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Public Comment Submitted to the SAB Staff Office

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Public Comment Submitted to the SAB Staff Office March 23, 2020 VIA ELECTRONIC MAIL Dr. Thomas Armitage, Designated Federal Officer, [email protected] Dr. Michael Honeycutt, Chair Board Members Science Advisory Board U.S. Environmental Protection Agency Re: Comments Urging the Science Advisory Board to Review the Environmental Protection Agency’s Proposed Revisions to the Lead and Copper Rule Dear Dr. Armitage, Dr. Honeycutt, and Members of the Science Advisory Board: We appreciate the opportunity to comment on the Science Advisory Board’s (“SAB’s”) consideration of whether to review the Environmental Protection Agency’s (“EPA’s”) proposed revisions to the National Primary Drinking Water Regulations: Proposed Lead and Copper Rule Revisions, EPA-HQ-OW-2017-0300 (the “Proposed Rule”). Earthjustice is a nonprofit environmental law organization that works with a broad array of community groups and national environmental and health organizations. Earthjustice urges SAB to review the Proposed Rule to ensure that EPA meet its legal mandate under the Safe Drinking Water Act (“SDWA”) to protect public health and the environment based on the best available science. The recommendations provided below are discussed in greater detail in the extensive comments Earthjustice previously submitted on behalf of more than 30 organizations and individuals, see Docket No. EPA-HQ- OW-2017-0300-1469, attached hereto as Exhibit A. Many of these groups’ thousands of members and constituents are served by lead service lines, draw water from lead-bearing plumbing, or are otherwise exposed to lead-contaminated water, and thus have a personal stake in ensuring that SAB conduct a robust assessment of the public health effects of the Proposed Rule. The Proposed Rule warrants SAB review. The Proposed Rule constitutes the first significant proposal to revise federal law governing lead in drinking water since 1991. Despite a decades-long effort by communities and policymakers to strengthen the Lead and Copper Rule (“LCR”), EPA’s proposed changes to the LCR fail to adequately protect human health. Despite proposing modest improvements to the LCR, the Proposed Rule fails to implement changes that appropriately address advances in science confirming the severe toxicity of lead at low-dose exposures. Indeed, in some instances, the Proposed Rule would unlawfully implement weaker protections for public health in violation of the SDWA. Since the LCR’s initial promulgation in 1991, a compelling array of published, publicly available and peer-reviewed studies have confirmed that rising lead levels in drinking water contribute to increased blood lead levels and that serious, irreversible adverse human health impacts occur at extremely low levels of exposure. The Centers for Disease Control and Prevention, the World Health Organization and the American Academy of Pediatrics agree that there is no safe level of lead exposure.1 Yet, the Proposed Rule fails to account for the well-established body of scientific data regarding the best way to minimize exposure to lead from drinking water. First, EPA declines to propose setting a Maximum Contaminant Level to simplify the LCR’s regulatory scheme and neglects to lower the level requiring remedial action to a health-protective standard—actions both feasible and required by SDWA. Second, the Proposed Rule decreases the rate at which lead service lines would need to be replaced even though public health experts identify replacing lead service lines as the single most effective action utilities can take to reduce lead levels in drinking water.2 Indeed, the agency would allow some water systems to avoid replacement of lead service lines altogether. The Proposed Rule additionally raises environmental justice concerns. In the sections providing for lead testing in schools, the Proposed Rule fails to account for the disproportionate health impacts on low-income communities and communities of color— borne out of the scientific data—and does not require any remedial action when such testing reveals dangerously high lead levels. We respectfully request that SAB review EPA’s Proposed Rule and recommend the following urgent steps to correct scientific errors and legal violations therein. 