[Federal Register Volume 89, Number 210 (Wednesday, October 30, 2024)]
[Rules and Regulations]
[Pages 86418-86667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23549]
[[Page 86417]]
Vol. 89
Wednesday,
No. 210
October 30, 2024
Part II
Environmental Protection Agency
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40 CFR Parts 141 and 142
National Primary Drinking Water Regulations for Lead and Copper:
Improvements (LCRI); Final Rule
Federal Register / Vol. 89, No. 210 / Wednesday, October 30, 2024 /
Rules and Regulations
[[Page 86418]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 141 and 142
[EPA-HQ-OW-2022-0801; FRL-5423.2-02-OW]
RIN 2040-AG16
National Primary Drinking Water Regulations for Lead and Copper:
Improvements (LCRI)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: In December 2023, the U.S. Environmental Protection Agency
(EPA) requested comment on the proposed the Lead and Copper Rule
Improvements (LCRI), which informed the revisions to the National
Primary Drinking Water Regulation (NPDWR) for lead and copper. After
consideration of public comment on the LCRI, and consistent with the
provisions set forth under the Safe Drinking Water Act (SDWA), the EPA
is finalizing revisions to the NPDWR for lead and copper. In this rule,
the agency is finalizing requirements for drinking water systems to
replace lead and certain galvanized service lines. The final rule also
removes the lead trigger level, reduces the lead action level to 0.010
mg/L, and strengthens tap sampling procedures to improve public health
protection and simplify implementation relative to the 2021 Lead and
Copper Rule Revisions (LCRR). Further, this final rule strengthens
corrosion control treatment, public education and consumer awareness,
requirements for small systems, and sampling in schools and child care
facilities. The final rule will significantly reduce the adverse human
health impacts of exposure to toxic lead in drinking water.
DATES: Effective date: This final rule is effective on December 30,
2024.
Judicial review: For judicial review purposes, this final rule is
promulgated as of October 30, 2024.
Compliance dates: The compliance date for the revisions to 40 CFR
part 141, subpart I, is set forth in Sec. 141.80(a). The compliance
date for the revisions to 40 CFR 141.2 and 141.31 is November 1, 2027.
The compliance date for the changes made to 40 CFR part 141, subpart O,
is set forth in Sec. 141.152(a). The compliance date for the changes
to 40 CFR part 141, subpart Q (Sec. 141.202 and appendices A and B) is
November 1, 2027.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OW-2022-0801. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available electronically through https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Michael Goldberg, Office of Ground
Water and Drinking Water, Standards and Risk Management Division (Mail
Code 4607M), Environmental Protection Agency, 1200 Pennsylvania Ave.
NW, Washington, DC 20460; telephone number: 202-564-1379; email
address: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. General Information
A. What does the final LCRI require?
B. Does this action apply to me?
C. Dates for Compliance
III. Background
A. Overview of Lead and Lead Exposures Through Drinking Water
B. Human Health Effects of Lead and Copper
C. Regulatory History
D. Statutory Authority
E. Anti-backsliding Analysis of LCRI Relative to LCR and LCRR
F. White House Lead Pipe and Paint Action Plan and EPA's
Strategy To Reduce Lead Exposures and Disparities in U.S.
Communities
G. Bipartisan Infrastructure Law and Other Financial Resources
H. Lead Exposure and Environmental Justice, Equity, and Federal
Civil Rights
IV. Final Revisions to 40 CFR Part 141, Subpart I, Control of Lead
and Copper
A. Regulatory Approach
B. Service Line Replacement
C. Service Line Replacement Plan
D. Service Line Inventory
E. Tap Sampling for Lead and Copper
F. Corrosion Control Treatment
G. Water Quality Parameter Monitoring
H. Distribution System and Site Assessment
I. Compliance Alternatives for a Lead Action Level Exceedance
for Small Community Water Systems and Non-Transient Non-Community
Water Systems
J. Public Education
K. Additional Requirements for Systems With Multiple Lead Action
Level Exceedances
L. Lead Sampling at Schools and Child Care Facilities
M. Copper
N. System Reporting and Recordkeeping Requirements
O. Other Proposed Revisions to 40 CFR Part 141
V. Rule Implementation and Enforcement
A. General
B. What are the rule compliance dates?
C. State Primacy and Special Primacy Requirements
D. State Reporting and Recordkeeping Requirements
VI. Economic Analysis
A. Summary of Public Comments and the EPA's Response
B. Affected Entities and Major Data Sources Used To Develop the
Baseline
C. Overview of the Cost-Benefit Model
D. Cost Analysis
E. Benefits Analysis
F. Cost-Benefit Comparison
G. Alternative Regulatory Options Considered
VII. Statutory and Executive Order Reviews
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 14094 (Modernizing Regulatory Review)
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. The Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
G. Executive Order 13045 (Protection of Children From
Environmental Health and Safety Risks)
H. Executive Order 13211 (Actions That Significantly Affect
Energy Supply, Distribution, or Use)
I. National Technology Transfer and Advancement Act of 1995
J. Executive Order 12898 (Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations) and Executive Order 14096 (Revitalizing Our Nation's
Commitment to Environmental Justice for All)
K. Consultations With the Science Advisory Board (SAB) and the
National Drinking Water Advisory Council (NDWAC)
L. Consultation With the Department of Health and Human Services
Under SDWA Section 1412(d)
M. Congressional Review Act (CRA)
VIII. Severability
IX. References
I. Executive Summary
The United States Environmental Protection Agency's (EPA) mission
is to protect human health and the environment. The EPA is finalizing
the Lead and Copper Rule Improvements (LCRI) to significantly reduce
the risk of exposure to lead through drinking water. There is no known
safe level of lead in drinking water. Exposure to drinking water
contaminated with lead can cause serious human health impacts including
neurodevelopmental problems in children and heart disease in adults.
Young children and pregnant people are especially susceptible to the
[[Page 86419]]
impacts of lead exposure. Reducing lead in drinking water will reduce
the risk of negative neurodevelopmental outcomes for children as well
as reduce a range of health risks to adults. This final rule builds on
the 2021 Lead and Copper Rule Revisions (LCRR) and the pre-2021 Lead
and Copper Rule (LCR), originally promulgated in 1991.
The EPA conducted a review of the 2021 LCRR in accordance with
Executive Order 13990 \1\ and announced its intention to strengthen the
2021 LCRR with this new rulemaking, the LCRI, to address key issues and
opportunities identified in the review. This final LCRI addresses the
priorities the EPA identified in the 2021 LCRR review, including the
equitable replacement of lead service lines (LSLs) in the nation,
improving identification of where LSLs are located, and triggering
action in communities most at risk of lead exposure, and streamlined
and improved implementation of the rule relative to the 2021 LCRR. This
final LCRI is the culmination of numerous meaningful consultations with
stakeholders and the public during the 2021 LCRR review, engagements
and consultations held to support the development of the LCRI, and
public comments received on the proposed LCRI.
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\1\ Protecting Public Health and the Environment and Restoring
Science to Tackle the Climate Crisis (86 FR 7037, January 20, 2021).
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The LCRI makes important advancements in protecting children and
adults from the significant and irreversible health effects of exposure
to lead in drinking water. These advancements are scientifically based
and incorporate drinking water system best practices. The final rule
strengthens the lead and copper rule in five focus areas: (1) achieving
lead pipe replacement within 10 years, (2) locating legacy lead pipes,
(3) improving tap sampling, (4) lowering the lead action level, and (5)
strengthening protections to reduce exposure. The final rule also
includes compliance dates and an updated benefits and costs analysis.
Each of these topics is summarized below, in sequential order.
Achieving Lead Pipe Replacement Within 10 Years
This final rule provides a fundamental shift to a more preventive
approach to lead in drinking water. This is based on the EPA's
experience in implementing the lead rule for many years. Specifically,
based on over 30 years of implementing the 1991 LCR, the EPA has
determined that requiring lead service line replacement (LSLR) based on
tap sampling and 90th percentile lead levels alone is insufficient to
protect public health. LSLs are a source of lead exposure in drinking
water, even when systems are optimized at or below the lead action
level.
The science is clear that there is no known safe level of lead in
drinking water, especially for children. Among other effects, lead
exposure can cause damage to the brain and kidneys and can interfere
with the production of red blood cells that carry oxygen to all parts
of the body. In children, even low levels of lead exposure can cause
cognitive health effects like lower intelligence quotient (IQ) as well
as learning and behavioral problems. In adults, health effects include
elevated risk of heart disease, high blood pressure, kidney or nervous
system problems, and cancer.
In the LCRI, the EPA is requiring water systems to replace all lead
and certain galvanized service lines (specifically, galvanized
requiring replacement (GRR) service lines) under their control no later
than 10 years after the compliance date. The LCRI provides, in limited
circumstances, additional time for some systems to complete systemwide
full service line replacement. Water systems must replace lead and GRR
service lines under their control regardless of the lead levels
occurring in tap or other drinking water samples. Replacing lead and
GRR service lines will significantly reduce lead releases into drinking
water. In addition, while consistently well-operated and optimized
corrosion control treatment (CCT) is generally effective at reducing
lead to low levels, elimination of lead and GRR service lines will
result in even greater public health protection by eliminating a
significant lead exposure source and will minimize the impacts of CCT
implementation errors that have been documented over the years.
Historically, lead service lines,\2\ as well as lead-bearing
fixtures and solder, were commonly used in water distribution systems
as well as in home plumbing. While replacing LSLs does not eliminate
all lead exposures from tap water because plumbing systems inside homes
and buildings (i.e., premise plumbing) can also contain lead
components, replacing LSLs removes a key source of lead in drinking
water. Where present, LSLs represent the greatest lead exposure source
through drinking water (Sandvig et al., 2008).\3\ Buildings and homes
built before 1986 often have LSLs connecting their plumbing system to
the main water supply line under the street. These LSLs can deteriorate
or corrode, releasing lead particles into the drinking water (Sandvig
et al., 2008). Modeling done as part of the LCRI economic analysis
confirms that LSL presence significantly contributes to drinking water
lead levels (USEPA, 2024a).
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\2\ The EPA does not believe that there are lead water mains in
the United States and, if they do occur, it is extremely rare. The
poor structural integrity of lead pipes that are more than two
inches in diameter means that lead was primarily used in pipes of
smaller diameter such as service lines. Conversely, the water mains
that distribute water throughout a city or town tend to be six
inches or larger in diameter. The common water main materials
include ductile iron, PVC, asbestos cement, high-density
polyethylene (HDPE), and concrete steel. The oldest water mains are
cast iron and asbestos cement (Folkman, 2018).
\3\ Sandvig et al. (2008) found that LSLs contributed an average
of approximately 50 to 75 percent of the total lead mass measured at
the tap, while premise piping and the faucet contributed
approximately 20 to 35 percent and 1 to 3 percent, respectively. At
sites with no LSL, premise piping and the faucet contributed a
greater percentage of lead mass to the total lead mass measured at
the tap (approximately 55 percent and 12 percent, respectively),
while main samples ranged from approximately 3 to 15 percent.
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Locating Legacy Lead Pipes
Knowing where lead pipes are located is critical to replacing them
efficiently and equitably, as well as for informing consumers (i.e.,
persons served) so they can take actions to reduce their exposure to
lead. The LCRI builds upon the 2021 LCRR's requirement for water
systems to create an initial inventory, to regularly update their
inventory, and to identify the material of all service lines by the
mandatory service line replacement deadline. Under the final LCRI, all
water systems are required to make their service line inventories
publicly available. Water systems must use a validation process to
ensure the service line inventory is accurate. Water systems are also
required to track lead connectors in their inventories and replace them
as they are encountered.
Improving Tap Sampling
The final LCRI makes key changes to the required protocol for tap
sampling informed by best practices already being deployed at the local
and State level. Under the LCRI, water systems are required to collect
first- and fifth-liter tap samples at sites with LSLs and use the
higher of the two values when determining compliance. This method will
better represent water that has been stagnant both within the LSL and
the premise plumbing. This will help water systems better understand
the effectiveness of their CCT.
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Lowering the Lead Action Level
The final LCRI lowers the lead action level from 0.015 mg/L to
0.010 mg/L. When a water system exceeds the lead action level, it is
required to inform the public, take actions associated with CCT, and
employ public education measures to reduce lead exposure. For example,
a system may be required to install or adjust CCT to reduce lead that
leaches into drinking water. Actions resulting from a lowered lead
action level will improve public health benefits because they will
require systems to take actions to reduce lead exposure sooner. The EPA
also emphasizes the many final rule requirements that will result in
additional public health benefits irrespective of systemwide lead
levels, recognizing there is no safe level of lead in drinking water.
For example, the final rule requires full service line replacement and
public education provisions independent of a system's 90th percentile
lead level.
Strengthening Protections To Reduce Exposure
The final LCRI requires water systems with continually high lead
levels to conduct additional outreach to consumers and make filters
certified to reduce lead in drinking water available to all consumers.
