January 01, 2018

The Aftermath of Flint: Lead Testing in Chicago’s Day Cares and Schools

Maris J. Jager

In the wake of the water crisis in Flint, Michigan, many states, cities, and municipalities in the United States are entering an era of renewed attention and focus on the condition and safety of their drinking water infrastructure. This new outlook on drinking water safety is compounded by the fact that the water infrastructure of many major U.S. cities has been in place since the late nineteenth century or early twentieth century. These century-old pipes, which carry drinking water to millions of homes, are deteriorating and rapidly reaching the end of their useful life. As these pipes age and population centers grow denser, many cities are reaching the point where their water infrastructure must be updated or replaced. These changes usher in what the American Water Works Association (AWWA) has described as an era of replacement—in fact, the AWWA estimates that it will cost approximately $1 trillion over the next 25 years to replace or restore existing aged water systems and to expand those systems to meet the need of a growing population. These needs are further exacerbated by a rising awareness of and focus on lead detection in the drinking water of major metropolitan areas. The crisis in Flint acted as a catalyst for this growing concern, turning many states’ focus to the health and safety of the most vulnerable populations. In the aftermath of Flint, many states are implementing new procedures and guidelines that encourage schools and day care facilities to test their drinking water for safe lead levels. Illinois, along with New Jersey and New York, are at the forefront of this growing national trend, and exemplify necessary safety standards and remedial activities that should be adopted nationwide.

The risks posed by lead in drinking water cannot be overstated. The U.S. Environmental Protection Agency (EPA) emphasizes that lead poses a significant health risk to children, who are more sensitive and susceptible to the harmful effects of lead than healthy adults. Despite these dangers, federal law contains a significant gap in the regulation of lead levels in drinking water. Although the United States has had federal standards related to lead detection and prevention in place for decades, these standards do not impose mandatory testing requirements on most schools, day cares, and other childcare facilities. In 1974, Congress for the first time established national drinking water standards, through the passage of the Safe Drinking Water Act (SDWA), that apply to every public water system (PWS) in the United States, with certain limited exceptions. See 42 U.S.C. § 300g. PWSs, which can be publicly or privately owned and number approximately 151,000 in the United States per EPA estimates, are defined as any system that provides water for human consumption, through pipes or other constructed conveyances, to at least 15 service connections or regularly to at least 25 people. See 42 U.S.C. § 300f(4)(A).

The SDWA was intended to protect the public health through the regulation of the nation’s public drinking water supply and applied a new federal minimum standard to all PWSs in each state. Since its enactment, the SDWA has been subject to a number of amendments designed to implement more stringent and protective standards. Amendments passed in 1986 introduced a lead-free mandate for any pipes, solder, or flux used in any subsequent installation or repair of any PWS or plumbing in a facility providing water for human consumption. Subsequent amendments in 1996, 2011, and 2014 added additional protections. Most significantly, the 1996 amendments reflected a shift in the SDWA’s focus to a more holistic approach by recognizing that regulation of plumbing and tap equipment was not adequate and supplementing the existing law with other important components of safe drinking water that extended beyond regulation of the hardware used in plumbing, such as source water protection, operator training, funding for water system improvements, and public education. Safe Drinking Water Act Amendments of 1996, Pub. L. No. 104-182, 110 Stat. 1613 (1996).

The SDWA also permits individual states to establish more stringent regulations that meet or exceed the minimum national standards established by EPA; however, individual states largely have failed to implement regulations requiring testing in school systems. Further, states have failed to create financial incentives or assistance to support the voluntary testing procedures. As a result, the burden of testing and the responsibility for its related costs most often falls to the individual schools and childcare facilities. When faced with these costs, most schools and childcare facilities decline to follow the voluntary guidelines and rarely, if ever, effectively test their drinking water for hazardous lead levels. In light of the country’s aging infrastructure, such a failure may lead to a health crisis affecting the nation’s younger population.

Following the SDWA, in 1991 Congress enacted the Lead and Copper Rule (LCR) to regulate lead and copper levels in drinking water. The LCR establishes a maximum limit for lead concentrations in public drinking water at the consumer’s tap and limits the permissible amount of pipe corrosion occurring due to the water itself. The LCR also has been the subject of amendments and updates. Most recently, in 2007 EPA approved revisions intended to strengthen the implementation of the LCR in the areas of monitoring, treatment processes, public education, customer awareness, and lead service line replacement. Under the current LCR standards, if lead concentrations exceed an action level of 15 parts per billion (ppb) (or, 0.015 mg/L) in more than 10 percent of customer taps sampled during a monitoring period, the water system must undergo several additional actions to control corrosion. See 40 CFR § 141, et seq.

