Introduction
On November 30, 2023, the U.S. Environmental Protection Agency (EPA) released its Proposed Lead and Copper Rule Improvements (LCRI).[1] With this proposal, EPA aims to simplify and expand upon the 2021 Lead and Copper Rule Revisions (LCRR) and the original 1991 Lead and Copper Rule (LCR). The proposed LCRI outlines aggressive measures to achieve further reductions of lead in drinking water. This initiative brings to the forefront a critical question: Are the potential health benefits projected by EPA enough to justify the scope and extent of the rule and its related hefty price tag?
Background
Reducing lead exposure, particularly for children, has been a high-profile issue in the U.S. As a result of the 1973 phase-out of lead in gasoline, the 1978 lead paint ban, and the 1991 LCR promulgated by EPA under the Safe Drinking Water Act (SDWA) — lead concentrations in young children have decreased 95% from 15 micrograms per deciliter in 1976-80 to 0.7 micrograms per deciliter in 2013-14.[2] Despite this reduction, some children in the nation remain exposed to high levels of lead.
With respect to drinking water, Congress amended the SDWA in 2011 with the enactment of the Reduction of Lead in Drinking Water Act. This act focused on pipes, pipe fittings, and plumbing fittings and fixtures based on the premise that lead does not normally occur in source water. Rather, lead is introduced into water systems through the corrosion of pipes and fixtures.
In 2021, EPA finalized the LCRR, which was the first major overhaul of the program since 1991. A principal focus of these regulations was on water systems that serviced elementary schools and childcare facilities. The 2021 LCRR included a new requirement for public water systems to conduct and make public lead service line (LSL) inventories, clarified and modernized sampling requirements and protocols, prioritized sampling to locations most likely to contain lead, and eliminated “test-out” options for systems that exceeded the lead action level. The LCRR also made changes to reporting requirements, added new public education requirements, and added flexibilities for small water systems.
As required by President Biden’s Executive Order 13990 (January 20, 2021), EPA revisited all major rulemakings and policies of the prior four years, including the LCRR. As part of this review, EPA delayed the effective date of the LCRR “to allow EPA to ‘conduct a review of the LCRR and consult with stakeholders, including those who have been historically underserved by, or subject to discrimination in, Federal policies and programs prior to the LCRR going into effect.'”[3] Starting in April 2021, EPA held a series of virtual engagements with states, tribes, water utilities, and members of communities with concerns about lead in drinking water, including 10 virtual community roundtables in cities along the east coast and in the Midwest. In November 2023, the Biden-Harris administration announced its “Get the Lead Out” (GLO) Initiative, a “whole-of-government effort to tackle lead exposure.”[4] The GLO Initiative is funded entirely by the Bipartisan Infrastructure Law and supports communities with engagement planning, LSL inventory development, LSL replacement plans, and helping them access federal funding to support these activities. As part of the GLO Initiative, numerous town halls were held, with a particular focus on environmental justice communities that are disparately impacted by lead exposure.
Following all of this, EPA proposed the LCRI. The proposal is also complemented by funding in the Bipartisan Infrastructure Law, which provides $15 billion to replace LSLs and $11.7 billion for general Drinking Water State Revolving Funds that can be used for LSL replacement.
Overview of Proposed LCRI
As EPA explains in the proposal, the LCRI focuses on three main goals: (1) equitably replacing all LSLs, (2) reducing complexity and improving public health protection, and (3) increasing transparency and informing the public.
The headliner of the proposed LCRI is the requirement to remove, within 10 years, all LSLs, as well as galvanized pipes downstream of lead pipes and pipes of unknown material. This requirement applies regardless of whether the lines have exceeded lead action levels or caused lead exposure or human health impacts. However, the requirement only applies to lines that are “under the control” of the operator of the water system, which is defined as lines the operator has adequate access to conduct the replacement. There are some limited exceptions to this requirement where additional time may be afforded for complete replacement.
In order to implement this portion of the proposed LCRI, EPA will require that water systems follow certain procedures, including regularly updating their service line inventories, preparing a service line replacement plan, and identifying any service lines of unknown material by the replacement deadline. Notably, the initial inventory deadline of October 16 created in the LCRR remains in place.
To ensure that the service line inventory is correct, EPA has further proposed that water systems use a validation process and that water systems track lead connectors in their inventories and replace them if encountered. EPA estimates that approximately 9.2 million of these lines remain in service across the U.S. EPA further estimates that the average cost of line removal will be approximately $4,700 per line. Based on a simple calculation of EPA’s estimated numbers, the cost of replacing all required lines may be approximately $43.24 billion.
While EPA asserts that the changes in the proposal will simplify the program, in practice this may not be the case. For example, EPA has removed the lead trigger level of 0.010 mg/L and lowered the lead action level from 0.015 mg/L to 0.010 mg/L. But it has also introduced a new sampling protocol that requires the collection of both first liter and fifth liter samples. The higher of the two sampling results would then be used to determine compliance. There are also new public communication, including public education, requirements such as increasing the frequency of messaging and providing more up-to-date content. Localities must make their service line replacement plan available publicly, and if the system has more than 50,000 connections, the plan must be available online. Additionally, if sampling is completed, the results must be delivered to residents within three days. Where exceedances of the new lead action level of 0.010 mg/L are detected, notification must be provided within 24 hours and a public education program must be provided no later than 60 days after the sampling event. The public education program activities must be repeated within 60 days after the end of each tap sampling period where an exceedance occurs. Systems with continually elevated levels would be required to conduct outreach to consumers about the lead in the drinking water and make certified lead-reducing filters available to impacted consumers.
