The Nickel Report

As the spotlight continues to focus on the City of Flint and its efforts in response to its public health crisis four years ago, water utilities seeking to avoid similar liability (and notoriety) should study Flint as a veritable textbook on potential liability under the federal Safe Drinking Water Act (SDWA), the US Constitution, and state law. Part 1 of this series noted that a spate of civil lawsuits and criminal charges were filed in the aftermath of Flint. These cases are still unfolding in the courts.

Meanwhile, environmental watchdogs are turning the spotlight onto other public water systems (i.e., water utilities) dealing with lead in their drinking water supply. For example, the City of Newark and New Jersey state officials were recently sued for alleged elevated levels of lead in Newark’s drinking water and an alleged failure to comply with the SDWA and its Lead and Copper Rule (LC Rule). Owners and operators of water utilities—and all associated individuals and civil engineering firms providing these services—hoping to dodge a similar fate should not make bets in a burning house. If elevated lead levels are discovered in their customers’ drinking water, it is important to understand their relative exposure to liability. Part 2 of this series provides a brief and high-level overview.

Safe Drinking Water Act

Under the SDWA, both the EPA and states with primary enforcement responsibility can enforce the SDWA. Violations of the SDWA can result in the accrual of daily civil penalties, which can result in exposure to potentially significant penalties in an enforcement action. States with primary enforcement responsibility will generally have their own administrative civil penalty schedule, but where the EPA oversees enforcement in nonprimacy states (or chooses to exercise its SDWA § 1431 emergency authority in a primacy state), failure to comply with an administrative compliance order may result in a civil penalty as high as $55,907 per day of violation. Failure or refusal to comply with any monitoring, recordkeeping, or reporting requirement carries a $55,907 maximum civil penalty as well. Where enforcement is escalated to a civil action, a court, after taking into account the seriousness of the SDWA violation and other appropriate factors, may also impose a maximum civil penalty of $55,907 per day of violation.

Public reports appear to indicate that the City of Flint has avoided payment of any civil penalty thus far, in large part because, according to the EPA, the Michigan Department of Environmental Quality (DEQ) failed to properly oversee and enforce the City’s compliance with the SDWA. (Indeed, DEQ is a defendant in many of the lawsuits related to the public health crisis.) The EPA ultimately stepped in by invoking its emergency powers under SDWA § 1431 and issued an emergency administrative order.

The SDWA also contains a citizen suit provision, which allows a private right of action against any person (to the extent permitted by the Eleventh Amendment) who is alleged to be in violation of any SDWA requirement. To commence a citizen suit, a plaintiff must satisfy various standing requirements and other prerequisites, such as ensuring the absence of diligent prosecution by the EPA or the state, and providing proper notice of intent to file suit. A successful citizen plaintiff cannot recover damages but may obtain declaratory and injunctive relief and may also be awarded the costs of litigation. Finally, the SDWA includes a savings clause, which provides that a private right of action does not restrict rights a person may exercise outside of the SDWA.

In January 2016, the Natural Resources Defense Counsel and other plaintiffs filed a citizen suit under the SDWA against the City of Flint, the State of Michigan, DEQ and other governmental officials, alleging violations of the SDWA and LC Rule. Settlement discussions eventually took place and the parties entered into a settlement agreement that requires, among other things, the State of Michigan to fund nearly $100 million for Flint to replace a minimum of 18,000 lead and galvanized steel service lines within three years. To settle the action, Michigan, DEQ, and certain officials also agreed to pay the plaintiffs $895,000 in litigation costs.

