Chicago could be forced to replace thousands of water pipes made of brain-damaging lead, a state appeals court ruled this week in a decision that draws renewed attention to widespread hazards the city largely ignored — and likely made worse — during former Mayor Rahm Emanuel’s administration.
The 2-1 opinion by Illinois Appellate Court judges rejected multiple arguments from Kirkland & Ellis, a Chicago-based international law firm that represents the lead industry and defended the city for free in a lawsuit demanding the removal of lead service lines required under local building codes until Congress banned the practice in 1986.
While the judges did not rule on the details of the case, they ordered the Cook County Circuit Court to take another look, potentially giving trial lawyers who filed the lawsuit a second chance to argue for expanded lead testing and payouts from the city to compensate Chicagoans for declining property values.
It is unclear if the city will challenge the latest court decision. Mayor Lori Lightfoot pledged during her campaign to add lead-pipe replacements to municipal construction projects for the first time. She also promised to halt street work in neighborhoods that could be at risk.
“The health and safety of Chicago residents — especially children — is our top priority,” Anel Ruiz, Lightfoot’s chief spokeswoman, said in a statement. “The mayor has been clear that she intends to address the issue head on, and her administration will be working across city departments to find solutions to address the potential risks posed by aging infrastructure like lead service lines.”
Water drawn from Lake Michigan generally is lead-free after leaving the city’s treatment plants; it becomes contaminated only after passing through service lines and internal plumbing made of lead. Levels of the toxic metal in tap water can vary widely between homes and during different times of day, depending on water usage, the length of the service line and other factors that can limit the effectiveness of corrosion-inhibiting chemicals added to the water supply.
Before Lightfoot took office last week, city officials had denied for years that Chicagoans are at risk from drinking lead-contaminated tap water, which can cause permanent brain damage even at extremely low levels.
As recently as September, Emanuel aides and water department officials continued to insist that it is up to individual homeowners to protect themselves from mostly invisible particles leaching out of city-mandated lead pipes. Emanuel himself declared Chicago’s drinking water is safe while opposing plans introduced in the City Council to finance the replacement of lead service lines — something other U.S. cities already are doing.
Warning signs have been apparent for years.
“The city has let its residents down and turned a blind eye to its own,” said Steve Berman, a Seattle-based trial lawyer who grew up in Chicago and filed suit on behalf of two families living in the city.
The Chicago Tribune first reported in 2013 that the Chicago Department of Water Management and the U.S. Environmental Protection Agency had found high levels of lead in city tap water after lead service lines had been disturbed by street work or plumbing repairs.
Emanuel dramatically expanded that type of work after taking office in 2011. His administration borrowed more than $481 million to install meters and new water mains citywide, raising water rates to pay back the 20-year loans.
None of the money was earmarked to replace lead service lines. But in response to the EPA study, and the water crisis in Flint, Mich., the Chicago water department began distributing free lead-testing kits to residents in early 2016.
As of March 21, more than 8,400 kits had been analyzed. The results confirm that people are at risk in every neighborhood, according to an updated Chicago Tribune analysis of data posted online by the city.
Tap water in 13 percent of the homes sampled had lead concentrations above 5 parts per billion, the maximum allowed in bottled water by the U.S. Food and Drug Administration, the newspaper found. Samples from nearly 1 in 5 homes contained high levels of lead after the water had been running for three minutes.
Even after water had been running for five minutes, 6 percent of the homes tested had lead levels above the FDA’s bottled water standard.
One of the arguments from lawyers behind the lawsuit is that city officials have provided neither advice nor directions about steps that can be taken to reduce the chance of exposure to lead in drinking water.
The Tribune reported in 2016 that the water department had removed references to lead in handouts distributed before water mains were replaced on a city block. The department later began advising residents to flush their taps for three to five minutes any time water hadn’t been used for several hours.
In November, Emanuel’s water commissioner revealed the city had found high levels of lead in nearly 1 in 5 homes sampled where water meters had been installed or replaced. The city offered a free pitcher and six water filters to all 165,000 metered homes, seeking to blunt criticism before a hearing about the department’s proposed budget.
Water utilities are considered to be in compliance with federal water quality regulations as long as 90 percent of the homes tested have lead levels below 15 parts per billion, a standard the EPA acknowledges is based not on the dangers of lead but because the agency thought the limit could be met with corrosion-inhibiting chemicals.
Chicago conducts that type of testing in just 50 homes every three years — the minimum required — and typically doesn’t find anything wrong. Most of the Chicago homes tested for regulatory purposes during the past decade were owned by water department employees or retirees living on the Far Northwest and Far Southwest sides.
mhawthorne@chicagotribune.com
Twitter @scribeguy
