Mandatory lead service line inventories – Illinois and Michigan as strong models

Tom Neltner, J.D.Chemicals Policy Director and Lindsay McCormick, Project Manager

This blog is part of a series focused on how states are handling the essential task of developing inventories of lead service lines (LSLs) and making them public. The first blog identified 14 states that were taking on the issue: four with mandatory programs and ten with voluntary.  In this blog, we explore the four mandatory programs and highlight Illinois and Michigan as strong models for other states to consider. 

Four states – California, Illinois, Michigan and Ohio – require utilities that operate community water systems (CWSs) to identify and report to the state in some form their number of lead service lines (LSLs). Illinois and Michigan both have strong approaches that could serve as models for other states and EPA to require nationally. California’s approach is seriously flawed because it ignores part of the service lines and can be misleading. Ohio requires utilities to either report they have zero LSLs or provide maps where the LSLs are likely to be found, with no requirement to provide an estimated number. We explore all of these approaches below.

Michigan as a comprehensive model

In June 2018, Michigan Department of Environmental Quality (MDEQ) overhauled its version of EPA’s Lead and Copper Rule (LCR) to address shortcomings laid bare by the Flint crisis. The new rule requires utilities to replace LSLs, whether on public or private property, within 20 years at the utility’s expense. We will explore this requirement in a future blog; for now, we will focus on its mandatory LSL inventory.

The new rule states that by January 1, 2020, utilities must submit to MDEQ a “preliminary distribution systems material inventory” based on existing sources of information. The inventory must explicitly include what is known or not known about the portion of the service line on both public and private property. Five years later, the utilities must submit a complete inventory that includes an inspection in the interior of the building unless the customer refuses access. The inventory must be updated every five years thereafter.

Every CWS must also provide the following in its annual consumer confidence reports, and on its public website if it has one, or on request if it does not:

  • Number of LSLs;
  • Number of service lines of unknown material; and
  • Total number of service lines in the supply.

In a first-of-its-kind state requirement, utilities must also give written notice to the owner and occupant of the property if they determine either a lead pipe is present or they are unable to identify the materials used in the service line. The notice is required within 30 days of making the determination and any time a new water account is opened.

It is very early in the process; MDEQ still needs to take important steps to implement the rule before the preliminary inventory is due. However, the state’s comprehensive, transparent approach to a service line materials inventory is a model that other states and EPA should consider.

Illinois as a strong model

In January 2017, the Illinois General Assembly enacted SB550 establishing a set of new requirements to address lead in drinking water. One provision of the law required the utilities that operate the 1,750 CWSs in the state to submit a “water distribution system inventory” to Illinois EPA. The initial inventory, due April 15, 2018, was required to identify the:

  • Total number of service lines within or connected to the distribution system, including privately owned service lines; and
  • Number of all known LSLs within or connected to the distribution system, including privately owned lead service lines.

Recognizing that the initial inventory would not be perfect, the law required annual updates to the initial inventory including “the number of the lead service lines that were added to the inventory after the previous year's submission.” The law made clear that no utility was required to unearth service lines to develop the inventory.

Illinois EPA issued instructions for utilities to submit the inventory online. The utilities were required to identify the total number of service connections with a breakdown on the number that are retail and wholesale,[1] and the number made of the following types of materials:

  1. Lead
  2. Copper – Lead Solder
  3. Galvanized
  4. Unknown Material
  5. Copper – No Lead Solder
  6. Plastic

Since a service line could contain more than one type of material, Illinois EPA provides a list of six options and instructs the utility to select the option with the highest potential lead risk where there are mixed service line material types. Under this approach, a service line with a lead pipe gooseneck connected to a galvanized pipe would be counted as lead, and one with galvanized and plastic pipe would be counted as galvanized.

The Illinois EPA posted a preliminary report in July 2018 and will routinely update the summary until all water systems have met their statutory obligations. So far, 1,515 CWSs have reported on 3.56 million service lines (95% of 3.74 million total in the state). About 10% of the total service lines were reported as lead, 39% were reported as unknown, and 5% were not covered by report and, therefore, unknown. By our calculations, Illinois has between 378,000 to 2.02 million lead pipes (including unknowns). Illinois EPA noted that the number of unknowns should decrease as the agency refines its reporting system and utilities investigate and confirm service line materials. In addition, the Illinois EPA is working with the Illinois Department of Innovation and Technology to develop a water-system-level website that consumers can use to determine the material types used for service lines connected to their respective water system.

