New York City water officials appear to be allowing lead levels to trend upward.
The EPA uses the 10th percentile of tests to trigger remedial action. But this threshold provides a false sense of security, because in the last few years approximately 7% of tests have shown excessive amounts of lead in New York City's drinking water.
Since 2012, tests for lead in New York City water show increasing rates of results that exceed an EPA threshold.
But the 15 ppb threshold is an "action level," one set by the EPA to trigger enforcement action ; that threshold has no significance for safety or health.
Although the 2016 study was not conducted following the EPA's Lead and Copper Rule, its results show an upward trend in the rate of test results that approach another EPA threshold that, if crossed, would mandate action by New York City's water officials to curtail the presence of lead.
By LOUIS FLORES
Updated 02 October 2016 14:30 ⎪ Since 2012, the rates by which tests of New York City water samples have exceeded an important Federal threshold for lead have been increasing.
Because construction and pipe replacement have been shown to elevate levels of lead in drinking water, the City's building boom may be playing a role in spiking of lead test results.
And given reports that New York City water officials have withheld embarrassing test results from Federal regulations, have gamed lead tests at public schools, and have been caught manipulating the reporting of water tests results, the fact that lead levels are increasing despite the City's best efforts to influence test results are raising concerns about the reliability of information release by the City about water safety.
When disparate events converge, "a false sense of security" about water quality can befall a community, noted a team of reporters for The Washington Post in a 2004 report about a water crisis in Washington, DC.
The rates keep increasing by which lead tests results have exceeded an EPA threshold
Each year, officials from the New York City Department of Environmental Protection, or DEP, test the City's water. One test is carried out to comply with the Lead and Copper Rule of the U.S. Environmental Protection Agency, or EPA. Although the Lead and Copper Rule mandates triennial system monitoring for water systems that (i) meet the testing thresholds for lead and copper, (ii) meet a range of values for other water quality parameters, and (iii) receive permission for the State, some water systems are subjected to annual testing. See 40 e-CFR §141.86(d)(4)(iii). In recent years, New York has been conducting such tests annually. From 2012 through 2015, the rate by which the number of tested water samples have showed the presence of lead in excess of 15 parts per billion, or ppb, has increased from 4.20% to 6.57%, a jump of 56%. If tests conducted this year by the New York City Housing Authority, or NYCHA, are used as a facsimile for 2016 tests that have yet to be fully carried out by the City, the jump from 2012 becomes 77%.(*)
This increasing trend in lead water test results in New York City, coupled with major construction projects, like the new Second Avenue subway line, and reports that DEP officials have been allegedly withholding or altering water test results may be a harbinger of larger issues facing New York City water quality.
A lack of information clouds this issue. For example, the annual DEP reports do not indicate whether the highest risk homes were selected for testing or how the samples were taken, factors that could influence test outcomes. A request made to the City Hall press office to interview a New York City water official was never answered. Kevin Ortiz, a spokesperson for the Metropolitan Transporation Authority, would not agree to provide information or to conduct an interview unless he was provided with advance details about this article.
What is notable about the annual water tests is that DEP officials have increased or decreased the number of samples tested from one year to the next for unknown reasons. According to the Lead and Copper Rule, municipalities must test 50 sites for lead in drinking water every three years. If a municipality is subjected to enhanced testing, 100 sites must be sampled. DEP officials have tested as few as 191 samples in 2014 for purposes of complying with the Lead and Copper Rule, and as many as 350 samples were tested in 2015. The large number of samples tested in 2015 coincided with the largest nominal number in recent years of samples that tested positive for lead in excess of the EPA's threshold of 15 ppb.
The EPA's threshold of 15 ppb is not an indication of safety or health
Although the EPA uses a threshold of 15 ppb as a trigger mechanism to require action by municipal water systems if that threshold is crossed in more than 10 percent of water samples tested, levels of lead in drinking water that measure at, or even below 15 ppb, should be a concern for the public.
Because of the controversy surrounding the 15 ppb threshold as being wrongly accepted with connotations of implied safety or health, reports have been published or broadcast by The Washington Post and NPR, questioning the over-reliance of the 15 ppb threshold.
