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Press release, March 8, 2004
Contact:
Chris Cole, (202) 508-9547, christophercole@paulhastings.com
Patrick Dorton, (202) 508-9804, patrickdorton@paulhastings.com
PAUL HASTINGS FILES CLASS ACTION LAWSUIT ON BEHALF OF DC RESIDENTS
EXPOSED TO HIGH
LEAD LEVELS IN WATER
WASA, DC City Government, EPA, Army Corps of Engineers
Targets of 2 Legal Actions by Firm
Washington, DC (March 8, 2004) – Paul,
Hastings, Janofsky & Walker (Paul Hastings) today announced the filing
of a class action lawsuit against the District of Columbia Water and Sewer
Authority (WASA) and the District of Columbia Government 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.
Paul Hastings last Friday, March 5, also gave formal
notice to the Environmental Protection Agency, WASA, and the Army Corps of
Engineers, which administers the Washington Aqueduct, and supplies WASA
with potable water. That notice asks the EPA to declare a public health
emergency and to order WASA to provide alternate clean water for affected
homes; and states that a separate lawsuit will be filed under the Safe
Drinking Water Act if the EPA and WASA do not act.
"DC residents and consumers, many with low and
moderate incomes, should not be left uninformed and unable to rely on
their public water supply," said Charles "Chuck" Patrizia,
Paul Hastings attorney. "These agencies failed to live up to one of
their foremost responsibilities – protecting the public health and
informing citizens about potential health dangers."
"This suit is not about money. It is about
assuring the city and WASA undertake actions they should have begun long
ago to provide safe and drinkable water to District residents," said
Chris Cole, Paul Hastings attorney. "We are standing up for the
people of Washington, whose health continues to be put at risk by the
actions of WASA, and we will act to be sure WASA does what the law
requires."
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.
The lawsuit alleges that DC WASA knew of the potential
for lead contamination in the drinking water since at least the summer of
2001, when WASA reported that 8% of the city’s homes it had tested
exceeded EPA lead limits. It alleges that WASA avoided the requirement to
undertake a comprehensive remediation program back in 2001 only by
improperly "invalidating" some of the samples it took, thereby
avoiding the need to report a system-wide failure to the EPA and the
public.
The suit also claims that later, in the summer of 2002,
when WASA found an alarming 50% of the homes it tested exceeded the lead
limits, WASA concealed the news of this serious health risk from the
general public and delayed steps that would have corrected the problem.
The lawsuit also alleges that WASA’s and the DC Government’s efforts
to address the lead crisis have been haphazard and woefully insufficient
to protect public health. As a consequence of these actions, the suit
alleges, thousands of DC residents have been unwittingly exposed to lead,
a serious toxin.
The class action lawsuit seeks injunctive relief
requiring WASA and the District Government to take immediate actions to
provide safe and clean water to affected residence, and asks for damages
to remedy the injuries DC residents have suffered.
Paul, Hastings, Janofsky & Walker LLP, founded in
1951, is an international law firm, representing Fortune 500 companies
with nearly 900 attorneys located in fifteen offices: Los Angeles, Orange
County, San Francisco and San Diego, California; Stamford, Connecticut;
Atlanta, Georgia; New York, New York; Washington, D.C.; Brussels, Belgium;
Beijing, Shanghai, and Hong Kong, China; London, England; Paris, France;
and Tokyo, Japan.
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SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Civil Division
Amy Harding-Wright, 1511 C Street, N.E. Washington, D.C.
20003,
Alfonso Wright, 1511 C Street, N.E. Washington, D.C. 20003,
Ellen Shaw, 511 Third Street, S.E. Washington, D.C. 20003,
Pranav Badhwar, 511 Third Street, S.E. Washington, D.C. 20003,
on behalf of themselves, all others similarly situated,
and the general public
Plaintiffs,
V.
District of Columbia Water and Sewer Authority 5000
Overlook Avenue, S.W. Washington, D.C. 20032,
Mayor Anthony Williams, District of Columbia, John Wilson
Building, 1350 Pennsylvania Avenue N.W., Washington, DC 20004
Serve: District of Columbia
Office of the Corporation Counsel, 441 Fourth Street, N.W.
Suite 1060N, Washington, DC 20001
Defendants.
Civil Action No.
Judge
MAR 08 2004
COMPLAINT
Plaintiffs Amy Harding-Wright, Alfonso Wright, Pranav
Badhwar, and Ellen Shaw (collectively "Plaintiffs"), through
their undersigned attorneys, allege as follows for their Complaint.
NATURE OF THIS CASE
1. This case arises from the failure of
the District of Columbia Water and Sewer Authority ("WASA" or
"DC WASA") and the government of the District of Columbia (the
"District") (collectively, "Defendants"), to provide
safe drinking water to the residences, offices and schools of the
District of Columbia. In particular, Defendants have taken actions that
have caused the delivery of unsafe water to drinking water taps within a
vast number of private residences, businesses, offices, and schools in
the District of Columbia. Defendants have negligently or willfully
refrained from taking actions that would have remediated the problem
more quickly, thereby causing further harm to those consuming WASA
water.
2. WASA and District officials, by their
actions and inactions have endangered all users of District water,
particularly pregnant women and children. They have hidden and
dissembled about their awareness of these issues, thereby increasing the
risk of injury to users of District water; have failed and are
continuing to fail, to meet federal standards and guidelines for the
protection of human health from exposure to lead in drinking water; have
improperly delayed the replacement of lead service lines, which are
known to contribute to the presence of lead in drinking water; and have
breached the fundamental obligations of contract to provide safe and
clean drinking water to customers who are paying for it. This lawsuit
seeks injunctive relief and money damages against the
Defendants, requiring there, among other measures, to declare a
"public emergency" under District law; to provide immediate
access to clean, alternative sources of drinking water; and to rapidly
adopt measures that will permanently get the lead out of the District's
drinking water.
3. A water sampling program conducted by
WASA, and currently underway throughout the District of Columbia,
demonstrates that public drinking water supplied and delivered by WASA
exceeds applicable public health and safety standards governing the
concentration of the metal lead (known on the Periodic Table by the
symbol "Pb") in public drinking water.
4. It has been determined by the
Environmental Protection Agency ("EPA") that lead is toxic to
humans and that pregnant women and small children are at greatest health
risk from the ingestion of lead. The long-term health effects of
prenatal and early childhood exposure to lead can be severe, and may
include decreased growth, hyperactivity, impaired hearing, or brain
damage.
5. While the risk to children and pregnant women from
ingestion of lead is well known, it is believed that the ingestion of
lead is also harmful to adults and senior citizens. On information and
belief, the ingestion of lead may in fact be physiologically more
harmful to African-Americans than to other races and ethnicities.
6. Once ingested or otherwise introduced
into the body, lead is distributed via the bloodstream. Lead
concentrates in the bones and tends to accumulates in the liver and kidneys to a greater degree than other organs. Unlike
some chemicals that are swiftly cleared from the body, lead is not
quickly excreted. Stored primarily in the bones, it can slowly leach
back into the bloodstream, and is particularly toxic to the reproductive
system, the nervous system, and the kidneys.
7. According to the EPA, it can take
more than 25 years for one-half of the lead concentrations deposited in
bones to leach back into the bloodstream, 25 days for one-half of the
lead concentrations in the blood to dissipate, and 40 days for one-half
of the lead concentrations in other organs to dissipate. As EPA has
further stated, long after exposure has ceased, some physiological
conditions, such as illness or pregnancy, may accelerate the release of
lead deposits from bones to produce adverse health effects.
8. If caught early, such adverse effects
can be limited by reducing the exposure to lead and by seeking medical
care. Because Defendants failed timely to inform the public of the risks
to the District's water supply, the plaintiffs were denied the
opportunity to protect themselves from the risks of lead exposure.
9. The District is home to, inter alia,
a diverse and growing population of young mothers and children. It also
hosts daily numerous visitors and business commuters that consume
drinking water supplied by WASA. As announced by the Mayor, the District
is seeking to attract 100,000 new residents within the next decade, and
the Mayor is working to encourage young families to remain in the
District.
10. WASA's "top priority," as
asserted in WASA public communications, is to supply safe and pure
drinking water.
11. Encouraged in part by these public
statements, many have relocated to the District either with their family
or with the intent to start one, while others who had previously
considered leaving have remained. Moreover, businesses have also
relocated to and remained in the District, also induced, in part, by
WASA's commitment to safe drinking water. These residents and businesses
made significant investments in purchasing or renting homes or other
property in all neighborhoods of the District. Collectively, they paid
the District government millions of dollars in income, property, or
other taxes. And customers of WASA have regularly consumed, and paid
increasingly higher rates for, water that was until recently represented
to them as safe and potable by WASA.
