2016-06-02 Hagens Berman Philadelphia Lead Complaint

8/16/2019 2016-06-02 Hagens Berman Philadelphia Lead Complaint

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FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

COURT OF COMMON PLEAS OF PHILADELPHIA

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10-284

ELENI DELOPOULOS, individually and on behalf of all others similarly situated,

Plaintiff,

v.

CITY OF PHILADELPHIA,

Defendant.

No.

JURY TRIAL DEMANDED

Case ID: 160503980

Filed and Attested by the

Office of Judicial Records

02 JUN 2016 11:28 am

C. FORTE


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Christopher A. SeegerSEEGER WEISS LLP77 Water Street New York, NY 10005Telephone: (212) 564-2300Facsimile: (212) [email protected]

Steve W. BermanHAGENS BERMAN SOBOL SHAPIRO LLP1918 Eighth Avenue, Suite 3300Seattle, WA 98101Telephone: (206) 623-7292Facsimile: (206) [email protected]

Scott Alan GeorgeIdentification No. 81996SEEGER WEISS LLP

1515 Market Street, Suite 1380Philadelphia, Pennsylvania 19102Telephone: (215)564-2300Facsimile: (215) [email protected]

Elizabeth A. FeganMark VazquezHAGENS BERMAN SOBOL SHAPIRO LLP

455 N. Cityfront Plaza Drive, Suite 2410Chicago, IL 60611Telephone: (708) 628-4949Facsimile: (708) 628-4950 [email protected] [email protected]

Attorneys for Plaintiff and the Proposed Class

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY - CIVIL TRIAL

ELENI DELOPOULOS, individually and on behalf of all others similarly situated,

Plaintiff,

v.

CITY OF PHILADELPHIA,

Defendant.

No.

JURY TRIAL DEMANDED

CLASS ACTION COMPLAINT

Case ID: 160503980

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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TABLE OF CONTENTS

Page

I. INTRODUCTION ............................................................................................................. 1

II.

JURISDICTION AND VENUE ........................................................................................ 3

III. PARTIES ........................................................................................................................... 3

IV. FACTUAL ALLEGATIONS ............................................................................................ 3

A.

Overview of Lead Poisoning ................................................................................. 3

B. The City Knows the Water Supply Is at Risk for LeadContamination ........................................................................................................ 7

C.

The Lead and Copper Rule .................................................................................. 11

D. Despite the Risks of Lead Contamination in the Water, the CityIntentionally Adopted a Testing Protocol in Violation of the Leadand Copper Rule, Contrary to EPA Guidelines, and Designed toAvoid Revealing Lead Contamination................................................................. 13

E. The City Disproportionally Tests Low-Risk Homes in Violation ofthe Lead and Copper Rule and Skewing Its Overall Test Results ....................... 14

F. The City Instructs Residents to Collect Samples in Such a Way asto Increase the Likelihood of a False Negative .................................................... 16

G.

The City Has No Excuse for Using These Modified TestingProcedures and Has Been Aware of Their Likelihood to ConcealLead Contamination for Years ............................................................................. 18

V. CLASS ALLEGATIONS ................................................................................................ 20

A. Numerosity ........................................................................................................... 21

B. Common Questions of Fact or Law ..................................................................... 21

C.

Typicality ............................................................................................................. 22

D.

Adequacy ............................................................................................................. 22

E. Superiority............................................................................................................ 22

VI. CLAIMS ALLEGED ....................................................................................................... 23

COUNT I MEDICAL MONITORING ....................................................................................... 23

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COUNT II NEGLIGENCE .......................................................................................................... 24

COUNT III INVERSE CONDEMNATION ............................................................................... 25

PRAYER FOR RELIEF .............................................................................................................. 26

VII.

JURY DEMAND ............................................................................................................. 27

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Plaintiff, Eleni Delopoulos, individually and on behalf of all others similarly situated,

through her attorneys, complains as follows:

I. INTRODUCTION

1. The City of Philadelphia (the “City” or “Defendant”) has known and

acknowledged that, for years, construction projects and water main repairs have caused elevated

and unsafe levels of lead to contaminate the water traveling through its residents’ homes.

Indeed, certain officials with the City’s Water Department have contributed to or actively

participated in studies that, at the very least, revealed Philadelphia’s water supply to not be as

safe as previously believed.

2. For example, one study, led by the Water Research Foundation, showed how the

practice of partially replacing a lead service line not only pollutes the water supply with lead in

the short term, but also creates the perfect conditions for the remaining lead pipe to corrode

much more quickly. The result is that lead slowly and intermittently leaches into a resident’s

drinking water over time. And yet, the City employs this practice nonetheless.

3. Furthermore, another 2006 study exposed certain lead testing methods as the

reason a significant contamination in Durham, North Carolina, went undetected. The City, who

participated in the study, continues to employ these methods anyway.

4. Despite these blatant red flags, the City has not only failed to initiate any change,

take preventative measures, or warn its residents, but has also actively taken steps to conceal the

problem. The City accomplishes this deception by rigging its lead testing procedures in two

ways.

5. First, the City tests an inordinate amount of low risk homes, diluting its testing

pool and skewing the results in such a way as to paint a woefully inaccurate picture of the City’s

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overall lead contamination. In 2014, for example, a whopping two-thirds of the homes tested by

the City came from homes with little risk of lead contamination. Such a practice is not only

deceptive, reckless, and unethical, but plainly violates federal law; EPA regulations require a city

the size of Philadelphia, which has thousands of residences with lead service lines, to collect

samples from exclusively high-risk homes.

6. Second, in the event the City actually does collect a sample from a high-risk

home, it does so in such a way as to increase the likelihood of a false negative. Specifically, the

City instructs its residents to take three steps when collecting the water sample: (1) remove the

aerator from the faucet; (2) run the water for two minutes the night before collecting the sample;

and (3) slowly run the faucet when filling the bottle. These three instructions, while seemingly

inconsequential, can temporarily hide a home’s lead contamination. In fact, the EPA and water

experts around the country specifically advise municipalities against using such testing

procedures for this reason. The City continues to defiantly ignore these warnings.

