EHS Administration, Regulatory Developments

Time to Get the Lead Out

On December 16, 2021, the Biden-Harris administration released its Lead Pipe and Paint Action Plan (LPPAP), which includes a commitment to replace all lead pipes in America within a decade. The plan details the release of $2.9 billion in infrastructure funding and an announcement of upcoming stricter EPA enforcement to protect public health.

In conjunction with the White House announcement, EPA Administrator Michael S. Regan committed all available EPA tools, including statutory authority under the Safe Drinking Water Act (SDWA), technical assistance, and funding, to protect all Americans from lead in drinking water.

“The science on lead is settled—there is no safe level of exposure and it is time to remove this risk to support thriving people and vibrant communities,” Regan said in an EPA statement.

An Agency estimate puts the total of lead pipes in need of replacement at as many as 10 million lines nationwide, reports Bloomberg Law. A disproportionate amount of those lines are located in disadvantaged communities.

Two Steps Back?

While the current administration figures out how best to tighten the SDWA rules governing toxic metals in drinking water, the Trump administration’s rule, known as the Lead and Copper Rule (LCR), was allowed to go into effect.

“In its closing weeks in office, the Trump administration finalized the first updates in decades to lead and copper rules for water utilities,” reports Roll Call. “Under the updated rule, utilities that exceed 10 parts of lead per billion have to work with state regulators on plans to replace lead service lines and at 15 parts per billion communities would be required to replace at least 3 percent of known or suspected lead lines per year.

“Critics suggested that represented a slower replacement rate than a previous 7 percent requirement. Then-EPA administrator Andrew Wheeler defended the proposal by saying that it also closed a number of loopholes that had kept the actual replacement rate much lower.”

Other criticisms of the Trump-era rule include the lowered action-level triggers for pipe replacement and the fact that the rule does not require 100 precent replacement of lead pipes. However, it does require utility companies to inventory lead service lines by 2024. This requirement is expected to finally provide an exact count of the number of lead lines in place throughout the United States.

In July 2021, 147 community and environmental groups submitted a letter to the EPA urging the Agency to implement changes to the LCR, including setting actionable triggers as close to zero as possible for lead, according to the New York League of Conservation Voters.

LPPAP Particulars

“The administration is allocating $15 billion from the bipartisan infrastructure law for lead service line replacements at the EPA through the Drinking Water State Revolving Fund,” reports CNN. “It will also allocate an additional $11.7 billion in state revolving funding, which is funding administered by a state to provide low-interest loans for investing in water and sanitation infrastructure.

“The EPA will allocate $3 billion of this $15 billion to states, tribes and territories to replace lead pipes next year, Harris said. The EPA is also launching a new regulatory process to protect communities from lead in drinking water.”

Other highlights of the plan include:

  • 15 new actions from more than 10 federal agencies;
  • The Treasury clarifying that the $350 billion State and Local Fiscal Recovery Fund provided in the American Rescue Plan can be used for lead service line and lead faucet and fixture replacements;
  • The EPA and the Department of Labor (DOL) establishing regional technical assistance hubs to fast-track lead service line removal projects in partnership with labor unions and local water agencies;
  • The Department of Housing and Urban Development (HUD) awarding approximately $13.2 million in grants to remove lead paint and other home health hazards in low-income communities to protect children and families;
  • The Centers for Disease Control and Prevention (CDC) closing gaps in childhood lead testing through the Childhood Lead Poisoning Prevention Program;
  • HUD, the U.S. Department of Agriculture (USDA), and the Department of the Interior (DOI) committing to remove lead service lines and paint hazards in federally assisted housing, including tribal housing; and
  • Establishing a new Cabinet Level Partnership for Lead Remediation in Schools and Child Care Centers.

Funding Details

In addition to the $350 billion in funding provided in the American Rescue Plan for states, localities, and tribes to utilize for lead pipe, lead faucet, and fixture replacement, the president’s agenda calls for additional investments:

  • $15 billion of direct funding from the Bipartisan Infrastructure Law for lead service line replacements at the EPA through the Drinking Water State Revolving Fund (SRF) and an additional $11.7 billion in SRF funding that can be used for lead pipe replacement.
  • $9 billion in the Build Back Better (BBB) Act for lead remediation grants to disadvantaged communities through the Water Infrastructure Improvements for the Nation Act (WIIN) program, including for schools and childcare centers at the EPA.
  • $1 billion in the BBB Act for rural water utilities to remove lead pipes at the USDA.
  • $5 billion in the BBB Act for the mitigation and removal of lead-based paint, lead faucets and fixtures, and other housing-related health hazards in low-income households by HUD.
  • $65 billion of BBB Act funding for public housing agencies and $5 billion for other federally assisted housing preservation and rehabilitation, which public housing agencies and owners can use to improve housing quality. This can include replacing lead pipes and privately owned service lines.

