Coalition of Detroit area officials sue state to stop new lead rules

A coalition of municipal water agencies have sued in state court seeking to invalidate what it calls Gov. Rick Snyder's "incomplete and arbitrary rules" about lead pipe replacement and lead drinking water regulations prompted by the Flint water crisis.

Snyder’s lead rules are considered the strictest in the nation and would drop the “action level” for lead in drinking water from the federal limit of 15 parts per billion to 12 ppb in 2025. The administrative rules also give communities 20 years to replace an estimated 500,000-plus lead service lines in a state, the third highest total in the country.

But the coalition of Detroit area water agencies filed a suit Tuesday in the Michigan Court of Claims, arguing that the rules "impermissibly compromise water suppliers' ability to remove lead lines to protect the public from exposure to a wide range of other contaminants in drinking water." The coalition added the rules also violate the state Constitution by requiring local governments to replace for free private service lines, among other arguments. 

The coalition comprises the Detroit Water and Sewerage Department, Oakland County Water Resources Commissioner Jim Nash, the Great Lakes Water Authority and the city of Livonia. They are seeking to stop the revised lead and copper water rules that the Michigan Department of Environmental Quality started implementing in mid-June.

"MDEQ launched the stakeholder engagement process in July 2017 accompanied by an announcement that the Rules would have to be finalized by the end of the year," according to the lawsuit. "This abbreviated timeline limited plaintiffs' ability to work through the numerous practical and legal complexities involved in implementing the rules which require the digging up of infrastructure on an estimated 500,000 residential properties."

The state Department of Environmental Quality, which is implementing the rules, didn't have an immediate comment. “At this time, we're reviewing the documents," said DEQ spokeswoman Chelsea Lewis.

Rules defenders attacked the expected lawsuit, including some business owners, arguing it is wrong to oppose the state as it seeks to prevent another Flint water situation.

“My business relies on fresh clean water as the main ingredient in our product. Without clean water, we can’t serve beer, and without beer — we have no business,” said Mark Sellers, founder of HopCat and Grand Rapids Brewing Company, in a statement released just before the lawsuit was filed.

“Attacking protections on our state’s drinking water is irresponsible and negatively impacts businesses that rely on safe, clean water for their operations,” added Micaela Preskill, a Midwest advocate for a national groups called Environmental Entrepreneurs.

The new rules create an estimated $2.5 billion cost to replace both the public and
private portions of lead service lines by local agencies "without any known funding from the State," according to the lawsuit. Requiring the digging up of service lines on private property may well lead to lawsuits by ratepayers against local agencies arguing violations of the Constitution and state law, officials argue in the filing.

The local agencies also accused the Snyder administration of acting before the U.S. Environmental Protection Agency finished a study of whether lowering the lead action standard to 12 parts per billion or the originally proposed 10 parts per billion would actually benefit the health of residents.

"MDEQ has not provided an explanation for why it changed the lead action
level before the EPA completed its study; what information it studied and considered in doing so; and why it abandoned its initial proposed action level of 10 ppb for 12 ppb," the coalition argued.

Detroit water and sewer director Gary Brown said his agency is a "leader in our state in replacing lead service lines to reduce the risk of lead in drinking water." But he worries the new rules will drive up costs too much for consumers.

Detroit has an estimated 125,000 lead service lines, the court filing states.

"We support what the revised Michigan Lead and Copper Rule intends to accomplish. Our concern is the unfunded mandate as written violates the Michigan Constitution," Brown said. "Not only that, but it also may make Detroit residents face double-digit rate increases, puts other public health projects at risk by diverting an estimated $40 million annually from water and sewer main infrastructure repairs, and requires an unrealistic time frame."

The coalition of local governments and water utilities call the water regulations an overreaction to the lead contamination in Flint.

State-appointed emergency managers changed the Genesee County's water source from the Detroit-area water system to the Flint River. But the city failed to treat the river water with corrosion control chemicals on the advice of state environmental regulators, resulting in lead leaching from aging service lines and household fixtures into the drinking water.

Lead levels spiked far above the federal limit of 15 parts per billion in many Flint homes but weren't recognized by the Snyder administration until late September 2015.

The Flint system has been on treated Great Lakes Water Authority water since October 2015.

Officials with the Southeast Michigan Council of Governments, which represents municipalities across seven Detroit-area counties, question the necessity and cost effectiveness of a plan to require each system to replace on average 5 percent of its lead service pipes per year over 20 years starting no later than 2021.

The replacements would be done even if lead is “not an issue, even when the sampling says it’s not an issue,” said SEMCOG engineer Kelly Karll.

Although the Great Lake authority's system has no lead service lines, officials said its member communities do and joined the lawsuit to ensure its member communities "have a seat at the table in the discussion of amendments to the rules."

"One of GLWA’s top priorities is the protection of public health and safety. As such, it supports aggressive action against exposure to lead, as well as other emerging contaminants of concern," GLWA officials said in a statement. "However, the Authority believes that any changes to rules and regulations governing these contaminants must be done in a manner that is thoughtful and consistent with the law."

lfleming@detroitnews.com

(313) 222-2620

Twitter:@leonardnfleming