• Kevin Elliott

The fight over the new state lead/copper rules


More than a decade before lead pipes and a botched treatment plant started a drinking water crisis in Flint, Virginia Polytechnical Institute and State University (known as Virginia Tech) professor Marc Edwards discovered lead levels more than 83 times the accepted safe limit in Washington D.C.'s water system.

Edwards, an expert in plumbing corrosion, was conducting research in 2003 into pipe corrosion for the District of Columbia Water and Sewer Authority. He suspected lead was leaching into the system and causing pipes to corrode prematurely. He traced the spike in lead to a change in water chemistry that started when the system switched from chlorine to chloramine in its treatment formula.

Despite Edwards' findings, officials with the D.C. water supply hid the contamination and failed to take action for years – instead threatening to terminate Edwards' contract unless he stopped working with homeowners whose water showed high lead levels.

"Lead service lines are the main source of the risk and the cause of this massive conflict of interest," Edwards said. "Water is the only government-owned lead source that affects a product intended for human consumption. That's the lesson of lead pipes over the past 150 years."

By 2004, it became apparent that lead had become an issue in several major cities in the United States, including Boston, Detroit, New York, Philadelphia, Lansing, Seattle, Portland and others. In October of that year, the Washington Post reported cities across the nation were illegally manipulating lead testing results, including discarding high readings or avoiding homes likely to have high readings. So, when Edwards received a call in 2015 from Flint resident Lee Anne Walters about suspected lead in her water, it was simply more of the same problems.

"The only thing with Flint that is different is that the cheaters got caught and people cared," Edwards said. "There was a similar process in (Washington) D.C., and cheating going on all over the country. The EPA (Environmental Protection Agency) has been unable to act, and if I were the governor of a state, I would implement a law because I'm not sure if the EPA will ever act to close these loopholes. It has become a sick joke."

Reacting to the fiasco in Flint, former Governor Rick Snyder did just that, calling the federal Lead and Copper Rule "dumb and dangerous," and pushing for state lead reforms. If Flint's water crisis has a silver lining, it may have come last June when Michigan's Lead and Copper Rule was updated to become what is considered the most protective regulations against lead in drinking water in the country.

"I believe it's a necessary step in the right direction," Edwards said. "It's going to cost a lot of money, and I understand people feel there are other priorities that might be higher, but if you look at the cost of this fiasco to the state of Michigan for the last three years – this hits the problem head-on."

The state's new lead and copper rule goes beyond the former state rule and current federal rule by requiring public water suppliers to conduct a materials inventory to locate lead lines in its service areas. It also requires the supplier to replace those lines within 20 years, at an average of five percent replacement per year. Under the federal and former state lead and copper rules, suppliers are only required to replace lines if a home tests higher than the federal threshold of 15 parts per billion (ppb). The state's new rule also lowers the lead action level from 15 ppb to 12 ppb.

The rule provides for additional sampling by water utilities to ensure elevated levels are documented when they occur. It also prohibits actions that would lower test results, such as flushing the system before testing.

"There could have been stronger protections, but the most important was that Michigan was moving to get the lead pipes out of the ground on a specific timeline. That's what we focused on," said Cyndi Roper, senior water advocate for the Natural Resources Defense Council (NRDC), which was influential in the development of the rule.

Levels of copper in surface and groundwater are generally low, however, high levels of copper may get into drinking water through the corrosion of copper pipes if water is too acidic, according to the Centers for Disease Control. Excessive copper levels can effect organs, such as the liver and lead to gastrointestinal problems, including vomiting, diarrhea, stomach cramps and nausea. People with Wilson's disease may be more susceptible to copper toxicity.

"Copper is nearly insignificant by comparison," Edwards said, comparing the metal's presence to lead. "By the U.S. government's definition, there is no safe level of lead exposure. Period. Some could argue that's a dumb definition, but it is what it is. Copper is an essential micronutrient. You need copper in your daily diet. Once you have that situation, it becomes how much is too much. That's something people care a whole lot less about unless they have a genetic predisposition to copper, like Wilson's disease, and they already know about that.

