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March 26, 2004 Contact: PAUL HASTINGS TO FILE MOTION AT NOON TODAY ASKING JUDGE TO REQUIRE WASA TO PROVIDE SAFE DRINKING WATER FOR DC RESIDENTS IMMEDIATELYMotion Would Require WASA, DC Government to Deliver Safe Water to All (Not Just 23,000) Households with Potentially High Lead LevelsWashington, DC (March 26, 2004) - Paul, Hastings, Janofsky & Walker (Paul Hastings) announced that today at noon it will file a motion for Preliminary Injunction against the District of Columbia Water and Sewer Authority (WASA) that would require WASA and/or the District to provide District residents with a safe, alternative source of water immediately. The class action lawsuit against WASA and the District of Columbia Government was originally filed on March 8, 2004, on behalf of pregnant women, children and homeowners who have been exposed to unsafe levels of lead in their drinking water. Lead counsel for the plaintiffs are Paul Hastings attorneys Charles "Chuck" Patrizia and Christopher Cole. "Providing safe and drinkable water to consumers is the most fundamental duty of a water utility. WASA has failed, and continues to fail, miserably in fulfilling this vital responsibility," said the Paul Hastings motion. "WASA's ongoing testing of public drinking water supply demonstrates that water flowing to the taps of District residents continues to exceed federal drinking water standards for lead in well over half of the samples collected." Paul Hastings submitted to the Judge a suggested Order that would require the Defendants to:
"Contaminated water continues to flow into residences, schools, places of worship and workplaces within the District where it can harm the people who drink it," said the Paul Hastings motion. "While WASA and the District have tried to dissuade residents from drinking water straight from the tap, their recommendations have been and will continue to be completely ineffective if they do not provide alternative water supplies to the affected residents." WASA and the District have issued a series of confusing, contradictory and incomplete recommendations regarding flushing of taps prior to drinking. They have made plans to deliver roughly 23,000 water filters to homes believed to be serviced by lead pipes. However, the plan barely meets the problem halfway, as WASA's managers have publicly admitted that there are likely to be thousands - perhaps as many as 7,000 to 12,000 - additional, unaccounted for lead service lines throughout the District. "WASA's flawed plan to distribute filters to the 23,000 homes currently identified as heaving lead lines falls, at a minimum, many thousands of filters short," said the Paul Hastings motion. "Relief must be afforded to every resident who needs it, not just to the 23,000 homes 'fortunate enough' to have been previously identified through WASA's rough and inaccurate survey as having a lead line. The most vulnerable residents of our nation's Capitals should not be asked to protect themselves from a danger that WASA and the DC Government have created." The Paul Hastings class action suit is brought on behalf of two young families. Amy Harding-Wright and her husband Alfonso Wright, are parents to a two-week old baby girl and live in a home in which officials have found lead in water of 435 ppb, nearly 30 times higher than the EPA's safety limit. Ellen Shaw and her husband Pranav Badhwar are parents to a four-month old baby girl and live in a home that has been tested at 310 ppb, over 20 times higher than the EPA lead limit. These two young families represent classes of plaintiffs that could potentially number in the tens of thousands. Paul, Hastings, Janofsky & Walker LLP, founded in 1951, is an international law firm, representing Fortune 500 companies with nearly 950 attorneys located in 13 offices: Atlanta, Beijing, Hong Kong, London, Los Angeles, New York, Orange County, San Diego, San Francisco, Shanghai, Stamford, Tokyo, and Washington, D.C. For more information or to speak with Paul Hastings attorneys, please call Patrick Dorton at (202) 508-9825. SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
|
|
Sample Type |
Lead Service |
Copper/Brass |
"Unknown" |
|
1st Draw |
58.29% |
8.32% |
34.03% |
|
2d Draw |
47.66% |
7.87% |
26.62% |
"n" refers to number of homes sampled.
On information and belief, there are 130,000 service lines in the city. Of those, about 70,000 are believed to be fabricated of either copper or brass. WASA has often stated its belief that 23,000 of the service lines are made of lead. WASA has repeatedly stated in the press that it believes the lead contamination problem is largely isolated to the 23,000 homes with lead service lines – and as we discuss below, has devised a filter distribution program targeted solely at those 23,000 homes, to the exclusion of all others.
As WASA’s own data shows, the identification of a subset of 23,000 homes is at best WASA’s estimate with an unknown level of accuracy and appears to reflect no sound scientific judgment. The data available to WASA leads to the conclusion that many service lines currently classified by WASA as "unknown," are in reality made of lead. These "unknown" lines create at least the same level of risk for the 23,000 homes that WASA has "identified" and yet are outside WASA’s minimal and parsimonious efforts. Those numbers also fail to account for District consumers living in apartments or multifamily dwellings.
WASA’s own sampling data cast great doubt on the current WASA estimate that the are only 23,000 homes with lead lines for two reasons. First, over 34% of the homes currently identified as having "unknown" service lines tested over 15 ppb. If WASA believes that the action limit is exceeded only in homes having lead lines, then it must concede at least 34% of the 37,000 "unknowns" (or 12,580 lines) are in fact lead. Second, using the same logic, there are 5,600 additional lead lines that were previously misidentified as copper or brass (8% of the estimated 70,000 copper or brass lines). Thus, using WASA’s own logic, there would appear to be over 41,000 homes with lead in the city, not 23,000. See Affidavit of Raymond Ferrara, PhD., dated March 22, 2004 ("Ferrara Aff.") ¶¶ 9-10, attached hereto as Exhibit 1.
WASA has in fact admitted that its estimate of 23,000 lead service lines is likely to be significantly understated. Michael Marcotte, WASA’s Chief Engineer and Deputy General Manager, stated in public meeting held at Hine Junior High School on March 22, 2004, that WASA believes that the estimate of 23,000 lead service lines to be wrong and that WASA currently believes there may be 20,000 additional homes with "unknown" service lines. Affidavit of Katherine Funk, dated March 23, 2004 ("Funk Aff.") ¶ 8, attached hereto as Exhibit 2. Giving WASA the benefit of the doubt by assuming there are only 20,000 "unknowns" and not 37,000 as mathematical logic would seem to dictate, WASA is still undercounting the overall number of lead lines by thousands.
Moreover, as set forth in the Affidavit of Fred Perna, accompanying this motion, the District’s water supply mains are riddled with lead. Affidavit of Fred Perna, dated March 23, 2004 ("Perna Aff.") ¶¶ 6-11, attached hereto as Exhibit 3. Mr. Perna, who has been a plumber in the District for nearly 60 years, states that it was common practice during installation of water mains in the District prior to 1960 to use raw, molten lead to fill each pipe joint. Id. Each segment of water main was packed with pounds of raw lead as a sealant. Id. The vast majority of these water mains, all packed with many pounds of lead, are still in service today. Id. There is no reason to believe that the lead contamination begins at the customers’ lead service lines. Id. ¶¶ 11-15.
Fully aware that the water it was delivering at consumers taps did not meet applicable standards for lead, WASA has simply failed to take steps to provide an alternative supply to those consumers it places at risk. Instead, WASA and the District have embarked upon an action plan that, on its face, is insufficient to protect District residents from the hazards of lead in drinking water – a hazard that WASA created through its own negligence. In relevant portion, WASA and the District propose to undertake four major actions, which we address in the successive sections below, as follows:
Distribute a grand total of 23,000 water filters to those homes currently believed by WASA to have lead service lines;
Accelerate the program of lead service replacements;
Continue a public education campaign to inform District residents about measures they can take to minimize the risk from drinking contaminated water; and
Test and implement a revised corrosion control program.
