Groundwater & Drinking Water
B&D represents entities on groundwater and drinking water compliance and enforcement matters regulated under the Clean Water Act (CWA), Safe Drinking Water Act (SDWA), and Resource Conservation and Recovery Act (RCRA), including industrial and commercial businesses, municipalities, drinking water utilities, and industry associations.
We prepare comments and challenge EPA’s SDWA Drinking Water standards. B&D is one of the only—if not the only—firms that has successfully challenged a major EPA rulemaking regarding Maximum Contaminant Levels (MCLs) under the SDWA, and we have participated in rulemakings on some of the most significant MCLs, such as the Lead and Copper Rule.
We have successfully defended clients where individual plaintiffs, or groups of plaintiffs, have sought to bring claims under the SDWA citizen suit provisions and various tort-based theories of liability seeking damages arising from the alleged presence of drinking water contaminants, including lead and Legionella. We have also negotiated numerous Administrative Orders on Consent.
We assist industrial campuses and manufacturing facilities that are or may be regulated as public water suppliers under the SDWA and state counterparts to evaluate the sufficiency of current compliance programs and to plan for anticipated regulatory changes. This includes advising companies engaged in underground injection on requirements imposed by the SDWA’s Underground Injection Control (UIC) Program, including UIC disposal well issues, both in the permitting context and in litigation matters.
We have experience with emerging contaminants—such as PFAS and microplastics—in groundwater and drinking water, including tracking the development of state and federal drinking water standards and action plans, drafting comments on rulemakings, and representing companies in rulemaking challenges. We have in-depth knowledge of the federal environmental statutes that could be used to manage these contaminants, including the CWA; RCRA; SDWA; the Toxic Substances Control Act; and the Comprehensive Environmental Response, Compensation, and Liability Act.
Select Representative Work
- B&D recently defended the City of Newark in a high-profile SDWA citizen suit led by the Natural Resources Defense Council (NRDC) in federal court in the District of New Jersey. The plaintiffs claimed multiple violations of EPA’s Lead and Copper Rule related to Newark’s water sampling, lead service line replacement, corrosion control system, and public notices related to lead found at some residential taps in the City. After the B&D team defeated two preliminary injunction efforts by NRDC, the plaintiffs settled for Newark’s agreement to continue lead remediation efforts that were already underway or completed, and NRDC received no attorney fees for over two years of work, a highly unusual result.
- B&D represents a hospital owner/operator in multiple high-profile, complex, multi-party personal injury and wrongful death lawsuits alleging Legionella contamination of a regulated public water supply resulting in a community-wide disease outbreak. The plaintiffs seek $100 million in compensatory damages. This work involves developing and executing the defense strategy in coordination with local counsel in a sophisticated consolidated litigation involving thousands of claims. The case involves multiple expert disciplines such as microbiology, industrial hygiene, environmental science, epidemiology, toxicology, and environmental engineering.
- B&D negotiated an industry-wide consent decree for the regulation of drinking water on aircraft that provided the template for the cooperative rulemaking for the regulation of aircraft.
- B&D represents a Fortune 500 multinational corporation in several rulemaking challenges to state MCLs for certain PFAS compounds.
- B&D represented DC Water in a high-profile set of cases alleging injuries from exposure to lead in drinking water:
- In Parkhurst, multiple Plaintiffs in a consolidated tort action asserted that DC Water acted negligently, violated consumer protection laws, and caused injuries due to allegedly elevated levels of lead in water. B&D secured partial summary judgment for DC Water on negligence and statutory claims. Parkhurst v. DC Water & Sewer Authority, 2013 WL 1438094 (D.C. Super. Ct. 2013).
- In Juarez, after successfully obtaining summary judgment on a D.C. Consumer Protection Procedures Act claim, the firm moved to limit the testimony of the key Juarez causation expert, Marc Edwards, Ph.D., a nationally known lead expert who criticized DC Water for years in the media. After depositions and a multi-day evidentiary hearing in which B&D cross-examined Professor Edwards, plaintiffs agreed to settle Juarez and all of the remaining tort cases on very favorable terms. Juarez v. DC Water and Sewer Authority, No. 2010 CA 4412 B (D.C. Super. Ct. 2010).
