The Great Lakes Environmental Law Center (“GLELC”) and the Natural Resources Defense Council (“NRDC”) filed a Request for Declaratory Ruling with the Michigan Department of Great Lakes, Energy, and the Environment (“EGLE”) seeking a ruling to declare certain Administrative Consent Orders (“ACOs”) unlawful and void because they violate the Michigan Lead and Copper Rule by allowing partial lead service replacements in violation of Michigan’s Lead and Copper Rule.
Prompted by the Flint Water Crisis, EGLE revised the Michigan Lead and Copper Rule to ban partial lead service line replacements, unless it is necessary due to an emergency repair. Partial lead service line replacements have been shown to cause increased concentrations of lead in drinking water. The adoption of the ban on partial lead service line replacements was celebrated by public health advocates for being an important measure to protect the public.
Since the adoption of this ban, EGLE has quietly entered into Administrative Consent Orders (“ACOs”) with at least three municipalities that unlawfully authorize the municipalities to conduct partial lead service replacements in circumstances other than in emergency repairs. At least two of these ACOs, one with the City of Dearborn and one with the City of Milan, are still in effect and remain so for an indefinite period of time. These ACOs were entered into without any public notice or input, and without satisfying key requirements in the Michigan and Federal Safe Drinking Water Act that exist to safeguard residents from lead in drinking water.
“The ban on partial lead service line replacements is a key public health provision in the revised Michigan Lead and Copper Rule, and we’re troubled and concerned to see that EGLE is not only declining to enforce the provision, but appears to be entering into agreements with water suppliers that completely re-write the standard behind closed doors,” said Nick Leonard, Executive Director of the Great Lakes Environmental Law Center. “We do not believe that EGLE has the authority to contract around the Michigan Lead and Copper Rule and we’re asking them to eliminate this practice and declare their prior Administrative Consent Orders as void.”
“After taking one step forward by promulgating the most protective Lead & Copper Rule in the nation, EGLE has not taken two steps back by allowing water suppliers to do these partial lead service line replacements –placing in jeopardy the health and wellbeing of residents in the very communities it sought to protect when it revised the Michigan Lead and Copper Rule,” said Jeremy Orr, Attorney for Natural Resources Defense Council. “Our Request for Declaratory Ruling from EGLE is a simple, yet fundamental ask: follow your own rules. These invalid Consent Orders should be ripped up, any existing partial lead service line replacement projects should cease, and there should be no future accommodations for water systems who are looking to use these types of Consent Orders as a vehicle to skirt the rules that are meant to ensure that all Michiganders have access to clean and affordable drinking water.”
EGLE has 60 days to take action on the Request for Declaratory Ruling. EGLE can either grant the request, deny the Request, ask for further clarification of the facts, or advise that EGLE requires additional time conduct a review.