As devised by the District and WASA, these actions will at a minimum leave thousands of members of the classes subject to ongoing and irreparable harm, and will not even assuredly protect those reached by minimal actions proposed.
On March 4, 2004, the United States EPA wrote a letter to the City Administrator and Deputy Mayor outlining 10 steps that EPA "believes WASA must undertake to respond to the immediate threat." Among the demands set forth in the letter was the requirement that WASA:
Make available as soon as feasible, but within 30 days, an interim alternative supply of drinking water to all users supplied by WASA who are believed by WASA to receive their water through known or suspected lead service lines. The goal is to provide an alternate water source or filters to the 23,000 homes with lead service lines.
Id. (emphasis added).
EPA also demanded that WASA be instructed to ensure that "point-of-use filter devices, if used, are certified as effective at the higher levels detected in D.C. (>150 ppb); NSF International testing only applies to <150 ppb." Id. EPA further asked that WASA be required periodically to replace or re-supply the alternate water source through replacement filters, "per standards certified by NSF or other appropriate certifying agencies." Id.
On March 5, 2004, Mayor Williams wrote a letter to Glenn Gerstell, Chairman of WASA, "formally directing WASA to execute the actions delineated in the [March 4, 2004 letter] . . . from the US Environmental Protection Agency." The Mayor stated that "[w]e are taking this step to ensure that we are adequately providing for the safety of our community." Id.
EPA and Office of the Mayor thus admit that the delivery of alternate water supplies to all homes known to have lead service lines is essential to respond to an "immediate threat" and to ensure the safety of District residents. The EPA letter acknowledges, moreover, that any filtration device delivered to residents must be certified to treat water at the levels experienced in the system (which are in many instances higher than 150 ppb).
On March 16, Mayor Williams announced that he had directed WASA "to make immediate arrangements to ship water filters to all 23,000 homes that have been identified as having lead service lines." The Mayor’s Office disclosed that the District had received a donation of 10,600 water filter pitchers from The Brita Products Company, and 4,300 faucet-mounted and 7,700 pitcher-style water filters from the PUR® division of the Procter & Gamble Co. Id. The Mayor’s Office went on to inform the public of its belief that "The combination of the two contributions [a total of 22,600 units] should provide enough filters to accommodate all of the homes with lead service lines." On March 19, 2004, WASA formally reaffirmed its commitment to mail or deliver the 22,600 filters that it had received at no cost to District homes it believed had lead service lines by April 10, 2004.
By WASA’s own admission, however, there are many homes that may have lead service lines which have not yet been identified as such. Thus, the focus on 23,000 homes is, on its face, patently insufficient to protect the public from injury.
The water sampling conducted in the first three months of 2004 by WASA reports exceedances of the lead action level from a large number of homes having "unknown" service pipe material. Indeed, WASA states in a footnote to the public reporting of the data that these "unknown" materials are in fact believed likely to be of lead-containing material. Moreover, WASA officials have publicly stated that they will not provide filters to homes currently identified as "unknown," even if those homes have lead levels demonstrably higher than 15 ppb. Funk Aff. ¶¶ 8-10. Adding to the problem are the over 8% of the 70,000 homes currently identified by WASA as having copper and brass lines that are experiencing lead exceedances, none of which WASA intends to provide for.
Plainly, there is no basis to limit the distribution of filtration devices to only 23,000 homes currently "believed by WASA" to be served by lead lines. There are well more than 23,000 homes having lead exceedances, including many for which the best current information suggests that they are copper or brass. Defendants’ plan to focus on 23,000 has no basis in fact and likely represents an effort to save money (considering they have coincidentally obtained nearly 23,000 donated water filters), rather than deal with the true extent of the problem.
Setting aside the blatant and willful blindness of WASA and the District to the data showing many more residences having an actual or potential lead problem, the WASA and District plan for filter distribution makes no allowance for homes with multiple units, apartments, businesses, schools or churches. This shortcoming has been identified by EPA itself, in correspondence to WASA on March 22, 2004. WASA has never justified excluding these potentially large populations from the filter distribution program.
Even if WASA’s proposal to deliver filters to only 23,000 affected housing units were acceptable, the program fails to provide safe alternative supplies because the filters being distributed are not certified to treat the lead levels observed in many homes, which in some cases exceed 200 ppb. While the Mayor has touted the fact that the "BRITA water filtration pitchers are certified by NSF International, the nation’s leading independent test lab for the certification of water filtration products, to remove 98 percent of lead in tap water," WASA itself, in a separate publication regarding in-home water purification filters, prominently cautions that "[t]hese devices have only been certified by NSF for removal of lead in water with concentrations ranging from 150-180 ppb." WASA records show that 848 of the 6,118 homes tested in 2003 had lead levels from 100 to 300 ppb, 157 had levels in excess of 300 ppb, and 11 had levels in excess of 500 ppb. See Washington Post, District Extra, dated March 18, 2004 (containing complete listing of lead test results). It has been widely reported that one home in Northeast had a lead level of 48,000 ppb, and one in Northwest had 24,000 ppb. Id.
Given the high lead levels experienced in the system, the filtration media utilized by the devices to be delivered by WASA and the District will be less effective at filtering lead, and will wear out more quickly than the manufacturers’ directions would indicate. Depending on the lead levels of the water and the amount of usage, the filters may need to be replaced in a period much faster than that cited by the Mayor. The District’s and WASA’s proposed action plan does not account for the potential need for accelerated delivery of replacement media to homes having filtration devices.
WASA has embarked on a program of lead service line replacement that is contrary to law and likely will cause increased leaching of lead into the District water supply. The Safe Drinking Water Act requires that water systems that are in violation of the EPA Action Level of 15 ppb in more than 10% of samples collected must replace lead service lines at a minimum rate of 7% of the lines per year. 40 C.F.R. § 141.84(b). WASA has never met this minimum requirement, but has in the last few weeks promised to accelerate this program by an as yet undefined amount.
Again, even assuming that WASA would now act promptly in accelerating its replacement program, its method of doing so will only worsen not improve the lead problem. WASA has been engaging in partial service line replacements that EPA believes exacerbate the lead contamination problem in affected homes. Id. ("The cutting of service lines has been recently shown to present significantly elevated levels of lead in days following the activity.") In an attempt to ameliorate this problem, WASA has stated a policy of replacing lead service lines only to the nearest threaded joint, which in most cases is the water meter:
In accordance with guidance developed by the DC Department of Health (DCDOH), DCWASA is currently replacing service lines only between identified threaded joints to minimize water quality concerns associated with cutting and reconnection of lead service lines. In cases where the private property owner does not agree to the concurrent replacement of the privately-owned and maintained portion of the service line, this approach will often result in replacement of only the portion of the lead service line from the water main to the meter.
Letter from Michael Marcotte, WASA, to Karen D. Johnson, Chief, USEPA Safe Drinking Water Act Branch, dated March 17, 2004, available at http://www.dcwatch.com/wasa/040319.htm (last accessed March 23, 2004). A color schematic, illustrating this program, is attached hereto as Exhibit 4.
