Like Drinking from a Fire Hose

Public and Private Utilities are Left with an Unlikely Hydrant Dilemma

December 4, 2013

EPA Guidance on Hydrants

A recent administrative decision by the EPA is causing concern among water utilities and could cause an immediate shortage of fire hydrants across the country. On Oct. 22, 2013, the EPA issued guidance about the implementation of the Reduction of Lead in Drinking Water Act, portions of which will take effect on Jan. 4, 2014. A novel interpretation from the EPA that classifies water from fire mains and hydrants as “drinking water” and, therefore, requires all mains and hydrants to be free from lead, leaves most commercially available fire hydrants illegal for installation after Jan. 4, 2014.

Opposition

In a Nov. 7, 2013, letter to EPA, four water organizations (American Water Works Association, Association of Metropolitan Water Agencies, National Association of Water Companies and National Rural Water Association) stated objections to the recent agency interpretation and observed that this is the first time EPA “provided any indication that hydrants would be considered a potable water supply,” that the interpretation is contrary to congressional intent and that it “represents a significant expansion of the scope of the law” that should be addressed through a formal rulemaking. The groups express concern felt by many in the municipal water supply business that the agency’s interpretation could strand hundreds of millions of dollars of public and private assets without providing any additional public health protection.

Federal Law

Federal law does not address hydrants but the legislative history makes it clear that Congress intended to mirror earlier state laws enacted by California and then by Vermont and Maryland that do not apply to fire hydrants. On Dec. 2, 2013, the U.S. House of Representatives passed legislation (384-0) to exempt fire hydrants from new Environmental Protection Agency rules on lead in drinking water. The House bill was cosponsored by Reps. Bill Johnson (R-Ohio), a member of the House Committee on Energy and Commerce, and Paul Tonko (D-NY), ranking member of the Energy and Commerce Subcommittee on Environment and the Economy, and calls the EPA’s decision “absurd” and a risk to public safety.

Until a legislative fix is enacted, or the EPA reverses its earlier guidance, municipalities with fire hydrants damaged from accident, freeze or routine wear and tear are left with the choice of risking a fine from the EPA for installing an illegal fire hydrant or leaving citizens unprotected by failing to install lifesaving hydrants. Municipalities and suppliers that were never on notice of a need to comply with lead-free regulations are potentially left with expensive unusable inventory. If you are dealing with this or a related issue, please feel free to contact Dale Mullen in the water resources industry team for recent developments and compliance solutions.

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