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(DFO) EPA Science Advisory Board (1400R) U.S May 4, 2020 Dr. Thomas Armitage Designated Federal Officer (DFO) EPA Science Advisory Board (1400R) U.S. Environmental Protection Agency 1200 Pennsylvania Avenue NW Washington, DC 20460 ([email protected]) Re: SAB Review of the Proposed National Primary Drinking Water Regulation for Lead and Copper, 84 Fed.Reg. 61684 (November 13, 2019). Dear Dr. Armitage: On behalf of the Natural Resources Defense Council (NRDC), a national non-profit organization with over 3 million members and activists, we appreciate this opportunity to comment to the Science Advisory Board regarding the EPA Proposed National Primary Drinking Water Regulations: Lead and Copper Rule Revisions (LCRR), 84 Fed. Reg. 61684 (Nov. 13, 2019). NRDC scientists, lawyers, policy and other experts are dedicated to safeguarding human health and the environment for current and future generations. NRDC has been actively working on the Safe Drinking Water Act for more than 40 years and has been deeply engaged in seeking to strengthen protections against lead in drinking water for more than three decades. We commented extensively on the 1988 Lead and Copper Rule (LCR) proposal that was finalized in 1991 and participated in the litigation challenging that rule. NRDC also is working to improve public health protections from lead-contaminated tap water through litigation and administrative proceedings in several specific cities. These include actions on behalf of local residents and organizations and our members in Flint, Michigan, Newark, New Jersey, and Pittsburgh, Pennsylvania. Through this and other work, we have learned a great deal about the LCR and the scientific issues posed by its implementation. The EPA LCRR represents an important opportunity to substantially improve the current rule; we are pleased that the SAB is reviewing the agency’s proposal and appreciate the chance to provide our views to the Board. Separately, Elin Betanzo of Safe Water Engineering has provided detailed comments to the SAB with our support and which we incorporate by reference. (“Betanzo comments”) In addition, the EPA Region 5 office, which has extensive experience with implementing and enforcing the LCR in Flint and numerous other cities is serious lead issues, submitted in-depth analysis of some of the shortcomings of the LCR, in the attached December 29, 2017 Memorandum from Robert A. Kaplan, Action Regional Administrator to Michael H. Shapiro, Acting Assistant Administrator, Office of Water (“Region 5 Memo,” Attachment A). We also submitted extensive comments to EPA on the LCRR, which also are enclosed (Attachment B). Briefly, we urge the SAB to focus on a handful of key scientific issues that the Board can and should weigh in upon; the Betanzo comments to the SAB, our comments to EPA, and the EPA Region 5 memo go into greater depth on several of these issues, as discussed below. Specifically, we urge the SAB to address: 1. The need for improved LCR sampling protocols to reflect real world peak lead levels. a. As the EPA Region 5 memo emphasizes (at pp, 2-7) and the Betanzo comments demonstrate with an in-depth analysis of data from Chicago and Michigan and published papers (at pp. 2-12), it is critically important that the LCRR adopt new sampling protocols that test for lead that has been stagnant in the lead service line, such as sequential sampling or at a minimum 5th liter sampling (as is now required in Michigan). b. The protocol also must recognize that the small handful of tests required under the LCRR, especially first-draw tests, are highly likely to miss sporadic particulate lead releases. (Region 5 Memo at 11-12, 14-15) c. It also is important to support EPA’s proposal to prohibit certain methods used in the past (such as pre-flushing, aerator removal, and small-necked bottles) that have the effect of minimizing detected lead. If all of these changes are not made, serious contamination is frequently not identified, corrosion control is not optimized, lead service lines remain in place, and the public can be falsely reassured that they are not at risk even though they may be unknowingly heavily exposed to lead. 2. The need for comprehensive lead service line (LSL) inventory. As highlighted in the Region 5 memo (at pp. 7-8, 16-19) and the Betanzo comments (pp. 5 & attachment at 8- 12), it is crucial for the rule to ensure that a full lead service line inventory is completed. This is necessary to ensure that accurate high-risk home monitoring is done of high-risk (“Tier 1”) homes with LSLs, and to ensure that all LSLs are identified for removal. 