Preventing Toxic Lead Exposure Through Drinking Water Using Pointof-Use Filtration
| Date | 01 December 2018 |
| Author |
48 ELR 11074 ENVIRONMENTAL LAW REPORTER 12-2018
ARTICLES
Preventing Toxic
Lead Exposure
Through Drinking
Water Using Point-
of-Use Filtration
by David Domagala Mitchell
Major David Domagala Mitchell is a Judge Advocate
General in the U.S. Air Force currently serving
as an environmental litigation attorney.
Summary
Lead exposure through drink ing water is an acute and
persistent problem in the United States. e Flint,
Michigan, water crisis brought national attention to
this problem, but every city is at risk where lead-con-
taining materials are present in water infrastructure
and building plumbing. Preventing childhood expo-
sure to lead is the consensus policy in the medical com-
munity and exposure costs the U.S. tens of billions of
dollars annually, but the federal Lead and Copper Rule
requires remediation only after lead is present at levels
considered medically unsafe, and relies on an inher-
ently unreliable testing program. Recent federal and
state eorts to reduce exposure focus resources on lead
pipe replacement and testing to identify lead risk; nei-
ther course adequately protects the public. is Arti-
cle recommends promoting point-of-use ltration to
remove lead, an approach that has received little atten-
tion despite the fact that ltration technology is inex-
pensive and very eective. It specically recommends
that Congress provide a refundable tax credit for indi-
viduals to acquire a ltration system and replacement
lters, and require all non-residential buildings to use
best available technology for ltration in drinking
fountains. Promoting ltration is consistent with pri-
mary prevention, will provide individuals a means to
protect themselves, and will eectively and eciently
remove toxic lead currently present at the tap.
If you were going to put something in a population to keep
them down for generation s to come, it would be lead.
—Dr. Mona Hanna-Att isha1
One of the recent lessons of Flint , Chicago, Pittsburg[h], and
other cities is that we shoul d never again consider water that
passes through a lead pipe safe.
—Dr. Marc Edward s2
If they get a good test, it doesn’t prove wate r is safe relative
to lead ...
What proves water is safe is if the lter is there and
installed properly.
—Dr. Marc Edward s3
For more than one year, reports of lead contamination in
drinking water dominated the news cycle in a city where
4,075 of 6,118 residences exceeded the U.S. Environmen-
tal Protection Agency (EPA) action level for lead in drink-
ing water of 15 parts per billion (ppb).4 Testing found lead
levels of 50 ppb in 2,287 residences and 300 ppb in 157
residences.5 e raw water supply quickly corroded lead-
containing materials in t he drinking water distribution
infrastructure, and allowed lead to leach into the drink ing
water supply.6 e Water and Sewer Authority (WASA) for
the city was aware of lead contamin ation for more than one
year but did not timely inform the public, which learned
1. Mona Hanna-Attisha, Quotation of the Day, N.Y. T, Jan. 30, 2016,
https://www.nytimes.com/2016/01/30/todayspaper/quotation-of-the-day.
html.
2. Adele Peters, is Activist Is Still Fighting to Get Clean Water, F C-
, May 1, 2018, https://www.fastcompany.com/40565190/this-activist-
is-still-ghting-to-get-int-clean-water.
3. Marta Jewson, School Drinking Water Will Be Tested for Lead—After Fil-
ters Are Installed to Remove It, L, Oct. 27, 2017, https://thelensnola.
org/2017/10/27/school-drinking-water-will-be-tested-for-lead-after-lters-
are-installed-to-remove-it/.
4. David Nakaruma, Water in D.C. Exceeds EPA Lead Limit; Random Tests Last
Summer Found High Levels in 4,000 Homes roughout City, W. P,
Jan. 31, 2004, at A1.
5. Id.
6. Id.
Author’s Note: e original manuscript for this Article was submitted
in partial satisfaction of the author’s LL.M. degree in Environmental
Law at e George Washington University (GWU) Law School. e
views expressed are solely those of the author and do not reect the
ocial policy or position of the U.S. Air Force, U.S. Department of
Defense, or U.S. government. I would like to thank my wife, Jennifer
Mitchell, for her thoughtful insight, valued input, and constant
support; GWU Law School Associate Dean LeRoy Paddock, Visiting
Associate Professor Eun Hee Han, and Head Reference Librarian
Germaine Leahy for their assistance and input throughout the
writing process; and my parents, Monica Domagala and Stanley
Mitchell. is Article is dedicated to Aria and Ian Mitchell.
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
12-2018 NEWS & ANALYSIS 48 ELR 11075
about the lead contamination from newspaper reporting.7
Up to 42,000 children were exposed to alarming levels of
lead through drink ing water and are now at serious risk of
reduced intelligence, behavior problems, and other adverse
health eect s.8 During the lead crisis, late-term miscar-
riages and spontaneous abortions occu rred at an unusually
high rate.9 e lead crisis resulted in congressional hear-
ings and an independent four-month investigation produc-
ing a 143-page report nding fault from the WASA to the
Department of Public Health to EPA.10
is lead crisis occurred in Washington, D.C., from
2001-2004. A similar water crisi s occurred in Flint, Michi-
gan, from 2014-2016. Dangerous lead persists in drinking
water across the United States today.11 And another crisis
could occur in any city that has lead-containing material
in its drinking water infrastructure and privately owned
plumbing materials.
