In September, the city of Chesapeake, VA, will defend itself in state court against 170 women who blame their miscarried pregnancies in the 1980s and 1990s on high levels of disinfection byproducts (DBPs) in the city's water, alleging Chesapeake officials did everything from under-informing the public on the risks of DBPs to deliberately falsifying test data.

The suits were spurred by Chesapeake’s disclosure in 1998 that a study had linked high levels of DBPs - contaminants often produced when chlorine from water-treatment processes reacts with organic matter - to an increased risk of miscarriages, and that drinking five glasses of Chesapeake water a day could put pregnant women at risk. Trihalomethanes (THMs) - a category of DBP - had troubled the city’s surface water system for years.

The lawsuits have received heavy publicity in and around Chesapeake, with constant ads from a well-known personal injury firm, Joynes & Gaidies, openly soliciting would-be plaintiffs. Experts predict that, if the suits are successful, they could spawn additional suits in other municipalities and mean to public awareness of DBPs what the Erin Brockovich lawsuits meant to chromium6 and what the suit against W.R. Grace & Co. - which gave rise to the book and movie A Civil Action - meant to arsenic. In short, sales of point-of-use reverse osmosis (RO) systems and carbon filters could increase substantially in affected communities.

Counties with potentially increased miscarriage and birth defect risks from chloronization byproducts based on measured THM levels in tap water from community water suppliers.

However, a set of unique market conditions and subtle miscues in Chesapeake have hindered a run on the equipment to date. Experts say well-documented problems with Chesapeake’s water could allow DBP lawsuits to stick and spawn lawsuits - and increased point-of-use (POU) sales - in other municipalities, but dealers will first have to study and learn from the difficulties being experienced by Chesapeake's POU industry.

A suit with legs

Literally hundreds of frivolous class-action lawsuits are filed each year, but suits over Chesapeake's water are almost instantly granted an air of legitimacy because of very public water problems the city has struggled with for years.

The city draws much of its water from the Northwest River, which, in times of heavy wind or rain, gets backflow from the brackish waters of Currituck Sound. In the past, this issue resulted in water with TDS as high as 4,000, and only the installation of a $75-million RO plant in 1998 helped solve the problem.

“When you’d tell people you lived in Chesapeake, their first question would be what you’re doing about the water,” said Bucky Domanski, owner of Culligan of Greater Virginia, a POU dealership based in Portsmouth. “We were selling to commercial customers who were using desalination to make ice. There was a hotline for TDS and THMs, and I used to call it daily.”

The problem with THMs, and DBPs in general, has consistently dogged Chesapeake, which has turned to everything from chlorine dioxide (1983), to air-stripping towers (1985), to chloramines (1986) to address the problem. However, the suit alleges that the city continued experiencing THM spikes up to 700 to 800 parts per billion - up to eight times US Environmental Protection Agency (EPA) limits - throughout the 1980s and 1990s, which the city wasn’t required to include in water quality reports.

A section of the city also continued receiving water from the Chickahominy River, via Norfolk and Portsmouth, which used chlorine until 2000, when the cities were forced to switch to chloramines to comply with tougher EPA regulations on DBPs that went into effect in January.

Scandal breaks

A scandal started to erupt in 1998, when Chesapeake Health Director Dr. Nancy Welch received a controversial study printed in the Journal of Epidemiology that concluded pregnant women who drank more than five glasses per day of water containing 75 ppb or more of DBPs were 65 percent more likely to suffer miscarriages. Welch issued a public notice advising pregnant women to boil water or drink bottled water, posted advisories on television, and did a mailing of the study to all Chesapeake households.

It wasn’t long before women who had miscarried or given birth to babies with neural tube defects began approaching law firms such as Joynes & Gaidies. The firm began conducting interviews throughout the Chesapeake area, and, under Virginia’s unusual laws pertaining to class-action suits, filed 170 separate lawsuits, which it will now consolidate. The firm is being assisted by Willcox & Savage, a Norfolk, VA, firm with an environmental division.

When the consolidated suit goes to trial in September 2002, lead attorney Louis N. "Mike" Joynes plans to parade before a Chesapeake court a host of women who:

· Miscarried around the same time on the same street;

· Had complication-free pregnancies before moving to Chesapeake; and

· Had complication-free pregnancies after leaving Chesapeake.

“We’ve been contacted by more than 1,000 women, everyone from doctor’s wives to welfare mothers,” said Joynes. “What’s really horrendous is some were professional women who waited until later in life to start a family, and now they feel it’s too late.”

The city of Chesapeake may very well be the underdog in the fight to prove DBPs from its water were not the cause of adverse health effects, when the city has struggled mightily to keep THM levels under EPA limits for years.

The city has sought a change of venue, worrying that its history of water problems may cause some trouble seating an unbiased jury in Chesapeake.

“I have never seen a city being sued that asked for a trial somewhere else,” said Joynes, who points out local juries often can be more lenient when they know large awards can lead to tax hikes.

Chesapeake is largely refusing to comment on the lawsuit, simply extending sympathy to those who feel they have an issue with the water and pointing to the nearly $80 million the city has spent on water improvements in the past 20 years. At present, the city is focusing on arguments that it enjoys sovereign immunity - which precludes some lawsuits that require money to be paid from a governmental treasury for the benefit of a handful of individuals - and that the cases were not filed within the statute of limitations.

