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

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.

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.

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.

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 a freelance editor and writer based out of Philadelphia. She can be reached at [email protected].

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