By Erik D. Olson, Natural Resources Defense Council
It is expected that EPA will soon be proposing changes to its obsolete Lead and Copper Rule or LCR. This is the agency’s regulation for how to control lead levels in drinking water. The LCR, issued in 1991, is a highly complex rule that has failed to ensure that millions of Americans have water that’s free from hazardous lead contamination. The rule needs to be overhauled to protect the enormous U.S. population served by the at least six million lead service lines that remain in the ground. It also must protect the many millions more whose water contains lead leaching from the solder in their internal household plumbing or from lead-containing brass fixtures like faucets, which until recently could legally contain high levels of lead.
The EPA should replace the LCR with a directly enforceable maximum contaminant level (MCL) for lead of 5 parts per billion (ppb) at the tap. Canada recently set this as a maximum, and the EU recently recommended that its maximum lead level in drinking water be dropped from 10 to 5 ppb.
However, if the EPA refuses to set an MCL, it must at least overhaul the Lead and Copper Rule. At a minimum, the EPA’s revised LCR should establish:
- A requirement for a full inventory of all service lines to identify all those made from lead or galvanized steel pipe;
- An enforceable timeline of no longer than 10 years to fully replace all lead service lines, with the water system funding the full cost of replacement under both public and private property;
- A mandate that lead service lines be replaced at a rate of at least 10 percent per year (the current rule requires only 7 percent per year, a requirement applied only as long as the utility exceeds the EPA action level of 15 ppb);
- A ban on partial lead service line replacements;
- Clear sampling protocols to fully capture lead levels in tap water, and a ban (by rule) on methods that tend to minimize detections of lead;
- Robust monitoring of vulnerable homes, with mandatory observation of identified high-risk homes rather than voluntary, customer-initiated sampling;
- More frequent sampling at the tap;
- Prompt and understandable public notification requirements that can effectively reach diverse audiences;
- A reduced action level for lead of 5 ppb;
- A requirement for utilities to test for lead in water from all fountains and other drinking water sources at schools and day care centers in their service area.
Lead-Contaminated Drinking Water Remains a Widespread Problem
There is no safe level of lead exposure, as is widely agreed by public health authorities including the Centers for Disease Control and Prevention (CDC), the World Health Organization, and the EPA. Yet as we saw in Flint, Michigan, and are seeing play out in cities and towns across America from Newark, New Jersey, to Pittsburgh, Pennsylvania, to Portland, Oregon, and now apparently Atlanta, Georgia, elevated lead levels often have been allowed to persist for years without effective controls.
Just last year, my colleague Dr. Kristi Pullen Fedinick released an analysis of EPA datashowing that at least 5.5 million Americans were served between January 2015 and March 2018 by water systems that exceeded the EPA’s weak (and not directly enforceable) lead action level. She also found that during that time nearly 30 million people across the country got water from systems violating the LCR. These infractions ranged from failure to properly treat the water to control corrosion, to failing to test the water for lead as required. The problem is not new; we had published a report in 2016 with similar findings of widespread lead-contaminated tap water. And in fact, an NRDC report issued 16 years ago flagged lead in drinking water in many cities across the country (including Newark), based on EPA data.
Newark Drinking Water Crisis: Reporting, expert analysis, reports, and more
The 1991 Lead and Copper Rule
We have summarized the provisions of the LCR in some detail in our report What’s in Your Water? Flint and Beyond (see also EPA’s LCR Fact Sheet). Basically, the extensive and complex rule requires larger water systems to treat their water with a corrosion-inhibiting chemical (like orthophosphate) or show that this isn’t necessary. Smaller systems can escape the treatment requirements in many cases. Water systems initially were required to test the tap water from 5 to 100 high-risk homes, with the number of samples depending on the system’s size. (After initial testing, fewer samples can be taken less often in many cases.) The rule also establishes an action level for lead of 15 parts per billion at the 90th percentile, meaning that no more than 10 percent of lead in tap water samples taken may exceed 15 ppb. However, a so-called exceedance of that action level is not a violation; it merely triggers additional treatment requirements. Only if those steps don’t work to sufficiently reduce lead levels are utilities required to start removing lead service lines (7 percent per year).
Ideally, EPA Should Set an At-the-Tap Maximum Contaminant Level for Lead
Ideally, EPA should set an enforceable maximum contaminant level for lead at the tap of high-risk homes of 5 ppb, the level recently set in Canada. The European Union has a 10 ppb standard for lead but recommended in 2017 that this level be dropped to 5 ppb. The World Health Organization established a maximum lead in tap water level of 10 ppb but said this level was “provisional,” noting that it was not fully protective (especially of infants and children) but was based on technical feasibility. Decades ago the EPA had an “interim” at-the-tap MCL for lead of 50 ppb. In1991 the agency repealed that and installed the current, complex LCR. An at-the-tap MCL of 5 ppb with sampling of water at high-risk homes would be easier to enforce and would ensure that all customers receive water that is as protected as is feasible.
However, from all indications, the EPA is not seriously considering reestablishing an MCL for lead in drinking water. (NRDC had urged in 1991 that the agency set a strict MCL and challenged its refusal to do so in court, but the agency prevailed, arguing that this would be too difficult to achieve.)
If EPA Refuses to Set an MCL, It Must at Least Overhaul the Lead and Copper Rule
If the agency will not set an MCL for lead, there are many key updates needed for the rule:
Comprehensive Service Line Survey, Inventory, and Mapping
- All water systems should be required to complete a comprehensive inventory, survey, and map of all service line materials as soon as possible (California and a few other states now require this, and Congress recently stated in section 2015(e) of the America’s Water Infrastructure Act (AWIA) that lead service lines must be included in the upcoming Drinking Water Infrastructure Needs Survey. Moreover, the original LCR did require water utilities to do a materials survey of their service lines two decades ago, though many failed to do so.) The EPA should require this even if it sets an MCL since AWIA cannot be implemented without it.
