What to Expect in the EPA’s New Lead in Tap Water Rule

Brian Maranan Pineda for NRDC

The Environmental Protection Agency (EPA) is expected to issue a final Lead and Copper Rule Improvements (LCRI) regulation soon. It is widely anticipated that the final rule will make major improvements in the protection of the public from the long-standing and widespread scourge of lead-contaminated tap water. It is crucial that the rule be issued by October 16, 2024, or the previous administration's deeply problematic version of the lead in drinking water rule, issued on January 15, 2021 (which we, our partners, and 10 states sued to challenge), will become effective on that date.

The EPA's lead in drinking water rules have a long and troubled history, stretching back to the weak and complex 1991 Lead and Copper Rule (LCR). A previous EPA interim standard issued in 1975 was also ineffective at controlling lead contamination.

After a careful EPA review of the January 2021 lead in tap water rule known as the Lead and Copper Rule Revisions, the agency concluded in late 2023 that significant upgrades were needed and issued a much-improved proposed LCRI rule. The proposalprovided us hope that we may see a day when lead-contaminated tap water in homes is no longer a nationwide crisis. The rule included significant strengthening changes in the EPA's rules, which thankfully are accompanied by unprecedented federal fundingfor lead pipe removal under the Bipartisan Infrastructure Law and other federal laws. But the LCRI proposal also had some gaps that we urged the agency to address.

Here's what to watch for in the final EPA LCRI

What we hope will be good

We are hopeful that the final rule will embody the following important improvements:

• A requirement that most water systems replace lead service lines within 10 years. The EPA proposed to establish a general requirement applicable to most water systems to replace their lead pipes. This would be required irrespective of whether the system exceeds a certain action level. This is the proposal's most important innovation, and we are hopeful that the final rule will include this requirement.
• Better lead testing requirements in homes, so water utilities will have to test both the first liter of water from the tap and the fifth liter of water coming from the tap. The latter represents water that has been sitting in the lead service line that may have high lead levels. This requirement is likely to have a significant impact, because the original 1991 LCR monitoring requirements allow lead-contaminated water that has been sitting in the lead service line to be overlooked. The previous administration's 2021 rule allowed lead from indoor (premise) plumbing to be ignored under its monitoring scheme. If finalized, the new approach requiring both first- and fifth-liter water to be tested, modeled after Michigan's groundbreaking rules, will help to detect much of the lead from both sources.
• A requirement that utilities complete inventories of lead service lines, regularly update their inventory, and verify what pipes of unknown material are made of by a specific deadline. Under the previous administration's January 2021 rule, these initial inventories were due on October 16, 2024, and would have to be updated in coming years. We expect the new LCRI to retain that deadline for completion of initial inventories and the requirement to update them in the future.
• A reduced action level for lead from the previous 15 parts per billion (ppb) to 10 ppb, a measure that should drive improved treatment to reduce corrosion that releases lead and copper into tap water. The action level is not an enforceable standard-it only triggers certain additional steps such as a review of the system's corrosion control. The action level of even 10 ppb is also, as the EPA concedes, not a health-protective level-only zero lead is safe. In cases of repeated exceedances of the action level, the proposal included a requirement that utilities make water filters available for certain homes, though it was not clear that they needed to be provided for free. We are hoping that the final LCRI rule will reduce the action level to 10 ppb and include the requirement that water utilities pay to supply water filters if the water supply repeatedly exceeds the action level.
• Provisions strengthening requirements for small water systems,so that all small systems will have to replace their lead service lines. The proposal tightened up the January 2021 rule so only systems serving 3,300 people or fewer would qualify for weaker lead in water requirements. (The previous administration's rule allowed even weaker protections for systems serving up to 10,000 people and allowed them to choose steps other than removing lead pipes to comply.) We are hoping that the final rule will include these important improvements to the previous 2021 rule, including a requirement that all small systems must replace their lead service lines.

Questions to be answered in the final LCRI

Despite these and other improvements, the proposal included some significant gaps that we are hoping the final rule will address to achieve the goal of ensuring that the nation's lead contamination crisis is more fully tackled. Weaknesses of the proposal that we hope the final rule will fix:

• Will the final LCRI require water systems to pay for full lead service line replacement?In its proposal, the EPA questioned whether it has the authority to require water systems to pay for full service line replacement, a view with which we disagree. If the final rule does not require water utilities to cover the full cost of lead pipe replacement, this could leave significant cost burdens on individual households and would make it more difficult to reach the 100 percent replacement rate sought under the new rule. This raises environmental justice concernsbecause low-income homeowners are often unable to afford to pay for lead pipe removal, and landlords may refuse to do so, meaning that too often, lower-income people continue to drink water contaminated by lead pipes. If the EPA's final LCRI fails to require utilities to pay the costs of full lead service line replacement, it will be necessary for utilities, Congress, and state and local authorities to step in to address this problem.
• Will the final LCRI require utilities to replace lead pipes that they claim they can't access or don't control?We are hoping that the final rule will require utilities to replace all lead lines, even if they disingenuously argue that they cannot access or don't control them. It is important to recognize that utilities generally required or expressly approvedthe use of lead service lines, and they can shut off the water if a customer refuses them access to a lead service line. So, they clearly control these lead pipes. If the final rule does not address this problem, it could become a big loophole. We are hopeful that the final rule will clarify that utilities must replace all lead service lines used by their system from the water main into the first shutoff or meter in the home (as required in Michigan's rules) and must use all their authorities to ensure they can do so. If the final rule does not address this problem, simple measures such as the adoption of a local ordinance like those in Newark, New Jersey,and Benton Harbor, Michigan,would fully resolve these control issues and ensure all lead service lines are replaced (see our model ordinancebased on the Newarkand Benton Harborexamples). It is notable, on the flip side, that a deeply troublesome proposed ordinancein New York City would take the position that the utility has no responsibility to replace lead service lines itself, unfairly seeking to dump the whole responsibility to replace them on individual property owners.
• Will the final LCRI allow some utilities to get an extension for removing their lead pipes for decades beyond the 10-year deadline?The proposal included two provisions allowing extensions of the deadline. The first would be available to three to seven systems nationally with 80,000 to 100,000 lead service lines; so under the proposal, a city like Chicago could get 40 to 50 yearsto replace its lead pipes. A second proposed provision would have allowed 600 to more than 2,100 water systems across the country that have a relatively high percentage of lead pipes to get extensions for as much as an additional decade or more. We are hoping that the final LCRI will tighten up and fix these provisions; we cannot allow more generations of kids to continue drinking leaded water at home.
• Will the final LCRI include better public education and outreach? While the proposal made modest improvements in public education and the mandatory language on lead health effects, we are hoping that the final rule will be clear that even water systems in compliance are likely to have many consumers (like those with lead service lines) who get health-threatening, lead-contaminated tap water. We're also hoping the final rule will include stronger outreach requirements to reach all water consumers, including renters, and that the materials will note that not only lead service lines but also a lot of indoor plumbing contains lead that can leach into tap water.
• Will the final rule require that drinking water contamination in schools and childcare facilities be meaningfully addressed? The proposal only required water systems to offer to test in some schools and childcare centers. If the facility agreed to testing, the proposal required a single lead test at just five locations in each school and just two locations in each childcare center, and only once in the first five years, with no mandatory retesting and no required notice to parents and staff. Lead problems would remain undetected, and leave children unprotected. Even if notified of the test results, parents, children, and staff could be misled into thinking their water is safe, since lead levels can vary enormously from tap to tap and day to day. We are hoping that the final LCRI will require utilities to either comprehensively and regularly test all water outlets at all schools and childcare centers or work with these facilities to help them install water filtration stations. This would create the incentive for expeditious resolution of lead issues; filters greatly reduce costs compared to removal and replacement of lead-containing pipes and fixtures. If effective measures to address lead in schools and childcare facilities are not included in the final LCRI, it will be important for Congress to address this gap. In the meantime, states and local governments, which in most cases have taken little or no action to require filters or remedy lead contamination problems in schools and childcare centers, should be stepping in to address the issue.

This is by no means a comprehensive review of the issues we expect to be raised in what is likely to be hundreds of pages in the final LCRI Federal Register notice. NRDC, Earthjustice, and several of our frontline partner groups filed lengthy and detailed commentsaddressing these and many other issues in the proposal. The progress that we have made so far, including in getting the EPA to propose significant improvements in the LCRI, have only come because of the tireless advocacy of community activists in Newark, Benton Harbor, and Flint, Michigan, along with many other communities that have taken the time to file comments and press their governments to finally stop neglecting this public health crisis.

There are several important improvements that we expect to be included in the EPA's final LCRI that deserve praise and provide much hope. Still, we anticipate that significant strengthening changes will be made in the final rule, to help ensure that tens of millions of Americanswho are drinking water from water systems that have significant lead contamination issues are protected.

Every person has a right to safe and affordable drinking water, no matter their race, income, or zip code. The combination of a strong LCRI and the billions of dollars in federal funding from the Bipartisan Infrastructure Law will be an important legacy accomplishment that will begin to reverse the massive public health disaster of lead-contaminated tap water that has threatened generations of our children.

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