WASA’s practice of replacing the line only to the water meter violates SDWA regulations, which require lead lines to be replaced by the water system, at water system cost, to the property line. 40 C.F.R. § 141.84(d) ("A water system shall replace that portion of the lead service line that it owns.") In most cases, the water meter is located in the sidewalk, well outside the property line. The net result of this illegal practice is to breach applicable law, fail to replace what even WASA asserts is a root cause of the lead contamination and (again in a demonstration of WASA’s false economy) to foist additional costs on the homeowner, who must bear a greater share of cost to replace the remainder of the lead line, from the meter to the home.
Indeed, the EPA explicitly refused to grant a waiver to WASA for the continuation of this illegal practice, stating, "We are not presently aware of any lead testing data on the suggested practice of replacing at the nearest threaded joint. Physical disruption of old lines may present similar concerns [regarding elevated lead]." See Letter from Donald Welsh to Robert Bobb, supra note 14.
The lead service replacement program is therefore currently in confusion and disarray and cannot currently be relied on to protect the plaintiff classes from exposure to lead-contaminated water.
WASA and the Army Corps of Engineers, which operates the Washington Aqueduct, are working with EPA to develop a revised corrosion control system. That system, if successful, will reduce the level of corrosion in the D.C. water system and thereby also reduce lead levels. Roll-out of this system, if determined to be feasible and effective, however, will not begin at the earliest until September 1, 2004. Id. at 18. The plan itself makes clear that it will be several months before the positive effects of any such system will be noticed. Id. at 6 ("The Technical Expert Working Group does not expect that any treatment selected and implemented will immediately reduce lead levels in the tap water. The Working Group expects lead levels to decrease over the course of implementing the revised treatment for at least several months.")
Thus, even if the plan is implemented on schedule in September of 2004, the positive benefits will not be observed until January 2005. The plaintiff classes can certainly not rely on this strategy to provide potable water in the short term.
During the past six months, WASA has issued a series of alerts and guidance documents to customers in an effort to induce them to flush the taps before consuming water. These advisories have been contradictory, confusing, incomplete and fraught with potential for misuse. Even assuming WASA disseminated these instructions widely enough to reach all affected customers, each document provided a different set of instructions creating mass misperceptions and confusion. Even the most recent WASA guidance, issued this past month, remains contradictory and inadequate to protect human health from exposure to lead in drinking water.
WASA’s most recent issue of "What’s On Tap," distributed to customers with their March 2004 bills, provides the following recommendation to customers:
The two steps to remember 1) when you get up in the morning or anytime the water has been sitting unused for six hours or more, flush the old water out of the system by using some water in the home for showering or bathing and then 2) run cold water from the tap for 10 minutes before using for drinking or cooking. These simple measures can help reduce lead levels in your water.
WASA Addresses Issues of Elevated Lead Levels in Water, "What’s On Tap" March 2004, at 1.
In a separate article in the same publication, however, WASA advises customers to take additional and potentially contradictory precautions, as follows:
(1) Use only cold water for cooking and drinking. Drawing hot water from the tap dissolves more lead more quickly than cold water. For hot water, heat cold water.
(2) Draw water for drinking or cooking after another high-water use activity such as bathing or washing your clothes so that service line flushing has occurred.
(3) After following step 2, flush your kitchen tap for 10 minutes and then collect drinking water in clean containers and store in the refrigerator. The large amount of water used will flush significant amounts of water from your home pipes and service lines.
Id. at 2.
The second set of recommendations does not suggest, as the first recommendations do, that flushing need only be done every six hours.
Adding to the confusion, WASA’s website makes yet a third different recommendation – that, if "water stands in lead pipes or plumbing systems containing lead for several hours or more," customers should draw water for drinking or cooking only after another high-water use activity, such as bathing or washing clothes, so that a total of at least 10 minutes of flushing has occurred; and use only cold water for cooking and drinking, or alternatively, use bottled water for drinking and cooking. See www.dcwasa.com/lead/faq.cfm (last accessed March 23, 2004).
Which recommendation is correct? Should customers flush before every time they drink? After three hours of inactivity? After six hours? Does the ten minutes of flushing include showering or other high water use activity, or should an additional ten minutes of flushing take place after that high water use activity? Consumers are left to guess at the answers.
It bears special mention that, if the official guidance is indeed to engage in ten minute flushing after every six hours of inactivity, such guidance offers no protection to a customer who drinks from the tap after four or five hours in which the tap has gone unused. As set forth in the Affidavit of Ray Ferrara, a noted water systems expert, WASA’s recommendation for flushing only after six full hours of inactivity is arbitrary and will not protect human health. Ferrara Aff. ¶ 7. Leaching of lead from pipe materials is a time dependent process, and the longer the water is in contact with the pipe materials, the greater the chance that lead will leach from the pipe materials to the water. Id.
The amount of time necessary to flush a home’s pipes will depend on the length and size of pipes, which will vary with the type and size of the home. Id. The larger the home, the greater the amount of water stored in pipes and hence the greater the amount of time needed to flush the system. Id. A system that has been inactive for five hours is likely to contain nearly as much lead as a system that has been inactive for six hours.
WASA’s flushing recommendations are inadequate for two further reasons. First, they are directed primarily to those homes with lead service lines. Homes that are served by copper and brass lines, or are classified as "unknown" are demonstrably not free from risk, as evidenced WASA’s recent sampling survey. Second, given human behavior, it is highly unlikely that the vast majority of District residents will follow the ten minute flushing rule in every instance. By nature, ignorance, impatience, or stubbornness will contribute to a very low compliance rate with the WASA flushing recommendations.
Individuals exposed to lead, even at low doses, experience harmful, and many times irreversible health effects. The most serious exposure risk from lead in drinking water is to children and pregnant women. Fetuses and young children are especially vulnerable to the neurologic effects of lead because their brains and nervous systems are rapidly developing. Declaration of John F. Rosen ("Rosen Decl.") ¶ 6, attached hereto as Exhibit 5. There is no known threshold in blood lead levels below which adverse neurologic effects of lead in children do not occur. Id. ¶ 7. The adverse effects of lead on the central nervous system of the developing fetus and young child are permanent and irreversible. Id. ¶ 8.
According to one of the country’s leading experts on childhood lead poisoning, Dr. John F. Rosen, Professor of Pediatrics and Head of the Division of Environmental Sciences at the Children’s Hospital at Montefiore, Albert Einstein College of Medicine in New York, there is already conclusive evidence that the neurobehavioral-cognitive deficits that result from childhood lead poisoning at blood lead levels equal to or greater than 10 lg/dl, are irreversible. Id. ¶ 11. Early exposure to lead affects normal growth, development, societal skills, emotional status and almost all aspects of normal behavior and productivity in later years. Id. ¶ 12. Even among teen-agers, school absenteeism, lower class standing and an increased rate of dropouts have been reported, along with emotional and behavioral problems. Id. ¶ 17. Academic deficits have been found to persist to 18 years in age. Id.
Moreover, the Centers for Disease Control has stated that "As yet, no threshold [in blood lead levels] has been identified for the harmful effects of Pb." Id. In fact, there is substantial evidence that show adverse cognitive effects of lead at blood levels below 10 :g/dl. Thus, in Dr. Rosen’s opinion, the current definition of childhood lead poisoning (blood lead > 9 :g/dl) may not be protective of children’s health. Id.
