Liability Exposure

Liability in the Water: Lead Litigation Over Contamination Isn’t Going Away

More states are requiring schools to test drinking water for lead. Doing so puts them on the hook for costly remediation and opens them up to liability exposure.
By: | August 30, 2018 • 5 min read

Pennsylvania’s Butler Area School District tested the water in Summit Elementary School for lead contamination in the summer of 2016. Results showed the level of lead far exceeded the EPA’s “reasonably safe” standard of 15 parts per billion. Five months later, the school finally told students’ parents.

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Jennifer Tait, whose daughter was in kindergarten, filed a class action lawsuit on behalf of the student body, accusing school administrators of negligence and asserting the district was vicariously liable for the actions of the administrators.

With greater national attention given to the problem of lead-contaminated water after the crisis in Flint, Mich., more municipalities are under scrutiny. Schools — given their responsibility for the health and safety of children — are facing increased pressure to test their systems and remediate when dangerous levels of contaminants are present.

Federal vs. State Regulations

Lead was a legal material for pipes, solder, valves, taps and other plumbing fixtures until the passage of a 1986 amendment to the Safe Water Drinking Act (SWDA), mandating lead should not make up more than 8 percent of pipes’ composition and no more than .2 percent of solder and flux. The restriction for pipes was later reduced to a weighted average of .25 percent lead in 2014.

Essentially, any building more than four years old may be exposed to lead.

David Perez, executive vice president, national insurance specialty, Liberty Mutual Insurance

“The older the town, the more exposure you have to lead,” said David Perez, executive vice president, national insurance specialty, Liberty Mutual Insurance.

No federal law currently requires schools to test water for pollutants. The SWDA requires public sources of water — water utility companies, operators of rural wells — to test for contaminants but not the facilities where it’s consumed.

“The pipes that have lead are inside these buildings and in the feeder pipes that service them,” said Janice Nunziata, senior underwriter, environmental product manager, Philadelphia Insurance.

Though there is no federal directive, eight states do require schools to conduct lead testing. Several put the mandates in motion in the wake of Flint’s water crisis. The results only affirm how real and widespread the problem is.

Results from New York City’s public schools last year showed 83 percent of 1,500 buildings had at least one outlet with a lead level above 15 parts per billion.

One girls’ bathroom faucet had a lead level of 8,850 parts per billion. Thirty public schools in Newark, N.J., detected elevated lead levels.

A review by the Associated Press found that “1,400 water systems serving 3.7 million people in 49 states exceeded permissible lead levels since 2013.” Still, a July 2018 report released by the Government Accountability Office found 41 percent of school districts didn’t test for lead in the water in 2016 and 2017.

“I don’t think anyone has a handle on how big this issue really is,” Nunziata said.

Public Health Impact

In adults, lead can cause damage to the central nervous system, kidneys and reproductive systems. Lead is a toxic chemical that has no role in the human body, but it does bear a similar structure to calcium, and the body treats it as such, absorbing it into the bloodstream and storing it in the bones.

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Because their bones are still growing, children suffer greater developmental damage from lead exposure, including impaired growth, lower IQ, behavioral problems and learning disabilities.

Tait claimed that after five months of ingesting “poisonous water,” her daughter experienced episodes of anxiety, depression and nightmares.

“Don’t try to hide [test results]. That only makes people more upset because they feel like you don’t care about them or their children.” — Susan Kostro, chief underwriting officer, public entities, Liberty Mutual

In the case of Tait’s class-action lawsuit, the Butler Area School District argued her claims were pre-empted by the federal SWDA, absolving them of an obligation to act immediately on the results of the lead testing, since they aren’t required to test in the first place. That suit was eventually voluntarily withdrawn and went to mediation, but it acts as an indicator of what’s to come.

Liability and Coverage

Opinions are split around who will be held liable for children’s exposure to unsafe levels of lead in schools — school districts, municipalities, water utilities or even contractors or plumbers who worked on the schools.

Nunziata said parents will hold schools accountable for not monitoring or taking action on positive test results.

