EDF Health

Despite its flaws, states and communities should get ahead of the curve on EPA’s proposed lead in drinking water rule

Tom Neltner, J.D., Chemicals Policy Director, Lindsay McCormick, Program Manager, and Sam Lovell, Project Manager.

In October, the Environmental Protection Agency (EPA) proposed changes to its outdated Lead and Copper Rule (LCR), the federal regulation designed to control those contaminants in drinking water. As the result of more than a decade of work by dedicated agency experts, the proposal makes several improvements to key parts of the rule, including requirements for lead service line (LSL) inventories and customer notification. LSLs are the lead pipes that connect the main under the street to homes and buildings and are the most significant source of lead in drinking water.

Unfortunately, EPA’s proposed rule has several serious flaws, including that it:

  • Continues to treat full LSL replacement as a last resort. The proposed rule should make LSL replacement an integral part of a long-term solution, including periodic benchmarks for all water systems to achieve regardless of water testing results.
  • Continues to allow water systems to conduct partial replacements where the property owner is unwilling or unable to pay the cost for the portion not owned by the water system. Partial LSL replacement may significantly increase lead levels in drinking water for months and does not reliably reduce lead levels in the long term. While water systems would be required to gives residents tools (e.g. advanced notice and filters) to reduce the exposure, more is needed. EPA’s own analysis finds that relying on a resident’s ability-to-pay to replace the LSL on their property to avoid partial replacements will leave low-income households with disproportionately higher health risks.
  • Backslides on the rate of mandatory LSL replacement. When a water system’s lead levels are so high that full LSL replacement is mandated, EPA proposes an annual replacement rate that gives the system at least 33 years rather than the current minimum of 15 years to replace all of its LSLs While more systems are likely to have to conduct mandatory full LSL replacement because of the stricter sampling requirements, most will not.

EPA is accepting comments on the proposed revisions until January 13, 2020. We are preparing detailed comments calling for the agency to fix the flaws before finalizing the rule, and we encourage others to comment as well.

Despite these shortcomings, we want to highlight four positive elements of the proposed rule and encourage states and communities to consider implementing them now – not just because they are likely to be required in the future – but also because they set the stage for full LSL replacement. These elements are that water systems must:

  • Develop an LSL inventory, update it annually, and make it publicly accessible;
  • Notify customers that they have or may have an LSL;
  • Take precautions when disturbing LSLs; and
  • Sample more homes with LSLs and take earlier action based on the results.

In this blog, we provide an overview of these key improvements. In future blogs, we will describe our recommendations to strengthen the rule based on our comments to the agency.

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Posted in Drinking Water, EPA, Health Policy, lead, Regulation, States / Tagged , , , , , , | Comments are closed

When will EPA fully explain and legally justify its reviews of new chemicals under TSCA?

Stephanie Schwarz, J.D., is a Legal Fellow.  Richard Denison, Ph.D.is a Lead Senior Scientist.

Over two years have passed since EPA published its first, highly controversial New Chemicals Decision-Making Framework.  This document attempted to lay out major changes EPA was making, in response to relentless industry pressure, to its reviews of new chemicals entering the market.  Prior to this, EPA had been conducting reviews that largely conformed to the new requirements for these reviews that Congress included in the reforms to the Toxic Substances Control Act (TSCA) enacted in June 2016.

Among the many concerning aspects of EPA’s new approach were its herculean efforts to avoid finding a new chemical “may present an unreasonable risk” or that the information available to EPA is insufficient to permit a reasoned evaluation of the chemical.  Under reformed TSCA, either of those findings requires EPA to issue an order – as specified under section 5(e) of TSCA – that restricts the chemical, requires testing, or both in a manner sufficient to ameliorate the potential risk.