Dr. Rosen has reviewed the data made publicly available by the District of Columbia Department of Health ("DOH"), collected in conjunction with the DOH voluntary blood lead screening program. While DOH has been engaged in a press campaign to portray the results of this blood screening as very encouraging, Dr. Rosen states in the attached declaration that, with a reasonable degree of medical certainty, it is far too early to ascertain epidemiologically what effects elevated concentrations of lead in drinking water in the District of Columbia may have on blood lead levels in susceptible populations. Id. ¶ 24.
Even if the plaintiff classes were to accept the sincerity of official pronouncements concerning the District’s and WASA’s determination to fix the District’s drinking water distribution system – and the developing factual record provides ample justification for skepticism – the undisputed fact remains that no immediate cure has been suggested or can be implemented. The presence of lead in the District’s tap water resulted from a lengthy chain of events that cannot quickly be reversed, and even the most focused effort to restore the integrity of the District’s water system will take months, if not years, to complete.
While pronouncements issue and plans are developed, the plaintiff classes are left without the most basic need of all – safe water to drink in their homes. This has been the case for months. Recommendations to flush taps will never guarantee that the lead in tap water will be purged to safe levels for the plaintiff classes. Furthermore, defendants’ proposal to deliver water filters to a small subset of potentially affected homes does not remedy the threat.
The continued ingestion of lead-containing water by pregnant women and children in the District poses a serious and possibly irreversible health risk. The demonstrated inadequacy of the remedies identified to date by WASA and the District compels plaintiffs to move for – and the Court to grant – a mandatory preliminary injunction requiring WASA and/or the District to provide District residents with a safe, alternative source of drinking water.
Under well-established principles of District law, plaintiffs are entitled to preliminary equitable relief. When determining whether to issue a preliminary injunction, the trial court must find that the moving party has shown that there is a substantial likelihood of prevailing on the merits, that there exists a danger of suffering irreparable harm during the pendency of the action, that more harm will result from the denial of the injunction than will result to the defendant from its grant, and in appropriate cases, that the public interest will not be disserved by the issuance of the injunction. Don’t Tear It Down, Inc. v. District of Columbia, 395 A.2d 388, 390 (D.C. 1978); see Ellis v. James V. Hurson Assocs., Inc., 565 A.2d 615, 618 n.11 (D.C. 1989).
Even at this preliminary stage of the proceedings, it is clear that plaintiffs have a very high likelihood of succeeding on each cause of action they have brought.
1.Plaintiffs Are Substantially Likely to Prove that WASA and the District Were and Are Negligent.
WASA’s conduct in this case has failed to meet the standard of care prescribed by law. Whether plaintiffs’ claim is analyzed under a per se or traditional theory of negligence, the result is the same – Defendants will be liable for their careless and deceptive conduct.
The District of Columbia recognizes the doctrine of negligence per se. The Court of Appeals has described the doctrine as follows:
where a particular statutory or regulatory standard is enacted to prevent the type of accident that occurred, and the plaintiff can establish his relationship to the statute, unexplained violation of that standard renders the defendant negligent as a matter of law.
Chadbourne v. Kappaz, 779 A.2d 293, 295 (D.C. 2001) (quoting Ceco Corp. v. Coleman, 441 A.2d 940, 945 (D.C. 1982); see also McNeil Pharm. v. Hawkins, 686 A.2d 567, 579 (D.C. 1996). Plaintiffs will prove each of the elements of negligence per se here, as WASA violated both federal and District regulations designed to protect plaintiffs from the precise injury they have suffered – injuries resulting from the ingestion of drinking water containing high concentrations of lead.
In 1991, EPA promulgated a regulation known as the "Lead and Copper Rule." 56 Fed. Reg. 26,460 (E.P.A. June 7, 1991). EPA promulgated the Lead and Copper Rule pursuant to authority granted it by Congress in the Safe Water Drinking Act ("SDWA"), 42 U.S.C. §§ 300f, et seq., a statute whose purpose is "to assure that water supply systems serving the public meet minimum national standards for the protection of public health." H.R. Rep. No. 93-1185, reprinted in 1974 U.S.C.C.A.N. 6454 (Aug. 15, 1974). The SDWA authorized EPA "to establish Federal standards for protection from all harmful contaminants[.]" Id. at 6454-55.
In the Lead and Copper Rule, EPA set a maximum contaminant level goal ("MCLG") for lead of zero, largely as a consequence of lead’s effect on human health. Specifically, EPA supported its adoption of a zero MCLG for lead based on
(1) the occurrence of a variety of low level health effects for which it is currently difficult to identify clear threshold exposure levels below which there are no risks of adverse health effects; (2) the Agency’s policy goal that drinking water should contribute minimal lead to total lead exposures because a substantial portion of the sensitive population already exceeds acceptable blood levels; and (3) the classification of lead as a Group B2 (probably human) carcinogen.
56 Fed. Reg. at 26,467.
In addition to establishing a MCLG of zero for lead, the Lead and Copper Rule established a specific series of requirements required to be followed by public water systems in order to minimize or eliminate the presence of lead in drinking water. The requirements in the Lead and Copper Rule are triggered by any exceedance of the "lead action level," which occurs when more than ten percent of the tap water samples during any monitoring period exceed 15 ppb of lead. Plaintiffs will show that, once the requirements of the Lead and Copper Rule were triggered, WASA completely failed to comply with them.
a.WASAs Invalidation of Test Samples in 2001 Constituted Negligence.
Plaintiffs will demonstrate the WASA improperly manipulated test results in order to avoid exceeding the lead action level three years ago. In 2001, WASA’s sampling determined that four of fifty samples – or eight percent – exceeded the lead action level. WASA has conceded, however, that it "invalidated" three samples that exceeded the lead action level. Affidavit of Christopher A. Cole ("Cole Aff.") ¶¶ 5-6 (citing Congressional Testimony, dated March 5, 2004, by WASA), attached along with video tape hereto as Exhibit 6. The Lead and Copper Rule establishes specific requirements in connection with the invalidation of samples, however, and WASA’s recent testimony before Congress suggests that WASA invalidated three samples in 2001 without justification under the law. Only a state – not the water system itself – may invalidate tap water samples, and then only under specified circumstances. 40 C.F.R. § 141.86(f)(1).
Had WASA not violated the law in this manner, over ten percent of its 2001 samples would have exceeded the 15 ppb threshold, and its affirmative obligations under the Lead and Copper Rule (discussed below) would have arisen.
As a practical matter, had WASA complied with the SDWA requirements, its customers would have known almost three years ago that their water was potentially contaminated with high levels of lead, allowing them to make informed decisions about whether to seek alternative supplies of drinking water. WASA’s improper invalidation of test results enabled it to avoid its obligations and to perpetuate its customers’ ignorance of the potential hazards lurking in WASA’s water. Without more, WASA’s unlawful conduct establishes its negligence in this case as a matter of law. Plaintiffs have suffered injuries that were proximately caused by that conduct.
b.WASAs 2002 Failure to Disclose Lead Contamination Also Was Negligent.
Approximately half of the samples taken by WASA in the Summer of 2002 revealed the presence of lead at levels exceeding 15 ppb, a result that clearly resulted in an exceedance of the Lead Action Level and triggered the public notification and other requirements of the Lead and Copper Rule. See 40 C.F.R. § 141.85. Again, WASA did not timely or adequately inform the plaintiffs of these results, and as a consequence, plaintiffs were denied the opportunity to avoid exposure to contaminated drinking water.
