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68 Notre Dame L. Rev. 399 (1992-1993)


Lead poisoning has become one of the most widespread and serious environmental diseases facing children in the United States. In response to the problem of childhood lead exposure, the Environmental Protection Agency (EPA) has promulgated expansive regulations to reduce drinking water lead levels. However, the regulations are not without significant gaps and shortfalls. Many improvements that the EPA requires need not be in place for years, and some households at risk of unsafe lead exposure receive no regulatory protection at all. One question that arises amidst these regulatory gaps is whether a plaintiff can hold a public water system liable in tort or contract for physical harm resulting from lead-contaminated drinking water.

At a time of widespread dissatisfaction with “tasseled loafers” and the tort system in general, this is one area where effective legislation to protect children from lead in drinking water could prevent unnecessary, uncertain, and tragic litigation. Although drinking water is one of the most widespread sources of childhood lead exposure, lead poisoning can be traced directly to drinking water only in some acute cases. Rather than wait to see if the courts will provide monetary damages to the most serious victims of lead poisoning, this Note suggests a legislative solution to eliminate the need for litigation and protect all households at risk of lead exposure from unsafe drinking water.

Part I explores the problem of childhood lead exposure, particularly from contaminated drinking water. A brief examination of the existing EPA Lead and Copper Rule in Part II demonstrates that some households are left unprotected and are thus more likely to raise future claims against public water systems. Part III examines the obstacles that face plaintiffs suing public water systems and the applicable theories of liability, particularly failure to warn. Finally, in Part IV, this Note proposes an amendment to the Safe Drinking Water Act to lend some protection to all households at risk of unsafe lead exposure and to eliminate the problems of litigation that face both consumers and water systems.


Reprinted with permission of the Notre Dame Law Review.



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