Beyond Flint: How Local Governments Ignore Federal Water Standards

Beyond Flint: How Local Governments Ignore Federal Water Standards

Underfunded and under attack, the EPA has failed to enforce water testing and treatment rules. 

February 24, 2016

The many lawsuits and federal probes triggered by the lead contamination crisis in Flint, Michigan, allege that city and state officials failed to meet federal water testing and treatment standards.

But Flint is hardly the only American city with water testing problems. Although the 40-year-old Safe Drinking Water Act requires the Environmental Protection Agency to regulate public drinking water, agency enforcement has been lax.

Underfunded and under pressure from GOP critics and utility industry lobbyists, the EPA has failed to put its latest water testing and treatment standards into enforceable regulations. As a result, cities and states have been left largely to police themselves, and many have ignored federal guidelines while the EPA looked the other way. Local compliance and EPA oversight are so slack, in fact, that by some estimates nearly 100 million Americans in cities all over the country could be drinking unsafe water.

“Do I expect more Flints to happen? I think it’s very, very possible,” says Yanna Lambrinidou, an assistant professor in the Science and Technology Studies Department at Virginia Polytechnic Institute and State University (Virginia Tech), who has advised the EPA on changes to federal water standards. “I worry tremendously about water in other cities.”

AP Photo/Darron Cummings

Midwest Food Bank workers and volunteers carry cases of water donated to Flint, Wednesday, January 27, 2016, in Indianapolis. 

The Flint crisis began in April 2014, when city officials switched the municipal water supply from the Detroit River to the Flint River as a cost-saving measure. The new, much more corrosive water allowed lead from Flint’s aging service lines to leach into its drinking water, causing lead levels to skyrocket. Yet despite residents’ complaints about their water’s color, odor, and flavor, city and state officials assured them for nearly 18 months that the water was safe to drink.

A big reason Flint and Michigan officials failed to act for so long was that they had been testing and treating the water using practices that violated federal guidelines, and that produced inaccurate results. Under the 1974 Safe Drinking Water Act, the EPA sets standards for public water quality, testing, and treatment. These include federally approved testing methods laid out in the agency’s 1991 Lead and Copper Rule, the bedrock of federal water quality enforcement.

But over the last two decades a number of water utilities, including Flint’s, have ignored these methods and put in place their own, less-rigorous lead testing systems. These so-called additional practices include running a tap for several minutes before collecting a sample, a technique known as “pre-flushing.” Experts say this can clear soluble and particulate lead from a pipe, artificially lowering a sample’s lead level.

Other unapproved but widespread practices include using narrow-mouthed sample bottles, which can make it easier for lead particulates to miss the container and drain into the sink, and selectively testing water to overlook the homes most likely to contain lead pipes. In Flint, the combined effect of these unapproved practices helped keep the city’s lead contamination hidden for months.

But many more cities are guilty of similar violations. A 2015 study by the American Water Works Association found that if federal recommendations on water monitoring were actually followed, as many as 70 percent of water systems relying on lead service lines could be found to be unsafe. All told, those water systems, which include those in Detroit, Philadelphia, and Rhode Island, serve about 96 million people nationwide. In some cases, utilities have failed to keep records of where lead service lines are even located.

“If we were to use another protocol, all of these people would be told they would have to stop drinking their water without precautions,” says Lambrinidou.

Philadelphia’s water authority, for one, has recommended “pre-flushing” for more than 20 years, while also instructing residents to remove aeration filters from their taps before testing. The inaccurate test results that such practices yield may help explain the unusually high blood lead levels among the city’s children, which remain four times the national average. The utility has defended its protocol, saying that it improves consistency and allows the city to better compare data over time.

“At this point, anything goes,” says Lambinidou. “A water utility is able to interpret the Lead and Copper Rule as it likes, and even reject it and put in place its own practices without much oversight.”

In Flint, experts say a similar protocol helped keep the city’s water crisis hidden from regulators for nearly two years. Starting in 2007, the Michigan Department of Environmental Quality had instructed local utilities to “pre-flush” their water samples, a practice that ended last month.

But the agency continues to claim the technique did not violate EPA rules. That’s technically true, says Lambrinidou, but the claim papers over the utility’s failure to meet EPA’s non-binding standards. “There is guidance but it’s not in the rule now,” she says, though “a utility would be hard pressed to think that the EPA condones it.”

Flint’s flawed testing practices, which also included a failure to identify homes at the highest risk for contamination—another violation of EPA guidelines—have meant that Flint’s water has not once failed an official lead monitoring test, even at the height of its contamination. During the summer of 2015, for instance, Flint’s water utility conducted a lead action level test and reported it to state regulators (as required by the EPA). The test found that lead levels reached an average of 11 parts per billion, which is within the range that EPA identifies as acceptable.