12. Because of the extraordinarily high lead levels in
tap water reaching some taps within the District, many people and
business that had believed their filtration systems were effective at
controlling lead exposure may have been mistaken. Many types of filters
available to the general public are in fact not certified to treat lead
in water at the levels experienced in some parts of the District's water
distribution system.
13. Defendants have failed to fulfill
their most fundamental duty to District residents, visitors, and
businesspeople --- the delivery of safe, potable water. Moreover,
Defendants concealed for two years, if not longer, the potential and
actual contamination of their drinking water by lead.
14. Despite the alarming discovery in
the summer of 2002 that nearly 50% of homes sampled for lead in drinking
water tested higher than the EPA Lead Action Level of 15 parts per
billion ("ppb"), WASA never issued a public health advisory or
any other form of warning to District residents, and took no steps to
notify pregnant women and small children. WASA has also never provided
residents with an alternate, supply of potable water.
15. Indeed, even subsequent to a public
recommendation by the District's Department of Health that pregnant
women and children under the age of six (6) cease drinking unfiltered
tap water, Defendants have taken only minimal action to provide these
residents with an alternate, non-contaminated supply of drinking water.
Defendants continue to place the onus of sampling for lead in water, and
obtaining safe water, on residents. And Defendants refuse to provide
testing kits to all District residents that request them.
JURISDICTION AND VENUE
16. Plaintiff brings this action under
the District of Columbia Consumer Protection Procedures Act, D.C. Code
Ann. §28-3901 et seq. and the common law of the District, to obtain
equitable relief and to recover damages and costs of suit for injuries
sustained as a result of Defendants' violations of District law.
17. WASA is domiciled in and transacts
business in the District, and derives substantial revenues from the sale
of drinking water in the District.
18. Each of the Defendants, through
authorized agents within the scope of their authority, has caused
tortious damage by acts or omissions within the District, contracted to supply and deliver safe drinking water within the
District, and derived substantial revenue from goods used or services
rendered in the District.
THE PARTIES
19. Plaintiffs Amy Harding-Wright and
Alfonso Wright are a married couple that own a single family residence
at 1511 C Street, N.E., Washington, D.C, 20003. They are the natural
parents of Nina, a two week-old baby daughter. The family has resided at
their present address throughout Amy's pregnancy. Their residence, on
information and belief, has a lead water service line. This lead service
line connects the main water supply pipe to their home and passes under
city-owned property. Also on information and belief, the drinking water
in their home contains lead in concentrations well in excess of the
federal EPA safety standards.
20. Plaintiffs Ellen Shaw and Pranav Badhwar are a
married couple that own a single family residence at 511 Third Street,
S.E., Washington, D.C. 20003. They are the natural parents of Annika, a
four month-old baby daughter. The family resided at their present
address through the last month of Ellen's pregnancy. Also on information
and belief, the drinking water in their home contains lead in
concentrations well in excess of the federal EPA safety standards.
21. Defendant WASA describes itself as a
"semiautonomous regional entity." It has a principal place of
business at 5000 Overlook Avenue, S.W., Washington, D.C., 20032. WASA is
a regional utility that provides drinking water and wastewater
collection and treatment to more than 500,000 residential, commercial
and governmental customers in the District.
22. Defendant District is a political
subdivision of the United States having its seat at the John Wilson
Building, 1350 Pennsylvania Avenue, N.W., Washington, D.C., 20004. The
District owns the service pipes that connect Plaintiffs' homes to the
water mains and trunk lines that WASA operates. The District itself
operated and maintained the water distribution system as an agency of
the District government until 1996. Moreover, the District is a party
needed for just adjudication of this complaint because it will
necessarily be involved in the replacement of lead service lines, and
thus, pursuant to D.C. SCR-Civ. R. 19(a)(I), is a party in whose absence
complete relief cannot be accorded among those who are already parties.
Written notice of this claim was served on the Mayor of the District on
March 8, 2004, prior to the filing of this complaint.
CLASS ACTION ALLEGATIONS
23. Plaintiffs bring this case
individually on behalf of themselves and, pursuant to D.C. SCR-Civ. R.
23(b)(3), 23(b)(l)(A), and 23(b)(2), on behalf of the following Classes
(the "Classes"):
(a) a Guardian Class, consisting of all persons,
excluding Defendants and their affiliates, officers, directors, and
employees, who were or are parents or guardians of children who, at any
time while six years or younger in age drank unfiltered water from a
residential tap located with the District of Columbia containing lead in
concentrations in excess of the EPA Lead Action Level (15 ppb); and
(b) a Mother Class, consisting of all females, excluding
Defendants and their affiliates, officers, directors, and employees,
who, any time while pregnant with child drank unfiltered water from the
tap containing lead in concentrations in excess of the EPA Lead Action
Level; and (c) a Property Owner Class, consisting of all persons,
excluding Defendants and their affiliates, officers, directors, and
employees, who own an interest in improved real property that receives
drinking water from WASA that contains levels of lead that exceed the
EPA Lead Action Level.
24. Although the exact sizes of the
Classes are currently unknown to Plaintiffs, the total number of class
members could approach the tens of thousands. WASA has itself estimated
that there may be as many as 23,000 lead service lines currently in use
at residences in the District. Accordingly, each of the Classes is
sufficiently numerous such that joinder of all class members would be
impracticable.
25. The claims of plaintiffs
Harding-Wright, Wright, Badhwar and Shaw are typical of the claims of
the Guardian Class and Property Owner Class.
26. The claims of Plaintiffs
Harding-Wright and Shaw are typical of the Mother Class.
27. Plaintiffs have no conflicts of
interest with any other members of the respective Classes and will
fairly and adequately protect the interests of the other class members, including absent class members. Plaintiffs have retained
competent legal counsel with extensive experience in class action, toxic
tort and consumer protection litigation.
28. There exist numerous questions of
law and fact common to the Classes, including: (a) whether drinking
water supplied by Defendants to Plaintiffs contained concentrations of
lead potentially injurious to Plaintiffs' health; (b) whether Defendants
improperly failed to disclose the existence and prevalence of lead in
drinking water to Plaintiffs; (c) whether Plaintiffs are entitled to
injunctive relief; (d) whether Defendants improperly encouraged
Plaintiffs to continue consuming drinking water supplied to them by
Defendants, despite knowing the potential risk to human health; (e)
whether Defendants actively concealed the wrongs alleged herein; (f)
whether Defendants' acts, as alleged herein, were unfair,
unconscionable, or deceptive; (g) whether Defendants represented that
the drinking water they supplied had uses, characteristics, approvals,
or benefits that such water did not in fact have; (h) whether
Defendants' acts, as alleged herein, were committed in the conduct of
trade or commerce; (i) whether Defendants' acts, as alleged herein, have
the capacity, tendency, or likelihood of deceiving or taking advantage
of consumers; (j) whether there is an adequate remedy at law to
compensate plaintiffs for Defendants' wrongful conduct; (k) whether the
injuries sustained by Defendants are of a type or nature that would
require medical monitoring; (1) whether Defendants' conduct, as alleged
herein, was unreasonable, immoral, unscrupulous or unethical; and (m)
whether Defendants made or sanctioned alterations to the water treatment
system that exacerbated the propensity of the water to corrode lead
service lines.
29. Class action treatment of this case
is the superior, if not the only, method for the fair and efficient
adjudication of this controversy because, among other reasons, such
treatment will permit a large number of similarly situated persons and
entities to prosecute their claims without the unnecessary and
inefficient duplication of effort, evidence, and expense that numerous
individual cases would engender. The class method is the only
practicable method for many class members to achieve judicial resolution
of their claims, due to the relatively small individual claims.
30. Moreover, the piecemeal litigation of these cases by
individual members of the Classes would create a substantial risk of
inconsistent or varying adjudications that might establish incompatible
standards of conduct of Defendants.
FACTUAL BACKGROUND
THE DISTRICT'S WATER DISTRIBUTION SYSTEM
31. The District's water distribution
system has essentially two separate parts. Raw water is first obtained
from the Potomac River, stored in one of several reservoirs, and treated
by the Army Corps of Engineers, Baltimore Division, Washington Aqueduct
("the Corps" or "Aqueduct").
32. Second, WASA purchases all of this
treated water from the Aqueduct and delivers it as drinking water
throughout the District by means of a system of water mains and pipes.