“They’re going to go after the school district, not the water utility,” Nunziata said. “The lead likely isn’t coming from the water supplier, because they’re subject to regulatory oversight and they already process the water so heavily. Rarely would you see a water company providing contaminated water.”

However, Susan Kostro, chief underwriting officer of public entities, Liberty Mutual, said liability may ultimately fall back to the municipality: “It’s an issue for municipalities, especially if they own their own water supply, which the school draws from.”

“And if they don’t own the supplier, they would always look to push the liability back to the water company.”

Susan Kostro, chief underwriting officer, public entities, Liberty Mutual

Renovations or plumbing work can disrupt the natural biofilms that form on the interior of pipes; biofilms which, if left alone, could prevent water’s direct contact with lead. Schools could shift blame to contractors or plumbers, asserting they should’ve been aware of the exposures they created.

Schools or municipalities could also raise doubt about the source of contamination or the resulting health impacts. A child’s behavioral problems, for example, could have other causes besides lead exposure.

“Could they be genetic? Caused by some other contaminant? How courts determine what damage was caused by lead exposure will be up to the medical experts,” Nunziata said.

Perez added, “If a municipality is brought into civil action, insurers are going to go back to the root cause.”

Most school districts do not purchase environmental liability policies, according to Perez, and most environmental policies exclude coverage for lead contamination.

Facing a lawsuit, schools may turn to general liability policies, and individual administrators could seek recovery from professional liability policies if they have them.

Risk Mitigation Strategies

Foremost, schools should be transparent about their findings.

“Don’t try to hide it. That only makes people more upset, because they feel like you don’t care about them or their children,” Kostro said.

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There are some remediation steps schools can implement quickly. Schools can shut off water systems and identify areas where contamination is heaviest. Adding filters to drinking fountains eliminates lead, as can flushing out the pipes periodically.

All these efforts, however, come at a cost. In Southern California, the San Ysidro School District will spend $24 million to replace fountains, sinks, pipes and faucets at three schools.

The city of Portland, Ore., has yet to replace fixtures, instead providing bottled water at its 90 schools, costing $850,000 per year. Newark’s public school district spent close to $1.5 million on testing and remediation.

The cost of a class-action settlement, however, could far outweigh these expenses. &

Katie Dwyer is an associate editor at Risk & Insurance®. She can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Risk Scenario

A Recall Nightmare: Food Product Contamination Kills Three Unborn Children

A failure to purchase product contamination insurance results in a crushing blow, not just in dollars but in lives.
By: | October 15, 2018 • 9 min read
Risk Scenarios are created by Risk & Insurance editors along with leading industry partners. The hypothetical, yet realistic stories, showcase emerging risks that can result in significant losses if not properly addressed.

Disclaimer: The events depicted in this scenario are fictitious. Any similarity to any corporation or person, living or dead, is merely coincidental.

PART ONE: THE HEAT IS ON

Reilly Sheehan, the Bethlehem, Pa., plant manager for Shamrock Foods, looks up in annoyance when he hears a tap on his office window.

Reilly has nothing against him, but seeing the face of his assistant plant operator Peter Soto right then is just a case of bad timing.

Sheehan, whose company manufactures ice cream treats for convenience stores and ice cream trucks, just got through digesting an email from his CFO, pushing for more cost cutting, when Soto knocked.

Sheehan gestures impatiently, and Soto steps in with a degree of caution.

“What?” Sheehan says.

“I’m not sure how much of an issue this will be, but I just got some safety reports back and we got a positive swipe for Listeria in one of the Market Streetside refrigeration units.”

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Sheehan gestures again, and Soto shuts the office door.

“How much of a positive?” Sheehan says more quietly.

Soto shrugs.

“I mean it’s not a big hit and that’s the only place we saw it, so, hard to know what to make of it.”

Sheehan looks out to the production floor, more as a way to focus his thoughts than for any other reason.

Sheehan is jammed. It’s April, the time of year when Shamrock begins to ramp up production for the summer season. Shamrock, which operates three plants in the Middle Atlantic, is holding its own at around $240 million in annual sales.