The Lead and Copper Rule required that public education materials be sent along with customers’ bills, within sixty days of WASA’s receipt of test results showing an exceedance of the Lead Action Level. The required materials were to include the following alert to consumers:
SOME HOMES IN THIS COMMUNITY HAVE ELEVATED LEAD LEVELS IN THEIR DRINKING WATER. LEAD CAN POSE A SIGNIFICANT RISK TO YOUR HEALTH. PLEASE READ THE ENCLOSED NOTICE FOR FURTHER INFORMATION.
40 C.F.R. § 141.85(c)(2)(i). Even though WASA’s 2002 sampling unequivocally demonstrated an exceedance of the Lead Action Level, WASA did not provide this notice, nor anything similar to it. To the contrary, WASA included the following very mild caution in its 2002 Annual Report, which was disseminated in June 2003:
Drink water or prepare beverages, especially infant formula, from the cold water tap. Hot water dissolves lead more quickly than cold water.
WASA Year 2002 Water Quality Report, dated June 2003, http://www.dcwasa.com/news/publications/waterquality_report2002.pdf (last accessed March 25, 2004) (emphasis added). Even this shockingly inadequate warning was completely undermined and contradicted by the following statement by Jerry Johnson, WASA’s General Manager, which was featured on the 2002 Annual Report’s cover:
We are once again proud to report that Washington, DC’s drinking water met or surpassed all requirements or the federal Safe Drinking Water Act (SDWA) every single day in 2002.
Thus, even to the extent that WASA disclosed the existence of a problem with its drinking water, it drew attention away from its disclosure by boasting of WASA’s having "met or surpassed" all SDWA requirements.
Plaintiffs therefore are likely to succeed on their negligence per se claim against WASA. WASA committed serial violations of the Lead and Copper Rule in 2001 and 2002. These violations directly and proximately injured the plaintiff class. Members of the plaintiff class may have been exposed to elevated levels of lead as early as 2001. Had WASA implemented the steps set forth in the Lead and Copper Rule at that time, members of the plaintiff class could have taken steps to lessen their exposure to lead over two years before the problem was disclosed. WASA’s failure to implement those steps led to plaintiffs’ unknowing ingestion of high levels of lead during a time when they should have been informed of the problem.
Plaintiffs are equally likely to succeed under a traditional negligence analysis. The vast majority of jurisdictions confronted with cases involving contamination of public water systems have adopted the principle that a public water system is bound to use reasonable care and diligence in providing pure and wholesome water, and may be held liable for injuries resulting from its negligence in permitting the public water supply to become contaminated. See Brynnwood Condo. Ass’n, Inc. v. City of Clearwater, 474 So.2d 317, 318 (Fla. Ct. App. 1985) ("municipality … may be held liable for injuries resulting from its negligence in permitting its water supply to become contaminated or polluted, thereby causing illness or an epidemic") (quoting 78 Am. Jur. 2d, Waterworks and Water Companies, § 42 (1985)); DeWitt Properties, Inc. v. City of New York, 406 N.E.2d 461, 464 (N.Y. 1978) (water company has duty of maintaining and repairing system so as to avoid injuries to public; duty applies to both private and municipal water systems); Coast Laundry, Inc. v. Lincoln City, 497 P.2d 1224, 1228 (Ore. Ct. App. 1972) (municipality may be liable for injuries resulting from negligence in permitting water supply to become contaminated or polluted) (citation omitted); Rittersbusch v. City of Pittsburg, 269 P. 930, 931 (Cal. 1928) (municipal corporation may be held liable for outbreak of illness resulting from negligent failure to chlorinate water); Hayes v. Torrington Water Co., 92 A. 406, 407 (Conn. 1914) ("The duty which a water company owes to the public and to its customers is that of exercising reasonable care and diligence in providing an adequate supply of wholesome water at all times") (citations omitted); Keever v. City of Mankato, 129 N.W. 158, 159-60 (Minn. 1910) ("sound public policy holds a city to a high degree of faithfulness in providing an adequate supply of water").
The Massachusetts Supreme Court specifically applied this rule in a case involving lead contamination. In Horton v. Inhabitants of North Attleboro, 19 N.E.2d 15 (Mass. 1939), the plaintiff, who suffered from lead poisoning, brought a negligence claim against the municipality that was responsible for providing water to town residents. The plaintiff’s claim was – similar to the case at bar – predicated on the fact that the water provided by the municipality contained high amounts of carbon dioxide, which accelerated the erosion of lead from the plaintiff’s lead service pipe into his drinking water. The Supreme Judicial Court of Massachusetts sustained the plaintiff’s exceptions to a verdict for the municipality, which had been predicated upon the fact that the lead service pipe serving the plaintiff’s home was not owned by it or under its control. After stating the now-familiar rule that the municipality, "in entering upon the business of supplying water, assumed the duty towards its customers of conducting the business ‘with reasonable judgment, skill and care, according to the approved usages of the trade,’" id. at 19, held that
the defendant was bound to take into consideration the fact that the water could not be drunk at the water gate [the dividing point between the municipality’s ownership of the pipe and the homeowner’s], and to adapt its care to the fact that its water had to pass through a leaden service pipe before it could be used for drinking….
Id. Quoting a prior case, the Court continued:
The [water] board have [sic] offered to supply the consumer with water pure and wholesome in such conditions that are known to both parties to obtain – namely, to supply it so that it will have to travel through lead service pipes, that being a common method agreed on by both parties for the supply of water, and indeed contemplated by the regulations, and the board cannot be heard to say that, because the consumer has chosen to have his water supply through a lead pipe rather than through an iron pipe, the fault is his and not the fault of the water board. There was an obligation in that case to supply him with water which, coming through a lead pipe, would not be water which would be poisonous.
Id. (internal citations omitted).
As is clear from the foregoing authorities, the weight of authority in the United States supports the proposition that a public water system will be liable in tort where it negligently allows the introduction of dangerous contaminants into the water supply. When gauged against this standard, plaintiffs submit that their injuries resulting from lead exposure are the direct and proximate result of WASA’s negligent conduct. Specifically, plaintiffs will prove at trial that:
WASA utilized an inferior anti-corrosion agent – lime – despite its knowledge that it was considerably inferior to zinc orthophosphate, because lime was cheaper.
WASA has continued to utilize a disinfection agent – chloramines – despite compelling evidence that this substance has accelerated the erosion of lead service lines and caused its customers to receive water containing elevated levels of lead.
Upon learning in 2001 that a considerable percentage of homes in its service area were receiving water containing elevated levels of lead, WASA took no action and failed to disclose this fact to the public.
Upon learning in 2002 that roughly half the samples it collected contained elevated levels of lead, WASA took no action and failed to disclose the full extent of the problem to the public, despite the existence of federal regulations requiring it to do so.
Despite having knowledge that homes with lead service lines were receiving water containing elevated levels of lead, WASA took no action to replace lead service lines; to the contrary, plaintiffs have obtained evidence that WASA continued to repair lead service lines that it had committed publicly to replace, and continued to repair mains and trunk lines with "lead packs" that it knew could exacerbate lead levels at the tap.
The evidence will demonstrate that WASA’s failure to comply with the Lead and Copper Rule was negligent per se, and that its continued use of lime and chloramines as corrosion control and disinfection agents, respectively – particularly after it had knowledge of a potential lead problem – constituted negligence under the standard of due care that American courts have long applied to both public and private water systems.
