Lead in drinking water: Change (and opportunity!) on the horizon
Regulatory challenges and serious public health consequences associated with lead in drinking water have been the topic of national discussion in recent years, particularly following the drinking water crisis in Flint, Michigan. Flint captured national attention starting in 2014, when an attempted cost-saving measure ultimately resulted in highly elevated levels of lead in the city’s drinking water, causing devastating health effects to the community, in particular to thousands of children. While there is consensus that no amount of lead in drinking water is safe or acceptable, there has been little by way of progress or a solution to the challenges that lead in drinking water present—until, perhaps, now. The U.S. Environmental Protection Agency’s (EPA) recent action in promulgating revisions to its Lead and Copper Rule (LCR), combined with a notable influx of funding for public water infrastructure projects (specifically for lead service line replacement), most significantly through the Infrastructure Investment and Jobs Act (Public Law 117-58), signal that impactful change may be on the horizon.
With U.S. EPA’s regulatory changes set to go into effect by 2024 (and additional future changes promised by U.S. EPA in short order) and this influx of funding opportunities, municipalities would be wise to consider at present how they can prepare for these changes, and get ahead of the curve by taking advantage of funding opportunities now.
Who does this impact?
Most directly impacted are public water systems as the entities with the regulatory obligation to provide safe drinking water to the portion of the public they serve. Under Ohio law, public water systems are generally defined as systems which provide water for human consumption through pipes or other constructed conveyances if the system has at least 15 service connections or regularly serves an average of 25 people per day for at least 60 days of the year.1
Some municipalities may not operate their own drinking water program, but may contract with another, often larger public entity to provide drinking water to residents. Often the municipality in this instance may own its own water lines and other infrastructure. Such ownership does not make that entity a public water system – the regulatory obligations imposed by the Safe Drinking Water Act and Ohio’s associated drinking water laws and rules apply to the public water system itself. However, certain contractual obligations may still fall on such municipality or public entity (e.g., the requirement to replace infrastructure when needed—such as lead service lines) as required to be protective of public health. And, of course, municipalities always have the ultimate goal and obligation of ensuring that their constituents have access to safe drinking water.
Regulation of lead in drinking water (currently)
In Ohio, Ohio EPA administers its drinking water laws and rules in accordance with the federal Safe Drinking Water Act by virtue of its delegated authority from U.S. EPA.2 Ohio EPA’s drinking water laws and rules include requirements related to lead and copper consistent with the federal LCR, which apply directly to public water systems and certified laboratories. The rules impose standards for lead and copper monitoring, require timely public notification of monitoring results, and ensure that public water systems optimize corrosion control treatment.
Lead has shown to be one of the more difficult contaminants to regulate because it seldom occurs naturally in drinking water supplies themselves, such as rivers and lakes. Rather, lead can enter drinking water as a result of the corrosion of materials in the water distribution system and household plumbing that contain lead. Causes of corrosion may include dissolved oxygen, acidity (low pH) and low mineral content in the water. Materials that may contain lead include lead-based solder used to join copper pipe, brass and chrome-plated brass faucets, and, in some cases, lead service lines (i.e., pipes made of lead that connect a building to the water main).
Public water systems are responsible for monitoring their water for lead and copper. However, because corrosion is the primary cause of lead and copper entering drinking water, federal and state rules require that lead and copper compliance samples also be taken at residential taps within the distribution system and sent to Ohio EPA certified laboratories for testing.
The current regulations have been criticized for containing ambiguous requirements that lead to inconsistent interpretation and enforcement; allowing for continued use of lead service lines; permitting violations that disproportionately impact low-income, vulnerable populations; and maintaining a confusing and weak lead action level (currently set at 15 ppb in more than 10% of customer taps sampled).
U.S. EPA’s LCR amendments – Change is coming!
U.S. EPA announced final revisions to its LCR in December 2020. These were the first major revisions to the federal rule since it was promulgated in 1991, and were widely understood to be a response to several well-publicized drinking water crises in recent years, including in Flint, Michigan.