7. To date, the City’s excuses for its shortcomings have been insincere and illogical.

Simply put, the City has no scientific or legitimate basis for implementing its suspect

methodology, thereby illuminating its true motive: to obfuscate and conceal the citywide lead

contamination problem.

8. Because of this negligent, reckless, and deceptive conduct, Plaintiff, her child, and

the Class face a significantly increased risk of lead poisoning. Accordingly, Plaintiff seeks to

recover the costs of diagnostic testing necessary to detect lead poisoning to her, her child, and the

Class. Further, given that the City has interfered with their private property and caused damage

that cannot be reversed, Plaintiff seeks to require the City to replace her service lines in full.

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II. JURISDICTION AND VENUE

9. This Court has jurisdiction pursuant to 42 Pa. C.S.A. §§ 931, 5301 because

Defendant is a municipal corporation that resides in and regularly conducts transactions in the

Commonwealth of Pennsylvania.

10. Venue is appropriate in this Court pursuant to Rule 1006 of the Pennsylvania

Rules of Civil Procedure because the Defendant is located in Philadelphia County and all of

Plaintiff’s claims arise from transactions and occurrences that took place in both the City and

County of Philadelphia.

III. PARTIES

11. Plaintiff Eleni Delopoulos is a resident of the City of Philadelphia, residing on

South 48th Street, with her minor son. The City is currently replacing the water mains on her

block. She did not receive any advance warning of the work or related risk. As a result of the

City’s actions, Plaintiff and her family are at an increased risk of lead exposure and poisoning.

12. Defendant is a municipal corporation and political subdivision of the

Commonwealth of Pennsylvania.

IV. FACTUAL ALLEGATIONS

A. Overview of Lead Poisoning

13. Lead is a dense, malleable, naturally occurring metal that has been used by people

in a variety of ways for thousands of years. Lead has been used in construction materials,

batteries, and gasoline, to name just a few of its applications.

14. With its many useful properties, lead initially seemed like the perfect material

with which to construct plumbing; it is “soft enough to form into shapes that deliver water most

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efficiently,” while still being strong enough to resist leaks.1 Thus, for nearly two centuries, cities

across the United States, including Philadelphia, installed miles upon miles of lead piping in their

water supplies. Over time, however, science has shown lead to be highly poisonous to humans.

And given its widespread use for so long, lead remains a dangerous environmental contaminant

whose adverse health effects have been well documented.2

15. Generally, lead exposure harms an individual’s nervous system. This can result in

a number of medical afflictions, including neuropathy, motor nerve dysfunction, weakened

immunity to disease, renal failure, gout, hypertension, muscle and joint pain, memory and

concentration problems, and infertility. Lead exposure has also been identified as a probable

cause of cancer.3

16. For a child, however, the effects of lead poisoning can be far more dramatic.

Children “are more sensitive to lead exposure than adults because of the immaturity of the blood-

brain barrier, increased gastrointestinal absorption, and hand-to-mouth behaviors, all of which

increase exposure.” Even the slightest amount of lead in a child’s blood stream is dangerous;

“no safe blood lead threshold for the adverse effects of lead on infant or child neurodevelopment

has been identified.”4

1 Lead in Plumbing, SAFEPLUMBING.ORG, https://www.safeplumbing.org/health-safety/lead-in-plumbing (last visited Apr. 14, 2016).

2 Mary Jean Brown & Stephen Margolis, Lead in Drinking Water and Human Blood Lead Levels in the United States, 61 MORBIDITY & MORTALITY WKLY. R EP. (SUPP.) 1, 1 (August 10,2012), available at http://www.cdc.gov/mmwr/pdf/other/su6104.pdf.

3 Id. at 2; World Health Organization, Lead in Drinking-water: Background document fordevelopment of WHO Guidelines for Drinking-water Quality, 5-8 (2011), available at http://www.who.int/water_sanitation_health/dwq/chemicals/lead.pdf; see also “What expertagencies say,” LEAD - CANCER .ORG, http://www.cancer.org/cancer/cancercauses/othercarcinogens/athome/lead (last visited February 9, 2016).

4 Brown & Margolis, supra n.2, at 2.

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17. Given this sensitivity and the way it affects the central nervous system, lead has

unsurprisingly been shown to interfere with a child’s cognitive function, growth, and

development. In addition to the symptoms descried above, pediatric lead poisoning can result in

lower IQ, reading disabilities, attention deficit disorder, hyperactivity, behavioral problems,

delinquency, stunted growth, and hearing impairment.5

18. Moreover, lead is a cumulative poison; that is, your body does not change lead

into any other form, allowing it to accrue in the body. Shortly after lead is introduced to the

body, it travels via the blood stream to soft tissue and organs, where it may remain for years.

Much of the lead, however, ultimately settles in one’s bones and teeth, where it can potentially

remain for decades.6

19. Consequently, the effects of lead poisoning on children can be “long lasting,” if

not “permanent.”7

20. Indeed, children exposed to lead may not experience any issues until they are

adults and certain events occur. For example, when a woman gets pregnant, the lead may begin

to leach from her bones where it previously lay dormant and pass through the placenta and

umbilical cord to the baby, causing the baby to be born with increased blood lead levels.8

Similarly, menopause may rouse previously latent lead deposits in a woman’s bones to travel

5 Committee on Environmental Health, Lead Exposure in Children: Prevention, Detection,and Management , 116 PEDIATRICS 1036, 1037-38, 1041 (2005) (“Pediatrics”), available at http://pediatrics.aappublications.org/content/pediatrics/116/4/1036.full.pdf.

6 U.S. Department of Health & Human Services, Toxicological profile for lead-update, 7-8(Aug. 2007), available at http://www.atsdr.cdc.gov/toxprofiles/tp13.pdf.

