Creative Municipal Approaches to Lead Pipe Removal: A Pittsburgh Case Study
Noah Hellum
I. DOMINION v. PWSA AND THE PITTSBURGH LEAD CRISIS
Lead pipes pose a serious threat to the public health of communities across the American Rust Belt. Early exposure to lead particles, even in small doses, can cause children to have serious cognitive impairment and increased behavioral issues.[1] While the news of the Flint Water Crisis exposed many cities to the dangers of the pipes lying beneath their homes, those same cities have often failed to remove lead from their plumbing infrastructure due to entrenched financial, scientific and legal obstacles.[2] The City of Pittsburgh serves as an excellent case study of how a major American city encountered these obstacles and eventually overcame them through the creative use of city and state legislation. Through Pittsburgh’s example, other cities can learn how to use their own municipal powers to work around restrictive state property and utility laws on their path to full lead pipe removal.
The lead crisis began in Pittsburgh during the first months of 2016, when officials at the Pittsburgh Water and Sewer Authority (“PWSA”) decided to investigate the state of the city’s lead pipes after seeing the dangers of inaction in Flint.[3] Through its inquiry, the PWSA discovered that 2013 tests indicated that Pittsburgh water had average lead levels of 14.7 parts per billion at the time, just below the Environmental Protection Agency’s maximum allowed amount of 15 parts per billion.[4] After running new tests in June 2016, the PWSA found that average levels in Pittsburgh’s water had risen to 22 parts per billion.[5] This rise was due in part to the PWSA’s switch from soda ash to caustic soda, an anti-corrosive agent that accidentally caused more lead particles to leach from pipes into the water.[6]
The main source of lead contamination in the city’s drinking water came from lead service lines (“LSLs”) which connect water mains to the indoor plumbing of each home. On average, LSLs account for fifty to seventy-five percent of lead contamination in each home’s water supply.[7] This fact served as a major roadblock to Pittsburgh’s lead removal efforts, because each LSL in Pittsburgh is not entirely owned by the PWSA. Instead, the PWSA only owns the LSL portion that runs from the water main to the edge of the homeowner’s property. The rest of the LSL that runs from the property line to the house’s interior plumbing is owned by the homeowner.[8]
The ownership divide of LSLs presented two major issues to the PWSA. First, its independent authority to replace lead pipes with unleaded ones only extends to the end of the sidewalk. Therefore, even if the PWSA had the funds to replace all LSLs in the city, it only had the independent authority to replace the public half of the LSL. In order to remove the private half, the city would have to obtain permission from each homeowner.[9] Second, a state court’s interpretation of the Pennsylvania Municipal Authorities Act (“PMAA”) meant that the PWSA could not pay to replace the private halves even if they had the funds for it and got permission from the homeowner.[10] The Pennsylvania Commonwealth Court in Dominion Products & Services, Inc. v. PWSA, held that the PWSA could not operate a line repair program because the PMAA prohibited municipal authorities from constructing, financing or operating any project which “in whole or in part shall duplicate or compete with existing enterprises serving substantially the same purposes.”[11] Since two local companies operated line repair businesses, the court held that the PWSA’s line repair program violated the Act.[12]
The PWSA’s counsel interpreted the court’s holding in Dominion as preventing the PWSA from replacing lead pipes on private property because other companies in the city already offered that service.[13] The PWSA therefore decided to conduct partial LSL replacements in which they replaced the public halves of each LSL and left the task of replacing the private halves to homeowners.[14] In June 2017, however, the PWSA halted these partial LSL replacements after its scientists discovered that the public LSL replacement work disturbed the private LSLs and caused more lead particles to leach into the water.[15] This discovery put the PWSA in a logistical bind because it could not replace the lines fully as a matter of law and could not replace the lines partially as a matter of science. In this same period, the Pennsylvania Department of Environmental Protection issued a mandate ordering the PWSA to replace seven percent of the city’s lead pipes per year.[16] Complying with the order would require the PWSA to either violate the PMAA or find a way to work around it.
