WASHINGTON, DC — Environmental groups who are suing the U.S. Environmental Protection Agency over regulations that govern lead contamination in public drinking water say a long-awaited revision finalized in the waning days of the Trump administration offers utilities too much time to dig up and replace lead service lines in their distribution system.
A lawsuit was filed last week in the DC Circuit Court of Appeals by Earthjustice and joined by the NAACP, United Parents Against Lead, Newburgh Clean Water Project and Sierra Club. The Natural Resources Defense Council (NRDC) filed a separate but related lawsuit.
The groups are pushing the new Biden administration to alter course and take steps to adjust the new rule’s implementation that they say would better protect people’s health.
The focus of their concern is the three decades in which utilities get to replace lead pipes, an expensive task that is backlogged in cities across Michigan and elsewhere.
The rule is among numerous Trump EPA actions put on a “freeze” by the new administration.
“Basically, the EPA included a few minor tweaks on how monitoring is done and how you count whether a lead service line has been replaced, but it didn’t fix the fundamental problem, which is that these lead service lines are going to remain in the ground for decades in most cases,” said Erik Olson, a senior director on health and food issues at NRDC.
The EPA issued its Lead and Copper Rule revision in December and held a press conference that included Flint Mayor Sheldon Neeley. The revision, in the works for years, was the first major change since the original rule was enacted in 1991. The rule was roundly criticized as being too lenient after the Flint crisis and prompted Michigan to tighten its own rules.
The EPA did not alter the nationwide action level for lead in public water, which is 15-parts-per-billion (ppb), but it did create a 10-pbb “trigger level” at which utilities must optimize or add corrosion control. The revision also modified tap sampling procedures and the criteria for selecting homes to test, as well as requiring 24-hour rather than 30-day customer notification of an elevated test result. It also requires some routine testing at elementary schools and daycares.
The bulk of the revision focused on lead service lines, which are leaded pipes in many cities that connect water mains to individual buildings. The rule requires utilities update their lead service line inventories and “find and fix” lead sources in homes with water above 15-ppb. But the EPA extended the time in which water systems have to eventually find and replace those lead lines; which, in the case of Flint, leached lead into drinking water across the city because plant operators failed to properly treat raw river water with corrosion control.
Critics of the revision say the extra time for replacing lead lines extends the risk of lead-tainted drinking water to another generation of people. Democrats like Michigan Gov. Gretchen Whitmer criticized a draft version of the rule last year. U.S. Rep. Dan Kildee, D-Flint, said the revision would “do nothing to stop the next Flint water crisis from happening in other communities across the country” when it was announced.
In Michigan, the lead rule is already stricter than the EPA revision. In 2018, under former Gov. Rick Snyder, the state dropped the action level to 12-ppb starting in 2025 and required utilities to remove all lead lines and galvanized steel lines that connect to lead lines.
Michigan’s rule requires lead line be replaced within 20 years and inventories be finished by 2025. There are an estimated 500,000 such lines in water systems across the state.
Water utilities led by the Great Lakes Water Authority in Detroit pushed back against the changes as being too expensive to manage, but lost in court in 2019.
NRDC argues that EPA should have adopted an at-the-tap standard used for most other regulated contaminants in drinking water called a maximum contaminant level, or MCL, rather than continue the complex lead rule, which bases response actions on test results from a percentage of pre-determined homes within a water system service area.
The new requirement that utilities test schools and daycare centers “sounds good in theory,” Olson said, but testing is only required at a small number of faucets every five years.
“A school might have 20 or 30 different fountains,” Olson said. “Just testing five locations in a school over a five-year period is very likely to miss problems and mislead staff and parents into thinking there’s not a problem, when, in many cases, there will be a problem that’s going undetected.”
Olson said “filter first” legislation, which was introduced in the Michigan Legislature in 2019 but died at the end of last session, would simply require filters on school drinking fountains. He said that would be less expensive than regular testing and more effective at curbing exposure.
“We’re hoping that kind of legislation will pass in Michigan and we’d like to see that be a national model,” he said.
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