Speaking of the 15 ppb threshold, Jeff Cohen, who helped the EPA develop the Lead and Copper Rule, said during the NPR report that, "It was never designed to identify a safe level of lead in drinking water. The rule is zero lead in drinking water."
Indeed, a page from the EPA's own Web site makes clear that no reading of lead is the agency's ultimate goal : "EPA has set the maximum contaminant level goal for lead in drinking water at zero because lead is a toxic metal that can be harmful to human health even at low exposure levels. Lead is persistent, and it can bioaccumulate in the body over time."
For purposes of this report, the EPA's "action level" threshold of 15 ppb is used to compare water test outcomes, but measurements at, or even below, the threshold of 15 ppb are not intended to convey any representation of safety or health.(**)
Replacement of lead pipes can increase lead in drinking water, and so can construction
New York City reportedly replaced all of the lead service lines from water mains into public schools, libraries, and parks between 2008 through 2010, according to a recent report published by The New York Times. Although it may be counterintuitive, removing lead pipes, even partially, can actually increase the presence of lead in drinking water.
As noted in a field study conducted by the EPA of drinking water in 32 homes in Chicago, Illinois, the highest levels of lead in tap water "most often were associated with sites having known disturbances to the lead service lines."
Disturbances would include pipe replacements. Partial pipe replacement can take place either as a result of routine street construction that triggers the need to carry out partial pipe replacement or as a result of efforts made by municipal water authorities to remove lead pipes from their service lines.
By way of comparison, on the Web site of the District of Columbia Water and Sewer Authority, it is noted that the authority is engaged in actively replacing lead service lines. Furthermore, the authority admits that, "After a lead pipe replacement, a temporary increase in lead will likely occur in household tap water. Lead levels can potentially remain elevated for a few months after a lead pipe is replaced. This spike in lead is the result of pipes being disturbed during construction," adding that, "Lead can also continue to release in household tap water if the household has galvanized pipes or other household lead sources that are not removed during lead service pipe replacement."
Galvanization occurs when copper pipes are used to partially replace lead pipes. A study has showed that partial-replacement of lead pipes with copper pipes would release lead into drinking water at rates that would reverse any gains from partially removing lead pipes.
Given the role that partial pipe replacement has on elevating lead levels and without discounting other possible factors, the recent spikes in lead levels at New York City public schools could be a residual effect of prior pipe replacement.
The Washington, DC, public school system in 2000 approved a master plan to modernize at least 100 schools. That capital improvement plan lead to a long-term construction project. It is believed by some clean water activists that that construction project, which may have involved updating the water infrastructure of schools, may have contributed to the release of lead into the drinking water in the DC public school system. A report filed by the journalist Sarah Anne Hughes for Washington City Paper noted that 64 schools have recently tested positive for lead in water above the 15 ppb threshold.
In New York, the gentrification of formerly quiet neighborhoods has resulted in new construction of luxury apartments and condominiums. When formerly low-rise buildings are leveled into the ground in order for foundations to be poured for much taller buildings, new plumbing gets installed in the course of new construction.
Other large-scale construction projects, like the building of the Second Avenue subway, can also cause the replacement of water pipes.
Despite the known roles that construction and partial pipe replacement play in increasing the presence of lead in drinking water, that information has not been disclosed in DEP's annual reports. Since 2010, in each of the annual DEP reports of water testing, the source of lead in drinking water was identified as "Corrosion of household plumbing systems" for purposes of the Lead and Copper Rule testing. However, in other sections of the annual reports, the sources of lead were described as "Corrosion of household plumbing systems ; erosion of natural deposits." No other risks, such as construction or pipe replacement, were disclosed.
Although New York City water officials have yet to complete testing for the 2016 water study, a facsimile for a City-wide water study can be viewed in the outcome of lead testing conducted by NYCHA. Like with the annual City water testing, it is not known whether the highest risk dwellings were selected for testing or how the samples were taken. Information about the NYCHA water study were obtained in response to a request made under the State's Freedom of Information Law. NYCHA provided a spreadsheet summarizing the test results ; the actual testing reports were not released.
In March, NYCHA officials ordered testing of drinking water at 175 apartment units. The outcome of those tests identified two apartment buildings within the northern reach of the new Second Avenue subway with elevated lead levels.