But the pressure is building on Sheehan. In previous cost-cutting measures, Shamrock cut risk management and safety staff.

Now there is this email from the CFO and a possible safety issue. Not much time to think; too much going on.

Sheehan takes just another moment to deliberate: It’s not a heavy hit, and Shamrock hasn’t had a product recall in more than 15 years.

“Okay, thanks for letting me know,” Sheehan says to Soto.

“Do another swipe next week and tell me what you pick up. I bet you twenty bucks there’s nothing in the product. That swipe was nowhere near the production line.”

Soto departs, closing the office door gingerly.

Then Sheehan lingers over his keyboard. He waits. So much pressure; what to do?

“Very well then,” he says to himself, and gets to work crafting an email.

His subject line to the chief risk officer and the company vice president: “Possible safety issue: Positive test for Listeria in one of the refrigeration units.”

That night, Sheehan can’t sleep. Part of Shamrock’s cost-cutting meant that Sheehan has responsibility for environmental, health and safety in addition to his operations responsibilities.

Every possible thing that could bring harmful bacteria into the plant runs through his mind.

Trucks carrying raw eggs, milk and sugar into the plant. The hoses used to shoot the main ingredients into Shamrock’s metal storage vats. On and on it goes…

In his mind’s eye, Sheehan can picture the inside of a refrigeration unit. Ice cream is chilled, never really frozen. He can almost feel the dank chill. Salmonella and Listeria love that kind of environment.

Sheehan tosses and turns. Then another thought occurs to him. He recalls a conversation, just one question at a meeting really, when one of the departed risk management staff brought up the issue of contaminated product insurance.

Sheehan’s memory is hazy, stress shortened, but he can’t remember it being mentioned again. He pushes his memory again, but nothing.

“I don’t need this,” he says to himself through clenched teeth. He punches up his pillow in an effort to find a path to sleep.

PART TWO: STRICKEN FAMILIES

“Toot toot, tuuuuurrrrreeeeeeeeettt!”

The whistles of the three lifeguards at the Bradford Community Pool in Allentown, Pa., go off in unison, two staccato notes, then a dip in pitch, then ratcheting back up together.

For Cheryl Brick, 34, the mother of two and six-months pregnant with a third, that signal for the kids to clear the pool for the adult swim is just part of a typical summer day. Right on cue, her son Henry, 8, and his sister Siobhan, 5, come running back to where she’s set up the family pool camp.

Henry, wet and shivering and reaching for a towel, eyes that big bag.

“Mom, can I?”

And Cheryl knows exactly where he’s going.

“Yes. But this time, can you please bring your mother a mint-chip ice cream bar along with whatever you get for you and Siobhan?”

Henry grabs the money, drops his towel and tears off; Siobhan drops hers just as quickly, not wanting to be left behind.

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“Wait for me!” Siobhan yells as Henry sprints for the ice cream truck parked just outside of the pool entrance.

It’s the dead of night, 3 am, two weeks later when Cheryl, slumbering deeply beside her husband Danny, is pulled from her rest by the sound of Siobhan crying in their bedroom doorway.

“Mom, dad!” says Henry, who is standing, pale and stricken, in the hallway behind Siobhan.

“What?” says Danny, sitting up in bed, but Cheryl’s pregnancy sharpened sense of smell knows the answer.

Siobhan, wailing and shivering, has soiled her pajamas, the victim of a severe case of diarrhea.

“I just barfed is what,” says Henry, who has to turn and run right back to the bathroom.

Cheryl steps out of bed to help Siobhan, but the room spins as she does so.

“Oh God,” she says, feeling the impact of her own attack of nausea.

A quick, grim cleanup and the entire family is off to a walk-up urgent care center.

A bolt of fear runs through Cheryl as the nurse gives her the horrible news.

“Listeriosis,” says the nurse. Sickening for children and adults but potentially fatal for the weak, especially the unborn.

And very sadly, Cheryl loses her third child. Two other mothers in the Middle Atlantic suffer the same fate and dozens more are sickened.

Product recall notices from state regulators and the FDA go out immediately.