To distribute water and support the distribution system, WASA operates
and maintains nearly 1,300 miles of water pipes, five pumping stations,
five reservoirs, four elevated water storage tanks, 36,000 valves, and
8,700 hydrants. WASA's service area covers approximately 725 miles, and it has an enforced monopoly over the
delivery and provision of potable water through the municipal water
supply system to the residents of the District.
33. In addition, the District now has
authority over, and was historically responsible for, laying many of the
mains and service pipes that connect Plaintiffs' homes to the water
system. Many of the pipes in the system are old and may contain lead in
solder, joints and other construction materials. On information and
belief, the District either directed or condoned the use of lead in pipe
and water main joints throughout the system prior to 1970.
34. From 1938 to 1996, the District's
Water and Sewer Utility Administration was part of the District
Government. In 1996, as authorized by Act of Congress, the District
Government created WASA, a semi-autonomous regional entity. Since that
time, WASA has functioned as a "semiautonomous" water and
sewer authority in the District. It has the exclusive franchise for
delivery of potable water to the residents and businesses of the
District.
35. By District statute, "The
Mayor... shall have the power to lay water mains and water pipes ...
wherever the same may be in his judgment necessary for the public
safety, comfort, or health." D.C. Code § 34-2401.01. "The
Mayor ... is authorized and directed, whenever in his judgment the same
may be necessary for the public safety, health, comfort, or convenience,
to construct water mains and service sewers in any street, avenue, road,
or alley in the District []" Id. § 34-2405.01. The Mayor, with the
advice and consent of the District Council, also has the power to
appoint or fire (for misconduct, neglect of duty, or other good cause)
up to 6 members of WASA's 11-member Board of Directors. Id. §
34-2202.04.
36. On information and belief, at least 23,000 of the
residences served by WASA in the District are connected to the municipal
water supply pipelines by lead service lines.
37. Plaintiffs' residences are typical
of those of those inhabited by members of the Classes. Their homes are
connected to the city-wide potable water distribution system by means of
a service pipe (the "Service"), which may be constructed out
of a variety of substances, depending on the age of the Service. Common
substances include lead (in older residences), copper or galvanized
steel. The Service typically, although not necessarily in every
instance, runs from the outside wall of the residence, through the front
yard of the residence it serves, and connects with the water main or
trunk line located beneath the sidewalk or street in front of the
residence.
38. In the typical case, at least a
portion of the front yard is owned by the District, and the Service
travels beneath or through city-owned property.
39. By law, WASA is responsible for the repair and
maintenance of the pipes and conveyances by which such drinking water is
delivered to residences in the District. WASA shares this responsibility
with the Government of the District.
40. Despite their assertions that
consumers of water are responsible for the quality of the water they
drink, once it crosses onto private property, WASA and the District are
responsible for the delivery of safe and drinkable water all the way to
the consumers' taps. As described below, the drinking water provided by
WASA to consumers is unduly corrosive, beyond what might reasonably and customarily be expected
to be provided by a public water system exercising due care.
41. WASA has made it clear that
replacement efforts will necessarily involve the District's Department
of Transportation ("DDOT"). Through its website, NASA states
that it will replace lead service lines "in coordination with the
DDOT road construction contracts." WASA's website expressly states
that "though DC WASA coordinates and plans this work in conjunction
with DDOT, DC WASA has no direct control over the scheduling of this
work." Thus, Defendants are collectively responsible for the
scheduling of lead Service line replacement, a schedule that is
improperly influenced by the convenience of the District's Department of
Transportation, rather than being exclusively determined by public
health considerations.
CONTRACTUAL RELATIONSHIP BETWEEN WASA AND PLAINTIFFS
42. WASA sends a monthly invoice to each
homeowner connected to the water supply system. The invoice itemizes,
among other things, a charge for the monthly cubic feet of water
consumed by the household. The number of cubic feet of water consumed by
a home are determined by virtue of an individual water meter, placed at
the point of interconnection between the Service and the water main or
trunk line.
43. Within the last year, WASA implemented a water meter
modernization program that permits WASA to read the meters via wireless
device which, on information and belief, was intended to permit a more
accurate measure of consumption. The new meters were, on information and
belief, roundly criticized for causing the monthly water bills for most residences to escalate dramatically. Moreover, WASA
imposed on consumers a monthly metering fee of approximately $2 per
meter to pay for the costs of installing and maintaining the new
electronic meters.
44. On information and belief, NASA will
cut off water service to any customer who fails to pay the invoice, in
full, for a period of consecutive months.
45. On information and belief, WASA has
recently requested a 5 percent increase in the rates it charges to
customers for drinking water. WASA has informed its customers that this
would result in an average increase of $1.83 for each customer's monthly
bill, and would take effect, if approved, in October 2004.
46. The WASA monthly invoice to
consumers contains an itemized "DC Government Right of Way
Fee" of $0.36 per cubic foot. This fee is assessed by the District
Government and passed through to drinking water customers by WASA. The
District Government thus levies and collects a user-fee from consumers
that is based on the monthly consumption of potable water.
47. At times relevant to this complaint,
WASA explicitly and implicitly warranted that the water it sells to
Plaintiffs is of a quality that is f t for human consumption without
further treatment or filtration by the consumer. WASA has stated
publicly on many occasions that its "highest priority" is
providing safe and clean drinking water to the residents of the
District.
THE EPA LEAD AND COPPER RULE
48. In 1991, EPA issued regulations that
require municipal water systems to test drinking water for lead. These
regulations, known as the "Lead and Copper Rules," require
public water systems to conduct sampling of drinking water at customer's
residential taps, as opposed to the entry point of the water
distribution system. The rule was based on the premise that lead and
copper in drinking water are primarily caused by the corrosion of
distribution pipes and plumbing fixtures. Hence, sampling at the tap was
believed to be a better method to accurately characterize lead and
copper in drinking water consumed by the public.
49. EPA has not set a maximum
contaminant level for lead in public drinking water. The agency has
instead adopted a "Lead Action Level" of 0.015.mg/l (or 15
ppb). EPA set this Lead Action Level based on data showing that
prolonged exposure to lead in drinking water at this level correlates to
blood lead levels in infants, small children, and adults of 10-15 g/dL -
a blood level determined to pose a significant risk of adverse health
effects.
50. Pursuant to EPA's Lead and Copper
Rule, affected water systems are required to conduct random sampling of
the taps in the system, and if the 90th percentile level
(equivalent to 10 percent of samples collected) exceeds this Lead Action
Level, further remedial steps must be undertaken, as follows:
(a) Begin corrosion control treatment
steps which include water quality parameter (" WQP")
monitoring during the same monitoring period in which the exceedance
occurs;
(b) Conduct source water monitoring
within 6 months of the exceedance and install source water treatment, if
needed;
(c) Deliver public education within 60
days of the exceedance that informs users about the health effects of
lead and measures that will reduce their exposure to lead; and
(d) Replace lead service lines on an ongoing basis if the
system still exceeds the Lead Action Level after installing corrosion
control and/or source water treatment measures.
51. Regardless of whether an affected water system
triggers the Lead Action Level of 15 ppb, the Rule also sets forth
criteria by which affected water systems would have to determine whether
they must implement corrosion control measures.
52. If an affected water system, such as
WASA, exceeds the Lead Action Level, the rule requires that the water
system immediately provide public education to inform them of the
problem, the adverse health effects of lead, the measures being
undertaken to correct the problem, and what they can do to minimize
their exposure to lead. The rule provides that, within 60 days of
exceeding the lead action level (either for the first time or again,
after having had monitoring periods below the action level), the system
must:
(a) Insert notices in each customer's
bill;
(b) Deliver pamphlets and/or brochures
that contain the public education materials to facilities and
organizations that provide services to pregnant women and children;
(c) Submit information to the editorial
departments of the major daily and weekly newspapers circulated
throughout the community; and
(d) Deliver public service announcements
("PSAs") to radio and television stations.
1994-2000: WASA's USE OF LIME AND THE SWITCH TO
CHLORAMINE DISINFECTION
53. On information and belief, in 1994;
the Corps (which operates the Washington Aqueduct) hired a private
consultant, ECG Inc. ("ECG"), an environmental consultancy
firm, to conduct water chemistry tests at two treatment plants serving
the District: Dalecarlia on MacArthur Boulevard and McMillan near Howard
University. On information and belief, ECG conducted this study pursuant
to the Lead and Copper Rules, and was instructed to examine optimal
methods for reducing corrosion in the water distribution system.
54. On information and belief, among the
corrosion control methods reviewed by ECG was the addition of lime,
believed to raise water pH and to reduce corrosion, and the addition of
zinc orthophosphate, which also was believed to be effective at reducing
galvanic corrosion of lead pipes and lead solder. On information and
belief, the ECG study found that lime was "consistently worse"
in curbing lead corrosion than zinc orthophosphate. On information and belief, using a scoring range of 0 to 7 -
with 7 the best - ECG found that lime scored 3 and zinc orthophosphate
scored 6.
