The U.S. Environmental Protection Agency (EPA) recently promulgated the first significant revisions to the Lead and Copper Rule (LCR) pursuant to the Safe Drinking Water Act (SDWA) in thirty years. The revised LCR includes dozens of new or modified requirements to improve the quality and safety of drinking water, including at the many manufacturing facilities that operate their own drinking water wells. The revised LCR was initially set to be effective on March 16, 2021, however, the EPA recently announced a delayed effective date until at least June 17, 2021 in order to collect additional stakeholder input. See EPA's press release here.
What is the LCR and Who Should Know About It?
Any entity that owns or operates a "Public Water System" (PWS) must understand and comply with the new LCR requirements. Many manufacturers own/operate their own water systems (e.g., have an on-site drinking water well) and regularly serve the same 25+ people, which qualifies them as PWSs subject to the LCR.
Several key highlights are summarized below.
- The LCR's lead "Action Level" remains at 15 parts per billion (ppb). If a system's lead level is greater than 15 ppb, control measures such as corrosion control and line replacements may be required.
- There is a new lead "Trigger Level" set at 10 ppb. If a system's lead level is between 10 and 15 ppb, the system operator must begin planning for how to control lead contamination in the event a result above the Action Level is later identified.
- Sampling methodologies are now focused on identifying problematic lead service lines (LSLs) with the required implementation of what EPA is calling the "Fifth Liter Rule." In addition to collecting the "first liter" as soon as the tap opens, samplers at sites with LSLs must also draw four liters and collect the "fifth liter" so that the lead results are more likely to indicate the condition of the LSL and not the internal plumbing and fixtures. The "first liter" is collected for copper sampling and can nevertheless be sampled for lead to provide additional data on internal plumbing and fixture conditions.
- Sampling frequency standards now require more frequent testing for certain systems. For systems where results exceed the Action Level, sampling must now occur semi-annually. For systems where results are between the Trigger Level and the Action Level, sampling must occur annually. For systems where results are under the Trigger Level, sampling may occur every one or three years depending on the facts.
- All water systems must develop an LSL inventory and develop a replacement plan for any LSLs by March 2024.
- Under the new "Find and Fix" protocol, any individual tap where results exceed the Action Level must be further investigated and, as warranted, corrected (even if the system's overall lead level does not exceed the Action Level).
It is also important to note what the revised LCR does not do:
- it does not create a national maximum contaminant level (MCL) for either lead or copper under the SDWA;
- it does not change the existing Action Levels; and
- it does notrequire facilities serviced by a utility or municipal water system to independently sample their own water (but it may be a good practice to do so).
Further, with respect to LSLs, while the revised LCR would require the development of LSL inventories and, if necessary, replacement plans, it does not require all LSLs to be replaced by a date certain (as some states have done, e.g., Michigan). However, President Biden has indicated that the proposed "American Rescue Plan" legislation would include provisions to eventually "eliminate all lead pipes and service lines in our drinking water systems." See the White House press release here.
What You Should Do
If you operate a facility with its own drinking water source, we recommend a review of the last several years/events of drinking water data to determine legacy lead levels relative to the Action Level and new Trigger Level in order to prudently plan ahead with knowledge of your system's baseline. Keep in mind that with the new sampling methodologies (e.g., the Fifth Liter Rule), past performance may not be indicative of future results. We also recommend an LCR compliance assessment be conducted to determine if the current testing frequency is appropriate and relevant personnel understand the new rules and sampling methodologies.
If you operate a building that has been fully or partially dormant, due to COVID-19 conditions for example, we recommend you prepare a plan to preemptively "flush the lines" before re-occupancy to eliminate potentially stagnant water that may contain elevated levels of lead and/or copper that may have leached from the pipes and/or fixtures during the period of inactivity.
Shipman environmental attorneys have significant experience advising owners/operators of PWSs of varying sizes, including manufacturing facilities, and can assist you with LCR assessments and compliance strategies, as well as identifying and working with qualified environmental consultants.
Originally published April 13, 2021.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.