Loyola University Chicago School of Law, JD 2021
In 1991, the U.S. Environmental Protection Agency (“EPA”) published a regulation under the Safe Drinking Water Act to control lead and copper in drinking water, referred to as the Lead and Copper Rule (“LCR”). The Rule was created to protect public health by minimizing lead and copper levels in drinking water, primarily by reducing water corrosivity through corrosion control treatment. While implementation of the LCR has resulted in major improvements in public health, there is still much that needs to be done as research continues to show cities today see higher than normal levels of lead in their drinking water.
Lead and Copper enter drinking water as a result of corrosion in plumbing materials mainly from home and buildings developed prior to 1986, the year in which Congress banned its use. Yet, there are still thousands of communities around the country being affected by lead. Even minimal lead exposure presents significant health risks to children including damage to the central and peripheral nervous system, learning disabilities, shorter stature, impaired hearing, and impaired formation and function of blood cells.
The revised LCR
On December 22, 2020, the EPA announced its first major revisions in nearly 30 years to the Lead and Copper Rule. The changes come six years after the Flint City water crisis when a state-appointed emergency manager switched the city’s drinking water supply from Lake Huron water treated in Detroit to Flint River water treated at the Flint Water Treatment Plant. As the Flint River began flowing, corrosive water cause lead to leach from joints, pipes and fixtures, causing a drastic increase in toxic lead levels which overcame the bodies of Flint children and residents. Even though Flint switched back to Detroit water in October 2015, the damage to the distribution infrastructure remained. More recently, a Chicago Tribune analysis found that more than 8 of every 10 residents in Illinois live in a community where brain-damaging lead was found in the tap water of at least one home in the past six years.
The changes to the LCR were made to strengthen the rule and accelerate actions to reduce lead in drinking water. A few of the most significant changes in the revised LCR include accelerating the pace of lead service line replacement and ensuring lead pipes are replaced entirely. It also closes loopholes where for example, the prior rule allowed 48 months to pass in small towns before corrosion control was in place and failed to require all systems to test for lead in drinking water in places such as elementary schools and childcare facilities. The treatment technique for the rule requires systems to monitor lead concentration in drinking water at customer taps. If lead concentrations exceed a certain level, the public must be informed about steps they should take to protect their health and places may have to replace lead service lines under their control.
Failure of the revised LCR to address the most important issues
While these revisions seem promising, the Natural Resources Defense Council (NRDC) filed suit in the U.S. Court of Appeals for the District of Columbia against the EPA in January 2021 to strike down the new Lead and Copper Rule because it does not set a maximum contaminant level (MCL) and refuses to require the removal of the six million lead service lines that remain in use across the country. The current version of the LCR leaves the 15ppb MCL level in place. While there is no safe level of lead, Canada’s MCL is set as 5ppb and the EU recently recommended MCL be dropped from 10 to 5ppb. Senior strategic director of the NRDC, Erik D. Olson said “Drinking water from the often century-old pipes is like drinking from a lead straw”. Organizations that oppose the LCR believe the only way to ensure that the lead contamination does not affect tap water (and thus drinking water) is to remove them from the ground completely and replace them.
Further, the Safe Drinking Water Act is supposed to guarantee all American access to clean, drinkable water. However, the NRDC, partnering with the Environmental Justice Health Alliance for Chemical Policy Reform and Coming Clean, found an alarming relationship between sociodemographic characteristics and drinking water violations. Specifically, the rate of drinking water violation is higher in communities of color, low-income communities, and areas with more non-native English speakers.
On March 20, 2021, the EPA extended the effective date of the Trump Administration’s Revised Lead and Copper Rule so that the agency can gain more public input, largely from communities that have the highest risk of exposure to lead in drinking water.
To meet this goal, the EPA first announced that the effective date for the revised LCR would be pushed from March 15, 2021 to June 17, 2021. The idea being that this addition time would allow the EPA to take public comments on yet another action to provide an even longer extension of the effective date ultimately allowing the EPA to review the Rule purposefully and, in a manner consistent with the Safe Drinking Water Act and President Biden’s Executive Order on Protecting Public Health and the Environment and Restoring Science to Take the Climate Crisis. The second announcement then extends the effective date until December 16, 2021 and correspondingly extends the LCR compliance deadline to September 16, 2024 (from the original date of January 26, 2024).
Olson noted that Biden administration’s proposed delay is “a positive sign that the agency is finally going to get serious” about strengthening the regulations. While we hope to see more stringent regulations in the coming months, public health will always be at risk until we get rid of outdated lead-leaching piping altogether.