EPA Proposes Revisions to the Lead and Copper Rule
On October 10, the U.S. Environmental Protection Agency (EPA) announced its long-awaited proposed revisions to the Lead and Copper Rule—the first major revision since the rule was promulgated in 1991. The proposal maintains the current lead “action level” of 15 parts per billion (ppb) and “maximum contaminant level” goal of zero but includes a variety of changes that could significantly impact water systems across the nation.
Enhanced Focus on Identifying and Addressing Homes with Lead Service Lines
EPA has stated that a major driver of many of its proposed changes is identifying and remediating high-risk homes, and in particular, those served with a lead service line (LSL). Thus a key element of the proposal is the requirement that water systems prepare, and update, LSL inventories. Another is the requirement to “find and fix” sources of lead in any individual home where a test demonstrates lead levels in excess of 15 ppb. When the “fix” is outside of the water system’s control, documentation must be provided to the state. EPA is also modifying tap sampling procedures and the criteria for selecting homes for sampling to prioritize homes served by LSLs.
In an effort to increase transparency (foreshadowed by EPA’s September 25, 2019, Report on public notice of drinking water risks), the proposal requires that LSL inventories be made available to the public, meaning – at least for large systems serving greater than 100,000 people – posting the inventory on a publicly-accessible Internet site to facilitate easy access. EPA also proposes regular outreach by water systems to homeowners with LSLs. Further, when any individual tap sample exceeds the lead action level of 15 ppb, systems would be required to notify consumers at the site within 24 hours of learning of the result (instead of the current 30 days).
New Lower “Trigger” for Corrosion Control and Lead Service Line Replacement Actions
The proposal would also make changes to the requirements for corrosion control, most notably by establishing a new “trigger” level of 10 ppb. The trigger level is not a health-based standard. At this trigger level, systems that currently treat for corrosion would be required to re-optimize their existing treatment, while systems that do not currently treat for corrosion would need to conduct a corrosion control study. Under EPA’s proposal, water systems must also conduct outreach and initiate LSL replacement programs when lead levels are above the proposed trigger level of 10 ppb. EPA will require systems that are above 10 ppb, but at or below 15 ppb, to work with their state to set an annual goal for LSL replacement. Those systems that are above the action level of 15 ppb will be required to replace a minimum of three percent of LSLs annually.
Testing of Schools and Childcare Centers
EPA has also proposed a requirement for systems to annually test drinking water in 20% of schools and childcare centers in their service areas. Water systems must provide the results of these tests and information about the actions the school or childcare facility can take to reduce lead in drinking water.
EPA’s publication of the proposed revisions in the Federal Register is still forthcoming, and comments on the proposal will be due 60 days after that publication.
Beveridge & Diamond’s Water and Litigation practice groups develop creative, strategically tailored solutions to issues that arise under the Safe Drinking Water Act, including under the Lead and Copper Rule. The firm’s attorneys have represented multiple large municipalities in major litigation over lead in drinking water, including citizen suit, toxic tort, and class action defense. For more information, please contact the authors.