- The Washington Times - Sunday, September 26, 2004

The D.C. government should not be held liable for elevated levels of lead in the city’s tap water or for delays in notifying tens of thousands of city residents about the contamination, a federal judge has ruled.

U.S. District Judge Henry H. Kennedy Jr., in a 24-page opinion filed Aug. 31, said the city government has no direct power over daily operations of the D.C. Water and Sewer Authority (WASA), which supplies the city’s water.

The ruling came in response to a class-action suit filed in March by several Capitol Hill residents, who said WASA and D.C. officials failed to protect residents against dangerous levels of lead in the water supply.The portion of the lawsuit against WASA is still ongoing.

“WASA is a separate entity from the District and was solely responsible for the actions,” the judge wrote. “Because WASA and the District are separate entities, the District cannot be sued for acts for which it was not responsible.”

WASA came under intense criticism earlier this year after D.C. residents learned about tests that found widespread lead contamination in the city’s tap water.

Of 6,118 water samples taken in the summer of 2003, more than 4,000 contained lead levels above the safe range of 15 parts per billion, according to court documents filed in the case. About 23,000 of WASA’s 130,000 service lines contained lead.

Since then, WASA has altered the chemicals used to treat tap water in an effort to reduce lead leaching. The agency also has begun a multimillion-dollar project to replace the city’s lead-lined water pipes.

A D.C.-based law firm in March sued WASA and the District, saying agency officials knew about possible lead contamination as far back as summer 2001. The lawsuit also accused the D.C. government of failing to inform residents about the problem.

The Paul, Hastings, Janofsky & Walker LLP law firm in Northwest sued on behalf of Capitol Hill residents Amy Harding-Wright and Ellen Shaw and Hill East Inc., a community activist group.

In legal filings, the attorneys said the D.C. government disavowed responsibility for WASA and treated the agency “as if it were the proverbial ugly stepchild,” even though “the District government and WASA have been joined at the hip in their response to the lead contamination problem.”

The attorneys also criticized a task force D.C. officials formed earlier this year in response to the lead problem.

“Despite citywide concern over how the lead crisis would be handled, the Interagency Task Force met behind closed doors [and] ultimately produced a 31-page report that roundly applauded WASA’s response to the lead crisis,” the attorneys argued in a legal brief filed in May.

When the lawsuit was filed, city officials were concerned that a judgement against the District or a legal settlement could cost taxpayers hundreds of millions of dollars.

WASA was split from D.C. government in 1996 and now controls its own finances. However, D.C. Mayor Anthony A. Williams still appoints six of the 11 members of WASA’s board of directors.

Judge Kennedy ruled that D.C. officials weren’t responsible for WASA actions.

“The mayor’s ability to appoint WASA’s board members and the mayor and D.C. Council’s ability to review and make recommendations concerning WASA’s budget simply do not mean that the District controls WASA’s finances or that the District can be sued,” the judge wrote.

Judge Kennedy said the plaintiffs also failed to offer any evidence that the District was required to disclose information about lead contamination. He said WASA, not the District, was charged with complying with federal guidelines for notifying residents about lead contamination.

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