2. Plaintiffs are Substantially Likely to Prove a Breach of Contract.
In order to prevail on their contract claims, plaintiffs must prove the existence of a contract, breach of the contract by WASA, and resulting damage. Plaintiffs will be able to prove each of these elements.
Plaintiffs who are WASA customers entered into contracts with WASA in which those plaintiffs agreed to pay WASA in exchange for WASA’s provision of clean and uncontaminated drinking water. Under District law, the Court "may imply a contract from the course of the parties’ performance, when a reasonable person would view the acts and conduct of the parties as evidencing the existence of a contract." Equity Group, Ltd. v. Painewebber, Inc., 839 F. Supp. 930, 933 (D.D.C. 1993) (citing Richardson v. J.C. Flood Co., 190 A.2d 259, 261 (D.C. 1963)). Clearly, WASA’s periodic billing of its customers based upon the application of stated rates to actual water use gives rise to an implied contract under District law.
WASA has breached those contracts by failing to provide the product that it promised and that plaintiffs expected – uncontaminated potable water. Section 2-314 of the Uniform Commercial Code, codified locally as Section 28:2-314 of the District of Columbia Code, provides that
(1) Unless excluded or modified (section 28:2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. Under this section the serving for value of food or drink to be consumed either on the premises or elsewhere is a sale.
(2) Goods to be merchantable must be at least such as … (c) are fit for the ordinary purposes for which such goods are used
(2) Goods to be merchantable must be at least such as … (c) are fit for the ordinary purposes for which such goods are used
Furthermore, Section 2-315 of the Code provides that:
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such purpose.
D.C. Code § 28:2-315.
Viewed together, these provisions of the U.C.C. impose a strict obligation on WASA to deliver water that it suitable for its intended purpose, which indisputably includes ingestion by humans. Were there any doubt that drinking and ingestion were among the "ordinary purposes" for which WASA water is purchased (there should not be), WASA’s own mailings – which include "recipes" calling for WASA water – should conclusively dispel those doubts. Courts have found that the implied warranty does apply to public water systems. See, e.g., McKeesport Mun. Water Auth. v. McCloskey, 690 A.2d 766, 776 (Pa. Comm. 1997) (holding that plaintiff asserted valid cause of action for breach of implied warranty in action arising from contamination of public water system); see also Zepp v. Mayor & Council of Athens, 348 S.E.2d 673, 677 (Ga. Ct. App. 1986) (finding that water in a municipal water system can be considered a "good," subject to the U.C.C.); Gall by Gall v. Allegheny County Health Dep’t, 555 A.2d 786, 789 (Pa. 1989) (same).
The rules enunciated in these decisions constitute both sound public policy and the proper outcome in this case, where the record at trial will reveal that WASA actively marketed its water as a wholesome and healthy product. Having marketed its product in such a fashion, and having claimed further that its water "met or surpassed" all federal drinking water requirements "every single day in 2002," WASA water should properly be characterized as a good covered by the U.C.C., and WASA should be held to be a "merchant" that has impliedly, if not expressly, warranted its water to healthy and potable.
Should the Court find that WASA water is covered by an implied warranty of potability, there is no question that WASA’s product fell short of that warranty. As noted above, the adverse health effects of lead have been universally recognized for decades. By delivering water to plaintiffs that contained levels of lead that EPA has found are dangerous to human health, WASA plainly breached its warranty that its water was safe to drink.
3. Plaintiffs are Substantially Likely to Prove that WASA Violated the D.C. Consumer Protection Procedures Act.
WASA’s representations as to the safety of the District’s water supply, and its active attempts to underestimate and under report the lead levels, are clear violations of the DC. Consumer Protection Procedures Act. The Act is a "comprehensive statute designed to provide procedures and remedies for a broad spectrum of practices which injure consumers." Atwater v. District of Columbia Dep’t of Consumer & Regulatory Affairs, 566 A.2d 462, 465 (D.C. 1989). Section 28-3904 of the Act makes it a violation, whether or not any consumer is in fact misled, deceived, or damaged, for any person to:
(a) represent that goods or services have a source, sponsorship, approval, certification, accessories, characteristics, ingredients, uses, benefits, or quantities that they do not have. . .(d) represent that goods or services are of particular standard, quality, grade, style, or model, if in fact they are of another; (e) misrepresent as to a material fact which has a tendency to mislead. . .
D.C. Code § 28-3904(a), (d)-(e) (2004).
Section 28-3905(k)(1(D) gives the court the power to issue an injunction to stop the unlawful trade practice; section 28-3905(k)(1)(E) gives the court broad powers in representative actions to grant relief as necessary, and 28-3905(k)(1)(F) allows the Court to grant "any other relief which the court deems proper." Id. § 28-3905(k)(1)(D)-(E). Together, these provisions allow the court to provide a "panoply of strong remedies." District Cablevision Ltd. P’shp v. Bassin, 828 A.2d 714, 717 (D.C. 2003)
In this case, WASA frequently represented that its water has characteristics that it does not have. As reported in WASA’s "Year 2002 Water Quality Report," WASA’s General Manager Jerry Johnson informed consumers that WASA was "once again proud to report that Washington, DC’s drinking water met or surpassed all requirements of the federal Safe Drinking Water Act (SDWA) every single day in 2002." This affirmative representation appeared on the cover of WASA’s 2002 Annual Report, and was demonstrably false as a consequence of contemporaneous sampling results demonstrating that the system was exceeding lead action levels under the SDWA.
WASA was aware that the water had a high likelihood of containing lead at levels potentially injurious to health, yet it continued to market its water to District of Columbia consumers as pure and healthful, and told consumers that the quality of its water was its "highest priority." WASA did not notify its consumers of any danger posed by its product, and continued to bill customers for water containing lead at levels known to be dangerous to infants, young children, and pregnant women.
WASA did not recommend that consumers discontinue use of its product until February of 2004, when the District Department of Health finally announced that all pregnant women and children younger than 6 who live in homes with lead service lines should immediately stop drinking unfiltered tap water.
Throughout this period, WASA continued to employ advertising themes and promotions designed to encourage public trust in its product, with the goal of increasing the public’s consumption of its product.
4. The Defendants are Not Protected from Suit by Principles of Sovereign Immunity.
No principles of sovereign immunity diminish plaintiffs’ likelihood of success. Section 34-2202.03(1) of the D.C. Code expressly provides that WASA may sue and be sued. Section 12-309 of the Code provides that, as a prerequisite to suit for unliquidated damages against the District government, notice must be provided in writing to the Mayor within six months after the injury was sustained. This statute derogates the common law principle of sovereign immunity for the District government. See Pitts v. District of Columbia, 391 A. 2d 803, 807 (D.C. 1978). Plaintiffs gave the required notice on March 8, 2004, prior to filing its complaint, and prior to this action for a preliminary injunction. The District of Columbia Court of Appeals recently determined that WASA is not entitled to pre-suit notice under Section 12-309 of the Code. Dingwall v. District of Columbia Water & Sewer Auth., 800 A.2d 686, 687 (D.C. 2002).
