Given that Flint is likely one of many areas of the country that didn’t show up in the EPA database of Lead and Copper Rule violations, how are some local officials “gaming the system”?
Cities from Flint to Philadelphia allegedly have been gaming the system in numerous ways to avoid detecting high levels of lead, according to Virginia Tech researchers and various news reports. Since lead levels vary in tap water, even within the same water system, it’s fairly easy to avoid detecting lead problems. And that’s what many water systems appear to have done.
In Flint and some other cities, the EPA’s rules requiring that at least half of the homes tested must have lead service lines and half must be homes at highest risk of having lead-tainted water have been ignored; or high lead readings have been discarded as supposed errors; or water system employees have been asked to provide water samples from their homes, irrespective of whether they meet the definition of highest-risk locations. In late February 2016, in the wake of the national outrage over the Flint crisis, the EPA issued a guidance intended to tighten testing protocols and close some of these loopholes.
What are the findings of the report based on?
NRDC used data from the EPA’s official drinking water tracking system, the Safe Drinking Water Information System (SDWIS), to identify areas of the country impacted by violations of the Lead and Copper Rule or with lead levels above the 15 ppb action level.
Using official EPA violation and enforcement records, we have conducted extensive data analysis. We also used geographic information system (GIS) mapping software to highlight and map the scope of lead-related issues in drinking water systems across the United States. These maps, based on data the EPA compiles from regular state reporting to the agency, show widespread violations of the Lead and Copper Rule and action level exceedances across the country.
However, it is important to note that not all violations of the Lead and Copper Rule are reflected in the database. In fact, the EPA’s database does not list Flint among the systems in violation of the Lead and Copper Rule.
Michigan’s Department of Environmental Quality (DEQ) still has not officially declared Flint to be in violation of the Lead and Copper Rule, even though the Michigan attorney general’s recent criminal indictments of state and local officials who had a hand in the Flint crisis certainly acknowledge that the Rule was violated.
What is the status of the lawsuit filed by the NRDC and the ACLU of Michigan?
On October 1, 2015, after being invited to help Flint citizens address local drinking water contamination problems, NRDC along with community groups in Flint and other organizations submitted a petition to EPA requesting that the agency issue an emergency order to the state of Michigan and city of Flint. The petition asked the EPA to use its emergency authority under section 1431 of the Safe Drinking Water Act to require the state and Flint to immediately switch back to Detroit city water; provide alternative safe drinking water, such as bottled water, to all residents at no cost; and take other specific measures to address the problem. While Flint switched back to the Detroit Water system in late October, lead contamination and damaged water infrastructure from the use of corrosive Flint River water remained.
In November, when it became obvious that neither the EPA nor state or local officials intended to act swiftly, NRDC and local citizens and organizations notified Flint and Michigan of our intention to file a citizen suit under the Safe Drinking Water Act against state officials, state-appointed local officials, the city administrator, and the city. Unlike other laws, the Safe Drinking Water Act does not allow citizens to bring an immediate legal action to protect their health from an imminent and substantial endangerment — a major shortcoming.
On December 10, 2015, the EPA notified NRDC of its intention to “defer action” on the petition for an emergency order, on the grounds that the agency was working with state and local officials to resolve the issue. In January 2016, having waited the required 60 days after notifying the violators, EPA, and the state of our intention to sue, NRDC and the ACLU of Michigan filed a Safe Drinking Water Act citizen suit on behalf of their organizations and local members, as well as Concerned Pastors for Social Action and a Flint resident named Melissa Mays. (p10). NRDC and the other plaintiffs in March asked the court to order home water delivery for every household in Flint, as the water remains unsafe and is likely to remain undrinkable for months due to lead contamination.
A copy of the suit can be found here: https://www.nrdc.org/sites/default/files/leg_16012701a.pdf
Does Flint point to a broader problem of environmental injustice?
Yes, Flint illustrates the broader problem of environmental injustice — meaning the disproportionate exposure of lower-income communities and communities of color to environmental hazards. For more than a year, government officials callously downplayed or ignored Flint’s toxic water and the majority-black community’s cries for help. Federal EPA and state and local environmental officials belittled and refused to listen to Flint residents and their advocates.
While a full evaluation of the broader environmental justice implications of lead-contaminated drinking water is beyond the scope of this report, NRDC is analyzing data on lead and other drinking water contaminants to assess the degree to which low-income communities and communities of color are disproportionately impacted by drinking water contamination. A detailed report on this subject is forthcoming.
What can be done to prevent another Flint?
Flint’s water crisis highlights potentially disastrous gaps in the provision of safe drinking water to all people, especially the most vulnerable. While the shortcomings are complex, weak regulatory language and poor implementation and enforcement of the Lead and Copper Rule at the federal and state levels are the heart of the problem.
Beyond addressing the immediate needs of the people of Flint, here are several major changes that are needed at the national level to protect the health of millions of Americans:
1. Fix our national water infrastructure, paying special attention to the needs of disproportionately affected communities, by:
- Fully replace the six million-plus lead service lines.
- Test drinking water in schools and day care centers for lead.
- Replace or repair decaying or outdated parts of the distribution system, such as leaking and crumbling water mains.
- Improve drinking water treatment.
- Substantially increase investment in water infrastructure. The EPA and state agencies managing these investments should prioritize funding (including grants) for water infrastructure improvements in low-income communities and communities of color.
2. Fix the Lead and Copper Rule, and the way states and the EPA implement and enforce it. The Rule, at a minimum, should: (a) require full replacement of all lead service lines; (b) improve monitoring and prohibit gaming the system to avoid detecting or reporting lead contamination problems; and (c) require clear, ongoing, and culturally appropriate public education and notification of lead problems (e.g., issuing notifications in plain language, using languages reflective of the community, and using multiple types of media).
3. Strengthen all drinking water enforcement, and let citizens act immediately in cases of imminent and substantial endangerment to health. Enforcement has been decimated by poor funding, lack of management support at the state and federal levels, and excess caution by the EPA. We need to renew the enforcement culture at the EPA and primacy agencies to reinforce the importance of ensuring the protection of public health. Enforcement penalties in the Safe Drinking Water Act should also be strengthened. In addition, citizens whose water may present an imminent and substantial endangerment to health should be authorized under the law to immediately sue for relief.
4. Address environmental injustices. Intentions aside, an environmental injustice is an environmental injustice. The EPA and state environmental officials should take such cases seriously and prioritize them for resources and enforcement, including permits, regulatory protections, and infrastructure funding. The EPA and environmental officials should adopt a community-participatory model, allowing community members who are at highest risk from tap water contamination to participate in developing solutions to drinking water infrastructure challenges.