There are also new public education requirements when a water system is conducting work that could disturb service lines subject to the LCRI. While water systems are working to replace the lines, they must encourage consumers to allow for the replacement of lines on consumer property. Some states and localities require a consumer consent prior to completing service line replacement. In those situations, the proposed LCRI requires that the water systems reach out to consumers four times using at least two different types of communication to attempt to obtain this consent. However, if unable to obtain consent, the water system would not be required to conduct a complete service line replacement because the service line would not be “under the control” of the operator of the system.
While the proposed LCRI purports to retain provisions providing flexibility to small water systems, the proposal reduces the threshold for “small systems” from those serving 10,000 or fewer persons in the LCRR to those serving 3,300 or fewer persons in the proposed LCRI.
Cost vs. Benefit
The SDWA requires that EPA conduct a cost-benefit analysis to determine whether the benefits of the proposed LCRI can justify the costs. To do this, EPA must complete a Health Risk Reduction and Cost Analysis (HRRCA), which requires EPA to evaluate both quantifiable and nonquantifiable health risk reduction benefits as compared to the cost of compliance with the proposed treatment techniques.
EPA anticipates that the requirements in the proposed LCRI will reduce the risk of exposure to lead and generate public health benefits. EPA quantifies and monetizes this risk reduction by estimating and assigning monetary value to the avoidance of reductions in IQ values, and valuing the reduction of cases of ADHD in children, low birth weights in children of women of childbearing age, and heart disease causing premature mortality in adults. [5]
The proposed LCRI benefits analysis includes for the first time recent scientific findings indicating benefits of reduced heart disease and mortality in adults from reduced lead exposure. EPA explains that its benefits assessment for reductions in cardiovascular disease “follows a new methodology” published in 2020 and 2023, but in valuing these reductions “EPA uses the same approach it uses in estimating benefits associated in reductions of particulate matter and ozone in the air pollution regulations.”[6] To value the benefits of reduced mortality from heart disease, “EPA draws on the published academic surveys about how much people are willing to pay for small reductions in their risks of dying from adverse health conditions that may be caused by environmental pollution.”[7] EPA’s “value of a statistical life” in 2022 dollars ($12.98 million) was applied to each estimated avoided case of cardiovascular disease for all adults ages 40-79 over the 34-year modeling period. Because heart disease is a leading cause of death in the U.S., adding estimated reductions to the benefits column significantly increases the estimated benefits of the proposal. Indeed, as EPA explains, “Because existing techniques for quantifying cardiovascular disease premature mortality yield larger benefits per person than for neurological impacts on children, the total benefits are driven by the cardiovascular disease premature mortality benefits.”[8]
EPA’s estimated total annualized monetized benefits of the LCRI proposal range from $17.3 to $34.8 billion at a 3% discount rate, and $9.8 to $20.9 billion at a 7% discount rate in 2022 dollars.
More importantly, compliance with the proposed LCRI would place exorbitant costs on water systems and states. EPA estimates that the total annual costs of the proposed LCRI range from $2.06 to $2.92 billion at a 3% discount rate and $2.51 to $3.56 billion at a 7% discount rate in 2022 dollars. EPA included in these estimates the cost associated with an increase in the use of corrosion inhibitors under the rule, the resulting costs for treating to remove the phosphates, and the ecological impact on surface waters due to increased phosphates. However, it is important to note that other estimates suggest the cost of implementing the proposed LCRI could significantly exceed EPA’s estimate, potentially reaching as high as $90 billion.
Based on its analysis, EPA determined that the benefits of the proposed LCRI justify the costs. Nevertheless, there are significant uncertainties associated with EPA’s estimates. For example, it is unknown exactly how many service lines will be required to be replaced, how many water systems will exceed action levels under the new sampling method, or the definitive cost for service line replacement.
Further, some of the requirements, such as the 100% replacement of specified lines, may be considered overly aggressive and even unnecessary to promote public health improvements, especially in areas where there has not been an action level exceedance. Additionally, the proposal does not provide for the cost of replacing lead pipes on private property, which, while unclear, may be a significant source of lead exposure especially in older homes. Nor does the proposed LCRI mandate states to cover the expense of replacing lead pipes on private property. However, some states, such as Minnesota, have approved grant programs that can assist with covering the consumer’s portion of replacement.[9] These significant uncertainties raise serious questions about EPA’s cost benefit analysis and whether it passes muster under the SDWA mandate.
Next Steps
EPA is accepting written comments on the proposed LCRI through February 5. EPA is also hosting a virtual public hearing on January 16, where the public can provide verbal comments.
[1] https://www.epa.gov/system/files/documents/2023-11/proposed-lcri_pre-pub-version-11_29_23.pdf
[2] https://www.regulations.gov/document/EPA-HQ-OW-2017-0300-0003
[3] 88 Fed. Reg. 848878, 84899 (Dec. 6, 2023).
[4] https://www.epa.gov/water-infrastructure/get-lead-out-initiative
[5] 88 Fed. Reg. at 85002.
[6] Id.
[7] Id.
[8] Id. at 84881.
[9] https://www.house.mn.gov/members/profile/news/15535/36976
