Despite uncertain future, there is much to consider from published LCRR language
|UPDATED - March 22, 2021. The Action Level for copper indicated in the first consideration was incorrect at the time of publishing. It is 1.3 ppm. This article has been updated to reflect the correct concentration and WWD regrets the error.|
(Editor's Note - March 10, 2021: On March 5, 2021, two proposals for the LCRR were sent to the U.S. Office of Management and Budget for review. It is not yet clear what these proposals contain or how they may impact the effective date.)
On Dec. 22, 2020, the final version of the Lead & Copper Rule Revision (LCRR) was finalized and approved. It was then published in the Federal Register Jan. 15, 2021, but just five days later, on President Joe Biden’s first day in office, White House Chief of Staff Ron Klain issued a presidential memo to pause all unpublished regulations, pending review. In addition, the order called for any regulations published in the Federal Register to be opened for review for 60 days, including a 30-day comment period, so long as the published rule had not yet taken effect.
The published version of the LCRR indicated it would be effective March 16, 2021, and this left water and wastewater industry leaders wondering what the future of the rule would be. The wording of the memo indicates delaying the effective date by 60 days from the date of the order, which would mean the LCRR would be effective March 21, 2021 if the review goes smoothly.
There are many agencies, organizations and activists who believe the final LCRR published in January does not go far enough to protect U.S. citizens from lead in drinking water. Meanwhile, other associations, organizations and leaders are concerned that making the rule even more strict will place undue burden and hardship on utilities that are already struggling to maintain and follow a host of regulations.
As of this writing, the future of the LCRR is not clear, but below are five critical points that were published Jan. 15, 2021, in the Federal Register. The finer details of these elements — threshold levels, notification timing and service line replacement timetables — may change during a potential 30-day public comment period. But the core aspects — public notification, increased sampling and lead service line replacement programs — are still critical aspects for which utilities should plan.
15 ppb Action Level & 10 ppb Trigger Level
Under the published rules of the LCRR, the 90th percentile action level and trigger level for lead in drinking water are 15 ppb and 10 ppb, respectively. The 90th percentile action level for copper in water is 1.3 ppm.
The action level remains the same as the 1991 promulgation or the LCR, but it introduces a Maximum Contaminant Level Goal of 0 ppb. This goal is not a requirement, but rather a level to strive toward while meeting other requirements of the rule.
In the version published Jan. 15, the LCRR indicates this trigger level is not a health-based standard. Instead, this level was chosen because it is below the action level of 15 ppb while remaining above the “Practical Quantitation Level” of 5 ppb. This 10 ppb level triggers a set of actions for the utility to conduct so as to address lead levels in water in accordance with the LCRR noted below.
Lead & Copper Tap Monitoring Sample Site Collection
The sample site collection provision of the rule places an increased focus on sampling from locations known to have lead service lines (LSLs). All samples must be collected from sites with LSLs if those sites are available for sampling. Included in this section is a note that there is no priority difference for copper pipe with lead solder when determining LSLs for sampling sites.
Fifth Liter Collection Procedure
When collecting water for sampling in homes served by LSLs, the sample must come from the fifth liter produced by the sample site tap after the water has sat stagnant for at least six hours. This change only affects sampling at homes with LSLs, meaning sampling for homes without LSLs would maintain current collection procedures and first liter sampling.
Additionally, the collection procedure for LSL-served homes “prohibits sampling instructions that include recommendations for aerator cleaning/removal and pre-stagnation flushing prior to sample collection.” As such, samples must be taken directly from the tap in homes served by LSLs without interference from aerators or flushing to ensure the sampling is the most representative example of the water in the home it can be.
When lead sampling is more frequent than copper, samples may be tested for only lead instead of both, with sampling for copper following the rules promulgated in 1991. The monitoring frequency for lead follows 90th percentile with the
- Semi-annual testing is required at the standard number of sites for 90th percentile of 15 ppb.
- Annual testing is required at the standard number of sites for 90th percentile of 10 to 15 ppb.
- For sites testing 90th percentile of less than 10 ppb, testing is annual at the standard number of sites and triennial at a reduced number of sites using the testing criteria of the 1991 rule. In the case of triennial testing, 90th percentile of copper is not considered.
Lead Service Line Replacement
The lead service line replacement regulations are likely to be among the most difficult with which to comply. With this provision, utilities will be required to create a Lead Service Line Replacement Program that includes how it will inventory the pipes in its network and how it will replace all the lead ones.
Within three years of the effective date of the LCRR, utilities must develop such a plan or show the absence of LSLs in their network. For those creating a plan, inventory of LSLs must be conducted annually or triennially, depending on tap sampling frequency.
3,300 Population or More
For community water systems serving more than 3,300 people that reach the action level of 15 ppb, the system is required to replace 3% of its LSLs per year.
Opposition to the LCRR in this published form states the 3% replacement is too low, so this is a potential portion of the rule that would receive additional comment or adjustment given the Jan. 21 memo.
For those above the trigger level but below the action level, the community water system will be required to initiate a LSL replacement program that includes replacement goals coordinated with the primacy agency for two consecutive one-year monitoring periods.