One of EPA’s new tactics was to illegally bifurcate its review of a company’s “intended” uses of the new chemical from other “reasonably foreseen” uses.  The company would get the coveted unfettered approval to enter commerce, based on an EPA review limited to its intended uses; these approvals take the form of EPA issuing a finding that the chemical is “not likely to present an unreasonable risk.”  Any review of other reasonably foreseen uses would be relegated (if it took place at all) to a later, wholly separate process that would only be triggered if EPA also promulgated a so-called “significant new use rule” (SNUR).  Under such a SNUR, a company seeking to engage in a reasonably foreseen use of the chemical EPA identified would be required to first notify EPA, who would then conduct a review of that new, now “intended,” use.

These SNURs are often referred to as “non-5(e) order SNURs” because they do not follow from EPA’s issuance of an order under section 5(e) – indeed, avoiding such orders was the whole point.  We have previously addressed the many problems – legal, policy, and scientific – with this approach; see for example, here and here.  These include:

  • the failure to assess all intended and reasonably foreseen uses of a new chemical at the same time, as required by TSCA and necessary to consider the potential for people to be subject to multiple exposures; and
  • the inability to require testing of the new chemical substance using a SNUR, which can be required through an order.

EPA held a public meeting and took public comment on its 2017 Framework at the time it was published.  But it never responded to the many comments it received criticizing its framework.  And when EPA was sued over its use of the Framework, it dodged the suit by claiming it was not using the Framework (see p. 14 here), leading to the lawsuit being withdrawn.  (Later in this post below we discuss that EPA has in fact been repeatedly using the core feature of the Framework.)

Meanwhile, hundreds of decisions made with no public framework

EPA has never made public any subsequent description of its decision-making approach or justification for it, despite the hundreds of new chemical approvals it has been cranking out ever since.  EPA has also never responded to the numerous public comments it received criticizing its framework.

Frustration over this situation led to a Congressional call for EPA to publish and then take comment on an updated description of its new chemicals review process.  Last January, EPA Administrator Andrew Wheeler made a commitment to Senator Carper to publish a revised new chemicals framework that would specify: “(i) the statutory and scientific justifications for the approaches described, (ii) the policies and procedures EPA is using/plans to use in its PMN reviews, and (iii) its responses to public comments received,” and to provide opportunity for public comment on the revised framework.

Last month EPA announced that it will hold a “Public Meeting on [the] TSCA New Chemicals Program,” which is to take place tomorrow, December 10.  However, while the agenda includes a speaker who will provide an “overview” of what EPA is now calling its “working approach,” EPA’s announcement indicated it would not release any actual document before the public meeting; instead, it will do so “by the end of the year.”  And while the meeting agenda provides for “public feedback” at the end of the meeting, the lack of any document to respond to will surely limit the ability of the public to provide meaningful input.

Absent such a public document, the rest of this post will provide our best understanding of how EPA has been reviewing new chemicals over the last two years, based on our scrutiny of each such decision.  Read More »

Posted in EPA, Health Policy, Regulation / Tagged , , | Comments are closed

New Jersey takes major steps forward on lead in drinking water

Tom Neltner, J.D., Chemicals Policy Director.

When it comes to addressing the challenge of lead service lines (LSLs), recent events in New Jersey have set the stage for long-term progress amid short-term crises. The watershed moment came on October 10, when Jersey Water Works and Governor Phil Murphy held a joint press conference announcing their respective plans to reduce lead in drinking water that featured a shared goal of fully replacing the state’s estimated 350,000 LSLs within ten years. A week earlier, Congress enacted a law, authored by Senator Booker, enabling New Jersey – and other states as well – to secure critical funding by shifting the state’s share of the Clean Water State Revolving Fund (SRF) to the Drinking Water SRF.

With the Governor’s announcement, New Jersey joins Michigan and Washington as the only states to commit to fully replacing LSLs. It also becomes a leader among the 16 states that have adopted policies in the past four years that support the hundreds of communities taking action to replace their LSLs.

As other states consider the LSL challenge, they should look to the process New Jersey used to reach this stage and its close coordination with state agencies.

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Posted in Drinking Water, lead / Tagged , , , | Read 1 Response

While harder to discern, another EPA risk evaluation severely understates risk, this time for methylene chloride

Richard Denison, Ph.D.is a Lead Senior Scientist.

