Class-Action Suit Alleges WAPA, Seven Seas Failed to Keep STX Water Safe

The WAPA facility on St. Croix. (Source file photo)

More than a dozen St. Croix residents have filed a class action lawsuit against the V.I. Water and Power Authority and Seven Seas Water Corporation over lead and copper contamination in the island’s water supply.

The 47-page suit, filed in V.I. Superior Court, alleges WAPA and Seven Seas Water provided residents of St. Croix 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 said in a statement on Monday that they are hopeful the issue can be resolved quickly.

“We are hopeful that the companies involved accept responsibility for their actions and that they and their insurance companies provide the citizens of St. Croix with potable water at their expense, not at the expense of the Virgin Islands’ ratepayers and taxpayers,” said Rohn. “We are in the process of serving the lawsuit on the Defendants and look forward to meaningful discussions as to how we can resolve these issues quickly and for the good of the people of St. Croix.”

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

It is seeking injunctive orders to reimburse the plaintiffs and class members for out-of-pocket expenses incurred to deal with the contamination, and to require the defendants to promptly complete full remediation and replacement of all lead service lines in the water system, including portions that are privately owned, at no cost to customers. It also seeks “appropriate equitable relief to mitigate the health and medical risks and harm” resulting from the lead and copper, and “pre-judgment and post-judgment interest at the maximum rate allowable by law.”

WAPA first notified customers of the contamination on Oct. 14 after the Environmental Protection Agency 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 the levels 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.

Seven Seas, which provides potable water for WAPA’s distribution at its reverse osmosis plant on St. Croix, has not been implicated in the contamination, and tests of its source water have all come back negative for copper or lead, government officials have said.

However, the lawsuit states that the high salinity of Seven Seas water — versus a previous system with a former supplier that utilized a desalination method — has increased the corrosion of WAPA’s aging infrastructure.

“The increased salinity in the Seven Seas water contributed to the breakdown of the metal pipes and metal materials used for those pipes’ joinder. Moreover, the resulting corrosion caused the impellers in the system’s water pumps to become clogged, which in turn caused those water pumps to fail,” according to the complaint.

The lawsuit states that among the benefits the Tampa-based company touts on its website is its “Water-as-a-Service” partnerships, “where the company works with clients to ‘address the many challenges clients face as they seek safe and reliable water: aging infrastructure, increasing regulation, rising demand, contaminants, and the heightened risk of climate change-associated drought.’ Through this process, the company designs, builds, operates, updates, and maintains infrastructure for its clients.”

Seven Seas knew or should have known that the high salinity of its water would damage and increase the deterioration of the metal pipes and materials used in WAPA’s system, the complaint states, and has had an active role in the maintenance of critical portions of the WAPA water system infrastructure.

According to the lawsuit, the “discovery of extremely high levels of lead and copper in the WAPA water system is just the latest in a series of failures by WAPA to provide and maintain a safe and toxin-free drinking water system on the island of St. Croix. Prior to the latest revelation, the WAPA water distribution system had been severely criticized for producing brown water that emitted a sargassum odor, as well as being subject to frequent leaks.”

It also questions the extent of the contamination, which in recent days officials have indicated 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.

While the government continues to search for answers to determine the true level of contamination, the lawsuit asserts that “there is no level of lead safe for human consumption,” and the findings are indicative of widespread and serious contamination of the WAPA water distribution system.

Aggressive flushing of water lines has helped to remove the lead and copper, but on Oct. 27 the Department of Planning and Natural Resources and WAPA “announced that at least some of the samples collected during the post-flushing re-sampling period nevertheless revealed the presence of detectable levels of lead and copper in WAPA water,” the complaint states.

The EPA’s findings have sent shockwaves through the St. Croix community, “given that many of WAPA’s customers have likely been exposed to the contaminated water for a significant period of time and have suffered, and will continue to suffer, adverse health consequences resulting from the exposure. Moreover, the discovery of these toxins in the WAPA water distribution system has effectively rendered the water produced from that system unconsumable for WAPA’s customers who have incurred costs, and are likely to continue to incur costs, to secure potable water by other means (e.g., by purchasing bottled water and water filtration systems),” the complaint states.

“Making matters worse, residents do not know how long they have been exposed to elevated levels of lead and copper in their water as WAPA has indicated that it only tests its water for these substances every three years,” it said.

WAPA has said EPA mandates that it test its water distribution system every three years at a random sampling of residential taps, and that the testing conducted in September at the island’s water mains and areas other than household faucets was done to try to determine the source of the brown/red water, which has been blamed on aging, corroded iron pipes that are due for replacement with $1.2 billion in Federal Emergency Management funding.

Nevertheless, any human consumption of lead and copper can lead to serious health consequences, including brain, liver and kidney damage, especially in young children and pregnant women, the lawsuit notes.

The principal source of copper in drinking water in the U.S. is corroded pipes, and utility companies and providers of water can mitigate or prevent such exposure by using chemical treatments to reduce leaching, the suit alleges.

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 complaint alleges.

“While WAPA has so far been unable to definitively identify the source of the lead and copper contamination, let alone properly remediate the present water crisis, it has foisted much of the responsibility for the consequences of its failed system on the residents of St. Croix,” it said. That includes asking residents to flush their water for up to 10 minutes before using it, which the lawsuit points out “would result in residents paying more for WAPA water,” which is metered, and adds insult to injury.

The complaint also takes issue with WAPA’s recommendation that residents identify and replace plumbing fixtures that contain lead, “despite their being no evidence that the elevated levels of lead discovered by the EPA were the result of residents’ own plumbing fixtures,” that they bear the cost of purchasing filters to remove contaminants from water that should be safe to begin with, and that they buy bottled water until the issue is resolved.

“Plaintiffs seek injunctive and monetary relief to remedy the harms from Defendants’ negligent, reckless, and careless ownership and operation of the WAPA water distribution system and Seven Seas’ negligent, reckless and careless production of water. Plaintiffs bring this action individually and on behalf of all individuals and entities who have suffered economic harm, property damages, and personal injuries as a result of the contamination of the water provided by WAPA and Seven Seas,” the lawsuit states.

“These damages further include, without limitation, the cost of a medical monitoring program to be established for the continual screening and detection of illnesses, diseases, or disease processes necessitated by the exposure to toxins contained in the WAPA-supplied water,” it said.

It is unknown how many plaintiffs might be represented in the class action, but Rohn said in the complaint that it is believed to be thousands.