The BBB Act is currently stalled in the Senate, reports the New York Post. Senate Majority Leader Chuck Schumer, D-W.V., has expressed concern that the Act would further worsen inflation.

“[A] Democratic source told The Post that the discussions between the president and [Senator Joe] Manchin [of west Virginia] ‘have been going very poorly. They are far apart,’” the Post says. “The source added that Manchin had proposed cutting the expanded child tax credit from the bill completely, a move that is likely to draw pushback from his fellow Democrats.”

A Three-Prong Approach

The White House Fact Sheet details three areas of action for the LPPAP:

  • Update rules, and strengthen enforcement.
  • Reduce exposure in disadvantaged communities, schools, daycare centers, and public housing.

Get resources to communities

In addition to the funding detailed above, the plan calls for:

  • The EPA Office of Water to issue national program guidance to states on water infrastructure funding through the Bipartisan Infrastructure Law covering “key implementation issues such as eligibilities, application and award requirements, compliance with Civil Rights Act Title VI, Made in America provisions, and more.” This guidance is due to be issued in the first quarter of 2022.
  • The EPA to establish Technical Assistance Hubs to support local water agencies to more rapidly remove lead service lines through regional collaborations in select regions with a large concentration of lead service lines. The EPA will work with the DOL to “collaborate with labor unions to accelerate the replacement of lead pipes, including the potential to leverage existing union training centers to host state training seminars on lead service line replacement technologies and to create good paying union jobs.”

Update rules, and strengthen enforcement

  • The EPA announced it will immediately begin work to develop a proposed National Primary Drinking Water Regulation: Lead and Copper Rule Improvements (LCRI) to strengthen key provisions of the National Primary Drinking Water Regulations: Lead and Copper Rule Revisions (LCRR).
  • The EPA also announced it will issue new guidance outlining critical steps local water systems should take to achieve 100 percent lead service line replacement on implementation of the existing LCR, which went into effect in December 2021. The Agency is also updating the Safe Drinking Water Information System to support state and tribal data management needs for inventories and will pursue research to use data analytics and other methods to make it quicker and less expensive to identify and map lead service lines.
  • Other actions announced by the EPA include:
    • Developing and partnering on plans to ensure the equitable distribution of funds for reducing lead in drinking water;
    • Committing to oversight and technical assistance for communities impacted by high lead levels;
    • Improving risk communication through additional EPA guidance and tool development; and
    • Encouraging full lead service line replacement and strongly discouraging partial lead service line replacement.

Reduce exposure in disadvantaged communities, schools, daycare centers, and public housing

  • The CDC announced it will identify and close gaps in childhood blood level lead testing through the Childhood Lead Poisoning Prevention Program.
  • The Office of Management and Budget (OMB) and Council on Environmental Quality (CEQ) will track lead pipe and paint investments to ensure they comply with Biden’s Justice40 initiative.
  • The EPA’s draft Strategy to Reduce Lead Exposures and Disparities in U.S. Communities looks broadly at lead exposure pathways and identifies actions government agencies are taking to reduce lead exposure. 
  • Calls for the development of a Cabinet Level Partnership for Lead Remediation in Schools and Childcare Centers, which is a partnership between the EPA, the U.S. Department of Education, the U.S. Department of Health and Human Services (HHS), and the USDA committed to make rapid progress on lead remediation in schools and daycare facilities.
  • HHS will pursue actions through the CDC. The CDC’s nationwide network of Childhood Lead Prevention Program (CLPPP) Grantees and Pediatric Environmental Health Specialty Units (PEHSU) will continue to support lead poisoning prevention activities across the country.
  • The USDA will pursue actions through its Rural Development Mission Area, including efforts to prevent lead poisoning within community facilities and business programs. The Community Facilities Program will continue to fund eligible projects for installation of water filter stations in schools and childcare facilities.