These additional actions can reduce consumer exposure to higher levels
of lead in drinking water while the water system works to reduce
systemwide lead levels (e.g., achieving 100 percent replacement of lead
and GRR service lines, installing or re-optimizing optimal corrosion
control treatment (OCCT)), which may take years to fully implement.
Benefits and Costs Analysis
As part of its Health Risk Reduction and Cost Analysis (HRRCA), the
EPA evaluated quantifiable and nonquantifiable health risk reduction
benefits and costs associated with the final LCRI. At a two percent
discount rate, the EPA estimates the quantifiable annual benefits of
the final rule will be $13.49 to $25.14 billion and the quantifiable
annual costs of the rule will be $1.47 to $1.95 billion in 2022
dollars. The EPA Administrator confirms the determination made at
proposal that the quantified and nonquantifiable benefits of the final
LCRI justify the quantified and nonquantifiable costs.
To evaluate these benefits and costs, the EPA determined which
entities would be affected by the LCRI, quantified costs using
available data, and described nonquantifiable costs. The EPA quantified
benefits by estimating and monetizing avoided reductions in IQ, cases
of attention-deficit/hyperactivity disorder (ADHD) in children, lower
birth weights in children, and cases of cardiovascular disease
premature mortality in adults associated with lead and GRR service line
replacement, CCT installation and re-optimization, the use of point-of-
use devices as a small system compliance option, and the temporary use
of point-of-use devices and water filters in systems with multiple lead
action level exceedances. Prior efforts to quantify benefits associated
with reducing lead in drinking water have focused on neurodevelopmental
outcomes in children because of the lifelong impact on their ability to
thrive. The current benefits assessment also incorporates recent
scientific analyses that allow better quantification of benefits to
adults associated with reductions in lead exposure.
There are many additional benefits of the LCRI that the EPA
assessed qualitatively. For example, the requirements for water systems
to issue public education (including using languages of the communities
where systems serve a large proportion of consumers with limited
English proficiency), to make the inventory of service line and
connector materials publicly available, and to make the service line
replacement plan publicly available will promote the public's behaviors
to reduce their exposure to lead in drinking water. Health benefits
qualitatively evaluated include reduced incidence of renal effects,
reproductive and developmental effects (apart from ADHD), immunological
effects, neurological effects (apart from children's IQ), and cancer.
In addition, persons served by systems required to install or re-
optimize OCCT under the final LCRI and living in homes with premise
plumbing containing lead will receive health benefits from reduced lead
exposure that were not quantified in the analysis of the final rule.
Increased use of CCT resulting from the final LCRI's lower lead action
level and improved tap sampling may have a beneficial secondary effect
of reducing copper levels and avoiding certain negative health impacts
of copper, such as acute gastrointestinal conditions and health effects
associated with Wilson's Disease. Other nonquantifiable co-benefits
associated with the increased use of corrosion inhibitors resulting
from the LCRI's lower lead action level and improved tap sampling
include extending the useful life of plumbing components and appliances
(e.g., water heaters), reduced plumbing maintenance costs, reduced
treated water loss from the distribution system due to leaks, and
reduced potential liability and damages from broken pipes in buildings.
To support eliminating LSLs, the Infrastructure Investment and Jobs
Act (Pub. L. 117-58), also referred to as the Bipartisan Infrastructure
Law (BIL), included $15 billion specifically appropriated for LSLR
projects and associated activities directly connected to the
identification and replacement of LSLs. The BIL also included over
$11.7 billion for the Drinking Water State Revolving Fund General
Supplemental, which can also be used for lead service line replacement
as well as other drinking water projects. The agency notes the costs
cited above do not take into account this available funding source. The
EPA is also providing significant technical assistance to communities
through efforts such as the ``Get the Lead Out Initiative'' and ``Lead
Service Line Replacement Accelerators,'' which assist efforts to
conduct service line replacement.
Compliance and Public Process
Water systems must comply with the requirements of the LCRI
starting three years after promulgation of this final rule. The EPA is
requiring water systems to comply with select requirements introduced
in the 2021 LCRR that the agency did not propose to change in the LCRI,
starting on October 16, 2024. This includes the 2021 LCRR initial LSL
inventory, notification of service line material, and associated
reporting requirements. Water systems must also comply with the Tier 1
public notification (PN) requirement for a lead action level exceedance
that was introduced under the 2021 LCRR starting October 16, 2024.
Please see section V.B.3 of this preamble for a full discussion of the
provisions with a compliance date of October 16, 2024. The final LCRI
otherwise requires water systems to comply with the pre-2021 LCR (and
not the 2021 LCRR) between October 16, 2024, and the LCRI compliance
date so that water systems can directly transition from the regulatory
scheme of the LCR to the LCRI.
II. General Information
The final Lead and Copper Rule Improvements (LCRI) builds upon the
previous lead and copper rules. The LCRI revises the most recent lead
and copper rule, the 2021 Lead and Copper Rule Revisions (LCRR), which
was promulgated on January 15, 2021 (86 FR 4198, USEPA, 2021a). Key
revisions in the LCRI address the opportunities for
[[Page 86421]]
improvement identified in the ``Review of the National Primary Drinking
Water Regulation: Lead and Copper Rule Revisions'' (or LCRR review)
including proactively and equitably replacing all lead service lines
(LSLs), strengthening compliance with tap sampling to better identify
communities most at risk of elevated lead in drinking water to better
compel actions to reduce health risks, reducing the complexity of the
regulation, and ensuring that the rule is more understandable (86 FR
71574, USEPA, 2021b). The United States Environmental Protection Agency
(EPA) developed the LCRI considering the input received in numerous
meaningful consultations and engagements over several years, including
during the LCRR review and in stakeholder outreach conducted to inform
the development of the proposed and final LCRI, along with almost
200,000 public comments submitted to the docket as well as oral
comments provided to the EPA during the public hearing held January 16,
2024, for the proposed LCRI.
A. What does the final LCRI require?
The LCRI requires full service line replacement of lead and
galvanized requiring replacement (GRR) service lines under the control
of the water system, regardless of the system's 90th percentile lead
level. Water systems are required to complete replacements within 10
years of the LCRI compliance date. There is a limited exception for
systems with a high proportion of service lines requiring replacement:
they are eligible for a deferred deadline if they meet a specified
threshold and receive State approval. Systems with deferred deadlines
and States must regularly assess whether they can complete the
replacement at a faster rate. Water systems must identify all service
lines of unknown composition (``unknown service lines'') to replace all
lead and GRR service lines by the replacement deadline. Systems must
also track lead connectors in their inventories and replace them
whenever encountered during normal operations. All water systems with
non-lead service lines in their inventories must validate the methods
used to categorize those service lines as non-lead with some
exceptions. All water systems with known or potential lead or GRR
service lines must prepare and make publicly accessible a service line
replacement plan which can facilitate the equitable replacement of all
lead or GRR service lines by the replacement deadline.
The final LCRI reduces the lead action level from 0.015 mg/L to
0.010 mg/L, which will result in more water systems installing and re-
optimizing optimal corrosion control treatment (OCCT) and providing
public education to reduce drinking water lead exposure. Systems that
exceed the lead action level three or more times in a five-year period
must take additional actions to provide public education and make
filters available.
The rule updates the tap sampling protocol by requiring systems to
collect a first-liter sample (in addition to the fifth-liter sample
required by the 2021 LCRR) at structures with LSLs and then use the
higher of the first- or fifth-liter sample values at the LSL sites when
calculating the 90th percentile. The first- and fifth-liter sample
values represent water that has been stagnant in premise plumbing
(plumbing within buildings) and within the service line, respectively,
and therefore, more accurately identify where higher lead levels might
be present compared to sampling the first liter or the fifth liter
alone. Systems must prioritize sampling at sites most likely to contain
lead and use this data to calculate the 90th percentile. The LCRI
requires most systems with lead and GRR service lines to start (or
continue) standard monitoring. Additionally, any system with a 90th
percentile lead level above the LCRI lead action level, based on the
system's results from the most recent tap monitoring period prior to
the compliance date, will need to start (or continue) standard
monitoring. The EPA updated the requirements for systems with
insufficient Tier 1 and Tier 2 sites to meet their minimum required
number of samples to use the highest sample results from Tiers 1, 2,
and the next highest available tiers (equal to the minimum required
number of samples) to calculate the 90th percentile. Sample site tiers
are used to prioritize sampling locations and were first introduced in
the 1991 LCR.
The LCRI requires States to set optimal water quality parameters
(OWQPs) for medium systems (serving greater than 10,000 persons and
fewer than or equal to 50,000 persons) that are required to optimize or
re-optimize corrosion control treatment (CCT). These systems must meet
those parameters to demonstrate that OCCT is being maintained. The rule
allows all systems to defer OCCT or re-optimized OCCT (but maintain any
existing CCT) if they can replace all lead and GRR service lines at a
minimum percent annual rate within five years or less. Water systems
with lead and GRR services lines and OCCT that are meeting their OWQPs
are not required to re-optimize their OCCT more than once following a
lead action level exceedance after the compliance date. After systems
remove all of their lead and GRR service lines, they must re-optimize
again if they exceed the lead action level. In addition, water systems
may be required to re-optimize by the State at any time. Systems not
required to re-optimize under the final rule still have to meet other
requirements, including for public education if there are multiple
action level exceedances (see sections IV.J and IV.K of this preamble).
The LCRI updates public education requirements, instituting changes
to content and delivery frequency for more proactive messaging about
lead in drinking water and actions individuals can take to reduce their
exposure. It includes requirements to make information about lead in
drinking water more accessible to consumers including individuals with
limited English proficiency. The LCRI also introduces new public
education requirements for lead and copper.
The LCRI revises the small system compliance flexibility provision
to eliminate LSLR as a compliance option, as all systems must conduct
mandatory service line replacement regardless of their 90th percentile
lead level. The eligibility threshold for the flexibility for community
water systems (CWSs) is lowered to those serving 3,300 or fewer
persons.
The LCRI retains the requirements from the 2021 LCRR for CWSs to
conduct sampling and public education in schools and child care
facilities but expands the available waivers to include sampling
efforts conducted prior to the rule compliance date, including sampling
conducted through the Water Infrastructure Improvements for the Nation
(WIIN) Act grant program. The LCRI also restructures and clarifies
areas of the rule that did not change to make the rule more
implementable.
Exhibit 1 compares the major differences among the pre-2021 Lead
and Copper Rule (LCR), 2021 LCRR, and the final LCRI. Asterisks (*) in
the pre-2021 LCR and 2021 LCRR column denote requirements that are
retained in the final LCRI, and these requirements are, therefore, not
repeated in the final LCRI column.
[[Page 86422]]
Exhibit 1--Comparison of the 2021 LCRR, Proposed LCRI, and Final LCRI Requirements
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Pre-2021 LCR 2021 LCRR Final LCRI
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Service Line Inventory
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Systems were required to All systems must develop an All systems must
complete a materials evaluation by the initial lead service line (LSL) review specified
time of initial sampling. inventory by October 16, 2024, that information that describes
No requirement to regularly includes all service lines, regardless connector materials and
update materials evaluation. of ownership, categorized as lead, non- locations.
lead, galvanized requiring replacement Systems must
(GRR), and unknown.* include each identified
The inventory must be made connector in their
publicly accessible and available baseline inventory by the
online for systems serving >50,000 LCRI compliance date.
persons.* Connector material
The publicly available categories include lead,
inventory must include a locational non-lead, unknown, and no
identifier for each lead and GRR connector present.
service line. The inventory must
The LSL inventory must be include a street address
updated based on the system's tap with each service line and
sampling frequency but no more than connector, if available.
annually. The inventory must
be updated annually.
Systems must
include in their
inventories the total
number of each type of
service line, the number
of lead and unknown
connectors, the number of
full lead and GRR service
line replacements, and the
number of partial lead and
GRR service line repla
cements.
Systems must
respond to customer
inquiries on incorrect
material categorizations
within 60 days.
........................................ Systems must
validate the accuracy of
their methods to
categorize non-lead
service lines in their
inventory no later than 7
years after the compliance
date by the end of the
calendar year unless on a
shortened or deferred
deadline.
[cir] The validation pool
includes all non-lead
service lines except for
those installed after the
applicable Federal, State,
or local lead ban;
visually inspected at a
minimum of two points on
the pipe exterior; or
previously replaced.
[cir] Systems may submit
previous validation
efforts in lieu of the
LCRI requirements if they
are at least as stringent
as the requirements, and
States must review and
approve of these previous
efforts.
Systems must
identify all unknown
service lines by their
mandatory service line
replacement deadline.
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Service Line Replacement
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Replacement Plan Replacement Plan Replacement Plan
No requirement. All systems with at least one All systems with
lead, GRR, or unknown service line must at least one lead, GRR, or
develop an LSLR plan by the compliance unknown service line must
date. develop the service line
The plan must include a replacement plan by the
strategy to prioritize service line compliance date. The plan
replacement.* includes the elements from
the LCRR as well as two
new elements: (1) a
strategy to inform
customers and consumers
(persons served) about the
plan and replacement
program and (2) an
identification of any
legal requirements or
water tariff agreement
provisions that affect a
system's ability to gain
access to conduct full
service line replacement.