An apartment at Metro Plaza North, located at 345 East 101st Street in Spanish Harlem, showed a lead test result of 1,249 ppb. It was the highest test result for lead in the study conducted by NYCHA. An apartment at the White Houses, at 2029 Second Avenue in Spanish Harlem, showed a lead test result of 89 ppb. Those results compare with 110 ppb, which was the highest number in the range of values detected for lead for the 2015 study of 350 samples tested by New York City to comply with the EPA's Lead and Copper Rule.
At Metro Plaza North, several individuals entering the apartment building declined to be interviewed by a reporter for this report.
When White Houses tenant Jose Iando was asked by a reporter whether anybody from NYCHA administration had informed him that a lead test for water had shown a result of 89 ppb in the White Houses, Mr. Iando replied in the negative – and quickly noted that NYCHA had not taken any action to replace the floor in his apartment, which he said was in very poor condition.
When White Houses tenant Maria Muniz asked by a reporter whether she had been informed by anybody from NYCHA administration about the lead test results, she replied that she could not recall being informed, quickly adding that the building had been without hot water since the morning of the interview.
It appeared to be difficult to focus the attention of NYCHA tenants on long-term hazards that appear invisible, like the presence of lead in drinking water, when the conditions that are more immediately sensed and experienced, like floors in poor conditions and the lack of hot water, take greater priority.
When a reporter attempted to show Ms. Muniz a list that identified which public housing developments showed test results for lead in water that exceeded an EPA threshold, Ms. Muniz was unable to read the information for lack of a pair of eye glasses.
Testing for lead in drinking water can be "gamed"
In the wake of the Flint water crisis, it has been noted that water officials in major U.S. cities, such as Detroit and Philadelphia, have altered testing methods in an effort to underreport lead in drinking water, according to a report published by The Guardian.
In the past, New York City water officials have been caught underreportng testing information. In 2004, a report published by The Washington Post noted that New York City water officials withheld lead test results from regulators that would have showed lead levels in excess of safety standards for two years.
The methodology for taking samples can also influence the outcome of test results. For example, when New York City recently tested water for lead in over 1,500 public school buildings, The New York Times revealed in a report that water faucets were opened and allowed to run for two hours the night before the samples were taken. Allowing water pipes to be flushed like that can substantively diminish the presence of lead in test results, confirming suspicion amongst clean water advocates that large municipalities have engaged in misconduct to "game" test results, because typical use of tap water does not occur after two hours of flushing stagnated water from a building's plumping.
Although de Blasio administration officials later made promises to not solely rely on flushing out water lines the night before water samples would be taken for lead tests, City officials would not entirely rule out use of the controversial practice in the future.
The ethical dilemma of not crossing an EPA threshold
Since 2011, New York City has not crossed a threshold set by the EPA that mandates action if more than 10% of water tests exceeded 15 ppb. Whereas so much attention is placed on allowing up to 10% of water tests to exceed the 15 ppb threshold, not crossing the 10% threshold does not mean that all drinking water is safe, however.
As noted in a report filed by Christopher Ingraham about the Flint water crisis for The Washington Post, the 15 ppb threshold " is a regulatory measure, not a public health one. Researchers stress that there is no 100 percent 'safe' level of lead in drinking water, only acceptable levels. Even levels as low as 5 ppb can be a cause for concern, according to the group studying Flint's water," adding that, "At the city level, public health officials are most concerned with the 90th percentile level of lead exposure in homes they test -- that is, 90 percent of homes will have a lead level below this threshold, while 10 percent will register above it."
Although the results of the NYCHA study were discussed by NYCHA CEO Shola Olatoye during a budget hearing before the New York City Council on Monday, 28 March 2016, NYCHA felt nothing more had to be done except to advise tenants living in the apartments with elevated lead levels to take water only on "second draw," which means waiting a period of time with an open faucet before taking water. At the budget hearing, NYCHA CEO Olatoye said, "It’s very important that our residents have confidence that there are not issues within the housing authority."
Because there are no regulations for public education in situations faced by NYCHA where less than 10 per cent. of water tests exceed the 15 ppb threshold, public consciousness of the problem of lead in drinking water is never raised.
