For a quarter of a century, the federal rule dictating how communities test for and control lead in drinking water has satisfied virtually no one.
For the past six years, the Environmental Protection Agency has been trying to rewrite its complex, controversial regulations.
And for the past six months, while the water-contamination crisis in Flint, Mich., became a national embarrassment, the pressure built to finish the job.
There is widespread agreement that major changes are well overdue for the Lead and Copper Rule, which governs about 68,000 public water systems and affects the health of millions of Americans.
“It clearly needs to be strengthened,” EPA Administrator Gina McCarthy said recently at a congressional hearing, even as she emphasized that the debacle in Flint stemmed from Michigan’s failure to carry out the existing law.
Yet there is concern over how — and when — the overhaul will end, and whether the final product will rectify the shortcomings that have dogged the lead-testing regulations since their inception.
Environmental advocates have long argued that they are too easy to evade and too hard to enforce. Some state and local officials in charge of implementing them call them complex and unwieldy. The water industry has fretted over the associated costs.
“Something about this rule just brings out the worst in everybody,” said Marc Edwards, the Virginia Tech professor who has helped expose lead-in-water crises in Washington as well as Flint. “It brings out the worst in EPA; it brings out the worst in the water industry. . . . It’s just dumbfounding.”
Federal requirements for testing water for lead are unique — and uniquely challenging. The toxic substance generally gets into drinking water only after it leaves a treatment plant, typically as it passes through aging lead service lines, solderings or fixtures. That means that testing must take place at the tap, in people’s homes, where contamination risks are greatest.
The government’s approach largely has relied on utilities ensuring that water does not become so corrosive that it leaches lead from pipes at any stage.
“That’s a pretty complicated set of tasks,” said Peter Grevatt, director of the EPA’s Office of Groundwater and Drinking Water. “[It] is one of the most complicated rules we have on the books.”
EPA officials have repeatedly said that updating the lead-in-water rule is one of the agency’s highest priorities — although just one piece of the bigger puzzle of ensuring safe drinking water nationwide. The effort, underway since 2010, is the most comprehensive ever, involving public meetings and input from an expert advisory council.
But the officials also say that they do not expect to conclude their overhaul until sometime in 2017, in part because of the complexities of the regulations and the diversity of opinions about what shape they should take.
Until the changes are released, key questions will go unanswered: Will the revised rule close loopholes? Will it speed the process of getting lead out of water systems for good? Will utilities embrace the new regulations, and will state officials implement them?
And will the EPA crack down on those who don’t?
Dangerous exposure levels
In 1986, an EPA policy analyst named Ronnie Levin began crunching whatever data she could gather about lead in water around the country. She determined that about 1 of 5 Americans served by public systems was being exposed to potentially dangerous levels — a disturbing figure given how lead can irreversibly hinder brain development in children and cause an array of behavioral problems.
Levin also calculated that stricter federal standards for lead in drinking water could have significant benefits, both in reducing health risks and in extending the life of public and private plumbing systems.
“The bottom line was a lot of people were being exposed to lead in drinking water, and the benefits of reducing that exposure were at least 4 to 1 over the costs,” Levin recalled.
A draft of her analysis, leaked by “a source seeking support for more stringent limits,” landed on the front page of The Washington Post. That year, Congress passed amendments to the Safe Drinking Water Act that charged the EPA with restricting an array of contaminants and prohibited the use of most lead solder, pipes and fixtures.
In 1991, the EPA finalized the Lead and Copper Rule, requiring water utilities around the country to test consumers’ tap water for lead and take steps to control the corrosion of aging pipes.
The directive said that if more than 10 percent of the sites sampled in an area exceeded the “action level” of 15 parts per billion, a utility would have to take remedial steps to improve its corrosion controls and eventually could have to replace lead pipes.
The test samples were supposed to include the most “high risk” homes in a community, according to the rule. But even in bigger cities, the total number of homes sampled would not exceed 100. Although the rationale was to not overburden the industry, it also meant the testing would be, at best, a warning system of a potentially larger problem.
One official touted it as “the most stringent in the world for lead in drinking water.” But criticism came quickly.
Activists complained that some utilities had up to six years to implement the new requirements, and more than another decade to replace lead pipes if they could not control lead levels.
“EPA is shirking its responsibility,” Erik Olson, of the National Wildlife Federation, told The Post at the time.
The agency “completely abrogated its oversight duties,” Democratic congressman Henry A. Waxman (Calif.) told the New York Times.
Even Levin was disappointed. “It was obvious that it was not enforceable,” she recalled. “There were a lot of us who said that.”
