This post provides a short background on the Lead and Copper Rule and tracks current developments with the Lead and Copper Rule Improvements.
Background on Safe Drinking Water Act of 1974 and the 1991 Lead and Copper Rule:
In 1974 Congress passed the Safe Drinking Water Act, now codified at 42 U.S.C. 300f et seq. The Safe Drinking Water Act requires the EPA to promulgate drinking water regulations to prevent contamination of public water systems. 42 U.S.C. § 300g–1(b).
A resulting “national primary drinking water regulation” typically specifies for a contaminant with an adverse effect upon human health a “maximum contaminant level” and establishes the procedures and criteria necessary to ensure a supply of drinking water that complies with that maximum contaminant level. See 42 U.S.C. § 300f(1).
However, the EPA also has the authority under the Safe Drinking Water Act to specify a treatment technique in lieu of a maximum contaminant level if the EPA Administrator finds that it is not “economically or technologically feasible” to determine the level of the particular contaminant in a public water system. 42 U.S.C. § 300f(1)(C)(ii).
In 1991 EPA promulgated the “Maximum Contaminant Level Goals and National Primary Drinking Water Regulations for Lead and Copper,” 56 Fed. Reg. 26,460 (June 7,1991), now codified at 40 C.F.R. § 141.80, et seq. The proposed lead and copper rule was over 100 printed pages in the Federal Register. Instead of enforcing a maximum contaminant level for lead, the EPA took the treatment technique option. The rule was challenged by both the American Water Works Association and the Natural Resources Defense Council. See American Water Works Association v. EPA, 40 F.3d 1266 (D.C. Cir. 1994).
The D.C. Circuit deferred (under the now overruled Chevron doctrine) to the EPA’s interpretation of “feasible” in the Safe Drinking Water Act, 42 U.S.C. § 300f(1)(C)(ii), in upholding the rulemaking decision to not enforce a maximum contaminant level for lead. The court reasoned that much of the lead problem comes from customer service lines or indoor plumbing, so the EPA was reasonable in determining that water safe from lead was not "feasible."
The devil of the “feasible” approach is in the details of course. Four big problems:
- Small sampling - about 0.1% of a city’s taps. See 40 C.F.R. § 141.86(c).
- Weak “action level” - 15 (ppb) based on cost-benefit analysis. See 40 C.F.R. § 141.80(c)(1).
- Sacrifice zones – no action required for any lead levels in 10% of sampling. See 40 C.F.R. § 141.80.
- Delays allowed – no action until two consecutive six-month periods. 40 C.F.R. § 141.86(a),(d)
Let's skip over the 2021 Trump (45) Lead and Copper Rule Revisions. But could they come back under Trump 47?
The Lead and Copper Rule Improvements - current developments:
In 2024, the Biden EPA promulgates “National Primary Drinking Water Regulations for Lead and Copper: Improvements,” 89 Fed. Reg. 86,418 (Oct. 30, 2024) (see also the old-school three-column printed version from the Federal Register).
American Water Works Association again challenges the rule (commonly called the Lead and Copper Rule Improvements) in D.C. Circuit Court. American Water Works Association v. EPA, Case No. 24-1376:
American Water Works Association - petition challenging final rule.
American Water Works Association - comments on the proposed rule.
Newburgh Clean Water Project, Natural Resources Defense Council and Sierra Club - motion to intervene on challenge to final rule.
Natural Resources Defense Council, Earthjustice, Campaign for Lead Free Water, Concerned Pastors for Social Action, Flint Rising, Newark Education Workers Caucus, United Parents Against Lead, Water You Fighting For? - comments on the proposed rule.
New York and other states (not Michigan) - motion to intervene on challenge to final rule.
2025 - Andrew Clyde (R-GA) introduces joint resolution under the Congressional Review Act to disapprove the 2024 Lead and Copper Rule Improvements, H.J.Res.44, 119th Congress (2025-2026).
Does your city have lead in its water? If you are in Michigan, look up your city's "90th percentile" lead result. There is no safe level for lead in your water. Anything more than 0 - there is lead in some of your public water samples and your home tap should be tested.