September 28, 2021

Volume XI, Number 271


September 27, 2021

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EPA Revises Lead and Copper Rule for the First Time in Three Decades

On December 22, the U.S. Environmental Protection Agency (“EPA”) finalized long-anticipated revisions to the Lead and Copper Rule—the first major revision since the rule was promulgated in 1991. While the final rule maintains the current lead “action level” of 15 parts per billion (“ppb”) and “maximum contaminant level” goal of zero, it also includes a variety of other revisions that will significantly impact water systems across the nation.

Enhanced Focus on Identifying and Addressing Homes with Lead Service Lines

A major driver behind EPA’s effort to revise the Lead and Copper rule has been identifying and remediating high-risk homes, and in particular, those served with a lead service line (“LSL”). EPA’s final rule thus requires all water systems prepare, and update, LSL inventories. EPA also introduces a requirement to “find and fix” sources of lead in any individual home where a test demonstrates lead levels in excess of 15 ppb. When the “fix” is outside of the water system’s control, documentation must be provided to the state. The final rule further modifies tap sampling procedures and the criteria for selecting homes for sampling to prioritize homes served by LSLs.

Greater Transparency

The final rule also aims to increase transparency by requiring that systems serving greater than 50,000 people post LSL inventories on a publicly-accessible Internet site. In a departure from its initial proposal, EPA reduced the threshold required for water systems to publish their inventory online from 100,000 to 50,000 persons. In addition, the final rule mandates annual notices by water systems to homeowners with LSLs. Certain systems that fail to reach their LSL replacement requirements for a given year must conduct additional outreach in the following year, such as through a townhall meeting. And when any individual tap sample exceeds the lead action level of 15 ppb, systems are now required to notify consumers at the site within 24 hours of learning of the result (instead of the current 30 days).

New Lower “Trigger” for Corrosion Control and Lead Service Line Replacement Actions

The final rule makes changes to the requirements for corrosion control, most notably by establishing a new “trigger” level of 10 ppb. The trigger level is not a health-based standard. At this trigger level, systems that currently treat for corrosion are required to re-optimize their existing treatment, while systems that do not currently treat for corrosion must conduct a corrosion control study. Per EPA’s final rule, water systems must also now conduct outreach and initiate LSL replacement programs when lead levels are above the proposed trigger level of 10 ppb. The final rule requires systems that are above 10 ppb, but at or below 15 ppb, to work with their state to set an annual goal for LSL replacement. Systems that are above the action level of 15 ppb must replace a minimum of three percent of LSLs annually based upon a two-year rolling average.

Testing of Schools and Childcare Centers

EPA’s final rule requires that systems annually test drinking water in 20% of elementary schools and childcare centers in their service areas for a period of five years, and upon request in secondary schools (and elementary schools and childcare centers following the initial five year mandatory testing period). Water systems must provide the results of these tests and information about the actions the school or childcare facility can take to reduce lead in drinking water.

© 2021 Beveridge & Diamond PC National Law Review, Volume X, Number 363

About this Author

Bina R. Reddy Environmental Litigation Attorney Beveridge & Diamond Austin, TX

Bina has a nationwide practice representing clients – including FORTUNE® 50 companies and several major municipalities – in litigation involving federal and state environmental statutes, class actions, toxic tort and product liability, and constitutional claims.

Bina has devoted a substantial portion of her practice to litigation under federal environmental citizen suit provisions and has successfully defended citizen suits under the Resource Conservation and Recovery Act (RCRA), Clean Water Act, Clean Air Act, and the Safe Drinking Water Act. This experience includes the defense of...

Eric L. Klein Environmental Litigation Attorney Beveridge & Diamond Boston, MA

Eric makes complex subjects simpler.

He is an environmental litigator in the Boston office of Beveridge & Diamond, with a national practice representing major companies and municipalities in a wide variety of matters including environmental and mass torts, class actions, and federal citizen suits under environmental statutes including the Clean Water Act, the Safe Drinking Water Act, and the Clean Air Act. He has handled cases in state and federal courts throughout the United States, litigating complex civil and commercial matters before juries, trial and appellate courts,...

Roy D. Prather, III Environmental Litigation Attorney Beveridge & Diamond Baltimore, MD

Roy maintains a national practice focused on complex environmental and commercial litigation matters. 

Roy represents businesses and public sector entities across a broad range of industry sectors in federal and state courts.  He defends citizen suits and class actions involving toxic tort and product liability claims under federal environmental laws and state analogues, including the Resource Conservation and Recovery Act (RCRA), Safe Drinking Water Act, Clean Air Act, and Clean Water Act.  Roy advises clients on issues relating to regulatory compliance, and...

Collin Gannon Environmental Litigation Attorney Beveridge & Diamond Baltimore, MD

Collin’s national practice in environmental, toxic tort, and constitutional litigation focuses on attaining regulatory compliance across industrial sectors.

His background in the humanities and natural sciences uniquely positions him to understand clients’ sophisticated technical processes, provide clients counsel concerning these processes, and then capably represent clients’ interests in any litigation forum.

Collin’s interest in environmental litigation stems from his study of the intersection between law and science. Before law school, Collin interned with the Sandia...

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