Environmental Law Matters

Flint, Michigan's problems with lead in its drinking water have been well documented, and this has prompted reports of similar problems detected in other communities, even though these are apparently not as extensive as the situation in Flint. The situation has also revealed that the current procedures to identify and evaluate lead contamination may be flawed and prompted attention to the fact that many other potential contaminants of concern are currently unregulated. Lead contamination has been documented in a surprising number of communities in addition to Flint over the past few years. (New York Times: Unsafe Lead Levels Nationwide). Communities in Ohio, North Carolina and Mississippi are only a few of those that have experienced issues with lead in the drinking water. Moreover, the actual presence of lead in water systems is probably misunderstood as a result of the procedures EPA uses both to judge the levels of lead that would raise a concern and when the presence of lead contamination requires a response by the water system in regulatory officials. Currently, EPA considers the concentration of lead requiring federal action to be 15 parts per billion, whereas CDC and other public health officials generally consider any concentration of lead in drinking water to be of concern. Moreover, EPA's methodology for determining whether this concentration requires action is triggered only if less than 90% of the samples in a given system show levels at or above 15 parts per billion. (Detroit Free Press: 90% Is a Passing Grade). Thus, up to 10% of the homes in a given system that are sampled could contain levels of lead in the tap water in excess of 15 parts per billion and yet no regulatory action would be required. Moreover, much of this is not communicated to the customers on a timely basis, even when EPA requires the local water system to take remedial actions. Beyond the question of lead and its concentration and measurement, the New York Times article also points out that there is a list of potentially risky chemicals and microbes that EPA has compiled but which the has not yet attempted to regulate. In fact, efforts to regulate just one of those contaminants, perchlorate, has been pending for a number of years. As a result, the Natural Resources Defense Council recently sued EPA in an effort to require the agency to proceed with regulation arguably required by provisions of the Safe Drinking Water Act. (NRDC Press Release). EPA effectively missed two deadlines imposed by the Act, thus prompting NRDC's action. Flint's situation revealed failures by officials at all levels of government, initially to avoid the problem, and thereafter to respond to it promptly and decisively. We also know that, even using current measures, problems with lead exist in other communities. What we apparently don't know is the actual potential for lead contamination in communities that currently meet EPA's existing standards and avoided the trigger for remediation. Beyond that, the potential threats posed by dozens of other constituents have apparently never been fully evaluated. It seems fair to say that, even when properly administered by officials at each level of operation and oversight, the current regulatory system may be inadequate to fully detect and prevent the problems we know about, much less to detect other threats.