1) SAB should advise EPA to revise the LCR to replace its current approach to reducing lead exposure—that of a treatment technique—with a “Maximum Contaminant Level” (MCL) of no greater than 5 μg/L. EPA should not continue to use a treatment technique to regulate lead in drinking water. Under the SDWA, EPA may specify a treatment technique as a regulatory standard only if it is not “economically or technologically feasible” to determine an appropriate MCL for a public water system.3 SAB should review and advise EPA that its prior excuse for rejecting an MCL for lead is based on outdated scientific analysis and can no longer be supported.4 In 1991, EPA argued that a lead MCL was not feasible because “requiring public water systems to design and implement custom corrosion control plans for lead [a treatment technique] will result in optimal treatment of drinking water overall, i.e. treatment that deals adequately with lead without causing public 1 See Ctrs. for Disease Control & Prevention, Lead: Childhood Lead Prevention Program (Last Updated Mar. 18, 2020), https://www.cdc.gov/nceh/lead/default.htm, World Health Org., Lead Poisoning and Health (Aug. 23, 2019), https://www.who.int/news-room/fact-sheets/detail/lead-poisoning-and-health; Am. Acad. of Pediatrics, With No Amount of Lead Exposure Safe for Children, American Academy of Pediatrics Calls For Stricter Regulations, (June 20, 2016), https://www.aap.org/en-us/about-the-aap/aap-press-room/Pages/With-No- Amount-of-Lead-Exposure-Safe-for-Children,-American-Academy-of-Pediatrics-Calls-For-Stricter- Regulations.aspx. 2 Pew Charitable Trust, 10 Policies to Prevent and Respond to Childhood Lead Exposure (Aug. 30, 2017), https://www.pewtrusts.org/en/research-and-analysis/reports/2017/08/10-policies-to-prevent-and-respond-to- childhood-lead-exposure. 3 42 U.S.C. § 300f(1)(C)(ii); Id. § 300g-1(b)(7)(A). 4 See Earthjustice et al., Comments (Exhibit A) at 6–7, EPA-HQ-OW-2017-0300-1469. 2 water systems to violate drinking water regulations for other contaminants.”5 But, as discussed at pp. 6–7 of Exhibit A,6 the scientific and engineering advances in the subsequent two decades demonstrate that multiple water quality objectives now can be balanced with an MCL for lead, thus compelling EPA to set such an MCL. Indeed, the former Chief of EPA’s Lead Task Force for the Agency’s Office of Drinking Water during the promulgation of the 1991 LCR has stated that “[g]iven the restrictions on lead in new plumbing, the Agency’s rationale in 1991 for rejecting the option to set an MCL at the tap no longer holds today. As of 2020, it is possible that water systems can be held responsible for the sources of lead contamination in drinking water, specifically, corrosive water interacting with lead service lines.”7 SAB should further advise EPA that an MCL for lead should be no greater than 5 μg/L; several countries recognize that a maximum limit for lead in drinking water should not exceed 5 μg/L and EPA has recognized that there is no safe level of lead exposure.8 2) SAB should advise EPA to require all utilities to conduct mandatory lead service line replacement and to preserve or strengthen the current mandatory annual lead service line replacement rate. EPA’s proposal to significantly slow the rate of lead service line replacement from an annual rate of 7% to an annual rate of 3% is misguided and will harm, rather than improve, public health.9 Lead service lines pose severe threats to human health regardless of whether utilities operate and maintain optimal corrosion control treatment. SAB should advise EPA that replacement of all lead service lines as quickly as feasible—regardless of drinking water lead levels—is necessary to protect human health. EPA’s proposal to slow the rate of lead service line replacement from an annual rate of 7% to an annual rate of 3% would weaken protections for public health in violation of the SDWA and should be discarded.10 While the Proposed Rule would correctly prevent both test outs and partial lead service line replacements from counting towards satisfaction of a utility’s annual lead service line replacement rate,11 EPA has failed to show that such necessary corrections would offset the detriments caused by extending the timeline for lead service line 5 Am. Water Works Ass'n v. EPA, 40 F.3d 1266, 1271 (D.C. Cir. 1994); see also Final Rule: Maximum Contaminant Level Goals and National Primary Drinking Water Regulations for Lead and Copper, 56 Fed. Reg. 26,460, 26,487 (1991). 6 See Exhibit A at 6–7. 7 Jeff Cohen, Comment on EPA’s Proposed Revisions to the Lead and Copper Rule (Jan 22. 2020), (Attachment 1). 8 See EPA, Ground Water and Drinking Water (Last Updated Nov. 18, 2019), https://www.epa.gov/ground-water- and-drinking-water/basic-information-about-lead-drinking-water; See, e.g., Health Canada, Guidelines for Canadian Drinking Water Quality: Guideline Technical Document - Lead (Mar. 2019), https://www.canada.ca/en/health- canada/services/publications/healthy-living/guidelines-canadian-drinking-water-quality-guideline-technical- document-lead/guidance-document.html#a1; European Comm’n, Proposal for a Directive of the European Parliament and of the Council on the Quality of Water Intended for Human Consumption (Feb. 1, 2018), https://eur-lex.europa.eu/legal- content/EN/TXT/?qid=1519210589057&uri=CELEX:52017PC0753. 9 See Exhibit A at 15–21. 10 See 42 U.S.C. § 300g-1(b)(9). 11 See 84 Fed. Reg. at 61,699. 3 replacement.12 The SAB should advise EPA that there is no scientific basis to conclude that its changes to the lead service line replacement program in the Proposed Rule would result in equivalent or stronger protections for public health as required under law.13 Indeed, as set forth in pp.
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