But when a team of researchers from Virginia Tech tested Flint’s water without “pre-flushing” the samples, also last summer, it found lead levels more than ten times higher than that. The misleading test results allowed state and federal officials to claim that Flint’s water was safe to drink as late as September 2015.

“The only reason we know about Flint is the Virginia Tech team got rid of the ‘pre-flushing’ instruction,” says Lambrinidou.

Jake May/The Flint Journal-MLive.com via AP

Skylar Lewis, 9, looks to her father Stanford Lewis, both of Flint, for support as she prepares to have a needle prick her finger during a free lead testing event on Monday, February 8, 2016 at Carriage Town Ministries in Flint, Michigan.

In fact, without that additional testing, it’s likely Flint residents would be drinking contaminated water today, concurs Siddhartha Roy, a Virginia Tech graduate student and member of the Flint research team. “If the EPA is on TV saying the water is safe to drink, who else would step in to challenge that?”

 

The Flint water crisis has pulled back the curtain on an agency already under fire from its own scientists. Just as the Flint crisis reached national attention last fall, a dispute broke out at the EPA over revisions to the agency’s 1991 Lead and Copper Rule. Tasked with updating the rule in the wake of a lead contamination outbreak in Washington, D.C., an EPA task force called for the agency to require utilities to replace more lead service lines and to better engage the public in water monitoring. But the working group, which included Lambrinidou along with several utility industry representatives, stopped short of banning the “additional practices” that had kept the crisis in Flint hidden for so long. That prompted Lambrinidou to publish a scathing dissent in October.

Water “contamination events” in such cities as Flint, Washington, D.C., and Durham, North Carolina, reveal “that lead in drinking water poses a serious, misunderstood, under-detected, and inadequately controlled health risk to consumers across the U.S.,” read the dissent. “As such, revisions to address significant deficiencies and strengthen the rule are imperative and urgent.”

Although EPA officials have said they will include both the August report and the dissent in their final rulemaking, it’s not clear how rigorously the EPA will hold states accountable to federal standards. 

“We need a revised rule that is science-based and finally protective of the public's health,” Lambrinidou says. “I don't think that the [working group’s] recommendations will get us there.” 

But even if the EPA adopts stronger rules for water testing and treatment, enforcement may still be an uphill battle given the underfunding, political opposition, and industry pressure that continues to plague the agency.

“We’ve been looking at this as a result of people demonizing environmental laws and demonizing the agency,” says Henry Henderson, director of the Midwest Program at the Natural Resource Defense Council (NRDC). “It results in an agency that is cowed and relentlessly passive.”

Pressure from water utilities, in fact, goes back to the initial implementation of the Lead and Copper Rule. Two years after the EPA first issued the rule in 1991, the American Water Works Association (AWWA), an industry group representing 4,000 utilities nationwide, sued the agency. At issue was the rule’s requirement that utilities replace lead service lines when elevated lead levels are detected.

The AWWA argued that because some lead service lines fall on private property, the EPA does not have the authority to order utilities to replace them, even when elevated lead levels are detected. But experts say private ownership doesn’t diminish a utility’s responsibility to ensure safe drinking water and that utilities regularly replace lead services lines that they do not own every day.

The group may also have been concerned about the high cost of fully replacing the lines. According to an AWWA survey last year, just 2 percent of public water utilities could afford to fully replace their lead lines. After a federal judge sided with the AWWA, the agency withdrew the provision in 2000, allowing utilities to only partially replace lead service lines after a contamination is detected.

Conor Ralph/The Flint Journal - MLive.com via AP

Volunteers unload water behind First Trinity Missionary Baptist Church as leaders held a town hall meeting to discuss the ongoing Flint water crisis on Monday, February 1, 2016 in the church in Flint. 

The change significantly weakened the new rule, while also putting residents at risk, experts say. According to a study by Washington University in St. Louis and another by the EPA Science Advisory Board, both in 2011, partial replacement can actually corrode existing lead pipes, which can lead to water contamination. These warnings from EPA scientists led to no changes in policy, and the agency also failed to block states from using such questionable practices as “pre-flushing” to test water.

The AWWA has also supported states’ use of “pre-flushing” and other misleading test practices, despite EPA opposition. According to Miguel del Toral, an EPA scientist who initially contacted the Virginia Tech research team when he discovered lead contamination in Flint, more than 14 state agencies were instructing residents to “pre-flush” water samples by 2014. The AWWA’s support for the practice, and its history of combating lead regulations, led del Toral to part ways with the organization in 2014; Marc Edwards, head of the Virginia Tech team, did the same later that year.