To determine whether WASA or the District Government have waived any sovereign immunity so as to make it liable in tort in a given situation, the courts must determine whether the acts complained of were discretionary or ministerial. McKethean v. Washington Metro. Area Transit Auth., 588 A.2d 708, 715 (D.C. 1991). The District will be immune "only if the act complained of was committed in the exercise of a discretionary function; if committed in the exercise of a ministerial function, the District must respond." Wade v. District of Columbia, 310 A.2d 857, 860 (D.C. 1973). Courts define discretionary acts as those involving the formulation of policy, while ministerial acts are defined as those related to the execution of policy. Nealon v. District of Columbia, 669 A.2d 685, 690 (D.C. 1995). A municipal corporation engaged in the business of supplying water to its inhabitants is engaged in an undertaking of a private nature and is generally liable therein for breach of contract or for negligence, to the same extent as a private corporation would be. See, e.g., Coast Laundry, Inc. v. Lincoln City, 497 P.2d 1244 (Ore. 1972).
In this case, plaintiffs have complied with the pre-suit notice requirements, and properly alleged that WASA and the District government breached a duty of care to provide safe drinking water to the city’s inhabitants. WASA is, by statute, responsible for its own torts and breaches of contract. The Defendants’ collective duty to provide safe drinking water is not discretionary. They cannot, in their discretion, choose whether or not to provide safe drinking water to District residents.
Further, the District government has control over WASA’s actions, and thus has the same obligations as WASA to provide safe drinking water. The District government has proven this control in recent weeks. On March 5, 2004, the Mayor stated the following in a letter to WASA, "we are herewith formally directing WASA to execute the actions delineated in the attached letter from the US Environmental Protection Agency." (emphasis added.) This notice indicates that the Mayor can and does direct WASA’s actions.
The District government’s obligation to see that WASA supplies safe drinking water is also ministerial. The Mayor cannot, in his discretion, allow WASA to fail to comply with EPA guidelines or to provide drinking water contaminated with lead. That the Mayor waited until March of 2004 to order WASA’s compliance when WASA has been non-compliant since at least 2002 is a breach of the government’s duty to oversee WASA and provide safe drinking water to the citizen’s of the District of Columbia.
Every day of exposure to lead in drinking water will add to the irreversible health effects caused by absorption of lead by the plaintiffs. Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that, if it is not granted, the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered. Jayaraj v. Scappini, 66 F.3d 36 (C.A.2 (1995) (citing Citibank N.A. v. Citytrust, 756 F.2d 273, 275 (2d Cir.1985)) (internal quotations omitted). Ingestion of lead, like many toxins, damages human tissue and organs and will permanently damage the brains of developing fetuses and young children causing irreparable harm. Unless a safe, alternate supply of drinking water is provided to plaintiffs immediately, WASA’s negligent handling of increased lead in the plaintiff’s water supply will continue to cause plaintiffs irreparable harm.
The District of Columbia Circuit recognizes the use of a preliminary injunction to prevent irreparable injury from exposure to toxic material. The Court of Appeals has stated that "[t]he risk of harm from such exposure pendente lite would not be eliminated even if plaintiffs ultimately were to win on the merits. Thus, plaintiffs convincingly make out a case of irreparable harm, absent interlocutory relief." National Ass’n of Farmworkers Organizations v. Marshall, 628 F.2d 604, 613 (D.C. Cir. 1980) (citing Ohio Oil Co. v. Conway, 279 U.S. 813 (1929); Guinness-Harp Corp. v. Joseph Schlitz Brewing Co., 613 F.2d 468 (2d Cir. 1980); Jacksonville Post Auth. v. Adams, 556 F.2d 52, 58 (D.C. Cir. 1977)). In National Farmworkers, for example the plaintiffs were 10 and 11 year old children of farm workers who would potentially be exposed to harmful pesticides if certain waivers of the age limit for agricultural workers were granted by the Secretary of Labor. Relying the "known heightened susceptibility of pubescent children to harm from pesticide exposure," the Court of Appeals determined that the "hazards exist, and the children’s exposure to them constitutes the kind of irreparable departure from the status quo that necessitates interlocutory relief." Id. at 614.
Likewise, it is well known that developing fetuses and young children exposed to lead will suffer irreparable and irreversible harm. Continuing exposure to the lead in the drinking water supplied by WASA also constitutes the kind of irreparable departure from the status quo, safe drinking water, the can only be remedied by immediate relief. WASA must provide a safe and alternate supply of drinking water immediately to prevent this harm.
The lead in the drinking water will continue to flow into plaintiffs’ homes until WASA can correct the chemical makeup of the water supply to control the corrosion of lead service lines. Because the plaintiffs’ exposure to lead and the irreparable harm caused by this exposure is on-going, WASA must provide an alternate and safe drinking water supply now.
Plaintiffs cannot wait through the ordinary course of litigation for monetary relief from the harmful effects of exposure to lead and lead ingestion. As noted earlier, even small doses of lead ingested into an individual’s system can cause harmful and lasting, if not permanent damage. The harmful effects of lead exposure will be significantly increase if plaintiffs are not afforded immediate relief. Given the contradictory public notifications regarding lead in the District’s water supply system, it is not clear whether all residents have been adequately informed of appropriate measures to protect themselves from harm. Moreover, since they do not currently have access to safe sources of drinking water, plaintiffs must rely on the contaminated WASA supply.
The harm to plaintiffs is imminent, certain, and not merely speculative. See Tom Doherty Assoc., Inc. v. Saban Entm’t, Inc., 60 F.3d 27, 37 (1995). The damage from lead poisoning is very real and well documented. This is not a case of maybe it will happen maybe it will not. Individuals who ingest lead and have blood lead levels even lower than 10 :g/L will be harmed by the lead they ingest. See United States v. Conservation Chem. Co., 619 F. Supp. 162 (D. Mo.1985) ("Because hazardous substances are, by definition, capable of causing serious harm, a substantial endangerment may exist whenever the circumstances of a release or threatened release of a hazardous substance are such that the environment or members of the public may become exposed to such substances and are therefore put at risk."); United States v. Price, 688 F.2d 204, 213-14 (3d Cir.1982) ("An endangerment is ‘imminent’ and actionable when it is shown that it presents a threat to human health or the environment, even if it may not eventuate or be fully manifest for a period of many years--as may be the case with drinking water contamination, cancer, and many other effects").
The Defendants have proposed a plan to mail roughly 23,000 water filters to homes that are believed to have lead service lines. WASA itself has admitted that there are likely to be thousands more, but as yet not definitively identified, homes with lead service lines. An untold number of homes may have copper or brass lines and also be experiencing lead exceedances. Yet no home not currently identified by WASA as having a lead line is currently slated to receive a filter. Moreover, any home with multiple units will only receive a single filter, apparently to be shared.
The shortcomings of the Defendants’ proposal are self-evident. Prior remedial actions, undertaken to prevent this type of harm, serve as a model for our request here. Courts have recognized the provision of bottled water as an appropriate remedy during situations involving the contamination of drinking water. For instance, in Trinity American Corp. v. United States Environmental Protection Agency, 150 F.3d 389 (4th Cir. 1998), the owner of a polyurethane foam plant sought review of an emergency order, issued by the EPA under the Safe Drinking Water Act, requiring the owner to systematically sample groundwater within a specified area, to determine whether the water met federal standards, and to provide bottled water to anyone in that area whose groundwater failed to meet such standards until groundwater was found to be without contaminants. The court held that EPA acted within its emergency powers authority under SDWA when it ordered the property owner to provide bottled water to residents whose groundwater fell below federal standards. Id. at 397. See also North Carolina v. McDevitt, 142 F. Supp. 2d 710 (W.D.N.C. 2001) (holding that the Resource Conservation and Recovery Act allows a state government to undertake corrective action, including the provision of bottled water and well filters, with respect to a release of petroleum); Woodman v. United States, 764 F. Supp. 1467 (M.D. Fla. 1991) (finding that residents’ costs of connecting to the city’s water line and their expenses for bottled water are proper response costs under the Comprehensive Environmental Response, Compensation, and Liability Act).
