01/28/2021 - Legal Analysis - Student Work

EPA’s Lead and Copper Rule: Examining Challenges and Prospects

by Daniel Eyal, JD 2023, EELP Staff

Lead-contaminated drinking water continues to disproportionately affect low-income communities and communities of color, with dangerous long-term health implications. To combat this problem, EPA promulgated the 1991 Lead and Copper Rule (LCR) under the Safe Drinking Water Act (SDWA) of 1974 to reduce the concentrations of lead and copper in drinking water. The Trump administration published several revisions to the rule at the end of 2020, improving requirements for transparency and public education, but lacking ambition to fully remove lead and copper from drinking water.

Background on Lead in Drinking Water

There is no safe level of lead exposure for children or adults. Ingesting even small amounts of lead can lead to permanent adverse health effects, including cardiovascular impacts, worsened kidney function and reproductive issues. Lead enters drinking water through corrosion of outdated lead pipes, solder, and other fixtures. Although Congress has prohibited the use of lead pipes and fixtures in new homes, six to ten million homes in the U.S. still receive water from lead service lines. An estimated 32 million people receive their drinking water from water systems that use lead service lines, with at least 5.5 million people receiving water at levels exceeding EPA’s lead action level of 15 parts per billion (ppb).

Schoolchildren, particularly children of color and those younger than six, are especially vulnerable to lead’s impacts because of the potential for permanent health problems including brain and nervous system damage, impaired hearing, learning disabilities, and behavioral issues. The 1991 LCR did not require water utilities (referred to as “water systems”) to test schools for lead and copper levels, meaning any lead testing in schools was mandated under state law or was voluntary. In 2018, 57 percent of schools nationwide either did not test their drinking water or did not know if they tested their water. In states that tested for lead in schools, 44 percent of the schools identified one or more sources of water with dangerous levels of lead.

People with low incomes and people of color are also more likely to live in neighborhoods with outdated and underfunded infrastructure, and are thus more likely to receive their water through lead service lines and lead-based water infrastructure. Black children are at a higher risk of elevated blood lead levels than children of other races. Low-income children are three times more likely than higher-income children to have elevated blood levels. The permanent physical and behavioral health effects of elevated blood lead levels on children can have a long-term impact in entrenching other social inequities, such as academic performance and future earning potential, increased household costs, and even a higher risk of incarceration.

The 1991 Lead and Copper Rule (LCR)

The Safe Drinking Water Act (SDWA) of 1974 authorizes EPA to set enforceable standards to reduce contaminants in drinking water if it determines that (1) the contaminant poses a health risk; (2) the contaminant is known to or is likely to occur in a public water system at dangerous frequency and levels; and (3) regulation of the contaminant would improve public health.[1] EPA promulgated the first LCR in 1991 to reduce lead and copper in drinking water. Through a series of minor and short-term revisions (2000, 2004, 2007), the LCR has served as the national standard on regulating lead and copper in drinking water for 68,000 public water systems. The rule does not apply to private water systems.

The 1991 LCR did not require water systems to eliminate lead in drinking water, but rather established treatment techniques to reduce lead concentrations below a set level. Under the SDWA, EPA must set a “maximum contaminant level goal” (MCGL), the maximum amount of a contaminant that a person can ingest at safe levels.[2] The LCR’s MCLG is zero, in recognition of the harmful health impacts of ingesting lead and copper. The LCR also included a “maximum contaminant level” (MCL)—a trigger level—of 15 parts per billion (ppb) for lead and 1.3 parts per million (ppm) for copper. Unlike the MCGL, which is based on what is safe for human health, the MCL is based on feasibility.[3] Feasibility entails what is achievable using the best technology and treatment techniques, while taking costs into account.[4] Under the 1991 LCR, if samples contain lead concentrations less than 15 ppb, no action is required, despite EPA’s assessment that any level of lead in drinking water is harmful to human health.

If samples do trigger the MCL, the 1991 LCR called for remedial actions, including:

  • Corrosion control treatment to prevent or inhibit the corrosion of lead service lines. This is the primary means of reducing lead contamination under the LCR.
  • Public outreach and education on the health impacts of elevated lead levels in drinking water.
  • Lead service line replacement. The 1991 LCR required water systems to replace seven percent of their lead services lines each year, or 14 years total for full lead service line replacement.

