WAPA Files Motion to Dismiss Suit Over Lead in St. Croix Water

The V.I. Water and Power Authority has filed a motion to dismiss a class action lawsuit over high levels of lead and copper detected last year in St. Croix’s potable water system, while the plaintiffs have filed an amended complaint, adding Seven Seas Water Corporation (USVI) as a defendant.

The 48-page amended suit, first filed in V.I. Superior Court in November, alleges WAPA, Seven Seas Water Solutions USA LLC, and now Seven Seas Water Corporation (USVI) — the company that makes St. Croix’s potable water through reverse osmosis — provided residents with unsafe water, failed to properly monitor the water the utility was providing and failed to timely warn of the unsafe condition of the water, which resulted in damage to the people of the island. The 19 plaintiffs named in the suit are represented by St. Croix attorney Lee Rohn, who has said they could eventually number in the thousands.

Among the plaintiffs’ complaints are ongoing skin irritation, stomach pain, fatigue, memory issues, nausea, joint pain, headaches and hair loss, as well as property damage from the rust-colored water that stains everything from clothes to appliances, the suit alleges.

It claims negligence, gross negligence, trespass, public nuisance, and private nuisance because the contaminated water has damaged plaintiffs’ properties and caused personal injuries, and seeks to compel medical monitoring because they have been physically impacted by the contamination.

WAPA first notified customers of the problem on Oct. 14 after the Environmental Protection Agency and local government departments ran tests in September to determine the source of recurring brown/red water that has been afflicting St. Croix residents off and on for years. The results revealed elevated levels of lead and copper that, in some cases, were hundreds of times those deemed safe by the EPA at 35 of 66 locations tested. The lawsuit notes that while the agency has minimum thresholds, no level of lead is safe for human consumption.

Gov. Albert Bryan Jr. issued a “no drinking” advisory for the potable water system on St. Croix on Oct. 16 and declared a territorial State of Emergency on Oct. 30. President Joe Biden designated the issue a federal emergency on Nov. 19, freeing up resources to address the problem, including distributing water vouchers to households in affected neighborhoods.

However, subsequent investigation revealed that the test results might have been artificially elevated by sampling deviations that did not follow EPA standards, such as collecting samples at areas other than customer taps, and in smaller than usual containers, which might have made contaminants to appear more concentrated than they are.

At a meeting in November with reporters, government officials said the situation was exacerbated by a prolonged drought, an influx of sargassum last summer that impaired water production at the reverse osmosis plant, and some 67 percent of customers who rarely if ever use their V.I. Water and Power Authority water. All combined to create low water levels and stagnant water in ductile iron pipes that are more than 70 years old in some cases, officials with WAPA and the Department of Planning and Natural Resources said.

The pipes also have old plumbing fittings that contain higher levels of lead than current EPA standards permit, allowing heavy metals to leach into the water when it sits long enough, they said. The entire infrastructure is due to be replaced with more than $1 billion in FEMA funding, but that will take years, possibly decades.

In its 11-page motion to dismiss the suit, filed Feb. 16 by general counsel Dionne G. Sinclair, WAPA argues that the plaintiffs have failed to state a claim upon which relief can be granted and cannot support an allegation of negligence, let alone the “wanton, reckless behavior” that would rise to the level of gross negligence. It says it quickly alerted customers to the test results, flushed water lines, issued advisories on ways to mitigate possible exposure, helped establish programs to provide bottled water and filters to affected households, and retested.

Moreover, sequential testing in December using the correct protocols found results consistent with levels seen in other communities across the country, WAPA notes in its motion.

Additionally, the plaintiffs “repeatedly conflate the presence of discolored water, not necessarily considered harmful by the Environmental Protection Agency (EPA), with the presence of lead and copper. The overlap is so pervasive as to render uncertain the claimed impact of lead or copper, if any,” WAPA argues, writing in a footnote that the brown water does need to be addressed, even if it is not hazardous.

“Indeed, the enumerated effect upon each Plaintiff appears limited to discolored water and not to the presence of copper or lead. However, even if clarified and accepted as true, Plaintiffs’ allegations fail to assert actual injury from hazardous water. No claim has been asserted as to elevated lead levels suffered individually traced back to the water. No claim has been asserted as to elevated lead levels in the home traced back to the water. No claims as to copper, which when exposed can yield immediate deleterious effects,” it said.

The complaint is also overly broad, with plaintiffs petitioning for class status to be defined as “[a]ll persons and entities that are citizens of St. Croix who utilize water supplied by the Virgin Islands Water and Power Authority,” according to WAPA’s motion.

“Like every area of the Complaint, these overbroad generalities erroneously seek to encompass all Cruzan [sic] customers of the Authority rather than to advocate for those experiencing elevated levels of lead or copper connected to the supplied potable water. Indeed, in the unfortunate event a customer’s exposure is confirmed, then that said customer would not be similarly situated to the named Plaintiffs or the defined class,” the motion states. “Those suffering from elevated levels hold no commonality in law or facts to the representative Plaintiffs who are merely ‘on St. Croix who utilize water supplied by the Virgin Islands Water and Power Authority,’” it said.

“Plaintiffs failed to demonstrate that they have suffered an actual injury directly attributable to the Authority’s actions or inactions. This foundational requirement is not only essential for the establishment of standing but also for the substantive merit of the claim itself. In the instant case, the complaint lacks any concrete allegations or evidence substantiating the occurrence of an actual injury, rendering the causes of action legally insufficient. The absence of an actual injury means that there is no justiciable controversy for the court to adjudicate, and consequently, the case does not meet the threshold requirement necessary for the court’s involvement,” the motion states.