Courts have also recognized the provision of bottled water to remedy drinking water contamination under common law theories of action. See McKeesport Mun. Water Auth. v. McCloskey, 690 A.2d 766, 773 (Pa. Comm. Ct. 1997) (customer may recover the cost of purchasing potable water from other sources at costs that exceed the cost of purchasing water from the water authority, where the water authority failed to supply potable water under terms of contract in breach of an implied warranty of merchantability); Kusnir v. City of Yonkers, 497 N.Y.S.2d 582, 585-86 (Westchester County Small Claims, N.Y., 1985) (plaintiff may recover the cost of bottled water and replacement of clothing, where the city knew that it was furnishing rust-laden water).
Wherefore, for the foregoing reasons, plaintiffs respectfully request that the Court issue a preliminary injunction in the form set forth in the accompanying order.
Dated: March 26, 2004
Charles A. Patrizia (D.C. Bar No. 228999)
Christopher A. Cole (D.C. Bar No. 443206)
Lisa K. Rushton (D.C. Bar No. 456127)
James E. Berger (D.C. Bar No. 481408)
Roberta R. Barkman (D.C. Bar No. 459268)
Alexander W. Koff (D.C. Bar No. 456218)
Paul, Hastings, Janofsky & Walker LLP
10th Floor
1299 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2400
Telephone: (202) 508-9500
Facsimile: (202) 508-9700
Counsel for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that on March 26, 2004, I caused a copy of the foregoing PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT to be served via hand delivery upon counsel for Defendants, at the following addresses:
Brian Anderson, Esq.
George Fairfax, Esq.
O’Melveny & Myers LLP
1625 Eye Street, N.W.
Washington, D.C. 20006
Counsel to District of Columbia Water and Sewer AuthorityMayor Anthony Williams
John A. Wilson Building
1350 Pennsylvania Avenue, N.W.
Washington, D.C. 20004District of Columbia
Nadine Wilburn, Esq.
District of Columbia
Office of the Corporation Counsel
441 Fourth Street, N.W.
Suite 1060N
Washington, D.C. 20001Counsel for District of Columbia
Mark A. Clark
INTRODUCTION 1
STATEMENT OF FACTS 5
1. The Shocking Status of the Lead Contamination Problem. 5
2. The Many Inadequacies of the Defendants’ Proposed Action Plan 9
a. Distribution of Water Filters to Homes With Lead Service Lines: Too Little, Too Late 10
b. WASA’s Acceleration of the Lead Service Line Replacement Program: Making a Bad Problem Worse 15
c. Testing and Implementing of the Corrosion Control Program: Slow and Unproven 17
d. Defendants’ Public Information Campaign: Confusing and Thus Far Potentially Harmful 18
3. Potential Harm to the Plaintiff Classes 21
ARGUMENT 22
I. Plaintiffs Meet the Legal Standard For Preliminary Injunction 23
A. Plaintiffs Have a Substantial Likelihood of Prevailing on the Merits 24
1. Plaintiffs Are Substantially Likely to Prove that WASA and the District Were and Are Negligent 24
a. WASA’s Invalidation of Test Samples in 2001 Constituted Negligence 26
b. WASA’s 2002 Failure to Disclose Lead Contamination Also Was Negligent 27
2. Plaintiffs are Substantially Likely to Prove a Breach of Contract 32
3. Plaintiffs are Substantially Likely to Prove that WASA Violated the D.C. Consumer Protection Procedures Act 35
4. The Defendants are Not Protected from Suit by Principles of Sovereign Immunity 37
B. In the Absence of an Injunction, Plaintiffs will Suffer Irreparable Harm 39
C. Unless Immediate Corrective Action is Taken by WASA Irreparable Harm to Plaintiffs will Continue 41
D. The Requested Remedy Is Strongly in the Public Interest 42
CONCLUSION 44
Amy Harding-Wright, et al., Plaintiffs, v. District of Columbia Water and Sewer Authority, et al. Defendants.
Civil Action No. 04-0001795
Judge Terrell
On March 26, 2004, Plaintiffs filed a Motion for Preliminary Injunction, which motion noted that, as an interim measure, the District of Columbia Water and Sewer Authority ("WASA") is providing in-home filtration devices and replacement filters to selected consumers in the District. The motion requested that WASA be required to provide such devices and filters to all members of the prospective classes that rely on WASA for potable water, regardless of whether they live in single family homes with lead service lines, apartment buildings, or other dwellings.
Plaintiffs persuasively argue such an order is necessary to ensure that all consumers, especially those at highest risk from increased lead levels, have access to safe and drinkable water and are not subject to irreparable harm from the ingestion of lead-contaminated water.
UPON CONSIDERATION of the motion, it is this __ day of _____, by the Superior Court for the District of Columbia,
ORDERED, that, within 14 days of the date of this order, Defendants shall develop a plan, for Court review and approval, to provide in-home filtration devices and replacement filters to every Household (as defined below) in the District of Columbia. A Household, for the purpose of this order, shall be defined as every home, apartment or dwelling serviced by WASA water, occupied by members of the plaintiff classes and located within the geographic boundaries of the District Columbia. In developing the list of Households, Defendants are permitted to exclude only those homes in which there are scientifically valid water tests, conducted within six months of the date of list edition, that conclusively demonstrate that lead levels in drinking water do not exceed 15 parts per billion ("ppb"); and further
ORDERED, that Defendants shall update the list of Households continually as they becomes aware of new Households; and further
ORDERED, that upon verification by the Court of the appropriateness of the plan of distribution, Defendants shall distribute water filters to each address on the list of Households; and further
ORDERED, that in the event WASA is made aware of scientifically valid test results showing that a particular Household has water that has been tested in excess of the certified capability of the filtration devices to be provided by WASA, Defendants must provide, and keep such Household continually supplied with, a supply of bottled drinking water that is certified to meet applicable federal safety guidelines for bottled water; and further
ORDERED, that Defendants shall make provision for any member of the plaintiff classes to demonstrate that their residence should be included on the list of Households receiving filtration devices or bottled water by providing suitable evidence to WASA that the lead levels in their drinking water exceeds 15 ppb; and further
ORDERED, that, unless otherwise modified by this Court upon a showing that lead levels in drinking water no longer exceed 15 ppb, Defendants shall provide periodic deliveries of replacement filters compatible with each filtration device they have delivered, on a schedule in accordance with each manufacturers’ instructions, to each Household supplied with filtration devices.
The Hon. Mary A. Gooden Terrell
Judge
Superior Court for the District of Columbia
Copies To:
Brian Anderson, Esq., Counsel for D.C.WASA
O’Melveny & Myers LLP
1626 Eye Street, N.W.
Washington, D.C. 20006
Nadine Wilburn, Esq., Counsel for the District of Columbia
Office of the Corporation Counsel
District of Columbia
441 4th Street, NW, Suite 1060N
Washington, DC 20001
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