7 Pediatrics, supra n.5, at 1038.

8 Centers for Disease Control and Prevention, Guidelines for the Identification andManagement of Lead Exposure in Pregnant and Lactating Women, 30-31 (Nov. 2010), availableat http://www.cdc.gov/nceh/lead/publications/leadandpregnancy2010.pdf.

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through her body, causing a number of health issues, including increased blood pressure, nerve

disorders, muscle and joint pain, and problems with memory or concentration.9

21. With such health problems comes massive financial costs. The annual costs of

environmentally attributable diseases in American children total $54.9 billion, of which the vast

majority arises from lead poisoning; it is estimated that the total cost of lead poisoning in the

U.S. each year is $43.4 billion.10

22. One such cost is associated with a blood test, a universally recognized method for

testing lead levels. The relatively simple but reliable procedure compares the amount of lead

identified in the blood sample to the published reference level of 5 micrograms per deciliter

(µg/dL), established by the Center for Disease Control. Thus, a person exhibits elevated lead

levels when the amount of lead contained in the sample exceeds 5 µg/dL. 11

23. Blood lead testing can also signal the need for further medical examinations,

which can lead to a more definite diagnosis.

24. Lead poisoning is, of course, entirely preventable, but hundreds of thousands of

children in the U.S. become poisoned regardless, and Philadelphia’s rate of lead poisoning

remains alarmingly high. According to the Pennsylvania Department of Health in 2014, of the

9 Dana Lintea, Lead Poisoning and Menopause: How Similar Are They? Does Lead Make Menopause Worse?, GLOBAL LEAD ADVICE & SUPPORT SERVICE, 1 (July 2010), available at https://www.lead.org.au/fs/Lintea_Lead_poisoning_and_menopause_20100728.pdf.

10 See Philip J. Landrigan, et al., Environmental Pollutants and Disease in AmericanChildren: Estimates of Morbidity, Mortality, and Costs for Lead Poisoning, Asthma, Cancer, and

Developmental Disabilities, 110 E NVTL. HEALTH PERSPECTIVES 721, 726 (July 2002), availableat http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1240919/pdf/ehp0110-000721.pdf.

11 Standard Surveillance Definitions and Classifications, CDC.GOV,http://www.cdc.gov/nceh/lead/data/definitions.htm (last visited Apr. 5, 2016).

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nearly 36,000 children tested in Philadelphia under the age of seven, more than one in every ten

exhibited elevated blood lead levels.12

B. The City Knows the Water Supply Is at Risk for Lead Contamination

25. In 1986, President Ronald Reagan signed into law an amendment to the “Safe

Drinking Water Act.” The amendment, which sought to increase protections on the nation’s

drinking water, imposed a ban on the use of lead piping in public water systems.13

26. Philadelphia’s public water system, however, existed long before 1986, and thus

contains thousands of lead service lines (i.e., the pipes connecting to the residence to the water

main) throughout the city. The Philadelphia Water Department estimates that it delivers drinking

water via lead pipes to approximately 60,000 homes in Philadelphia.14

27. Not surprisingly, these lead service lines pose a health concern. According to

EPA estimates, “lead contaminated water could account for 5-50% of children’s total lead

exposure and for more than 85% of total lead exposure for formula-fed infants.”15

12 Pa. Dep’t Health, Childhood Lead Surveillance Annual Rep., 46 (2014), available at http://www.health.pa.gov/My%20Health/Infant%20and%20Childrens%20Health/Lead%20Poisoning%20Prevention%20and%20Control/Documents/2014%20Lead%20Surveillance%20Annual%20Report%20r2.pdf.

13 Press Release, Environmental Protection Agency, President Signs Safe Drinking WaterAct Amendments (June 20, 1986), available at http://www.epa.gov/aboutepa/president-signs-safe-drinking-water-act-amendments; 42 U.S.C. § 300g-6.

14 Pat Loeb, Philadelphia Water Department Offers Tips to Avoid the Risks of Lead

Plumbing, CBSLOCAL.COM, Mar. 21, 2016,http://philadelphia.cbslocal.com/2016/03/21/philadelphia-water-department-offers-tips-to-avoid-the-risks-of-lead-plumbing.

15 Letter from American Academy of Pediatrics to Aaron Yeow of EPA (Mar. 22, 2011),available at https://yosemite.epa.gov/sab/sabproduct.nsf/177871EFC7607CD08525785C0050AAB1/$File/aa pcomments.PDF.

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28. To minimize this risk, Philadelphia treats the water supply with a chemical –

specifically, zinc orthophosphate. This treatment chemically reacts with the surface of the pipes

to form a thin coating on the interior of the water mains, house services, and plumbing to prevent

the pipes from corroding and lead leaching into the drinking water.16

29. The chemical treatment is not, however, 100 percent effective. The anti-corrosion

treatment can fail for a number of reasons, especially when pipes are disturbed by construction or

street work, water and sewer main replacement, meter installation or replacement, or plumbing

repairs.17

30. The sizable disturbances caused by such projects – for example, drilling,

hammering, and sawing – disrupt the coating that protects the service lines from corrosion. This

lapse in protection then allows for alarmingly high levels of lead to leach from service lines into

the nearby residents’ water supply.18

31. In a 2013 recent study, experts compared a number of water samples collected

from various homes. Of the 13 sites where there had been a recently documented physical

disturbance (i.e., construction, plumbing repairs, etc.), virtually all of them produced samples

that exceeded federal safety regulations19:

16 Philadelphia Water Department, Meeting the Lead Standard (2015), available at http://www.phila.gov/water/PDF/LeadStandard_2015.pdf

17 See generally Miguel Del Toral, et al., Detection and Evaluation of Elevated Lead Release from Service Lines: A Field Study, 47 E NVTL. SCI. & TECH. 9300 (2013).

