Lead in NJ water: The murky problem between property rights and replacing pipes

Show Caption Hide Caption Newark crews go door to door in hunt for lead pipes Farrad Brown, a Newark native, is one of dozens of workers going door to door to sign residents up for a program to replace all lead pipes in less than three years.

As New Jersey's political leaders look to address the pervasive problem of lead in water, it's not just the $2 billion price tag that presents a challenge to eliminating the threat in old pipes.

Local pipe replacement efforts can be hampered by unreachable landlords or owners unwilling to allow access to their property, an obstacle that could turn into a legal battle, experts say.

The state's largest city, attempting to move past years of trouble with lead-tainted water, may soon serve as a test case for the state to learn the limits of government when public health collides with constitutional rights.

Newark, where two failing water filters catapulted concern over lead-tainted water back into headlines, has its solution to the money problem: $120 million lent by Essex County to replace all its lead pipes, even those on private property, on a compressed timeline. But Mayor Ras Baraka said reaching landlords has been a challenge, and the city recently passed an ordinance allowing it to go on a property even without an owner's permission to replace lead pipes.

"Essentially what [Newark is] doing is they’re going to be moving onto private property and taking out private property, those lead lines," said Daniel Van Abs, a water use expert at Rutgers University. "Somebody’s going to get mad and say: Government, you can’t come on my property. Someone will sue."

A bill in Trenton would provide the legal safety net for Newark and other municipalities that approve such measures — but the Legislature is out of session and not planning to act until weeks after the November election.

Typically, the water utility or municipality and the private landowner each own part of the underground lead pipe that goes from the street into a home or business.

Replacing part of the pipe is not recommended, because it can actually increase the amount of lead in the water, according to the Centers for Disease Control and Prevention. Beyond the funding question, gaining access from private landowners to do complete replacement work is a potential problem for both municipalities and private water companies, Van Abs said.

He said it is similar, though, to municipalities responding when there are other threats to public health on private property, using the example of a teetering chimney that could fall and hurt people or property. The municipality, under public nuisance law, has the right to go onto the property, fix the problem and assess fines, he said.

“It seems to me there is enough precedent in regard to these kinds of things, the chimney falling and so on, that the health threat from service lines should be seen by the court as another kind of similar activity," Van Abs said.

Newark previously had trouble getting residents signed up for a $75 million program to replace lead service lines — but that also required residents to contribute up to $1,000 of the cost.

Partnering with Essex County, Newark more recently launched a $120 million program and agreed to replace lead pipes on private property free of charge to homeowners.

Last month, the Newark City Council passed an ordinance requiring home and building owners to replace lead pipes within 90 days, offering the option of hiring a private contractor or entering the city's $120 million program.

The ordinance includes a provision that, if an occupant or owner denies the city access to the property, the city can "commence procedures, including filing a court action" to proceed with the replacement project.

“Newark is over 70 percent renters, so some of these people don’t own the property, and we can’t get the signatures from the homeowner because they’re just not around," Baraka said. “We’re going to do everything that we can to get the signature. If we can’t get it, then we’re going to have to find a way to get onto the property."

The task falls to people like Farrad Brown, a Newark native who now works for Montana Construction, one of three contractors the city hired to replace lead pipes.

One morning last week, Brown paced up and down Leslie Street, knocking on doors and ringing doorbells trying to get more people signed up for replacement.

Brown and other Montana workers put in 12-hour days, typically signing up 50 homes for replacement and installing 20 to 25 new copper pipes a day, he said. They're working fast to meet the city's two- to three-year timeline for replacing all lead pipes.

Crews go to homes at least three times trying to talk to residents, and spread block by block like fluorescent-vested missionaries. If no one is home, as is often the case, they leave a flyer on the door with a number to call to set up an appointment.

Residents can be skeptical of strangers on their doorsteps, Brown said, but most have heard of Newark's work to replace pipes. One resident on Leslie Street gave out hugs to workers who got her signed up.

"Most of them, they want it done," Brown said. "And they want to know when and how fast it can be."

While landlords can be hard to find, there have been few outright refusals.

Only about five residents have refused to have pipes inspected and replaced, and only two of those were after Newark and Essex County agreed to pick up the tab, said Tiffany Stewart, assistant director of Newark's Department of Water and Sewer Utilities. So far the city's contractors have replaced about 1,600 of 20,000 lead pipes.

Stewart said that after crews have addressed the bulk of the replacements, then they'll initiate court procedures, if necessary, to get to properties where owners have refused.

In the meantime, Sen. Teresa Ruiz, D-Essex, has backed a bill that would give legal protection to municipalities that adopt ordinances like Newark's. The bill allows municipal officials or their designees to enter private property and replace lead service lines, even without permission, as long as they notify residents at least 24 hours in advance.

“Especially in communities with large renter populations, this will ensure towns can take action to protect families and individuals living in homes with unresponsive landlords," Ruiz, a Newark resident, said in a statement.

About 1.15 million homes — more than a third of all homes in New Jersey — are rentals, according to the 2017 American Community Survey of the U.S. Census. How many lead pipes there are is less certain.

There are at least 160,000 lead pipes drawing water to homes and businesses across the state, according to an analysis of public records conducted by The Associated Press. Because the state is still collecting complete pipe inventories from a quarter of state water systems, the total number is likely to grow. Trade group surveys have estimated the number of lead pipes closer to 350,000.

And lead-tainted water has flowed to schools, where children who are the most vulnerable to irreversible brain damage and developmental delays are at risk. An investigation by the Trenton Bureau of the USA TODAY NETWORK New Jersey identified about 480 schools, in a third of districts, that found elevated lead levels during testing since 2016. After the investigation, Gov. Phil Murphy announced that schools would be required to test for lead more frequently and make more information available to parents. Murphy later said he would push for $500 million to replace lead pipes in schools.

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For the most part, lawmakers have failed to take sufficient action to eliminate the problem of lead pipes, a known threat since even before they were banned by the federal government 33 years ago. Attention on Newark, where more recent testing showed 97 percent of filters worked at reducing lead in the water, has spurred attention on the issue again.

Replacing lead pipes is the only way to fully remove the threat of lead, which accumulates in the body and is especially dangerous for children and pregnant women. In 2017, more than 3,400 New Jersey children under age 6 had so much lead in their blood that public health agencies were required to take action.

Water filters and corrosion control — that is, pumping chemicals through pipes to reduce lead leaching — can mitigate the problem. More recent discussions among lawmakers in Trenton have focused on who should pay for lead pipe replacement, just one part of a perplexing puzzle: how to fix the state's aging water infrastructure.

"The cost of upgrading our water infrastructure falls disproportionately on older American cities, and it’s critical that we create a permanent solution to eliminate the risk of lead in our water for all families," Ruiz said in the statement.

Stacey Barchenger: @sbarchenger; 732-427-0114; sbarchenger@gannettnj.com; Dustin Racioppi: @dracioppi; 609-984-6623; racioppi@northjersey.com

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