Exposure to lead through drinking water is a persistent
problem in the United States that poses a serious health
risk anywhere lead is present in drinking water infrastruc-
ture or privately owned plumbing. e threat that lead in
drinking water poses to entire communities is the product
of a legacy of lead-containing materials in drinking water
infrastructure and private buildings; the signicant, per-
manent, and irreversible he alth eects of low-level lead
exposure; the inherent dicult y of regulating lead; the spe-
cic failings of the federal Lead and Copper Rule (LCR)12
to protect public health; and government incompetence
and misconduct. Lead infra structure, including up to 6.1
million lead service lines (LSLs) in drinking water infra-
structure and 81 million housing units in t he United States
constructed prior to 1986, poses a risk of releasing lead and
contaminating drinking water at any time.
Lead causes signicant, permanent, and irreversible
neurological damage in children at very low levels of expo-
7. Id.
8. Carol D. Leonnig, High Lead Levels Found in D.C. Kids; Numbers Rose Dur-
ing Water Crisis, W. P, Jan. 27, 2009, at A1.
9. Carol D. Leonnig, Increase in Miscarriages Coincided With High Levels of
Lead in D.C. Water, Study Finds, W. P, Dec. 9, 2013, https://www.
washingtonpost.com/politics/increase-in-miscarriages-coincided-with-
high-levels-of-lead-in-dc-water-study-nds/2013/12/09/22b4fe72-60f9-
11e3-8beb-3f9a9942850f_story.html?utm_term=.be6175cebfec.
10. David Nakamura, 4-Month Probe Cites Disarray Within WASA; Communica-
tion Failures Hurt Response to High Lead Levels, W. P, July 16, 2004,
at A1; James W. Moeller, Legal Issues Associated With Safe Drinking Water in
Washington, D.C., 31 W. M E. L. P’ R. 661, 706-08
(2007).
11. See, e.g., Kris Maher, Schools Across the U.S. Find Elevated Lead Levels in
Drinking Water, W S. J., Sept. 5, 2018, https://www.wsj.com/ar
ticles/schools-across-the-u-s-nd-elevated-lead-levels-in-drinking-water-
1536153522?mod=searchresults&page=1&pos=2&ns=prod/accounts-wsj;
see also Michael Hawthorne & Cecilia Reyes, Brain-Damaging Lead Found
in Tap Water in Hundreds of Homes Tested Across Chicago, Results Show, C.
T., Apr. 12, 2018, http://www.chicagotribune.com/news/watchdog/ct-
chicago-water-lead-contamination-20180411-htmlstory.html.
12. 40 C.F.R. §§141.80 et seq.
sure. Once ingested, low-level lead exposure in children
is associated with signic ant adverse neurological health
eects, such as lower IQ, behavioral problems, and atten-
tion-decit disorders; and adverse eects in the immune,
cardiovascular, and reproductive systems. Public health
experts agree that there is no safe level of lead exposure in
children. ey also agree that a primary prevention pro-
gram is the only scientically defensible policy and the
only policy that will protect children from dangerous lead
exposure. Preventing childhood exposure to lead rather
than reacting when children have measurable blood lead
levels (BLLs) therefore is now the primary medical policy
for lead exposure in children. Signicant economic, soci-
etal, and personal costs result from low levels of lead expo-
sure, costs that disproportionately fall on low-income and
minority communities.
e current regulatory approach of the federal LCR
is insucient to protect the public from lead in drinking
water because the inherent dicult y of regulating lead and
specic limitations of the LCR allow lead to be present at
the tap. Lead is dicu lt to regulate because it enters drink-
ing water after the water leaves the treatment plant pri-
marily through corrosion of lead-containi ng materials, and
cannot be eectively removed by the public water system
(PWS) before consumption. e LCR thus addresses lead
in water by requiring PWSs to control corrosion, moni-
tor corrosion control ecacy through testing lead levels in
water at representative taps, and take remedial mea sures
like LSL replacement based on an action level of 15 ppb.
is regulatory str ucture does not eectively protect the
public from lead in drinking water because lead can leach
into drinking water at any time, even with corrosion con-
trol treatment, and testing for lead in drinking water is
inherently unreliable.
Beyond the inherent dicultly of regulating lead in
drinking water, the LCR imposes requirements that f ur-
ther threaten public health, like testing for lead in water
with rst-draw samples and using an a ction level not based
on health eects. Regu latory gaps allow PWSs and states
to show compliance with the LCR even when lead con-
tamination is widespread. And perhaps most problematic,
government incompetence and m isconduct ha s dramati-
cally increased the risk of lead exposure in drinking water
and caused dangerous lead e xposure across entire cities like
the crisis in Flint.
Recent legislative eorts to reduce lead in drinking
water have focused on funding lead pipe replacement pro-
grams and testing drinking water for lead. ese programs
are inadequate to protect public health. Lead pipe replace-
ment is a massive infrastruct ure project that will take sev-
eral decades to complete even under the best-case scena rio.
Lead will continue to be present at the tap in the interim,
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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