Illegal Water

A single resident of Chesapeake, Virginia, battles for the right to choose his own water supply

In 1969 the city council in my hometown of Chesapeake, Virginia, passed a law requiring all residents to hook up to municipal water lines. A number of cities in the nation, including the neighboring communities of Norfolk and Portsmouth, have mandatory connection ordinances; but they are not enforced, since most people prefer city water to well water—or did before the Environmental Protection Agency (EPA) revealed how poor the water quality is in most city systems.

The Chesapeake ordinance, however, outlawed the use of well water entirely wherever city water is available.

In the meantime, I read Paul Brodeur's The Expendable Americans, with its descriptions of the ubiquitousness and insidiousness of asbestos—a mineral put in thousands of products, from insulation to talcum powder. According to Brodeur, more than one million asbestos fibers can be laid side by side in a linear inch. The fibers are so small they can be seen only with an electron microscope, so tiny they pass readily through the placental wall. Inhaled, the fibers cause cancer. Doctors have long known that asbestos workers have a higher incidence of cancer, not only of the lungs, but of the stomach and colon, presumably because they swallow the fibers in their sputum.

Shortly after I read The Expendable Americans, the Chesapeake Department of Public Utilities installed asbestos-cement pipes in front of my home as part of an expanding municipal water system. I opened a file on asbestos in water and corresponded with the EPA and various experts on the link between cancer and asbestos.

As soon as the pipes were installed I was notified by the Utilities Department to connect to them or be taken to court under the 1967 law. The hookup cost: $500. Acting as my own attorney, I filed suit in circuit court, seeking an injunction preventing the city of Chesapeake from requiring me to use city water. My grounds: the pipes are potentially hazardous to my health. I went to trial in February 1975, taking with me my growing file of legal, technical, and medical papers written by the nation's foremost authorities on asbestos and cancer.

My case came before Circuit Judge Jerry Bray, who refused to admit any of my evidence. Indeed, he even rejected a verbatim transcript of the decision of Federal Judge Phillips Lord in the now-famous Reserve Mining case in which Lord stated there is evidence that asbestos in water is a health hazard. Nor would Bray admit a brochure published by the Asbestos/Cement Pipe Manufacturers Association, in which the association acknowledged that water passing through the pipes erodes asbestos fibers and that the fibers are carried into homes where they are ingested. (The association claims in the brochure the number of fibers is so small as to be harmless.)

Judge Bray dismissed my complaint for lack of evidence. (I had considered asking him to disqualify himself since the city of Chesapeake, the defendant, pays half his salary—the state of Virginia pays the other half—provides him with a car, parking place, secretary, office, and telephone, and buys soap and toilet paper for his restroom. But Judge Bray is a humorless man.)

Thrown out of court in February 1975, I sued a second time, still acting as my own attorney, this time on grounds that the city ordinance outlawing the use of well water is unconstitutional.

My adversary in court was Ron Hallman, deputy city attorney, an engaging young man with whom I sometimes play tennis. He threw various dilatory pleas at me, including one complaining that I had not numbered the paragraphs in my lawsuit. Each of his pleas was denied. One cited res judicata—that the issues had been decided in my earlier case and were therefore not open to further litigation between the same parties.

Res judicata was so complicated I had to spend hours in a law library and eventually sought out an attorney, Paul Lipkin, a thorough and dedicated man who is often referred to by his colleagues as a "bleeding heart" because he takes many unremunerative cases.

My file on wells, asbestos pipes, and cancer was growing larger. The EPA started a study on the problem of asbestos in water supplies, the erosion of asbestos fibers from the walls of asbestos-cement pipes, and the relationship of such asbestos "leakage" to cancer.

The Chesapeake Department of Public Utilities, despite the growing controversy over the pipes, continued to install them throughout the city. Meantime, the EPA published a list of 253 possibly harmful chemicals found in city water supplies, many of them cancer-inducing. (When my neighbor's young daughter celebrated her birthday, she received five goldfish as a gift. She put them in a bowl of city water, and they turned belly up and died. Her replacement fish were put in well water, where they thrive.)

The months passed. Then a year, and finally almost two years. My fight in court continued. Eventually, my attorney and Hallman agreed to stipulate the facts in the case and then present both written and oral arguments. Under this agreement, the city conceded that my well produces clear, pure, good-tasting water; I conceded that I am not complying with the law.

The written arguments have been presented. I contend I have a basic right to quench my thirst from my well. Appellate courts throughout the United States have held consistently that water underlying a man's property is his to do with as he pleases. The city contends that under its police powers it can close down my well and force me to drink city water which flows through asbestos-cement pipes. Oral arguments before the judge have yet to be heard—and have not yet been scheduled.

It pleases me to drink water from my well. Philip W. Quigg, in the May 1975 Audubon magazine declares that well water is of better quality than surface water, which is what most city water is. It's also immune from contamination and costs less. I get 1,000 gallons of water from my well for five cents' worth of electricity. The same amount of water from the city would cost me 70 cents.

The Department of Public Utilities claims everyone must buy city water if the department is to be self-supporting. Asbestos/cement pipe is cheaper than other kinds, and the department is choosing economy over safety.

Of Chesapeake's 100,000 residents I stand alone in trying to keep to my well and avoid drinking asbestos fibers.

To a person, those who have inquired about my violating the city ordinance and about the progress of my lawsuit, have commented: "Well, you gotta die from something." To which I reply: "Yeah, but I reserve the right to choose my own poison."

Mr. Cahill, who considers himself an environmentalist, operates a one-man advertising and public relations agency in Norfolk, Virginia, and does free-lance writing.