EPA’s proposed Lead Pipe Rule will require total removal of lead pipes from municipal drinking water systems  

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Van Nest

On November 30, 2023, the U.S. Environmental Protection Agency (“EPA”) released proposals to improve the Lead and Copper Rules (“LCRI”) that require the removal of all lead pipes from municipal water systems within 10 years. The rule is a draft and is subject to public comment and possible revisions. However, if the rule is finally passed, it will cost an estimated $45 billion, according to the EPA. External third-party estimates place the cost of removing and replacing lead pipes from municipal water systems at over $115 billion.

Lead pipes for drinking water supply have been regulated by the Safe Drinking Water Act (“SDWA”) since 1975. In 1986, amendments to the SDWA banned lead pipes in drinking water systems. The rule was changed in 1991 to require the removal of lead-containing utilities when tests showed that lead in water systems exceeded 15 parts per billion (“ppb”). The EPA has made cleanup of lead pipe systems a priority after drinking water in Flint, Michigan was contaminated with lead. After the city switched its water source, lead contamination occurred in the drinking water, which led to corrosion of the lead pipes.

The proposed rule is the result of legal challenges by environmental groups against the 2021 changes to the LCRI. Last December, the EPA decided to abandon its defense of the rule and pledged to strengthen the rule by fall 2024. This is consistent with other “sue-and-settle” challenges to environmental agency actions brought by environmental groups in recent years, in which the EPA concedes challenges to existing or proposed rules and settles itself through wide-ranging concessions to litigating environmental groups.

In announcing the rule, EPA Administrator Michael Reagan said: “[t]This is a public health issue that unfortunately spans generations and is a problem that disproportionately affects low-income communities. Our proposed improvements are a major step forward.” Additionally, the EPA notes potential cognitive and health problems that can occur when excessive lead is present in pipes. Although lead pipes have been banned since the 1980s, it is estimated that there are approximately 9.2 million lead pipes in the United States.

In addition to the required replacement of lead pipes from the street water main to the homes, the code contains other components that address lead in water pipes. The rule lowers the lead pipe action limit from 15 ppb to 10 ppb for municipal testing and lead improvement efforts. The rule also changes the lead testing process so that municipalities must take the first draw and the fifth liter from the tap to determine whether the water in the lead pipes is contaminated with lead. Significantly, the rule also requires municipalities to complete inventories of key utility lines by October 2024. The regulation also prohibits municipalities from partially replacing leading supply lines.

As expected, environmentalists, some of whom sued the EPA over the previous version, are praising the new rule. Natural Resources Defense Council Senior Strategic Director Erik Olson called the rule “a glimmer of hope that we are moving toward the day when every family can be confident that the water coming from their kitchen faucet is safe, regardless of how much money they spend.” she has or what her zip code is.” Mona Hanna-Attisha, a professor and pediatrician at Michigan State University who has been involved in researching the Flint water crisis, said: “[i] I am so happy on behalf of children everywhere – children in Flint, in Newark, Chicago, Milwaukee, Washington DC and Jackson and in places we know and don’t know.”

The Association of Metropolitan Water Agencies (“AMWA”) stated that its members are “committed to providing clean and safe drinking water to all Americans,” but noted that lead pipe removal requires collaboration between water systems and homeowners as well requires 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 needed to achieve this ambitious goal and to work toward eliminating the real barriers that exist for many utilities. “

Although the EPA has been pressured to require removal of lead pipes since the Flint, Michigan, water crisis, the scope and cost have presented a significant obstacle. The EPA’s announcement points to funding from the bipartisan infrastructure bill passed March 15 allocated billions of dollars to remove lead pipes. While the proposed rule does not require municipal water utilities to remove lead pipes on private property, to access the grants, municipalities must remove both public and private pipes. EPA also notes an additional $11.7 billion in drinking water funding available to states under the Drinking Water State Revolving Fund that can be used for this purpose.

Despite the EPA’s reference to funding sources, AMWA warned that the requirement to replace all lead service lines “would represent a massive, unfunded mandate.” In addition, it says that if municipalities do not receive funding under the Infrastructure Act, they “will likely have to resort to higher customer tariffs”. Similarly, former EPA officials such as Brent Fewell, an EPA deputy assistant administrator during the George W. Bush administration, noted that “[a]As we have committed more resources, it is unrealistic and a pipe dream to believe that the removal of all leading service lines will be completed in 10 years. While a laudable goal, the LCRI deadline is simply too tight given the current level of funding and technical assistance available to communities.”

While some cities such as Newark, New Jersey, have made progress in replacing lead pipes in the water system, the nation’s largest cities face significant challenges in implementing the ambitious proposal. It is estimated that major cities like New York and Chicago have more lead pipes than any other area. Based on the scope of work required, the LCRI 10-year exemptions may apply to water systems that need to replace more than 10,000 lead service lines per year.

Whatever the final LCRI rule looks like after public comments and EPA adoption, the rule will likely be one of the most expensive regulatory actions ever ordered by the federal government. There is little doubt that the aggressive schedule will result in financial hardship for municipal water systems and increased costs for 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. His practice focuses on environmental law, development, construction and commercial litigation.

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