18 Id. at 9304.

19 Id.

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32. Furthermore, these disturbances can release lead from service lines for weeks or

months, meaning lead contamination can persist in one’s drinking water long after the

disturbance has occurred.20

33. This phenomenon is hardly a recent revelation. Indeed, the City has known about

the problem for years and even acknowledged its existence as far back as 2010.21

34. Disturbances to lead service lines, however, are not the only cause of lead

contamination during construction projects. During water main or meter replacement, the City

has to reconnect the lead service lines to the newly installed water mains or meters. To do so,

the City performs what is known as a partial lead service line replacement, whereby it replaces

20

American Water Works Association, Communicating About Lead Service Lines: A Guidefor Water Systems Addressing Service Line Repair and Replacement, 2 (2014), available athttp://www.awwa.org/Portals/0/files/resources/publicaffairs/pdfs/FINALeadServiceLineCommGuide.pdf.; see Del Toral, supra n.17, at 9304.

21 Phi. Water Dep’t, Drinking Water Quality Report 2010, available at http://www.phila.gov/water/wu/Water%20Quality%20Reports/WQR2010.pdf (“when disturbed,these [lead service] lines can contribute to lead in tap water”).

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only the portion of the service line necessary to reconnect it to the public water supply. To

achieve this, the City must cut directly into the lead service line, which can cause even more lead

particulates to break off from the pipe and contaminate the water supply.22

35. Additionally, contamination from partial service line replacements occurs when

the City replaces sections of the lead pipe with copper. Lead and copper, being dissimilar

metals, create what is known as a “galvanic cell” (i.e., a battery) when “in contact with the same

aqueous solution.” When “[t]he different electrochemical properties of the metals can result in

one of them (the anode) corroding faster” than it would under normal conditions. When lead and

copper are connected, lead acts as the “anode,” thus causing it to corrode more aggressively than

normal and exacerbating any lead contamination to the resident’s water supply.23

36. The City has long known of the dangers associated with partial lead service line

replacements. At the very least, the City discovered these risks in 2008, when Washington, D.C.

stopped its accelerated lead service line replacement program due to the dangers of galvanic

corrosion causing lead contamination.24

37. Since that time, experts have continuously documented the relationship between

lead contamination and partial lead service line replacements. For example, in September of

2011, the EPA’s Science Advisory Board found that the available data indicates that partial lead

22 Water Research Foundation, Contribution of Galvanic Corrosion to Lead in Water AfterPartial Lead Service Line Replacements 1 (2010), available at http://www.waterrf.org/PublicReportLibrary/4088b.pdf.

23 Water Research Foundation, Galvanic Corrosion Following Partial Lead Service Line

Replacement 3-4 (2013), available at http://www.waterrf.org/PublicReportLibrary/4349.pdf ;Letter from American Academy of Pediatrics to Aaron Yeow of EPA (Mar. 22, 2011), availableat https://yosemite.epa.gov/sab/sabproduct.nsf/177871EFC7607CD08525785C0050AAB1/$File/aapcomments.PDF.

24 Michael E. Ruane, WASA Backs Off Lead Pipe Program, WASHINGTON POST, Sep. 5,2008, available at http://www.washingtonpost.com/wp-dyn/content/article/2008/09/04/AR2008090403613_2.html.

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service line replacement “may pose a risk to the population, due to the short-term elevations in

drinking water lead concentrations.”25 Likewise, the American Academy of Pediatrics

recommended a moratorium on the practice because “[t]here is considerable evidence that, under

certain conditions, partial lead service line replacements cause persistent, often intermittent,

elevated water lead levels.”26 Both the CDC’s Advisory Committee on Childhood Lead

Poisoning Prevention and the EPA’s Children’s Health Protection Advisory Committee have

also expressed concerns about elevated lead concentrations in drinking water from partial lead

service line replacements.27

38. A manager with the Philadelphia Water Department even advised one such study

conducted by the Water Research Foundation in 2013.28

39. Nevertheless, the City continues to ignore these dangers and, as detailed below,

has recently gone so far as to conceal these risks to the public.

C. The Lead and Copper Rule

40. The Lead and Copper Rule (“LCR”) is the existing federal regulation for the

sampling of water. The goal of the LCR is to manage lead levels in drinking water by setting a

“lead action level.” Currently under the LCR, the “lead action level is exceeded if the

concentration of lead in more than 10 percent of tap water samples collected during any

25 Letter from EPA and SAB to Hon. Lisa P. Jackson re: SAB Evaluation of the Effectivenessof Partial Lead Service Line Replacements (Sep. 28, 2011), available at http://www.epa.gov/sites/production/files/2015-09/documents/sab_evaluation_partial_lead_service_lines_epa-sab-11-015.pdf.

26 Letter from American Academy of Pediatrics to Aaron Yeow of EPA (Mar. 22, 2011).

27 See Important update: Lead-based Water Lines, CDC.GOV,http://www.cdc.gov/nceh/lead/waterlines.htm; American Water Works Association, supra n.20, at 5.

28 Water Research Foundation, Galvanic Corrosion Following Partial Lead Service Line Replacement , supra n.23, at xxi.

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monitoring period . . . is greater than 0.015 mg/L.” In such a scenario, a municipality will be

required to take certain steps to resolve the issue, such as informing the public and replacing lead

service lines when present in the system.29

41. When the EPA first published the LCR in 1991, municipalities serving more than

50,000 people, such as Philadelphia, were required to collect and test samples from 100 sites

biannually. If a municipality did not exceed the lead action level for three consecutive years, it

could then proceed with “reduced monitoring,” whereby eventually it would only need to collect

and test samples from 50 sites once every three years.30 The City currently collects samples

under the reduced monitoring requirements.

