EPA and Municipalities Respond to Increased Concerns About Lead in Drinking Water

March 8, 2016

Since the public discovery of widespread lead contamination of drinking water in Flint, Michigan, there has been increased scrutiny on the status of drinking water regulation and aging water infrastructure. While the crisis continues to unfold in Flint, municipal water systems across the country are fielding questions regarding the safety of their water supply. Federal agency regulation and enforcement and citizen group complaints regarding drinking water are expected to increase as concern over lead contamination grows.

On February 29, the EPA released letters to state governors and state environmental agencies, alerting them to the EPA’s increasing enforcement of the Lead and Copper Rule (LCR), 40 CFR Part 141 Subpart I. The LCR requires water utilities to collect drinking water samples from taps, and to take certain notification and remediation actions if the results of sampling are above the “action level,” defined for lead as a concentration of 15 ppb in more than 10 percent of samples. The letters ask for state cooperation in implementation of the LCR and an increase in public transparency. The EPA also notes that in 2017 it plans to issue revisions to the LCR, which are likely to address any perceived regulatory gaps in the detection of lead contamination.

Other municipalities have received citizen complaints, and suits have been filed citing concerns about lead contamination. In the Circuit Court of Cook County, Illinois, a class-action complaint filed against the city of Chicago alleged that the city was aware that its replacement work on certain water lines would cause an increased risk of lead contamination, but failed to adequately warn residents of this potential contamination. Class Action Complaint, Blotkevic v. City of Chicago, No. 2016-CH-02292 (Cook County Circuit Court, Feb. 18, 2016). While it is unclear how such class-action suits would be handled by the courts, the complaint’s focus on the water utility’s failure to warn customers despite knowledge of possible contamination highlights the importance of public transparency and disclosure.

“The crisis in Flint has heightened attention on the issue of lead in drinking water across the nation. It is a timely reminder to all of us in the water sector of our duty to protect public health. We need to be diligent in our sampling protocols, aggressive in our lead service line replacement programs, and honest in our outreach to customers.”

– George S. Hawkins, General Manager, District of Columbia Water and Sewer Authority

The concern over lead pollution specifically has resulted in heightened public awareness of drinking water pollution as a broader public health issue, and may spur increased action from nonprofit groups. The Natural Resources Defense Council recently noted, when announcing its February 18 lawsuit against the EPA, that the situation in Flint serves as a reminder of the public health risks associated with drinking water contamination. In that suit, the NRDC accused the agency of failing to meet statutory deadlines for proposing and publishing perchlorate regulations pursuant to the Safe Drinking Water Act.

Given the nation’s renewed focus on drinking water and the EPA’s role in regulating it, changes to federal regulations concerning municipal water utilities are likely in the next few years. The regulatory and public scrutiny over drinking water safety highlights the need for water utilities to take proactive measures to ensure proper implementation of testing procedures, evaluate the need for infrastructure improvements, and importantly, establish notification procedures that disclose possible contamination risks to consumers.