The Centers forDisease Control and Prevention (CDC) and other experts agreethat there is no amount of exposure to lead that is considered“safe.”

The effects of exposure to lead on the human body arewell-known. Young children, especially those age six and under, areparticularly susceptible to its effects — behavioral, cognitive andphysical — which can be irreversible.

While most lead exposure in children is caused by contaminatedpaint, dust and dirt, it is generally accepted that about 20percent of overall exposure results from contaminated drinkingwater. The presence of lead in drinking water has been a concernfor decades. That fear was heightened recently because of theongoing public health crisis caused by lead contamination in Flint,Michigan's drinking water that began in 2014.

History of lead legislation & drinkingwater

The Safe Drinking WaterAct (SDWA) was enacted by Congress in 1974 to protect publichealth by regulating the nation's public drinking water supply. The1986 amendments to the SDWA set specific standards limiting theconcentration of lead in public water systems.

The Lead Contamination Control Act of 1988 (LCCA)required states to establish remedial action programs for theremoval of lead contaminants from drinking water systems in schoolsand day care centers. However, in 1996, the United States Court ofAppeals for the Fifth Circuit declared unconstitutional the LCCA'srequirement that the states establish remedial action programs forschools and day care centers because it violated the TenthAmendment (ACORN v. Edwards).

Recognizing that lead enters drinking water primarily throughplumbing materials, in 1991, the U.S. EnvironmentalProtection Agency (EPA) published a regulation known as theLead and Copper Rule (LCR). The LCR required publicwater utilities to monitor lead concentrations in drinking water,to undertake additional steps if action levels were exceeded, andto then inform the public of steps that should be taken to protecthealth.

Federal law prohibited consumer use of lead-based paintbeginning in 1978. However, the use of lead pipes, plumbingfixtures and solder was not banned until 1986. Even then, brassplumbing fixtures contained significant amounts of lead until2014.

How drinking water is supplied

In the United States, 90 percent of the population is providedwith drinking water through public water systems. About 80 percentof schools and day care centers also receive drinking water throughpublic water systems.

All public water systems are required to comply with the EPA'sLead and Copper Rule, which requires testing for leadcontamination. Such testing is not required of schools and day carecenters that do not own and operate their own wells.

Related: You don't live in Flint? Lead is your problem,too

Testing in compliance with the LCR is performed before the waterenters the public water system. That does not ensure that the waterthat children drink in schools and day care centers is free fromlead contamination. On the contrary, most lead contamination comesfrom sources inside the building itself, such as lead servicelines, pipes, water cooler coils and linings, and leaded metalfountains and fixtures.

In simple terms, the supply of drinking water travels throughwater mains (primary feeders) to branch lines (secondary feeders)and from there to service lines to individual buildings andresidences. The primary and secondary feeders are usually locatedon public rights-of-way and are serviced by the municipality orother provider. Service lines, however, which run from the feederto the building, are commonly the responsibility of the owner.

Although schools and child care centers are generally notrequired to test their drinking water, the EPA has issuedguidelines to assist them in determining and reducing lead levels.(Photo: iStock)

How some public water systems haveresponded

Many feeder lines were originally installed more than 100 yearsago, and were made of lead. Some municipalities, such as Chicago,Ill.; Madison, Wis.; and Lansing, Mich., for example, have replacedall of their lead feeder pipes. However, many service lines arestill made of lead, particularly in the Midwest and the Northeast.In the city of Chicago alone it is estimated that 400,000 leadservice lines remain in use.

When Madison, Wis., replaced its lead feeder lines, the waterutility required all property owners to replace lead service linesat the owners' cost. Unlike most municipalities, Lansing, Mich.,also owns the service lines and replaced those along with thefeeder lines.

Current regulation of schools and day carecenters

Currently, there is no Federal law requiring that schools andday care centers test their water for the presence of lead. Manystates and school districts also have no testing requirements.Short of money, understaffed, and lacking the necessary expertise,schools and day care centers most often do not test their drinkingwater until required to by some outside agency or event.

It may be assumed that any school or day care buildingconstructed prior to 1986 contains lead pipes, copper pipes joinedby lead solder, and brass fixtures containing lead. Even buildingsconstructed prior to 2014 are still likely to have brass fixturescontaining lead.

The estimated cost of removing lead plumbing from olderbuildings is staggering, totaling tens of billions of dollars. Nonational plan exists to address the issue; relatively few plansexist at the state or local level.

