Welcoming the EPA’s New Lead in Tap Water Rule: An Overview

The U.S. Environmental Protection Agency (EPA) issued a final Lead and Copper Rule Improvements (LCRI) regulation, which was published in the Federal Registeron October 30, 2024. The final rule made several significant improvements in the protection of the public from the long-standing and widespread scourge of lead-contaminated tap water. While the LCRI is imperfect and leaves some gaps that will require continued work, overall, the rule takes many important steps forward and gives us hope that we are closer to the day when lead-contaminated tap water in homes is no longer a nationwide crisis. These strengthening changes in the EPA's rules are also accompanied by unprecedented federal fundingfor lead pipe removal that was made available by the Bipartisan Infrastructure Law and other federal laws.

While the final rule is hundreds of pages long, which, to be honest, our team and I are still poring over and digesting, what follows is a summary of some of the key provisions in the rule:

What's good in the final LCRI

• A requirement that most water systems replace lead service lines within 10 years.The EPA established a requirement that the vast majority of water systems replace their lead pipes within a decade (starting three years from the date of promulgation, or October 2027). Service lines made of galvanized steel that are currently or were ever downstream of a lead pipe will also have to be replaced (because these pipes, called "galvanized requiring replacement," can capture and later release lead). The replacement requirement applies irrespective of whether the system exceeds a certain lead action level. This is the rule's most important innovation.
• Better lead testing requirements in homes.Water utilities will be required, starting in three years, 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 is expected to have a significant impact because the current monitoring requirements allow lead-contaminated water that has been sitting in the lead service line to be overlooked. This new monitoring approach is modeled after Michigan's groundbreaking rules; based on the experience in that state, this change will help to detect more of the lead that people are consuming in their tap water.
• A requirement that utilities complete inventories of lead service lines. Water systems had to submit their initial inventories of lead service lines by October 16, 2024 (under the prior rule from January 2021); under the final LCRI, they must annually update that inventory. In coming years, they will have to verify what each of their service lines are made of and replace their lead pipes (and galvanized lines requiring replacement).
• An action level for lead that is reduced from the previous 15 parts per billion (ppb) to 10 ppb. The reduction in the action level to 10 ppb should drive improved treatment to reduce the corrosion that releases lead and copper into tap water. It will also trigger other steps, including additional public notification and, in some cases, a requirement to make in-home filters available (see below). The action level is not an enforceable standard-it only triggers certain additional steps, including a review of the system's corrosion control. The action level of 10 ppb is, the EPA concedes, not a health-protective level-only zero lead is safe.
• A requirement that utilities must make in-home filters available in cases of repeated exceedances of the action level.If a water system exceeds the action level three times over a five-year period, it must make in-home, point-of-use water filters that are certified to reduce lead available to its customers. While we had urged the EPA to require water systems to deliver those filters to consumers after a single exceedance and to make it clear that the utilities had to provide them free, the EPA did not accept those recommendations. The agency said, "[The] EPA encourages systems to plan for making filters and cartridges available at no direct cost to low-income consumers, at a minimum." But the final rule does not require this.
• Provisions strengthening requirements for small water systems. The final rule provides that all small systems will have to replace their lead service lines. It also strengthens the January 2021 rule by providing that only small systems serving 3,300 people or fewer can qualify for weaker lead in water requirements (the previous Trump administration's rule allowed weaker protections for systems serving up to 10,000 people and allowed them to choose steps other than removing lead pipes to comply).

Gaps in the final LCRI

Despite these and other improvements, the final rule leaves some significant gaps that will need to be addressed through state or local action and federal legislation to fully achieve the goal of ensuring that the nation's lead contamination crisis is tackled. Weaknesses of the final rule include:

• The final LCRI fails to require water systems to pay for full lead service line replacement.In the final rule, EPA encouraged but did not require water utilities to pay for full lead service line replacement. The agency has questioned whether it has the authority to require water systems to pay for full service line replacement, a view with which we disagree. If water utilities fail to pay for full replacement, this will leave significant cost burdens on individual households that wish to see their entire line replaced and will make it difficult to reach the 100 percent replacement rate sought under the 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. That means that too often, lower-income people will continue to drink water contaminated by lead pipes. Because 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, state, and local authorities to step in to address this problem.
• The final LCRI fails to require utilities to replace lead pipes that they claim they can't access.The final rule provides that, to be required to replace a lead service line, a water utility must "control" the service line. Controlis defined as having legal or physical access to the service line. This may encourage some water utilities to disingenuously argue that they cannot access and therefore don't control their lead service lines and don't have to replace them. While the final rule requires the utility to demonstrate to the state's satisfaction that they don't have access, experience suggests that many states will do little to second-guess utilities' assertions. It is important to recognize that utilities generally required or expressly approvedthe use of lead service lines, and they can shut off water if a customer refuses them access to a lead service line. So, they clearly have access to these lead pipes. If not rigorously implemented and enforced, the EPA's definition of control could become a significant loophole. States, municipalities, and utilities should adopt simple measures-such as the ordinances in Newark, New Jersey,and Benton Harbor, Michigan-that would fully resolve these control issues and ensure all lead service lines are replaced (see our model ordinancebased on the Newark and Benton Harbor examples). 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. It is worth noting that the LCRI does not require individual homeowners to replace their lead service lines; the responsibility is placed on the water utilities to do so.
• An ambiguous definition of a lead service line.The final rule defines a lead service line to exclude many of the curved lead pipe connectors (often colorfully called lead "pigtails" or "goosenecks") that generally are a couple of feet long and connect the water main to the long straight portion of the service line. The rule language also appears to be somewhat ambiguous about whether utilities must replace the portion of the lead service line at the building inlet that reaches to the first shutoff or meter in the home (as required in Michigan's rules), though the EPA's preamble to the rule suggests that utilities would be expected to replace this portion of lead pipe. The final rule also does expressly require utilities to replace lead connectors ifthey come across them. The agency's preamble indicates that the rule "mandates full [lead service line replacement], which requires the removal of all lead material along the service line and associated lead connectors." The EPA should clarify in guidance that full service line replacement means not only replacing lead connectors but also the entire portion of the lead service line at the building inlet, and state and local officials should adopt a service line definition like that in the Michigan rules (see Mich. Admin. Code R. 325.10108(e)).
• The final LCRI allows some utilities to get an extension for removing their lead pipes for decades beyond the 10-year deadline.The final rule includes a provision that could allow hundreds of water systems that have a high percentage of lead pipes to get extensions of as much as an additional decade (and in rare cases, a bit more time) to replace their lead pipes. Thankfully, the final rule deleted the proposal's deeply problematic multi-decade extension provision that would have been available to up to seven systems nationally that have huge numbers of lead service lines. The deleted extension provision would have allowed a city like Chicago 40 to 50 yearsto replace its lead pipes. Under the final rule, Chicago will get about 20 years to replace all of its lead pipes-still longer than we think is advisable but far less of an extension than the EPA initially had proposed.
• The final LCRI does not significantly improve the proposed public education and outreach requirements. The final rule makes modest improvements in public education and the mandatory language on lead health effects. However, the rule does not require water systems to be clear with the public that even utilities in compliance with the rule are still likely to have many consumers (like those with lead service lines or lead in their internal plumbing) who will consume health-threatening lead-contaminated tap water. The final rule also does not include the strong outreach requirements we had urged to ensure that all water consumers, including renters, are informed. Nor does it require clearer materials emphasizing that not only lead service lines but also much indoor plumbing contains lead that can leach into tap water, and that point-of-use filters independently certified for lead reduction may be advisable, especially for people at elevated risk from lead consumption.
• Drinking water contamination in schools and childcare facilities is not meaningfully addressed. The final rule only requires water systems to offer to test in some schools and childcare centers. If the facility agrees to testing, the rule requires water systems to conduct only a single lead test at just five locations in each school, and to test just two locations in each childcare center, once in the first five years. There is no mandatory retesting and no required notice to parents and staff. Lead problems will remain undetected, and children and staff will be 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 asked the EPA to require that utilities 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. Such a comprehensive ongoing monitoring requirement would have created the incentive for expeditious resolution of lead issues by installing filters. We know that filters greatly reduce costscompared to ongoing comprehensive testing and removal and replacement of lead-containing pipes and fixtures. Because effective measures to address lead in schools and childcare centers were not included in the final LCRI, it is important for Congress to address this gap. In the meantime, states and local governments-which in most cases (with the exception of a few places like Michigan and Washington, D.C.) 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 raised by the hundreds of pages in the final LCRI Federal Register notice. NRDC, Earthjustice, and several of our frontline partner groups filed lengthy and detailed commentsaddressing the issues discussed above, among many other concerns when the proposal was still being reviewed. The progress that we have made so far, including in getting the EPA to finalize significant improvements in the LCRI, has only come about because of the tireless advocacy of community activists in Benton Harbor, Newark, and Flint, Michigan, as well as many other communities who have taken the time to file comments and press their government to finally stop neglecting this public health crisis.

Several of the important improvements included in the EPA's final LCRI deserve praise and provide much hope and will 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 in 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 threatens generations of our children.

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