By Tom Neltner, Chemicals Policy Director.
Last month, two California trade associations submitted disconcerting comments to the Environmental Protection Agency (EPA) as the agency considers what to do with the revised Lead and Copper Rule (LCR) published in the waning days of the Trump Administration. The associations – the Association of California Water Agencies (ACWA) and the California Municipal Utilities Association (CMUA) – represent 90% of the state’s drinking water utilities.
The trade associations are asking EPA to allow water utilities to tell the agency, the state, their customers, and the public that they have no lead service lines (LSLs) even when they know it may well be false. This would seriously undermine one of the most important positive aspects of the revised LCR – the service line inventory. California’s unusual definition of a “user service line” has been a long-running problem: it does not include the portion of the service line on private property. This definition is narrower than the federal one – and even the state’s definition of an LSL that has been in place for more than a quarter century.
Under EPA’s revised LCR, utilities can only claim that they have no LSLs – and thus avoid the need to comply with the rule’s more protective sampling and corrosion control requirements for systems with LSLs – if they are confident there are no LSLs based the entire length of the service line, including the portion on private property. The two state trade associations are asking EPA to put the burden of determining the composition of this portion of the service line entirely on the customer, allowing a utility to ignore a lead pipe if the customer does not provide the information. This approach will render the inventory effectively useless and misleading.
Ongoing problem of California’s definition of “user service line”
We flagged the state’s conflicting definitions of an LSL and user service line several years ago when California’s State Water Resources Control Board said that only four out of more than 2,800 water utilities in the state reported having user service lines made of lead. The Board later corrected its webpage to be clear that the numbers did not include the portion of the service line on private property. That change only helped the cautious reader.
Today, California’s latest inventory describes only one utility having any LSLs – and that utility reported just a single LSL – and 112 more with unknown material that may be lead.[1] If the utilities were required to include the entire service line – public and private – as EPA’s revised LCR requires, these numbers would likely increase dramatically, especially those with unknown material that may be lead.
What is the new service line inventory and why is it so important?
As we have explained previously, the backbone of EPA’s revised LCR is a new service line inventory that all water systems must make publicly available in 2024[2] unless they can demonstrate that they have no LSLs. The inventory serves three distinct purposes:
- Track progress towards full LSL replacement if a water system exceeds the existing lead action level or the new trigger level;
- Provide basis for communicating to the public, customers, residents, and other persons served by the water system; and
- Enable states and others to verify whether the tap water monitoring samples are being collected from homes with service lines that are lead (unless they have none).
All service lines must be assigned to one of four categories: “Lead”; “Galvanized Requiring Replacement”; “Non-lead”; and “Lead Status Unknown.” Service lines in the first two categories are considered LSLs. Non-lead is reserved for service lines where the utility is confident there is no lead based on a review of the evidence.[3] While EPA will eventually issue guidance defining how to make that determination, there is no requirement that lines be physically inspected in order to be designated as non-lead.
The key to the categorization is that it must cover the entire service line, including the portion on private property without regard to who owns the pipe. Since there is little downside to designating service lines as “Lead Status Unknown,” we expect that most utilities will assign service lines installed before 1986 (when lead pipes were banned) in this category and refine the inventory over time as more information becomes available.
Why utilities might want to ignore service lines on private property and avoid designating them as “Lead Status Unknown”
The revised LCR presents utilities with three situations where they have significant incentives to determine if a service line categorized as “Lead Status Unknown” – whether on public or private property – is actually an LSL:
- To claim the system has no LSLs: A utility that can demonstrate it has no LSLs can simplify its inventory, public notice, sampling, and monitoring responsibilities.
- To ensure they have sufficient homes with LSLs to sample: The utility must ensure that sufficient homes with LSLs have their tap water sampled to meet a required minimum – 100 for large utilities and fewer if smaller. Tap water sampling results from non-lead homes are only credited if there are no homes with “Lead Status Unknown” lines in the system.
- If the lead action level is exceeded: If the tap water sampling exceeds a 90th percentile of 15 parts per billion – the lead action level – the utilities must begin replacing a certain percentage of its LSLs each year. For this calculation, “Lead Status Unknown” are initially counted as LSLs but would eventually have to be evaluated and, if found to be LSLs, replaced.
California utilities have an additional incentive because the state requires that by July 1, 2020, they provided the State Water Resources Control Board with a schedule to replace all the user service lines that are either lead or are of unknown material. But, as noted above, this requirement only applies to the portion on public property and ignores the remainder of the line.
While the federal requirement does not alter the California requirement, it is likely to create an awkward situation for the thousands of utilities that have claimed they have zero unknown user service lines when they make publicly available an inventory showing that there are actually thousands of unknown on private property. In addition, the federal rule requires that utilities send an annual notice to these customers and alert them anytime the line is disturbed. And if any of those lines are found to be lead, then additional compliance responsibilities kick in.
For these utilities, it would be far easier if EPA modified the rule so they could continue to ignore the private line and assume it is not lead unless the customer documents otherwise. In their request to EPA to make that change, the trade associations cite “undue financial burden and potential liability” that the revised LCR would impose on them, claiming it was not their job, and raising the specter of customers holding the utility liable if they incorrectly identify a line. They go so far as asking EPA to waive liability – something that the agency lacks the authority to do.
We think there are more effective ways to manage the hypothetical risk than putting blinders on and ignoring a potential LSL simply because it on private property. While customers understand that they are responsible for interior plumbing, few think the same for an underground service line installed decades ago per the utility’s specifications. Hundreds of utilities across the country have resolved the risk through due diligence and transparency.
Lessons learned from Michigan’s approach
We recognize that checking each and every home to physically verify services lines are not lead is unrealistic. However, what the two trade associations seek is not realistic either.
We suggest that EPA take a close look at adapting how Michigan addressed the need for service line material verification requirements in a March 2021 guidance that reflects the recommendations by the Association of State Drinking Water Administrators’ 2020 white paper. The guidance encourages states to allow utilities to use a “random materials verification process” to predict the likelihood that a service line is lead. The prediction is based on a physical inspection of a statistically significant sampling of service lines. Under such an approach, EPA would set a threshold below which the community would have sufficient confidence that it has no LSLs.
The Michigan approach would need to be adapted to each states’ situation as Michigan’s approach is built around a 20-year plan for utilities to remove all LSLs. Therefore, it requires that utilities determine whether lines of unknown materials are or are not LSLs by January 1, 2025.
EPA should maintain strong inventory requirements
As EPA considers whether and how to revise the LCR issued by the previous administration, the agency must not relax its requirements for a service line inventory covering the entire line. Inclusion of LSLs on private property is critical to ensure that the appropriate tap sampling and corrosion control are in place to protect the public from lead in drinking water, to avoid misleading the public into thinking the system has no LSLs, and to ensure progress is made on full LSL replacement.
[1] Another 14 utilities reported having lead fittings such as gooseneck that were not connected to lead lines and, therefore, are exempt from the definition of LSL from the federal LCR.
[2] EPA is currently considering delaying the effective date and compliance date for the revised LCR.
[3] In our blog on the revised LCR’s inventory requirements we raise serious concerns about the definition of each of the four categories and of LSLs. That remains an issue that EPA must fix but is not germane to the concerns with the comments raised by the two California trade associations.
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