Lead Service Line Replacement
- The rule must include a clear mandate to remove all six million lead service lines within 10 years. Even the water industry trade groups like the American Water Works Association have called for removal of all lead service lines. This would also be necessary if an MCL is set since there can be no assurance of meeting a reasonable MCL without lead service line replacement.
- Water utilities should pay for full lead service line replacement (including lines under private property), and partial replacements should be banned except in the case of emergency repairs (and in those cases, full replacement should follow promptly).
- Many utilities are arguing that they should only have to pay to replace the part of the line on public property, and this has resulted in many partial service line replacements. Experts including the EPA’s Science Advisory Board and scientific researchers have found that partial replacement doesn’t solve the lead problem and can even make it worse for some time because it jostles the pipes and can cause galvanic corrosion, which releases lead for many months.
- While utilities often argue that they are not allowed to pay to replace the portion of the lead service line on private property, in fact a review of state laws by Harvard Law School and EDF researchers found otherwise, and we have seen many cities including Flint, Lansing, Pittsburgh, York (Pennsylvania), and others pay for full LSL replacement.
- Programs (such as the one in Washington, D.C.) that require homeowners to pay for replacement of the portion of the service line under private property are likely causing a true environmental injustice. It has been alleged (and it would stand to reason) that high-income white people in D.C. can pay to replace their full service lines, whereas lower-income people, often in predominantly African American neighborhoods, may not be able to pay, so their full lead service lines aren’t replaced. American University is doing a study of this, expected to come out sometime soon.
Flint Water Crisis
Fixing Corrosion Control
- A corrosion inhibitor chemical like zinc orthophosphate should be used by water systems to coat the inside of lead pipes and fixtures with a thin, protective layer that reduces lead leaching and flaking (a process called passivation).
- The LCR should require an independent, certified professional engineer with expertise in corrosion control to certify that any city’s corrosion control program is working, and that should be explicitly approved by the state with detailed requirements.
- The plan should be regularly reviewed and a clear prohibition included on changing a water treatment or water source without a full study of the impact on corrosion control. Small systems should be required to use a standardized corrosion control program based on their water chemistry, approved by the state.
- Although the EPA’s LCR requires corrosion control, many water systems have not installed it, or haven’t used the right chemicals and doses, or have changed their treatment after they got approval for a different corrosion control plan, resulting in massive lead leaching.
- For example, in Washington D.C., Flint, and Newark, the lead problem has been severely exacerbated by water treatment or source water changes that resulted in ineffective or no corrosion control.
- Washington, D.C., around 2001, changed its disinfectant from free chlorine to chloramines, making the water far more corrosive, without first studying the impact on corrosion and lead. The result: Extremely high lead levels pervaded the city and were not disclosed by city officials.
- Flint switched its water source from corrosion-controlled Detroit-supplied water to corrosive Flint River water that wasn’t treated for corrosivity.
- Newark substantially lowered the pH of its water (to about 7 and sometimes as low as 6.5) in an effort to control cancer-causing disinfection by-products, without adjusting its corrosion control program, which had been tested in water with a very high pH (8.5 to 9.0)
Reducing the Lead Action Level (if no MCL is set)
- The EPA’s lead action level is 15 parts per billion (ppb) at the 90th percentile. It should be reduced to 5 ppb (the Canadian at-the-tap standard and proposed EU standard) A well-operated system using corrosion control will be able to keep lead levels at the 90th percentile below 5 ppb. Michigan recently reduced its action level to 12 ppb.
Providing Water Filters Pending Provision of Safe Tap Water
- There is a shaking-out period after replacement that lasts several months, during which lead levels can remain high. Therefore, until corrosion control is in place and optimized, and until several months after lead service lines are replaced, consumers should be provided water filters that are independently certified to remove lead. Consumers should be trained on how to install and use the filters properly. EPA should oversee the certification process.
Improved Monitoring That Cannot Be Easily Gamed
- The monitoring system in the current LCR can be gamed by water systems by using testing methods and selecting sampling sites that minimize lead levels detected, by invalidating samples, or by using other tricks. Some of these methods are prohibited or disfavored; EPA issued a guidance document, for example, on three of these methods. Still, greater clarity is needed; regulations should prohibit more (indeed all) of these methods (including the three mentioned in the guidance, as well as sample invalidation).
- The LCR should be modified to fix the monitoring system to ensure that far more high-risk homes are tested (infrequent testing of 50–100 homes in a city is not enough to be statistically representative), and to no longer allow testing requirements to be reduced or extended to once every 3 years or even every 9 years.
- Sequential monitoring (i.e., multiple tests from the same tap) should be required for a significant number of high-risk homes to pinpoint where the problems are coming from.
Improved Public Education and Public Notification
- Some water systems have made a habit of hiding the ball on their lead problems, downplaying them, or burying them in tables surrounded by technical jargon and lots of verbiage.
The EPA’s rules need to prohibit these shenanigans and explicitly require clear, plain-language (and multiple-language) notices online, via broadcast media, in mailings, and in postings at public locations that don’t downplay the risks and don’t surround mandatory warnings with false reassurances of safety.
Testing of Schools and Day Care Centers
- Water utilities should be required to test for lead in schools and day care centers in their service area.
- All fountains and other outlets that children and staff may use in these facilities for drinking water or cooking should be tested.