Pittsburgh is currently in a water crisis. The June 2017 lead compliance test results released by the Pittsburgh Water and Sewer Authority (“PWSA”) showed that the lead levels of Pittsburgh’s drinking water now meets the U.S. Environmental Protection Agency (“EPA”) action level for lead. The Lead and Copper Rule was created in 1991 to regulate and control lead and copper in drinking water. The rule currently requires systems to monitor drinking water at customer taps, and if the lead concentrations exceed an action level of 15 parts per billion (“ppb”) in more than 10% of customer taps sampled the system must undertake additional action. As of June 2017 Pittsburgh’s samples were calculated to be at 15 ppb, which exceeds the action level.
Lead in the water comes from pipes containing lead, and the corrosion of those lead pipes which causes leeching of lead into the drinking water. The problem with the rising lead levels is that it is not an easy problem to fix. PWSA replacing the publicly owned lead service lines fixes some of the problem but can potentially result in higher lead levels in the drinking water. The proper way to handle an increase in lead levels is to replace the whole of the lines, from the publicly owned pipes to the privately owned pipes. Until recently this was near impossible.
However, recent changes to the Commonwealth’s law granted PWSA the legal authority to fund and perform lead service line replacements on private property as long as they obtain the property owner’s consent. The recently approved Fiscal Code also made fifteen million dollars available ($15,000,000) for distribution or reimbursement for water and sewer projects with a cost of less than thirty thousand ($30,000) and not more than five-hundred thousand ($500,000) dollars for the fiscal year 2017-2018. An additional amount of ten million dollars ($10,000,000) was transferred to the authority for distribution or reimbursement for water and sewer projects. This new provision requires that grants are made available to all geographic areas of the Commonwealth as long as they meet the authority’s approved guidelines.
Though expensive, a full lead service line replacement is possible and has been done in other cities like Madison, Wisconsin. Madison replaced all of its lead pipes through a city ordinance, which instituted a partial reimbursement program, which enabled customers to receive reimbursement for half the cost of replacement up to $1,500. Pittsburgh has the opportunity to implement something like Madison’s plan, which would aid in covering the cost of a full lead service line replacement.
The city could also redirect some of its money towards the project, in addition to the funding currently available by the Commonwealth. The funding would come from the royalties paid through oil-and-gas leases that the city has obtained from public property. The recent Pennsylvania Supreme Court decision Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania held an expansive view of the Environment Rights Provision of Pennsylvania’s Constitution (Article I, Section 27). The Court held that the proceeds from the sale of oil and gas from the public trust shall remain in the corpus of the trust, and that assets of the natural resources of the trust are to be used only for conservation and
maintenance purposes. The Court concluded that the constitutional provision grants two separate rights to the citizens of the Commonwealth, the first right is a prohibitory clause and grants the citizens a right to clean air, pure water and the preservation of natural, scenic, historic, and aesthetic values of the environment. The prohibitory clause limits the Commonwealth’s power to act contrary to the right, and any laws that unreasonably impair this right are unconstitutional. The second right is the common ownership by the people, including future generations to Pennsylvania’s public natural resources. These resources include the state forest and park lands which are leased for oil and gas exploration. The Court stated that the provision establishes a public trust, where the natural resources are the corpus of the trust, the Commonwealth is the trustee, and the people are the beneficiaries. This in turn creates a judiciary duty for the Commonwealth to conserve and maintain the corpus of the trust.
This reasoning can be applied to the funds generated by the leasing of public lands to the oil and gas agencies within the City of Pittsburgh and even Allegheny County. Instead of using those royalties to fund general purposes, those funds should be used to protect public natural resources like clean air and water. Though the Supreme Court of Pennsylvania has not given a clean definition of the right to clean water, it could be implied that the right to clean water would cover the right of Pittsburgh’s citizens to have lead free water delivered to their homes.
Sources Referenced:
https://www.epa.gov/dwreginfo/lead-and-copper-rule
http://pgh2o.com/release?id=7646
http://pgh2o.com/release?id=7519
http://www.legis.state.pa.us/cfdocs/legis/PN/Public/btCheck.cfm?txtType=PDF&sessYr=2017&sessInd=0&billBody=H&billTyp=B&billNbr=0674&pn=2624
https://www.cityofmadison.com/water/water-quality/lead-service-replacement-program/information-for-utilities-on-lead-service
Pennsylvania Envtl. Def. Found. v. Cmmw., 161 A.3d. 911 (Pa. 2017)