55. On information and belief, the Corps
and WASA rejected the use of zinc orthophosphate because, among other
reasons, it was more expensive than lime. On information and belief, the
use of zinc orthophosphate would have cost WASA approximately $870,000
per year. On information and belief, the Corps and WASA collaborated on
reaching this decision, and have jointly used lime instead of zinc
orthophosphate for water treatment since approximately 1995.
56. In November 2000, the Corps and WASA
implemented a second change in the water treatment system, by switching
from using chlorine to disinfect river water at the aqueduct to using
chloramines, a combination of chlorine and ammonia.
57. On information and belief, WASA and
the Corps did not follow EPA's written guidelines, which warn that a
significant change in disinfection treatment could increase lead
corrosion and thereby require alterations to the existing
corrosion-control program. The EPA had previously recommended, in
written guidance, that utilities carefully monitor the possible effects
of chloramines, especially when used in older public water systems
(which typically contain larger numbers of lead pipe susceptible to
corrosion).
58. The American Water Works Association
Research Foundation, the scientific division of the public drinking
water trade group and an entity widely known to publish expert and scholarly articles in this field, had also
previously noted in a survey in 1999 showing that chloramines appeared
to increase corrosion.
59. Neither WASA, nor the Corps
conducted further studies on corrosion following the change-over to
chloramines.
2001: WASA DETECTS EXCEEDANCES O LEAD ACTION LEVEL
60. As reported in WASA's "Year
2001 Water Quality Report," during the Summer of 2001, WASA took 50
drinking water samples, four of which (for a total of 8 percent)
exceeded the Lead Action Level of 15 ppb. WASA reported these findings
in a line item of the report, along with a mild disclosure about the
possibility of lead in drinking water.
61. Had the sampling detected that 10
percent or more of the samples exceeded the EPA Lead Action Level, WASA
would have been required to embark on the comprehensive lead remediation
program required by the Rule, which includes taking immediate, specific
steps to inform and educate the public. On information and belief, WASA
determined that only 8 percent of the samples exceeded the Lead Action
Level, and not 10 percent or more, because it had
"invalidated" three positive (that is, samples exceeding 15
ppb) test results and thereby removed them from the calculation. On
information and belief, as testified to by EPA before a recent
Congressional hearing, this action was not authorized by EPA.
SUMMER 2002: WASA DETECTS EXCEEDANCES IN 50% OF D.C.
HOMES
62. WASA reported in its "Year 2002
Water Quality Report" that, during the summer of 2002, WASA took 53
drinking water samples, 26 of which exceeded the Lead Action Level of 15
ppb. WASA did not notify the public notices of these findings, nor of
measures the public could take to protect itself, despite being required
to do so under EPA rules. Rather, it buried the disclosure regarding
lead in drinking water in three or four lines of the seven page report.
63. On page 3 of the report, where WASA
discusses the Lead and Copper Monitoring Program in general, it mentions
almost in passing that "[d]uring 2002, concentrations found in
these sampling programs exceeded EPA's action level based on analysis of
53 samples collected with the assistance of customers. WASA has embarked
on remedial programs to meet EPA's requirements. Infants, young children
and pregnant women tend to be more vulnerable than the general
public." The report did not disclose that more than half of the 53
samples taken contained lead that exceeded the EPA Lead Action Level;
neither did it state that these "vulnerable" populations had
been informed that they should avoid consumption of tap water provided
by WASA. Rather, it mildly recommended consumption of drinking water be
from the cold water tap, instead of the hot water tap, and that the
customer "run the cold water for a few minutes before drinking
it."
64. The impact of even these mild
cautions was completely diluted by the letter from WASA General Manager
Jerry Johnson, reprinted on the front cover of the Year 2002 Annual
Report, in which Mr. Johnson informed consumers, "We are 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." If not demonstrably false as a consequence of the
lead testing results, this statement was at very least misleading to
consumers, and likely dissuaded them from reading the lead test results
buried in the report.
65. On information and belief, WASA's
water quality manager in the summer of 2002, Seema Bhat, urged a change
to a less corrosive water treatment plan to address the lead exceedances.
On information and belief, Bhat tried to persuade WASA officials to
arrange a seminar with a phosphate company in October 2002. On
information and belief, no top WASA officials attended the seminar.
66. On information and belief, Bhat was
fired by WASA for insubordination. On information and belief, Bhat has
received whistleblower status and is suing WASA for wrongful
termination.
67. On information and belief, SDWA
public notice requirements were not followed within 60 days of WASA's
discovery that more than 50% of the homes tested had lead levels
exceeding the Lead Action Limit. Indeed, WASA made little attempt to
publicize the discovery of lead in the drinking water system until
literally forced to do so in February 2004, as a result of press
coverage of the issue.
68. Rather than discouraging residents, even pregnant
women, from drinking tap water, WASA did the opposite - by actually
encouraging increased consumption of WASA water. For example, WASA's
"On Tap" newsletter, mailed to each customer along with their monthly bill, has included recipes featuring unfiltered
WASA tap water since at least the Winter of 2002. In the Winter 2002
issue, for example, which appeared a few months after WASA had
determined a 50% failure rate among homes tested, WASA included a recipe
for "cranberry tea," which included as a main ingredient
"6 cups boiling WASA water."
SUMMER 2003: TESTS CONFIRM WIDESPREAD LEAD IN TAP WATER
69. During the summer of 2003, WASA
expanded its lead sampling program and found alarming results. Of the
6,118 tests WASA conducted during the summer of 2003, more than 4,000
came back with lead levels above the Lead Action Level. Of these 4,000
homes, on information and belief, 157 homes had water with lead levels
of more than 300 parts per billion, a toxic content so high that it has
astounded water quality experts.
70. On information and belief, WASA did not implement an
immediate notification program. Rather, WASA tried to sweep the problem
under the rug, adopting a continued testing program and opting to
replace the minimum number of Services possible.
71. For example, WASA's FY2003-FY2012
Capital Improvement Program, published on October 16, 2003, discloses
that although EPA's Lead and Copper Rule requires a minimum replacement
of approximately 1,600 Lead Service lines annually (7% of 23,000
estimated Lead Service lines in the system), "WASH can meet the
replacement requirement either through physical replacement or
additional testing, and we have developed a plan to replace up to 600
service lines and to test additional service lines." (Emphasis
added.) Thus, WASA has stated that it will replace at most 600 service
lines, one third of the minimum required amount.
COMPLAINT
-23
72. Moreover, WASA has stated on its
website that it must coordinate lead service line replacement operations
in conduction with transportation projects planned by the District. It
thus cannot prioritize replacing the lines with the highest lead content
in drinking water at least in part because the District has decided that
road paving schedules are more important.
WINTER 2004: FIRST PRESS REPORTS OF LEAD IN WATER
73. WASA did not take action to provide
widespread disclosure of the lead level results it had collected during
the summer of 2003. In December 2003, WASA held a public meeting about
the lead problem, but its advertisements for the meeting did not
disclose that the meeting was to concern the lead problem. Instead,
advertisements for the meeting simply stated that purpose of the meeting
was to discuss WASA's Safe Drinking Water Act projects.
74. In January and February 2004, the local press first
began to report on the issue in January and February 2004. Spurred by
increasing public pressure, WASA held a series of public meetings in
early February 2004, at which WASA officials began to reveal the extent
of the problem and suggest that they were contemplating remedial
options.
75. On February 25, 2004, the District
of Columbia Department of Health 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 and have their blood
tested. WASA has said that it will likely distribute free Brita® water
filters to such households if the District of Columbia Department of
Health determines that it is appropriate. Such filters are not certified by Brita to remove a particular percentage of
lead when levels present in the water exceed 150 ppb. Thus, the filters
will not be adequate to control the levels of lead in a large number of
homes. Such distribution of Brita filters s therefore not equivalent to
providing a clean, alternative supply of drinking water and a wholly
inadequate response to the public health risk. Moreover, Defendants have
not offered to supply filter cartridges for these Brita filters at no
cost to affected homes, which will be forced to purchase new cartridges
on a schedule of once every two months.
76. To this day, Defendants have yet to
propose even an interim remedial plan. WASA has largely relied on
customers in homes with lead service lines to ask for lead test kits and
conduct self tests, rather than proactively to send its representatives
to sample the homes.
