Last week, Michigan’s Department of Great Lakes Environment and Energy (EGLE) was celebrating one of the heroes of the Flint Water Crisis, Dr. Mona Hanna-Attisha, who appeared on Capitol Hill before the House Energy and Commerce. Hanna-Attisha was endorsing Michigan’s revised Lead and Copper Rule, which has been called the most protective in the nation. At the same time, Governor Gretchen Whitmer and EGLE Director Liesl Clark sent a letter to the Environmental Protection Agency, urging them to adopt Michigan’s lower Action Level for lead in drinking water.
But as this celebration was happening, the Natural Resources Defense Council (NRDC) and Great Lakes Environmental Law Center (GLELC) were requesting a “Declaratory Ruling” around partial lead service line replacements, asserting that EGLE and municipalities including Dearborn, Milan, and Bay City have been undermining a key provision of Michigan’s own Lead and Copper Rule.
NRDC attorney Jeremy Orr tells Planet Detroit, “You’re taking these victory laps, but behind the scenes, you’re allowing these counterintuitive actions to take place.”
“Partial lead service line replacement is dangerous because it releases additional lead in multiple different ways,” says water quality engineer Elin Betanzo, who helped discover the Flint Water Crisis. Rather than replacing the entire service line running from the water main to the house, workers cut the lead line and join it with a dissimilar piece of metal, creating multiple pathways for the short- term release of large quantities of lead into a home’s drinking water.
The practice was banned under the revised Lead and Copper Rule in 2018 except in case of emergencies. However, EGLE has granted Administrative Consent Orders (ACOs) to several cities allowing them to perform partial placements. In the case of Dearborn, the ACO was granted without an end date.
“In light of the Flint situation,” Gerald A. Fisher, a municipal law expert and professor at Western Michigan University says, referring to the water crisis that EGLE (then the DEQ) has been widely blamed for, “it’s shocking to me that these people, administratively, would go out on a limb and allow the possibility of lead poisoning in residential homes without some really good backing by the law…”
According to Betanzo, partial replacements release particulate lead into the water not only when the line is cut, but also by jostling the remaining lead pipe and “flaking off that corrosion control coating and exposing some raw lead.”
“We’re essentially drinking these chunks of lead that would flake off of a lead service line after a partial replacement,” Betanzo says. “We’re talking about acute exposures in the hundreds to thousands of parts per billion (ppb).” For context, the Lead Action Level in the Michigan Lead and Copper rule is 15 ppb, with that number set to be lowered to 12 in 2025.
The joining of the remaining lead service line to copper pipe also releases dissolved lead into the water through a process known as galvanic corrosion. Betanzo says that this is where most of the lead comes from.
It’s unclear why EGLE would grant these blanket ACOs after having fought challenges from utility companies to defend the new rule.
“This doesn’t make any sense,” Orr says. “It’s a convenient way to deal with some of these communities as they seek to figure out the best way to enforce the law. But it’s a travesty.”
Indeed, convenience seems to have been a factor in Dearborn for both the city and homeowners. In emails obtained by GLELC through the Freedom of Information Act, Dearborn City Engineer M. Yunus Patel pushes for the Administrative Consent Order, saying he doesn’t want to inconvenience residents with “muddy roads in front of 600 houses during the entire winter” where water mains are being worked on. “We will have to face our residents in (the) near future to complete the project while we disturb their lives again,” Patel wrote in the email.
However, Betanzo says, “exposure to a potent irreversible neurotoxin would inconvenience the homeowner far more than some temporary construction in front of their house.” These partial replacements could also cost more in the long run because they involve excavating the soil twice.
Another problem with using ACOs to skirt the law, Orr says, is that they bypass reporting requirements. If emergency orders were issued there would be, as he says, “detailed information that you would have to submit in an application and then report back on.” Emergencies orders also require giving public notice, something that Orr says they received no evidence of as they used the Freedom of Information Act to get materials from Dearborn and EGLE.
Dearborn spokesperson Paula Rivera tells Planet Detroit that the city notified residents about the issue with a brochure and city newsletter, and that the city didn’t actually do any partial lead service line replacements, even though the ACO allowed it.
Orr questions the ability of the public to know this for sure when the usual accountability measures aren’t being followed.
“We’re not getting transparent information from the state in this regard, who they should be reporting that information to,” he says.
It’s unclear how prolonged construction work such as the situation in Dearborn qualified as an “emergency” under the law. Nick Leonard from GLELC believes that the rule was written to allow for “something like a broken service line that is making water service to the house impossible”. But it could be that the lack of clarity in the law allows for these broad consent orders.
A perceived lack of oversight may have made it easier for EGLE to issue the ACOs.
“They probably didn’t anticipate that people, attorneys and others, would be keeping an eye on this and digging for something as obscure as an Administrative Consent Order,” Orr says.
EGLE didn’t respond to Planet Detroit’s requests for comment, but the agency told the NRDC that ACOs were only issued for Milan, Bay City, and Dearborn. However, there seems to have been widespread demand for such orders. “I’ve been in plenty of meetings with water systems where they’re all clamoring for a copy of those (ACOs),” Betanzo says, “because they want to get their own agreement that allows them to continue doing partial replacements.”
If EGLE issued ACOs in violation of the law, it’s also within their purview to reverse the policy. “The governor and the (EGLE) director have the power to say, ‘okay, we need to overturn this, we need to stop doing this’,” Orr says.