Why the election may slow plans to replace lead pipes

KFF Health NewsJul 10 2024

With the Environmental Protection Agency's latest — and strictest — plan to minimize the risk of Americans drinking lead-contaminated water on the horizon, the debate over whether the rules go too far or not nearly far enough is reaching a tipping point.

Although lead was banned from new water service lines in 1986, it's estimated that more than 9 million such lines still carry drinking water to homes and businesses throughout the country. Under the EPA's Lead and Copper Rule Improvements proposal, water utilities would be required to replace all lead-containing lines within 10 years.

The proposal from the Biden administration builds on different rules put out in the waning days of the Trump term that allowed up to 30 years for service line replacement, triggered only when lead levels test higher than 15 parts per billion. The new proposal, which would largely supplant the Trump rules, calls for stricter monitoring, enhanced public education, and the 10-year pipe replacement mandate regardless of lead levels.

An October deadline looms for the new rules to be adopted; otherwise, enforcement of the less-stringent Trump administration rules will begin. And complicating matters more: November's election results could shake up whose rules the nation must follow.

While many cities and states have begun to replace their lead pipes, some utilities and officials say the 10-year time frame is unfeasible and too expensive. They say it would be difficult for water utilities to follow the rules while dealing with new EPA limits on five PFAS contaminants, known as "forever chemicals," and failing pipes, among other issues.

"Nobody will tell you that having lead in contact with water is a great idea," said Steve Via, director of federal relations for the American Water Works Association, the country's largest nonprofit water utility industry group. "The question becomes: How urgent a matter is it, and at what pace does it need to be done?"

Already, 15 Republican state attorneys general have argued that the proposed rules infringe on states' rights and chase "speculative" benefits. On the other side, 14 Democratic attorneys general said that the EPA should find more ways to ensure pipes are quickly replaced in low-income areas.

To be sure, no amount of lead is considered safe to consume. Lead is a neurotoxin known to cause irreversible long-term organ damage, lower IQs, higher risk for miscarriage, asthma, cardiovascular disease, impotence, and elevated blood pressure.

Public health advocates say societal costs — in health care, social services, and lost productivity — far outweigh the cost of replacement. They say corrosion controls that have limited lead exposure can and do fail, pointing to human and systemic errors that prompted the water crisis in Flint, Michigan, where thousands of people were exposed to high lead levels in their drinking water.

"That's the whole thing about lead pipes: They unexpectedly release lead into drinking water," said Roya Alkafaji, who manages an initiative focused on reducing lead exposure from water with the Environmental Defense Fund, a national advocacy group. "I don't think kicking the can down the road is the solution."

According to a 2023 analysis by Ronnie Levin, an instructor at Harvard's T.H. Chan School of Public Health, the benefit of replacing lead pipes outweighs the costs by a 35:1 ratio.

Using the EPA's estimated $335 million annual costs from the Trump rules, which include water sampling, corrosion control treatments, inventorying and replacement of lead service lines, and educational outreach, Levin's analysis shows that $9 billion in annual health care costs could be avoided. An additional $2 billion in spending — through upgraded infrastructure and reduced corrosion damage to appliances — could be saved. The broad spectrum of health-related costs has historically been ignored in analyzing the actual costs of leaving lead service lines in place, said Levin, a former EPA scientist.

Estimates of the cost to replace the nation's lead pipes range from $46 billion to more than $90 billion, far higher than the $15 billion set aside in the Bipartisan Infrastructure Law. The Biden administration has framed those funds as a down payment, 49% of which will be grants or principal forgiveness loans allocated on the basis of the estimated number of lead pipes per state. Other funding programs can also be tapped.

Replacement costs vary widely by location, with average costs ranging from the EPA's 2019 estimate of $4,700 per service line to $12,500 from Via's utilities trade group.

Carolyn Berndt, legislative director for sustainability at the National League of Cities, said funding challenges could render the EPA's 10-year timeline unrealistic. While her organization is encouraging local leaders to secure as much funding as possible, what's available won't be enough to cover replacement costs for some localities — especially low-income areas, which often have older infrastructure and more lead pipes.

Some direct costs could fall to property owners, such as replacing the lines connecting their water meters to their homes. And people could face indirect costs if utilities increase customer rates to offset the expense.

Still, some communities, such as Olathe, Kansas, are finding ways to move forward with a patchwork of funding. Out of 37,000 service lines there, 266 galvanized pipes were found serving downtown properties, where many of the city's most vulnerable residents live. The coating for galvanized pipes typically contains lead.

Workers will replace the lines at no cost to property owners in the city of 147,000 people outside Kansas City, said Megan Spence, who is overseeing the city project. It is expected to cost around $2.3 million, paid for with a loan from the Kansas Department of Health and Environment and about $1.2 million in federal infrastructure funding. About $500,000 for lawn restoration is included.

"We’re really looking at this as an opportunity and another way to protect public health," said Spence. "There shouldn’t be any lead lines in any drinking water distribution systems."

Elsewhere, some Republicans, such as Indiana state Sen. Eric Koch, are leading the charge to replace the pipes despite historical pushback in conservative states against federal mandates. He said lawmakers should consider the harm — and long-term costs — caused by delaying the cleanup of lead from drinking water.

In March, Indiana's Republican Gov. Eric Holcomb signed a unanimously approved bill, which Koch authored, designed to lower costs for replacing customer-owned lead service lines. Under the law, landlords are required to enroll in a state-approved program to have their lead pipes removed at no cost by their water utility or pay for replacement themselves.

Koch said estimates for replacing customer-owned service lines are around $8,000, though the cost could be significantly higher for some properties. But by starting the work now, Koch said, utilities can avoid price inflation and ultimately remove pipes more cost efficiently.

Meanwhile, time is running out to publish the Biden administration's proposed rules in the Federal Register. Water utilities will be required to comply with the Trump rules as of Oct. 16 unless the EPA publishes the newer rules before then, said Erik Olson, a senior strategic director of the National Resources Defense Council, an advocacy group. It remains unknown what the June 28 Supreme Court ruling on agency rulemaking, known as the "Chevron deference" decision, will mean for either set of rules.

A deadline is also looming for the 60-day "look-back" period under the Congressional Review Act, during which a regulation can be repealed. If control of Congress or the White House flips with the November election, the Biden administration's rules could be repealed under an emboldened Congress even before the January swearing in of new officeholders.

"Depending on how the election goes, it could become a hot issue," said Tom Neltner, national director of the advocacy organization Unleaded Kids.