On the flip side, some utilities remained concerned about the potential costs and headaches of testing, especially because, in many cases, residents would be responsible for taking the samples at their own faucets.
“When you do extensive sampling like this, you have to explain why, when in fact there might not be any problem,” one Illinois water-operations manager told the Chicago Tribune. “No one wants to hide anything from anyone, but the PR factor is something that has to be dealt with.”
Years of criticism
Fast forward 25 years. According to critics, gaps in the rule have long allowed for the “gaming of compliance” by utilities to avoid exceeding the 15 ppb action level.
“Utilities have no incentive to find the problem. That’s not a good rule,” said Tom Neltner, chemicals policy director at the Environmental Defense Fund and a member of the EPA expert advisory council that recommended changes to the regulations.
The suspect practices include removing aerators from faucets before testing, giving targeted consumers small-necked bottles and instructions to fill them slowly, and “pre-flushing” water from lines before taking a sample. All can temporarily lower lead levels.
In addition, although utilities are supposed to focus their testing on residences with the highest risk of lead contamination, that does not always happen, critics say.
“If you want to be clever, you can test where you’re pretty sure there’s not a problem and not find a problem,” said Olson, who now is the health program director at the Natural Resources Defense Council. He, Edwards and others also have faulted the EPA for doing too little to crack down on such practices.
David LaFrance, chief executive of the American Water Works Association, wrote recently that “most water professionals are perplexed — even stunned — at what transpired in Flint.
“They take seriously their obligation to protect the families in their communities,” LaFrance continued. “They know in most cases lead risks in tap water can be effectively managed through corrosion control at the treatment plant. They monitor water for changes in water chemistry and quality. They are not satisfied to simply meet minimum regulatory requirements.”
Some concerns about the rule’s effectiveness and enforcement have come from inside the government. In a 2003 inquiry, launched after high lead levels were discovered in thousands of homes in Washington, the Government Accountability Office found that the EPA lacked recent test results for nearly a third of the nation’s largest water systems and lacked information about adherence to the regulations for more than 70 percent of community water systems. The apparent reason? States simply were not reporting the information.
“EPA has been slow to take action on these data problems and, as a result, lacks the information it needs to evaluate how effectively the lead rule is being implemented and enforced nationwide,” the report said.
A decade later, several EPA officials concluded after a study in Chicago that the existing sampling protocol “systematically misses the high lead levels and potential human exposure.” That was especially true where construction or other activity had disturbed lead pipes.
In February, with the agency under intense scrutiny because of Flint, a top official wrote to drinking water authorities in every state, reminding them to follow both the letter and spirit of the Lead and Copper Rule. Stick to proper testing techniques and be transparent with homeowners when problems arise, he wrote: “These actions are essential to restoring public confidence in our shared work to ensure safe drinking water for the American people.”
McCarthy sent a separate letter to governors, explaining that the EPA would be meeting with all drinking-water programs to make sure states “are fully implementing and enforcing this important rule.”
Last month, the Michigan attorney general filed criminal charges against two state environmental-quality officials and a local water-quality supervisor. All are accused of tampering with the results of lead testing in Flint.
The contamination there is having other reverberations. A Kaiser Health Tracking Poll released Thursday found that more than 60 percent of Americans think the federal government is doing just a fair or poor job protecting public drinking water.
Work on the rule update continues. In December, the EPA’s outside advisory council recommended that it set a “household action level” for lead in drinking water and require systems to alert public health officials whenever they exceed that. The group also urged the EPA to prioritize “to the greatest degree possible” the removal of the lead service lines that remain underground across the country.
Ridding the country of millions of lead pipes — a task that people on all sides agree will be slow, expensive and ultimately necessary — probably will take decades and generate controversy. In the meantime, officials say tougher, more enforceable testing for lead in water is essential.
One thing is certain: Flint has put the once-obscure process in a harsh spotlight.
During the recent congressional hearing, Rep. Gene Green (D-Tex.) asked Joel Beauvais of the EPA Office of Water if the agency “could actually speed up” the Lead and Copper Rule update.
“We certainly have a sense of urgency about the revisions. We also want to make sure we get them right,” Beauvais responded. He acknowledged Flint’s impact on the effort, adding, “Stakeholders’ understanding of where we need to go on this has evolved somewhat. . . . We do recognize there’s a lot of room for improvement in the rule.”
Rep. Fred Upton (R-Mich.) asked Beauvais to take his bosses a message: “We’d like to have something maybe earlier than 2017. That’s a long ways off. I would like to think that maybe there could be a little extra push.”
Neltner, for one, worries about the timing for a different reason.
“There’s a little problem. It’s called an election,” he said. “How do we know the next administration will make it a priority?”