Tightening the Screws on Lead and Copper: The Lead and Copper Rule Improvements

by Nathan E. Vassar and Jessie S. Powell

The United States Environmental Protection Agency (“EPA”) has published its proposed updates to the already recently-revised lead and copper rule, styled as the Lead and Copper Rule Improvements (the “LCRI”). The proposed rule carries broad implications for water providers and will increase compliance costs even beyond those proposed just a few years ago in the original 2019-2020 lead and copper rule updates. Among other changes, upon implementation, the LCRI will require Public Water Systems (“PWSs”) to replace all service lines classified as lead and/or galvanized requiring replacement within a ten-year period—significantly expediting the previous timeframe set under the Lead and Copper Rule Revisions (the “LCRR”).¹ The proposed rule mandates that PWSs fully fund replacement costs for both public and private properties when a service line is “under the control” of the system, and the LCRI does not allow for partial replacements. PWSs must also provide pitcher filters or point-of-use devices following disturbances to lead, galvanized requiring replacement, and unknown material service lines (e.g., after full or partial service line replacements, water meters, connectors, or any other disturbance caused while taking inventory of the system). The impacts of the LCRI are far-reaching for PWSs that must now comply with expedited deadlines, particularly as such PWSs are already under an October 2024 deadline for inventories of lead and copper lines.

The replacement deadlines come with certain flexibility under a couple of circumstances. PWSs may request a deferred deadline to complete service line replacements in two scenarios. In the first scenario, if a PWS has a high proportion of lead and galvanized requiring replacement service lines compared to households and exceeds the threshold ratio, EPA may allow additional time for the system to complete the required replacements. In the second scenario, PWSs with over 100,000 lead and/or galvanized requiring replacement service lines (not counting unknown lines) will qualify for a deferred deadline if the system is replacing 10,000 lead and/or galvanized requiring replacement lines per year. PWSs that meet either of the criteria and choose to request a deferred deadline must submit information to the state demonstrating applicability of the criteria by the compliance deadline.²

Like the original LCRR requirements, under the new rule, PWSs must identify all service line materials, including any unknown material, and create a publicly available service line replacement plan.³ The LCRI does not change the deadline for PWSs to report an initial inventory of all lead service lines to the Texas Commission on Environmental Quality (“TCEQ”), which is October 16, 2024. The inventory must include both system- and customer-owned service lines and categorize each line as “lead,” “galvanized requiring replacement,” “lead status unknown,” or “non-lead” and must be publicly available. The LCRI increases the frequency of inventory updates—requiring PWSs to update inventories annually. The LCRI add two new requirements for service line replacement plans: (1) identification of any state and local laws and water tariff agreements relevant to the water system’s ability to gain access to conduct service line replacements; and (2) a communication strategy to inform both consumers and owners of rental properties about the replacement program. These new requirements are in addition to the elements required under the LCRR: (1) identification of strategies for identifying unknowns; (2) procedures for full service line replacement; (3) a customer communication strategy; (4) flushing instructions; (5) a strategy to prioritize replacements based on factors including but not limited to the targeting of known lead and galvanized requiring replacement service lines as well as service line replacements for local communities, such as those disproportionately impacted by lead, and populations most sensitive to the effects of lead; and (6) a funding strategy. Also, PWSs must submit a list to TCEQ detailing each elementary school and childcare facility that the system serves and notify such schools and facilities of health risks from lead exposure and a proposed schedule for lead testing.

Additionally, the LCRI lower the lead action level from 15 µg/L to 10 µg/L and mandate more stringent sampling requirements. When a PWS’s lead sampling results exceed the action level, the PWS must inform the public, take action to reduce lead exposure, and work towards replacing all lead pipes. The LCRI also propose to modify the protocols for tap sampling by requiring PWSs to collect first liter and fifth liter samples at sites with lead service lines and use the higher of the two values when determining compliance with the rule. Under the LCRI, PWSs must report sampling results and violations electronically and notify the public of any exceedances.

EPA plans to host a virtual public hearing on January 16, 2024, and the public comment closes January 29, 2024. EPA anticipates finalizing the LCRI prior to October 16, 2024. Should you have any questions regarding this article, the proposed LCRI, or otherwise, please do not hesitate to contact Nathan Vassar at 512.322.5867 or nvassar@lglawfirm.com, or Jessie Powell at 512.322.5815 or jpowell@lglawfirm.com, at your convenience.

¹Under EPA’s previous rule, PWSs were effectively on a 30-year replacement schedule and would be required annually to replace three percent of lines classified as lead and/or galvanized requiring replacement until fully replaced. 40 C.F.R. § 141.84(g).
²The compliance deadline is three years following the publication of the final rule in the Federal Register. See 40 C.F.R. §§ 141.80(a)(3),
141.90(e)(13).
³PWSs serving more than 50,000 people must post their service line replacement plan and inventory online.

Nathan Vassar is a Principal in the Firm’s Water, Compliance and Enforcement, Litigation, and Appellate Practice Groups. Jessie Powell is an Associate in the Firm’s Water and Compliance and Enforcement Practice Groups. If you have any questions or would like additional information related to this article or other matters, please contact Nathan at 512.322.5867 or nvassar@lglawfirm.com, or Jessie at 512.322.5815 or jpowell@lglawfirm.com.