By Erik D. Olson and Valerie Baron, Natural Resources Defense Council
We have learned from the ongoing lead in water crises in Flint, Michigan; Newark, New Jersey; and Washington, DC, for example, that no community and no child is exempt from the threat of lead-tainted water.
Indeed, between 6.5 million and 10 million of our homes get water through lead service lines—the pipes that take the water from the water main in the street to our homes. According to an estimate published by water industry experts, these lead pipes serve as many as 22 million people. It’s like we’re drinking our water through lead straws.
Yet as NRDC’s extensive comments filed with EPA this week point out, the agency’s recently-proposed Lead and Copper Rule revisions fail to establish a drinking water standard, or Maximum Contaminant Level (MCL), that would ensure that all of us will get water that is safe from lead. The proposal doesn’t even require all lead service lines to be replaced. In fact, EPA’s proposal actually weakens some of the current rule’s protections. For example, for those water systems that have extremely high lead levels, EPA proposes to extend the deadline to replace lead service lines from the current rule’s 14 years to an extraordinary 33 years. This would mean another generation of our kids will be threatened by lead-tainted tap water.
It’s not as if EPA and states who are supposed to be enforcing the current rule for lead in tap water are already doing such a great job protecting us that we can relax our guard. In fact, according to an analysis by our colleague Dr. Kristi Pullen Fedinick, nearly 30 million people in the U.S. drank water from water systems that violated the EPA’s Lead and Copper Rule between January 2015 and March 2018. Also worrisome, Kristi found that about 5.5 million people got their water from systems that exceeded EPA’s Lead Action Level—which is not a safe level, but rather the very high level of lead contamination that under EPA’s rule triggers mandatory additional steps for water systems to reduce lead levels.
Moreover, we now know from recently released data that this is a significant understatement of the extent of the lead in water threat. For example, new data from extensive monitoring for lead in Michigan and Illinois reviewed in our comments shows that tap water testing under EPA’s current Lead and Copper Rule fails to detect dangerous lead levels because it only checks the “first draw” water—that is, the first water that comes out of the tap when you turn it on, instead of sampling water that has been sitting in the lead service line. According to a leaked EPA memo attached to our comments, the current EPA-required monitoring “missed the peak lead values 100% of the time” when homes have lead service lines.
The Health Threats from Lead in Tap Water
The EPA’s Maximum Contaminant Level Goal for lead is 0 ppb—in other words, EPA admits that the only safe level of lead is zero. Lead is a potent irreversible neurotoxin. EPA and public health experts ranging from the Centers for Disease Control and Prevention to the World Health Organization (WHO) and the American Academy of Pediatrics have found that there is no safe level of lead. EPA notes that low levels of exposure in children are linked to damage to the brain and nervous system, learning disabilities, shorter stature, impaired hearing, and harm to blood cells. Exposed adults can suffer from cardiovascular disease and adverse impacts on reproduction and the kidneys, among other harmful health effects.
This creates a continuous risk of lead in water, an exposure pathway intended for human consumption and necessary for survival. EPA should take this opportunity to shift the focus of its rule from corrosion control alone and lead management to lead removal and primary prevention. We must remove lead service lines proactively. Lead is a potent, irreversible neurotoxin; the best time to remove a lead service line is before a water treatment failure that causes it to release high levels of lead into the water.
How the EPA Proposal Fails to Protect Our Kids
This week, as noted, NRDC filed extensive comments on the EPA proposed Lead and Copper Rule revisions. Our comments point out that while the proposal would create some modest improvements in public health protection it also would weaken some of the most important already-inadequate protections provided by the current rule.
The proposal’s failure to force water systems to substantially reduce their lead levels is extremely disappointing since recent independent studies demonstrate that the public health benefits of reducing lead in drinking water completely dwarf the costs of doing so. For example, a study by the State of Minnesota Department of Health found that the benefits of removing lead service lines are about 10 times the costs. Overall benefits of all measures to reduce lead in water, the study found, yield over twice the benefits compared to costs, and the state says those benefits are likely underestimated. Our own analysis found that EPA was dramatically undercounting the benefits of controlling lead in water, ignoring important information about the toll lead takes on adults, and the costs to society of prenatal and other lead exposure.
While we appreciate EPA’s modest proposed improvements in the rule, we are concerned that the weakening changes will swallow them, resulting in an overall undermining of public health protections. In addition to slowing the mandated schedule of lead service line replacement for badly lead-contaminated water systems to allow more than 33 years for completion of the task, the agency would weaken the current definition of a “lead service line” by eliminating the existing rule’s inclusion of what are called lead “pigtails” and lead “goosenecks.” These are essentially curved lead pipes that connect the water main to the rest of the long straight lead pipe that makes its way to our homes and can contribute a lot of lead to our tap water. We believe that these and other proposed weakening changes to the current rule represent a decrease in public health protection that violates the Safe Drinking Water Act’s (SDWA) anti-backsliding requirement, which doesn’t allow EPA to weaken current drinking water rules. (see 42 U.S.C. §300g-1(b)(9)).
