In October 2019, U.S. EPA proposed a revision to the 1991 Lead and Copper Rule (LCR).[1] The New York Times obtained a final draft of the proposed revision on September 27.[2] Interest in the LCR grew after residents of Flint, Michigan were widely exposed to lead through their drinking water supply in 2014.[3]

The original rule, adopted pursuant to the Safe Drinking Water Act, requires “drinking water systems to implement corrosion control measures when the lead level is above the ‘action level’ of 15 parts per billion (ppb).”[4] The rule mandates the collection of household tap water samples, and if more than ten percent of samples exceed the lead action level of 15 ppb, municipal and regional water suppliers must begin to address the issue.[5] But if just ten percent or fewer of samples exceed the 15 ppb action level, water suppliers are not required to address those households with lead concentrations above 15 ppb–leaving some households with elevated lead levels but no corresponding requirement for water suppliers to act.[6]

The negative effects of lead exposure on neurological function are well documented.[7] As the Centers for Disease Control explains, “[e]ven low-level lead exposures in developing babies have been found to affect behavior and intelligence.”[8]

The new rule does not change the lead action level of 15 ppb, but instead installs a new “trigger level” of 10 ppb that will impose “more proactive planning in communities with lead service lines … [including] inventory and more robust sampling.”[9] Amendments to the rule intend to identify areas most affected by lead service lines and increase protection of children in schools and child care facilities.[10]

While the new trigger level will spur action at a lower ppb level than before, the new rule decreases water utilities’ annual responsibility to replace lead service lines from seven percent to just three percent when sampled tap water exceeds the 15 ppb action level.[11]

The proposed revision is likely to be finalized in the coming weeks following a public comment period. It is unclear how effective the rule will be in reducing lead exposure through drinking water, but an important factor to consider is the overarching purpose of the 1991 LCR: to “establish[ ] a Maximum Contaminant Level Goal of zero lead in drinking water,”[12] as no level of lead in drinking water is considered safe.

To accomplish that goal, six million lead lines would need to be replaced.[13] By decreasing the rate of lead service line replacement, that goal is not advanced by the proposed revision.

[1]Bernadette M. Rappold and Casey A. Shpall, After Flint, EPA’s New Lead Rule Proposal May Not Satisfy Critics, Greenberg Traurig LLP (Oct. 24, 2019) https://www.lexology.com/library/detail.aspx?g=24276425-4b7b-4696-b63e-13c703fdd4a9.

[2] Lisa Friedman, E.P.A. to Promote Lead Testing Rule as Trump Tries to Burnish His Record, N.Y. Times, (Sept. 27, 2020) https://www.nytimes.com/2020/09/27/climate/trump-environment-lead.html.

[3] Paolo Ziaclita, EPA Proposes New Regulations for Lead in Drinking Water, National Public Radio (Oct. 11, 2019) https://www.npr.org/2019/10/11/769047500/epa-proposes-new-regulations-for-lead-in-drinking-water.

[4] Rappold and Shpall, supra note 1.

[5]Id.

[6]Id.;

[7] Lead Information for Workers Health Problems Cause by Lead, Centers for Disease Control and Prevention, https://www.cdc.gov/niosh/topics/lead/health.html#:~:text=Exposure%20to%20high%20levels%20of,a%20developing%20baby’s%20nervous%20system (Last visited Oct. 15, 2020).

[8] Id.

[9] Allison A. Torrence, EPA Proposes Overhaul of Lead and Copper Drinking Water Rule, Jenner and Block LLP (Oct. 15, 2019), https://www.lexology.com/library/detail.aspx?g=df59965c-8a16-4bb5-af85-4b4b704ed6b8.

[10] Proposed Revisions to the Lead and Copper Rule, The United States Environmental Protection Agency, https://www.epa.gov/ground-water-and-drinking-water/proposed-revisions-lead-and-copper-rule (Last visited Oct. 14, 2020).

[11] Rappold and Shpall, supra, note 1.

[12] Id.

[13] Coral Davenport, New E.P.A. Lead Standards Would Slow Replacement of Dangerous Pipes, N.Y. Times (Oct. 10 2019), https://www.nytimes.com/2019/10/10/climate/epa-lead-water-pipes.html.