........................................ The service line
replacement plan must
include additional plan
elements if the system has
at least one lead-lined
galvanized service line or
if the system is eligible
for a deferred deadline.
Service line
replacement plan must be
publicly accessible; and
available online for
systems serving >50,000
persons.
The plan must be
updated annually to
include any new or updated
information and submitted
to the State on an annual
basis.
........................................ By the compliance
date, systems eligible for
and planning to use
deferred deadlines must
include in the plan
information on what the
system identifies as the
earliest deadline and
fastest feasible rate to
replace lead and GRR
service lines that is no
slower than 39 annual
replacements per 1,000
service connections.
[[Page 86423]]
........................................ By the end of the
second program year, the
State is required to
determine in writing
whether a system with a
deferred deadline is
replacing lead and GRR
service lines at the
fastest feasible rate,
either by approving the
continued use of that
deferred deadline or by
setting the fastest
feasible rate for the
system. In addition to
annual updates, systems
with deferred deadlines
must submit their plan
every three years with
updated information about
why the replacement rate
is still the fastest
feasible. The State must
review this information
and determine in writing
if the system with a
deferred deadline is still
replacing lead and GRR
service lines at the
fastest feasible rate,
either by approving the
continued use of that
deferred deadline or by
setting the fastest
feasible rate.
LSLR LSLR Service Line Replacement
Replacement program requirements Replacement program Replacement
are based on the lead 90th percentile requirements are dependent on P90 lead program requirements are
(P90) lead level, CCT installation, and/ level for CWSs serving >10,000 persons: independent of systems'
or source water treatment. [cir] If P90 > 0.015 mg/L: Must fully P90 lead levels.
Systems conducting LSLR must replace 3 percent of lead and GRR All CWSs and
annually replace at least 7 percent of service lines per year based upon a 2- NTNCWSs with one or more
LSLs in their distribution system. year rolling average (mandatory lead, GRR, or unknown
Systems must replace the LSL replacement) for at least 4 consecutive service line in their
portion they own and offer to replace 6-month monitoring periods. inventory must replace
the private portion. Systems are not [cir] If P90 > 0.010 mg/L but <= 0.015 lead and GRR service lines
required to bear the cost of replacing mg/L: Implement a goal-based LSLR under their control within
the private portion.\a\ program and consult the primacy agency 10 years, unless subject
Full LSLR, partial LSLR, and (or State) on replacement goals for 2 to a shortened or deferred
LSLs with lead sample results <= 0.015 consecutive 1-year monitoring periods. deadline.
mg/L (``test-outs'') count toward the 7 CWSs serving <=10,000 persons Systems must
percent replacement rate. and all non-transient, non-community replace service lines at a
Systems can discontinue LSLR water systems (NTNCWSs) that select cumulative average annual
after 2 consecutive 6-month monitoring LSLR as their compliance option must rate of 10 percent, unless
periods at or below the lead action complete LSLR within 15 years if P90 > subject to a shortened or
level. 0.015 mg/L. See the Small System deferred deadline.
Requires replacement of LSLs Flexibility section of this exhibit. Cumulative average
only (i.e., no GRR service lines). Annual LSLR rate is applied to replacement rate is
the number of lead and GRR service applied to the total
lines when the system first exceeds the number of unknown, lead,
trigger or action level plus the number and GRR service lines in
of unknown service lines at the the baseline inventory
beginning of the year. minus the number of
Only full LSLR (replacement of unknown service lines that
the entire length of the service line) have been determined to be
counts toward mandatory rate* and goal- non-lead since the
based rate. baseline inventory.
All systems must replace their Systems that would
portion of an LSL if notified by have to annually replace
consumer of private side replacement more than 39 service lines
within 45 days of notification of the per 1,000 service
private replacement. If the system connections are eligible
cannot replace the system's portion for deferred deadlines
within 45 days, it must notify the longer than 10 years.
State and replace the system's portion States are
within 180 days.* required to set a shorter
Following each service line deadline for a system
replacement, systems must: where it determines that a
[cir] Provide pitcher filters or point- shorter deadline is
of-use devices and 6 months of feasible.
replacement cartridges to each customer Where property
after replacement.* Provide pitcher owner consent is required
filters and cartridges before the for a system to access the
affected portion of the line or the service line, systems must
fully replaced service line is returned make a reasonable effort
to service.* (at least 4 attempts) to
[cir] Offer to collect a lead tap sample engage property owners
at locations served by the replaced about full service line
line within 3 to 6 months after replacement.
replacement.* Systems conducting
partial service line
replacement, if not
prohibited by the rule,
must make a reasonable
effort (at least 4
attempts) to engage
property owners about full
service line replacements
for infrastructure
projects that impact
service lines and offer to
replace the remaining
portion of the service
line not under their
control within 45 days if
replaced in coordination
with an emergency
repair.\a\
Requires replacement of lead
connectors when encountered.*
Systems must make 2 good faith
efforts to engage customers about LSLR.
Systems conducting partial LSLR
must offer to replace the remaining
portion of the service line.
Systems must replace service
lines by a shorter deadline if
determined feasible by the State.*
[[Page 86424]]
LSL-Related Outreach LSL-Related Outreach Service Line-Related
If a system replaces its portion Notify consumers annually if Outreach
only: they are served by a lead, GRR, or Provide notice and
[cir] Provide notification to affected unknown service line.* educational materials
residences within 45 days prior to Provide notice and educational during water-related work
replacement on possible elevated short- materials to consumers during water- that could disturb lead,
term lead levels and measures to related work that could disturb LSLs. GRR, or unknown service
minimize exposure.* Provide filters to consumers lines, including
[cir] Include offer to collect lead tap for disturbances to a lead, GRR, or disturbances due to
sample within 72 hours of replacement. unknown service line caused by inventorying efforts, to
[cir] Provide test results within 3 replacement of an inline water meter, consumers within 24 hours
business days after receiving results. water meter setter, or connector. or before the service line
Systems subject to goal-based is returned to service,
program must: and to customers within 30
[cir] Conduct targeted outreach that days.
encourages consumers with LSLs to Provide filters to
participate in the LSLR program. consumers for disturbances
[cir] Conduct an additional outreach to a lead, GRR, or unknown
activity if they fail to meet their service line caused by
goal. replacement of an inline
Systems required to conduct water meter, water meter
LSLR must include information about the setter, connector, or
LSLR program in public education (PE) water main.
materials that are provided in response If a CWS does not
to P90 > action level.* meet the mandatory service
line replacement rate, the
CWS must conduct
additional public outreach
activities to encourage
customers with lead, GRR,
and unknown service lines
to participate in the
service line replacement
program.
Removes goal-based
program outreach
activities.
----------------------------------------------------------------------------------------------------------------
Action Level and Trigger Level
----------------------------------------------------------------------------------------------------------------
P90 level above lead action P90 level above lead action Removes the lead
level of 0.015 mg/L or copper action level of 0.015 mg/L or copper action trigger level.
level of 1.3 mg/L requires additional level of 1.3 mg/L requires more actions P90 level above
actions. than the previous rule. lead action level of 0.010
Lead action level exceedance Defines lead trigger level as mg/L or copper action
requires 7 percent LSLR (includes P90 > 0.010 mg/L and triggers level of 1.3 mg/L requires
partial replacements), CCT additional planning, monitoring, and actions including
recommendation and possible study and treatment requirements. installing or re-
installation, and PE within 60 days Lead action level exceedance optimizing CCT, and PE as
after the end of the monitoring period. requires 3 percent full LSLR, OCCT well as Tier 1 PN (for
installation or re-optimization, PE, lead action level
and public notification (PN) within 24 exceedances).
hours. Mandatory full
Trigger level exceedance service line replacement
requires goal-based LSLR and steps of lead and GRR service
taken towards CCT installation or re- lines is independent of
optimization. P90 lead levels.
----------------------------------------------------------------------------------------------------------------
Lead and Copper Tap Sampling
----------------------------------------------------------------------------------------------------------------
Sample Site Selection Sample Site Selection Sample Site Selection
Prioritizes collection of Prioritizes collecting samples Combines the tap
samples from sites with sources of lead from sites served by LSLs. All samples sample site selection
in contact with drinking water. must be collected from sites served by tiering criteria for CWSs
Highest priority given to sites LSLs, if available.* and NTNCWSs.
served by copper pipes with lead solder Equal priority to copper pipes Removes galvanized
installed after 1982 or containing lead with lead solder, irrespective of service line or premise
pipes and sites served by LSLs. installation date.* plumbing formerly
Systems must collect 50 percent Adds 2 tiers to prioritize downstream of a lead
of samples from LSLs, if available. sampling at lead and GRR service line connector from Tier 3
sites above sites with copper with lead sites.
solder.* Removes
requirement for
replacement sampling sites
to be selected within
reasonable proximity.
Clarifies that
sites are considered no
longer available for
sampling after customer
refusal or non-response
after two outreach
attempts.
Sample Collection and Inclusion in 90th Sample Collection and Inclusion in 90th Sample Collection and
Percentile Calculation Percentile Calculation Inclusion in 90th
Requires collection of the first- Requires collection of the Percentile Calculation
liter sample after water has sat fifth-liter sample in homes with LSLs Requires
stagnant for a minimum of 6 hours. after water has sat stagnant for a collection of the first-
minimum of 6 hours. and fifth-liter samples in
Requires first-liter sample structures with LSLs after
collection in homes without LSLs.* water has sat stagnant for
Requires systems with a minimum of 6 hours.
insufficient Tier 1 and 2 sites to meet Requires systems
the minimum number of samples required with insufficient Tier 1
by calculating the P90 from all Tier 1 and 2 sites to meet the
and 2 sites and the highest samples minimum number of samples
from the next highest tier to equal the required by calculating
minimum number required. the P90 from the highest
Prohibits inclusion of samples sample values from the
collected under find-and-fix in the P90 highest tiers sampled
calculation.* equal to the minimum
Adds requirement that samples number required.
must be collected in wide-mouth Requires the
bottles.* higher value of the first-
Prohibits sampling instructions and fifth-liter lead
that include recommendations for concentration in
aerator cleaning/removal and pre- structures with LSLs to be
stagnation flushing prior to sample used to calculate the P90
collection.* value for lead.
Prohibits
inclusion of samples
following service line
replacement in the P90
calculation. Prohibits the
inclusion of more than one
sample per site in each
P90 calculation.
Revises the
definition of a wide-mouth
bottle.
[[Page 86425]]
Monitoring Frequency Monitoring Frequency Monitoring Frequency
Samples are analyzed for both Samples are analyzed for lead Monitoring
lead and copper. and copper, only copper, or only lead. schedule is based on both
Systems must collect standard This occurs when lead monitoring is the P90 for lead and
number of samples based on population; conducted more frequently or at more copper for all systems.
semi-annually unless they qualify for sites than copper, and at LSL sites Systems may retain or
reduced monitoring. where a fifth-liter sample is only qualify for reduced
Systems can qualify for annual analyzed for lead.* monitoring based on the
or triennial monitoring at reduced Lead monitoring schedule is number of consecutive tap
number of sites. Monitoring schedule based on the P90 level for all systems monitoring periods:
based on the number of consecutive years as follows: [cir] P90 <= action level
meeting the following criteria: [cir] P90 > 0.015 mg/L: Semi-annually at for 2 consecutive 6-month
[cir] Serves <=50,000 persons and P90 is the standard number of sites. periods: Annual monitoring
at or below the lead and copper action [cir] P90 > 0.010 mg/L but <= 0.015 mg/ at standard number of
levels. L: Annually at the standard number of sites for lead and reduced
[cir] Serves any population size, meets sites. number of sites for
State-specified optimal water quality [cir] P90 <= 0.010 mg/L: Annually at the copper.
parameters (OWQPs), and P90 <= lead standard number of sites and [cir] P90 < practical
action level. triennially at reduced number of sites quantitation limit (PQL)
Triennial monitoring also using same criteria as the LCR except for 2 consecutive periods:
applies to any system with lead P90 <= copper P90 level is not considered. Triennial monitoring at
0.005 mg/L and copper P90 <= 0.65 mg/L Initial standard monitoring the reduced number of
for 2 consecutive 6-month monitoring required for systems with lead and GRR sites for both lead and
periods. service lines, and any system that does copper.
Based on rule criteria, systems not sample under the requirements of Initial standard
serving <= 3,300 persons can apply for a the LCRR by the compliance date. monitoring schedule
9-year monitoring waiver.* Systems must conduct standard required for most systems
monitoring if they exceed the action with lead and/or GRR
level, have a water quality parameter service lines in their
(WQP) excursion, and other criteria. inventory on the
compliance date.
Additional
criterion for when systems
must start standard
monitoring: Systems with
no lead or GRR service
lines in their inventory
on the compliance date
must start standard
monitoring if they
identify a lead or GRR
service line in the
future.
