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Feb. 17 — The Environmental Protection Agency did not use its authority under the Safe Drinking Water Act to enforce violations against the public water utility in Flint, Mich., despite being aware of the elevated lead levels in the city's tap water, according to a Congressional Research Service report.
Released Feb. 17, the report said Section 1414 of the Safe Drinking Water Act authorizes the EPA to notify the state and the public water system when it learns of a drinking water violation, and to allow the water utility to come into compliance. But if after 30 days the violation continues, and the state hasn't taken any action, then the EPA “must” take enforcement action against the public utility, the report, Lead in Flint, Michigan's Drinking Water: Federal Regulatory Role, said.
States have first-line enforcement responsibilities to compel public water systems to comply with drinking water regulations, the report said.
The CRS report said the EPA didn't use its emergency powers under Section 1431 of the Safe Drinking Water Act until Jan. 26 when water contamination in Flint had become a full blown public health crisis.
The emergency powers provision authorizes EPA to take actions to protect human health when a drinking water contaminant “may present an imminent and substantial endangerment to the health of persons” when a state and local authorities haven't acted.
The EPA issued its emergency order nine months after becoming aware that lead levels in the city's tap water had risen to dangerous levels, a result of the decision by the state-appointed emergency manager to switch its water supply to nearby Flint River without ensuring that erosion controls were in place. The order came four months after a Hurley Medical Center study found elevated lead levels in blood samples taken from six-year-old children in Flint.
The House in a near-unanimous vote approved H.R. 4470, which would require public water utilities to notify customers, the state and the EPA if it exceeds the lead action level, and require the EPA to notify the public if the system or state has not done so within 24 hours after the agency receives that notification. The bill also would require the EPA to develop a strategic plan for improving information sharing and public communication .
The CRS identified regulatory implementation, monitoring protocols, compliance, oversight issues and the lead regulation itself as contributing factors in the failure to effectively prevent, identify and respond to high lead levels in Flint's drinking water.
Brent Fewell, attorney and founder of the Earth & Water Group, a legal and strategic advisory firm, told Bloomberg BNA Feb. 17 that the EPA could have used its emergency powers earlier than it did.
Fewell said the EPA’s response was delayed in part because it didn't find out from the Michigan Department of Environmental Quality until April 2015 that the city wasn't using corrosion controls.
“Had EPA taken immediate emergency action at that point, it still would have taken several more months for the treatment to stop or slow the leaching,” said Fewell, who served as the EPA deputy assistant administrator for water under President George W. Bush.
Meanwhile, several Democrats including the ranking member on the House Energy and Commerce Committee sent a letter to the Centers for Disease Control and Prevention asking whether more resources are needed to accurately detect whether children are ingesting dangerous levels of lead.
The agency’s Childhood Lead Poisoning Prevention Program provides funding to 29 states, including Michigan, the District of Columbia, and five cities for lead poisoning prevention and surveillance activities, which help with identifying high risk areas and implementing interventions as needed. Program funding has been cut nearly in half since fiscal year 2011 when it received about $30 million.
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The Congressional Research Service,Lead in Flint, Michigan's Drinking Water: Federal Regulatory Role, is available at http://www.fas.org/sgp/crs/misc/IN10446.pdf.
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