“It's a completely different issue to handle. There are problems with the existing rule, but they are so insignificant to the lead fiasco, one could argue either way whether to separate copper from the rule."

While the rules have been praised for going above and beyond the federal standards, which have been criticized by water quality experts for years, the regulations have come under fire from some local communities and water providers in Michigan. Specifically, those opposing the new state's new rule say it will cost municipalities and public water providers in the state more than $2.5 billion to replace lead service lines over the next 20 years. Further, they say the new rule requires public entities to perform work on private property at the public's expense, possibly creating a conflict with the Michigan Constitution and setting the stage for potentially costly litigation.

The new rule also redefines "service line" as the pipe from the discharge of the corporation fitting to customer site piping or building plumbing at the first shut-off valve inside the building or 18 inches inside the building. In other words, the rule now makes water suppliers responsible for replacing lead service lines and lead components all the way to the customer's house, including the portion on private property.

In August 2018, the Great Lakes Water Authority (GLWA), which provides drinking water to much of southeast Michigan, the Detroit Water and Sewerage Department (DWSD) and the Oakland County Water Resources Commissioner filed a request for declaratory ruling with the Department of Environmental Quality (DEQ). The DEQ in October denied the request, with the parties in December challenging the new rule when they filed a complaint with the state Court of Claims.

Communities that have signed on to the challenge include Bloomfield Township and Bloomfield Hills, as well as Allen Park, Bay City, Beverly Hills, Bingham Farms, Boyne City, Brownstown Township, Canton, Center Line, Claire, Clawson, Clinton Township, Dearborn, Detroit, Douglas, Elk Rapids, Farmington, Ferndale, Gibraltar, Gladstone, Grosse Pointe, Grosse Pointe Woods, Hamtramck, Hart, Hazel Park, Huntington Woods, Huron Township, Inkster, Jackson, Jonesville, Kingsley, Lake Orion, Lapeer, Lincoln Park, Livonia, Montague, North Muskegon, Northville, Oak Park, Plymouth, Riverview, Rochester, Rochester Hills, Romulus, Rogers City, Royal Oak, Saginaw, the Southeastern Oakland Water Authority (SOCWA), Sumpter Township, Taylor, Warren, Wayne and Westland.

The plaintiffs say the rule requires water suppliers to perform full lead service line replacements at their own cost. However, the state Constitution prohibits public money – such as those from a public utility – from benefiting private property. Still, proponents of the new rule say it ensures access to lead-free water by all customers, not just those that can afford to pay for the work.

"It doesn't have individuals paying for water infrastructure between the curb and home," Roper said. "We have people that literally can't afford that investment. Otherwise, we are creating two levels of water quality in this country: those that can afford it and those that can't.

"It's extremely disappointing that water utilities are focusing on this portion of the infrastructure to spend money on a lawsuit, rather than working with us. I hope they will work on identifying resources and move forward. This isn't a good step along that way. It's really absurd that those who are charged with bringing safe drinking water to our kids are saying we can't afford to do that."

The rule, which was expected to go into effect after January 1, 2019, instead started in the middle of the 2018 construction season, throwing off infrastructure projects that had already been planned and budgeted.

In Rochester, with a population of about 13,000, work was already underway on more than $6 million in projects funded through a low-interest loan from the DEQ. Water mains and street repairs were planned two years prior in an effort to coordinate street and water projects and lower costs. However, additional work related to lead service lines weren't anticipated, as none of the homes had tested positive for elevated lead levels.

Rochester Public Works Director Shannon Filarecki said meeting the new requirements would have cost the city about $1 million in additional work.

"We were already under construction when the rule changed," she said. "Last summer, we already had our permits in place when they came in with the new rule and changed it."

In addition to the extra construction costs, Filarecki said contractors performing the work must have a licensed plumber on staff in order to conduct work on private property, a requirement that neither the city nor the contractors had anticipated. Further, water suppliers must receive permission from property owners in order to do work on their property.