42. Under the LCR, samples should only be collected from certain types of sites,

which the EPA divides into three tiers. Tier 1 includes “single family structures” (or, in some

instances, “multi-family residences”) that either contain lead piping or “copper pipes with lead

solder installed after 1982,” or that are served by a lead service line. Tier 2 includes “buildings”

and “multi-family residences” that either contain lead piping or “copper pipes with lead solder

installed after 1982,” or that are served by a lead service line. Finally, Tier 3 includes

“single family structures” that contain “copper pipes with lead solder installed before 1983.”31

43. Tier 1 sites are most vulnerable to lead contamination and are deemed a priority

under the LCR. Municipalities should therefore collect samples exclusively from Tier 1 sites –

half of which should be served by lead service lines – and only resort to collecting samples from

Tier 2 sites when there are not enough Tier 1 sites to complete the testing. Tier 2 sites are

deemed the second most vulnerable sites and, likewise, municipalities should only collect from

29 See 40 C.F.R. §§ 141.80-.85.

30 Id. § 141.86(d).

31 Id. § 141.86(a).

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Tier 3 sites in the event there are collectively not enough Tier 1 and Tier 2 sites to complete

testing. Given the size and age of Philadelphia, which contains approximately 60,000 homes

with lead pipes, the City should collect its samples exclusively from Tier 1 sites under the

LCR.32

44. The LCR also requires the City to collect the samples in a manner consistent with

specified collection methods. First, all samples should be “first-draw” samples, defined as “a

one-liter sample of tap water . . . that has been standing in plumbing pipes at least 6 hours and is

collected without flushing the tap.” Second, all samples “shall be collected from the cold water

kitchen tap or bathroom sink tap.” Third, the samples “may be collected by the system or the

system may allow residents to collect first-draw samples after instructing the residents of the

sampling procedures specified in [the LCR].”33

D. Despite the Risks of Lead Contamination in the Water, the City Intentionally

Adopted a Testing Protocol in Violation of the Lead and Copper Rule, Contrary to

EPA Guidelines, and Designed to Avoid Revealing Lead Contamination

45. The collection methods promulgated by the LCR attempt to replicate a “worst

case” scenario by testing the most vulnerable sites under conditions where lead exposure is most

likely to occur. The purpose of such testing is to help water utilities best assess whether their

water treatment has been effective in reducing lead and other contaminants in homes most

susceptible to contamination.34 Indeed, despite treating its water with an anticorrosive chemical

32 Id.; see also Lisa Riordan Seville, Is Philadelphia Testing Its Drinking Water Correctly?, NBCNEWS.COM, Feb. 19, 2016, available at http://www.nbcnews.com/storyline/flint-water-crisis/philadelphia-testing-its-drinking-water-correctly-n521036 (“Cities are supposed to draw alltheir test homes from ‘Tier 1.’”).

33 40 C.F.R. § 141.86(b)(2).

34 Maximum Contaminant Level Goals and National Primary Drinking Water Regulations forLead and Copper, 56 Fed. Reg. 26460-01 (Jun. 7, 1991).

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since the 1980s, the City exceeded the lead action level when it first began LCR testing in 1992

and specifically sought to test water samples from high-risk homes.35

46. Since then, however, the City has gradually altered its strategy to avoid testing

under the worst case scenario conditions that the LCR intends to capture. Specifically, the City

selects a disproportionate number of low risk sites for LCR testing, while simultaneously

advising residents to collect water samples in such a way that, unbeknownst to them, increases

the likelihood of a false negative when testing for lead. These methods – some of which plainly

violate the LCR and all of which defy valid justification – are designed to game the system and

elude exceeding the lead action level. Meanwhile, as the City sweeps the problem under the

rug, the residents of Philadelphia are left inadequately protected from a highly toxic and

dangerous contaminant.

E. The City Disproportionally Tests Low-Risk Homes in Violation of the Lead and

Copper Rule and Skewing Its Overall Test Results

47. One way the City covers up the problem with lead contamination is through site

selection. In particular, the City tests an inordinate number of Tier 3 sites – which are far less

likely to have lead contamination – thereby diluting the testing pool with low risk homes.

According to experts, this allows the City to favorably skew the overall test results, minimizing

the risk of exceeding the LCR’s lead action level and avoiding any ensuing responsibilities on

the part of the City.36

35 Ramona Smith, Is There Lead in Your Water? Who Knows, PHI. DAILY NEWS, Oct. 6,2004, at 8.

36 See Seville, supra n.32; see also Lynn Rebuck, Township’s Sampling from Only Lowest-Risk Homes Could Mislead Residents Regarding Actual Lead Risk, LITITZDAILY NEWS.COM,http://lititzdailynews.com/2016/02/8665.

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48. In 2002, the City came very close to exceeding the lead action level after testing

63 sites – 54 from Tier 1 homes and 9 from Tier 3. In fact, the City would have exceeded the

lead action level had it not been able to “fudge[] its results by tossing aside one single high

reading.” According to the City, the test result “didn’t jibe” with prior tests and asked to retake it

because the homeowner had recently “changed a shower faucet.” While water departments are

not supposed to discard high tests “except under very limited circumstances,” the Pennsylvania

Department of Environmental Protection allowed the Water Department to retest the home

anyway, and the City just barely avoided exceeding the lead action level.37

49. In subsequent testing years (i.e., 2005, 2008, 2011, and 2014), however, the City

began testing fewer high-risk Tier 1 homes, while simultaneously testing more low-risk Tier 3

sites. Not surprisingly, the ratio of sites reflecting elevated lead levels diminished after the City

began using this diluted testing pool.38

50. In 2014, for example, the City tested 134 sites, of which only 42 were the high-

risk Tier 1 homes. These 42 homes represented less than a third of the total testing pool. A city

like Philadelphia, however, has thousands of homes with lead service lines and should be testing

exclusively high-risk Tier 1 homes.39

51. According to one expert, the City’s failure to test the requisite number of Tier 1

homes is inexcusable:

“A city like Philadelphia, which has thousands of lead lines, shouldhave been able to find sufficient ‘Tier 1’ homes,” said [Marc]Edwards of Virginia Tech. “Provide me with the addresses and

37 Smith, supra n.35; Carol D. Leonnig, Jo Becker and David Nakamura, Lead Levels inWater Misrepresented Across U.S., WASH. POST, Oct. 5, 2004, available athttp://www.washingtonpost.com/wp-dyn/articles/A7094-2004Oct4.html.