----------------------------------------------------------------------------------------------------------------
Corrosion Control Treatment (CCT) and Water Quality Parameters (WQPs)
----------------------------------------------------------------------------------------------------------------
CCT CCT CCT
Systems serving > 50,000 persons Specifies CCT requirements for Systems with P90
were required to install treatment by systems with P90 lead level >0.010 mg/L lead level >0.010 mg/L:
January 1, 1997, with limited exception. but <= 0.015 mg/L: [cir] No CCT: Must install
Systems serving <= 50,000 that [cir] No CCT: Must conduct a CCT study CCT regardless of their
exceed lead and/or copper action if required by the State. subsequent P90 levels if
level(s) are subject to CCT requirements [cir] With CCT: Must follow the steps they have started to
(e.g., CCT recommendation, study if for re-optimizing CCT, as specified in install CCT.
required by the State, CCT the rule. [cir] With CCT: Must re-
installation). They can discontinue CCT Systems with P90 lead level optimize OCCT.
steps if no longer exceed both action >0.015 mg/L: [cir] Systems with OCCT and
levels for 2 consecutive 6-month [cir] No CCT: Must complete CCT lead and GRR service lines
monitoring periods. installation regardless of subsequent meeting OWQPs need only re-
Systems must operate CCT to meet P90 levels if system has started to optimize OCCT once after
any OWQPs designated by the State that install CCT. the compliance date,
define optimal CCT. [cir] With CCT: Must re-optimize CCT. unless required to do so
There is no requirement for CWSs serving <= 10,000 persons by the State.
systems to re-optimize. and all NTNCWSs can select an option [cir] Systems with OCCT
other than CCT to address lead. See the that exceed the lead
Small System Flexibility section of action level after
this exhibit. removing all lead and GRR
service lines will need to
re-optimize again.
CWSs serving <=
3,300 persons and all
NTNCWSs can select an
option other than CCT to
address lead. See the
Small System Flexibility
section of this exhibit.
Deferred OCCT or
re-optimized OCCT for
systems that can complete
removal of 100 percent of
lead and GRR service lines
within 5 years or less of
the date they are
triggered into CCT steps.
Systems with CCT must
maintain CCT during the 5-
year-or-less service line
replacement program.
CCT Options CCT Options CCT Options
Includes alkalinity and pH adjustment, Removes calcium hardness as an option No changes from the LCRR.
calcium hardness adjustment, and and specifies any phosphate inhibitor
phosphate or silicate-based corrosion must be orthophosphate.*
inhibitor.
WQPs WQPs WQPs
No CCT: pH, alkalinity, calcium, Eliminates WQPs related to No changes from the LCRR.
conductivity, temperature, calcium hardness (i.e., calcium,
orthophosphate (if phosphate-based conductivity, and temperature).*
inhibitor is used), silica (if silica- All other parameters are the
based inhibitor is used). same as in the LCR.*
With CCT: pH, alkalinity, and
based on type of CCT either
orthophosphate, silica, or calcium.
WQP Monitoring WQP Monitoring WQP Monitoring
Systems serving >50,000 persons Systems serving >50,000 persons Systems with CCT
must conduct regular WQP monitoring at must conduct regular WQP monitoring at (unless deemed optimized)
entry points and within the distribution entry points and within the serving >10,000 persons
system. distribution system. must conduct regular WQP
Systems serving <= 50,000 Systems serving <=50,000 monitoring at entry points
persons conduct monitoring only in those persons must continue WQP monitoring and within the
periods that exceed the lead or copper until they no longer exceed the lead distribution system.
action level. and/or copper action level(s) for 2 Systems serving
Contains provisions to sample at consecutive 6-month monitoring periods. <=10,000 persons and
reduced number of sites in distribution To qualify for reduced WQP systems without CCT
system less frequency for all systems distribution monitoring, P90 lead level serving >10,000 persons
meeting their OWQPs. must be <= 0.010 mg/L and the system but <=50,000 persons that
must meet its OWQPs.* exceed the lead and/or
copper action level(s)
must conduct WQP
monitoring until they no
longer exceed lead and/or
copper action level(s) for
2 consecutive 6-month
monitoring periods.
Systems without
CCT serving >10,000
persons but <=50,000
persons that exceed the
lead action level that are
required to install CCT,
must continue to conduct
WQP monitoring.
Sanitary Survey Review Sanitary Survey Review Sanitary Survey Review
Treatment must be reviewed during CCT and WQP data must be reviewed during No changes from the LCRR.
sanitary surveys; no specific sanitary surveys against most recent
requirement to assess CCT or WQPs. CCT guidance issued by the EPA.*
[[Page 86426]]
Find-and-Fix Find-and-Fix Distribution System and
No required follow-up samples or If individual tap samples >0.015 mg/L Site Assessment (DSSA)
additional actions if an individual lead, find-and-fix steps include: Changes the name
sample exceeds the lead action level. Conduct WQP monitoring at or from ``Find-and-Fix'' to
near the site >0.015 mg/L. ``Distribution System and
Collect tap sample at the same Site Assessment'' to
tap sample site within 30 days.* describe this requirement
[cir] For LSL, collect any liter or more precisely.
sample volume.* Requirements from
Perform needed corrective the LCRR affect systems
action.* with individual tap
Document customer refusal or samples >0.010 mg/L lead.
non-response after 2 attempts.* Clarifies that the
Provide information to local distribution system sample
and State health officials.* location must be within a
half mile radius of each
site with a result >0.010
mg/L.
Water systems
without CCT are not
required to collect WQP
samples for the DSSA CCT
assessment.
----------------------------------------------------------------------------------------------------------------
Small System Flexibility
----------------------------------------------------------------------------------------------------------------
No provisions for systems to elect an Allows CWSs serving <=10,000 persons and Allows CWSs serving <=
alternative treatment approach but sets all NTNCWSs to implement an alternate 3,300 persons and all
specific requirements for CCT and LSLR. compliance option to address lead with NTNCWSs with P90 levels >
State approval: lead action level and <=
Systems with lead P90 > 0.010 copper action level to
mg/L recommend CCT, LSLR, provision and conduct the following
maintenance of point-of-use (POU) actions in lieu of CCT
devices, or replacement of all lead- requirements to address
bearing plumbing materials. lead with State approval:
If the system's P90 lead level Choose a
> 0.015 mg/L, the system must implement compliance option: (1)
the compliance option. provision and maintenance
of POU devices or (2)
replacement of all lead-
bearing plumbing
materials.
Removes the
compliance option to
conduct LSLR in 15 years.
Maintains option for
systems following CCT
requirements:
With CCT: Collect
WQPs and evaluate
compliance options and
OCCT.
No CCT: Evaluate
compliance options and
CCT.
----------------------------------------------------------------------------------------------------------------
Public Education and Outreach
----------------------------------------------------------------------------------------------------------------
Systems with P90 > lead action Water systems must provide Revises the
level must provide PE to customers about updated lead health effects language in mandatory lead health
lead sources, health effects, measures PN and PE materials. CWSs must provide effects language to
to reduce lead exposure, and additional updated health effects language in the improve completeness and
information sources. Consumer Confidence Reports (CCR). clarity.
Systems with P90 > lead action For water systems serving a Water systems must
level must offer lead tap sampling to large proportion of consumers with provide the updated health
customers who request it. limited English proficiency, PE effects language in PN and
Systems must provide lead materials must contain information in all PE materials. CWSs
consumer notice to individuals served at the appropriate language(s) regarding must provide updated
tested taps within 30 days of learning the importance of the materials or health effects language in
results. information on where consumers can get the CCR.
For water systems serving a a translated copy or assistance in For water systems
large proportion of consumers with other languages. serving a large proportion
limited English proficiency, PE If P90 > lead action level: of consumers with limited
materials must contain information in [cir] LCRR PN and LCR PE requirements English proficiency, all
the appropriate language(s) regarding apply. PE materials must contain
the importance of the materials or [cir] Water systems must offer to sample information in the
information on where consumers can get a the tap for lead for any customer who appropriate language(s)
translated copy or assistance in other requests it. regarding the importance
languages. Water systems must provide the of the materials and
lead consumer notice to consumers whose information on where
individual tap sample is >0.015 mg/L consumers can get a
lead as soon as practicable but no translated copy or
later than 3 calendar days. assistance in other
CWSs must provide information languages.
to local and State health agencies.* Water systems must
Also see the Public Notification, deliver consumer notice of
Consumer Confidence Report, and LSL- lead and copper tap
Related Outreach sections of this sampling results to
exhibit. consumers whenever their
tap is sampled as soon as
practicable but no later
than 3 business days after
receiving the results,
regardless of the level.
If P90 > lead
action level:
[cir] LCRR PN requirements
apply.
[cir] Water systems must
conduct PE no later than
60 days after the end of
each tap sampling period
until the system no longer
exceeds the action level
unless the State approves
an extension.
[cir] Water systems must
deliver PE materials to
bill paying customers and
every service connection
address served.
........................................ Water systems with
multiple lead action level
exceedances (at least 3
action level exceedances
in a 5-year period) must
conduct additional public
outreach activities and
make filters available.
Water systems must submit
a filter distribution plan
to the State within 60
days of the second action
level exceedance, and the
State will have 60 days to
review. The State has
discretion to allow the
system to discontinue
outreach activities and
filter provision earlier
if it completes actions to
reduce lead levels.
Water systems must
offer to sample the tap
for lead for any consumer
with a lead, GRR, or
unknown service line who
requests it.
Also see the Public
Notification, Consumer
Confidence Report, and
Service Line Related
Outreach sections of this
exhibit.
[[Page 86427]]
Public Notification
----------------------------------------------------------------------------------------------------------------
If P90 > action level: If P90 > lead action level: If P90 > lead
[cir] No PN required for P90 > action [cir] Systems must notify consumers of action level of 0.010 mg/
level. P90 > action level within 24 hours L:
Tier 2 PN required for (Tier 1 PN). Systems must comply by [cir] LCRR Tier 1 PN
violations to Sec. Sec. 141.80 October 16, 2024. requirements apply, but
through 141.85. Tier 2 PN required for for the LCRI action level
Tier 3 PN required for violations to Sec. Sec. 141.80 of 0.010 mg/L.
violations to Sec. Sec. 141.86 (except paragraph (c)) through 141.84, Tier 2 PN required
through 141.89. 141.85(a) through (c) and (h), and for violations to Sec.
Also see the Public Education and 141.93. Sec. 141.80 (except
Outreach section of this exhibit. Tier 3 PN required for paragraph (c)) through
violations to Sec. Sec. 141.86 141.84, 141.85(a) through
through 141.90. (c) (except paragraph
Also see the Public Education and (c)(3)), (h), and (j), and
Outreach section of this exhibit. 141.93.
Tier 3 PN required
for violations to Sec.
Sec. 141.86 through
141.90 and 141.92.
Water systems must
provide updated lead
health effects language in
PN.
Also see the Public
Education and Outreach
section of this exhibit.
----------------------------------------------------------------------------------------------------------------
Consumer Confidence Report
----------------------------------------------------------------------------------------------------------------
All CWSs must provide CWSs must provide updated Revises the
educational material in the annual CCR. health effects language in the CCR. mandatory lead health
All CWSs are required to effects language and
include information on how to access informational statement as
the LSL inventory and how to access the well as includes
results of all tap sampling in the CCR. additional information
Revises the mandatory health about risk of lead
effects language to improve accuracy exposure in the
and clarity. informational statement
about lead in the CCR to
improve completeness and
clarity.
CWSs must provide
updated health effects
language in the CCR.
CWSs must include
a statement in the CCR
about the system sampling
for lead in schools and
child care facilities and
direct the public to
contact their school or
child care facility for
further information.
CWSs with lead,
GRR, or unknown service
lines must include a
statement in the CCR about
how to access the service
line inventory and
replacement plan.
Also see the Public
Education and Outreach
section of this exhibit.
----------------------------------------------------------------------------------------------------------------
Change in Source or Treatment
----------------------------------------------------------------------------------------------------------------
Systems on a reduced tap monitoring Systems on any tap monitoring schedule No changes from the LCRR.
schedule must obtain prior State must obtain prior State approval before
approval before changing their source or changing their source or treatment.
treatment. These systems must also resume a
standard lead and copper tap monitoring
schedule.*
----------------------------------------------------------------------------------------------------------------
Source Water Monitoring and Treatment
----------------------------------------------------------------------------------------------------------------
Periodic source water monitoring for lead States can waive continued source water Updated cross-reference to
and copper is required for systems with: monitoring for lead and copper if the:* requirement for conducting
Source water treatment; or System has already conducted standard monitoring when
P90 > action level and no source source water monitoring for a previous there is a source water
water treatment. P90 > action level; addition.
State has determined that
source water treatment is not required;
and
System has not added any new
water sources.