77. Moreover, on information and belief, WASA has refused
to provide test kits to homes that WASA believes (based on its
admittedly unverified estimate of lead Service locations) do not have
lead Service lines. As a Question and Answer of WASA's website states:
Q: How does lead get into drinking water?
A: Lead contamination generally occurs from corrosion of lead service pipes that connect homes and buildings to
public water mains under the streets or from corrosion of pipes in the home's plumbing system?. Even in homes not
served by a lead service line, corrosive water may leach lead from lead pipes, lead solder and brass fixtures in
the home plumbing system.
***
Q: What is WASA doing to address the elevated levels of
lead that have been detected in some District homes?
A: WASA has
replaced over 500 lead service pipes and is identifying others for
replacement. If WASA's records show that a house is connected to the
water main by a lead service pipe, WASA will provide a free kit that
residents can use to test their tap water for high levels of lead. WASA
will pick up the kit, analyze it for free and notify residents of the
results within 30 days.
78. In other words, WASA promises only
to test homes that are believed by it to have lead service lines,
despite its admission that lead leaching can occur in homes without lead service lines.
79. WASA has stated that it will conduct
experimental anti-corrosion tests, using zinc phosphate, in certain
areas of Northwest Washington. But, it has also admitted that it has yet to develop a plan for prioritizing lead service
replacements. WASA has yet to provide bottled water to any District
residents affected by the lead in water crisis. The District is distributing Brita water filters, in spite of their
potential inadequacy at treating the lead, only to those people who
travel to one of the two current central distribution centers, and is
not delivering the filters door-to-door.
HARM TO PLAINTIFFS
80. Plaintiffs Amy Harding-Wright and
Alfonso Wright live in a home which, on information and belief, has a
lead water service line that connects from the main water supply pipe,
passes under city-owned property, and into their home. Prior to learning
of the possibility of lead in her home's tap water in mid-February 2004,
Plaintiff Harding-Wright consumed unfiltered water from water taps
within her home while pregnant with her daughter, Nina.
81. Plaintiffs Harding Wright and Wright
first learned of the potential for lead contamination of the potable
water when they received results of WASA-sponsored sampling of their
home's water by letter dated January 30, 2004. That letter reported
"first draw" lead sampling results of 187 ppb, and
"second draw" sampling results of 435 ppb. Despite these
alarming results, WASA representatives never personally contacted them
to warn them of the potential hazards of drinking water with such high
concentrations of lead. Indeed, they did not fully understand the
significance of these results until they saw local news media broadcast
reports regarding the lead crisis, roughly two weeks later.
82. Thus, because Plaintiffs Wright and
Harding-Wright were for a time unaware of the potential for lead
contamination, they took actions that unwittingly exposed their unborn
daughter to lead in excess of federal EPA safety limits. In addition,
the resale value of their home has been adversely affected by virtue of
the test results, which must, if not remediated, be reported to
potential buyers. They have been forced to purchase water filters to
treat contaminated water in their home before drinking it.
83. Plaintiffs Ellen Shaw and Pranav
Badhwar live in a house which, on information and belief, has a lead
water service line that connects from the main water supply pipe, passes
under city-owned property, and into their home. Prior to learning of the
possibility of lead in her home's tap water in mid-February 2004,
Plaintiff Shaw consumed unfiltered water from water taps within her home
while pregnant with her daughter Annika.
84. Plaintiffs Shaw and Badhwar first
learned of the potential for lead contamination of the potable water
delivered into her home by WASA on or about February 12, 2004, when the
local news media broadcast reports of the lead crisis. Recent tests of
the tap water in their home revealed the presence of lead on first draw
of 60 ppb, and second draw of 310 ppb.
85. Because Plaintiffs Shaw and Badhwar
were for a time unaware of the potential for lead contamination, they
took actions that unwittingly exposed their unborn daughter to lead in
excess of federal EPA safety limits. In addition, the resale value of
their home has been adversely affected by virtue of the test results,
which must, if not remediated, be reported to potential buyers. They
have been forced to purchase water filters to treat contaminated water
in their home before drinking it.
86. The presence of increased lead in
plaintiffs' drinking water has led, and may lead, to physical injuries.
While the extent of these injuries may be difficult to ascertain at
present, the Mother Class is at substantially higher risk of passing (or
having passed during recent pregnancies) lead to their unborn children,
exposing those children to a substantially higher risk of developmental
disabilities, brain damage, and kidney damage; children of members of the Guardian Class have similarly been exposed
to lead that leaves them with a higher risk of these disorders.
87. Plaintiffs in all Classes have
suffered pecuniary harm. Particularly, plaintiffs have been harmed
through their purchase of water that was unfit for consumption, through
their purchases of alternative sources of drinking water and/or water
filtering systems, and as a result of their need for medical monitoring
and care.
88. Plaintiffs in the Property Owner
Class have suffered a diminution in the value of their real property
relative to property owners both within and outside the District whose
drinking water supply is uncontaminated.
CAUSES OF ACTION
FIRST CAUSE OF ACTION: NEGLIGENCE AND RECKLESS
ENDANGERMENT(DC WASA AND DC GOVERNMENT)
89. Plaintiffs repeat and reallege the
allegations of paragraphs 1 through 88 as if fully set forth herein.
90. Each of the Defendants owes a duty of care to the
plaintiffs herein. Specifically, each Defendant owed a duty to each
plaintiff to, inter alia:
(a) ensure that the water they deliver
to plaintiffs is free of contaminants and will not cause injury as a
result of its consumption;
(b) provide timely and accurate
information to plaintiffs concerning the known or potential presence of
contaminants in the drinking water they deliver to plaintiffs, or the risk of injury
resulting from consumption of that water.
91. Each of the Defendants breached its
duty to plaintiffs. Specifically, each of the Defendants, inter alia:
(a) knowingly delivered water to
plaintiffs that was contaminated with lead;
(b) withheld information from plaintiffs
concerning the presence of lead in the drinking water they delivered to
plaintiffs, effectively preventing plaintiffs from investigating or
obtaining alternative sources of uncontaminated drinking water.
92. Defendants' breaches of their duty
of care to plaintiffs are the proximate cause of injuries to plaintiffs'
persons and property. Plaintiffs' injuries, while not fully measurable
at present, include, but are not limited to, the following:
(a) children of parents who are members of the Guardian
Class are at risk for developmental and neurological deficiencies and
illnesses that are associated with exposure to lead;
(b) members of the Mother Class are at
risk of passing elevated lead levels to their unborn children, creating
an increased risk of birth defects and the developmental and neurological deficiencies and
illnesses that are associated with exposure to lead;
(c) members of all Classes have been injured in an amount
equal to their expenses incurred investigating and procuring
alternative supplies of uncontaminated drinking water; and
(d) members of the Guardian Class have
been damaged in an amount equal to their expenses incurred as a result
of the need for increased medical monitoring and surveillance as a
result of their childrens' exposure to dangerous levels of lead;
(e) members of the Mother Class have been damaged in an
amount equal to their expenses incurred as a result of the need
for increased medical monitoring and surveillance as a result of their
and their unborn childrens' exposure to dangerous levels of lead;
(f) members of the Property Owner Class have been damaged in
an amount equal to the diminution of the value of their real
property.
93. As a result of the foregoing
conduct, each of the Defendants is liable, jointly and severally, for damages in an amount to be
proven at trial.
SECOND CAUSE OF ACTION: NEGLIGENCE PER SE
(DC WASA AND DC GOVERNMENT)
94. Plaintiffs repeat and reallege the
allegations of paragraphs I through 93 as if fully set forth herein.
95. Regulations promulgated by the
United States Environmental Protection Agency ("EPA")
establish a "Lead Action Level" of fifteen (15) parts per
billion (ppb) for drinking water, (40 C.F.R. § 141.80.)
96. The water delivered by Defendants to
plaintiffs contains lead at a level far exceeding the Lead Action Level
established by EPA. In some cases, tests of plaintiffs' drinking water
has revealed lead concentrations exceeding 300 ppb, or twenty times the
Lead Action Level.
97. The EPA regulations establishing the
Lead Action Level were promulgated under the authority of the Safe
Drinking Water Act, a statute whose purpose is to protect the public
from injury resulting from impure or contaminated drinking water.
Accordingly, the regulations establishing the Lead Action Level were
promulgated for the purpose of promoting public safety generally and
protecting persons similarly situated with plaintiffs specifically.
98. Defendants' delivery of drinking
water containing levels exceeding the Lead Action Level constitutes
negligence per se.
99. As a result of the foregoing
conduct, each of the Defendants is liable, jointly and severally, for
damages in an amount to be proven at trial.
