December 1, 2022
To: Michael S. Regan, Administrator
Environmental Protection Agency
Adam Ortiz, Regional Administrator for Region 3
Environmental Protection Agency
Karrie Crumlish, Chief, Drinking Water & Source Water Protection Branch (3WD20)
Environmental Protection Agency, Region 3
RE: Complaint, Delaware WIIN Grant
Dear Mr. Regan, Mr. Ortiz and Ms. Crumlish,
We are writing to submit a formal complaint to the EPA about the State of Delaware Department of Education and Department of Health and Social Services for their failure to execute the terms and conditions of their 2020 $209,000 Water Infrastructure Improvements for the Nation Act (WIIN) grant to test for lead in drinking water at schools.
DOE/DHSS failed to utilize EPA 3Ts. In EPA’s announcement for the grant award on April 1, 2020, EPA stated: “EPA’s 3Ts (Training, Testing, and Taking Action) for Reducing Lead in Drinking Water in Schools will be used by the grantee to assist schools in implementing lead in drinking water testing including identifying sources of lead such as fountains.”
In their Quality Assurance Plan submitted to EPA, DOE claimed: “The DOE and HSP are using EPA’s 3Ts guidance as a model to (1) Communicate the results and important lead information to the public, parents, and teachers throughout the program; (2) Train Facility staff on the risks of lead in drinking water and testing for lead, as well as developing key partnerships to support the program; (3) Test using appropriate testing protocols and a certified laboratory; and (4) Take Action, including the development of a plan for responding to results of testing conducted and addressing potential elevated lead where necessary” (page 9).
Yet, in their FOIA Response on October 24, 2022, May Allison from the Delaware DOE maintained that the 3Ts were “not a requirement”. On October 17, 2022, the following information was provided via Senate Health Committee Chair Senator Sarah McBride: “In response to my questions, they are saying very explicitly that there was no requirement for a communications plan and that the results did not trigger a communications requirement from them. I have followed up to ask the timeline of all of this. Here is what I was sent from DOE:
The grant did not require a communications plan. Although the results also did not trigger any federal or state communication requirements, DOE and DPH provided communications materials to districts/charters to support their local communications efforts. How each district/charter handled its local communications differed and was a local decision. As the initiative moves forward, DOE and DPH will continue to support districts with technical guidance, information on available funding and other resources.”
DOE/DHSS failed to perform the following tasks described in the 3Ts:
Develop a communications plan, establish a communications team, and maintain a contact list.
When requested via FOIA, the DOE and DHSS both explained that no such communications plan, communications team, or contact list exist.
Develop a sampling plan, including a walkthrough of the facility, determine sampling locations, identify individuals who are adequately trained to collect lead samples to help avoid sampling errors, differentiate and collect 250 ml first draw and 250 ml 30-second flush samples at fixtures.
After requests, a sampling plan has not been made available, and it is unclear if one was ever created. We are also doubtful that any training occurred. We have learned through testimony at the Red Clay School Board on October 19, 2022 that boxes of sampling materials were simply sent to schools with little information about what to do or how to collect the samples. One indication of the seriousness of this lack of sampling information is the prevalence of water sampling from maintenance area sinks, boiler rooms, hose bibs, and other sources not commonly used for drinking water.
Establish a plan before sampling to assist facilities in how they will respond to their sample results to protect the school and child care facility population from lead in drinking water, including providing filters at problem taps, flushing taps prior to use, providing bottled water, or plumbing upgrades.
Some water fixtures continued to be used for drinking and food preparation for more than a year after their sampling. There does not appear to be any effort to anticipate next steps following sampling, prioritize problem water fixtures, or to put measures in place to prevent consumption from problem taps.
Shut off problem outlets and/or post “Not for Drinking/Cooking” at problem outlets.
DOE/DHSS in some cases failed to notify facilities for more than a year after initial sampling, and failed to provide instruction about posting information and shutting off outlets. For example, DOE/DHSS waited a year before shutting off the water and switching to bottled water at the Wallace Wallin School in New Castle, even though lead levels in the nurse’s office and kitchen exceeded 0.015 mg/L. Problem fixtures in other schools continued to be used without any posted signs or other measures.
Notify individuals how and where individuals may seek blood-lead level testing if they are concerned.
DOE/DHSS has not provided any guidance on blood lead testing. Because lead is cleared from the blood after a half-life of 1 to 2 months, the timing window of detecting an exposure in blood is narrow. The failure of DOE/DHSS to provide direction about blood lead testing constitutes negligence to such a degree that a lead-poisoned person may never be able to receive a diagnostic determination from a laboratory.
Because lead is stored in bone and released back into blood during pregnancy, the children of individuals who are exposed before becoming pregnant or during pregnancy can be poisoned in utero or during lactation. Knowledge of lead exposure is therefore critical when managing pregnancy and the decision to breastfeed. It is for this reason that the FDA separately considers its Interim Reference Limits for “females of childbearing age”.
DOE/DHSS failed to meet the following conditions specified in the grant:
Notification of results, specified in the WIIN Act statute and summarized in section C-2 of the grant, including notification to school administration offices, parents, teachers, and employee organizations, no more than 90 days from the completion of the initial lead testing conducted at each facility.
There has been a lack of notification and outreach to students, parents, teachers, and administration offices within the timeframes required, and in some cases delays of more than a year following initial lead testing transpired before any posting online was performed. Lack of direct communication between DOE/DHSS and school administration officials about results or the need for follow-up steps has been an enduring problem.