----------------------------------------------------------------------------------------------------------------
Lead in Drinking Water at Schools and Child Care Facilities
----------------------------------------------------------------------------------------------------------------
Does not include separate CWSs must provide annual public Expands on LCRR
testing and education program for CWSs education materials to all schools and requirements to include:
at schools and child care facilities. licensed child care facilities they Waivers for CWSs
Schools and child care serve. to sample in schools and
facilities that are classified as CWSs must conduct sampling at licensed child care
NTNCWSs must sample for lead and 20 percent of elementary schools and 20 facilities they serve
copper.* percent of licensed child care during the first 5-year
facilities they serve per year and testing cycle if the
conduct sampling at secondary schools facility has been sampled
on request for first testing cycle (5 between January 1, 2021,
years) and conduct sampling on request and the LCRI compliance
of all schools and child care date.
facilities thereafter. Requires CWSs to
Sample results must be provided include a statement about
to each sampled school/child care the opportunity for
facility, State, and local or State schools and licensed child
health department. care facilities to be
Excludes schools and licensed sampled in the CCR.
child care facilities constructed on or Excludes schools
after January 1, 2014. and licensed child care
Waives sampling in schools and facilities constructed or
child care facilities that were sampled that had full plumbing
under a State or other program after replacement on or after
October 16, 2024. January 1, 2014 and that
are also not served by a
lead, GRR, or unknown
service line.
Includes
clarifications on the
applicability of the
requirements and on the
content of public
education material CWSs
must provide to schools
and licensed child care
facilities.
[[Page 86428]]
Primacy Agency (or State) Requirements
----------------------------------------------------------------------------------------------------------------
States must report information to the EPA States must report information to the States must report
that includes, but is not limited to: EPA that includes, but is not limited information to the EPA
All P90 lead levels for systems to: that includes, but is not
serving > 3,300 persons, and only levels All lead and copper P90 levels limited to:
> 0.015 mg/L for smaller systems. for all system sizes.* The current
Only copper P90 levels above the The number of lead, GRR, and numbers of lead, GRR,
copper action level for all systems. unknown service lines for every water unknown, and non-lead
Systems that are required to system.* service lines, lead
initiate LSLR and the date replacement The goal-based or mandatory connectors, and unknown
must begin. replacement rate and the date each connectors in each
Systems for which OCCT has been system must begin LSLR. system's inventory.
designated. OCCT status of all systems The numbers and
States must keep records on information including OWQPs specified by the types of service lines
that includes, but is not limited to: State.* replaced and the
Records of the currently For systems triggered into replacement rate for every
applicable or most recent State source water treatment, the State- system conducting
determinations, including all supporting designated date or determination for no mandatory service line
information and an explanation of the treatment required.* replacement.
technical basis for each decision. States must keep records on information The deadline for
State primacy requirements include, but that includes, but is not limited to: the system to complete
are not limited to: LSLR plans.* replacement of all lead
Designating OCCT. Compliance sampling pools.* and GRR service lines.
Designating source water Determinations related to The expected date
treatment methods. source water treatment.* of completion of service
Verifying service line Determinations related to line replacement.
replacement schedules. compliance alternatives for small CWSs The lead P90
and NTNCWSs.* levels of systems with an
LSL inventories.* action level exceedance
State primacy requirements include, but within 15 days of the end
are not limited to: of the monitoring period
Reviewing service line or, if earlier, within 24
inventory.* hours of receiving the
Approving LSLR goals. notice from the system.
Determining if a faster LSLR The result of the
rate is feasible.* State's determination as
Defining school and child care to whether the deferred
program and determining if State or deadline is the fastest
local testing program is at least as feasible, the deadline at
stringent as Federal requirements. the fastest feasible rate,
Verifying compliance with and the reasons for the
``Find-and-Fix'' requirements.* State's decision.
Reviewing any change in source States must keep records on
water treatment.* information that includes,
but is not limited to:
Samples that do
not meet the six-hour
minimum stagnation time.
Determinations
concerning systems
eligible for deferred
deadlines for service line
replacement.
State primacy requirements
include, but are not
limited to:
Identify State
laws that pertain to a
water system's access to
conduct full service line
replacement.
Make
determinations about
systems eligible for
service line replacement
deferred deadlines.
Make
determinations about which
water systems serve a
large proportion of
consumers with limited
English proficiency and
provide technical
assistance to those
systems required to meet
the requirements to
provide translated PE or
translation assistance to
their consumers.
Review and approve
inventory validations.
----------------------------------------------------------------------------------------------------------------
\a\ See section IV.B.4 of this preamble for further information on cost sharing.
Note: P90 means 90th percentile level.
B. Does this action apply to me?
The entities regulated by this action are CWSs and non-transient
non-community water systems (NTNCWSs). A CWS, as defined in Sec.
141.2, is ``a public water system which serves at least fifteen service
connections used by year-round residents or regularly serves at least
twenty-five year-round residents.'' The definition in Sec. 141.2 for a
NTNCWS is ``a public water system that is not a [CWS] and that
regularly serves at least 25 of the same persons over 6 months per
year.'' The following table provides examples of the regulated entities
under this rule:
------------------------------------------------------------------------
Examples of potentially affected
Category entities
------------------------------------------------------------------------
Public water systems.............. CWSs; NTNCWSs.
State and Tribal government Agencies responsible for developing,
agencies. ensuring compliance with, and
enforcing National Primary Drinking
Water Regulations (NPDWRs).
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities that could be affected by this
action. This table includes the types of entities that the EPA is now
aware could potentially be regulated by this action. To determine
whether your entity is regulated by this action, this final rule should
be carefully examined.
As part of this action for the LCRI, ``State'' refers to the agency
of the State, Tribal, or territorial government that has jurisdiction
over public water systems consistent with the definition of ``State''
in 40 CFR 141.2. During any period when a State or Tribal government
does not have primary enforcement responsibility pursuant to section
1413 of the Safe Drinking Water Act (SDWA), the term ``State'' means
the relevant Regional Administrator of the EPA. For questions regarding
the applicability of this action to a particular entity, consult the
person listed in the FOR FURTHER INFORMATION CONTACT section.
C. Dates for Compliance
Water systems must begin to comply with the LCRI three years after
promulgation of this final rule. In accordance with SDWA section
1412(b)(10), the Administrator, or a State (in the case of an
individual system), may allow up to two additional years to comply with
a treatment technique if the Administrator or State (in the case of an
individual system) determines that additional time is necessary for
capital improvements. Where a State, or the EPA where it has
[[Page 86429]]
primacy, chooses to provide such an extension, the system would have up
to five years from the rule's promulgation date to begin compliance
with the treatment technique. The EPA is not providing a two-year
extension nationwide because the EPA has not determined that an
additional two years is necessary for water systems nationwide to
complete capital improvements to begin compliance with the LCRI.
Starting on the compliance date, systems must begin mandatory service
line replacement programs that must be completed within 10 years for
the vast majority of systems. Systems must also begin conducting the
improved tap sampling and if their tap sampling results show they
exceeded the action level, systems may be required to install new or
re-optimized corrosion control treatment.
Under SDWA section 1416, States may exempt water systems from any
treatment technique requirement for no more than three years after the
otherwise applicable compliance date. For a small system that does not
serve more than 3,300 persons and which needs financial assistance for
the necessary improvements, an exemption may be renewed for one or more
two-year periods, but not to exceed a total of six years. No exemption
may be granted without a finding that:
Due to compelling factors (which may include economic
factors, including qualification of the public water system as a system
serving a disadvantaged community pursuant to SDWA section 1452(d)),\4\
the public water system is unable to comply with such contaminant level
or treatment technique requirement, or to implement measures to develop
an alternative source of water supply;
---------------------------------------------------------------------------
\4\ The term ``disadvantaged community'' used in SDWA section
1416 here refers to the statutory definition of ``disadvantaged
community'' provided at SDWA section 1452(d)(3): ``[T]he term
`disadvantaged community' means the service area of a public water
system that meets affordability criteria established after public
review and comment by the State in which the public water system is
located. The Administrator may publish information to assist States
in establishing affordability criteria.''
---------------------------------------------------------------------------
The public water system was in operation on the effective
date of such contaminant level or treatment technique requirement, or,
for a system that was not in operation by that date, only if no
reasonable alternative source of drinking water is available to such
new system;
The granting of the exemption will not result in an
unreasonable risk to health; and
Management or restructuring changes (or both) cannot
reasonably be made that will result in compliance with this title, or
if compliance cannot be achieved, improve the quality of the drinking
water.
III. Background
A. Overview of Lead and Lead Exposures Through Drinking Water
Lead is toxic to humans and animals, causing harmful health
effects. Lead is a naturally occurring element found in small amounts
in the Earth's crust. Lead and lead compounds have been used in a wide
variety of products found in and around homes, including paint,
ceramics, pipes and plumbing materials, solders, gasoline, batteries,
ammunition, and cosmetics. Lead can enter drinking water when plumbing
materials that contain lead corrode, especially where the water is
highly acidic or has a low mineral content that is more likely to
corrode pipes and fixtures. The most common sources of lead in drinking
water are lead pipes, faucets, and fixtures. In homes with lead pipes
that connect the home to the water main (or other conduit for
distributing water to individual consumers or groups of consumers),
also known as lead service lines or LSLs, these pipes are typically the
most significant source of lead in water (Sandvig et al., 2008). Lead
pipes are more likely to be found in older cities and homes built
before 1986 (Laquatra, 2014). Among homes without LSLs, the most common
source of lead in drinking water is from brass or chrome-plated brass
faucets and plumbing with lead solder (Laquatra, 2014).
The LCRI regulates approximately 67,000 community water systems
(CWSs) and non-transient non-community water systems (NTNCWSs) in the
United States of varying sizes and containing varying numbers of LSLs
in their service area. A CWS is a public water system that supplies
water to the same population year-round. A NTNCWS is a public water
system that regularly supplies water to at least 25 of the same people
at least six months per year. Some examples are schools, factories,
office buildings, and hospitals which have their own water systems.
B. Human Health Effects of Lead and Copper
1. Lead
Exposure to lead can cause harmful health effects for people of all
ages, especially pregnant people, infants, and young children (Centers
for Disease Control and Prevention (CDC), 2022a; CDC, 2022b; CDC,
2023). Lead has acute and chronic impacts on the body. Lead exposure
causes damage to the brain and kidneys and can interfere with the
production of red blood cells that carry oxygen to all parts of the
body (Agency for Toxic Substances and Disease Registry (ATSDR), 2020).
Developing fetuses, infants, and young children are most
susceptible to the harmful health effects of lead (ATSDR, 2020).
Exposure to lead is known to present serious health risks to the brain
and nervous system of children (USEPA, 2013; USEPA, 2024b). Young
children and infants are particularly vulnerable to the physical,
cognitive, and behavioral effects of lead due to their sensitive
developmental stages. There is no known safe level of exposure to lead.
Scientific studies have demonstrated that there is an increased risk of
health effects in children even when their blood lead levels are less
than 3.5 micrograms per deciliter (CDC, 2022c) and in adults even when
blood lead levels are less than 10 micrograms per deciliter (National
Toxicology Program (NTP), 2012). Low-level lead exposure is of
particular concern for children because their growing bodies absorb
more lead per pound than adults do, and their developing brains and
nervous systems are more sensitive to the damaging effects of lead
(ATSDR, 2020).
The United States Environmental Protection Agency (EPA) estimates
that drinking water can make up at least 20 percent of a person's total
exposure to lead (56 FR 26548, USEPA, 1991). When a child is not
routinely exposed to other sources of lead (e.g., dust from legacy lead
paint or legacy contaminated soils), most of their exposure may come
from drinking water. Infants who consume mostly formula mixed with tap
water can, depending on the level of lead in the water and other
sources of lead in the home, receive 40 to 60 percent of their exposure
to lead from drinking water used in the formula (53 FR 31516, USEPA,
1988; Stanek et al., 2020). Scientists have linked lead's effects on
the brain with lowered intelligence quotient (IQ) and attention
disorders in children, among other health impacts (USEPA, 2024b; USEPA,
2013; Lanphear et al., 2019; Ji et al., 2018). In 1991, the EPA
established a maximum contaminant level goal (MCLG) for lead of zero.
The Safe Drinking Water Act (SDWA) requires the EPA to set MCLGs at the
level at which no known or anticipated adverse effects on the health of
persons would occur, allowing for a margin of safety. The EPA
established the MCLG of zero in part due to lead being a probable
carcinogen and due to there being no clear threshold below which there
are no risks of some non-
[[Page 86430]]
carcinogenic health effects (56 FR 26460, USEPA, 1991).
Blood lead levels are an indication of current exposure. Over time,
lead can accumulate in the body. Lead is stored in a person's bones,
binding to calcium, and it can be released later in life. For example,
when calcium is mobilized in the pregnant person's body during
pregnancy, lead is released from the pregnant person's bones and can
pass to the fetus. Lead can also be passed through breastmilk to the
nursing infant or child. Lead exposure can result in serious health
effects to the developing fetus and infant. Studies document increased
risk of miscarriage (Xu et al., 2012; Tolunay et al., 2016), low birth
weight (Goto et al., 2021; Hu et al., 2021; Rodosthenous et al., 2017;
Taylor et al., 2015), and preterm birth (USEPA, 2024b; Fisher et al.,
2023). In utero and early childhood exposure to lead is associated with
increased risk to the baby's brain and/or nervous system, manifesting
as, for instance, an increased risk of learning or behavioral problems
in life (USEPA, 2024b; USEPA, 2013).
