UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH19
Date Issued: December 1988
SUBJECT: Lead Ban
SOURCE: Betsy Devlin
Section 1417 of the Safe Drinking Water Act (SDWA) prohibits the use of lead pipes, solder, and
flux any time after the enactment of the SDWA amendments of 1986. However, this section
also requires States to enforce the lead ban no later than 24 months after enactment (June 19,
1988).
What recourse does a homeowner have if lead solder was installed in his home after the
enactment date, but prior to the enforcement?
Response:
(A) The use of lead pipes, solder, and flux was banned by the SDWA effective June
1986. Therefore, any plumber, general contractor, etc. who used lead solder, pipe
or flux after that date is in violation of federal law. However, EPA's general
enforcement authorities (Section 1414) are, by the terms of the statute, limited to
violations of National Primary Drinking Water Regulations (NPDWRs)
promulgated under Section 1412 of the SDWA. Since the lead ban is a
requirement of Section 1417, not an NPDWR requirement, EPA cannot bring an
administrative or judicial action under Section 1414 when there is a violation of
the lead ban.
(B) EPA always has the option of proceeding under its emergency powers in Section
1431. This provision allows EPA to, among other things, issue orders as
necessary to protect health of persons and commence civil actions for appropriate
relief. The provision includes a restraining order or permanent or temporary
injunction, when it finds that a contaminant which is present in or is likely to enter
a public water system may present an imminent and substantial endangerment to
the health of persons. Section 1431 clearly states that this provision applies
"notwithstanding any other provision of this title." Therefore, even though the
Section 1414 authorities cannot be used to enforce the lead ban, Section 1431 is
available provided EPA can make the required findings.
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WSGH19
(C) The homeowner should consult State law to determine if there is a State or local
ban on lead in effect, when the ban became effective, if there is a State agency that
is responsible for enforcing it, and what the penalties are for violating the State
ban. Two situations arise:
1) If the state does not have a lead ban or if the lead was installed after June
19, 1986, but before the State's law was effective, the homeowner may not
have a specific statutory or regulatory remedy under State law. In such
cases, the homeowner may wish to consider a citizen suit under Section
1449 of the SDWA alleging that the contractor violated Section 1417 of
the SDWA. A suit based on tort law concepts against the plumber (or
contractor) in State court may also be appropriate. The homeowner may
wish to notify EPA and have the Agency investigate to determine if the
situation is appropriate for a 1431 order (as discussed above).
2) If the State has a lead ban and it was in place when the lead was installed,
the homeowner can use the remedies and procedures under the State law in
addition to the remedies discussed in (a) above.
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