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Washington is undergoing a major water crisis, the first time in our nation’s history that high lead levels have been widespread in the drinking water of a large metropolitan area. The drinking water of many D.C. residents contains dangerously high lead levels, well above the regulatory limits set by the U.S. Environmental Protection Agency. The record shows that the city’s Water and Sewer Authority (WASA) knew of the problem for years yet failed to issue proper warnings or act to protect public health. Lead in drinking water is known to cause a variety of health problems, ranging from delays in physical and mental development for babies and children to kidney problems or high blood pressure in adults. The Washington Post began reporting the threat earlier this year. After reading the headlines, two mothers living on Capitol Hill were concerned. Amy Harding-Wright had a 2-week-old baby girl, and lead levels in her drinking water tested at 435 parts per billion (ppb) — nearly 30 times higher than the EPA regulatory action level of 15 ppb. Ellen Shaw had a 4-month-old baby girl. Her home posted lead levels at 310 ppb. In early 2004, along with Hill East Inc., a not-for-profit community organization that works to promote the social welfare of D.C. residents, these mothers urged their neighbor, Christopher Cole, an attorney at Paul, Hastings, Janofsky & Walker, to explore pro bono legal options within the firm. He found a number of attorneys willing to help, and Paul Hastings endorsed the effort. The first major hurdle was determining whom to contact. The drinking water distribution system in the District has three main components. First, raw water is obtained from the Potomac River, stored in one of several reservoirs, and treated by the Army Corps of Engineers. Second, WASA purchases this treated drinking water and delivers it to consumers through the nearly 1,300 miles of D.C. water pipes. Third, any inquiry must navigate other federal and District agencies and quasi-independent organizations (chiefly the EPA, which exercises direct oversight authority over WASA because the District lacks an approved delegation of authority under the Safe Drinking Water Act) that share responsibility for the city’s water. On March 5, Paul, Hastings attorneys sent letters to U.S. Attorney General John Ashcroft, EPA Administrator Michael Leavitt, and D.C. Mayor Anthony Williams, as well as the commander of the U.S. Army Corps of Engineers, the chief of the Washington Aqueduct, and the general manager of WASA. The letters asked that the EPA declare a public health emergency and order WASA to provide alternate clean water to affected homes. The formal notice also threatened a suit under the federal Safe Drinking Water Act if the EPA and WASA refused to act. Three months later, in an administrative consent order, the EPA agreed that WASA broke the lead law, citing violations in six categories. Although the EPA could have fined WASA $32,500 per day for each violation, it levied no monetary penalties and stopped short of declaring a public health emergency. Admitting no wrongdoing, WASA agreed to undertake certain actions. The plaintiffs are considering whether to proceed with the Safe Drinking Water Act suit. On March 8, Paul, Hastings filed a class action in D.C. Superior Court on behalf of all residents and consumers against WASA and the city. The firm felt that District residents — many with low and moderate incomes — should not be left uninformed and unable to rely on their public water supply. The suit seeks class certification for three classes of defendants: a guardian class, consisting of all parents or guardians of children six or younger who drank unfiltered D.C. water at lead levels above the EPA limit; a mother class, consisting of all females who were pregnant and drank the tainted water; and a property-owner class, consisting of those with an interest in real property served by WASA. Paul, Hastings also sought a preliminary injunction seeking, among other things, delivery of water filters to all affected D.C. residents unless WASA can show that the home’s drinking water tested below the EPA’s action limit of 15 parts per billion within the last six months. Defendants fiercely oppose the proposed remedy, claiming that the actual health threat posed by D.C.’s drinking water is negligible and that the plaintiffs’ remedy is prohibitively expensive. At the moment the case is in federal court, pending decision. What caused the lead problem? WASA and the U.S. Army Corps of Engineers suggest that the use of chloramines increased the amount of lead leaching into District drinking water. Chloramines are a combination of chlorine and ammonia and are used to disinfect raw river water. In November 2000, the Army Corps and WASA switched from using chlorine to chloramines as the disinfectant of choice. The American Water Works Association Research Foundation reported in 1999 that chloramines appeared to increase corrosion. In a public water system as aged and worn as the District’s (several mains and distribution pipes are more than 100 years old, and many distribution sewer lines contain lead), using a disinfectant that increases corrosion can be catastrophic if careful anti-corrosion measures are not taken. In 2001, there were early signs of trouble when 8 percent of the drinking water samples taken by WASA exceeded the EPA’s lead action level, representing a marked increase from prior years. EPA regulations require public water systems like WASA to conduct annual sampling to ensure that lead and other contaminants do not reach dangerous levels. Where sampling exceeds the lead action level in 10 percent or more of the samples, the law requires that a comprehensive series of specific and detailed public education and remediation requirements be triggered. Evidence shows that WASA avoided the 10 percent threshold only by deliberately invalidating several samples that exceeded the EPA limit. As a result, the curative provisions of the EPA rule were not triggered, and Washingtonians remained uninformed about the increasing lead levels in their tap water. In the summer of 2002, the number of samples above the lead threshold skyrocketed to more than 50 percent. WASA failed to comply with the EPA regulations. By summer 2003, almost 65 percent of the tests showed lead levels above the EPA limit; experts reported that some homes had lead levels so high that lead actually could be tasted in the water. In January 2004, The Washington Post broke the story. Only after press reports had created concern did WASA host a series of public meetings and its officials begin to reveal the extent of the problem and suggest remedial options. By the end of February 2004, for the first time, the D.C. Department of Health announced that all pregnant women and children under six who live in homes with lead service lines should immediately stop drinking unfiltered tap water. Documents from the EPA show that WASA knew of the lead contamination in D.C.’s drinking water since 2001, yet it waited almost three years before providing regulatory-specified warnings and testing alternative disinfectant modes. The result is a collective loss of confidence in the safety of District tap water. This lawsuit is about ensuring that the city and WASA undertake actions they should have begun long ago to provide safe and drinkable water to District residents. It is about protecting our families, neighbors, and fellow residents through pro bono legal work. Charles A. Patrizia is a partner in the litigation department of Paul, Hastings, Janofsky & Walker in Washington, D.C. Alexander W. Koff is a D.C. associate with the firm. Both are members of the Paul, Hastings team working on the lead case, along with Roberta Barkman, James Berger, Christopher Cole, Helen Hong, Lisa Rushton, and Sabrina Rose-Smith.

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