As noted above, studies also have documented an association between
adult blood lead levels and increased risk of cardiovascular disease,
manifesting as an increase in risk of cardiovascular disease premature
mortality. Occupational exposure to lead is associated with significant
health effects in adults as well, particularly renal and
gastrointestinal. The 2013 and 2024 Integrated Science Assessments for
Lead (USEPA, 2013; USEPA, 2024b), the U.S. Department of Health and
Human Services (HHS) National Toxicology Program (NTP) Monograph on
Health Effects of Low-Level Lead (NTP, 2012), the Agency for Toxic
Substances and Disease Registry (ATSDR) 2020 Toxicological Profile for
Lead (ATSDR, 2020), and peer-reviewed studies have documented
associations between lead and cancer (Wei and Zhu, 2020) as well as
lead and adverse cardiovascular (Park and Han, 2021), renal (Harari et
al., 2018), reproductive (Shi et al., 2021; Lee et al., 2020),
immunological (Krueger and Wade, 2016), and neurological effects
(Andrew et al., 2022). The EPA's Integrated Science Assessment for Lead
(USEPA, 2024b) and Integrated Risk Information System (IRIS) Chemical
Assessment Summary (USEPA, 2004a) provide additional health effects
information on lead. For a more detailed explanation of the health
effects associated with lead for children and adults, see appendix D of
the final Lead and Copper Rule Improvements (LCRI) Economic Analysis
(USEPA, 2024a).
2. Copper
Copper is an essential trace element required for several metabolic
processes; however, excess copper intake is toxic and linked to various
adverse health effects. Acute gastrointestinal conditions are the most
common adverse health effects observed among adults and children.
Chronic exposure to copper is particularly a concern for people with
Wilson's disease, an autosomal recessive genetic disorder of copper
metabolism affecting 1 in 30,000 individuals (Ala et al., 2007). These
individuals are prone to copper accumulation in body tissue, which can
lead to liver damage, neurological, and/or psychiatric symptoms (Dorsey
and Ingerman, 2004). Additional information on the health effects
associated with copper are available in appendix E of the Final LCRI
Economic Analysis (USEPA, 2024a).
C. Regulatory History
Exercising its longstanding authority under SDWA, on June 7, 1991,
the EPA promulgated the Lead and Copper Rule (LCR) with the goal of
improving public health by reducing lead and copper levels at consumer
taps (56 FR 26460, USEPA, 1991). The LCR established MCLGs of 0 mg/L
for lead and 1.3 mg/L for copper. In addition, the LCR established a
National Primary Drinking Water Regulation (NPDWR) consisting of
treatment technique requirements that include lead service line
replacement (LSLR), corrosion control treatment (CCT), source water
treatment, and public education. The LCR established requirements for
community water systems (CWSs) and non-transient non-community water
systems (NTNCWSs) to conduct monitoring at consumer taps. The rule
established action levels of 0.015 mg/L for lead and 1.3 mg/L for
copper. If more than 10 percent of tap sample results (i.e., the 90th
percentile value of tap sample concentrations), collected during any
monitoring period, exceed the action level, water systems must take
actions including installing and/or optimizing CCT, conducting public
education, treating source water if it contributes to lead and copper
levels at the tap, and replacing LSLs if the system continues to exceed
the action level after completing CCT steps and installing CCT. An
action level exceedance is not a violation of the rule; however,
failure to take the subsequent required actions (e.g., LSLR, CCT,
public education) results in a violation of the treatment technique or
monitoring and reporting requirements.
On January 12, 2000, the EPA promulgated minor revisions to the LCR
(LCRMR) (65 FR 1950, USEPA, 2000a). These minor revisions streamlined
the LCR, promoted consistent national implementation, and reduced the
reporting burden on affected entities. The LCRMR did not change the
MCLGs or action levels for lead and copper nor change the rule's basic
requirements. One of the provisions of the LCRMR required States to
report the 90th percentile lead value for all water systems serving
greater than 3,300 persons. States were required to report the 90th
percentile lead value for water systems serving 3,300 or fewer persons
only if the water system exceeds the action level. The new reporting
requirements became effective in 2002.\5\
---------------------------------------------------------------------------
\5\ In 2004, the EPA published minor corrections to the LCR to
reinstate text that was inadvertently removed from the rule during
the previous revision (69 FR 38850, USEPA, 2004b).
---------------------------------------------------------------------------
From 2000 to 2004, the District of Columbia experienced incidences
of elevated drinking water lead levels, prompting the EPA to undertake
a review of the LCR to determine ``whether elevated drinking water lead
levels were a national problem'' and to identify actions to improve
rule implementation (72 FR 57784, USEPA, 2007a; USEPA, 2007b; Brown et
al., 2011). The EPA specifically considered the number of systems that
failed to meet the lead action level, if a significant percentage of
the population received water that exceeded the action level, how well
the LCR worked to reduce drinking water lead levels, and if the rule
was being effectively implemented, particularly with respect to
monitoring and public education requirements. As part of the national
review, the EPA held four expert workshops to discuss elements of the
LCR, collected and evaluated lead concentration data and other
information required under the LCR, and evaluated State implementation
efforts to better understand challenges and needs experienced by States
and water systems. In March 2005, the EPA released a Drinking Water
Lead Reduction Plan, outlining a series of short- and long-term goals
to improve implementation of the LCR, including revisions to the LCR
(USEPA, 2005). On October 10, 2007, the EPA promulgated a set of short-
term regulatory revisions and clarifications (72 FR 57782, USEPA,
2007a). The short-term revisions strengthened implementation of the LCR
in the areas of monitoring, treatment, customer awareness, LSLR, and
improving compliance with the public education requirements.
[[Page 86431]]
Long-term issues, requiring additional research and input, were
identified for a subsequent set of rule revisions. The EPA conducted
extensive engagement with stakeholders to inform subsequent rule
development, including a 2011 Scientific Advisory Board (SAB)
consultation on the science of partial LSLR that found that partial
LSLR does not reliably reduce drinking water lead levels in the long
term and may cause short-term elevated drinking water lead levels
following the replacement (USEPA, 2011a). The EPA specifically sought
input from small entity stakeholders through the Small Business
Advocacy Review Panel (SBAR) process under section 609(b) of the RFA,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA). The EPA also requested that the National Drinking Water
Advisory Council (NDWAC) form a Working Group in 2014 to provide advice
to the NDWAC as it develops recommendations for the revisions to the
LCR (NDWAC, 2015). In 2016, the EPA released a white paper summarizing
NDWAC recommendations and identifying key areas for rule development,
noting that ``lead crises in Washington, DC, and in Flint, Michigan,
and the subsequent national attention focused on lead in drinking water
in other communities, have underscored significant challenges in the
implementation of the current rule, including a rule structure that for
many systems only compels protective actions after public health
threats have been identified'' (USEPA, 2016a). Notably, the white paper
discussed the issue of mandatory, proactive LSLR as an opportunity to
eliminate a primary source of lead in drinking water rather than only
replacing LSLs after a lead action level exceedance, and how to address
lead exposure risks resulting from partial LSLR. The recommendations
also emphasized the importance of enforceable goals for LSLR,
recognizing the significant lead exposure risks that can accompany
partial service line replacements. Other issues identified include the
need for stronger CCT requirements, including re-evaluation after
source water or treatment changes, improved tap sampling procedures to
address concerns about practices used to avoid action level
exceedances, and increased public transparency such as access to
information about LSLs and sharing of data.
The EPA intended to address these long-term issues in the 2021 Lead
and Copper Rule Revisions (LCRR), which was promulgated on January 15,
2021 (86 FR 4198, USEPA, 2021a). The 2021 LCRR focuses on six key areas
for revision: identifying sites with significant sources of lead in
drinking water, strengthening CCT requirements, closing loopholes in
LSLR requirements, increasing sampling reliability, improving risk
communication, and introducing a new lead sampling requirement at
schools and child care facilities as part of public education.
Specifically, the 2021 LCRR includes new requirements for water systems
to develop, and make publicly accessible, LSL inventories and annually
notify consumers if they are served by an LSL, GRR service line, or
service line of unknown material. Additionally, the 2021 LCRR removes
provisions allowing partial service line replacement or ``test-outs''
(i.e., where a service line sample measures below the lead action
level) to count towards LSLR requirements. The rule also revises
monitoring requirements to prioritize sampling at sites most likely to
contain lead sources, require a fifth-liter sample be taken at LSL
sites, and prohibit the use of language in sampling instructions that
may result in samples that underestimate lead levels.
The 2021 LCRR also establishes a lead trigger level at 0.010 mg/L
to require systems to take actions before an action level exceedance,
including taking steps to plan for CCT installation, re-optimizing CCT
if the system already installed CCT, establishing a goal-based LSLR
program, and increasing monitoring frequency. The 2021 LCRR makes
several changes to the CCT requirements and establishes a requirement
for water systems to conduct follow-up actions at sites with individual
compliance sample concentrations exceeding 0.015 mg/L.
In the 2021 LCRR, the EPA also revised its Public Notification (PN)
Rule in 40 CFR part 141, subpart Q, to make changes to the reporting
requirements for action level exceedances. These changes implemented
the 2016 amendments to section 1414 of SDWA that required public
notification within 24 hours if the system exceeds the lead action
level. In the 2021 LCRR, the EPA also revised the Consumer Confidence
Report (CCR) Rule in 40 CFR part 141, subpart O, to require the report
to include the range of lead and copper tap sampling results and
information on how to access lead tap sampling results and the service
line inventory. The EPA also revised the mandatory lead health effects
language and informational statement about lead that must be included
in the CCR.
The 2021 LCRR adds new public education requirements, including
requirements to notify persons served by a known or suspected LSL and
timely (24 hour) notification of individuals when their lead tap
sampling results exceed the lead action level of 0.015 mg/L. The 2021
LCRR also requires systems above the trigger level to conduct goal-
based LSLR and also to conduct additional public outreach activities
about lead in drinking water and opportunities to replace LSLs if the
system fails to meet the goal replacement rate established after a
trigger level exceedance.
The 2021 LCRR also adds a new small system flexibility provision
for CWSs serving 10,000 or fewer persons and all NTNCWSs. Those systems
that exceeded the trigger level can choose one out of four compliance
options (i.e., CCT, LSLR, point-of-use devices, replacement of lead-
bearing plumbing) to implement if the system exceeds the lead action
level.
On January 20, 2021, President Joseph R. Biden issued Executive
Order 13990, Protecting Public Health and the Environment and Restoring
Science to Tackle the Climate Crisis (86 FR 7037, January 20, 2021).
Executive Order 13990 required Federal agencies to ``review and . . .
take action to address the promulgation of Federal regulations and
other actions during the last 4 years that conflict[ed] with'' the
``national objectives,'' as provided in the executive order, including
to ``be guided by the best science and be protected by processes that
ensure the integrity of Federal decision-making'' to promote and
protect public health and advance environmental justice, among others.
The EPA was required to review the LCRR because the EPA promulgated the
LCRR within the time frame specified by the executive order, and the
LCRR addresses public health through drinking water.
Additionally, after promulgation of the LCRR, the EPA heard from
stakeholders on a range of concerns about the LCRR, including the lack
of requirements or incentives to replace all LSLs, the inclusion of the
trigger level that made the rule unnecessarily complicated, and the
implementation burdens on systems and States.
To allow the EPA to engage with stakeholders and review the LCRR
before it took effect, on March 12, 2021, the EPA published the
``National Primary Drinking Water Regulations: Lead and Copper Rule
Revisions; Delay of Effective Date'' (86 FR 14003, USEPA, 2021c), which
delayed the effective date of the LCRR from March 16, 2021, to June 17,
2021. On the same day, the EPA published the ``National Primary
Drinking Water Regulations: Lead and
[[Page 86432]]
Copper Rule Revisions; Delay of Effective and Compliance Dates'' (86 FR
14063, USEPA, 2021d), which proposed further delaying the effective
date of LCRR to December 16, 2021, to allow the EPA to ``conduct a
review of the LCRR and consult with stakeholders, including those who
have been historically underserved by, or subject to discrimination in,
Federal policies and programs prior to the LCRR going into effect'' (86
FR 14063, USEPA, 2021d). On June 16, 2021, the EPA issued a final rule
delaying the LCRR effective date to December 16, 2021, and the
compliance date from January 16, 2024, to October 16, 2024, ``to
maintain the same time period between the effective date and the
compliance date in the LCRR'' (86 FR 31941, USEPA, 2021e).
As part of the LCRR review, the EPA held a series of virtual
engagements from April to August 2021 to obtain public input on the
LCRR. Consistent with Executive Order 13990, the EPA engaged with
States, Tribes, water systems, the public, environmental advocates, and
environmental justice organizations. The EPA also sought input from
community stakeholders in places that have concerns due to lead in
drinking water, particularly from individuals and communities that are
most at-risk of exposure to lead in drinking water.
