Get the Lead Out

(ACOEL) | American College of Environmental Lawyers
Contact

[author: Robert Kaplan]

The toughest question I ever got in Flint was in a church basement on the north side of town. At the time, I was heading up the EPA Region 5 response to the drinking water crisis. A mother asked me simply, “if we know lead is dangerous to children, why are we still drinking out of lead pipes?”

In my view, the answer to that question requires a new approach to lead in drinking water. We have known for many decades that lead poisoning does irreversible neurological damage, resulting in effects such as lower IQs, poor impulse control, aggression, and a host of other behavioral problems. To date, however, our response has centered on mitigation strategies rather than removal of lead pipes.

Flint points to the problems with that approach. After a switch in water source to the Flint River, the water authority failed to add orthophosphate to drinking water. Orthophosphate creates a coating in pipe that inhibits corrosion and limits leaching of lead from pipes into the water. (Lead pipes are most commonly found in the laterals connecting water mains to resident’s homes.) This lack of corrosion control stripped the coating from pipes, with tragic results. Over the course of months, lead levels in Flint’s water increased, with associated spikes in blood lead levels. EPA issued an order under its imminent and substantial endangerment authority in January 2016.

Flint is an extreme example, but is also evidence of the larger problem. We have relied upon on the Lead and Copper Rule (LCR) protections since 1991, which place primary emphasis on limited sampling and corrosion control optimization – rather than on the removal of lead connections to homes. In my view, the LCR is flawed.

First and foremost, the LCR is not health-based. Its “action level” of 15 ppb (or “trigger level” of 10 ppb under a recent pending revision) is not derived from risk to human health. Rather, it is intended as an indicator to evaluate the efficacy of corrosion control. It is not a “safety” number (although it has often been misinterpreted as such). The LCR is also measured in a small fraction of homes, and even for those measured, only at lengthy intervals. It is also measured at the 90th percentile, meaning 10 percent of homes can be receiving water with lead levels above the action level — by any amount – without consequence. For those homes, this exceedance might be a few parts per billion above the action level – but it might also be hundreds of times that amount.

LCR sampling is also unlikely to capture the peak concentration levels of lead in tap water due to the fact that it only samples the first draw of water from the tap. The lateral lines that connect residential plumbing to the street are often made of lead. The first draw often misses the higher concentrations of lead present in water that has been sitting for hours or days in those lead lateral pipes. In addition, we have also learned that lead can flake off from pipes sporadically and unpredictably, sometimes as the result of events like construction and truck traffic. These sporadic pulses of lead are unlikely to be captured in LCR sampling, but can harm children nonetheless.

Importantly, the LCR often does not provide adequate warning of an incipient problem to regulators. Again, Flint provides an example of this shortcoming of the LCR: in January 2015, Flint’s LCR result was 6 ppb, and its July 2015 result – just prior to the highest blood levels in Flint — was only 11 ppb. Based on these results, arguably no action was required in Flint. Rather than ringing the alarm bell, the LCR thus tended to provide a false sense of security.

Finally, the remedies associated with the LCR – even if exceedances are found – result in lead line replacement at a pace that can allow decades to pass before full replacement occurs (ranging from 3 to 7 percent a year). Even among voluntary replacement programs, the pace of replacement is agonizingly slow: at its current pace, Milwaukee’s program would take 70 years to complete and at the current rate, Chicago’s would take 500 years. The problem hits those least able to afford it the hardest. While wealthier communities or individual homeowners may be able to pay the cost of lead line replacement, there is little hope for poor communities, renters, and those who cannot afford the substantial cost of the work. Absent a significant change in our approach, generations of children will grow up in homes and schools served by lead pipes.

EPA has been considering revisions to the LCR for many years and has received extensive stakeholder input. The outgoing Obama Administration summarized the challenges ahead and provided a road map for revisions of the LCR in a White Paper after the Flint Crisis (Office of Water October 2016). The Trump Administration promulgated revisions to the rule in the National Primary Drinking Water Regulations: Lead and Copper Rule Revisions (LCRR), published in the Federal Register in the final days of the Administration. 86 Fed. Reg 4198 (Jan. 15, 2021). The effective date of those revisions, however, was recently delayed by the Biden Administration pending further comment and review. 86 Fed. Reg. 14003 (Mar. 12, 2021).

The March Federal Notice makes clear that that the Administration intends a careful and comprehensive review the LCR revisions: “[G]iven the paramount significance to the public’s health for ensuring that lead in drinking water is adequately addressed under the Safe Drinking Water Act, and the concerns raised by litigants and other stakeholders about the LCRR, it is critically important that EPA’s review of the LCRR be deliberate and have the benefit of meaningful engagement with the affected public, including underserved communities disproportionately affected by exposure to lead.” Id. at 14004. The question now is: will the Biden Administration continue the incremental approach or propose a sweeping change?

On April 29, 2021, President Biden gave some indication of the new Administration’s direction. Addressing a Joint Session of Congress, he framed the problem and the solution in no uncertain terms. He called for the removal of every pipe in the nation, under far-reaching infrastructure proposal:

It’s clean water. And today, up to 10 million homes in America and more than 400,000 schools and child care centers have pipes with lead in them, including drinking water, a clear and present danger to our children’s health. The American Jobs Plan creates jobs replacing 100 percent of the nation’s lead pipes and service lines so every American can drink clean water.

This proposal faces an uncertain future in Congress. Even if it becomes law, it will take billions of dollars and a coordinated national commitment before the last lead pipe is removed. For me, however, one thing is certain: it is the right answer to that mother in Flint.

Written by:

(ACOEL) | American College of Environmental Lawyers
Contact
more
less

(ACOEL) | American College of Environmental Lawyers on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.