On November 30, 2023, the United States Environmental Protection Agency (“EPA”) issued its proposed Lead and Copper Rule Improvements (“LCRI”) that will require the removal of all lead pipes from municipal water systems within ten (10) years. After extensive public comments, on October 8, 2024, EPA issued the final rule. According to EPA it will cost an estimated $45 billion. External estimates by third parties put the cost of removing and replacing lead pipes in the country in excess of $115 billion.
Along with the final LCRI, EPA announced $2.6 billion in drinking water infrastructure funding under the Bipartisan Infrastructure Law. The funding will be part of the Drinking Water State Revolving Loan Fund (“DWSRF”) and will be available to support lead pipe inventory and replacement projects. According to EPA, about half of the funding must be provided to disadvantaged communities as grants or loan forgiveness that will not need to be repaid.
The cost to replace municipal water lines may be staggering. In promulgating the rule, EPA estimated that the annual cost will be between $1.47 and $1.95 billon. The American Water Works Association estimated that the cost to replace lead service lines nationally could exceed $90 billion. Consequently, the Association noted that the gap between EPA’s estimates and federal funding will have to be “filled by ratepayers if more federal money doesn’t come through.”
Congress passed the Safe Drinking Water Act (“SDWA”) in 1974 to provide national standards for drinking water. Amendments in 1986 added several requirements, including prohibiting lead pipes in new drinking water systems. The rule was amended again in 1991 requiring removal of lead service lines when testing revealed that lead in water systems exceeded 15 parts per billion. EPA has made addressing lead pipe systems a priority after drinking water in Flint, Michigan was contaminated with lead after the city switched its water source in 2014, causing lead pipes to corrode. The updated rule is a result of environmental groups legal action against 2021 amendments to the LCRI. EPA decided to drop defense of the 2021 rule and promised to strengthen the rule by fall 2024.
In announcing the final rule, EPA Administrator Michael S. Regan said that “[w]e’ve known for decades that lead exposure has serious long-term impacts for children’s health. And yet, millions of lead service lines are still delivering drinking water to homes.” Additionally, EPA points to potential cognitive issues and health problems that may occur if excessive levels of lead exist in lead lines. Although lead pipes have been prohibited since the 1980s there are estimated to be about 9 million lead service lines in the United States.
In addition to requiring replacement of lead pipes from the water mains in the street to houses, the rule has other components to address lead in water lines. The rule reduces the action level for lead pipe from 15 parts per billion (“ppb”) down to 10 ppb for municipal testing and action to improve lead levels. The rule also changes the lead testing procedure so municipalities will have to sample the first draw and 5th liter from the tap to determine if water sitting in the service lines has been impacted by lead. The draft rule also required municipalities to complete inventories of lead service lines by October 2024. The final rule requires municipalities to update the inventories annually. The rule also prohibits municipalities from partially replacing lead service lines.
Although there has been pressure on EPA to require removal of lead pipes since the Flint, Michigan water crisis, the scope and cost has been a considerable obstacle. EPA’s announcement points to funding from the Bipartisan Infrastructure Law which dedicated $15 billion for lead pipe removal. While the proposed rule does not require municipal water systems to remove lead service lines on private property, to access the grant money the municipalities must remove both public and private lead lines. EPA also points to another $11.7 billion in drinking water funding that is available to states under the DWSRF that can be used for this purpose.
While some cities such as Newark, New Jersey, have made progress replacing lead pipes in the water system, the nation’s largest cities face substantial challenges meeting the ambitious proposal. Large cities such as New York and Chicago are estimated to have more lead pipes than other areas. The draft LCRI provided exemptions for the 10-year deadline for water systems that must replace more than 10,000 lead service lines per year. The final LCRI eliminated that exemption but provides a deferral option based on the percentage of lead lines. In particular, the final rule sets the deferral at 39 annual replacements per 10,000 service lines each year. EPA’s final rule also compels states to monitor that replacements are done at the fastest feasible rate, with a 3-year progress report to EPA. In addition, if deferral is appropriate for large water systems, the state agency must report that decision to EPA.
However one views the objective of the final rule, the LCRI is likely to be one of the most expensive regulatory actions by the federal government. There is little doubt that the aggressive schedule will cause financial hardship to municipal water systems and increased costs to water users.
George S. Van Nest is a Partner in Underberg & Kessler LLP’s Litigation practice group and chair of the firm’s Environmental and Municipal Law practice groups. He focuses his practice in the areas of environmental law, municipal law, development, construction, and commercial litigation.
Reprinted with permission from The Daily Record and available as a PDF file here.
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