Filarecki said line replacements in the city are limited to the west side of the city, where between 2,000 and 2,500 customers receive water from the city. Those on the east side of the city are served by the Great Lakes Water Authority. However, she said, none of the homes actually have lead pipes, rather, they are galvanized steel pipes that include a lead "gooseneck" connection.

"Galvanized pipes aren't lead," she said. "Years ago, they tapped a main to provide water to a house and ran lead or galvanized steel with lead solder. They got rid of the lead, but with galvanized pipes there's a lead gooseneck," she said. "That's the only place where we have lead present, where the property owner made a connection to the main eons ago."

Under the new rule and its definitions, any presence of lead in a service line requires a total replacement of the line, not just to the property line. The change means partial replacement of service lines where lead is present are no longer permitted.

Filarecki said partial replacements should be permitted when a property owner refuses to do work or grant an easement.

Under the new rule, water suppliers must offer to replace the private portion of the lead service line at the supplier's expense. If the owner declines the offer to replace the private portion, no partial replacement is allowed, unless as part of an emergency repair. Suppliers must then provide follow-up testing within 72 hours after a partial replacement.

"We tested water before and after disturbing those lines, and in our tests we showed there was a reduction in lead in the pipe," she said. "From our perspective, a partial replacement is a good thing. A partial replacement eliminates the presence of lead. The DEQ perspective is that there could be some residual lead in the galvanized service line that could be disrupted."

The city worked with the DEQ to apply for an emergency waiver to complete the work it had already started. Of about 58 homes in the project, five were impacted and had lines replaced. However, there are bigger projects planned for this year that could run into problems under the new rule.

About 30 communities around the state had construction projects underway that were disrupted when the new rules went into effect.

The DEQ said while it recognizes there are challenges to the new rule, it is intended to be protective of the public health's, something the federal rule doesn't do.

"The law states clearly that there is now a ban on partial lead service line replacements," said Amy Lachance, assistant director of drinking water for the DEQ. "There is pretty rigorous research that shows just doing the public portion and leaving the private line in place can exceed the risk of leaving the whole thing in place for a longer period of time until the whole replacement can be done. However, we do recognize there are challenges associated with it.

"The goal is to get the lead out of the distribution system. We feel that there is treatment that can be done to coat the lines. However, there are too many unknowns associated with that. The more research that gets done, the more we have to realize that the endgame is to get the lead out of the distribution system and do it in a way that is as safe as possible."

Children are the most susceptible to lead exposure. Because their bodies are small and growing, they absorb more lead than adults do, and their brains and nervous systems are sensitive to the effects of lead. Babies and young children are at particular risk of exposure because they are more likely to put their hands and other items exposed to lead dust or soil in their mouths. And, while lead paint is the leading source of exposure to lead, drinking water accounts for between five percent and 50 percent of children's total lead exposure, Parents for Nontoxic Alternatives told the Flint Water Interagency Coordinating Committee in 2016.

"Infants dependent on formula may receive more than 85 percent of their lead from drinking water," Dr. Yanna Lambrinidou, president of the organization, told the committee. "As exposures decline to sources of lead other than drinking water, such as gasoline, drinking water will account for a larger proportion of total intake."

Even low levels of lead in the blood of children can result in behavioral and learning problems, lower IQ and hyperactivity, slowed growth, hearing problems and anemia. In rare cases, ingestion of lead can cause seizures, coma or death. Lead that's ingested doesn't exit the body. Instead, it is stored in bones, along with calcium. That makes it a particular concern for pregnant women, as lead can be released from the bone to the fetus. Lead exposure to adults can lead to cardiovascular issues, decreased kidney function and reproductive issues.

While health experts say no level of lead is safe, the federal EPA sets its lead action level at 15 parts per billion (ppb) for the 90th percentile of homes tested. That means up to 10 percent of homes tested in a community can have more than 15 ppb before being required to take remedial action, such as removal of lead lines. Michigan's rule is the first to lower the action level to 12 ppb. Further, the rule requires additional testing at homes to ensure tests are accurate.