Private LSL Replacement Triggers Utility LSL Replacement
With the LCRR rules, if a homeowner in the service area replaces LSLs on their property and notifies the utility of this replacement, the utility must replace utility-owned LSLs within 45 days of the notification. If that timeframe is too tight, however, the utility may notify the state and replace the utility-owned lines within 180 days instead.
Providing Pitcher Filters & Cartridges
For six months after the utility has replaced a LSL, it must provide pitcher filters and filter cartridges to each customer for six months. These must be provided within 24 hours of full or partial LSL replacement. This will likely require partnerships with water treatment dealerships or larger manufacturers of pitcher filters to provide these items at scale.
Testing Schools & Childcare Facilities
To comply with the current language of the LCRR, water utilities will be required to test the water of 20% of elementary schools and 20% of childcare facilities within its servicing area annually. Secondary schools can request sampling at their facilities as well, and the language indicates the testing cycle for this is once every five years. The results of any samples tested in this way must be made available to the school or child care facility, the primacy agency overseeing the sampling programs, and local and state agencies.
Notably, however, any facility that was built brand new from Jan. 1, 2014 onward does not fall into the bucket of schools or facilities that must be sampled in accordance with this provision of the LCRR.
LSL Reporting to the Public
Under this portion of the LCRR, utilities will be required to update educational materials for the public with current health effects information, and the utilities must also provide that information upon request in any language the requester would like. These materials must also be distributed to households within 24 hours of a sample meeting the action level of 15 ppb.
Additionally, any request for LSL inventory — including pipe location, pipe replacements, and the LSLR plan — must be fulfilled. The same goes for requests regarding the sampling procedures mentioned earlier. All records, essentially, must be made transparent and available to the public at its request.
Finally, water systems will be required to deliver notice and educational materials to households in areas where there have been LSL disruptions due to utility work. If a household’s home tap sample exceeds 15 ppb, the utility must also provide the educational materials to that household within three days.
And lastly, this information must also be provided to state and local health agencies so they may also distribute it.
Funding & Financing Options
One of the primary concerns for utilities with this LCRR language is ensuring they remain compliant with it. Some of the provisions will require tremendous administrative work in addition to capital expenditures to not only replace pipe, but take inventory of that pipe.
Large utilities — such as Chicago — have vast networks of lead pipe that must be replaced, and that scale will present challenges for replacement. As such, it will be critical that solutions providers have answers for these utilities. Perhaps more importantly, however, the thousands of small systems — 3,300 population or fewer served, according to U.S. EPA — will need aid to find the capital for inventory of and replacement of this pipe, not to mention the cost to take and run all the samples required by the rule.
With this in mind, below are some financial vehicles that the U.S. EPA has noted in its messaging and infographics that will be of critical use to utilities in meeting the standards of the LCRR. This list is not exhaustive and more information is available on the U.S. EPA website for additional grant opportunities.
State revolving loans are at the core of funding for water and wastewater utilities. On average from 2018 to 2020, $1.1 billion has been appropriated for DWSRF nationally. This includes all states, territories, and Washington, D.C., with each state having different appropriations based on the allocations made by Congress. Projects that use this fund get a 20% match from the U.S. EPA for qualified work, which includes projects for treatment and distribution. According to documentation from the U.S. EPA regarding its FY 2021 budget, the expected budget obligation for DWSRF will be reduced to $863 million.
This grant program was created and designed to specifically address drinking water issues throughout the U.S. Three provisions were added to this grant program to tackle some of the LCRR items noted above: assistance for small systems and disadvantaged communities, reducing lead in drinking water, and testing for lead in schools and child care facilities.
First, the allotment for the small systems portion was $42 million in FY 2019, and according to the U.S. EPA website, applications for grants affecting FY 2019 are being accepted through June 30, 2021.
For the grants tied to reducing lead in drinking water, however, the timing has concluded. The U.S. EPA announced in October 2020 nearly $40 million in projects to tackle lead service line replacements and lead in schools. The FY 2021 EPA budget document does, however, included $20 million to extend this grant program.
And for testing of lead in schools and childcare facilities, the appropriation in 2019 was $42 million. It was further funded in 2020 and according to the FY 2021 budget document from the U.S. EPA, the agency requested $15 million for the lead testing in schools and childcare facilities portion of WIIN.
In a press release Jan. 12, 2021, the U.S. EPA announced $5.1 billion across 55 projects in 20 states are invited to apply for funding assistance through this program. In total, the agency expects this will account for $12 billion in total project costs throughout the U.S. in 2021 for both drinking water and clean water projects. For the first time, Alabama, Iowa, Ohio, Texas, and West Virginia projects are included in the list of projects invited to apply for WIFIA assistance. Assuming this allocation continues, it will be critical for utilities to contact the U.S. EPA Office of Water to get their projects on the agency’s radar for this program.
The Community Development Block Grants through U.S. Housing & Urban Development would apply to new construction projects for affordable housing in disadvantaged communities. Utilities may be able to tap these grants for additional funding or assistance to ensure the LSLs in an area where new housing is being constructed are replaced. As these grants have a more narrow scope than the previously mentioned, they may be more difficult to use, but the U.S. EPA lists them as one of the vehicles utilities should consider when looking for assistance to meet the LCRR.