38 Seville, supra n.32.

39 Id.

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phone numbers of [Philadelphia] homes with lead pipe, and thefunding, and we will sample hundreds of those homes,” he stated.“I am shocked and saddened by their excuses for failing to meetthe minimum requirements of the law.”40

52. Not surprisingly, the City does not have any excuse for its failure to test the

required number of Tier 1 homes. According to Philadelphia Water Department Director Gary

Burlingame, the City recruited “enough participants to more than complete [its] LCR sampling”

in 2014.41 And yet the City continues to insist it “went above and beyond the sampling pool

required [by the LCR].”42

F. The City Instructs Residents to Collect Samples in Such a Way as to Increase the

Likelihood of a False Negative

53. In addition to testing an inordinate number of low-risk sites, the City also advises

its citizens to take three particular steps when collecting a water sample aimed at lowering the

chances lead will end up in the tested sample.

54. First, the City advises its residents: “Remove the aerator from the faucet. Leave

the aerator off until sampling is completed.”43

55. Second, the City directs its residents to “pre-flush” the tap before collecting any

sample: “Run only the cold water for 2 minutes. Cold water should be the last water run

through this faucet before the 6 or more hours stagnation period.”44

40 Id.

41 Email from Gary Burlingame, Director of Laboratory Services, Philadelphia Water

Department, to Yanna Lambrinidou (Oct. 6, 2014).42 Seville, supra n.32.

43 Letter from Yanna Lambrinidou, PhD, Affiliate Faculty, Virginia Tech, to PhiladelphiaResidents, 4 (Jan. 23, 2016), available at http://flintwaterstudy.org/wp-content/uploads/2016/01/Dear-Philadelphia-Residents.pdf (emphasis in original).

44 Id. (emphasis in original).

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56. Lastly, the City tells its residents to “[s]lowly fill the bottle with only cold

water.”45

57. Each of these steps can result in underestimating the amount of lead in a

resident’s water supply and serves no other purpose but to bias the test results.

58. For example, when water contaminated with lead passes through a faucet, tiny

lead particles will often get caught in the aerator. These particles then slowly break up into

smaller and smaller pieces that eventually fit through the screen and contaminate the water. By

having residents remove the aerator prior to collecting a sample, the City reduces the chances

that those particles will end up in the water it ultimately tests.

46

59. Furthermore, the longer water sits in the lead service line the more likely it is to

be contaminated.47 Pre-flushing the water for two minutes can clear out the water sitting in the

lead service line and reduce the odds that the collected sample will test positive for lead.48

60. Finally, water that flows very slowly from the tap is less likely to wrestle any lead

particles from the interior of the pipes and get into the sample. Thus, by instructing residents to

slowly fill the bottle, the City not only fails to accurately reflect the manner in which people

typically use their faucets, but also avoids having to test the worst case samples it is supposed to

be collecting.49

45 Id.

46 Id. at 1, 4.

47 Sandee LaMotte, How To Test for Lead in Your Home Water Supply, CNN.COM, Feb. 10,2016, available at http://www.cnn.com/2016/01/21/health/lead-testing-home-drinking-water.

48 Lambrinidou Letter, at 2-4; Cameron McWhirter, et al., Flint Crisis Puts U.S. Water-Testing Methods Under Scrutiny, WALL ST. J., Feb. 4, 2016, available at http://www.wsj.com/articles/flint-crisis-puts-u-s-water-testing-methods-under-scrutiny-1454607587.

49 Lambrinidou Letter, at 3-4.

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G. The City Has No Excuse for Using These Modified Testing Procedures and Has

Been Aware of Their Likelihood to Conceal Lead Contamination for Years

61. The City fully understands that the testing procedures it uses obscure the test

results and misrepresent the safety of Philadelphia’s drinking water.

62. For example, in Spring 2006, a child in Durham, North Carolina, tested positive

for elevated blood lead levels, prompting public health officials to test his apartment and various

locations throughout Durham for lead contamination. The Durham County Health Department

found not only significant lead contamination at the apartment, but also in 35 to 40 additional

sites throughout the city. The Durham Department of Water Management tested many of these

same sites but surprisingly found only three that showed signs of contamination. The Water

Resources Research Institute of the University of North Carolina conducted an independent

review of Durham’s response to the crisis and, in its report, attributed the vast discrepancy

between test results primarily to the fact that the Durham Department of Water Management

removed the aerators on the faucets prior to testing; Gary Burlingame, a scientist for the

Philadelphia Water Department, participated in the review.50

63. Following the Durham lead contamination, the issue of removing aerators prior to

testing became a point of concern amongst water experts.51 The EPA promptly issued guidance

in a memorandum on October 20, 2006. In the memorandum, in underlined text, the EPA

explicitly condemned the practice. The memorandum explained:

[I]f customers are only encouraged to remove and clean aerators prior to drawing a sample to test for lead, the public water system

50 Water Res. Research Inst. of the Univ. of N.C., Report of Third Party Review of Eventsand Responses of the Dept. of Water Mgmt. City of Durham, N.C. to the Identification of a Child

with Elevated Blood Lead Level in the Home of a Customer , at 5, 14, 54–64 (Mar. 2007),available at http://www.wral.com/asset/news/local/2007/04/05/1261961/durhamwaterreport.swf.

51 Id. at 14.

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could fail to identify the typically available contribution of leadfrom that tap, and thus fail to take additional actions needed toreduce exposure to lead in drinking water. Therefore, public watersystems should not recommend that customers remove or cleanaerators prior to or during the collection of tap samples for lead.52

64. The Philadelphia Water Department, however, continues to instruct residents to

remove the aerators in the face of explicit EPA guidance and expert opinions to the contrary.

