Tom Neltner, J.D. is the Chemicals Policy Director
This is the first in a series of blogs evaluating various aspects of EPA’s December 2020 revisions to the Lead and Copper Rule (LCR) and what they may mean for accelerating lead service line (LSL) replacements. The blogs cover: 1) the new service line inventory; 2) three new LSL notices; 3) environmental justice implications; 4) communicating health effects of lead; 5) economic implications; and 6) sampling and trigger/action level.
Note that President Biden’s Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis directs agencies to review the former administration’s regulations and actions, including the Lead and Copper Rule.
The backbone of the revised LCR is a new service line inventory[1] that all public water systems, whether large or small, rural or urban, must develop by January 2024 unless they can demonstrate that they have no LSLs. If properly designed and implemented, the inventory should transform how utilities, communities and states approach LSLs by moving from rough estimates to a data-driven approach that allows water systems to identify what is known and not known about the service lines, communicate that information to the public, and establish LSL replacement priorities.
Unfortunately, EPA has included an unfortunate and absurd new detail in the inventory that requires systems to categorize service lines that contain a two-foot piece of lead pipe, often known as a gooseneck, as “Non-lead.” We anticipate that the absurdity of calling a lead pipe “Non-lead” will undermine the inventory’s credibility and effectiveness.
What is the new service line inventory and how is it used?
By January 2024, water systems must submit a service line inventory to the state and make it publicly accessible pursuant to 40 CFR § 141.84(a). To develop the inventory, they must assign all service lines, regardless of ownership, for the portions on public or private property to one of four categories:
- Lead: where a portion of the service line is made of lead (excluding lead connectors, such as goosenecks, as explained below). We presume this includes lead-lined pipe.
- Galvanized Requiring Replacement: where a portion of the service line is galvanized iron or steel.[2] If the system can determine that the galvanized pipe was never downstream of an LSL (or lead connector, such as a gooseneck[3]), then it is essentially a galvanized pipe not requiring replacement and can be categorized as “Non-lead.”
- Non-lead: where the line is determined not to be “Lead” or “Galvanized Requiring Replacement” (see discussion below for lead connectors). Our understanding is that systems could assume service lines installed after the 1986 federal ban on lead pipe are “Non-Lead.”
- Lead Status Unknown: where it has not been determined if the service line met the SDWA Section 1417 definition of “Lead-free” at 42 U.S.C. § 300g-6. We presume this means that solder or flux must be less than 0.2% lead and other wetted surfaces must be less than 8% from 1986 to 2013 and less than 0.25% for 2014 to present.[4]
Under these requirements, a service line is classified as an LSL if it is in the “Lead” or “Galvanized Requiring Replacement” categories.[5]
Water systems must determine the proper assignment based on a mandatory review of five sources of information:
- Materials evaluation used to develop a pool of sampling sites under the current rule.
- All documentation indicating the service line materials including construction and plumbing codes, permits, and existing records.
- All water system records including maps and drawings, historical records on each connection, meter installation records, historical capital improvement or master plans, and standard operations procedures.
- All inspections and records of the distribution system.
- Any other means provided by or required by the State to assess service line materials.[6]
Based on these criteria and our experience with state inventories in Illinois, Wisconsin, Michigan, and Indiana, we would expect many water systems to initially designate most of their service lines as “Lead Status Unknown” and progressively narrow the list. But there will likely be exceptions such as the Chicago Water System (which has classified 80% of its service lines as lead) or systems constructed entirely after 1986 (which would consider all lines as “Non-lead”).[7]
Why are inventories important?
Inventories serves three distinct purposes:
- Tracking progress towards full LSL replacement should a water system exceed the existing lead action level or the new trigger level;
- Providing the basis for communicating to the public, customers, residents, and other persons served by the water which of the four categories the service line delivering their water is in; and
- Enabling states and others to verify whether the tap water monitoring samples are being collected from homes with service lines that are lead (unless they have none) as required by the revised rule.
To accomplish these purposes, the inventory must be “publicly accessible” and include a “location identifier” for LSLs. The rule does not define what “publicly accessible” means, but for water systems serving more than 50,000 people, the inventory must be available online. In addition, water systems must provide consumers with instructions on accessing the inventory in its annual Consumer Confidence Reports and in all printed materials addressing its compliance with the LCR. The instructions must “explain how to access the service line inventory so the consumer can find out if they have a lead service line.” In addition, the inventory should be accessible enough that prospective homebuyers could use it to determine the composition of the service line.
The “location identifier” is not defined either, but the rule provides “street address, block, intersection, or landmark” as examples. EPA encourages exact addresses but allows flexibility to avoid conflicts with state or local privacy laws. The agency hopes that the ambiguity will be offset by the annual notices to customers.
The inventory must be updated when changes are identified in the course of normal operations. However, the public version only needs to be updated when submitted to the state as part of its tap water monitoring cycle which can range from 1 to 3 years per § 141.86(d).