The Obama Era: Proposed Changes to the 1991 LCR

In 2015, EPA’s Lead and Copper Rule Working Group published a report outlining the shortcomings of the 1991 LCR and proposing recommendations to improve the rule. Specifically, the Group found that the feasibility-based MCL failed to protect people from ingesting dangerous levels of lead. Also, the slow rate of required lead service line replacement and the rule’s reliance on corrosion control as the primary method to reduce water contamination contributed to detrimental and long-lasting health impacts. Finally, the Group noted the need to improve transparency and public outreach, including the creation of a national inventory of lead service lines.

In October 2016, the Obama EPA published a white paper with recommended changes to the 1991 LCR in response to the Working Group’s report.  In the white paper, EPA recommended the following revisions in order to improve public health and streamline implementation:

  • Implement full, proactive lead service line replacement as the primary means of eliminating lead in drinking water.
  • Establish a health-based benchmark, or “household action level,” to supplement the 1991 LCR’s “technically-feasible” MCLs for lead and copper. If a sample triggers the household action level, the relevant utility must notify affected households and public health authorities.
  • Improve corrosion control treatment.
  • Increase the use of at-home filters to supplement corrosion control treatment and lead service line replacement.
  • Strengthen sampling requirements.
  • Enhance transparency and public outreach efforts.

EPA also identified two challenges to strengthening the LCR. First, the SDWA requires EPA to prepare a cost-benefit analysis (called a “Health Risk Reduction Cost Analysis”) to evaluate whether the benefits justify the costs of a proposed revision to the LCR.[5] Full, national lead service line replacement ranges from $16 to $80 billion, with capital-poor localities often bearing the cost. The benefits of full lead service line replacement, however, are harder to monetize. One study by the Health Impact Project estimated that replacing lead service lines in just the homes of children born in 2018 would protect more than 350,000 children, yielding $2.7 billion in future benefits.

There are also legal challenges involving control over and access to lead service lines. Public water systems often own the portion of service lines running from the water main to the residential property line. The homeowner owns the portion of the line from the property line to the home. Whether water systems can replace lead service lines on homeowners’ property varies based on the local authority. Some authorities require property owners’ express consent; some can mandate property owners themselves to replace lead service lines; some grant water systems access to customer-owned lines by ordinance. Thus, even if EPA did prioritize proactive lead service line replacement, they would likely need to include legal or monetary incentives to assist cash-poor localities with limited authority to require homeowners to allow such replacement on their properties.

The Trump EPA’s Revisions to the 1991 LCR

In November 2019, the Trump EPA published its proposed revisions to the LCR, and published the final revisions on January 15 2021. While the revised rule has drawn modest praise, it has also received strong criticism from environmental and public health groups for increasing the maximum timeline for lead service line replacement from 14 years under the 1991 LCR to approximately 33 years under the revised rule. Other revisions to the LCR are summarized below:

Benchmarks & Trigger Levels: The revised rule introduces a lead trigger level of 10 ppb, which would require localized treatment, planning, and monitoring, but not remediation. Only if samples trigger the original MCL of 15 ppb does the rule require water systems to begin conducting lead service line replacement. The revised rule also does not establish the more ambitious “household action level” recommended in the Obama EPA’s white paper.

Lead Service Line Replacements: The revised rule mandates that water systems replace lead service lines at a rate of only three percent per year, more than doubling the time frame for full replacement from 14 to 33 years. Unlike the Obama EPA’s proposed revisions, which prioritized service line replacement as the primary means by which to remove lead from drinking water, the Trump rule uses replacement as a back-up to corrosion control treatment.

Public Outreach & Transparency: The revised rule requires water systems to publish an inventory of all lead service lines and to notify consumers of elevated lead levels within 24 hours of sampling. This is an improvement from the original rule, which lacked an inventory requirement and granted systems 30 days to notify consumers. The revised rule also adds a requirement that water systems test at least 20 percent of the schools within their area.

Corrosion Control Treatment (CCT): Like the original rule, the revised rule uses CCT as the primary means of mitigating high volumes of lead in drinking water. The revised rule also allows smaller water systems (serving 10,000 people or less) to use less effective but more affordable treatment options, such as point-of-use treatment like water filters, instead of CCT.

