“The fragile state of the United States drinking water system is making waves (and headlines) across the country,” Goldberg Segalla partners Susan E. Smith, leader of the firm’s Toxic Tort Practice Group, and George H. Buermann, a member of the Environmental Practice Group, write in Mealey’s Emerging Toxic Torts. Because of incidents in Flint, Michigan and elsewhere around the country, they say, “[h]ow our water authorities treat, obtain, and distribute drinking water, and what is in the water before and after treatment, is capturing national attention.”
In their article, Susan and George turn their attention to emerging toxic tort and environmental concerns related to drinking water, as well as new perspectives on a contaminant already familiar to toxic tort and environmental attorneys: lead.
For example, they note that while courts have seen a high volume of personal injury litigation involving lead paint since the 1990s, “[t]he focus is now shifting to drinking water.” Susan and George explain in detail the Safe Drinking Water Act (SDWA) and the Environmental Protection Agency’s (EPA) National Primary Drinking Water Regulations (NPDWR); enforcement of the same; and the civil actions, citizen suits, common law claims, and tort claims that have resulted.
Susan and George also explain a variety of defenses available to municipal entities involved in drinking water-related litigation, as well as recent court decisions and laws that bar claims and cap exposure limits.
“With the renewed focus and national media attention on lead as a contaminant of concern in our nation’s drinking water supply, the defense bar should be ready to counsel their clients on risk management strategies to avoid lawsuits, and ultimately, ways to defend themselves when the claim is made or the lawsuit is served,” Susan and George write. When defending a client, because of the complex source and causation issues surrounding lead, they say, a “complete risk and exposure assessment evaluating all possible, probable, and likely sources of a plaintiff’s alleged lead exposure will be required.”