United States: The Illinois House Revives Lead Pipe Bill

Mark Edward Burkland is a Senior Counsel in Holland & Knight's Chicago office

Brooke D Lenneman is an Attorney in Holland & Knight's Chicago office

HIGHLIGHTS:

  • The Illinois House has resurrected the effort to require municipalities and other water suppliers to create and implement plans for replacement of private lead service lines.
  • If the bill survives in its current form, the Act would impose significant unfunded mandates on the owners and operators of community water supplies, including municipalities.

Illinois House Bill 3035 resurrects the effort to require municipalities and other water suppliers to create and implement plans for replacement of private lead service lines.

The initiative to require municipalities and other water suppliers to create and implement plans for replacement of private lead service lines had been introduced previously, but died in committee. Recently, that effort was revived when the text of Illinois House Bill 3035, which was originally born as an amendment to the Illinois Nursing Home Care Act, was stripped and replaced with the "Lead Service Line Replacement and Notification Act" (the Act).

If the bill survives in its current form, the Act would apply to owners and operators of community water supplies, including municipalities, and would impose significant unfunded mandates on the water suppliers. This Holland & Knight alert highlights the key provisions of the Act.

Inventory

The Act would require each water supplier to undertake a comprehensive inventory of all water service lines within the supplier's system, with the following elements.

  • The inventory must include:
    • the total number of service lines
    • the materials of each service line
    • the number of suspected lead service lines and the number of newly identified lead service lines
    • the number of suspected or known lead service lines that were replaced since the last inventory
    • the water supplier's prioritization of the inventory of high-risk areas such as schools, daycare centers, parks, hospitals and similar areas
  • An initial inventory must be submitted electronically to the Illinois Environmental Protection Agency (IEPA) by April 15, 2020. The inventory then must be updated by April 15, 2021, and every year thereafter until all service lines have been inventoried.
  • The IEPA must approve each inventory.
  • After that approval, the water supplier must submit a revised inventory to the IEPA every third year until there are no more lead service lines.

The bill includes numerous additional standards for the inventory. Notably, the water supplier is not required to unearth a service line for the purposes of the inventory.

Lead Service Line Replacement Plan

The Act would require each water supplier to create a plan for replacing all lead service lines, with the following elements:

  • replacing each lead service line
  • replacing each galvanized service line connected to the water supply system
  • determining the materials of all suspected lead service lines and all service lines of unknown materials
  • create a timeline for regular revisions to the plan
  • an analysis of costs and financing options for the required replacements, including:
    • a detailed accounting of costs and financing options
    • affordability
    • consideration of different scenarios for structuring payments between the water supplier and customers or ratepayers
  • numerous additional elements, including feasibility plans, allocation of costs and low-cost loans for property owners

The IEPA must approve the plans.

Additional Elements

The Act imposes numerous additional duties on water suppliers, including:

  • attending to emergency repairs on private lead service lines
  • providing notice to an owner when the water supplier will undertake replacement of a lead service line, including warnings related to that work
  • including in each annual report all of the updated data noted above

Funding

The Act includes no funding for the water suppliers, leaving public bodies responsible for all costs related to inventories, reports, planning, and other administrative tasks and substantial costs for replacement of lead service lines.

The Act does require the IEPA to create a low-income water assistance policy and program, which would apply only to residents.

Impacts and an Option

Municipalities throughout Illinois have been concerned for decades about deteriorating water systems and, with that, lead pipes. Some municipalities have begun offering residents with lead service lines the opportunity to replace those lines in conjunction with an adjacent water main replacement project. This approach can significantly reduce a resident's cost for replacement of the service line, while at the same time reducing the water supplier's risk for incurring significant future costs related to those lead service lines.

Holland & Knight attorneys have written bidding documents for water main replacement projects that include fixed prices for adjunct lead service line replacements or that require bidders to include pricing for those replacements as part of their bids.

Illinois municipalities should consider acting quickly on the lead service line issue, which could reduce the intense administrative burdens and increased costs that will result should the Act become law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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