The federal law that regulates lead in water has long frustrated U.S. Environmental Protection Agency staffers, with one scientist alleging its lack of clarity opens the door to “wanton experimentation on the public,” according to emails related to Flint’s water contamination.
Despite widespread agreement the law could be dangerous, however, a change isn’t likely until 2017 at the earliest — highlighting the challenges of overcoming bureaucracy even after a public health crisis.
For Flint residents and Michigan officials, the shortcomings of the EPA’s 25-year-old Lead and Copper Rule become all too apparent after the city’s drinking water was allowed to go untreated for lead for 18 months.
Michigan’s Department of Environmental Quality has borne the brunt of the blame, but state officials have repeatedly said the vagaries of the law allowed for bad decisions that may have been technically legal under the law.
In more than 5,000 emails recently released by the EPA, a handful of agency workers regularly take aim at the Lead and Copper Rule, or highlight its shortcomings.
“This whole problem of best practices vs. the weak regulatory requirements is shedding light on another massive aspect of the failure of the LCR,” Michael Schock, a scientist with EPA’s Office of Research and Development, wrote in December.
“And for that matter, probably other regs that don’t prevent wanton experimentation on the public.”
The Lead and Copper Rule was enacted in 1991 to regulate the amount of those substances in public drinking water systems. It establishes an action level of 0.015 milligrams per liter (or 15 parts per billion) for lead and 1.3 mg/L for copper based on 90th percentile level of tap water samples.
It was enacted with the stipulation that it be revised regularly — it was last updated in 2007. The most recent revisions were due in 2013, but the EPA failed to deliver them.
Delays in addressing holes in federal laws regulating lead are a major point of contention for Marc Edwards, the Virginia Tech researcher whose work in 2015 helped identify lead contamination in Flint’s water.
“For over a decade, I witnessed children needlessly hurt in one city after another, illegal and unethical actions at EPA and other health campaigns — it was truly traumatic to watch,” Edwards wrote in an emailed response to questions from The Detroit News. “They got caught in D.C., Durham and Flint, but the health harm happened elsewhere as well. It was just undetected.”
EPA officials said the language of the law was not the triggering factor in Flint’s crisis, but the decisions made by Michigan officials.
“The situation in Flint – of a large system switching from purchasing treated water to untreated water — is highly unusual,” a statement provided by the agency reads. “EPA's ability to oversee MDEQ’s management of that situation was impacted by resistance and failures at the state and local levels to work with EPA in a forthright, transparent, and proactive manner consistent with the seriousness of the risks to public health.”
Lead rule language unclear
Critics say the biggest problem with the Lead and Copper Rule is its vagueness.
Michigan DEQ officials claim the wording of the rule allowed them to take water from the Flint River, run it through the city’s treatment plant for 18 months without adding corrosion controls and send it through the distribution system to home taps — actions that contaminated Flint’s water supply with elevated levels of lead.
State officials contended the Lead and Copper Rule called for two six-month periods of water sampling before corrosion controls — orthophosphates that generate a protective coating in the pipes — were required. EPA officials essentially admitted to the lack of clarity when they issued a memorandum in November.
Of the Flint scenario, the memorandum said: “the language of the LCR does not specifically discuss such circumstances. ... It appears there are differing possible interpretations of the LCR with respect to how the rule’s optimal corrosion control treatment procedures apply to this situation, which may have led to some uncertainty with respect to the Flint water system.”
Another key problem with the Lead and Copper Rule is that it allowed for Michigan to use a flawed method to test for lead in drinking water. The state’s testing protocols called for flushing of home taps before collecting water for analysis.
That flushing helps remove any particulate lead that has settled in the plumbing, often leading to sample results that cloak the amount residents are really being exposed to.
More than a year ago, EPA water expert Miguel Del Toral raised the specter of what that testing protocol might mean in Flint, and particularly for one resident with a lead service line.
“Just FYI, (Michigan) is the only (EPA Region 5) that still has pre-flushing in their LCR sampling guidance,” he wrote. “Given how much we know about how much lead is coming off the (lead service lines) ... I think we need to have a conversation with DEQ about rescinding that guidance. If this poor woman’s (line) was shorter, the results would be much, much lower and she may very well have been told ... that her lead levels are fine and her children would end up poisoned.”
Despite an identified problem with the Lead and Copper Rule allowing for pre-flushing, no changes were made.
Shortcomings in the Lead and Copper Rule were again highlighted in a December email from EPA chemist Michael Schock to agency colleagues. He highlighted the rule’s failure to create a safety net against human error.
“The central problem is that the LCR framework cannot currently prevent the implementation of knowingly incompetent, stupid technical decisions,” Shock said. “States are generally powerless to stop it, even if they know better.”
Prof: Rule allows ‘poisoning’
In the last year, confronted with Lead and Copper Rule problems on both corrosion controls and testing protocols, EPA officials released letters of clarification, underscoring the true intent of the rule. But another critic, this one outside EPA, said clarification is a far cry from legislation.
Yanna Lambrinidou, a Virginia Tech professor of civil and environmental engineering, said the federal agency’s failure to take action with teeth is a recurring problem.
In 2006, she said, EPA issued a letter of clarification telling water utilities it was best not to remove aerators before taking water samples. Aerators collect lead over time at the tap, contaminating water. By removing them, it artificially lowers the amount of lead that shows up in sampling.
Despite the clarification, Lambrinidou said Philadelphia continues the removal practice. In addition, the city fails to test the right kinds of homes — Tier 1 sites where water arrives via lead service lines — when it conducts its sampling.
All of which means the Lead and Copper Rule will continue to allow poisoning until its shortcomings are addressed, she said.
“The only safe level of lead in water in terms of human health is 0 parts per billion,” Lambrinidou said. “But the Lead and Copper Rule does not require water utilities to ensure that levels coming out of peoples’ taps are at that safety level.”
Lambrinidou said the Lead and Copper Rule should include language making it clear to the public that the 15 ppb action level for lead — the point at which utilities are required to take steps to address contamination — is not the same as an acceptable health level.
In addition, she also feels a revised Lead and Copper Rule needs to:
■Mandate, rather than simply encourage, lead line replacement.
■Ban partial lead line replacement — stopgap projects that may cause more contamination than they solve.
■Require full transparency on a water utility’s testing procedures, corrosion controls and sampling site criteria.
■Provide for increase enforcement of Lead and Copper Rule regulations.
Georgia rep pushed for answers
Jody Hice appeared well-situated to get a straight answer about delays in Lead and Copper Rule revisions on Feb. 3 in Washington, D.C. The Republican representative from Georgia was among those peppering a top EPA official with questions during a House Oversight Committee meeting centering on Flint.
“Why is EPA so far behind?” Hice asked Joel Beauvais, EPA’s deputy assistant in the Office of Water.
“We’ve been working actively,” Beauvais responded. “We wanted to get advice form our National Drinking Water Advisory Council with regard to the provisions that will be proposed and we also received advice from a number of other stakeholders.”
Hice pressed: “This is absolutely a train wreck in every way. And the EPA is so far behind — not doing the job. When will the updated version be ready?”
“My expectation, at this point in time, is that it would be proposed in 2017,” Beauvais answered.
According to the House Oversight Committee’s website, approved rule changes may not be in place until 2018.
If the needs of communities around the country are pressing, and the problems with the Lead and Copper Rule are glaring, why is change taking so long to arrive?
“Oftentimes there are concerns about stakeholders, making sure everyone’s at the table — in particular, the people most affected like water utilities,” said Michael Murray, a staff scientist with the National Wildlife Federation.