While these federal regulations have gradually moved toward heightened protection and a focus on outreach and education, they are relaxed on the subject of lead contamination in school drinking water. The SDWA does not impose mandatory guidelines or minimum safety levels on school drinking water; instead, it offers a voluntary lead testing grant program, a guidance document and testing protocol, and a list of permissible drinking water coolers. See 42 U.S.C. § 300j-24. And, although the LCR is designed to regulate permissible lead levels in drinking water, it applies only to PWSs (except for transient noncommunity water systems that provide water to places such as gas stations or campgrounds). Thus, while the LCR provisions apply to water systems that serve schools and other childcare facilities, individual schools are exempt from the testing requirements unless the school itself is a PWS. Because of this loophole, many schools and childcare facilities are served by PWSs that may never have been tested for lead under the federal regulations.

A State of Emergency in Flint

In April 2014, the City of Flint, Michigan, began utilizing the Flint River as its primary source of water. Over the course of the next 10 months, testing revealed E. coli, total coliform bacteria, and disinfection byproducts in the water. On February 26, 2015, EPA notified the Michigan Department of Environmental Quality (MDEQ) that it had detected dangerous levels of lead in the water of residential homes in Flint, arising from water testing in the home of a Flint resident that returned detected lead levels of over 100 ppb. Subsequent testing of the same home, within the following month, returned lead levels of nearly 400 ppb. These results dwarfed the acceptable action levels of 15 ppb, as established by the LCR.

On June 24, 2015, EPA issued a memorandum addressing the “High Lead Levels in Flint.” http://flintwaterstudy.org/wp-content/uploads/2015/11/Miguels-Memo.pdf. The memorandum asserted that drinking water samples collected from a residential home contained extremely high lead levels and warned that Flint was not providing corrosion control treatment to mitigate the presence of lead and copper levels in drinking water, as required by the LCR. Following additional water testing that indicated elevated lead levels in 40 percent of Flint homes, research revealed that the number of children with elevated lead levels in their blood nearly doubled between the city’s switch to the Flint River, in April 2014, and September 2015. On October 8, 2015, the MDEQ announced that three Flint schools tested positive for dangerous lead levels in the water. Eight days later, Flint switched back to its original water source, the Detroit Water and Sewerage Department (now known as the Great Lakes Water Authority). On January 16, 2016, President Obama declared a state of emergency in Flint.

Subsequent testing revealed that the Flint River water corroded aging pipes in Flint, allowing lead to leach into the water. Because of a failure to implement corrosion control programs, as required by the LCR, lead contaminants were allowed to leach into the city’s water supply. Although Flint resumed taking water from its original source, nearly a year and a half after switching to the Flint River, the damage had been done. Although remediation efforts are still in effect, the impacts of lead poisoning in the city’s drinking water are far reaching and long term. In particular, the thousands of children in Flint who consumed tap water (both at home and in schools) face significant health risks arising from lead poisoning. The Centers for Disease Control and Prevention (CDC) confirm that children who drank the water sourced from the Flint River had blood lead levels that were significantly higher than their levels prior to the switch in water source. The CDC further notes that even low levels of lead in children’s blood have been shown to affect intelligence, ability to pay attention, and academic achievement. See CDC, CDC Investigation: Blood Lead Levels Higher after Switch to Flint River Water, available at https://www.cdc.gov/media/releases/2016/p0624-water-lead.html.

As the nation’s infrastructure of pipes ages and deteriorates, the danger of impermissible lead levels in drinking water grows. Major health crises, such as the events in Flint, demonstrate the real dangers and implications of a failure to test and control these aging systems and have spurred preventative and proactive measures across the country. In particular, these measures focus on protecting the health and safety of children.

Preventative Measures in Illinois

EPA estimates that approximately 98,000 public schools and 500,000 childcare facilities in the United States fall outside of SDWA regulations. This loophole is particularly troubling in light of the proven increased risk to children posed by lead poisoning. Despite these concerns, a significant number of schools, day cares, and other childcare facilities are subject solely to recommended voluntary testing programs.

