Lead and Copper Rule Revisions: Preparing for Major Deadlines Ahead

by Jessie M. Spears

The United States Environmental Protection Agency’s (“EPA’s”) recent Lead and Copper Rule Revisions (“LCRR”) have raised many implementation questions for drinking water utilities facing the first major change in the federal regulation since 1991. Under LCRR, Public Water Systems (“PWSs”) must submit an initial inventory of all lead service lines to the Texas Commission on Environmental Quality (“TCEQ”) by 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.” Understanding that two years will pass quickly, PWSs are assessing how to meet the requirement well in advance of the deadline. Lloyd Gosselink has received questions on compliance strategies in recent months, including questions in light of EPA inventory guidelines published in late summer 2022.

What counts as lead vs. non-lead classifications is critically important in order to carve out assets that do not qualify for the inventory. LCRR defines a lead service line as “a portion of pipe that is made of lead, which connects the water main to the building inlet.” A “non-lead” classification must be supported by evidence-based records, methods, or techniques. PWSs must include service line location identifiers, such as street name or intersection, if a service line is categorized as “lead” or “galvanized requiring replacement.” In addition to the inventory, all PWSs must submit a list to TCEQ detailing each elementary school and childcare facility the PWS serves and notify such schools and facilities of health risks from lead exposure and a proposed schedule for lead testing.

In order to avoid unnecessary unearthing of lines to create an inventory, EPA allows the use of various desktop information sources to determine the service line’s composition, and such review includes PWSs’ review of historical records to create the initial inventory. Historical records include previous materials evaluation, construction and plumbing codes/records, water system records, distribution system inspection and records, information obtained through normal operations, and state-specified information to identify the material. Desktop review also includes data collection as encountered in the course of normal operations, such as water meter reading, water meter repair or replacement, service line repair or replacement, water main repair or replacement, backflow prevention inspections, and other street repair or capital projects with open cut excavations.

If the service line material is still unknown after PWSs have gathered information and verified historical records, EPA suggests various investigation methods. PWSs can visually inspect service line materials (e.g., closed-circuit television inspection) and could request public assistance on the customer side of the line (e.g., reporting visual inspection of exposed materials in basements). PWSs can use water quality sampling by flushing out the volume of water in the premise plumbing and collecting a sample from the service line. PWSs can excavate or dig a test pit to expose the line to determine the type of material used. PWSs can use predictive modeling such as geostatistical models that use attributes from known locations to make inferences about areas of unknown conditions.

Once a PWS submits its inventory, TCEQ will release the data to the public and require large PWSs to publicly list their inventory online. The PWS must notify all persons served by “lead,” “galvanized requiring replacement,” and “lead status unknown” service lines within 30 days and notify those customers on an annual, ongoing basis until the entire service connection is considered to be “non-lead” as a result of replacement.

Identification of materials status is half the battle, as a replacement plan is also required under LCRR. PWSs with one or more “lead,” “galvanized requiring replacement,” or “lead status unknown” service lines must also submit a lead service line replacement plan to TCEQ by October 16, 2024. The lead service line replacement plan should describe the PWS strategy for replacing at least three percent of the system’s lead service lines annually, including “lead,” “galvanized requiring replacement,” and “lead status unknown” service lines.

These updates will follow with additional rule changes EPA forecasted late last year. Such additional changes to LCRR are anticipated by the end of 2023, but details are mostly unknown at this point, although the agency has signaled some areas of interest. EPA announced that several of the compliance deadlines in LCRR may be altered; however, it is unlikely that the compliance deadline for submitting the lead service line inventory or replacement plan will be revised. EPA announced potential revisions to LCRR, which include: (1) requiring PWS to remove lead service lines at a faster pace than the three percent required by LCRR;
(2) lowering LCRR’s action and trigger levels to induce more systems to take corrective action; (3) revising the procedures for tap sampling in an effort to increase the likelihood that lead service lines will show concentrations exceeding the action level; and (4) prioritizing replacement of lead service lines in historically disadvantaged communities.

Jessie Spears is an Associate in the Firm’s Water Practice Group. As detailed above, the impacts from LCRR are far-reaching for water systems across Texas. If you have any questions regarding this article, LCRR, or other matters, please contact Jessie at 512.322.5815 or jspears@lglawfirm.com.