- B&D defends the owner of a shopping mall against allegations that gasoline from a service station at the mall contaminated the potable wells and impaired the property value of more than two dozen households, posing a threat of cancer to the more than 70 plaintiffs in the case. The plaintiffs seek a total of $3 billion in compensatory and punitive damages. The case involves multiple expert disciplines such as oncology, toxicology, hydrogeology, environmental fate and transport, standards of care applicable to shopping mall owners, and land valuation issues.
- With the participation of other firm lawyers, B&D Chairman Ben Wilson served as the court-appointed monitor in United States v. Duke Energy Business Services LLC; Duke Energy Carolinas, LLC; and Duke Energy Progress, Inc., Nos. 5:15-CR-62, 67, 68-H (E.D.N.C 2014). Appointed as part of a criminal plea agreement relating to a 2014 coal ash spill by Duke Energy near Eden, NC, Ben and the B&D team oversaw Duke Energy’s development of a national coal ash compliance plan and implementation of that plan for 5 years, oversaw adjudication of drinking water contamination claims for 26 municipalities, and oversaw a $3.4 billion plan to close coal ash basins at 21 sites in five states. The B&D team also conducted a programmatic evaluation of Duke’s root cause analysis and corrective and preventive action processes.
- B&D successfully negotiated with EPA on behalf of an oil and gas concern to prevent a threatened enforcement action under the UIC Program.
- B&D represented a major transportation industry association and others in rulemaking challenges to relevant federal, state, and local underground injection requirements.
- B&D serves as national coordinating counsel to Sunoco in ongoing product liability litigation related to the gasoline additive MTBE and its alleged prevalence as a groundwater contaminant. The MTBE litigation is spearheaded by several of the country’s most formidable plaintiffs’ environmental firms. The docket has included cases brought by municipalities, water providers, and private well owners. Today, it is focused on massive national resource damages cases brought by states. B&D has played a significant role in developing strategy and handling key issues on behalf of the entire industry, in addition to its role defending Sunoco. The damages claimed by the various plaintiffs, which the defendants vigorously dispute, total in the billions of dollars.
- In the D.C. Superior Court, B&D defended a major power company against allegations that byproducts present in the environment from historic power generation operations caused leukemia contracted by adult users of a nearby recreational area, as well as a child in utero. Plaintiffs sought $110 million in compensatory damages. The case involved multiple expert disciplines, such as oncology, toxicology, epidemiology, hydrogeology, environmental remediation, historic power plant operations, standards of care in the 19th and 20th centuries, and economics. B&D negotiated a favorable settlement for the company.
- B&D defended a major utility company against lawsuits alleging damage from ash placement, including assertions of damage from groundwater impacts from ash leachate. One lawsuit was dismissed on summary judgment.
- In a major criminal matter, B&D defended a Fortune 50 commodity chemical manufacturer against federal and state claims that chlorinated solvents and plastic pellets migrated from a rail car cleaning facility into adjacent waters. Based on our development of a number of lines of defense, the governments ultimately did not prosecute the case.
- In a case that addresses when a product manufacturer can be liable for a nuisance created by a user of its product, B&D represents a large chemical company in a lengthy California state court matter where the City of Modesto alleges that manufacturers of a dry cleaning solvent are liable for contamination of the City’s water system (including its groundwater, wastewater, and drinking water systems) under multiple theories, including product liability, negligence, and nuisance. In the first trial phase of the case, the court ruled that the City was entitled to no relief against PPG. B&D argued an interlocutory appeal in the case that produced the leading California decision on the intersection of nuisance and product liability doctrines. The appeals court remanded portions of the case for retrial, finding that the trial judge had applied the wrong standard for causation on nuisance liability. This case has implications for California nuisance law, particularly after the court of appeal upheld the establishment of a lead paint nuisance abatement fund.