Since the crisis in Flint, a small number of states have begun to pass legislation under the authority of the SDWA to meet this need and offer increased protection. This legislative trend, which specifically targets school systems and other childcare facilities, emphasizes detection, remediation, and public education. However, while those states that have passed legislation take into account the costs associated with testing, cleanup, and prevention, many school systems remain burdened with the majority of these costs. Until these practical issues have been resolved, it is unlikely that many states will move forward with similar legislation and regulation.

In the spring of 2016, in direct response to the events in Flint and the increased national focus on issues of water quality, Chicago voluntarily elected to test the schools in the Chicago Public School (CPS) system for lead in drinking water. By the summer of 2016, more than 327 schools had been tested. Of these schools, 113 city schools returned tests identifying lead levels above EPA’s legally actionable level of 15 ppb. As of August 31, 2016, CPS estimated that the costs of testing each school would reach approximately $2.3 million. To date, 523 CPS locations have been tested for lead levels in drinking water. See Chicago Public Schools, Lead Testing, www.cps.edu/Pages/LeadTesting.aspx. While the final results of Chicago’s testing have not yet been posted, a significant number of Chicago public schools show evidence of elevated lead levels in their drinking water.

Chicago’s experiences, in addition to the national awareness arising out of Flint’s crisis, have provided an impetus for statewide action, leading to the passage of Public Act 99-0922 (PA 99-0922 or the act). See 99 Ill. Gen. Assembly, House Proceedings, Jan. 9, 2017, at 65 (statements of Rep. Harper). With the passage of the act in January 2017, Illinois established a framework that requires each school to conduct lead testing and mandates remediation if elevated lead levels are found. To alleviate the costs of complying with the new law, the act also establishes cost-recovery provisions, as well as a ratemaking mechanism through which public water utilities are incentivized to participate in school testing and cleanup. This law provides a model for the rest of the United States and establishes a practice through which school systems can bear the costs of lead testing and prevention.

PA 99-0922 takes a universal approach to lead testing in schools, adding and revising provisions to multiple Illinois laws, including the Illinois School Code, the Illinois Public Utilities Act, the Illinois Municipal Code, the Illinois Child Care Act of 1969, the Illinois Plumbing License Law, and the Illinois Environmental Protection Act. Under the terms of the act, the Illinois Department of Children and Family Services is tasked with working with the Department of Public Health to adopt rules that “prescribe the procedures and standards to be used by the Department in assessing levels of lead in water in licensed daycare centers, day care homes, and group day care homes constructed on or before January 1, 2000 that serve children under the age of 6.” See 225 ILCS 10/5.9. These rules must be in place on or before January 1, 2018.

Similarly, the new provisions of the Illinois Plumbing License Law require each school district, chief school administrator, or designee to test each source of potable water in a school building for lead contamination. The testing requirements apply to points at which nonbottled water that may be ingested by children or used for food preparation exits plumbing, which can include taps, faucets, drinking water fountains, and wash basins in classrooms occupied by children or students under grade one. The sampling and analysis requirements of this law establishes a deadline of December 31, 2017, for school buildings constructed prior to January 1, 1987, and a deadline of December 31, 2018, for school buildings constructed between January 2, 1987, and January 1, 2000. See 225 ILCS 320/35.5.

To alleviate the financial burden and disincentive associated with costly testing and repair activities, PA 99-0922 provides several mechanisms through which the schools may reduce their share of costs associated with testing and remediation. For example, the act creates a cost-recovery fee mechanism for municipalities that operate waterworks systems. This mechanism, established under the Illinois Municipal Code, allows municipalities to collect a fair and reasonable fee from users of the waterworks system to recover its reasonable costs associated with complying with the school testing provisions of the Illinois Plumbing License Law. See 65 ILCS 5/11-140.1-1. The school testing provisions of the Illinois Plumbing License Law also allow the owner or operator of a community water system to agree to pay for the cost of the laboratory analysis of the samples required by PA 99-0922 and permit owner/operators to seek recovery of those costs under the cost-recovery fee mechanism of the Illinois Municipal Code. PA 99-0922 also permits school boards to apply excess school district taxes and other board restricted funds to the costs incurred to sample, repair, and mitigate lead in drinking waters in schools (see 105 ILCS 5/17-2.11) and amends the Local Governmental and Governmental Employees Tort Immunity Act to permit the school board of any Illinois district with fewer than 500,000 inhabitants to access funds available in tort immunity funds. See 745 ILCS 10/9-107.