THIRD CAUSE OF ACTION: UNFAIR OR DECEPTIVE TRADE
PRACTICES
(DC WASA)
100. Plaintiffs repeat and reallege the allegations of
paragraphs 1 through 99 as if fully set forth herein.
101. WASA's behavior as alleged in this Complaint is
unfair, deceptive, unreasonable, unethical, and offensive to public
policy. Defendants intentionally, negligently, willfully and recklessly
induced plaintiffs to purchase and consume WASA water, despite WASA's
knowledge that such water had a high likelihood of containing lead at
levels potentially injurious to their health.
102. At all times relevant hereto, WASA has been engaged
in business and commerce in the District of Columbia.
103. WASA marketed 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 employed
advertising themes and promotion designed to encourage public trust in
its product, with the goal of increasing the public's consumption of
that product. Such marketing messages had the tendency to, and did in
fact, deceive members of the plaintiff Classes.
104. WASA thus promoted its water as having
characteristics that it did not in reality have. Its conduct as alleged
herein constitutes unfair, deceptive, and unconscionable trade
practices.
105. As a proximate result of WASA's conduct as alleged
herein, the plaintiff Classes have been personally injured. The injuries
suffered by the plaintiff Classes as a result of WASA's conduct were
substantial and not reasonably avoidable by consumers.
106. WASA's acts, practices, and omissions as alleged in
this Complaint violate the District of Columbia Consumer Protection
Procedures Act, D.C. Code Ann. §28-3901, et seq.
FOURTH CAUSE OF ACTION: BREACH OF CONTRACT
(DC WASA)
107. Plaintiffs repeat and reallege the allegations of
paragraphs 1 through 106 as if fully set forth herein.
108. At the time they established residential water
service with WASA, plaintiffs entered into a binding contract with WASA
(each, a "Water Contract") whereupon (a) WASA agreed to
provide water to plaintiffs that was suitable for human consumption and
free of contaminants such as lead, and (b) plaintiffs agreed to pay for
all water provided by WASA in accordance with WASA's published rates.
109. The Water Contracts entered into between plaintiffs
and WASA were supported by valuable and mutual consideration.
110. Plaintiffs performed their
obligations under their respective Water Contracts.
111. Each delivery of water by WASA to plaintiffs that
contained lead at levels exceeding the Lead Action Level constituted a
non-conforming delivery of goods under each Water Contract in that it
contained levels of lead that rendered it unsuitable for human
consumption.
112. By delivering water containing excessive levels of
lead to plaintiffs, WASA breached each of the Water Contracts it had
entered into with plaintiffs.
113. WASA's breach of the Water Contracts it entered into
with plaintiffs caused injury to plaintiffs in that plaintiffs were
required to pay for water that, by virtue of its being unfit for the
purpose for which it was purchased (human consumption), was valueless.
114. As a result of WASA's breach of contract, plaintiffs
have been damaged in amount equal to all monies they paid WASA for the
water they purchased between the date WASA's remediation obligations
under the Lead and Copper Rule were triggered and the present.
FIFTH CAUSE OF ACTION: UNJUST ENRICHMENT
(DC WASA)
115. Plaintiffs repeat and reallege the
allegations of paragraphs I through 114 as if fully set forth herein.
116. Plaintiffs' purchase of water from WASA created a
quasi-contractual obligation on the part of WASA to, inter alia, provide
water that was free of contaminants and fit for human consumption.
117. WASA's failure to, inter alia, provide plaintiffs
with water that was fit for human consumption and free of contaminants
resulted in WASA's being unjustly enriched in an amount equal to all
amounts paid to them by plaintiffs between the date WASA's remediation
obligations under the Lead and Copper Rule were triggered and the
present.
SEVENTH CAUSE OF ACTION: INJUNCTION
(DC WASA AND DC GOVERNMENT)
118. Plaintiffs repeat and reallege the allegations of
paragraphs 1 through 117 as if fully set forth herein.
119. WASA and the District have engaged in conduct that
has caused, and continues to cause substantial injury to the plaintiff
Classes. This injury is not adequately remedied by the payment of money
damages.
120. The prosecution of this lawsuit is strongly in the
public interest for reasons including: (a) WASA's and the District's
actions as alleged herein violate specific, legislative, regulatory and
judicial declarations of public interest; and (b) WASA's and the
District's acts and practices as alleged herein constitute part of a
pattern or general course of conduct that has a substantial likelihood
of repetition.
EIGHTH CAUSE OF ACTION: DECLARATORY JUDGMENT
(DC GOVERNMENT)
121. Plaintiffs repeat and reallege the allegations of
paragraphs 1 through 120 as if fully set forth herein.
122. In accordance with D.C. SCR-Civ. R. 57, plaintiffs
seek a declaratory judgment that the lead contamination and resulting
injuries and threatened injuries to the plaintiff Classes have created a
"public emergency" as defined by D.C. Code Ann. §
7-2301(3)(H).
123. WASH and the District have engaged in conduct that
has caused, and continues to cause substantial injury to the plaintiff
Classes. This injury is not adequately remedied by the payment of money
damages.
124. A declaratory judgment that such a "public
emergency" exists will allow the Mayor of the District of Columbia
to issue orders necessary for the immediate preservation of the public
peace, health, safety, or welfare of the plaintiff Classes, pursuant to
D.C. Code Ann. § 7-2304(a).
125. WASA and the District's actions alleged herein
violate specific, legislative, regulatory and judicial declarations of
public interest. These violations and the resulting injury to the
plaintiff Classes represent an actual case or controversy between
parties having adverse legal interests, of sufficient immediacy and
reality to warrant the issuance of a declaratory judgment.
PRAYER FOR RELIEF
For the reasons stated herein, plaintiffs respectfully
pray for judgment against WASA and the District of Columbia and request
that this Court:
1. Certify this case to proceed as a
class action pursuant to D.C. SCR-Civ. R. 23(b)(2), 23(b)(l)(a) and
23(b)(2), on behalf of the following Classes:
(a) Guardian Class, consisting of all
persons, excluding Defendants and their affiliates, officers, directors,
and employees, who were or are parents or guardians of children who, at
any time while six years or younger in age drank unfiltered water from a
residential tap located with the District of Columbia containing lead in
concentrations in excess of the EPA Action Level; and
(b) a Mother Class, consisting of all
females, excluding Defendants and their affiliates, officers, directors,
and employees, who, any time while pregnant with child drank unfiltered
water from the tap containing lead in concentrations in excess of the
EPA Action Level; and
(c) a Property Owner Class, consisting
of all persons, excluding Defendants and their affiliates, officers,
directors, and employees, who own an interest in improved real property
that receives drinking water from WASA that contains levels of lead that
exceed the EPA Lead Action Level;
2. Declare that the conduct alleged
herein constitutes negligence and/or negligence per se by WASA and the
District and order Defendants to pay damages to plaintiffs in an amount
adequate to compensate for economic losses attributable to the conduct;
3. Declare that the conduct alleged
herein constituted an unlawful and deceptive scheme to market WASA water
to consumers, despite the fact that such water did not conform to
federal standards for lead content in water;
4. Declare that the conduct alleged
herein resulted in the unjust enrichment of WASA and order that WASA
disgorge to plaintiffs and the Classes all amounts by which they have
been unjustly enriched, plus costs and interest;
5. Declare that the conduct alleged
herein resulted in WASA's breach of their contract with each consumer to
have received water exceeding EPA's Lead Action Limit in water and order
that WASA pay damages to plaintiffs and the Classes damages as a
consequence of those breaches;
6. Declare that the lead contamination
and resulting injuries and threatened injuries to the plaintiff Classes
have created a "public emergency."
7. Order WASA and the District of
Columbia Government to take immediate action to provide a drinking water
supply to plaintiffs and the Classes that does not pose a substantial
risk of causing injury to their health.
8. Assess WASA for all actual damages
sustained by the Plaintiff Classes, plus treble damages of 51,500 per
violation, whichever is greater, punitive damages, and attorneys fees,
costs of suit and interest; and
9. Grant such other and further relief
as the Court deems proper and appropriate under the circumstances.
Dated: March 7, 2004
By: Charles A. Patrizia (D.C. Bar No. 228999)
Christopher A. Cole (D.C. Bar No. 443206)
James E. Berger (D,C. Bar No.481408)
Roberta R. Barkman (D.C. Bar No. 459268)
Alexander W.