Given the preliminary report, we see Illinois as a strong model for other states. As compared to Michigan, Illinois may confront a challenge of reducing the number of unknown lines without an affirmative duty on utilities to investigate unknowns or disclose results to customers.

California as a strong approach with a major, and likely misleading flaw that requires improvement

The California legislature amended the state’s Health and Safety Code in 2016 and again in 2017 to require utilities operating the state’s nearly 3,000 CWSs to submit the required information to the state’s Water Board by July 1, 2018. The submission must include:

  • An inventory of known “lead user service lines” (LUSLs) in use in its distribution system;
  • A timeline to replace these lines; and
  • Map of areas that have LUSLs or service lines with unknown materials.

Two years later, in 2020, utilities must determine whether there are any LUSLs in the areas identified as having LUSLs or unknown materials in the 2018 inventory and provide a timeline to replace both the LUSLs as well as those lines where the material composition cannot be determined. In essence, California presumes that lines of unknown composition are lead and must be replaced – creating an incentive for the utility to confirm the materials in a line.

To assist utilities with the 2018 deadline, the California Water Board created a webpage, provided FAQs and a sample inventory form, and added a new section to its electronic annual reporting system that utilities already use. The submission must be certified and signed by the water system representative and explain how the inventory was determined. The California form requires utilities to:

  • Provide estimates on nine specific types of service line materials in the system, not just lead or unknown;
  • For lead and unknown materials, provide total length of the each in feet;
  • Estimate the number of lead fittings and fittings of unknown material (such as goosenecks, pigtails and corporation stops) and whether or not they are connected to a lead pipe; and
  • Identify the methods used to prepare the inventory.

While this framework is strong, the California requirement applies only to the line between the main under the street up to the meter and excludes the customer’s side of the meter. Therefore, any lead pipe on the customer’s side of the meter (typically on private property) does not have to be reported. This means a utility in California could report zero LSLs even though thousands of customers could be drinking water potentially contaminated by lead pipes. In contrast, Michigan’s and Illinois’s inventories explicitly cover the entire service line including between the meter and home.

We first identified the problem with the narrow definition of the LUSL in California’s reporting requirement in January 2017. While the California Water Board recognized the shortcoming and encourages utilities to voluntarily notify customers, the legislature failed to correct the problem when it refined the mandate in September 2017. As a result, California could:

  • Seriously underestimate the scope of the LSL problem in the state; and
  • Significantly increase consumer exposure to lead if utilities choose to conduct partial LSL replacements to comply with the replacement mandate without taking necessary precautions.

Ohio as a limited approach, providing limited but still useful information

In 2016, Ohio’s legislature passed a law requiring utilities to submit information in 2017 declaring they have either zero LSLs or provide maps where they are likely to be found. If a CWS has one or more LSLs, Ohio does not require it provide additional information beyond the maps. The initial submission was due in 2017, and utilities must update the information every five years. We described the requirement in more detail in our January 2017 blog.

Ohio’s approach is helpful because it requires utilities to make an affirmative declaration if they have LSLs. However, the law has several significant limitations:

  • No explicit requirement that the declaration cover the line on both public and private property. This is an issue with California as discussed above and, from what we have seen, it also posed a challenge with some other state surveys.
  • Without requiring utilities to estimate their number of LSLs, it is difficult for the state or a community to assess and tackle the challenge.
  • The mapping approach runs the risk of discouraging people from investing in neighborhoods that are likely to have LSLs, because the approach provides neighborhood-level information but not address-specific information. California’s mapping requirement poses this same risk but minimized it with a requirement to remove the LSLs.

Summary

An accurate, publicly-accessible inventory of LSLs within a community and a state is essential for accelerating replacement of these lead pipes and informing the public of health risks. Without this information, policy makers cannot make important decisions regarding funding, priority-setting, and communications. In addition, property owners, home buyers and potential renters are left in the dark.  From our perspective, Michigan and Illinois serve as strong models for other states and for EPA to require nationally.

[1] Retail means customers who consume the water. Wholesale refers to other utilities that have their own distribution system to reach the customer.

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