Ice cream bars and sandwiches disappear from store coolers and vending machines on corporate campuses. The tinkly sound of “Pop Goes the Weasel” emanating from mobile ice cream vendor trucks falls silent.

Notices of intent to sue hit every link in the supply chain, from dairy cooperatives in New York State to the corporate offices of grocery store chains in Atlanta, Philadelphia and Baltimore.

The three major contract manufacturers that make ice cream bars distributed in the eight states where residents were sickened are shut down, pending a further investigation.

FDA inspectors eventually tie the outbreak to Shamrock.

Evidence exists that a good faith effort was underway internally to determine if any of Shamrock’s products were contaminated. Shamrock had still not produced a positive hit on any of its products when the summer tragedy struck. They just weren’t looking in the right place.

PART THREE: AN INSURANCE TANGLE

Banking on rock-solid relationships with its carrier and brokers, Shamrock, through its attorneys, is able to salvage indemnification on its general liability policy that affords it $20 million to defray the business losses of its retail customers.

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But that one comment from a risk manager that went unheeded many months ago comes back to haunt the company.

All three of Shamrock’s plants were shuttered from August 2017 until March 2018, until the source of the contamination could be run down and the federal and state inspectors were assured the company put into place the necessary protocols to avoid a repeat of the disaster that killed 3 unborn children and sickened dozens more.

Shamrock carried no contaminated product coverage, which is known as product recall coverage outside of the food business. The production shutdown of all three of its plants cost Shamrock $120 million. As a result of the shutdown, Shamrock also lost customers.

The $20 million payout from Shamrock’s general liability policy is welcome and was well-earned by a good history with its carrier and brokers. Without the backstop of contaminated products insurance, though, Shamrock blew a hole in its bottom line that forces the company to change, perhaps forever, the way it does business.

Management has a gun to its head. Two of Shamrock’s plants, including Bethlehem, are permanently shuttered, as the company shrinks in an effort to stave off bankruptcy.

Reilly Sheehan is among those terminated. In the end, he was the wrong person in the wrong place at the wrong time.

Burdened by the guilt, rational or not, over the fatalities and the horrendous damage to Shamrock’s business. Reilly Sheehan is a broken man. Leaning on the compassion of a cousin, he takes a job as a maintenance worker at the Bethlehem sewage treatment plant.

“Maybe I can keep this place clean,” he mutters to himself one night, as he swabs a sewage overflow with a mop in the early morning hours of a dark, cold February.

Bar-Lessons-Learned---Partner's-Content-V1b

Risk & Insurance® partnered with Swiss Re Corporate Solutions to produce this scenario. Below are their recommendations on how to prevent the losses presented in the scenario. This perspective is not an editorial opinion of Risk & Insurance.®.

Shamrock Food’s story is not an isolated incident. Contaminations happen, and when they do they can cause a domino effect of loss and disruption for vendors and suppliers. Without Product Recall Insurance, Shamrock sustained large monetary losses, lost customers and ultimately two of their facilities. While the company’s liability coverage helped with the business losses of their retail customers, the lack of Product Recall and Contamination Insurance left them exposed to a litany of risks.

Risk Managers in the Food & Beverage industry should consider Product Recall Insurance because it can protect your company from:

  • Accidental contamination
  • Malicious product tampering
  • Government recall
  • Product extortion
  • Adverse publicity
  • Intentionally impaired ingredients
  • Product refusal
  • First and third party recall costs

Ultimately, choosing the right partner is key. Finding an insurer who offers comprehensive coverage and claims support will be of the utmost importance should disaster strike. Not only is cover needed to provide balance sheet protection for lost revenues, extra expense, cleaning, disposal, storage and replacing the contaminated products, but coverage should go even further in providing the following additional services:

  • Pre-incident risk mitigation advocacy
  • Incident investigation
  • Brand rehabilitation
  • Third party advisory services

A strong contamination insurance program can fill gaps between other P&C lines, but more importantly it can provide needed risk management resources when companies need them most: during a crisis.



Dan Reynolds is editor-in-chief of Risk & Insurance. He can be reached at [email protected]