Koff (DC Bar No. 456218)
Paul, Hastings, Janofsky & Walker LLP
Tenth Floor
1299 Pennsylvania Avenue, N.W.
Washington, DC 20004-2400
Telephone: (202) 508-9500
Counsel for Plaintiffs
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Paul, Hastings, Janofsky & Walker LLP
1299 Pennsylvania Avenue, NW, 10th Floor, Washington, DC
20004-2400
telephone 202-508-95001 facsimile 202-508-97001 internet www.paulhastings.com
(202) 508-9547
christophercole@paulhastings.com
March 5, 2004
VIA CERTIFIED MAIL
John Ashcroft, Attorney General
U.S. Department of Justice
5111 Main Justice Bldg.
10th and Constitution Ave., N.W.
Washington, D.C. 20530
Michael O. Leavitt, Administrator
U.S. Environmental
Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Colonel Robert J. Davis, Commander,
U.S. Army Corps of Engineers, Baltimore District
10 South
Howard Street
Baltimore, MD 21201 |
Glenn S. Gerstell, Chairman
Jerry N. Johnson, General Manager
District of Columbia Water and Sewer Authority
5000
Overlook Avenue, S.W.
Washington, D.C. 20032
Thomas P. Jacobus
Chief, Washington Aqueduct
5900 MacArthur Boulevard,
N.W.
Washington, D.C. 20016-2514
Hon. Anthony A. Williams
Mayor
District of Columbia
John A. Wilson Bldg.
1350 Pennsylvania Ave., N.W.
Washington, D.C. 20004 |
RE: 60 Day Notice Of Intent To Sue Under The Safe
Drinking Water Act (42 U.S.C. 300f, et seq.).
Dear Sirs:
This firm represents Hill East, Inc.,1 Amy Harding-Wright
and Alfonso Wright,2 and Pranav Badhwar and Ellen Shaw3 (the
"Complainants"). On behalf of Complainants, we hereby give
notice that, 60-days from the date of this letter, Complainants intend
to file suit against the District of Columbia Sewer and Water
Authority ("WASA"), the U.S. Army Corps of Engineers,
("Corps', and the U.S. Environmental Protection Agency
("EPA") under the Safe Drinking Water Act ("SDWA")
(42 U.S.C. 300j-8(a)(1) and (2)) over the failure of EPA to enforce, and
WASA and the Corps to comply with, regulations regarding lead-in-water
that have been duly promulgated by EPA pursuant to the SDWA.
Water testing data made public very recently by WASA, the
Corps and EPA make clear that the District of Columbia drinking water
system is experiencing unprecedented system-wide exceedances of EPA's
Lead Action Level of 15 ppb. Data gathered by WASA within the last 12
months show that roughly two-thirds of District of Columbia homes tested
by WASA have lead in tap water exceeding EPA's Lead Action Level. More
recent data demonstrate a significant number of homes, including many on
Capitol Hill, have levels that are more than ten times the Lead Action
Level.
It is apparent, moreover, that WASA, the Corps and EPA
have been aware of this potential since at least the summer of 2002,
when WASA testing first found that nearly 50% of homes it tested
exceeded EPA's Lead Action Level. This discovery should have triggered
immediate, mandatory remediation under the SDWA. EPA regulations
required that WASA begin replacing a minimum of 7% of lead service lines
per year (or roughly 1,600 lines per year of the 22,000 estimated
service lines in the city). WASA instead adopted (with apparent
acquiescence by EPA) a non-compliant program of continued water testing,
coupled with a minimal level of replacement of lead service lines. As
reported in WASA's own Capital Improvement Program budget for
FY2003-2012, EPA authorized WASA to replace only up to 600 service lines
per year, less than one-third of the applicable minimum requirement.
To this day, despite the undisputed, widespread
contamination of the public drinking water supply, and the issuance of a
public health advisory by the District of Columbia Department of-Health
instructing pregnant women and shall children-to stop drinking
unfiltered tap water, neither the Corps or WASA have provided
alternative sources of potable water to the vast majority of affected
residences. To this day, with EPA's approval, WASA and the Corps
continue to propose a slow, phased plan of lead service removal, coupled
with a slow, phased plan of water treatment changes, which will not
result in the delivery of safe, potable water to D.C. residents in an
expedient manner.
We hereby demand, among other measures outlined below,
that EPA invoke its emergency powers under Section 300i of the SDWA, 42
U.S.C. 53001, to declare an imminent and substantial endangerment to
public health, and to take immediate measures to protect the residents
of the District of Columbia. We demand that WASA and the Corps be
required to provide alternative potable water supplies to those homes
determined to be actually or potentially affected by lead in drinking
water in excess of the EPA Lead Action Level. We demand WASA and the
Corps be required to implement a program that will achieve full
compliance with the SDWA lead requirements not in years, but months.
A. Applicable Requirements Of The Safe Drinking Water
Act.
Under the SDWA, EPA has established National Primary
Drinking Water Standards ("NPDWS") that are enforced by EPA
through the Public Water System Supervision Program. The SDWA requires
that public water systems throughout the nation, including WASA and the
Corps, install and operate optimal corrosion control treatment, which is
defined as "corrosion control treatment that minimizes the lead and
copper concentrations at users' taps while insuring that the treatment
does not cause the water system to violate any national primary drinking
water regulations."4 In addition, water systems, including WASA and
the Corps, must monitor drinking water for regulated contaminants to
ensure public safety.
As discussed below, EPA regulations require such systems
to notify customers when a violation of drinking water requirements
occurs and take steps to assure such violation is remedied and the
drinking water supplies comply with the NPDWS.
On June 7, 1991, EPA established a national primary
drinking water action level for lead at 15 parts per billion (ppb) (the
"Lead Action Level"). The Lead Action Level is a statistical
trigger that, once exceeded, requires specific actions to be undertaken
by a public water supply system in order to remediate what the EPA has
determined constitutes an unsafe level of lead for human consumption.
SDWA regulations require WASA to regularly test the
District's water supply and to report the results of its water sampling
to EPA. If the 15 ppb Lead Action Level has been exceeded in 10% or more
of the samples collected, immediate action must be undertaken to address
and remediate the presence of lead in the drinking water supply. These
actions include the following:
First, the affected water supply
system begin immediate corrosion control treatment steps, which include
water quality parameter (WQP) monitoring during the same monitoring
period in which the exceedance occurs, and installation of optimal
corrosion control treatment. 40 C.F.R. §§ 141.81(c), (d).
Second, within 6-months of the
exceedance, the water system must conduct source water monitoring and
(a) make a treatment recommendation, (b) make a determination regarding
source water treatment within 6 months after submission of monitoring
results, and (c) within 24 months after determination, install source
water treatment, if needed. 40 C.F.R. § 141.83.
Third, within 60-days of the
exceedance, the water supply system must (a) deliver directly to
customers public education materials that informs users about the health effects of lead and measures that will reduce
their exposure to lead, or post .information posters on lead-in drinking
water in a public place and distribute information pamphlets on lead in
drinking water to each person served by the water system, and (b) submit
a public service announcement to at least five radio and television
station with the largest audiences that broadcast to the community
served by the water system. These actions must be repeated every 12 and
6 months, respectively, for as long as the water system exceeds the Lead
Action Level. 40 C.F.R. §141.85(c).
Fourth, if the system still exceeds the 15 ppb trigger
level after completing corrosion treatment, replace lead service lines
at a minimum rate of 7% per year. 40 C.F.R. §141.84.
Fifth, the water system must offer to sample the tap
water of any customer who requests it. 40 C.F.R. §141.85(d).
B. WASA's and the Corps' Violation Of The SDWA.
WASA and the Corps have violated, and continue to
violate, the SDWA and its implementing regulations.
In 1995 WASA, in collaboration with the Corps,
implemented, and has continued, the use of lime instead of zinc
orthophosphate for corrosion control treatment. In so doing, WASA and
the Corps ignored studies that showed that lime was "consistently
worse" in curbing lead corrosion than zinc orthophosphate.
In November 20001 the Corps switched from using chlorine
to disinfect river water at the aqueduct, to using chloramines, a
combination of chlorine and ammonia. WASA and the Corps failed to follow
EPA's written guidelines, warning that a significant change in
disinfection treatment could increase lead corrosion and thereby require
alterations to the existing corrosion-control program. The EPA had
previously recommended, in written guidance, that utilities carefully
monitor the possible effects of chloramines on corrosion potential.
Nonetheless, the Corps did not conduct a complete corrosion study of the
effects of switching from chlorine to chloramines.
On July 9, 2001, the EPA received WASA's Lead and Copper
Program Report for Monitoring Period July 1, 2000 to June 30, 2001. This
report indicated that WASA had exceeded the 15 ppb trigger in
approximately 8% of the samples collected. However, according to a
recent article in the Washington Post, more than 10% of the original
samples collected by WASA exceeded the Lead Action Level. It was only
after WASA invalidated at least three samples that WASA was able to
report that less than 10% exceeded the Lead Action Level. EPA and WASA
currently disagree as to whether or not WASA invalidated the samples with EPA approval. If should
be noted that only the EPA is authorized to invalidate test samples.
