination in drinking water
When Flint, Michigan returned to using the Flint River as its water source on April 25, 2014, the switch and subsequent treatment of the water resulted in elevated lead levels in the city’s drinking water and a major public health crisis. The demographics of Flint and Genesee County, and the disparity in the crisis’ impact, ignited charges of environmental racism.
There have been at least 11 lawsuits filed relating to the Flint water crisis. Plaintiffs include Flint residents, Flint water users, Flint persons/corporations that were billed for water, persons harmed by Safe Drinking Water Act (SDWA) violations, Flint residents who tested positive for lead in their blood or experienced personal injuries, and Flint property owners. Claims were brought against the state of Michigan, Governor Richard Dale Snyder, state and local officials, and the engineering firms hired by Flint. These cases were largely consolidated into Carthan/Waid v. Snyder et al. One suit, Concerned Pastors v. Khouri, settled prior to consolidation for attorneys’ fees and injunctive relief.
Plaintiffs’ complaints were drafted to try to circumvent sovereign immunity defenses. As such, their complaint included substantive due process claims, equal protection claims, claims brought under 42 U.S.C. § 1985 (3) for invidious racial animus, claims brought under M.C.L. §37.2302 (ELCRA) for violation of public services provisions, claims brought against local governing bodies under Monell, fraud, negligent infliction of emotional distress, negligence, professional negligence, and gross negligence.
The state of Michigan was dismissed on sovereign immunity grounds, while Governor Snyder and several state officials were dismissed for lack of intent/knowledge. The private engineering firms were dismissed because no facts were pled that sufficiently alleged plaintiffs’ reliance on the private engineering. The Equal Protection Clause claims were dismissed because the court found that the plaintiffs did not properly allege the Flint water system was tied to or controlled by the Genesee County water system, which served a less diverse and wealthier population. The state-created danger claims were dismissed. Only bodily integrity claims against several state and city officials and emergency managers remain.
Contamination Problems, Evaluation, and Regulations
The Flint drinking water crisis brought local and national attention to water quality contamination and lead litigation. Old drinking water distribution systems and components may present lead exposure risks. Understanding water systems, potential sources of lead, building design, populations of concern, and the regulatory and potential liability drivers for testing is important. An evaluation begins with the building, location, age, system design, management, maintenance, and construction knowledge. Identifying and understanding potential lead sources in water systems can be complicated, given the complexities in such settings as a large urban municipal system with multiple building owners, poor record keeping, construction history, and maintenance responsibilities. Understanding the potential sources in the system, the regulatory levels, proper testing requirements and interpretation, and when mitigation action is required is critical.
An understanding of the current federal and state regulations is necessary to evaluate whether owners and managers of buildings/facilities and risk managers should take steps to protect against liability risks. There are a range of actions that can be implemented to lower exposure risk to lead that can be guided by the federal requirements for public drinking water systems and other statewide water testing programs in schools, preschools, and daycare centers. These involve testing requirements, testing standards, methodologies and sampling strategies, reporting and notification requirements, and control systems and mitigation recommendations.
The Environmental Protection Agency (EPA) has a strong regulatory structure for lead in public drinking water that involves regulations for testing, reporting, and notification requirements. The SDWA and the Lead and Copper Rule require the EPA to establish and enforce standards that public drinking water systems must follow and require water systems to control corrosivity. These federal regulations do not apply to individual property owners. There are multiple EPA right-to-know rules involving federal public water reporting and notification requirements for lead and other contaminants. State regulators, prompted by lead exposure concerns, are lowering acceptable drinking water levels and requiring statewide water testing in schools, preschools, and daycare centers.
Potential Liability Areas
In the wake of the Flint drinking water crisis and the disaster that followed, there has been a marked increase in awareness of the potential for lead contamination in water. Recent lead testing in public school systems has revealed elevated lead levels in schools across the country. So far, claims and lawsuits involving lead contamination have been directed toward governmental agencies and employees.
Recent news regarding exposure to lead-contaminated water may lead to changes in the landscape of liability and risks faced by individual owners and occupiers of residential and commercial properties.
Private property owners or proprietors may be exposed to potential liability when invitees or customers are exposed to lead-contaminated water. A contaminated water source or corrosion of lead supply pipes are not the only ways lead contamination occurs. Lead contamination of water may also result from lead service lines running from a water main to a building, or from lead or brass fixtures or fittings. Model plumbing codes and water systems in the U.S. approved the use of lead pipes and fixtures as late as the 1980s. There is little reason to doubt that older apartment buildings, condominiums, daycare centers, and other private businesses may still have lead pipes, fixtures, or fittings.
If the drinking water in a building is found to have elevated lead levels, then it may be alleged to be associated with the building’s pipes, fixtures, or fittings, which are typically the responsibility of a building owner. Residents and other invitees may contend that an owner or proprietor’s failure to test and/or replace all such pipes, fixtures, and fittings amounts to negligence.
Likewise, the key in a premises liability claim generally is prior knowledge of a hazard. In the post-Flint world, might knowledge of lead contamination in water in a nearby school or town be enough to give rise to a duty on owners and proprietors of other properties to test their water and either warn invitees or take care of any contamination? What about property owners in the next town over? And what steps must a property owner take to be said to have acted reasonably? The answers are mostly unknown at this point, but we can be sure that plaintiffs’ lawyers will make these arguments.
The issue of civil liability for lead in public drinking water will continue to be one to watch as more communities evaluate their aging systems and infrastructure.
The authors would like to thank Xavier Q. Lawrence, associate, Cetrulo LLP, for his research conducted for this article.