UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
GUIDANCE FROM HOTLINE COMPENDIUM
WSGH20
Date Issued: February 1989
SUBJECT: Lead Ban
SOURCE: Betsy Devlin
A person builds a new home after June 19, 1986, the effective date of the lead ban. The
homeowner discovers that lead solder was used to install plumbing and confronts the contractors
about it. The builders inform the homeowner that the local government permitted them to install
lead solder in homes after the deadline, provided they had already purchased it prior to the
deadline. The builders claim they were allowed to use up their supply of lead solder first, and
then switch to non-lead type thereafter. The homeowner would like the lead solder removed and
new plumbing installed.
What legal rights does the homeowner possess? Can a citizen pursue an action against the
contractor? The local government?
Response:
The federal lead ban was effective June 19, 1986. Therefore, by installing lead solder
after that date, the contractor violated a federal law. The homeowner could bring a
citizen suit under Section 1449 of the Safe Drinking Water Act to require the contractor
to comply with the lead ban. (It should be noted that the citizen suit provision appears to
allow for injunctive relief only; there is no penalty provision). In any such suit, the
contractor is likely to raise as a defense, that the local government permitted him or her to
install lead solder. The citizen would have to argue that the local law was inconsistent
with the federal law and that federal law would prevail in this case; local law cannot
"undo" a federal law.
The homeowner may also notify EPA of the problem, EPA could potentially withhold
five percent (5%) of the State Public Water System Supervision (PWSS) grant and/or
consider issuing an emergency order under Section 1431 (if the requisite findings could
be made).
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