April 01, 2020

In Defense of an Unpopular Drinking Water Rule

Eric L. Klein

Environmental laws do not have fans, at least not like rock stars have fans. There was no Beatlemania when the Clean Water Act was passed in 1972. There is no Beyhive surrounding CERCLA. And yet, those of us in the environmental law community do have our favorites… and no one ever, ever says that their favorite is the Lead and Copper Rule. This is the 1990s-era federal rule under the Safe Drinking Water Act responsible for minimizing the levels of a potent neurotoxin in our drinking water, applicable to virtually every public water system in every state. 40 C.F.R. § 141.80 et seq. And yet even among the people nerdish enough to have a favorite environmental law, the Lead and Copper Rule is very much unloved.

“A national embarrassment,” says Marc Edwards, a scientist involved in lead issues in Flint, Michigan. Brady Dennis, For the first time in decades, EPA Is Overhauling How Communities Must Test for Lead in Water, Wash. Post, Oct. 10, 2019. “Weak language, implementation, and enforcement,” according to the Natural Resources Defense Council (June 2016 report). And while these are the activists, even the rule’s own administrators do not exactly beam with pride: “It is one of the most complicated rules we have on the books,” the director of the Environmental Protection Agency’s (EPA) Office of Groundwater and Drinking Water told The Washington Post in May 2016. Brady Dennis, The EPA’s Lead-in-Water Rule Has Been Faulted for Decades. Will Flint Hasten a Change?, Wash. Post, May 5, 2016. “It clearly needs to be strengthened,” then-EPA Administrator Gina McCarthy told Congress earlier the same year. Id.

But now that the Lead and Copper Rule has come around for a freshening-up—EPA proposed a revision in November 2019—it’s time for someone to speak up in defense of this beleaguered rule. In fact, the Lead and Copper Rule is one of the most creative regulations in recent times and should be considered a successful step in addressing one of the most knotty regulatory problems ever to confront EPA. Given the scope and challenge of its task, the Lead and Copper Rule is neither “weak” nor excessively complicated. To call it a “national embarrassment” is absurd. In fact, its drafters should be proud.

To understand the elegance and creativity of the Lead and Copper Rule, start with the problem it has to solve. The primary source of lead in drinking water is not the drinking water itself, at least, not the water as it exists when it leaves the treatment plant and enters a distribution network. Instead, when lead contaminates drinking water, it generally does so on the users’ own properties, in the last few feet of the water’s long journey from treatment plant to faucet. Lead corrodes from narrow “lead service lines” between water mains and homes, and from leaded plumbing inside users’ own walls. The most difficult aspect of regulating lead in drinking water is that the regulated community itself generally does not own most of the lead materials that actually do the contaminating. Regular people do.

And those regular people collectively own millions of lead service lines and leaded plumbing elements across the country, particularly in cities with older water distribution networks. Even with water that has received the best chemical treatment for this purpose, each of these millions of lines and plumbing fixtures is capable of occasionally releasing a tiny particle of lead that, while miniscule, can elevate the lead concentration in a water sample above any maximum level that might reasonably be set. This occasional but inevitable corrosion is why, although EPA deals with most drinking water contaminants by setting and enforcing “maximum contaminant levels,” the agency declined to do so for lead (and copper), even in the face of strong outside pressure. The agency determined, correctly, that it should not make a rule that would be beyond the power of water systems to consistently follow.

Instead, EPA prescribed a “treatment technique,” laying out a series of steps that state agencies and large local systems must follow to minimize lead corrosion. EPA’s treatment technique for lead prescribes “corrosion control,” which consists of a chemical treatment of source water by the water system that reduces lead corrosion in private lines and plumbing, typically by coating them with a chemical layer that inhibits lead corrosion. Contrary to claims that the Lead and Copper Rule is overly complicated, the regulatory mechanism at the heart of the rule (a seven-step process literally labeled, in the rule, “Step 1,” “Step 2,” and so on) is the simplest and most concise kind of regulatory command. 40 C.F.R. § 141.81(d)–(e). It is a step-by-step path for “optimizing” lead corrosion control in each system: particular chemical treatments are studied, chosen, installed in the water, fine-tuned, standardized, and finally operated on an ongoing basis within numerical water chemistry tolerances. Id. This seven-step treatment technique offers local flexibility and tailoring within a simple and clear national framework, in pursuit of a national goal of “optimal” corrosion control treatment in all systems.