Lead contamination of drinking water is a particularly acuteproblem in buildings housing schools and day care centers. Water inthe buildings' pipes is frequently not used over weekends andvacations and becomes stagnant. How long water remains in abuilding's plumbing affects the extent to which lead is leachedfrom plumbing materials and enters the water. Other factors includethe chemistry of the water (acidity and alkalinity), the amount oflead with which it comes into contact, and the presence of anyprotective scales or coatings inside the plumbing materials.

Steps taken by schools and day carecenters

Although schools and child care centers are generally notrequired to test their drinking water, the EPA has issuedguidelines to assist them in determining and reducing lead levels.The three-part process consists of: (1) testing the water, (2)training school and child care center officials to be aware of andidentify potential sources of lead and establish a testing plan,and (3) disseminating relevant information.

Related: Does your homeowners' policy cover leadpoisoning?

Some schools and day care centers have taken the simple steps ofshutting off drinking fountains and faucets and supplying childrenwith bottled water. Other potential steps include: installingcorrosion control devices for individual buildings; installingpoint-of-use devices that control lead at the tap; and replacingoutlets at drinking fountains and faucets that have been identifiedas sources of localized lead contamination.

So far, however, relatively few schools and day care centershave undertaken the task of testing their water; the majority havenot and have no immediate plans to do so. Absent federal or statemandates requiring testing of schools and day care centers for leadcontamination in the drinking water, such testing is not likely tobecome widespread anytime soon.

Failure to conduct testing of drinking water to determinethe possibility of lead contamination provides a potential basis ofliability of schools and day care centers. (Photo:iStock)

Potential liability of schools and day carecenters

At present, it would be difficult for a school district or daycare center owner to assert that it was unaware of the risk ofcontamination of the building's drinking water supply. The mostlikely basis of liability would be the failure to either conducttesting of the drinking water for lead contamination or to retainthe services of a company with the expertise to do so.

Other potential bases of liability would include failure toproperly conduct the testing (which could implicate third-partyentities) and failure to undertake efforts to alleviate thecontamination. Whether such allegations of liability wouldcircumvent the immunities frequently afforded to school districtsunder state law for the most part remains to be seen.

Potential defenses to causation anddamages

Claims involving alleged exposure to drinking water contaminatedby lead do not always result in significant special damages.Rather, a likely argument is that based on epidemiological studies,the claimant's blood lead level alone is evidence of theprobability of neurodevelopmental deficits. Such epidemiologicalstudies have suggested the there is a relationship between bloodlead levels and the degree to which intellectual development isaffected.

It has not been definitively established that lowering of bloodlead levels prevents cognitive deficits. However, such studies havegenerally not attempted to account for other factors that affectneurodevelopmental risks in children, including poverty, whetherthe child resides in a single-parent household, whether the childwas born to a teen-aged mother, the possibility of child abuse andpoor nutrition.

The CDC has questioned the impact of the effects of blood leadlevels on neurodevelopmental development. Based on its analysis ofstatistical models and studies, the CDC concluded that increasedexposure to lead accounted for between 0 and 11 percent of themeasured variance in the neurodevelopmental status of children.Most commonly, the measured variance was on the order of only 1 to3 percent. The CDC concluded that other factors, particularlyparental intelligence and social class, accounted for much largervariances in the outcomes.

Failure to conduct testing of drinking water to determine thepossibility of lead contamination provides a potential basis ofliability of schools and day care centers. Although such testing isgenerally not mandated, concerns over lead contamination ofdrinking water have existed now for more than 50 years. The lack ofapplicable statutes or regulations does not preclude thepossibility of liability under state common law based on notice ofa potentially harmful or dangerous condition of the drinkingwater.

Questions are likely to remain in individual claims as to thenature and extent of any injuries, and whether and to what extentthose resulted from exposure to drinking water contaminated bylead.

Since lead exposure often has no symptoms, it's important toidentify and eliminate the risks of drinking water that iscontaminated with lead, since it has long been known to be toxic tohumans. Accordingly, it would not be surprising if doubts regardingcausation and damages were to be ultimately resolved in favor ofthe claimant.

Michael J. Progar, J.D., is a partner in Doherty & Progar LLC, with offices locatedin Chicago, Milwaukee, and Northwest Indiana. Doherty & Progaris a member of Your House Counsel, a national consortium of highlyqualified insurance and corporate liability defense lawfirms.