During this process, the EPA hosted a series of 10 virtual
community roundtables with stakeholders in: Pittsburgh, PA; Newark, NJ;
Malden, MA; Washington, DC; Newburgh, NY; Benton Harbor and Highland
Park, MI; Flint and Detroit, MI; Memphis, TN; Chicago, IL; and
Milwaukee, WI. Each roundtable included a range of participants
representing local governments, community organizations, environmental
groups, local public water utilities, and public officials.
Participants shared their experiences with lead in their communities
and provided the EPA with oral and written comments on the LCRR. The
EPA also held a roundtable with representatives from Tribes and Tribal
communities, a national stakeholder association roundtable, a national
co-regulator meeting, two public listening sessions, and a meeting with
organizations representing elected officials. Summaries of the meetings
and written comments from the public can be found in the docket, EPA-
HQ-OW-2021-0255 at https://regulations.gov/.
On December 17, 2021, the EPA published the results of the LCRR
review (86 FR 71574, USEPA, 2021b). The EPA described the comments
received as part of the public engagement efforts conducted as part of
the LCRR review and determined that there are regulatory and non-
regulatory actions the agency can take to reduce drinking water lead
exposure. While the EPA found that the LCRR improved public health
protection relative to the LCR, the agency also concluded that there
are significant opportunities to further improve the rule to support
the goal of proactively removing LSLs and protecting public health more
equitably (86 FR 71574, USEPA, 2021b). The EPA also announced in the
LCRR review that the effective date of the LCRR published on June 16,
2021, would continue to be December 16, 2021, to support near-term
development of actions to reduce lead in drinking water (86 FR 71574,
USEPA, 2021b). At the same time, the EPA committed to developing a new
proposed rule, the LCRI, to strengthen key elements of the rule. The
EPA identified the following policy objectives informed by the LCRR
review: ``Replacing 100 percent of lead service lines is an urgently
needed action to protect all Americans from the most significant source
of lead in drinking water systems; equitably improving public health
protection for those who cannot afford to replace the customer-owned
portions of their LSLs; improving the methods to identify and trigger
action in communities that are most at risk of elevated drinking water
lead levels; and exploring ways to reduce the complexity of the
regulations'' (86 FR 71574; USEPA, 2021b). The EPA also stated that it
did not expect to propose changes to the requirements for information
to be submitted in the initial LSL inventory or the associated October
16, 2024, compliance date. The EPA described the importance of
maintaining this date, stating that ``continued progress to identify
LSLs is integral to lead reduction efforts regardless of potential
revisions to the rule. The inventory provides critical information on
the locations of potentially high drinking water lead exposure within
and across public water systems, which will allow for quick action to
reduce exposure'' (86 FR 71579, USEPA, 2021b). Specifically, the EPA
noted that development of inventories nationwide over the near-term
would assist water systems, States, Tribes, and the Federal Government
in determining the prevalence of these lead sources and would, among
other things, enable water systems to begin planning for LSLR and apply
for funding.
On December 6, 2023, the EPA published the proposed LCRI for public
review and comment (84 FR 84878, USEPA, 2023a). The proposal included
advancements in protecting people from the health effects from
exposures to lead in drinking water. These advancements are based on
the science and existing practices utilized by drinking water systems.
Key provisions in the proposal include requiring virtually all water
systems across the country to replace LSLs within 10 years, locating
legacy lead pipes, improving tap sampling, lowering the lead action
level, and strengthening protections to reduce exposure. The EPA
proposed to retain the 2021 LCRR requirements and associated October
16, 2024, compliance date for the initial service line inventory;
notifications to consumers served by a lead, galvanized requiring
replacement (GRR), or lead status unknown service lines; Tier 1 public
notification of a lead action level exceedance; and associated
reporting requirements.
D. Statutory Authority
1. Establishment and Review of National Primary Drinking Water
Regulations
The EPA is publishing revisions to the NPDWR for lead and copper
under the authority of SDWA, 42 U.S.C. 300f et seq., including sections
1412, 1413, 1414, 1417, 1445, and 1450. SDWA is the primary Federal law
that protects the tap water provided to consumers by water systems
across the country. Congress passed SDWA in 1974, responding to
``accumulating evidence that our drinking water contains unsafe levels
of a large variety of contaminants.'' Envtl. Def. Fund, Inc. v. Costle,
578 F.2d 337, 339 (D.C. Cir. 1978). In passing SDWA, Congress intended
to ensure ``that water supply systems serving the public meet minimum
national standards for protection of public health.'' H.R. Rep. No. 93-
1185, at 1 (1974), reprinted in 1974 U.S.C.C.A.N. 6454. The primary
regulatory tool for this protection is section 1412 of SDWA under which
the EPA is authorized to issue standards for drinking water served by
water systems. These standards--entitled ``National Primary Drinking
Water Regulations'' (NPDWRs)--are accompanied by ``maximum contaminant
level goal[s]'' (MCLG), which are set, for each contaminant, at the
level at which there are no known or anticipated adverse human health
effects with an adequate margin of safety. 42 U.S.C. 300g-1(a)(3) and
(b)(4). Lead and copper are subject to existing NPDWRs. Based on the
health effects described above, in 1991, the EPA established the MCLG
for lead at 0 mg/L, and the MCLG for copper at 1.3 mg/L.
[[Page 86433]]
SDWA section 1412(b)(9) states that ``The Administrator shall, not
less often than every 6 years, review and revise, as appropriate, each
national primary drinking water regulation promulgated under this
subchapter. Any revision of a national primary drinking water
regulation shall be promulgated in accordance with this section, except
that each revision shall maintain, or provide for greater, protection
of the health of persons.'' 42 U.S.C. 300g-1(b)(9). When the EPA
promulgates a revised NPDWR, the agency follows the applicable
procedures and requirements in section 1412 of SDWA, including those
related to: (1) the use of best available, peer-reviewed science and
supporting studies; (2) presentation of information on public health
effects that is comprehensive, informative, and understandable; and (3)
analysis of the health risk reduction benefits and costs. SDWA section
1412(b)(3)(A)-(C), 42 U.S.C. 300g-1(b)(3)(A)-(C).
2. Establishment of the Lead and Copper Rule as a Treatment Technique
Section 1412(b)(7)(A) of SDWA authorizes the EPA to ``promulgate a
national primary drinking water regulation that requires the use of a
treatment technique in lieu of establishing a maximum contaminant
level, if the Administrator makes a finding that it is not economically
or technologically feasible to ascertain the level of the
contaminant.'' 42 U.S.C. 300g-1(b)(7)(A).
In accordance with SDWA section 1412(b)(7)(A), in 1991, the EPA
promulgated the LCR, which established a treatment technique in lieu of
a maximum contaminant level (MCL) for lead and copper (56 FR 26460,
USEPA, 1991). The EPA's 1991 decision to promulgate a treatment
technique rule for lead and copper instead of an MCL was upheld by the
United States Court of Appeals for the District of Columbia Circuit.
American Water Works Association v. EPA, 40 F.3d 1266, 1270-71 (D.C.
Cir. 1994). For discussion on the EPA's findings and rationale
supporting the agency's determination to continue to regulate lead and
copper using a treatment technique rule, see section IV.A of this
preamble.
3. Prevention of Adverse Health Effects to the Extent Feasible
In establishing treatment technique requirements, the Administrator
is required to identify those treatment techniques ``which, in the
Administrator's judgment, would prevent known or anticipated adverse
effects on the health of persons to the extent feasible'' (SDWA section
1412(b)(7)(A)). ``Feasible'' is defined in section 1412(b)(4)(D) of
SDWA as ``feasible with the use of the best technology, treatment
techniques and other means which the Administrator finds, after
examination for efficacy under field conditions and not solely under
laboratory conditions, are available (taking cost into
consideration).'' Feasibility is based on the best technology,
treatment techniques, or other means, that have been tested beyond the
laboratory under full-scale conditions, as opposed to generally
available technology; the technology need not be in widespread, full-
scale use (SDWA section 1412(b)(4)(D)). Further, in selecting the best
available technology, treatment techniques, and other means, the EPA
evaluates the ability of the technology to reduce the level of the
contaminant, and the technological and economic feasibility of the
technologies being considered, as required under SDWA section
1412(b)(4)(D) (56 FR 26482, USEPA, 1991). In short, ``feasible'' in
this context means technically possible and affordable. See SDWA
section 1412 (b)(4)(D); City of Portland v. EPA, 507 F.3d 706 (D.C.
Cir. 2007) (upholding the EPA's treatment technique rule for
Cryptosporidium and the agency's interpretation that ``feasible'' means
technically possible and affordable). Therefore, to meet the statutory
standard, the EPA must evaluate three primary components for a
treatment technique: (1) the effectiveness of a technology, treatment
technique, or other means in reducing exposure to a contaminant to
protect public health; (2) the affordability of the technology,
treatment technique, or other means; and (3) whether the technology,
treatment technique, or other means is technically possible. Each of
these three components and the ``to the extent feasible'' standard in
the statute are discussed in sequential order in this section.
First, SDWA requires the EPA to establish NPDWRs to protect public
health to reduce exposure to drinking water contaminants. Notably, the
public health protection goal for NPDWRs under SDWA is the same for a
MCL and a treatment technique. SDWA requires the EPA set an MCL ``as
close to the maximum contaminant level goal [MCLG] as is feasible''
(SDWA section 1412(b)(4)(B)). Because the MCLG is set at the level at
which no known or anticipated adverse effects on the health of persons
occur, SDWA's standard for a treatment technique rule--to ``prevent
known or anticipated adverse effects on the health of persons to the
extent feasible''--is essentially the same as the standard for an MCL
(SDWA section 1412(b)(4)(A) and section 1412(b)(7)(A)). As Congress
explained in SDWA legislative history, NPDWRs ``are to be protective of
public health. While cost and technology are factors to be considered .
. . the first priority of the Act is to protect human health by
reducing or preventing human exposure to potentially harmful
contaminants in drinking water.'' 1986 U.S.C.C.A.N. 1566, 1570, S. REP.
99-56 (1985). In establishing NPDWRs, where an agency action is based
on science, SDWA directs the EPA to use the best available peer-
reviewed science and supporting studies conducted in accordance with
sound and objective scientific practices, as well as data collected by
accepted methods or best available methods (SDWA section
1412(b)(3)(A)).
Second, in evaluating feasibility under SDWA section 1412(b)(4)(D)
and section 1412(b)(7)(A), the EPA also must ``take costs into
consideration.'' The legislative history of this provision makes it
clear that this aspect of feasibility is to be evaluated relative to
``what may reasonably be afforded by large metropolitan or regional
public water systems'' (H.R. Rep. No. 93-1185 (1974), reprinted in 1974
U.S.C.C.A.N. 6454, 6471). See also S. Rep. No. 104-169, at 3 (1995)
(feasibility is based on best available technology affordable to
``large'' systems).\6\ The statutory framework for establishing an MCL
or treatment technique rule also supports this approach of considering
costs in determining the feasibility of an MCL or treatment technique
rule. If the EPA cannot identify any affordable technologies for a
particular category of small systems, the statute requires the EPA to
identify variance technologies that ``achieve the maximum reduction or
inactivation efficiency that is affordable'' and protective of public
health (SDWA section 1412(b)(15)(A) and (B)). As a result, the EPA may
not reject a treatment technique because it is unaffordable to small
systems.
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\6\ Where the term ``affordable'' appears throughout the
preamble to describe this aspect of the definition of ``feasible''
in SDWA section 1412(b)(4)(D), it refers to ``what may reasonably be
afforded by large metropolitan or regional public water systems.''
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Third, with respect to the technical possibility \7\ component of
the feasibility standard, for lead and copper drinking
[[Page 86434]]
water rules beginning with LCR, the EPA has consistently considered
``whether a technology has been shown to be effective'' by water
systems and ``is compatible with other water treatment processes'' (56
FR 26482, USEPA 1991). The EPA has evaluated additional factors for
lead and copper NPDWRs that may affect the ability of water systems to
administer and implement rules, depending on the unique technologies,
treatments, and other means available to reduce lead and copper in
drinking water. Specifically, the EPA has historically considered other
factors, such as the national availability of necessary capital
improvement resources and supplies, labor, and specialized expertise,
as supported by the best available information and the learned
experiences and expertise from water systems, States, and other
stakeholders. When promulgating a rule consisting of multiple treatment
technique requirements, the EPA considers whether each treatment
technique is feasible and whether implementation of the full suite of
treatment techniques is feasible.
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\7\ Note, given that the definition for ``feasible'' at SDWA
section 1412(b)(4)(D) provides for the use of ``treatment techniques
and other means'' in addition to ``technology,'' the terms
``technological'' and ``technical'' are used interchangeably herein
for purposes of discussing feasibility to be more inclusive of the
different types of treatment techniques that may be encompassed in a
NPDWR.
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When the EPA assesses technical possibility, it may consider system
size. In contrast to affordability, which is evaluated relative to only
large metropolitan or regional water systems, the EPA evaluates
technical possibility without that limitation. As previously stated,
there is legislative history and case law that clearly provides
Congress intended the statute to be technology-forcing and thus, that
cost considerations were to be based on what is affordable only for
large metropolitan or regional water systems. Absent any further
limitation in SDWA, the best interpretation of the statute is to assess
what is technically possible for treatment techniques by evaluating
whether there are relevant, system-size-based considerations.