The Lead and Copper Rule also explains how each system must monitor the effectiveness of its lead “corrosion control” treatment, and how to know when that treatment is no longer effective. The rule establishes a “lead action level” of 15 parts per billion (ppb), which means that no more than 10 percent of water samples in any given six-month period can exceed 15 ppb or the system as a whole exceeds the “action level.” 40 C.F.R. § 141.80(c). When that happens, a series of new Lead and Copper Rule requirements kick in—for source water treatment, for educating the public, and for replacing city-owned portions of lead service lines. Id. at § 141.80(e)–(g).

If this sounds complicated, it actually isn’t. The rule explains step-by-step how water systems should customize lead corrosion treatment, how they should monitor their customized treatment for failure, and exactly what to do in case of such failure. This is a graceful solution to the problem that some lead corrosion is inevitable in systems with legacy lead elements on private property, and that water systems need to minimize it in locally tailored ways because water chemistry differs from place to place. The Lead and Copper Rule strikes a delicate balance in imposing a national standard of minimizing lead while allowing each system the flexibility to manage its own unique water.

The big objection to the Lead and Copper Rule’s design—its “treatment technique” approach in lieu of a “maximum contaminant level” that would be impossible for many cities to consistently meet—was raised and settled years ago. The D.C. Circuit approved the treatment technique in Am. Water Works Ass’n v. EPA, 40 F.3d 1266 (1994). Since then, the criticisms have focused on details. These include whether the 15 ppb “lead action level” is calibrated right, whether the rule’s water monitoring regime is aggressive enough, whether water systems should have to pay to replace privately owned water infrastructure, and if so, when. The latter question—who should pay to replace the estimated 6 to 10 million lead service lines still in use—has been a particularly difficult one, since water utilities themselves often serve cash-strapped cities and the potential price tag is in the hundreds of billions of dollars.

On a broad level, the revised Lead and Copper Rule, which was proposed by EPA on November 13, 2019 and found at 84 Fed. Reg. 61,684, keeps the broad contours of the regulation the same. The lead action level remains at 15 ppb, and the allocation of responsibility for replacing lead service lines does not change. But the proposed rule adds significant regulatory detail in certain areas and generally requires water systems to be more proactive across the board: in water monitoring, corrosion control, infrastructure replacement, and public education. If the rule is finalized, study and planning for replacement corrosion control treatment will start below the lead action level, at 10 ppb, complete lead service line inventories will be developed and shared with the public, and water systems will do more intensive water quality testing and infrastructure repair where individual elevated lead samples are found.

Even if revised, the Lead and Copper Rule will not mollify its critics. Environmental advocacy groups like the Natural Resources Defense Council are already denouncing the proposed revisions as inadequate, and political battles over who will pay to modernize old lead water infrastructure will continue. All agree, of course, that public health efforts to reduce exposure to lead—particularly in children—are vital. Since the Lead and Copper Rule will continue to be at the center of those efforts, arguments about how it should work are not going away anytime soon.

But those arguments should not obscure the fundamental success of the Lead and Copper Rule, a creative, practical, solution-oriented answer to a near-intractable regulatory problem. The Lead and Copper Rule deserves a place alongside two other epic public health achievements—the phase-out of lead paint and leaded gasoline—that collectively have brought blood lead levels among children in the United States down more than a hundredfold in just a generation, to levels that would have been unimaginable when today’s middle-aged adults were children. The fight to reduce or even eliminate lead exposure is not over, but the results so far have been a triumph, and the Lead and Copper Rule deserves some of the credit. If you are reading this article, you are enough of an environmental law nerd that you might actually have a favorite environmental law. If so, consider the underdog: the Lead and Copper Rule.

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Eric L. Klein

Mr. Klein is a principal with Beveridge & Diamond, P.C. in Boston, Massachusetts, and is currently counsel for a municipality in a Lead and Copper Rule citizen suit action. He may be reached at eklein@bdlaw.com. The opinions expressed here are the author’s alone.