Quality Management Plan and Quality Assurance Project Plan, described in section F of the grant, to establish policies and practices that are sufficient to produce data of adequate quality to meet program objectives.
Instead, little if any instruction was provided to those collecting samples, some samples were collected when school buildings were closed during the COVID-19 closures, and it has been claimed by DHSS staff that extensive flushing was strategically utilized following elevated test results, in a seeming effort to invalidate initial tests and demonstrate that the water is below the the threshold they described as the MCL level for Lead.
DOE and DHSS have known about problem taps in public schools used for drinking water for extended periods of time and have kept that information secret. Locations include cafeteria kitchens, nurse’s offices, staff lounges, water fountains, water bottle fill stations, food lab sinks, classrooms, locker rooms, and bathrooms. As a result of this negligence, more adults and children may have become lead-poisoned.
DOE and DHSS staff also have used what the referred to as the “EPA’s Maximum Contaminant Level (MCL)” to communicate safety since making the results available in September 2022, even though the EPA maintains that 0.015 mg/L is not a health-based standard is instead a Treatment Technique (TT). The EPA instead utilizes a Maximum Contaminant Level Goal (MCLG) for considerations of health. EPA has set the MCLG 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.”
Since 1994 with Executive Order 12898, EPA has been required to integrate environmental justice into all EPA programs, policies and activities. On Earth Day 2022, President Biden said “We’ve put environmental justice at the center of what we do, addressing the disproportionate health, environmental, and economic impacts that have been borne primarily by communities of color — places too often left behind.”
The locations of some of the most impacted schools are in environmental justice communities that are affected by the cumulative impacts of lead exposure in their homes and environments, environmental toxins, ongoing industrial emissions, and legacy pollution in air, water and soil. This includes The Wallace Wallin School, located on the Rt. 9 Corridor, which had water samples greater than ten times what DHSS is claiming the EPA’s Maximum Contaminant Level (MCL) of .015 mg/L for lead in drinking water. Environmental justice demands that public policy be based on mutual respect and justice for all peoples, free from any form of discrimination or bias.
It is the responsibility of the EPA to oversee the use of federal funds and to provide assurances that the public’s resources are spent wisely and in accordance with environmental justice principles. In reference to the State of Delaware DOE and DHSS WIIN Grant to test for lead in the drinking water in schools, we ask EPA to:
Investigate the failures of the DOE and DHSS in the execution of this grant and to provide a path forward to correct instances of negligence. The people of Delaware, including students and parents, teachers, school employees, and members of the public who utilize these buildings should be assured that the implementation of federal funds into school drinking water safety produces positive outcomes that reduce the incidence of lead poisoning in our state.
Provide specific guidance to DOE and DHSS on their responsibilities for communicating the health risks of lead exposure through consumption in drinking water, and best practices to avoid misrepresentations and false assurances of safety. This communication should include the importance of blood lead testing in a timely manner following exposure.
Require DOE/DHSS to take actionable steps to eliminate lead exposure from school drinking water, instead of attempting to outsmart water tests with strategic flushing.
The best science available has consistently pointed to the harm of lower levels of lead to neurological development and health. For example, in 2021 CDC lowered the Blood Lead Reference Value from 5 µg/dL to 3.5 µg/dL. In 2022, FDA, in turn, lowered the Interim Reference Level for lead consumption from 3 µg/day to 2.2 µg/day for children and from 12.5 µg/day to 8.8 µg/day for females of childbearing age.
The following drinking water standards are also utilized, slated to be utilized, or recommended for drinking water, all of which are considerably lower than the EPA’s MCL/TT of 0.015 mg/L:
American Academy of Pediatrics Council on Environmental Health (2016) recommended that “state and local governments should take steps to ensure that water fountains in schools do not exceed water lead concentrations of 1 ppb” (.001 mg/L).
World Health Organization provisional guideline value for lead in drinking water is 10 μg/L (.01 mg/L)
FDA Current Good Manufacturing Practices (CGMPs) for bottled water of 5 ppb (.005 mg/L).
European Union Drinking Water Directive for lead was lowered in 2021 to 5 µg/L (.005 mg/L) which becomes effective in 2036.
As a result of the critical importance of preventing lead exposure in drinking water, we additionally ask the EPA to:
Initiate an update to the MCL/TT from .015 mg/L established in 1991 to a new level based on the current science about the health risks of lead poisoning from drinking water and clarify the language used about health-based risks of water at or above the MCL/TT.
Develop a specific health-based standard for lead in the drinking water of schools and child cares that aligns with the MCLG of zero.
We look forward to continuing our dialogue with the EPA to correct these oversights and to ensure that such negligence never happens again.
ACLU of Delaware
Black Mothers in Power
Central Delaware NAACP
Delaware Coalition for Open Government
Delaware Concerned Residents for Environmental Justice
Delaware Nurses Association
Delaware Poor People’s Campaign Coordinating Committee
Delaware Press Association
Delaware School Nurse Association
Environmental Training Program, West End Neighborhood House
Health Committee, Delaware State Conference of NAACP Branches
Latin American Community Center
Latino Initiative on Restorative Justice
Lead-Free Delaware
Network Delaware
New Castle Prevention Coalition
Sierra Club Delaware Chapter
Sussex Health and Environmental Network
Cc: David B. McGuigan, Ph.D. McGuigan.David@epa.gov
Chief, Drinking Water, Underground Injection, and Source Water Protection Branch
US Environmental Protection Agency
Lisa M. Donahue donahue.lisa@epa.gov
EPA Region III, Water Protection Division
William Richardson Richardson.william@Epa.gov
Drinking Water Section Chief, EPA Region III
