Tom Neltner, J.D., Chemicals Policy Director, Lindsay McCormick, Program Manager, and Sam Lovell, Project Manager.
See all blogs in our LCR series.
In October, the Environmental Protection Agency (EPA) proposed changes to its outdated Lead and Copper Rule (LCR), the federal regulation designed to control those contaminants in drinking water. As the result of more than a decade of work by dedicated agency experts, the proposal makes several improvements to key parts of the rule, including requirements for lead service line (LSL) inventories and customer notification. LSLs are the lead pipes that connect the main under the street to homes and buildings and are the most significant source of lead in drinking water.
Unfortunately, EPA’s proposed rule has several serious flaws, including that it:
- Continues to treat full LSL replacement as a last resort. The proposed rule should make LSL replacement an integral part of a long-term solution, including periodic benchmarks for all water systems to achieve regardless of water testing results.
- Continues to allow water systems to conduct partial replacements where the property owner is unwilling or unable to pay the cost for the portion not owned by the water system. Partial LSL replacement may significantly increase lead levels in drinking water for months and does not reliably reduce lead levels in the long term. While water systems would be required to gives residents tools (e.g. advanced notice and filters) to reduce the exposure, more is needed. EPA’s own analysis finds that relying on a resident’s ability-to-pay to replace the LSL on their property to avoid partial replacements will leave low-income households with disproportionately higher health risks.
- Backslides on the rate of mandatory LSL replacement. When a water system’s lead levels are so high that full LSL replacement is mandated, EPA proposes an annual replacement rate that gives the system at least 33 years rather than the current minimum of 15 years to replace all of its LSLs. While more systems are likely to have to conduct mandatory full LSL replacement because of the stricter sampling requirements, most will not.
EPA is accepting comments on the proposed revisions until February 12, 2020. We are preparing detailed comments calling for the agency to fix the flaws before finalizing the rule, and we encourage others to comment as well.
Despite these shortcomings, we want to highlight four positive elements of the proposed rule and encourage states and communities to consider implementing them now – not just because they are likely to be required in the future – but also because they set the stage for full LSL replacement. These elements are that water systems must:
- Develop an LSL inventory, update it annually, and make it publicly accessible;
- Notify customers that they have or may have an LSL;
- Take precautions when disturbing LSLs; and
- Sample more homes with LSLs and take earlier action based on the results.
In this blog, we provide an overview of these key improvements. In future blogs, we will describe our recommendations to strengthen the rule based on our comments to the agency.
Water systems must develop an LSL inventory, update it annually, and make it publicly accessible
Under the proposed rule, public water systems must assign all of their service lines into three categories: lead, non-lead, and unknown. Each service line must be given a “location identifier” such as a street, intersection or landmark. An exact address is not required. Water systems must submit the information to the state, make it publicly accessible, and, for those serving more than 100,000 people, make it electronically available.
These inventories will help states and communities better understand the challenge, assess long-term solutions, set priorities, and take action. As we have seen in a growing number of small and large communities, location information enables water systems to post online mapping tools that allow residents to check their home, neighborhood, child care, or workplace to learn whether they may have an LSL. Through our research, we have seen the positive impact these maps and similar tools can have on decision-making.
Water systems must notify customers that they have or may have an LSL
Under the proposed rule, water systems must convert the LSL inventory into action by mailing an annual notice to customers – the person who pays the water bill. New customers must also be notified when they initiate their service.
Customers with service lines of unknown material that may be lead must be told of this status and be given information to help them understand and reduce the risk and how to verify their line’s material. Those with LSLs must be given similar information but also be informed of any opportunities to replace their LSL, financing programs to assist them, and that if they want to replace the portion of the LSL they own, the water system will pay to replace the portion it owns. The rule is explicit that the water system is not obligated to pay for replacement of any part of the service line it does not own.
Under the proposal, water systems will also be required to notify consumers if an LSL is present. While the proposal defines a customer as the person who is paying the water bill, a consumer includes customers but also anyone using the drinking water, such as patrons of a restaurant or staff in an office building. Therefore, anyone drinking water through an LSL will be entitled to an annual notice from the water system.
In addition to providing the benefit of more transparency, this type of direct communication makes it more likely that a property owner will be motivated to determine what the service line is made of and/or replace it if it is lead, especially if tenants raise concerns or the property may be sold soon. Property owners may also be obligated in some states to notify prospective homebuyers or tenants.
Water systems must take precautions when disturbing LSLs
The proposed rule requires a water system to notify customers and consumers when disturbing an LSL anytime the utility has to shut off the water. The timing and content of the notice varies with the extent of the disturbance. At a minimum, before service is restored, they must be told of the potential for elevated lead in drinking water as a result of the disturbance and flushing procedures to remove particulate lead.
The water system must also provide consumers with an NSF-53 certified pitcher filter to remove lead, instructions to use the filter, and a three-month supply of replacement filter cartridges if the water system is replacing: 1) a water meter; 2) a lead gooseneck, pigtail or connector; 3) part of the LSL; or 4) all of the LSL. Advance notice is required for partial and full LSL replacements.
These precautions are important to reducing consumer’s exposure to lead from the service line.
Water systems must sample more homes with LSLs and take earlier action based on the results
The proposed rule makes three important changes that are likely to result in more water systems being required to undertake full LSL replacement.
- Compliance sampling will be based only on homes with LSLs to the extent possible, rather than the current requirement that only half of houses sampled must have an LSL. Since homes with LSLs are more likely to have higher levels of lead in drinking water – even in a first draw compliance sample – a water system’s 90th percentiles are more likely to exceed the lead action level of 15 parts per billion (ppb). Unfortunately, as mentioned above, EPA reduced the percent of LSLs that must be fully replaced – from 7% to 3% a year – when the lead action level is exceeded.
- When the 90th percentile of samples is greater than 10 ppb, the system will have exceeded a new lead trigger level that requires water systems to take steps to upgrade their corrosion control and begin full LSL replacement at a rate negotiated with the state. EPA estimates the rate will be 2% per year on average.
- Small water systems – those serving less than 10,000 people – that exceed the lead action level will be allowed to choose to fully replace all of the LSLs in their system within 15 years instead of upgrading corrosion control or filtering the lead from the water.
Given these changes, it would be prudent for water systems to consider expanding their sampling sites to include more homes with LSLs and evaluating if they are approaching the lead trigger level of 10 ppb. If they are close to the trigger, they should immediately take steps to reduce lead levels.
Summary
If finalized as written, the proposal would set the stage for slow progress towards full LSL replacement. Through our comments, we will work to convince EPA to fix the serious flaws in the proposal and ensure that the final rule adequately protects public health. In the meantime, we encourage states and communities to consider proactively implementing the positive aspects of the proposal.