During the course of 2021 EPA has already been sued twice regarding the LCRR. EPA was sued in March by parties that believed the final LCRR published in January was not sufficiently protective. This lawsuit was stayed pending the outcome of the review process that will end in December 2021. EPA was also sued in August by parties that believe the extension process was not legal, and that the final rule must stand as published in 2021. It is uncertain as to how these lawsuits will ultimately play out and whether they will impact the substance or timing of EPA’s finalization of the rule or state’s ability to adopt the LCRR. If there are no legal impacts to the timing, if EPA finalizes this rule in December 2021, Colorado will have two years to adopt a rule no less stringent.
In general, Colorado is pleased with the efforts that EPA undertook after the draft LCRR was issued as several of our comments, including adding more flexibility regarding how Optimum Corrosion Control Treatment (OCCT) studies can be conducted. There is no way to be sure what items within the final LCRR EPA may consider adjusting, but we believe some of those items likely involve the following:
- Increasing the proposed 3% Lead Service Line Removal (LSLR) rate after an action level exceedance.
- Not allowing LSLR to stop, once it begins even if lead levels decrease below the action level.
- How components like pigtails, galvanized pipes, etc. fit into the definition of lead service lines for inventory and removal purposes.
- Sampling procedures including utilizing an approach that would involve evaluating both first draw and 5th-liter samples.
- Simplifying the “find-and-fix” process, especially for non-LSL sample sites.
- Altering the small system flexibility and not allowing avoidance of OCCT for 15 years while an LSLR program is implemented. Providing filters is one option that may be added to the rule.
Colorado has continued to urge EPA to allow for alternative OCCT options considering our experience with the Denver Water variance. Colorado believes water systems should be allowed an alternative if corrosion control treatment is applied, LSL replacement is expedited above required LSL replacement rates, pitcher filters are provided to all customers with LSLs, and the system implements an extensive public outreach and education campaign.
Of course Colorado supports being able to implement a rule that can help improve health protection and reduce lead exposure, especially for children. Beyond the specific content of the rule, we remain concerned about the technical and financial resources needed for water utilities and states to comply with the LCRR. Due to the complexities of multiple handoffs, reviews, sample site changes, and new tracking and reporting requirements, we will all need to work hard to develop needed guidance, tools, and clarifications to implement the LCRR. Once we have a final LCRR, we will begin to plan our stakeholder process to adopt the rule plus develop supporting policies and guidance.
➽ Ron Falco, P.E. Safe Drinking Water Program Manager