“AWWA has taken quite an active position in the past of not supporting bans on ‘pre-flush,’ and not supporting the removal of lead for all plumbing materials,” says Virginia Tech’s Lambrinidou. “It has been a very tragic and obstructive player in the history of lead and drinking water.”

Greg Kail, a spokesman for the AWWA, says the group is conscious of the need for stronger outreach and communication about the dangers of lead in drinking water. Citing the EPA working group’s August report as a step forward, Kail called on utilities to better assist consumers with water quality testing. “The Flint crisis lays bare a simple fact: As long as there are lead pipes in the ground or lead plumbing in homes, some risk remains,” he says. “As a society, we should seize this moment of increased awareness to develop workable solutions for getting the lead out.”

 

Now that the full extent of the Flint crisis has come to light, the EPA faces renewed pressure to crack down on local governments that flout federal rules. On January 27, the NRDC filed a lawsuit asking a federal court to compel city and state officials to abide by EPA water testing standards, and to fully replace all of Flint’s lead service lines. Clean water advocates like the NRDC hope the Flint crisis can serve as a wake-up call for federal regulators to finally start enforcing water rules. “We want state and local government to step up to the plate,” says Henderson. “We believe this lawsuit can help give the means to make that happen.”

Lawmakers on Capitol Hill have also begun to pressure federal regulators to enforce the rules. At a February 11 hearing on agency discretion before the Senate Homeland Security and Governmental Affairs Subcommittee on Regulatory Affairs and Federal Management, Michigan Senator Gary Peters, a Democrat, asked Susan Shinkman, the director of the EPA’s Office of Civil Enforcement, why her agency did not pursue judicial action against the Michigan Department of Environmental Quality when that body was clearly violating federal rules. Shinkman responded that the EPA is prepared to use “judicial action” if Michigan does not abide by the agency’s January 21 emergency order, which put water testing in Flint under federal control and required the state to release additional test data.

AP Photo/Carlos Osorio

Attorney Michael Pitt points to a graphic and highlights the elevated blood lead levels in children, during the period when the city of Flint changed their water source, during a news conference, Tuesday, January 19, 2016 in Flint, Michigan. Pitt serves as co-council in two class action suits filed by Flint residents against state officials.

Peters has also cosponsored a bill that would require the EPA to release lead water test results to the public if they exceed 15 parts per billion and if a state agency fails to act. While the bill does not address “pre-flushing” and other practices known to distort results, it could prod the EPA to more actively regulate drinking water. “The intent behind this bill is that the EPA should not be hesitating,” says Lynn Thorp, national campaigns director at Clean Water Action.

Chronic underfunding at the EPA has made it harder for the agency to both underwrite and oversee regulators at the state level. Since 2010, the agency’s funding has been slashed by more than 25 percent and its workforce has been cut by more than 10 percent. “That can really eat into your ability to do science and implement your regulatory authority,” says Thorp.  

These cutbacks also directly impact states, which rely heavily on federal funding to enforce water quality standards. Michigan, for instance, suffered a $450 million deficit last year. One study by the Association of State Drinking Water Administrators found that state drinking water programs need an additional $240 million per year “to fulfill the minimum required functions” under the Safe Drinking Water Act.

President Barack Obama’s 2017 budget proposes pumping $158 million into the federal Drinking Water State Revolving Fund, which helps states and cities replace and improve aging water infrastructure. But the proposal also cuts $370 million from another funding stream called the Clean Water State Revolving Fund, which pays to treat and reduce wastewater and urban runoff. While the injection of funds will help states replace old lead service lines—a critical step in preventing another contamination crisis—it does so at the expense of another vital water quality program. It’s also nowhere near what state agencies need to fill their budget gaps.

“Some of these state agencies have cut their staff so much they’re not able to meet the requirements of the [Safe Drinking Water] Act,” says Thorp.

In Flint, the water crisis has thrown the cracks of the nation’s public water system into stark relief at all levels of government. The political fallout has triggered several resignations of state and local officials, become a cause célèbre on the presidential campaign trail, and fueled public angst over lead damage to children. Today, more than a half-dozen lawsuits from residents and environmental groups point to widespread harm to the health of children, who can suffer irreversible damage from lead exposure.

Yet clean water advocates also see the crisis in Flint as a potential opening to fix longstanding enforcement problems. Henderson says he hopes actions like the NRDC lawsuit will push the EPA both toward stronger enforcement, and toward a greater commitment to strong federal oversight of water quality.

“What we see in Flint is a leading indicator of an issue that we need to get into in a very deliberate way,” says Henderson. “I’m hoping changes in Flint will be applied across the nation.”

Correction: An earlier version of this story stated that Yanna Lambrinidou is a civil engineering professor at Virginia Tech. In fact, she is a professor at Virginia Tech's Science and Technology Studies Department. 

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