On November 30, 2023, the United States Environmental Protection Agency (“EPA”) issued proposed Lead and Copper Rule Improvements (“LCRI”) that will require the removal of all lead pipes from municipal water systems within 10 years. The rule is a draft and will be subject to public comments and potential revisions. However, if the rule is finalized, according to EPA it will cost an estimated $45 billion. External estimates by third parties put the cost of removing and replacing lead pipes from municipal water systems in excess of $115 billion.
Lead pipes supplying drinking water have been regulated by the Safe Drinking Water Act (“SDWA”) since 1975. In 1986, amendments to the SDWA prohibited lead pipes in drinking water systems. The rule was amended in 1991 requiring removal of lead service lines when testing revealed that lead in water systems exceeded 15 parts per billion (“ppb”). EPA has made addressing lead pipe systems a priority after drinking water in Flint, Michigan was contaminated with lead. Lead impacts in drinking water occurred after the city switched its water source, causing lead pipes to corrode.
The proposed rule is a result of environmental groups legal action against the 2021 amendments to the LCRI. Last December, EPA decided to drop defense of the rule and promised to strengthen the rule by the fall 2024. This parallels other “sue-and-settle” challenges to environmental agency action brought by environmental groups in recent years in which EPA concedes challenges to existing or proposed rules and settles by making extensive concessions to litigious environmental groups.
In announcing the rule, EPA Administrator Michael Reagan said that “[t]his is a public health concern that has unfortunately spanned generations and an issue that has disproportionately affected low-income communities. Our proposed improvements are a major advancement.” Additionally, EPA points to potential cognitive issues and health problems that may occur if excessive levels of lead exist in lead lines. Although lead pipes have been prohibited since the 1980s there are estimated to be about 9.2 million lead service lines in the United States.
In addition to required replacement of lead pipes from the water mains in the street to houses, the rule has other components to address lead in water lines. The rule reduces the action level for lead pipes from 15 ppb down to 10 ppb for municipal testing and action to improve lead levels. The rule also changes the lead testing procedure so municipalities will have to sample the first draw and 5th liter from the tap to determine if water sitting in lead pipes has been impacted by lead. Significantly, the rule also requires municipalities to complete inventories of lead service lines by October 2024. The rule also prohibits municipalities from partially replacing lead service lines.
As anticipated, environmental advocates, some of whom sued EPA over the prior version, are praising the new rule. The Natural Resources Defense Council, Senior Strategic Director Erik Olson called the rule “a ray of hope that we are approaching the day when every family can trust that the water from their kitchen tap is safe, regardless of how much money they have or their zip code.” Mona Hanna-Attisha, a Michigan State University professor and pediatrician that helped research the Flint water crisis said “[i] am overjoyed on behalf of kids everywhere-kids in Flint, in Newark, Chicago, Milwaukee, Washington DC and Jackson and places we know of and don’t know of.”
The Association of Metropolitan Water Agencies (“AMWA”) said its members “are committed to providing clean and safe drinking water to all Americans” but noted that removing lead pipes required cooperation between water systems and homeowners, as well as adequate state and federal funding and technical expertise. CEO Tom Dobbins said “AMWA urges EPA to focus on providing drinking water systems with the resources and tools necessary to achieve this ambitious goal, and working toward eliminating the real barriers that exist for many utilities.”
Although there has been pressure on EPA to require removal of lead pipes since the Flint, Michigan water crisis, the scope and cost has been a considerable obstacle. EPA’s announcement points to funding from the Bipartisan Infrastructure Law which dedicated $15 billion for lead pipe removal. While the proposed rule does not require municipal water systems to remove lead service lines on private property, to access the grant money the municipalities must remove both public and private lead lines. EPA also points to another $11.7 billion in drinking water funding that is available to states under the Drinking Water State Revolving Fund that can be used for this purpose.
Despite EPA’s reference to funding sources, the AMWA cautioned that requiring all lead service lines to be replaced “would represent a massive unfunded mandate.” Further, that if municipalities do not receive funding under the infrastructure law it “would likely have to turn to increased customer rates.” Similarly, former EPA officials such as Brent Fewell, a Deputy Assistant EPA Administrator during the George W. Bush administration, noted that “[a]bsent more resources, it’s unrealistic and a pipe dream to think that removal of all lead service lines will be accomplished in 10 years. While it’s a laudable goal, the LCRI’s deadline is simply too aggressive with the current level of funding and technical assistance available to communities.”
While some cities such as Newark, New Jersey, have made progress replacing lead pipes in the water system, the nation’s largest cities face substantial challenges meeting the ambitious proposal. Large cities such as New York and Chicago are estimated to have more lead pipes than any other areas. Based on the level of work required, the LCRI exemptions for the 10 year deadline may be applied for water systems that must replace more than 10,000 lead service lines per year.
In whatever form the final LCRI rule takes following public comments and adoption by EPA, the rule is likely to be one of the most expensive regulatory actions ever mandated by the federal government. There is little doubt that the aggressive schedule will cause financial hardship to municipal water systems and increased costs to water users.
George S. Van Nest is a Partner in Underberg & Kessler LLP’s Litigation Practice Group and Chair of the firm’s Environmental Practice Group. He focuses his practice in the areas of environmental law, development, construction, and commercial litigation. George can be reached at gvannest@underbergkessler.com.
Reprinted with permission from The Daily Record and available as a PDF file here.