New Lead and Copper Rule: Updates and Impacts for Public Water Systems
by Nathan Vassar, Lauren Thomas, and Justin Cias
A set of drinking water rules that could impose significant operational and cost requirements on public water systems remains pending, as the administration change has caused the Lead and Copper Rule (“LCR”) to undergo additional analysis. The much-publicized Lead and Copper Rule Revisions (“LCRR”) will remain on hold now, at least for a few more months. These updates, once adopted, will modify the Lead and Copper Rule (“LCR”), which is targeted at reducing the risk of human exposure to lead and copper in drinking water supplies. The LCRR began in the years following the Flint, Michigan Water Crisis, and the Trump Administration unveiled the LCRR in 2019. Shortly before the end of President Trump’s term, EPA published the LCRR with an effective date of March 16, 2021. However, EPA has since delayed the effective date of the rule until June 17, 2021, and intends to open an additional comment period during that time. A discussion of several key changes of the LCR may assist PWSs in anticipating new requirements when the rule goes final (recognizing that additional updates are likely).
The first key change made to the LCR requires public water systems (“PWS”) to create lead service line (“LSL”) inventories. The LCR requires all PWSs to identify which LSLs across the distribution system are composed of lead – with the initial inventory complete by January 2024 (although there is potential for this to be extended to September 2024). The purpose of this change is to have PWSs identify whether their service lines are one of the four following categories: “lead,” “non-lead,” “galvanized requiring replacement,” or “status unknown.” For LSLs categorized as “status unknown,” such LSLs are considered by default to be lead material. PWSs with services lines classified as needing replacement must submit a service line replacement plan to the state regulator by January 2024. Furthermore, PWSs serving a set number of people must maintain a minimum of a three percent annual replacement rate for their LSLs, or take certain actions to remedy their replacement rate if they fail to meet the three percent minimum.
Another important update to the LCR is the new lead trigger level for PWSs. The lead trigger level is defined as the amount of lead found in water from a PWS, measured in micrograms per Liter (µg/L). The new trigger level is 10 µg/L, chosen as a reasonable concentration level that falls below the highest level, or action level, (15 µg/L) and above the minimum level (5 µg/L) where PWSs are required to begin taking action to address lead in the water supply.
Notice/public outreach is another critical change to the LCR. In event of an exceedance of the lead trigger level, small PWSs (serving less than 10,000 people) that are using point-of-use devices must report to homeowners and building managers within 24 hours of receiving results indicating a lead trigger level exceedance. Also, the LCRR modifies the language used to communicate health effects in all public education materials.
Another LCR change of interest to PWSs is their coordination with school and day care facilities to test and report at those locations. As a result of the LCRR, PWSs are required to conduct lead monitoring at elementary schools and child care facilities they serve at a rate of 20% of the facilities annually. The LCRR requires PWSs to submit annual reports to the state. These reports now include a certification that the PWS completed notification and sampling requirements above a minimum of 20% of all elementary schools and child care facilities that the PWS serves annually; a certification that the PWS delivered health risk information to the schools and facilities they serve; and a certification that the results were provided to the schools, facilities, and state health departments.
At this point, LCR reform is anticipated, even though it is under additional scrutiny. Unlike other regulatory updates, the LCRR reflects revisions that have garnered bipartisan support, even as some of the implementation details remain subject to change. For a copy of the LCRR, visit: https://www.federalregister.gov/documents/2021/01/15/2020-28691/national-primary-drinking-water-regulations-lead-and-copper-rule-revisions.
Nathan Vassar is a Principal in the Firm’s Water Practice Group. Nathan assists political subdivisions, communities, and utilities with water supply development, environmental permitting, and enforcement matters with both state and federal regulators. Lauren Thomas is an Associate in the Firm’s Water Practice Group. Lauren assists clients with water quality matters, water resources development, regulatory compliance, permitting, enforcement, and litigation. Justin Cias is a law clerk at the Firm and is a student at Texas A&M University School of Law. If you would like additional information or have questions about this article, please contact Nathan at 512.322.5867 or firstname.lastname@example.org, or Lauren at 512.322.5850 or email@example.com.