A year later, on August 27, 2002, the EPA received WASA's
Lead and Copper Program Report for Monitoring Period July 1, 2001 to
June 30, 2002, which revealed that lead levels exceeded 15 ppb trigger
in almost half of the samples taken.5 This was a clear, unequivocal.
alarm bell of a serious and pervasive lead contamination problem. Yet,
again, WASA did not issue public education notices within 60 days of the
exceedance as it was required to do by the SDWA and governing EPA
regulations.6
Pursuant SDWA regulations, WASA was required to return to
six month sampling by January 2003 (testing was delayed until the Summer
of 2003), engage in a lead public education program, and initiate lead
service line replacement. WASA did not undertake a public education
program and did not undertake a compliant lead service replacement
program.
In more extensive testing undertaken by WASA during the
summer of 2003, two-thirds of the 6,118 homes tested had water that
exceeded the 15 ppb trigger. Of these, 157 homes had water with lead
levels of more than 300 ppb. On information and belief, WASA has since
determined that there are a greater number of homes having lead levels
in excess of 300 ppb.
WASA continues to fail to provide the required public
education materials to customers and to submit public service
announcements to at least five radio and television stations with the
largest audiences that broadcast to the community served by the water
system. Complainants have collected significant evidence that WASA has
failed to provide particularized notice to homes that exhibit lead
levels of 10 or more times the Lead Action Level. WASA has never sent
representatives to "knock on doors" at many such homes, to
warn the-occupants personally of the danger of consuming their tap
water.
Moreover, WASA continues to seek every opportunity to
avoid complying with the minimum guideline for replacement of 7% of lead
service lines annually. As reported in WASA's FY2003-FY2012 Capital
Improvement Program, published on October 16, 2003, although EPA's Lead
and Copper Rule mandates replacement of approximately 1,600 Lead Service
lines annually (7% of 23,000 estimated Lead Service lines in the
system), "WASA [believes it] can meet the replacement requirement
either through physical replacement or additional testing, and we have
developed a plan to replace up to 600 service lines and to test
additional service lines." (Emphasis added.) In other words, WASA has not publicly committed to comply with a
particular percentage goal for lead service replacements, even one that
approaches the federally mandated minimum.
Troubling too, is WASA's apparent disregard for residents
of the District of Columbia who are not pregnant or less than six years
in age. WASA has not recommended that any other individuals avoid
drinking the tap water, irrespective of how high the lead levels may be.
This is of particular concern with respect to women of childbearing age,
as it is well known that lead can be stored in the bones and released
during pregnancy.
A recent story reported in the Metro Section front page
of the March 3, 2004 Washington Post, illustrates the inexplicable
disregard for these other populations:
Tests completed [in Fall 2003] revealed that a house in
Northeast Washington had a lead level reading of 48,000 parts per
billion and that a house in Northwest had a reading of 24,000 ppb, far
above the federal limit of 15 ppb, according to a D.C. Water and Sewer
Authority database. ...
[The] married couple living in the Northeast house in the
Bloomingdale neighborhood, said they received nothing more from WASA
than a one-page form letter [in February 2004] with test results. [In
mid-February 2004], a D.C. Department of Health employee knocked on
their door and asked whether there were any pregnant women or young
children in the house, the couple said. When they said no, the employee
left, they said. ...
In both cases, the residents said, no one instructed them
not to drink the water or offered to provide bottled water.7
In summary, WASA and the Corps are systematically
violating the SDWA, and the EPA is improperly withholding enforcement
action for these widespread violations, which include the following:
- Failure to install and operate optimal corrosion
control treatment on the District's water supply system (on information
and belief, the Corps is long overdue in reevaluating its corrosion
control program, which relies exclusively on lime to prevent corrosion
instead of phosphate compounds);
- Failure to effectively treat and
prevent lead service line corrosion;
- Failure to distribute public education materials in
the manner_ required by EPA regulations, including the use of public
service announcements (WASA delayed for over a year the implementation
of a notification program, and to this day has not notified many of the
customers at greatest risk from lead exposure);
- Failure to sample the water of every
D.C. customer requesting it (on information and belief, WASA has been
regularly denying sampling kits to customers whom WASA believes live in
homes without lead service lines);
- Failure to replace the minimum
amount of lead service lines (WASA has embarked on a minimal program of
service line replacement, which is less than one third of the EPA
minimum requirement);
- Failure to develop a rational
prioritization for lead service line replacement (on information and
belief, WASA has not rigorously analyzed which blocks of the District
should be targeted for replacement and in what order; its efforts are
haphazard and based on administrative convenience and minimization of
expense to WASA)
- Failure to supply an alternative
water supply to homes that are known to be exceeding the Lead Action
Level - even those with levels that are orders of magnitude above the
EPA Lead Action Level (WASA's recent promise to deliver Brita® pitchers
is wholly inadequate, as the pitchers are not NSF certified to treat
water containing lead above 150 ppb).
C. Demands-For Corrective and Remedial Action.
Complainants demand that EPA undertake the following,
specific enforcement actions:
1. Invoke EPA's Emergency Powers, pursuant to SDWA
)'3001, by declaring that the lead contamination of the District's
public drinking water supply constitutes an imminent and substantial
endangerment to human health.
2. Order WASA to provide alternative
water supplies immediately to each home that WASA has, or is
substantially likely to have, drinking water from the tap containing
concentrations of lead above the EPA Lead Action Level. See 42 U.S.C. §300i(a)(1).
3. Order WASA and the Corps to conduct
immediate tests and implement necessary revisions to the Corrosion
Control Program, pursuant to 40 C.F.R. 5141.82, in compliance with the
deadline set forth in 40 C.F.R. §141.81(e) (i.e., within 6 months after
exceeding the lead action level - which exceedance occurred in the
summer of 2002).
4. Order WASA to send water test kits to
any District of Columbia residences requesting it, pursuant to 40 C.F.R.
5 141.85(d).
5. Order WASA to accelerate its program
of lead service line replacement pursuant to 40 C.F.R. 5141.84, because
it is already in violation of 40 C.F.R. 55141.81 and 141.83. In
conjunction with such order, EPA should determine that the date by which
the system was to conduct monitoring, pursuant to 5141.86(d)(2) passed
by no later than January 1, 2003, and that therefore WASA must, at a
minimum, replace sufficient number of service lines to "catch
up" on the deficit of lead service line replacement during the
calendar year of 2003 (estimated to be on the order of 800 lead service
lines). EPA should also determine that the "minimum" 7%
service line replacement schedule is insufficient to attain system-wide
compliance in a timely fashion and that a "shorter schedule than
that required by [5141.184] is feasible."
6. Order WASA and the Corps to comply
with the public education requirements set forth in 40 C.F.R. §141.85,
including but not limited to, notifying affected residences regarding
WASA's obligations to conduct lead service line replacements.
Conclusion
The widespread contamination of the District of Columbia
water supply poses a grave public health risk to all who consume
publicly available water in the District. On behalf of the Complainants
and all of the residents of the District we demand that EPA undertake
the enforcement actions required of it in order to prevent and remediate
this massive and unprecedented ongoing violation.
Respectfully submitted,
Christopher A. Cole
For PAUL, HASTINGS, JANOFSKY & WALK-RR LLP
1. Hill East, Inc. is a not-for-profit community
organization created to provide relief to the poor and distressed, and
to promote the social welfare of the residents of Washington, D.C.,
including those living in the eastern Capitol Hill area.
2. Harding-Wright and Wright are the parents of a small
infant girl. They reside at 1511 C Street, S.E., in a home connected to
the D.C. water supply by means of a lead service line. Their home was
recently found by WASA to have lead in drinking water at 435 ppb.
3. Shaw and Badhwar are the parents of a baby girl. They
reside at 511 Third Street, S.E., in a home connected to the D.C. water
supply by means of a lead service line. Their home was recently found by
WASA to have lead in drinking water at 310 ppb.
4. 40 C.F.R. §§ 141.2 and 141.80(d)(1)
5. 26 of the 53 samples taken exceeded the 15 ppb trigger
level.
6. WASA was content to bury these critical findings in a
few lines of its seven page Year 2002 Water Quality Report. This does
not satisfy the stringent reporting requirements of the SDWA.
7. David Nakamura and Craig Timberg, "Two Lead
Readings Reach Into Thousands," Washington Post (March 4, 2004) at
B1, col. 5. (Emphasis added.)
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