While these provisions offer motivation to municipalities and community-owner water systems to participate in and help defray the costs associated with lead testing, schools and childcare facilities continue to face the prospect that they may be responsible for bearing the majority of these costs. The estimated cost of lead testing ranges from $500 to $5,000 per facility, with significantly increased costs if high lead levels are found for remediation and cleanup efforts. Despite the financial assistance options provided by PA 99-0922, the requirements to test, repair, and maintain the plumbing and hardware remain with the schools.

To incentivize testing and remediation by entities other than schools, PA 99-0922 introduces a public-utility ratemaking mechanism that may induce investor-owned public utilities to engage in lead testing and subsequent remediation in the Illinois school systems. Under the new provision of the Illinois Public Utilities Act, the Illinois Commerce Commission (ICC) will allow the utility to “recover annually any reasonable costs incurred by the utility to comply with” the new school testing and remediation provisions of the Illinois Plumbing License Law. See 220 ILCS 5/9-246. The practical effect of this provision will allow water utilities with resources, expertise, and experience in water testing and remediation to defray the costs borne by the schools while providing an accurate and efficient testing process. Recovery of these reasonable costs will remove any disincentive to become involved and will socialize the costs among the ratepayers, resulting in a statewide investment in Illinois schools and in the health and safety of its children.

Illinois is a leading state in implementing policies that are more rigorous than federal regulations and exemplifies a growing national trend toward ensuring water safety in school systems. Because federal law does not require schools and other facilities to test their systems on a regular basis, Illinois’ law closes the gap left by federal regulations and imposes more stringent protections for Illinois’ youth. As Chicago’s experience revealed, the required testing in Illinois is likely to reveal elevated lead levels in many of the state’s schools, requiring costly and potentially extensive remediation efforts. These trends, and the prevalence of elevated lead levels in city school systems, are not confined to Illinois. Multiple states have begun to test the water of the schools in major metropolitan areas, with similar results. Legislation to address these issues is not far behind.

National Trends

Illinois’ leadership in this arena is reflected in growing national trends. New York and New Jersey have passed legislation recently similar to PA 99-0922, and Oregon, Virginia, and California have implemented voluntary programs designed to achieve the same goals. These statewide actions are the result of increased national awareness following the events in Flint but also of detected lead levels in major cities and metropolitan areas of each state. For example, in 2016, New York passed a law that required the state’s nearly 700 school districts to test their water for lead contamination. See NY CLS Pub Health § 1110. The law required schools serving children in any of the levels prekindergarten through grade five to complete their initial first-draw samples by September 30, 2016, and schools that served children in any of the levels grades six through twelve to complete their initial first-draw samples by October 31, 2016. See Press Release, Governor Cuomo Signs Landmark Legislation to Test Drinking Water in New York Schools for Lead Contamination, (Sept. 6, 2016), https://www.governor.ny.gov/news/governor-cuomo-signs-landmark-legislation-test-drinking-water-new-york-schools-lead. The law also contains provisions addressing remediation plans, public notification and reporting, and recordkeeping. New York’s new law emerged nearly simultaneously with testing results in New York City schools. After initial testing revealed limited and low levels of lead in schools, New York City retested its schools in accordance with recommended testing practices. Like Chicago, testing in the New York City school system revealed elevated lead levels, with federal standards exceeded in 83 percent of schools. In an extreme case, one water fountain in a single school revealed lead levels of 15,000 ppb. See NY Dept. of Ed., 2017 NYC DOE Water Tests for Lead Results as of April 27, 2017, available at http://schools.nyc.gov/NR/rdonlyres/2C533835-EA3D-4EE0-9759-33A928A80655/0/2017NYCDOEWaterTestsForLeadResults.xlsx.

