The U.S. Environmental Protection Agency (EPA) has issued two rules to reduce exposure to lead in homes and drinking water. The first rule strengthens the requirements for identifying and removing lead-based paint from homes and childcare facilities built before 1978 and the second rule mandates that drinking water systems replace lead and certain galvanized service lines within 10 years. Compliance with the new lead rules is likely to be costly, but the documented health effects of lead in children and adults, and substantial research showing that no level of lead exposure is safe for a fetus or young child, are driving the stricter requirements. It remains to be seen whether these rules survive changes in future administrations and Congress.
Lead-Based Paint Dust Rule
Lead-based paint has been banned from consumer use since 1978, but it wasn’t until 1992 that Congress adopted the Residential Lead-Based Paint Hazard Reduction Act, which delegated authority to the EPA to establish lead-based paint levels in homes. Although Congress directed an 18-month timeline for EPA’s adoption of standards, the agency did not finalize standards until 2001. Those standards were revised again in 2020 but, under pressure from a federal lawsuit to update its standards, the EPA has now adopted a more stringent standard in a final rule published in the Federal Register on October 30, 2024, to take effect 60 days after publication.
Under the 2020 rule, the EPA had two dust-lead levels — a hazard level for the surface dust in residential dwellings that contained lead in excess of levels determined to pose a threat to human health, and a clearance level for the dust-level to be achieved after abatement. The limits under both levels were identical. EPA’s new rule renames the two levels and decouples them. Now the two dust-lead levels to be concerned with are the Dust Lead Reporting Level (Reporting Level or DLRL) and the Dust Lead Action Level (Action Level or DLAL). Under the former hazard level, the limits were a static level (10 micrograms per square foot (µg/ft2) for floors and 100 µg/ft2 for window sills), but the new Reporting Level is now any reportable level of dust-lead analyzed by a certified laboratory. The purpose is to make the Reporting Level consistent with the federal Toxic Substances Control Act (TSCA) requirement to identify dust-lead as any reportable level and not distinguish based on health risks posed. The Action Level for dust-lead abatement has now taken the former clearance level and reduced it by 50 percent (which itself had been a substantial reduction from the 2001 rule) — changing from 10 µg/ft2 to 5 µg/ft2 for floors, from 100 µg/ft2 to 40 µg/ft2 for windows, and from 400 µg/ft2 to 100 µg/ft2 for window troughs.
In addition, the EPA has modified the definition of “abatement” to be consistent with TSCA as “any measure or set of measures designed to permanently eliminate lead-based paint hazards” and that “the recommendation for action applies when dust-lead loadings are at or above the dust-lead action levels” rather than hazard standards. After completing abatement, a certified supervisor is required to prepare a report detailing the sampling for post-abatement testing. Where dust-lead levels are between the Reporting Level and the Action Level, the report is required to refer to a reference guide, “Protect Your Family From Lead in Your Home,” which discloses the lead-based paint hazards that could remain after abatement.
The dust-lead rules apply to “child-occupied facilities," which are buildings or portions of buildings, constructed before 1978, in which the same child regularly visits on at least two or more different days within any given week, with their visits lasting at least three hours with combined visits of at least six hours, and combined annual visits of at least 60 hours. These facilities include daycare centers, preschools, and kindergarten classrooms.
For disclosure of lead-based paint hazards to buyers or tenants, “housing for the elderly” is included and defined as “retirement communities or similar types of housing reserved for households composed of one or more persons 62 years of age or more at the time of occupancy.”
Notwithstanding the 1978 ban on lead-based paint for residential use, analyses of pre-1978 homes have concluded that nearly 31 million houses (roughly a quarter of the total housing stock) still contain lead-based paint, and 3.8 million of those homes have one or more children under the age of six living there. Furthermore, a 2021 study also determined that of the 5.4 million households earning less than $35,000 per year with children under age six, 2.1 million (39.5 percent) have lead-based paint hazards under the old standards. With the reduced standards under the new rule, those figures are bound to increase. Consequently, dust-laden lead from flaking and chipping paint remains a significant environmental factor.