II. LEGISLATIVE SOLUTIONS
The Pittsburgh City Council took the second approach in June 2017 by enacting legislation that authorized the mayor and Pittsburgh Department of Public Safety “to enter into voluntary agreements with private property owners for the purpose of replacing privately-owned lead water services lines when PWSA is replacing the lead water service line affecting such private lines.”[17] In this workaround, the city was the organization who would officially replace the private LSL portions since it was not beholden to the same state regulations as the PWSA.[18] Further, when it came to hiring a contractor to complete this replacement work, the legislation authorized the mayor to “enter into a Corporation Agreement … with PWSA to cooperate in the removal of such privately-owned lines.”[19] Through this circuitous approach, the PWSA was able to enter private property and conduct full LSL replacements without violating Dominion’s interpretation of the PMAA.[20]
The legislative shortcut chosen by the Pittsburgh City Council proved unnecessary shortly after its passage when the Pennsylvania Legislature, in October 2017, passed P.L. 2017-725, a law explicitly granting municipal authorities the right to use public funds to replace LSLs on private property. Under the statute, authorities could “perform the replacement or remediation of private water laterals and use ‘public funds’ for this purpose if the municipality finds that it “will benefit the public health, public water supply system or public sewer system.”[21] Before replacing the private LSLs, however, the PWSA would have to “consider the availability of public funds, equipment, personnel and facilities and the competing demands of the authority for public funds, equipment, personnel and facilities.”[22]
Since the passage of these legislative workarounds, the PWSA has removed more than 10,000 LSLs out of the 16,000 that historically plagued Pittsburgh.[23] Further, because the PWSA now has the authority to remove both the private and public sides of each LSL, these removals have actually had a significant effect on the lead levels in the city’s drinking water.[24] In 2016, when the lead crisis began, Pittsburgh’s lead levels were at 22 parts per billion.[25] By 2020, the lead levels fell to 5.1 parts per billion, well within the EPA’s maximum lead allowance of 15 parts per billion.[26] If federal and state funding for the efforts remains steady, the PWSA should be done removing all LSLs by 2026.[27]
III. CONCLUSION
The remarkable turnaround of Pittsburgh’s lead pipe crisis demonstrates the importance of clear legal authority in successful LSL removal campaigns. While research and funding play essential roles in providing the pipes and labor needed for replacement work, they are devoid of worth if the municipal water provider lacks explicit state authorization to break private ground. As shown by the PWSA’s false start in 2016, partial removal of public LSLs does not work.[28] Depending on the level of corrosion in private LSLs, partial removal either maintains current lead levels or makes them even worse.[29] Therefore, in order to successfully remove the dangers of lead from public drinking water, providers must have clear legal authority to remove both the public and private halves of each LSL.
For those providers who have been denied this authority by state legislation or judicial decisions, the City of Pittsburgh’s story offers a blueprint for how to successfully work around these legal obstacles. First, water providers facing such roadblocks should appeal to their state legislature to pass a statute that grants them the right to remove private LSLs with homeowner permission. If the legislature is not amenable to that request, providers should reach out to their local municipal government instead to devise a public-private partnership that circumvents the state prohibition. Then, with this authority in hand, water providers can finally start digging.
Noah Hellum is a Junior Editor with MJEAL. Noah can be reached at nhellum@umich.edu.
[1] National Toxicology Program, NTP monograph on health effects of low-level lead, xiii, xv-148 (2012).
[2] Shaun A. Goho, Marcello Saenz & Tom Neltner, Rates could fund lead pipe replacement in critical states: Laws in states with the most lead service lines support the practice, Emmett Environmental Law & Policy Clinic, at 1-2.
[3] Aaron Aupperlee, Pittsburgh Water and Sewer Authority alters water treatment method, The Tribune-Review, Jan. 22, 2016.
[4] Id.
[5] Listen up: If you live in Pittsburgh, your drinking water may be exceeding federal lead limits, PublicSource, July 13, 2016.
[6] Oliver Morrison, The lead crisis in retrospect: The main problem wasn’t PWSA’s corporate management, PublicSource, Oct. 19, 2021.
[7] Goho et al., supra note 2, at 1-2.
[8] Id. at 2-3.
[9] Id. at 6.
[10] Theresa Clift, Fontana questions PWSA’s claim that it can’t replace private lead lines, The Tribune-Review, May 19, 2017.
[11] 44 A.3d 697, 703 (Pa. Cmwlth. 2011) (quoting Municipality Authorities Act, 53 Pa.C.S. § 5607(b)).
[12] Id. at 704.
[13] Clift, supra note 9.
[14] Theresa Clift, Controversial lead line replacements begin in Pittsburgh as lawmakers seek better system, The Tribune-Review, May 15, 2017.
[15] Theresa Clift, PWSA said it stopped partial lead line replacements but kept doing them — now it’s done for good, The Tribune-Review, Dec. 21, 2017.
[16] Consent Order and Agreement, Penn. Dep’t Envtl. Prot., Nov. 17, 2017.
[17] Pittsburgh, PA., Pittsburgh City Council Res. 2017-1613.
[18] Id.
[19] Id.
[20] Adam Smeltz, City pushes forward with complete lead line replacements for PWSA customers, Pittsburgh Post-Gazette, July 25, 2017.
[21] Pa. C.S. § 5607(b)(2).
[22] Id.
[23] Jillian Forstadt, PWSA celebrates its 10,000th lead service line replacement, 90.5 WESA FM, February 24, 2023.
[24] Margaret Krauss, PWSA Announces Lowest Lead Levels In More Than 20 Years, 90.5 WESA FM, July 22, 2020.
[25] PublicSource, supra note 5.
[26] Krauss, supra note 24.
[27] Id.
[28] Clift, supra note 15.
[29] Id.