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6 Steps Companies Can Take to Avoid a Drinking Water Lead Fiasco

May 5, 2016

Even now, a year after the Flint Michigan drinking water lead fiasco hit the press, it’s still being covered on a daily basis by almost every national news outlet.  And, each day, the story grows more scandalous and worrisome.  As public awareness increases, so do the number of calls I receive from clients asking what they should to be sure their employees or tenants (or those of their franchisees) are not being exposed to dangerous levels of lead.  Understandably, nobody wants to be behind the curve on this one.  But the answer is not as simple as just collecting a few water samples and comparing them to standards.  The regulation of lead in drinking water is unusual and complicated.  Here are 6 steps companies can take to avoid a drinking water lead fiasco, like the one in Flint, Michigan.
 
Six considerations before testing your water for lead;
 
1. Where Appropriate, Get a Lawyer Involved in the Beginning
Using a lawyer will help you navigate the complex regulatory scheme covering lead in drinking water (see below), so that you get the right advice on what sampling and reporting is required.  It can also protect much of your investigation from later discovery, because communications that your lawyer has with you and/or your consultant may be protected from later disclosure (and resultant misuse).  Additionally, your lawyer can help you determine who you might get to pay for sampling and any corrective work (see below).
 
2. Carefully Decide Why You are Testing
Do you need to satisfy an obligation to test?  Do you need to find and correct your “worst-case” scenario?  Or do you need to avoid creating such a potentially misleading set of high sample results, and instead need to get a representative snapshot of exposure to lead?  Do you need to be ready in case your employees or tenants bring claims against you?  Do you need to know what concentrations are coming from your water supplier’s distribution lines, or from your own pipes, drinking fountains, and fixtures?
 
3. Carefully Determine What Your Testing Protocol Will Be
Why you are testing directly dictates how you are testing.  You might need a “first flow” sample, to tell you whether your fixtures are leaching lead, and to provide you with a “worst-case” sample.  Or, you may need to sample after flushing the system, to tell you what may be leaching from your pipes or the incoming distribution line.  Perhaps you should only sample the fixtures that are, or will be, most often used for drinking and meals?  If your own employees or franchisees collect the samples, can you be sure the results be reliable and credible?  Your testing protocol has a significant effect on what the resultant data mean, and how you will respond to indications of problems.
 
4. Carefully Identify Your Options for Correcting Problems
What most people are surprised to learn is that the system of regulating lead in drinking water isn’t designed to precisely identify and correct each unsafe source of lead exposure.  Instead, water suppliers are often only required to sample a subset of their users’ taps – the rest go unsampled.  Generally speaking, if 90% of the subset exceed a specified action level, then the supplier needs to take action by reducing the corrosiveness of its water in order to reduce the amount of lead leaching from its distribution lines or the users’ lines and fixtures (the source may remain unidentified).  If this doesn’t solve the problem, then the supplier may also have to institute education efforts, like teaching people to run their taps long enough to flush out lead.  If you have high lead at your taps, you may be able to get your provider to take sufficient remedial measures, without you having to do so.  As you can see, there are a myriad of possible causes of high lead concentrations, and a myriad of ways to deal with it.
 
5. Determine Ahead of Time Who You Will Disclose the Results to, and When
If you determine that users may have been exposed to dangerous levels of lead, what are you going to tell them?  What are you going to tell regulators?  When?  Should you tell your supplier, so that it can implement its own response plan?  As noted above, sample results can easily be misinterpreted, if their purpose and protocol are misunderstood.  You will need to be very careful before you release data, to be sure they are valid and are being accurately interpreted, e.g., being recognized as a representative sample, or as an unlikely worst-case sample, and as demonstrating that lead is coming from your facility or coming from your supplier’s lines.  And, regardless of the cause, you may want to simultaneously announce that you are providing a temporary and/or permanent alternative water supply.
 
6. Figure Out Who Else You Might Get to Pay for Testing and Corrective Action
Many insurance policies have exclusions, but the devil is in the details as to what costs a policy will cover.  Sampling costs, business interruption, remediation costs, loss of good will, and other costs may be available under your policies.  Additionally, you may have claims against your builder of contractors.  Depending on what the source of the lead is and on what your policies and contracts state, you might find an avenue of recovery.
 
For more information, please contact Paul M. Schmidt at pmschmidt@zarwin.com.
 

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