Similarly, in July 2016, the New Jersey State Board of Education adopted regulations requiring testing for lead in the drinking water of a wide swath of the New Jersey school systems, including all New Jersey public school districts, charter schools, and approved private schools for students with disabilities. The regulations required districts to sample and analyze all drinking water in the impacted facilities for elevated lead levels by July 13, 2017, and provided cost reimbursement alternatives for eligible districts and schools. See N.J.A.C. 6A:26-12.4. However, while New Jersey’s law emerged at least partially in response to the events in Flint, New Jersey has faced elevated lead levels in its largest school district for years. The Newark Public School (NPS) system, which consists of 65 traditional public schools with more than 36,000 students, published a report in March 2016 detailing the detection and identification of elevated lead levels in the NPS district. See Newark Public Schools, “Lead Water Testing Sampling Plan, March 2016,” available at http://content.nps.k12.nj.us/wp-content/uploads/mdocs/newarkpublicschools_draft03172016314pmversion.pdf. As of March 2017, elevated lead levels were detected in over 400 water sources in the NPS system, and nearly $1 million was spent on testing and remediation. See Newark Public Schools, Drinking Water Update (3/31/17 Update), available at www.nps.k12.nj.us/mdocs-posts/drinking-water-update-33117-update. Like Illinois and New York, the prevalence of lead in school drinking water in New Jersey’s largest city has led to statewide action to address and resolve these issues.

While Illinois, New York, and New Jersey have moved ahead with proactive legislation, other states have begun to develop and explore potential statewide options. On July 1, 2017, a new law went into effect in Virginia that requires each local school board to develop and implement a plan to test for lead, and, if necessary, remediate potable water from sources identified by EPA as high priority for testing. See Va. Code Ann. § 22.1-135.1. Under these regulations, the schools boards are required to give priority to schools constructed, in whole or in part, before 1986.

In April 2016, the governor of Oregon directed the Oregon Department of Education and the Oregon Health Authority to develop a plan (the Plan) to address lead in school water. The Plan, intended to reduce student exposure to lead in drinking water, recommends that all school districts and childcare facilities test for lead in their buildings. However, the Plan does not require lead testing, nor does it impose any mandatory requirements on schools or childcare facilities. See Oregon Health Authority, Public Health Division, Statewide Plan for Reducing Student Exposure to Lead in Drinking Water: Information for Schools and Childcare Facilities, available at www.oregon.gov/oha/ph/healthyenvironments/healthyneighborhoods/leadpoisoning/childcareschools/documents/schools-lead-in-drinking-water.pdf.

Similarly, California currently provides for voluntary lead testing of water in public schools. However, the California State Water Resources Control Board’s Division of Drinking Water (Division) is collaborating with the California Department of Education to begin testing drinking water in schools for grades kindergarten through grade 12 for lead. The Division clarifies that schools that are served by a municipality, water district, mutual water company, or other PWS may request assistance from their PWS to conduct water sampling for lead and to provide technical assistance if an elevated lead sample site is found. See Calif. EPA Water Res. Control Board, Lead Sampling of Drinking Water in California Schools, available at www.waterboards.ca.gov/drinking_water/certlic/drinkingwater/leadsamplinginschools.shtml. As of June 22, 2017, a total of 1,259 schools have either provided a copy of their request letter to the Division or have sampled and submitted the results to the Division. In further support of this trend, there are multiple bills currently under review in the California legislature that address lead testing in schools. AB-746, which seeks to require testing in every potable water system of eligible school sites, passed the appropriations committee on July 17, 2017, and is placed on suspense file. AB-885, which seeks to require community water systems to test for the presence of lead in eligible schools, is currently being held in committee.

Whose Responsibility Is It?

The crisis in Flint has generated a growing concern over the safety of drinking water in our nation’s schools. Nearly every state and city that has adopted voluntary or mandatory testing requirements have noted the influence and impact of Flint’s experiences. While federal law is slowly evolving to address this concern, the evolving political climate makes the timing and efficacy of these changes uncertain. In an effort to fill the gap left by federal regulations, states are following the example of their major cities, and imposing more stringent testing standards on their schools. The last two years have seen an increasing trend among major cities in the United States—voluntary testing, followed by detection of enhanced lead levels. While remediation is undeniably essential, schools must face the practical implications of these findings. In response, Illinois, along with New York and New Jersey, are at the forefront of a national trend designed to address and remediate these public health concerns by imposing statewide standards and financial incentives to assist these efforts. While the federal response to these issues remains to be seen, it is likely that states will follow these examples, and step in to prevent another crisis like Flint.

Maris J. Jager

Ms. Jager is an associate at Rooney Rippie & Ratnaswamy LLP, in Chicago, Illinois. She may be reached at maris.jager@r3law.com.