Indeed, Burlingame – who witnessed firsthand the effect of removing the aerators when

reviewing the Durham contamination – defended the City’s doing so as “good practice” because

“[the aerator] should be cleaned at least twice a year anyway.”53 But this justification makes

little sense, as the City does not advise residents to clean the aerator at all, merely instructing

them to remove it from the faucet prior to testing.54

65. Recently, the EPA released another memorandum that not only reiterates its

position with respect to removing aerators, but also advises against the use of the pre-flushing

technique employed by the City in collecting water samples. Specifically, the EPA noted that

sampling instructions should “not contain a pre-stagnation flushing step” because it “removes

water that may have been in contact with the lead service line for extended periods, which is

when lead typically leaches into drinking water.” 55

52 Memorandum from Stephen Heare, Director, EPA Drinking Water Protection Division, toEPA Drinking Water Branch Chiefs, Regions I-X, at 2 (Oct. 20, 2006), available at http://durhamnc.gov/DocumentCenter/View/3632 (emphasis in original).

53 Anna Orso, The Truth About Lead in Philly, and What You Can Do About the Problem,BILLYPENN.COM (Feb. 22, 2016), available at http://billypenn.com/2016/02/22/the-truth-about-lead-in-philly-and-what-you-can-do-about-it.

54 Lambrinidou Letter, at 4.

55 Memorandum from Peter C. Grevatt, Director, EPA Office of Ground Water & DrinkingWater, to Water Division Directors, Regions I-X, at 1–2 (Feb. 2016) available at https://www.epa.gov/sites/production/files/2016-02/documents/epa_lcr_sampling_memorandum_dated_february_29_2016_508.pdf.

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66. In the same memorandum, the EPA acknowledges the problem with collecting the

sample for LCR testing using a slow flow rate from the faucet. The EPA thus recommends using

wide-mouth bottles to “allow for a higher flow rate during sample collection which is more

representative of the flow that a consumer may use to fill up a glass of water.”56

67. The City has not and cannot offer any legitimate reason for why it uses collection

methods that violate both the letter and intent of the LCR. As the EPA memorandum illustrates,

the City’s testing methods merely serve to distort test results that are supposed to reveal the level

of lead contamination in the City’s water supply in high-risk homes. Instead, the City’s

negligent and reckless actions frustrate the goals of the LCR. Then, only adding to the

confusion, the City makes impossible claims that “Philadelphia’s drinking water is lead free,”57

which contradicts what even their flawed testing methods reveal. As a result, the City leaves all

of its residents in the dark about the safety of their water supply. And, more importantly, those

residents whose water supply has been contaminated with lead continue to drink and use this

toxic water, completely unaware of the consequences and health risks they face.

V.

CLASS ALLEGATIONS

68. Plaintiff seeks certification of the following Class pursuant to the Pennsylvania

Rules of Civil Procedure:

All residents of the City of Philadelphia who have resided in anarea where the City has replaced the water mains or meters between January 1, 2006 and the present.

56 Id.

57 Testimony of Debra McCarty, Commissioner, Philadelphia Water Dept. (Mar. 21, 2016),available at

http://www.phila.gov/water/wu/Lead%20Information/City_Council_Testimony_03_21_16.pdf.

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69. Pennsylvania Civil Procedure provides that an action may be maintained as a

class action if:

(1) the class is so numerous that joinder of all members isimpracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties aretypical of the claims or defenses of the class;

(4) the representative parties will fairly and adequately assertand protect the interests of the class under the criteria setforth in Rule 1709; and

(5) a class action provides a fair and efficient method foradjudication of the controversy under the criteria set forthin Rule 1708.58

A. Numerosity

70. Pursuant to Rule 1702(1), Class members are so numerous that their individual

joinder is impracticable. The precise number of Class members is unknown to Plaintiff, but the

number of people residing in the areas where the City has undertaken water infrastructure

projects greatly exceeds the number considered in this judicial district to make joinder

impossible.

B. Common Questions of Fact or Law

71. Pursuant to Rule 1702(2), questions of fact and law, except as to the amount of

damages each member of the Class sustained, are common to the Class. Common questions of

law and fact predominate over the questions affecting only individual Class members. Some of

the common legal and factual questions, without limitation, include:

58 Pa. R. Civ. P. 1702.

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a. Whether the City’s construction, street work, meterinstallation or replacement, and plumbing repairs causedlead to leach into Plaintiff’s and Class members’ watersupply, putting them at risk of lead poisoning;

b. Whether the City owed a duty to Plaintiff and Classmembers to fully comply with the LCR and EPAguidelines;

c. Whether Defendant intentionally misrepresented the safetyof the Plaintiff’s and Class members’ drinking water tothem and the public; and

d.

The nature and extent of damages and other remedies towhich Defendant’s conduct entitles Plaintiff and the Classmembers.

C.

Typicality

72. Pursuant to Rule 1702(3), Plaintiff’s claims are typical of the claims of the other

members of the Class. Plaintiff and Class members all face the same risk of lead poisoning as a

result of the City’s actions to conceal contamination levels by adjusting its testing protocol. In

other words, Plaintiff and Class members were subject to, and were harmed by, a common policy

and practice applied by the City.

D. Adequacy

73. Pursuant to Rule 1702(4), Plaintiff will fairly and adequately protect the interests

of the Class. Plaintiff is familiar with the basic facts that form the bases of the Class members’

claims. Plaintiff’s interests do not conflict with the interests of the other Class members that she

seeks to represent. Plaintiff has retained counsel competent and experienced in class action

litigation and intends to prosecute this action vigorously.

E. Superiority

74. Pursuant to Rule 1702(5), a class action is an appropriate method for the fair and

efficient adjudication of this controversy because joinder of all Class members is impracticable.

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The prosecution of separate actions by individual members of the Class would impose heavy

burdens upon the courts and Defendant, and would create a risk of inconsistent or varying

adjudications of the questions of law and fact common to the Class. A class action would

achieve substantial economies of time, effort and expense, and would assure uniformity of

decision as to persons similarly situated without sacrificing procedural fairness.

VI. CLAIMS ALLEGED

COUNT I

MEDICAL MONITORING

75. Plaintiff incorporates by reference all other paragraphs of this Complaint as if

fully set forth here.

76. Defendant’s water main and construction projects have caused lead to leach into

Plaintiff’s water supply.