Impact on POU

The billion-dollar question is why more Chesapeake dealerships aren't cashing in from constant publicity about one of the largest tap-water lawsuits ever.

“We thought it would be part of our daily business and I’m surprised we’re not getting more attention from the public,” said Domanski. “At a home show or fair, some people might bring it up, but has it made people look more at our equipment? I’d say no.”

Doug Whalen, president of Chesapeake-based dealership Hydrologix, says his company has done some filter and RO installations because of concerns over DBPs - but not many.

Chesapeake, in fact, is not likely to provide the model for how POU dealers can see sales skyrocket from public concerns over DBPs. Rather, the difficulties faced by the city's dealers will provide learning tools that could prove invaluable to dealers in other municipalities that may face DBP-related lawsuits.

Chesapeake dealers have essentially faced four main obstacles in increasing sales to citizens concerned about DBP levels.

1.) Market penetration is already good.
Residents willing to spring for POU systems did so years ago, when they made a rush on dealers because a debate over the city's switch to chloramines had residents concerned that, without chlorine, their water wouldn't be properly disinfected. Dealers estimate up to 40 percent of Chesapeake homes already have some type of POU equipment.

2.) Bottled water beat POU to the punch.
People who are concerned about the city’s water and don't have POU systems are drinking bottled water and have been for years. On a per-gallon basis, POU systems can provide the same quality water for less, but bottled water drinkers have been stubborn, because they feel a high level of security with bottled water.

3.) POU must educate the educated.
Water has been a constant problem in Chesapeake, and many residents are very up to speed on present situations with their tap water. Many educated residents understand that infrastructure improvements, such as the RO plant and the switch to chloramines, have reduced DBPs as a threat to Chesapeake water. These people are tough sells.

4.) Hucksters are keeping POU dealers from adopting a more proactive strategy.
Reputable POU dealers have been forced to adopt a more passive approach to communicating about DBPs in order to distance themselves from a handful of dealerships who are loudly playing up fears to sell equipment, hurting the local image of POU. Whalen said he has even seen a flyer distributed around Chesapeake asking residents if they are being “poisoned” by the local water.

“That type of behavior is a concern,” said Water Quality Association Technical Director Joe Harrison. “It’s bad for the industry and it’s the kind of thing we have to keep our eyes on.”

Increased awareness - and its risks

WQA’s Harrison believes that the Chesapeake lawsuits are going to raise public awareness of DBPs, which are not as well known to the masses as arsenic, for example. That publicity, which Harrison believes could even engender the Hollywoodization of DBPs, could be a boon for POU dealers who implement smart and objective communications strategies.

“After the lawsuits, the concern won’t be less and neither will the market,” he said. “There will be an increase in human awareness and this suit, and several studies, are making us more and more certain that DBPs cause health problems, and not just cancer.”

Increased publicity for DBPs will certainly provide opportunities for some shady, back-alley POU dealerships to prey upon public fear to sell equipment. The challenge for the POU industry, Harrison said, will be providing an early, balanced assessment of DBP issues and not playing up consumer fears in areas where DBPs are well under control.

In communities with DBP issues, POU will need to immediately present a trustworthy, objective front, before disreputable hucksters and alternative-solutions providers dominate the market.

“We do not want to overplay our hand or unduly alarm anyone,” said Harrison. “The biggest criticism EPA makes about our industry is that we undermine confidence in their standards and products. We can’t unfairly do that, and we have to focus on ways to say the water is safe but could be safer.”

The next Erin Brockovich?

POU dealers in communities with high DBP levels will want to have educational materials, and an action plan, in place, as experts believe the legal action in Chesapeake will likely spawn suits in additional municipalities.

However, Joynes isn’t ready to say that the Chesapeake lawsuits will be the next Erin Brockovich case, pointing out it’s much too early in the process to know what will happen.

“The judge could rule against us right out of the box, although I don’t think he should,” he said. “But most of the cities in the country are watching what’s happening in Chesapeake and we’re hoping other cities know that someone will come after them.”

The lawsuit is on the radar screen for Philadelphia-Suburban, Bryn Mawr, PA, an operator of investor-owned utilities providing water and wastewater services to approximately 2 million residents in Pennsylvania, Ohio, Illinois, New Jersey, Maine and North Carolina. Company Spokeswoman Keya Epps said the company is taking some solace in the fact that the lawsuit has not been filed in federal court.

“We’re always interested in decisions that are rendered in these cases because of their effect on the water treatment industry, but unless it reaches the federal level, we don’t think there will be precedent set that would affect us,” said Epps.

Gregory McKelvey, head of McKelvey Environmental Management, Kittanning, PA, a consulting firm that advises municipalities on water issues, believes additional lawsuits over DBPs are bound to surface in other communities, regardless of what happens with the Chesapeake litigation.

“In many cases when you have some type of contamination that involves public scrutiny, as part of the matrix you have these lawsuits unfold. In almost every case, major legislation also results.”

Joynes believes a lesson learned from the Chesapeake situation is that POU dealers should play an important role in solving other communities' DBP problems. As communities face their DBP issues, and possible lawsuits, water officials and residents alike will see RO and carbon filtration as economical solutions to a tough problem.

“The city issued a bulletin just telling women to boil water for a minute, but it didn’t address that they were volatizing THMs by boiling,” he said. “This entire situation could have been helped if the city had given affected people RO systems.”