EPA Promotes Partnerships to Improve Drinking Water Safety
By: Kenneth J. Warren, The Legal Intelligencer
Threats to the safety and reliability of drinking water systems have captured public attention and prompted government action. In recent years, the discovery of dangerous concentrations of lead in tap water in Flint, Michigan, algal toxins in the drinking water of Toledo, Ohio, an industrial chemical spilled into the drinking water source for Charlestown, West Virginia, an algal bloom threatening drinking water systems using water from the Ohio River, and perfluorinated compounds in water sources near military bases and factories have caused water supply interruptions or raised public health concerns. As acknowledged in a report released this month by the President's Council of Advisors on Science and Technology (PCAST), "public confidence regarding the quality of their drinking water has been shaken lately by a series of high-visibility crises that have resulted in temporary drinking-water-system closures and do-not-use advisories."
These events occurred despite legislative efforts. Congress enacted the Safe Drinking Water Act in 1974 and adopted amendments in 1986 and 1996 to ensure the safety and reliability of public water systems. The U.S. Environmental Protection Agency (EPA) was tasked with issuing regulations to implement the act's provisions. The environmental departments of most states, including Pennsylvania, are "primary" agencies that implement drinking water standards through their own regulations that are at least as stringent as the EPA's requirements. Not surprisingly, the recent events prompted the EPA to examine the state of the nation's drinking water infrastructure and operations and identify steps to improve the safety and reliability of our water supply. The results of this effort are embodied in the EPA's Drinking Water Action Plan issued on Nov. 30.
To be sure, the action plan touts the nation's drinking water as "among the safest in the world." But beneath that veneer, the substantial and multifaceted inventory of unmet needs identified in the action plan reflect the myriad ways drinking water may be compromised. Existing challenges include repairing or replacing aging infrastructure, assembling sufficient funding for capital improvements and operations, preventing pollution of source waters, controlling risks from unregulated contaminants and mitigating threats associated with climate and extreme weather events.
These challenges exist at both large and small water systems. More than 150,000 drinking water systems operate in the United States. One-third are community water systems supplying water year-round. Only 429 of these community water systems serve 100,000 people or more. Low-income populations unable to fund the installation, maintenance and repair of water infrastructure are at disproportionate risk and face environmental justice concerns that the EPA terms "compelling."
To meet these challenges, the action plan calls for partnerships and collaboration among all levels of government, utilities and the private sector. Through collaborative efforts, the EPA plans to focus on six priority areas. These include investing in water infrastructure, improving government oversight, strengthening source water protection, addressing unregulated contaminants, improving transparency and reducing lead risks. Several of these priorities merit particular attention.
Investing in drinking water infrastructure is a critical priority. In a 2011 survey, the EPA estimated that $384 billion would be required to fund necessary capital improvement through 2031 in addition to the $271 billion needed for investments in wastewater systems. Raising these staggering sums will require the participation of the public and private sectors, and is particularly problematic for water systems that are small or located in impoverished communities. The EPA recommends that water systems partner with each other to create economies of scale and share managerial expertise, identify best practices for funding, leverage state revolving funds, and build capacity in disadvantaged communities to address the drinking water needs of their populations.
The EPA also prioritizes management of unregulated contaminants. To date, the EPA has established National Primary Drinking Water Regulations only for approximately 90 harmful substances or their indicators, even though the universe of potential contaminants ranges in the "tens of thousands." These regulations establish the "maximum contaminant level" i.e., the highest concentration of each regulated substance that is allowed to be present in drinking water systems, or identify treatment techniques that water systems must use. In addition, the EPA has published hundreds of nonenforceable health advisories specifying the concentrations of unregulated substances below which adverse health effects are not anticipated and related and analytical methodologies and treatment technologies. Cyanotoxins produced by algal blooms and certain perfluorinated compounds are among the unregulated chemicals subject to Health Advisories.
The EPA plans to establish a risk-based prioritization framework for evaluating new contaminants for regulation that considers, among other things, the exposure of minority and low-income populations to the contaminants. Action items include working with partners to develop innovative techniques to remove multiple contaminants from small drinking water systems at an affordable cost, and encouraging source water protection to prevent contaminants from entering the drinking water system. Coordination among the EPA and state environmental remediation, waste management, clean water and drinking water programs will be critical to the success of source protection efforts.
Reducing lead risks through revisions to the Lead and Copper Rule (LCR) is another EPA priority. The LCR requires water systems to sample tap water to determine whether lead concentrations exceed the action level of .015 mg/L in more than 10 percent of the samples collected during the monitoring period. If so, the water system must install corrosion control treatment or supplement existing treatment with replacement of lead service lines.
Potential revisions to the LCR include more aggressive lead service line replacement, public education and enhanced corrosion control and monitoring. Recognizing the corrosion potential of pipes in homes, the revisions may focus on public health objectives such as establishment of a health-based household action level.
The EPA's action plan finds support in the PCAST scientific report issued this month. PCAST recommends increased monitoring of contaminants, especially for vulnerable populations, greater use and availability of big-data analytics, enhanced data collection through citizen science efforts, increased training of water operators, coordination of federal research and development activities, creation of new technologies, formulation of comparative risk assessment methodologies to compare different contaminants and exposures, and use of demonstration projects, in part to test new technologies. These recommendations are likely to be incorporated into the EPA's future activities.
The Philadelphia area is fortunate to host two major water purveyors, the Philadelphia Water Department and Aqua America. Both have shown the commitment and expertise necessary to provide a safe water supply. But support from numerous stakeholders and the public is important to their success over the long run. The funding challenges in replacing lead pipes and aging water mains throughout extensive water distribution systems, the regulatory challenges of minimizing contaminant concentrations in the source waters, the scientific challenges in identifying safe levels for the numerous contaminants in drinking water, the technical challenges in developing and deploying cost-effective technologies to address those contaminants and the operational challenges inherent in managing water purification and distribution are formidable and will not be met by one stakeholder acting alone. Only by creating effective partnerships among federal, state and interstate agencies, academic institutions, industrial, commercial and residential water users and others can drinking water systems reliably supply safe water to the public into the future.
*Kenneth J. Warren is a founding partner of Warren Environmental Counsel and has been practicing environmental law for more than 30 years. He is a former chair of the American Bar Association Section of Environment, Energy, and Resources, where he led the Section's 10,000 members. He can be reached at .
Reprinted with permission from the December 8, 2016 edition of The Legal Intelligencer©2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, or visit www.almreprints.com.