When EPA released the draft of its risk evaluation for methylene chloride at the end of last month, some were surprised that EPA had identified numerous unreasonable risks presented under a variety of the chemical’s conditions of use.

In an earlier post, EDF provided some context, noting how dangerous the chemical is and raising initial concerns that EPA was once again excluding known uses and exposures, making unsupported assumptions, and applying inappropriate risk benchmarks that were once again leading it to significantly understate the actual risks posed by methylene chloride.

Four weeks later, EDF has confirmed these concerns in spades.  Last night we filed 84 pages of comments on the draft risk evaluation, for consideration by EPA’s Scientific Advisory Committee on Chemicals (SACC), which will meet next week to peer review the draft.

EDF’s deep dive into the draft demonstrates that EPA has employed a host of unwarranted and unsupported assumptions and methodological approaches that lead it to either avoid identifying unreasonable risk when it should have, or to understate the extent and magnitude of the unreasonable risks it did identify.  Below we summarize some of the major concerns, which are addressed in detail in our comments.  Read More »

Posted in EPA, Health Policy, Health Science, Regulation, TSCA Reform, Worker Safety / Tagged , | Comments are closed

Illinois poised to strictly limit partial lead service line replacement: How does it compare to Michigan and proposed EPA rules?

Tom Neltner, J.D., Chemicals Policy Director and Lindsay McCormick, Program Manager

Illinois is poised to be the second state in the country to strictly limit the practice of partially replacing lead service lines (LSL). Partially – rather than fully – replacing these lines that connect the drinking water main under the street to homes can significantly increase lead levels in drinking water for months and does not reliably reduce lead levels over time. Last week, the Illinois Department of Public Health (IDPH) released amendments to the Illinois Plumbing Code that include significant restrictions on partial LSL replacements. If the state’s legislative oversight committee for rulemaking does not object, the agency can finalize the rule.

If adopted, the changes would set the stage for all LSLs and galvanized service lines in the state to eventually be fully replaced. The changes are significant because the Illinois has an estimated 679,000 LSLs, by far the most in the country, as well as 60,000 galvanized service lines, and an additional 1.07 million service lines of unknown material that may be lead.

Michigan, with its estimated 460,000 LSLs, took a similar action in June 2018 when it strengthened its version of Environmental Protection Agency’s (EPA) Lead and Copper Rule (LCR). However, Michigan’s rule applies only to public water systems (PWS). In contrast, Illinois’s planned revisions apply to anyone who alters a service line including both PWSs and licensed plumbers.

In October, EPA proposed revisions to the LCR. However, unlike Michigan and Illinois, EPA’s proposed rule would continue to allow PWSs to conduct partial replacements where the property owner is unwilling or unable to pay the cost for the portion not owned by the PWS.

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Posted in Drinking Water, EPA, lead, Regulation, States / Tagged , , , , , , , | Comments are closed

FDA’s updated results for PFAS in food suggest progress but raise questions about its method

Tom Neltner, J.D.Chemicals Policy Director and Maricel Maffini, Ph.D., Consultant

The Food and Drug Administration (FDA) recently released revised lab results from testing for 16 PFAS in food. Initial results of the testing were announced last June and gained wide attention because the levels of PFAS in certain foods were quite high. Surprisingly, the revised lab results show significantly fewer detections and, in the case of ground turkey and tilapia, concentrations of PFOS that are almost nine times lower than the values initially reported in June. In addition to the revised lab results, the agency also released a validated method for analyzing food for the substances and updated its PFAS webpage.

We were glad to see FDA’s ongoing work on PFAS and have already heard from commercial laboratories who are considering using the validated method as a potential new service to offer their customers. In analyzing the documentation that FDA provided,[1] we have concerns about the agency’s criteria to determine whether a sample had detectable levels of a PFAS. It appears unnecessarily restrictive and effectively underestimates the public’s exposure to PFAS. We are planning to meet with the agency to better understand their rationale for the criteria selection and its implications.

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Posted in FDA, Food, PFAS / Tagged , , , | Read 1 Response