A closer look at the environmental justice implications of EPA’s proposed lead in water rule

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

See all blogs in our LCR series.

Household-level changes that depend on ability-to-pay will leave low-income households with disproportionately higher health risks.

 

EPA Environmental Justice Analysis of the proposed rule.

Reviewing a rulemaking docket can be intimidating, especially for a major rule like the Environmental Protection Agency’s (EPA) proposed revisions to its Lead and Copper Rule (LCR), which includes 853 supporting documents and tens of thousands of pages. Though we cannot claim to have read all of the documents, we did a targeted scan of key materials, knowing that they often yield insights and results that are lost in the summary that appears in the Federal Register. 

The effort for us paid off when we read EPA’s Environmental Justice (EJ) Analysis of the LCR proposal revisions (the Proposal), commissioned in response to Executive Order 12898. The Order directs agencies to identify and address, “as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations” in rulemaking. The agency’s contractor essentially found:

  • The current LCR disproportionately impacts low-income and minority populations as they are more likely to live in older housing that has lead service lines (LSLs), the most significant source of lead in drinking water.
  • The Proposal’s corrosion control requirements should help reduce current disparities. Because water treatment is consistent across an entire community, stronger requirements that reduce the ability of lead to leach into water from LSLs, leaded solder, and other sources should mitigate, but not eliminate, the disproportionate burden in homes with LSLs.
  • The Proposal may make disparities worse if it depends on individual household’s ability to pay for LSL replacement (LSLR). The report stated that “Household-level changes that depend on ability-to-pay will leave low-income households with disproportionately higher health risks.”[1]

In the Federal Register notice, EPA glossed over the third point and concluded that the Proposal is “not expected to have disproportionately high and adverse human health or environmental effects on minority populations and low-income populations.”[2] The agency ignores the fact that the Proposal makes no change to the current LCR provisions that rely on a household’s ability to pay when it says water systems are “not required to bear the cost of removal of the portion of the [LSL] it does not own.”[3] We are aware of only a small – but growing – number of communities that have funding options to assist households with the cost of LSLR on private property.

As a result of these LSL provisions, we think the Proposal will likely make the environmental justice problems with the current rule worse, not better, in three ways:

  1. Partial LSLRs from utility-initiated infrastructure improvements continue: The Proposal continues to allow partial LSLRs when utilities are replacing the main under the street and the homeowner does not opt to pay for replacement of the LSL on their property. Partial LSLRs have been shown to significantly increase lead in drinking water for several months and provide limited or no long-term benefit.[4] In contrast, full LSLRs result in smaller and shorter lead increases and provide a permanent solution to the challenge of LSLs. Wealthier households are more likely than low-income households to pay for LSLR on their property to result in a full LSLR.
  2. Lower priority for mandatory LSLR: If a utility has high enough levels of lead in drinking water that it must reach annual milestones for fully replacing LSLs, it has an incentive to prioritize wealthy neighborhoods because the residents are more likely to be able to pay to replace the portion they own. While basing milestones on full LSLR is a major improvement over the current LCR (which counts partial LSLRs), an unintended consequence is that low-income neighborhoods may be far down the priority list for mandatory full LSLR. (Also, as we have previously noted, the Proposal lowers the required annual replacement rate, putting utilities on a schedule to replace their LSLs over 33 years instead of the current 15 years).
  3. Customer-initiated full LSLR could prioritize limited resources for affluent homeowners: The Proposal requires utilities to replace their portion of the LSL when customers notify them that they will be replacing the portion on private property. Due to the cost to homeowners, wealthy households will be more likely to initiate replacement than their low-income counterparts. Therefore, this approach prioritizes LSLR for affluent property owners and could result in fewer replacements for low-income households due to limited water system resources.

Full LSL replacement is critical to protect public health. If finalized and implemented, we are concerned that the proposed LCR revisions are likely to exacerbate inequities – making the disparities for low-income and minority residents worse, not better, in many cases – notwithstanding the benefits of improved corrosion control.

We will be raising these concerns with EPA through our comments, where we will demonstrate that they are more than just theoretical, based on findings from an American University-led study supported by EDF and D.C. Water.

[1] Abt Associates, Environmental Justice Analysis for the Proposed Lead and Copper Rule Revisions, October 22, 2019, Docket No. EPA-HQ-OW-2017-0300-0008. Consultant prepared the report for EPA pursuant to Contract # EP-W-17-009.

[2] November 13, 2019 Federal Register at 84 Fed. Reg. 61,740.

[3] Proposed § 141.84(c)(2), (d)(1), (g)(1), and (g)(7).

[4] A 2015 study indicated that “elevated lead originating from configurations of partial replacements, in which a copper pipe is placed upstream of the lead pipe, does not necessarily ameliorate with time but can actually worsen.” See St. Clair, J., Cartier, C., Triantafyllidou, S., Clark, B., and Edwards, M. (2016) “Long-Term Behavior of Simulated Partial Lead Service Line Replacements.” Environmental Engineering Science, 33(1). DOI: 10.1089/ees.2015.0337.

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