NRDC’s Recommendations to EPA
Our detailed comments recommend that EPA take an approach that reflects the ongoing public health crisis from lead exposure and includes fundamental changes to the Lead and Copper Rule (LCR) that both improve public health protection and reduce complexity of rule implementation. We urge EPA to redirect the focus of the LCR and to:
1. Set an at-the-tap Limit (MCL) for Lead as Required by the SDWA.
EPA should establish an enforceable Maximum Contaminant Level (MCL) for lead at the tap of 5 ppb of lead. This would substantially simplify implementation and enforcement and would track the Safe Drinking Water Act which requires EPA to set an MCL unless it is “not economically or technologically feasible to ascertain the level of the contaminant.” SDWA §1412(b)(7)(A). Data collected over the past 29 years shows it is feasible to ascertain the level of lead in tap water; EPA should set an MCL for lead.
2. In the Alternative, EPA Should Overhaul the LCR to Require All LSLs to be Fully Replaced at Utility Expense in 10 Years, to Reduce the Lead Action Level, and to Strengthen the Corrosion Control Requirements.
Assuming for the sake of argument that EPA will not establish an MCL for lead and can make the legal and substantive case for doing so, the LCR should be overhauled to require that all lead service lines be fully replaced, with no partial service line replacements, at the expense of the public water system within 10 years.
The rule also should require public water systems covered by the rule to install optimized corrosion control after a detailed study and approval by their primacy agency. EPA should drop the Action Level to 5 parts per billion (ppb), or certainly no higher than 10 ppb.
Data presented in our comments, a detailed leaked memo from EPA Region 5’s Regional Administrator to the EPA Water Office, and other data in the rulemaking record strongly support a reduced Action Level for lead rather than what EPA proposed—a separate and confusing “trigger level.”
Water utilities and the American Water Works Association have agreed that all lead service lines should be replaced and that partial replacements are not advised. Charging individual homeowners for replacement has led to delays, inefficiencies, and environmental injustices since renters and low-income people and communities of color often are unable to pay for replacement, leaving them to continue drinking lead-tainted water. Studies by Minnesota and The Pew Charitable Trusts, among others, have concluded that the benefits of lead service line replacement far outweigh the costs. Lead service line replacement is a simple and necessary step that must be taken to eliminate lead in drinking water. Until service lines are replaced, for those at risk certified point of use filters and replacement filter cartridges should be provided, along with training for how to install and maintain them.
We also urge that the agency to update its monitoring rules for lead to reflect data and studies showing how the current rules encourage under-detection and under-reporting of lead contamination. EPA should require testing not only of the “first draw” water but also of a subsequent draw that comes from the lead service line. The “first draw” is the first water that comes out of the tap when you turn it on, but data presented in our comments and the leaked EPA Region 5 memo make it clear that a sample from the 5th possibly from the 10th liter are more representative of the risk people face from lead. These should be required, with the highest level used as the measurement for establishing compliance. It is critical that the monitoring protocol prohibit outdated methods and sampling tricks that result in underrepresentation of contamination, some of which the agency has identified and proposed to explicitly eliminate by rule.
The agency also should no longer permit monitoring to be reduced to just annual, triennial, or even every 9 years as currently allowed. Testing should be of a statistically valid number of the highest risk homes. Testing of water systems with lead service lines should be done most frequently (some homes with copper pipes and lead solder also should be tested, as in the current rule). And monitoring should be done no less frequently than every 6 months until all lead service lines are removed and optimized corrosion control has been confirmed for at least 2 years. Any change in water source or treatment should trigger mandatory renewed testing and pre-change evaluation of corrosion control.
Finally, we urge EPA to substantially rewrite its rules for public education about lead in drinking water. The current rules have often been ineffective at ensuring that the public understands the health risks posed by lead in drinking water and what they and water utilities can do to minimize those risks.
EPA’s cost-benefit analysis is flawed and substantially understates the benefits of a strong rule. The proposal fails to quantify the benefits of reduced cardiovascular disease, numerous benefits of reduced behavioral, learning disability, and other adverse effects of in-utero and early childhood exposures, and several other benefits such as those established in contingent valuation studies. The Minnesota and other analyses have found far greater benefits than EPA counts. Additionally, no discount rate should be used for future intergenerational and long-term health benefits.
EPA’s Lead and Copper Rule revisions provide the agency an opportunity to substantially improve the health protections provided to millions of Americans, including our most vulnerable residents, our kids. The agency must overhaul the rule to establish a strict Maximum Contaminant Level for Lead at the tap and should strengthen the lead monitoring provisions. Assuming, however, for the sake of argument that EPA can make the case under the law and with data to show that it cannot set a MCL for lead, the agency should require all lead service lines to be fully removed at water utility expense within 10 years, and should strengthen the testing, corrosion control, and public education requirements of the current rule. The health of millions of our fellow Americans lies in the balance.