Timothy Male and Sridhar Vedachalam
Using toxic lead to make water pipes seemed like a good idea for the 1,000+ years before we knew that lead was extremely harmful, especially to children’s brain development and also to cardiac health of all people. Now we know that no amount of lead exposure is safe. It is therefore very disappointing that the Environmental Protection Agency’s new regulation for toxic lead (and copper) in water and water pipes does not direct more proactive work to remove those pipes.
There are around 6-10 million toxic lead water pipes installed in homes, schools, and workplaces around America (be thankful not to live in the UK where approximately 40% of dwellings have lead pipes or elsewhere in Europe where that number varies from 5 to 50%).
Removing those pipes is a solvable health problem in under a generation and is necessary if we want to remove the threat of lead in drinking water. Former US EPA Administrator Scott Pruitt apparently thought so, declaring a goal of eliminating lead pipes within a decade. We have few similar opportunities – usually some conflicting interest gets in the way or no technological solution exists for the problem. In contrast with lead pipes, we have safer materials with which to replace them, replacement generally costs a few thousand dollars per home, and the work to do it is straightforward construction that requires no new technology and supports good, high-paying jobs.
Today, the Trump administration finalized a new federal Lead and Copper Rule (LCR) that is certainly better than the old regulation, but will lead to far less progress in getting toxic lead out of drinking water systems than the country needs. The rule will not achieve the goal of eliminating lead pipes in a generation.
The new rule keeps the action level for lead at 15 parts per billion (90% of the samples must test below 15 parts per billion to remain below the action level). Public health advocates have called for a much lower level. The rule does add a trigger level of 10 parts per billion that results in reexamination of corrosion control measures (a treatment technology that limits lead from leaching out of the pipe and into water) and requires lead pipe replacement if the state requires it.
It’s a little bit like if, instead of having a national mandate for motor vehicles to have seat belts, car models with lower accident rates were given a pass on seat belts and only new Corvettes and other models with high likelihoods of being in accidents had to have them.
Under both the old and new rules if the action level is triggered, the utility must begin replacing lead pipes. Under the old rule, the utility must replace 7% of known/suspected lead pipes in a year but they can count partial line replacements as replaced and they can use repeated testing – instead of pipe replacement - at homes with previous elevated test results as a strategy to get below the action level. After two consecutive, six-month periods of retesting and not triggering that action level, utilities can stop the pipe replacement process, if they have even begun to do so. These and other loopholes basically mean that toxic lead water pipe replacement was rarely mandated.
Under the new rule, the utility must replace 3% of the total known/suspected and unknown pipes annually for two years, but they cannot count partial line replacements as replaced nor can they count retesting as replacement, and they can't stop replacements until they meet that percentage. After four consecutive six-month periods of retesting and not triggering that action level exceedance, utilities can stop the replacement process.
There are additional important changes in the revised rule:
1. Under the old rule, water utilities could sample houses with or without lead pipes, and those without lead pipes could make up 50% of the sample. This significantly reduced the likelihood the sampling would exceed the action level. Under the new rule, water utilities are required to test more homes and all test sites need to be from buildings with known or likely lead pipes.
2. The new rule also treats unknown pipes as lead pipes until proven otherwise. These are pipes that may be lead or not, but no one has yet confirmed the material. This incentivizes water systems to quickly figure out their unknown pipes. This requirement will trigger higher replacement rates for any utility that exceeds the action level, at least until their inventory of pipes is complete.
3. In an improvement from the draft, the final rule tightens requirements for approximately 5,000 utilities that serve 3,300-10,000 people.
4. The new rule creates an annual requirement for the utility to inform every customer who has a lead pipe and this is likely to be crucial in creating consumer pressure for faster replacement (and a different notice for unknown pipes).
Although the rate of replacement is lower (3% versus 7%) under the new rule, it seems much more likely that closed loopholes and other changes will cause more utilities to hit the action level and start replacing pipes. And the changes that make replacement requirements a percentage of known lead + unknown pipes, and extending the replacement period for at least two years, make higher levels of mandatory replacement more likely. The examples below show real inventory data from a small subset of utilities and what would happen if the action level is triggered and utilities have to keep replacing for the minimum period required (one year under the old; two years under the new rule). Essentially, for any utility that has more pipes of unknown material than known or likely lead pipes, the replacement rate under the new rule will be higher (if the action level is triggered).
* This assumes that under the old rule, utilities may replace lead pipes in year 1, meet the threshold for compliance and take no action in year 2.
The new rule is certainly better than the old rule, but it will fail to achieve the goal that former EPA Administrator Scott Pruitt declared of eliminating toxic lead pipes within a decade.
While a more aggressive rule would get us closer to having lead-free drinking water, we believe the incoming Biden-Harris administration should stick with this rule, begin seeking minor amendments, and focus intensely on its fast implementation. We recommend this because there are important ways the new leadership at EPA, working with Congress, can make the best of this rule to eliminate lead pipes, reduce lead exposure, bring LCR violations down, and help utilities increase customer trust.
Among the key steps we believe EPA, Congress, and the administration should prioritize around lead in water:
1. Establish additional financial or regulatory incentives for utilities who proactively launch replacement plans;
2. Offer technical support for small communities and utilities struggling to find lead pipes and pay for their replacement;
3. Provide administration support for new federal funding to match state and ratepayer funding for full lead service line replacement;
4. Aggressively encourage the use of the Drinking Water State Revolving Loan Fund to fund full replacement of lead service lines, including providing replacement to lower income residents at no cost; and
5. Do more to help states and utilities find efficiencies and innovations that lower unit costs for replacement.
At the direction of Congress, EPA will release a new cost estimate in 2023 for full national replacement of all lead pipes, which can help set the stage for a major rule revision. Based on progress achieved from 2021-2023 and as compliance is beginning, EPA should undertake a revision process beginning in 2023 that reflects early data on improved accuracy of local inventories, reduction in number of pipes of unknown material, and number of action level triggers during the previous years. Revising the rule will take a few years, but we believe rule revisions at that time should seek to guide faster progress in replacing lead pipes, not just for utilities that have hit the current action level.