Legal Terrain

For decades, EPA has focused on reducing and ultimately eliminating lead from the nation’s drinking water.  The federal government’s initiatives can be traced back to the Safe Drinking Water Act originally passed in 1974 and the Lead and Copper Rule first promulgated in 1991, see 40 CFR Part 141, Subpart I. The Rule establishes a Maximum Contaminant Goal of zero for lead based on the premise that no level of exposure to lead in drinking water is without risk. The Rule, amended several times since its initial passage, also contains provisions for lead action levels in drinking water, monitoring, treatment, and public education on this important public health issue.

In late November 2023, the Biden Administration announced an ambitious proposal to turbocharge the lead elimination effort by requiring public water systems to remove all lead service lines within ten years. The proposal included limited exceptions to the ten-year requirement. The funding source for this program is the Infrastructure Investment and Jobs Act of 2021, which specifically allocates $15 billion for lead service line replacement and another $11.7 billion of general Drinking Water funds that can also be used for pipe replacement. Other federal programs also offer additional funds and loans for lead pipe removal.

Commenting on the ten-year removal proposal announcement, EPA Administrator Michael Regan noted: “Lead in drinking water is a generational public health issue, and EPA’s proposal will accelerate progress towards President Biden’s goal of replacing every lead pipe across America once and for all. With the collaboration and focused actions proposed today, EPA is delivering on our charge to protect all Americans, especially communities of color, that are disproportionately harmed by lead in drinking water systems.” The proposed amendment to the Rule was published in the Federal Register on December 6, 2023, and is open for public comment until February 5, 2024.

We expect a wide-ranging and robust analysis from the many stakeholders during the public comment period. Undoubtedly, some comments will criticize the timeline as unreasonably short and the dollars needed to accomplish the work as inadequate. For example, in Chicago, there are approximately 400,000 lead service lines. In an interview concerning the EPA proposal on Chicago’s ABC affiliate, Chicago’s Water Commissioner, Dr. Andrea Cheng, commented that it would be physically impossible to replace 40,000 service lines per year due to a shortage of contractors and plumbers.  She estimated that removing and replacing all of Chicago’s lead service lines would take 40 years at a cost of at least $12 billion.

The proposed amendment to the Lead and Copper Rule is an obvious response to recent public water disasters, such as the highly publicized debacle a few years ago in Flint, Michigan. Requiring municipalities and other public water suppliers to intensify their efforts to remove lead service lines, coupled with a multi-billion-dollar funding source, is laudable. Regardless of whatever shortcomings are present in the proposal in its current or final form, it is certainly a significant step in the right direction. Maybe those of us constantly annoyed by the disruption of street openings in our communities will be a bit more patient if some of the work concerns the replacement of lead pipe service lines.