Lead “goosenecks” – a major flaw in EPA’s definition of an LSL
For many years before the 1986 ban on lead pipes, water systems sometimes installed a short piece of curved lead pipe connector – usually 2 feet or less – often called a gooseneck to connect the water main to the rest of the service line leading to the property. The bendability of lead pipe made installation easier – especially when connecting a rigid galvanized iron or steel pipe. EPA notes in the preamble to the revised rule that these connectors may also have been used around the meter at the property line.
In the final rule, EPA excludes these lead connectors from the definition of a service line even though they are a portion of the piping that connects the water main to the building inlet. As a result, a service line with a lead gooseneck is not considered an LSL under the rule unless it is upstream of a galvanized steel pipe that is currently part of the service line.[8]
In the preamble to the rule, the agency reasoned that records on these lead connectors are often extremely limited or may not exist at all and cannot be visually inspected without an excavation – and deems excavation to identify the material as not feasible or practical for most systems.
Recognizing that these lead pipes are a problem, EPA requires that water systems remove them when they are encountered and they are owned by the system. If they are owned by the customer, the water system must only offer to replace the goosenecks but is allowed to leave them in place if the customer does not pay.
Unfortunately, EPA’s decision will result in an absurd outcome that undermines the credibility of the entire inventory. Water systems will be obligated to categorize these lead pipes as “Non-lead” even though EPA cites no evidence that they pose significantly less risk than a partial LSL.[9] Doubling down on the absurdity, water systems that have only “Non-lead” service lines could consider themselves as having no LSLs and avoid the more burdensome compliance responsibilities of the LCR.
We do not know how often this situation arises, but EPA’s approach is a recipe for undermining the credibility – and therefore the effectiveness – of the rule. We encourage the agency to fix this problem as soon as possible.
Our recommendations
Overall, the new service line inventory should transform how utilities and communities and states approach LSLs. However, EPA’s convoluted definitions create significant ambiguity that must be addressed.
- EPA should recognize that the service line inventory, as the backbone of the rule, must be credible and reverse its flawed decision on goosenecks. It should also clarify its definition of an LSL and its four categories to ensure consistency.
- States should move quickly to provide guidance and technical assistance to water systems to help them develop effective inventories that can be integrated at the state level. The guidance should include predictive tools to help set priorities. If EPA does not fix the flaw in the definitions and terms in the inventory, states should when they adopt the rule.
- Water systems should begin immediately to develop their inventories and make them publicly accessible using mapping tools that are commonly available. They should also aggressively resolve status of “Lead Status Unknown” service lines. Until EPA or states fix the flaws, water systems should collect more detailed information in their inventories to more easily make updates when the laws are fixed.
[1] The old rule at 40 CFR § 141.86 requires water systems to complete a “materials evaluation” to identify a pool of targeted tap water sampling sites. There was no requirement that the materials evaluation be updated. Compliance is not required with this rule until January 2024.
[2] A galvanized line means iron or steel piping that has been dipped in zinc to prevent corrosion or rusting. See 40 CFR § 141.2.
[3] The definition of an LSL (see footnote 5) is convoluted and could be interpreted as exempting galvanized lines downstream of a lead connector such as a gooseneck from the definition and would not be categorized as a “Galvanized Requirement Replacement.” We do not think this is what EPA intended but recommend that the agency address the problem by modifying the rule or providing an explanation through guidance.
[4] See EPA’s webpage for the background of Section 1417 and its changes over the years. The text at revised § 141.84(a)(4)(ii) could be interpretation to say that any service line that contains more than 0.25% lead should be categorized as “Lead.” That interpretation could include service lines installed as recently as 2014. We don’t think that is what EPA intended and recommend that the agency address the problem by modifying the rule or providing an explanation through guidance.
[5] According to revised 40 CFR § 141.2, a “Lead service line means a portion of pipe that is made of lead, which connects the water main to the building inlet. A lead service line may be owned by the water system, owned by the property owner, or both. For the purposes of this subpart, a galvanized service line is considered a lead service line if it ever was or is currently downstream of any lead service line or service line of unknown material. If the only lead piping serving the home is a lead gooseneck, pigtail, or connector, and it is not a galvanized service line that is considered a lead service line the service line is not a lead service line. For purposes of §141.86(a) only, a galvanized service line is not considered a lead service line.”
[6] The water system may use other sources of information only if approved by the State.
[7] In the preamble, EPA stated that a distribution system constructed after a state or federal lead ban may be designated as “Non-lead.” This logic could apply to service lines installed after the ban, essentially presuming compliance with federal law.
[8] As noted in footnote 3, the terms could be interpreted to exempt goosenecks under all circumstances, even if upstream of galvanized pipe. Also note that some homes’ service lines, such as my prior Midwest home built in 1929, had galvanized interior plumbing. The problems with a galvanized service line would not be significantly different than interior plumbing but it is not considered in the definition of an LSL.
[9] A water system could choose to provide more detail and note that the “Non-Lead” category includes lead goosenecks.