77. Instead of attempting to disclose or remedy the problem, Defendant intentionally

and negligently misrepresented the safety of the drinking water, assuring the public that it is

completely safe, and even taking steps to ensure that the dangerously high levels present in the

water supply would not be detected by altering its testing protocol.

78. Defendant’s negligence in this regard has exposed Plaintiff to elevated lead levels

in her water supply and subjected her family to a significantly greater risk of lead poisoning.

79. Even when repeatedly faced with a wealth of warnings from water experts and the

EPA, Defendant refuses to change its flawed testing methods. Nor for that matter has Defendant

made any effort to protect or warn the City’s residents. Instead, Defendant has turned a blind

eye to these inconvenient truths, opting to double-down on statements that its water remains

completely safe.

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80. As a result, Plaintiff has been exposed to harmful lead levels that could negatively

affect her health for many years to come.

81. Plaintiff, being at increased risk, requires blood tests to detect the presence of lead

poisoning. While some patients visiting a doctor’s office may receive routine blood tests, these

tests will not detect lead unless a patient is aware of his or her exposure and specifically requests

such testing.

82. Moreover, blood testing is the preferred method by which to test for lead

poisoning, making such a program reasonably necessary here, where Plaintiff has been

continuously exposed to contaminated drinking water.

83. Plaintiff and Class members are thus entitled to the establishment of a medical

monitoring program that includes, among other things:

(1)

Establishing a trust fund, in an amount to be determined, to pay for the medical monitoring of all Class members; and

(2) Notifying all Class members in writing that they mayrequire frequent medical monitoring necessary to diagnoselead poisoning.

COUNT II

NEGLIGENCE



85. Defendant owed Plaintiff a duty to exercise reasonable care in providing safe

drinking water, reasonably free from dangerous contaminants such as lead that would expose her

to the unnecessary health risks documented herein.

86. Defendant failed to exercise reasonable care when, despite knowing how its

construction projects and partial lead service line replacements contaminated the water supply of

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Plaintiff and Class members with lead, it actively concealed such contamination by altering its

testing protocol in such a way as to increase the likelihood of false negatives.

87. Defendant knew or should have known that Plaintiff and the Class members

would foreseeably suffer injury from lead exposure as a result of Defendant’s failure to exercise

ordinary care.

88. Defendant’s negligence proximately caused Plaintiff’s and the Class members’

damages and their increased risk of harm as documented herein.

89. Plaintiff and Class members are therefore entitled to the establishment of a

medical monitoring program that includes, among other things:

(3) Establishing a trust fund, in an amount to be determined, to pay for the medical monitoring of all Class members; and

(4) Notifying all Class members in writing that they mayrequire frequent medical monitoring necessary to diagnoselead poisoning.

COUNT III

INVERSE CONDEMNATION



91. Plaintiff and Class members own or reside at properties that adjacent to

construction or street work, meter installation or replacement, or plumbing repairs conducted by

Defendant.

92. The tremors and vibrations created by Defendant’s construction work and

plumbing repairs placed a significant amount of trauma on the lead service lines connected to the

residences of Plaintiff and Class members. This disturbance to the service lines has caused lead

to contaminate Plaintiff’s and Class members’ residential water supply.

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93. Moreover, in completing water main repairs, Defendant has performed partial

lead service line replacements, cutting into the lead service lines on Plaintiff’s properties and

refitting them to copper pipes and connections. In so doing, Defendant has not only exposed

residents in the short term to lead contamination from cutting into the service line, but has

potentially also subjected those residents to lead exposure over time should galvanic corrosion

cause more and more lead to taint the water supply.

94. Accordingly, Defendant’s construction, water main repairs, and partial lead

service line replacements have caused irreversible damage to Plaintiff’s property. Plaintiff and

Class members are thus entitled to compensation for the damage to their lead service lines

caused by Defendant’s work and seek amounts necessary to fully replace their lead service lines

with copper piping.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff requests that this Court enter an order or judgment against

Defendant including the following:

A. Certification of the proposed Class pursuant to the Pennsylvania Rules of Civil

Procedure;

B. Designation of Plaintiff as representative of the proposed Class and designation of

Plaintiff’s counsel as Class counsel;

C. The establishment of a medical monitoring program that includes, among other

things:

(5) Establishing a trust fund, in an amount to be determined, to pay for the medical monitoring of all Class members; and

(6) Notifying all Class members in writing that they mayrequire frequent medical monitoring necessary to diagnoselead poisoning;

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D. Compensatory damages, including an amount sufficient to fully replace existing

lead service pipes with copper pipes or other appropriate lines and repair accompanying damage;

E. The costs of bringing this suit, including reasonable attorneys’ fees; and

F. All other relief to which Plaintiff may be entitled at law or in equity.

VII. JURY DEMAND

Plaintiff demands a jury trial of twelve jurors on all issues and claims that can be so tried.

DATED this 2nd day of June, 2016. Respectfully submitted,

By _____/s/ Scott George______Scott Alan GeorgeIdentification No. 81996SEEGER WEISS LLP1515 Market St., Suite 1380Philadelphia, Pennsylvania 19102Telephone: (215)564-2300Facsimile: (215) [email protected]

Christopher A. SeegerSEEGER WEISS LLP77 Water Street New York, NY 10005Telephone: (212) 584-0700 Facsimile: (212) [email protected] (admission pro hac vice to be sought)

Steve W. BermanHAGENS BERMAN SOBOL SHAPIRO LLP1918 Eighth Avenue, Suite 3300Seattle, WA 98101Telephone: (206) 623-7292Facsimile: (206) 623-0594

[email protected] (admission pro hac vice to be sought)

Elizabeth A. FeganMark VazquezHAGENS BERMAN SOBOL SHAPIRO LLP455 N. Cityfront Plaza Drive, Suite 2410

Case ID: 160503980

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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Chicago, IL 60611Telephone: (708) 628-4949Facsimile: (708) 628-4950 [email protected] [email protected]

(admission pro hac vice to be sought)

Attorneys for Plaintiff and the Proposed Class

Case ID: 160503980

mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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