An F Grade: EPA’s LCR Doesn’t Protect Kids in Schools

Last week, the US Environmental Protection Agency (EPA) issued a revision to the LCR - the Lead and Copper Rule. NRDC provided extensive comments to the proposed rule, urging EPA to make it more protective of children. EPA, however, failed to adequately protect children, especially as regards drinking water in schools and child care centers. NRDC filed a lawsuit against EPA to challenge the rule.

Unlike the prior lead and copper rule, the revised rule now requires very limited lead testing in schools and child care centers, but it provides little protection for children because it falls way short of what it needs to do.

Why does lead need to be reduced in drinking water in schools and child care centers?

Lead is a poisonous heavy metal that can affect almost every organ and system in the human body, often with irreversible effects. Even at very low levels, lead can cause serious, irreversible damage to the developing brains and nervous systems of babies and young children who are most susceptible to the adverse effects of lead. Lead can decrease a child’s cognitive capacity, cause behavior problems, and limit their ability to concentrate—all of which, in turn, affect their learning potential in school. Children with serious lead-related brain impacts are less likely to graduate from high school and more prone to delinquency, teen pregnancy, violent crime, and incarceration.

From the first bus run, through the school day, and to after-school activities, students can spend over 35 hours per week at school. Since children spend a great deal of their time at school, it is important to address and prevent any health risks or environmental hazards they might encounter. In addition, school staff can also be at risk. Women comprise a majority of the staff at schools and many of them are of child-bearing age or can be pregnant. Furthermore, repeated studies have shown that low income and minority students tend to be exposed to the worst school facility conditions. All of these factors contribute to the recommendation by The American Academy of Pediatrics that state and local governments take steps to ensure that lead concentration in school drinking water is less than 1 ppb.

How does lead get into drinking water in schools and day care centers?

Lead is present in drinking water in when it “leaches” (dissolves from pipes or fixtures and transfers into the water) or flakes into small lead particles from fixtures, faucets, pipes and pipe fittings, and solder. For small day care centers, lead can also leach from lead service lines. Lead service lines are not used in large buildings, such as schools for example, which need larger pipes coming into the building, and those pipes do not contain lead.

How does EPA’s rule apply to lead in drinking water in schools? 

Here are the basic requirements of the rule as it applies to schools and child care centers:

• community water systems (local water utilities) are required to test a limited number of drinking water outlets, just 5 outlets in each school and only 2 outlets in each child care center, in 20 percent of elementary schools and child care centers over a five-year period;
• elementary schools and child care centers can decline to be tested; and
• secondary schools can request testing but aren’t required to.

What’s wrong with EPA’s rule as it applies to schools and child care centers?

Minimal, Inadequate Testing

The testing requirements in this new rule are inadequate. Not only would it take five years for the local water utilities to complete the testing, the testing covers few drinking water outlets in each school building. Only five outlets in each school and two outlets in child care centers are required to be tested, not all drinking water outlets. Testing for lead is variable because lead release from plumbing and fixtures is sporadic; one tap can have different results at different times even in a single day. Further, because of the variability, one outlet is not representative of any another outlet in a school or child care center. Such minimal monitoring is likely to result in misleading results, prompting a false sense of security and compromising the health of students and staff.

Testing is also not mandatory or automatic in secondary schools; those schools have to request the testing. This approach fails to protect the developing brains of older children and puts staff in secondary schools at risk. It also puts staff in secondary schools at risk. Many staff in schools are women of child-bearing age. Having more relaxed rules for secondary schools puts pregnant moms and their fetuses at risk of being poisoned by lead.

Moreover, the rule allows schools and child care centers to decline to be tested. Adding insult to injury, the schools that decline testing count toward the requirement that 20 percent of schools be tested each year over five years. EPA provides no rationale for this provision. And, there’s a concern that poor schools in the poorest school districts would decline testing (for example, out of concern that they would be pressured to pay to replace lead-containing plumbing), creating yet another environmental injustice for the communities in which those schools are located.

Finally, the testing required in this rule is a “one-off.” After the first test in the five-year period, schools would then have to request testing by their water utility—testing is not automatic after the first round. We know that repeated testing is more protective of children, and the burden should not be on the schools to request it.

No Requirement to Notify Parents or School Staff of Test Results

Once the testing is done, the water utilities are required to provide the results to the schools and child care centers, the local and state health department, and the state agency that has jurisdiction over drinking water utilities (if that agency is different than the state health department). There is no requirement, however, to provide the information to parents and school staff. This does not advance transparency.

No Drinking Water Standard or Action Level

EPA’s failure to establish a drinking water standard—or even an action level for schools—is another major flaw in the rule. A drinking water standard or an action level, appropriately set and coupled with a remediation requirement, can be technology forcing. This rule provides no incentive for plumbing and drinking water fixture manufacturers to design and sell products that would reduce the amount of lead in drinking water in schools and child care centers.

No Remediation Requirement

EPA’s rule only institutes a testing program; it does not also require remediation. Water utilities are required to provide information about remediation, but the rule does not require either the utilities or the schools and child care centers to remediate. Simply learning about a problem, however, does not provide a solution. What EPA should have done is to require schools or water utilities to also fix the problem, such as installing filters on drinking water taps or replacing drinking water fountains with ones that contain less lead and filter the water.

Provides for an Exemption Based on the Myth of “Lead Free Schools”

EPA’s rule provides for an exemption for schools or child care centers that are considered to be “lead free.” This is based on a myth.

Many schools and buildings that house child care facilities have older plumbing fixtures, fittings, pipes, and solder that contain high amounts of lead, which can leach into drinking water. Before 1986, there were no federal restrictions on lead content in plumbing products. In 1986, Congress amended the federal Safe Drinking Water Act, defining “lead-free” to mean that solder and flux could contain no more than 0.2 percent lead, and plumbing pipes, pipe fittings, plumbing fittings, and fixtures could contain no more than 8 percent lead. In 2011 (but effective in 2014), Congress lowered that content so that “lead-free” in pipes means a weighted average of 0.25 percent and 0.2 percent in solder and flux. That is why claims of “lead-free” fixtures, etc. are misleading. Additionally, because there are many sources of lead in products, for example, paint, computers, synthetic turf, it is highly unlikely there is a “lead-free” school anywhere. 

How does EPA’s rule affect states with existing programs to reduce lead in drinking water in schools and child care centers?

About half of the states have programs to reduce lead in drinking water in schools; some are mandatory and some are voluntary. States that have mandatory programs that, on balance, are stricter than EPA’s rule, like New York and Washington, D.C., can ask for a waiver from the new rule’s testing requirements. States should maintain their more stringent mandatory testing programs, even if they only apply to public schools and not also to private schools and child care centers. Those states should, however, expand their mandatory testing programs to apply to private schools and child care centers.

What can other states do to reduce lead in drinking water in schools and child care centers?

NRDC has published model state legislation that states can adopt to protect children from lead in drinking water in schools and child care centers. It adopts the Washington, D.C. approach of filtering first and then testing and remediating. It also sets an action level of 1 part per billion (ppb) and requires testing annually. This common-sense approach goes a long way to protect children in these settings.

EPA had an opportunity—and indeed, an obligation—in this rulemaking to protect children from being poisoned by lead in drinking water in schools and child care centers. It failed to do so. That’s one of many reasons why NRDC believes the rule must be overhauled.