Constitutional Rights and Other State Law Causes of Action

Residents of Flint and neighboring cities have also filed multiple class action suits against Flint, DEQ, and governmental officials for harm allegedly caused by exposure to lead in their drinking water. These plaintiffs alleged numerous Fourteenth Amendment violations under 42 U.S.C. § 1983. Section 1983 provides a cause of action against persons acting under color of state law who have violated rights guaranteed by the Constitution and by federal statutes. With respect to the Flint drinking water crisis, these claims include alleged violations of substantive due process, e.g., fundamental rights to bodily integrity and protection from state-created danger; the right to be protected from government conduct that shocks the conscience; and deprivation of property rights to purchase and receive safe, potable drinking water; as well as violation of the Equal Protection Clause. Although an evaluation of the potential merits of these other causes of actions is beyond the scope of this assessment, how the courts rule in these cases will be instructive, and the legal standards adopted in these cases could have significant implications for water utilities for years to come.

Beyond seeking redress for violations of their constitutional rights, class action plaintiffs also alleged a bundle of state law claims against the same government actors and two civil water engineering firms, including negligence, gross negligence, and professional negligence; intentional and negligent infliction of emotional distress; unjust enrichment; breach of contract; breach of implied warranty of merchantability; conversion, nuisance; and trespass. The plaintiffs seek compensatory and punitive damages for the harm suffered, as well as declaratory and injunctive relief.

The State of Michigan also separately sued its water engineering firms for professional negligence, public nuisance, and fraud, because these firms allegedly knew or should have known that use of the Flint River would cause lead pipes to corrode unless treated, ignored key warning signs, and made false and misleading statements to the public regarding the safety of Flint’s drinking water.

State Crimes

According to the Michigan Attorney General, he has brought 51 criminal charges against 15 state and local officials for their role in the Flint water crisis, and has secured four convictions. These charges include involuntary manslaughter, conspiracy, tampering with evidence, obstruction of justice, willful neglect of duty, and misconduct in office, among others.

Public Versus Private Ownership

In evaluating the extent of potential liability under the LC Rule, and the cost of service line replacement in particular, two important questions will be (1) who owns the water service line; and (2) what are the source(s) of lead in the drinking water. The property owner typically owns the service line that extends from the property line, curb stop, or water meter. Privately owned lead service lines are not governed by the LC Rule and the responsibility of maintenance or replacement is solely that of the property owner, which would include the costs of switching out a lead line. The water utility generally owns the remainder of the service line. However, there are communities where the water utility owns the entire service line, and there may be different ownership arrangements as well. Where the source of lead is from both public and private water lines, as was the case in Flint, water utilities will need to decide how far they will go to assist property owners in addressing lead at the tap.

Looking Forward

Some commentators have opined that enforcement of the LC Rule has a reputation of being lax, which is why many blame Michigan DEQ for the failures in Flint and why many other water utilities are on the receiving end of citizen suits for alleged failure to carry out existing law. As explained in Part 1, the LC Rule is a complicated rule to implement and to perhaps enforce. While EPA considers rewriting the LC Rule, which may end up being easier to enforce, some states are taking matters into their own hands. Michigan is the best example, as it recently adopted the strictest lead and copper rule in the United States. Michigan’s LC Rule lowers the lead action level to 12 parts per billion in 2025, requires all public water systems to fully replace the state’s 500,000 lead service lines over 20 years, and also prohibits partial replacement of lead service lines except in emergencies. All eyes will therefore be on Michigan as it begins the process of implementing—and enforcing compliance with—its new rule.

An emerging question is whether there may be a fundamental right to clean water. The US Supreme Court has not declared a “human right to water” as a constitutional guarantee. However, many academics have written about a human right to water and there is a growing movement towards recognition of such a right within some states. For example, in 2012, California became the first state to legislatively recognize the human right to water. It established a state policy “that every human being has the right to safe, clean, affordable, and accessible water adequate for human consumption, cooking, and sanitary purposes.” It further requires state agencies to consider the human right to water when adopting any policy. In 2015 and 2017, Michigan introduced bills that would also establish a right to clean and safe water for human consumption. For now, these measures appear to be largely symbolic. Nevertheless, increasing public awareness of lead contamination, and the resulting pressure placed on local governments and water utilities to deliver lead-free water, may compel state lawmakers to pass laws that codify a human right to clean water. Such laws could create new avenues of potential liability for water utilities for lead exposure and beyond.