By Diane VanDe Hei
After years of development, the U.S. Environmental Protection Agency (EPA) published its long-awaited revisions to the Lead and Copper Rule (LCR) in the Federal Register on Jan. 15, 2021, beginning the ticking of two simultaneous clocks: 60 days until the new rule officially takes effect, and three years until public water systems must come into compliance with the new requirements.
While the Lead and Copper Rule Revisions are now on the books, additional delays may be coming. The Joe Biden administration has indicated plans to review all rules finalized in the closing days of the Trump administration that had not taken effect as of Jan. 20. The LCR revisions fall into this category, and the new administration could put their effective date on hold. This would give Biden’s EPA time to contemplate additional changes to the LCR, but any further revisions would have to go through a new notice and comment process.
Fitch Ratings: New Lead and Copper Rule will raise costs for water utilities
Meanwhile, Bloomberg Law reports that the Natural Resources Defense Council and other groups have filed suit in the U.S. Court of Appeals for the District of Columbia Circuit against EPA over the rule.
EPA originally proposed the new rule in November 2019, and many aspects of that draft remain intact. These include:
- Maintaining the 15 parts-per-billion (ppb) action level alongside a new 10 ppb trigger level, a 90th percentile exceedance of which means a water system must carry out additional planning, monitoring, and treatment activities.
- Requiring each water system to complete a lead service line (LSL) inventory, as well as an LSL replacement plan if lead pipes are present in the system.
- A mandate for water systems to replace LSLs at a rate of 3 percent per year (on a two-year rolling average) following an action level exceedance. This requirement is lower than the 7 percent replacement rate of the previous rule, but the new regulation bars “test-outs” and other loopholes that allowed water systems to avoid actually replacing LSLs.
- Discouraging partial LSL replacements while still allowing flexibility for water systems to carry out emergency repairs.
- A “find-and-fix” process through which water systems must evaluate the need for corrective action following the collection of any single sample with lead measured above 15 ppb.
The final LCR features several changes compared to the proposed rule. EPA’s original proposal would have required water systems to test the water of 20 percent of K-12 schools and licensed child care centers in their service area for lead each year. Under the final rule water systems must still strive to test 20 percent of primary schools and child care centers each year, but high schools need only be tested upon request and all entities only need to be tested once, rather than a revolving 5-year cycle. The final rule also makes it easier for water systems to document schools and child care centers that decline testing offers. Unlike the proposal, which would have required water systems obtain a written refusal from a school, the final rule only requires water systems to show that they made two good faith efforts to reach a school or child care center with the offer of testing.
EPA also adjusted provisions articulating how water systems and customers may cooperate on LSL replacement efforts. The proposal would have required a water system to replace the public portion of an LSL within 45 days upon receiving notification of a customer’s intent to replace their privately owned portion of the line, but based on water sector comments EPA recognized that a customer’s “intent” doesn’t necessarily mean the customer will follow through with their own replacement work. Under the final rule water systems must make a good faith effort to work with a customer to replace both sides of an LSL simultaneously. If that is not feasible, the water system must replace the publicly owned side within 45 days of the customer’s actual private side replacement – and this deadline can be extended up to 180 days as long as the water system informs the state of the need for this extension.
The proposed rule would have directed water systems to supply customers undergoing replacement of an inline water meter, a water meter setter, or a gooseneck, pigtail, or connector with pitcher filters and three months’ worth of replacement cartridges. The final rule expands this to six months’ worth of replacement cartridges, likely at a significant cost to water systems.
The most notable alteration to the final rule is a change to the lead sampling method. Whereas the previous LCR and the proposed revisions called for lead to be measured within the first liter of water from the tap, the final rule requires testing the fifth liter drawn. EPA believes the fifth liter is most likely to capture water that had been in immediate contact with a lead service line, but the change could come at the expense of simplicity for volunteers who collect samples from the tap.
Water systems are analyzing the rule to determine the necessary changes to their lead programs.
Diane VanDe Hei is the CEO of the Association of Metropolitan Water Agencies (AMWA) in Washington, D.C. The organization represents the largest publicly-owned drinking water systems in the United States and its membership serves more than 140 million Americans with safe drinking water.
