Utilities fight Michigan’s post-Flint lead regulation

Water utilities and services that provide tap water for a majority of Michigan residents are pushing back against a new state lead rule meant to protect public health after the Flint water crisis.

Fifty-two communities that serve water to a majority of state residents, including Detroit and many of its suburbs, argue that Michigan’s toughest-in-the-nation Lead and Copper Rule (LCR) forces utility providers into a legal and financial quandary. This went into effect in June 2018. Opponents also said it doesn’t protect public health better than federal standards, according to a Michigan Department of Environmental Quality (DEQ) letter denying a request that the department review the standard.

Some utilities are now considering legal action. Others may follow suit after the state’s top environmental regulator, Heidi Grether, denied utility requests in mid-October to scrap the current rule.

Oakland County is planning to ask the state Court of Claims to freeze compliance with the new state law on Dec. 11, according to a memo from County Water Resources Commissioner Jim Nash to several utility providers in the county.

In the memo, Nash urges other communities to join forces by filing a motion to intervene in the action.

Other big-name utilities on the list included the Detroit Water and Sewerage Department and the Great Lakes Water Authority, which alone provide drinking water to almost 4 million customers, or roughly 40 percent of the state’s population, including Detroit and its suburbs.

But some are critical of cities’ pushback and say they’re fighting a standard meant to protect public health. The Natural Resources Defense Council (NRDC) is urging people to call their utility providers if they appeared on the list to ask them to reconsider legal action.

Michigan’s stricter lead rule protects public health more than previous federal standards because it requires all lead service lines to be removed, said Cyndi Roper, a senior Michigan policy advocate with the NRDC. She added that the regulation makes Michigan the only state in the nation to ban “partial lead service line removal,” requires samples from service lines and beefs up public notification requirements.

The LCR also calls for a drinking water lead limit of 12 parts per billion by 2025 — down from the federal action limit of 15 ppb — although utility providers argued that the number is arbitrary and health experts say there is no safe level of lead for children.

Utility officials have called other portions of the new rule “arbitrary and capricious” in a legal request to review the rule and argue it forces utilities into an untenable legal and financial situation, said Chuck Hersey, a consultant for the Oakland County Water Resources Commissioner.

According to the state constitution, it’s illegal to use public money for improvements on private property, Hersey said. But the new state Lead and Copper Rule requires municipal water providers to remove all lead service lines running from the street to people’s homes within 20 years.

The Michigan Municipal League (MML) has argued as much in the past, but concerns over how to comply with the new rule have not spurred the DEQ to reconsider it.

“If I comply with the rule, I violate the constitution,” Hersey said. “If I comply with the constitution, I violate the rule. That’s one of the problems.”

Utilities across the state would have to pay to remove about 500,000 lead service lines, additional testing and extra corrosion control requirements to meet the new threshold for acceptable drinking water lead levels.

Detroit alone has 125,000 lead service lines that would need to be replaced within the next 20 years. Oakland County estimates a cost of $4,000 to $5,000 per home, which could mean a price tag of $625 million over the next two decades.

In total, it could cost Michigan $2.5 billion to comply with the new law, according to the Jim Nash memo.

But Oakland County insists the fight isn’t about money.

“It’s about spending money on the right things in the right way,” Hersey said. “I’m literally sitting here clenching my fists because we know in some cases the lead lines aren’t really the problem. It might be the indoor plumbing.”

Detroit Water and Sewage Director Gary Brown has argued in the past that the city does not have the money to replace lead pipes and that city testing has already shown its drinking water to be under the state action limit, according to a June report from Michigan Radio.

The denied request argues that the federal Safe Drinking Water Act does not pertain to pipes on private property — which would have to be removed under the state LCR — and that the state’s reduction to a 12 ppb limit for drinking water is “arbitrary and capricious” and “does not meaningfully contribute to to reducing blood lead levels.”

The request also argues the requirement for cities to replace all lead service lines within 20 years is “arbitrary and capricious,” among other criticism.