By Jamie B. Dameron, Bamberger Foreman Oswald & Hahn LLP
Local, state and federal officials are all starting to answer to the public about the problems with Flint's water supply. Reports state that the corrosive water is causing lead to show up at the tap at unsafe levels. An EPA Regional Administrator has resigned. As with most drinking water issues, addressing it requires a look at the Safe Drinking Water Act, the associated National Primary Drinking Water Regulations and guidance.
On November 3, 2015, EPA clarified its 1991 Lead Copper Rule (LCR) in a memo generally referencing the Flint situation. It states that "this type of situation rarely arises and the language of the LCR does not specifically address such circumstances." The circumstances are, in general, a municipality switching form one water body to another for its supply and apparent corrosion issues slipping through the cracks.
In its memo, EPA clarifies on a "prospective basis" that "it is critical for public water systems to conduct ongoing monitoring to ensure compliance with [optimal corrosion treatment (OCCT)]" per 40 C.F.R. 141.81. EPA also points out the steps where communication is needed between the state agency and the local public system, prior, during and after any change in treatment or source.
How do the state and local agencies make all that happen in a situation like Flint? Next month, EPA anticipates updates to its 1992 guidance providing further information on corrosion control steps "prior to any source water and/or treatment modifications and to identify existing or anticipated water quality, treatment or operational issues. . . ."
This post was written by Jamie B. Dameron, Bamberger Foreman Oswald & Hahn LLP. If you would like to submit content or write an article for the Environmental Law Section, please email Rachel Beachy at firstname.lastname@example.org.