3. The need to ban partial LSLs (following up on the SAB’s previous report). As discussed at length in the Region 5 comments (pp. 12, 17-18 & footnote 9) and by Betanzo (Betanzo comments at 12-13), the concerns initially identified by the SAB in its September 2011 report “SAB Evaluation of the Effectiveness of Partial Lead Service 2 | P a g e Line Replacement” have now been more fully demonstrated in the literature and in EPA and other studies. a. At bottom, partial LSL replacement (PLSLR) does not improve lead levels in drinking water and at best is a waste of money. Studies show PLSLR can in some cases make lead levels worse at the tap, at least for some time. b. It also is critical to recognize the inequities inherent in partial LSLRs; generally, utilities will only replace part of the LSL when they seek to have the homeowner pay for replacing the portion of the line under private property. It has been demonstrated by an American University-EDF study (Attachment C) that this can result in inequities, as would be expected, because low-income people, disproportionately people of color, cannot afford to pay several thousand dollars for LSLR, and therefore often only well-to-do, predominantly white people pay to have their LSLR. Similarly, an EPA contractor, Abt Associates completed a study for the agency noting that “LSLR programs that require customers to pay a portion of the removal cost,” they concluded, “may result in disproportionate health risk reductions among higher-income populations.” (Abt, Environmental Justice Analysis of the Proposed Lead and Copper Rule Revisions, October 2019, at 21 Attachment D) 4. The need to ensure prompt full replacement of LSLs as a critically-important and effective prevention measure; there is no scientific basis to allow more than 33 years to accomplish the task. As EPA Region 5 notes (pp. 20-21), “removing lead lines is very effective at lowering lead levels in tap water…[O]f the 170 samples taken by [Michigan Department of Environmental Quality] after replacement, 169 showed lead levels below the action level of 15 ppb. The 90th percentile five months after replacement was 2 ppb or less….” a. Unfortunately, EPA’s proposed LCRR does not require all LSLs to be replaced. In fact, the agency proposes to allow water systems that continue to exceed the Action Level for lead to replace only 3 percent of their LSLs per year (i.e., they are allowed more than 33 years), rather than the current 7 percent per year (or about 14 years). This would allow extended exposure of young children, pregnant mothers, infants and other vulnerable populations to in some cases extremely high lead levels for as long as another generation, with no point-of-use filters or other mitigation. The SAB should express its concerns about the lack of a scientific justification for such a prolonged replacement schedule. b. The Board should support the modest improvements such as prohibiting “testing out” (i.e. pretending that a LSL has been replaced it it’s tested and found to be below 15 ppb—a practice heavily criticized by the EPA Region 5 memo at 17- 18), and not allowing PLSLRs to be counted towards the total number of LSLs replaced. However, the stretch-out of compliance to more than 33 years objectively will result in a large number of Americans continuing to be exposed to excessive lead levels for decades. c. We urge the SAB to recommend that all LSLs be replaced as soon as possible to minimize the extent and severity of adverse health impacts. Note for example that Flint has committed to fully replace its LSLs at no cost to its consumers in about 3 years, and Newark has recently promised full citywide LSLR in less than 3 3 | P a g e years at no direct cost to its homeowners (though the City still has ongoing water quality, public education, filter distribution and education, and other problems). 5. The need for a study of Optimal Corrosion Control Technology (OCCT) study for all water systems, and review if there are any treatment or source water changes. As discussed in the Region 5 memo (pp. 9-11) and the Betanzo comments (pp. 13-17) there is an urgent need to ensure that corrosion control is working correctly. In the end, only a system-specific OCCT study, not relying upon coupon tests, is necessary to identify whether corrosion control is optimized and simultaneous compliance is assured. As we learned in Flint; Washington DC; Fort Wayne, Indiana; Madison, Wisconsin; Sebring, Ohio and many other locations, a change in water chemistry, treatment, or simply inadequate monitoring can mask or actually cause serious lead contamination problems. A clear requirement in all cases for an independent evaluation of OCCT by the state or a state-approved independent engineering firm certified with OCCT expertise is needed, as are extensive studies by EPA of what constitutes optimized corrosion control in a wide variety of water chemistries, treatment trains, and locations, to better inform those who are seeking to optimize corrosion control.
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