While the rule addresses both lead and copper levels, the action level for copper has remained the same under the new rule, at 1.3 mg/L or 1300 ppb. Because copper is a required micronutrient, some low amounts of copper are needed in a daily diet. The action level is based on levels that would pose a risk to consumers.

Those opposing the rule say the Michigan DEQ didn't base the new action level on science, and question the reason for the change.

"The water suppliers noted that the EPA was in the midst of studying lead action levels and their relationship to lead blood levels and the DEQ should wait for the completion of the study to properly assess the best way to lower the action level and to avoid confusion when the EPA concludes its own study and picks a potentially different action level," the plaintiffs wrote it their complaint.

The DEQ said the state's rule considered the EPA's briefing and white paper on the Lead and Copper Rule to develop Michigan's rule.

"That process has been dragged out for several years. We aren't really sure what direction they are going now, but we didn't want to wait," Lachance said. "We wanted to be proactive. These are the most stringent rules in the country, and if anything, I think (the EPA) will be looking to us."

Because the new rule requires suppliers to replace an average of five percent of lead service lines, Lachance said the action level doesn't have as much impact as under the federal rule. However, those that exceed the new level must step up lead service line replacements to an average of seven percent per year.

"Originally, people associated (the lead action level) with a health level, and it's not. It's a regulation," Lachance said. "They think it's health-based, but it's really not. It was more of a compromise that would kick folks into doing things and looking into issues. I assume it was negotiated at the federal level to be high enough to know it was there, but if it's too low it would be a burden on supplies. It's a balance of actions to be taken with costs it takes to do it, and what the community is willing to support.

"That's why we very clearly put in a provision that lead service line replacements need to be done at the water supply's expense. We felt if we had it set up the way they did in the past, where they can charge the homeowner for the lead service line replacement, that would create some inequity as to who can afford good water and who can't. We wanted to avoid that and start getting this done for everyone. That's a good thing, and that's creating some stress in these communities."

Oakland County Water Resources Commissioner Jim Nash said the rule will have the biggest impact on older communities. "In Pontiac, about 80 percent of the water mains are 80 to 120 years old. They are extremely old and we are already three years into a 20-year program to replace all the pipes in the system."

Nash estimates about 40 percent of Pontiac homes have lead service lines, with the added work costing between $15 million to $20 million.

Considering the added work required under the new state rule, he said customers are looking at a 15 percent increase in rates. However, Nash said he and others who filed suit against the DEQ are concerned replacing lines on private property could lead to expensive litigation.

"The state Constitution says we can't do work on private property with public money, so we are afraid we will get sued for that," he said. "That's what happened in Birmingham and Bloomfield Hills about how they pay for these things. Birmingham had to settle (a sewer suit)."

Under the suit filed by Oakland County's Water Resources Commission in the Court of Claims, the plaintiffs claim the DEQ is mandating lead service line replacement without providing funding. The plaintiffs also claim the state grossly miscalculated the cost of replacing the lines. (The DEQ estimated the cost to be about $499 million over 20 years, while the plaintiffs claim the cost is closer to $2.5 billion.)

Nash said suppliers could lower the costs by allowing service line replacements to be done according to a supplier's capital improvement plan, rather than a fixed timeframe.

"They want five percent of all lines replaced for 20 years, but when we are doing a project, we could do a line that completes one percent, and the next year could be 10 or 15 percent, but when we have an absolute of five percent per year, then we have to do things twice, and its much more expensive," Nash said. "Everyone I've talked to, we want to remove lead lines, but we have to do it in a way that won't hit the rate payers as hard as this will."

Lachance, with the DEQ, said the rule allows for flexibility on replacement. Ultimately, she said the five percent mandate is an average, not an exact amount. Further, the rule allows for alternate replacement schedules in an asset management plan approved by the DEQ.