Upon the arrival of the Biden administration, on June 10, 2021, U.S. EPA signed a final rule to extend the effective date of the LCR revisions to December 16, 2021, with the stated intent to allow for time to review the LCR revisions and ensure that they protect families and communities, particularly those that have been disproportionately impacted by lead in drinking water, consistent with the Biden administration’s focus on environmental justice.3 U.S. EPA also indicated its desire to continue conducting public information sessions and receive feedback from impacted parties and communities. U.S. EPA extended the revised LCR’s compliance deadline to October 16, 2024, to ensure that drinking water systems and states with primacy (such as Ohio) will have a full three years to take actions needed to achieve regulatory compliance. On December 16, 2021, the LCR revisions went into effect, following conclusion of the stakeholder process.
One key revision in the LCR is a requirement that lead service line inventories be developed in order to achieve 100 percent removal of lead service lines. While the regulatory obligation to submit such inventories falls on the public water system, achieving these inventories accurately and to completion will in many cases require cooperation among many local stakeholders in each community. U.S. EPA has stated its commitment to issue new guidance for the LCR revisions, specifically including for development of lead service line inventories, including best practices, case studies and templates.
Other key revisions to the LCR include increased testing, more aggressive monitoring protocols, more and complete lead service line replacements, testing of elementary schools and child care facilities, and identification and publication of lead service line maps.
Forthcoming LCR improvements
On December 16, 2021, the same day that the LCR revisions went into effect, U.S. EPA announced that the LCR revisions are intended to support near-term development of actions to reduce lead in drinking water (specifically, through lead service line inventories and replacement of lead service lines), but that U.S. EPA will also develop an additional, new proposed rulemaking to further strengthen key elements of the LCR. More specifically, U.S. EPA stated its conclusion that there are significant opportunities to improve the rule to support the overarching goal of proactively removing lead service lines and more equitably protecting public health. U.S. EPA intends to finalize the forthcoming LCR improvements prior to the initial compliance date in the LCR – October 16, 2024.
U.S. EPA has stated that its focus areas for this forthcoming rulemaking include:
- Replacement of all lead service lines to be achieved “as quickly as feasible” while considering the agency’s statutory authority and conducting an economic analysis.
- Assessment of how to strengthen compliance tap sampling requirements.
- Evaluation of current action and trigger levels.
- Prioritization of historically underserved communities that have been disproportionately impacted by lead in drinking water.4
Opportunities for funding
Numerous state and federal funding opportunities are available for drinking water infrastructure projects. At the state level, these include Ohio’s Water Supply Revolving Loan Account (offering unrestricted principal forgiveness, administered by Ohio EPA’s Division of Environmental and Financial Assistance) and Governor DeWine’s H2Ohio water quality initiative. At the federal level, this includes the American Rescue Plan Act (ARPA) and the Infrastructure Bill. ARPA funds (with a combined $350 billion to states and localities) are eligible for lead service line and lead faucet and fixture replacement. And significantly, the Infrastructure Bill specifically authorizes $44 billion in new funding for water and wastewater infrastructure in particular. This includes:
- $15 billion for replacement of lead pipes and service line projects
- $11.7 billion for the Drinking Water State Revolving Fund
- $5 billion to help small and disadvantaged communities address emerging drinking water contaminants
- $200 million for schools to conduct lead testing and remediation of drinking water
This influx of funding provides a significant opportunity over the next handful of years for municipalities to prioritize drinking water infrastructure projects in advance of the anticipated increased regulatory oversight over drinking water infrastructure to come in the near term.
1 Ohio Revised Code 6109.01(A), Ohio Administrative Code 3745-81-01(P)(11).
2 These laws and rules can be found at Ohio Revised Code Chapter 6109, and Ohio Administrative Code Chapters 3745-7, -9, -34, and -81 through -96.
3 86 FR 31939 (June 16, 2021).
4 U.S. EPA, Stronger Protections from Lead in Drinking Water: Next Steps for the Lead and Copper Rule (December 2021).
This is for informational purposes only. It is not intended to be legal advice and does not create or imply an attorney-client relationship.Download PDF