Although the new dust-lead rule does not mandate any action by a property owner or resident, the new rules could trigger: a risk assessment if a child in a residential or childcare facility has a high blood lead level reading; sellers and landlords of housing built before 1978 must disclose known lead-based paint or lead-based paint hazards or reports to a purchaser or lessee; property owners who receive federal funding from the U.S. Department of Housing and Urban Development must follow HUD’s requirements (separate from the EPA) for investigating potential lead hazards; and local or state laws and regulations may impose risk assessment requirements, for example when there is a change in tenants.
There may be opportunities for future presidential administrations and Congress to revise or rescind the Lead Dust Rules, but the directives from the Ninth Circuit in A Community Voice v. U.S. E.P.A. that prompted the new rules suggest that rollbacks are unlikely to receive a favorable reception by the court.
Lead Pipe Replacement Rules
At about the same time as the Lead-Based Dust Paint Rule, the EPA also issued a final rule to prevent lead in drinking water by requiring the replacement of lead and certain galvanized service lines over the next 10 years (Replacement Rule). Water systems with a high proportion of service lines requiring replacement are eligible for a deferred deadline if they meet a specified threshold and receive state approval. The replacement requirements apply regardless of the lead levels occurring in tap or other drinking water samples. According to the EPA, “while consistently well-operated and optimized corrosion control treatment (CCT) is generally effective at reducing lead to low levels, elimination of lead and [galvanized] service lines will result in even greater public health protection by eliminating a significant lead exposure source and will minimize the impacts of CCT implementation errors that have been documented over the years.” The Replacement Rule also lowers the lead action level from 0.015 milligrams per liter (mg/L) to 0.010 mg/L.
A key component of the Replacement Rule is for water systems to create an initial inventory, regularly updated, to identify the material for all their service lines and to make those inventories publicly available. Finally, the Replacement Rule changes the tap sampling protocol that water systems use to test the lead content. Under the new rule, water systems are required to collect the first-liter and fifth-liter tap samples and use the highest of the two values to determine compliance. This is intended to better represent water that has been stagnant both within the lead service line and the premises' plumbing and will help water systems better understand the effectiveness of their CCT system.
Water systems that have consistently high lead levels are required to conduct additional outreach to their customers and to make available to all customers filters certified to reduce lead in drinking water. Compliance is required within three years of the final rule, but as of October 26, 2024, water systems must comply with the provisions of a 2021 rule that are not changed by the new rule — specifically, inventory, notice of service line material, and public notification of lead action level exceedances.
Some water systems, such as Bellevue, WA, never used lead service lines. King County, WA, banned all lead service lines in 1968, so only homes built before 1968 could have lead pipes from the water meter to the house. The vast majority of the 50,000 public water systems in the U.S. have fewer than 1,000 lead service lines and some have already conducted replacement projects in relatively short time periods. Spokane, for example, took two years to replace its lead service lines. Larger systems, such as Flint, Michigan, the poster child for lead water lines, replaced its lines in seven years, but it took 11 years for Madison, Wisconsin, and 12 years for Lansing, Michigan, to replace their lines.
There are differences of opinion as to how much it will cost to implement the Replacement Rule. The EPA’s cost estimates ranged from $20-$35 billion over the 10-year replacement program, while the American Water Works Association estimated a total cost of more than $90 billion. As part of the elimination of lead service lines, the Infrastructure Investment and Jobs Act allocated $15 billion for lead service line replacement projects and activities directly connected to the identification and replacement of lead service lines. An additional $11.7 billion was included for the Drinking Water State Revolving Fund General Supplemental, which can be used for lead service line replacement and drinking water projects.
The long timeline for compliance provides ample opportunities for future presidents and Congress to change or revoke the Replacement Rule entirely.
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