Next Steps and Legal Challenges for the Biden EPA

Despite modest improvements in transparency and public education, the revised LCR fails to implement proactive changes to eradicate lead and copper in drinking water. Furthermore, lead in drinking water continues to pose pressing environmental justice concerns. In order to quickly address these impacts, the Biden EPA should first consider additional reforms or actions permitted by the revised rule. For example, EPA can help ensure water systems enforce the rule’s testing requirements in schools; make water systems’ inventories of lead service lines public to enhance public safety and education; or consider financial incentives to encourage water systems to replace lead service lines faster than the three percent per year baseline.

Although the Biden EPA can try to work within the confines of the revised rule, it will have to promulgate new revisions to the LCR in order to eradicate lead in drinking water. Although going through the arduous notice-and-comment process will take at least a year, this is a necessary step to fulfilling the LCR’s full potential. An ambitious rule should accelerate the revised rule’s lackadaisical approach to lead service line replacement and prioritize proactive, complete replacement nationwide. EPA should also reduce both the trigger level and the MCL to reflect the dire health impacts of ingesting lead through drinking water. These reductions are possible under the SDWA’s “feasibility” standard, provided that EPA identifies the technologies, treatment techniques, and other means by which water systems can achieve these reduced levels. EPA will also have to work directly with states to ensure that such technologies are “affordable” for small public water systems.[6] EPA can also build off changes in the revised rule. EPA should mandate more testing in schools—preferably every school within the water system’s area. EPA can also update the revised rule’s new transparency and public education and outreach requirements.

Biden’s early Executive Orders will facilitate the promulgation of an aggressive revision to the LCR. For example, Biden’s rescission of EO 13771, also known as the “2 for 1” order, and EO 13777 will enable EPA to promulgate rules that impose relatively large costs on regulated entities without having to eliminate other rules or reduce regulatory costs elsewhere. Biden’s EO on “Modernizing Regulatory Review” also directs OMB to issue recommendations to “fully account[] for regulatory benefits that are difficult or impossible to quantify,” and “ensure that regulatory initiatives appropriately benefit and do not inappropriately burden disadvantaged, vulnerable, or marginalized communities.” Both of these orders will facilitate EPA in promulgating revisions to the LCR that aggressively, and equitably, address lead in drinking water.

If the Biden EPA plans to promulgate new revisions to the LCR, it must decide whether to delay the Trump rule’s effective date. The revised rule is currently scheduled to go into effect on March 16, 2021. The Biden EPA can delay that date in order to reconsider the rule, i.e., drafting proposed revisions that will then go through the notice-and-comment rulemaking process. However, the delay must be reasonable and follow the relevant requirements under the Administrative Procedure Act. If EPA were to delay the revised rule’s effective date, the previous rule would remain in effect, including the 14-year timeline for lead service line replacement. EPA must therefore weigh the administrative costs of delaying the revised rule, including the lost benefits that would come from implementing the rule’s improved transparency and public education requirements, against the public health impacts of allowing the revised rule to take effect and the deceleration of lead service line replacement.

Finally, while many have urged Democrats in Congress to liberally use the Congressional Review Act (CRA) to revoke Trump-era regulations, this should not be used for the revised LCR. Under the CRA, a rule published within the last 60 legislative days does not take effect if Congress passes a resolution of disapproval signed by the President. Invoking the CRA may be appropriate to disapprove rules that restrict EPA’s regulatory authority or pose imminent threats to human health or the environment. However, given that the revised LCR does not limit EPA’s authority and is not substantially worse than the original rule, using the CRA could create more problems than it solves by creating uncertainty regarding EPA’s ability to issue “substantially similar” regulations in the future. Using the CRA on the revised LCR would also take up valuable legislative resources at the start of the Biden term. Thus, EPA should focus its efforts on getting the most it can out of the revised rule’s emphasis on transparency, education and treatment, while using notice-and-comment rulemaking to reduce the MCL, introduce lower health-based action levels, accelerate lead service line replacement nationwide, and increase testing requirements in schools.

 

[1] 42 U.S.C. §300g–1(b)(1)(A)(i)-(iii).

[2] 42 U.S.C. §300g–1(b)(4)(A)

[3] 42 U.S.C. §300g–1(b)(4)(B)

[4] 42 U.S.C. §300g–1(b)(4)(D)

[5] 42 U.S.C. § 300g-1(b)(3)(C)