The last time New York City issued a public alert about escalating levels of lead in drinking water was in 2010, when 13.5% of water samples tested positive for lead in excess of 15 ppb. A report published by The New York Times about the public alert revealed that DEP estimated that water was still, as of that year then, being delivered to approximately 100,000 of its 835,000 customers by using lead pipes.
"New York City is facing a major public health and environmental justice issue with lead exposure, and one of the parts of that that has not been understood has been all the lead that comes from pipes into our homes," said Paul Schwartz, a member of the steering committee of the Campaign For Lead Free Water, a group that will be expanding its activities online later this year.
When Schwartz was asked what advice would he give to New Yorkers concerned about their water quality, Mr. Schwartz answered, "I ask people to engage with the organizations that they belong to, and that they take a serious look at these issues."
Mr. Schwartz, whose water activism has been noted by The New York Times and The Guardian, invited New York groups wishing to further discuss lead in water to initially contact him by e-mail at : firstname.lastname@example.org.
When asked about the ethical implications of a municipality allowing its citizens to continue using water if less than 10 per cent. of water samples tested positive for lead at levels in excess of the EPA's threshold of 15 ppb, Mr. Schwartz invoked an analogy: "It's like a bus is about to hit you, and people are not going to let you know or are not going to grab you and pull you out of the way. It's criminal."
Past and present Federal investigations releated to water and lead
From 2001 through 2009, DEP was subject to oversight by a Federal monitor appointed by a U.S. District Court judge as a condition of a settlement after Manhattan Federal prosecutors conducted an investigation and forced DEP to plead guilty to violating each of the Clean Water Act and the Toxic Substances Control Act. The violations related to the presence of contaminents, including mercury, in or near resevoirs, according to a report filed by the journalist Celeste Katz for The New York Daily News. DEP officials under the Bloomberg administration reportedly retaliated against a whistleblower, Paul Danko, whose revelations led to oversight being imposed on DEP. In a YouTube video posted online in 2008, Mr. Danko spoke about the consequences for having been a whistleblower.(***)
A new crop of whistleblowers have reportedly been retaliated against by DEP officials for alleging that DEP have engaged in conduct to "falsify compliance" with the Clean Water Act, according to a filing made by a law firm representing the whistleblowers.
Because there appear to be some similarity to the pattern of conduct by DEP officials now, compared to the violations that triggered Federal supervision in 2001, it is a possibility that Federal prosecutors may begin another investigation of DEP. Advance questions previously submitted to the U.S. Attorney's Office for New York's southern district have not been answered.
What is known is that the U.S. Attorney's Office is reportedly investigating NYCHA for, amongst other things, the physical condition standards of its public housing developments. One aspect of that investigation involves the exposure to lead and the risk of the exposure to lead, according to news reports. Whereas much attention has been focused on the exposure risk from lead paint, not much concern has been paid to drinking water as a method of exposure.
Multiple requests have been made to the U.S. Attorney's Office to interview the Federal prosecutors reportedly leading the Federal investigation of NYCHA, but the press office would not grant such interviews, leaving the public, at least temporarily, in the dark.
In the fallout to the water crisis in Flint, Michigan, the ensuing public backlash have forced Government accountability, to varying degrees. Susan Hedman, an EPA regional supervisor, resigned, and nine state and local officials have faced criminal charges for either causing the Flint water crisis or engaging in attempts to conceal it.
As reported by The New York Observer, two top environmental officers in the administration of Mayor Bill de Blasio (D-New York City), DEP Commissioner Emily Lloyd and Office of Sustainability Director Nilda Mesa, announced that they would be stepping down earlier this summer. Their resignations were announced before news broke of the latest allegations by whistleblowers of test result tampering. At NYCHA, CEO Olatoye has faced calls for her resignation, but those calls were based on the agency's mismanagement of mold remediation, not about the exposure to lead or the risk of the exposure to lead faced by its tenants.
For this report, a representative for NYCHA did not answer a request to interview CEO Olatoye, and past requests for similar interviews have not been answered.
Following publication, this report was updated to reflect changes. (*) This paragraph was updated to distinguish between the triennial monitoring required by the Lead and Copper Rule and the recent testing being conducted by DEP on an annual basis. (**) This section was added to provide clarification about the 15 ppb EPA threshold for lead not being any indicator of safety or health. (***) This paragraph was updated to clarify the Clean Water Act violations.