SDWA section 1412(b)(7)(A) also directs the EPA to evaluate the
most stringent or health protective level for a treatment technique
because treatment techniques must ``prevent known or anticipated
adverse effects on the health of persons to the extent feasible.'' See
City of Portland v. EPA, 507 F.3d 706 (D.C. Cir. 2007) (finding that
SDWA requires the EPA to choose a treatment technique that is the most
stringent feasible).
Interpreting the phrase ``prevent . . . to the extent feasible'' in
this section to require treatment techniques provide the most health
protection feasible accords with the plain text of SDWA section
1412(b)(7)(A), as well as SDWA section 1412 as a whole, and the
associated legislative history. First, in 1974, the statute required
the EPA to evaluate feasibility based on whether treatment techniques
are ``generally available'' with cost taken into account based on
``what may reasonably be afforded by large metropolitan or regional
public water systems. In 1986, however, ``generally available'' was
changed to ``best available'' in the definition of feasibility, ``to
assure that such standards reflect the full extent of current
technology capability to move toward achievement of the health effects
goal.'' 1986 U.S.C.C.A.N. 1566, 1570-71, S. REP. 99-56 (1985).
Second, SDWA specifies that the EPA may promulgate treatment
techniques that are less stringent or health protective than feasible
only in two narrow circumstances. The first such circumstance is SDWA
section 1412(b)(5), under which the EPA may require the use of a
treatment technique to achieve a contaminant level other than the
feasible level if attaining the feasible level would result in an
increase in the health risk posed by drinking water by increasing the
concentration of other contaminants or by interfering with the efficacy
of drinking water treatment techniques or processes that are used to
comply with other NPDWRs. The second circumstance is SDWA section
1412(b)(6)(A), under which, if the EPA determines that the benefits of
a treatment technique would not justify the costs of compliance, the
EPA may promulgate a treatment technique for the contaminant that
maximizes health risk reduction benefits at a cost that is justified by
the benefits. As a result, interpreting ``prevent . . . to the extent
feasible'' at SDWA section 1412(b)(7)(A) as anything other than what is
the most stringent or health protective feasible level for a treatment
technique would make these two statutory exemptions meaningless and
unnecessary. See City of Portland v. EPA, 507 F.3d 706, 712 (D.C. Cir.
2007) (``But if `feasible' meant that the technique's benefits
justified its costs, [SDWA] section [1412](b)(6)(A)--which allows EPA
to use cost-benefit analysis to set less stringent standards than the
most feasible--would be surplusage.'' (Emphasis added)).
In summary, the best interpretation of the statutory standard for
treatment techniques requires consideration of the terms used and
defined in SDWA section 1412(b)(4) and section 1412(b)(7)(A), as
described in this part of the preamble. Specifically, under SDWA
section 1412(b)(7)(A), the EPA must prescribe the best available
technologies, treatment techniques, or other means that are effective
at preventing adverse health effects from lead and copper in drinking
water to the greatest extent that are both affordable for large
systems, and which are technically possible.
Beginning with the LCR in 1991, the EPA has consistently evaluated
feasibility for this treatment technique rule in accordance with SDWA
section 1412(b)(4) and section 1412(b)(7)(A). As the EPA explained in
the preamble to the 1991 LCR, ``[t]he goal of this rule is to provide
maximum human health protection by reducing the lead and copper levels
at consumers' taps to as close to the MCLG as is feasible'' (56 FR
26478, USEPA, 1991). Each of the best available technologies, treatment
techniques, and other means specified in the LCRI--service line
replacement, CCT, and public education--prevent known or anticipated
adverse health effects to the extent feasible.
Evaluating Feasibility for Each Treatment Technique
The LCRI is a treatment technique rule composed of four separate
``technologies, treatment techniques or other means,'' specifically:
service line replacement, CCT, public education, and source water
treatment.\8\ The EPA chose this approach because multiple
technologies, treatments, and other means are effective at reducing
public health risks associated with lead and copper contamination in
drinking water. Since the first proposed NPDWR for lead and copper, the
LCR, in 1988, the EPA has evaluated a combination of treatment
techniques to address lead contamination in drinking water, given the
complexity inherent in lead contamination and the need for a multi-
faceted approach to managing it (53 FR 31537, USEPA 1988; see section
IV.A of this preamble about the characterization and complex nature of
lead drinking water contamination). While the requirements for lead and
copper NPDWRs have changed over time based on the best available
information and the lived and learned experiences of water systems,
communities, and States, these NPDWRs have maintained the same four
treatment techniques for service line replacement, CCT, public
education, and source water treatment.
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\8\ Note, the EPA is not including a discussion of feasibility
for source water treatment, because it is not being amended by this
final rule. For the EPA's feasibility determination for source water
treatment, see the final LCR (56 FR 26482, USEPA 1991).
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Consistent with SDWA section 1412(b)(7)(A), the EPA evaluates
feasibility at the level of a treatment technique, rather than
evaluating the feasibility of each sub-element of a treatment technique
(``the Administrator
[[Page 86435]]
shall identify those treatment techniques which, in the Administrator's
judgment, would prevent known or anticipated adverse effects on the
health of persons to the extent feasible. Such regulations shall
specify each treatment technique known to the Administrator which meets
the requirements of this paragraph, but the Administrator may grant a
variance from any specified treatment technique in accordance with
section 300g-4(a)(3) of this title.'' (emphasis added)). The EPA
reasonably followed the statutory standard to evaluate feasibility for
``each treatment technique . . . which meets the requirements'' at SDWA
section 1412(b)(7)(A).
4. Notice and Recordkeeping Requirements
Section 1414(c)(1) of SDWA requires public water systems to provide
public notice in certain specified situations, such as when the system
has failed to comply with an applicable treatment technique
requirement, or if the water system is subject to a variance or
exemption. SDWA section 1414(c)(2) states that the Administrator
``shall by regulation . . . prescribe the manner, frequency, form, and
content for giving notice.'' 42 U.S.C. 300g-3(c)(2). The EPA first
promulgated the PN Rule in 2000 and subsequently revised it with the
issuance of new or revised NPDWRs. This final rule includes revisions
to the PN Rule related to the LCRI.
Section 1414(c)(1)(D) of SDWA, as amended by the Water
Infrastructure Improvements for the Nation (WIIN) Act, requires public
water systems to provide notice to the public if the water system
exceeds the lead action level. 42 U.S.C. 300g-3(c)(1)(D). Section
1414(c)(2)(C) of SDWA specifies additional requirements related to the
public notice if the action level exceedance has the potential to have
serious adverse effects on human health as a result of a short-term
exposure, including that the public notice must ``be distributed as
soon as practicable, but not later than 24 hours'' after the water
system learns of the action level exceedance, and that the system must
report the exceedance to both the State and the Administrator within
that same time period (42 U.S.C. 300g-3(c)(2)(C)(i) and (iii)). If a
water system or State does not issue the required public notice for an
exceedance of the lead action level, SDWA section 1414(c)(2)(D) directs
the EPA to issue the required public notice ``not later than 24 hours
after the Administrator is notified of the exceedance.''
In the final rule preamble for the 2021 LCRR, the EPA determined
that a lead action level exceedance has the potential to have serious
adverse health effects on humans as a result of short-term exposure (86
FR 4240, USEPA, 2021a). The EPA also explained that it interprets SDWA
section 1414(c)(2)(C)(iii) to require systems to report only lead
action level exceedances to the Administrator because the EPA does not
have any obligation to issue a notice for other violations of drinking
water standards in States with primacy, and therefore, the EPA does not
need to be notified of those other situations.
SDWA section 1414(c)(4) requires the EPA to issue regulations to
require each CWS to provide a periodic report to each customer of the
system. The EPA first promulgated CCR regulations in 1998. (40 CFR part
141, subpart O) On May 24, 2024, the EPA promulgated significant
revisions to the CCR Rule. (89 FR 45980, USEPA, 2024c) This final rule
includes further revisions to the CCR Rule related to the LCRI.
SDWA section 1417(a)(2) provides that public water systems ``shall
identify and provide notice to persons that may be affected by lead
contamination of their drinking water'' where the contamination results
from the lead content of the construction materials of the public water
distribution system and/or corrosivity of the water supply sufficient
to cause leaching of lead. Notice must be provided ``notwithstanding
the absence of a violation of any national drinking water standard.''
42 U.S.C. 300g-6(a)(2)(A)(i) and (ii). This rule requires water systems
to identify, notify, and provide public education to persons when they
are served by construction materials that contain may lead (lead, GRR,
and unknown service lines) and when the corrosivity of the water supply
is sufficient to cause leaching of lead.
SDWA section 1445(a) provides that every person who is subject to a
requirement under SDWA or who is a grantee shall establish and maintain
records, make reports, conduct monitoring, and provide information to
the Administrator as reasonably required by regulation to assist the
Administrator in establishing regulations under SDWA, in determining
compliance with SDWA, in administering any financial assistance program
under SDWA, in evaluating the health risks of unregulated contaminants,
and in advising the public of such risks. In requiring public water
systems to monitor under SDWA section 1445(a), the Administrator may
take into consideration the system size and the contaminants likely to
be found in the system's drinking water. 42 U.S.C. 300j-4(a).
5. Primacy Enforcement of National Primary Drinking Water Regulations
While the EPA always retains its independent enforcement authority,
pursuant to SDWA section 1413(a), the agency may authorize States,
Territories, and Tribes to have primary responsibility for
administration and enforcement of primary drinking water regulations
and related requirements applicable to public water systems within
their jurisdiction (``primacy'').\9\ Where the EPA has not approved
primacy, the EPA implements the drinking water standards. The EPA may
grant primacy when the agency determines that the State has adopted
regulations that are no less stringent than the promulgated NPDWR,
among other conditions. 42 U.S.C. 300g-2(a) and 40 CFR part 142. At
this time, 49 States and the Navajo Nation have primary enforcement
responsibility for public water systems in their jurisdictions.
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\9\ For purposes of simplicity in this preamble, the term
``primacy agencies'' and ``States'' are used interchangeably to
refer to States, Tribes, and Territories with primacy, and the
Regional Administrator of EPA, where the EPA is acting as the
primacy agency. The term ``State'' is defined in 40 CFR 141.2 to
mean the agency of the State or Tribal government which has
jurisdiction over public water systems. During any period when a
State or Tribal government does not have primary enforcement
responsibility pursuant to section 1413 of SDWA, the term ``State''
means the Regional Administrator, U.S. Environmental Protection
Agency. The term ``State'' is defined in 40 CFR 142.2 to include one
of the States of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American
Samoa, the Commonwealth of the Mariana Islands, the Trust Territory
of the Pacific islands, or an eligible Indian Tribe.
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To retain primary enforcement responsibility for public water
systems, States must adopt regulations that are no less stringent than
any new or revised NPDWRs promulgated in 40 CFR part 141 and request
the EPA to approve a program revision. States must submit complete and
final applications for approval of a program revision no later than two
years after promulgation of the new or revised regulation unless the
EPA grants the State a two-year extension. The EPA must approve or deny
complete and final State primacy applications within 90 days of
submission to the EPA. See 42 U.S.C. 300g-2(b)(2) and 40 CFR 142.12(d).
In some cases, a State that has an approved primacy program for each
existing NPDWR may qualify for interim primary enforcement authority
for a new or revised NPDWR while the EPA's decision on the primacy
application is
[[Page 86436]]
pending. See 42 U.S.C. 300g-2(c) and 40 CFR 142.12(e). SDWA section
1413(b)(1) requires the EPA to establish regulations governing the
primacy application and review process ``with such modifications as the
Administrator deems appropriate.'' In addition to revisions to the
NPDWR for lead and copper, the CCR Rule, and the PN Rule, this final
rule includes changes to the primacy requirements related to this rule.
SDWA section 1450 authorizes the Administrator to prescribe such
regulations as are necessary or appropriate to carry out the
Administrators functions under the Act. 42 U.S.C. 300j-9.
E. Anti-Backsliding Analysis of LCRI Relative to LCR and LCRR
Section 1412(b)(9) of SDWA is known as the ``anti-backsliding''
provision. Under this provision, the EPA is required to ensure that
``each revision'' of a national primary drinking water regulation
``shall maintain, or provide for greater, protection of the health of
persons.'' The EPA has analyzed this rule against this standard using a
framework that gives meaning to the text, structure, and purpose of the
anti-backsliding provision, and is the best reading of the statutory
provision. The term ``each revision'' is naturally read to refer to a
revision of a ``national primary drinking water regulation,'' meaning
that each new rule that revises the older regulation, shall maintain,
or provide for greater health protection. The plain meaning of
``revision'' is broad in scope and contemplates that one revision may
contain multiple parts. The word ``revision'' is defined as ``[t]he
action or an act of revising something; critical or careful examination
or perusal of a text, judgment, code, etc., with a view to making
corrections, amendments, or improvements.'' Revision, definition 2.a.
(in the context of a legal change), Oxford English Dictionary (3d ed.
2010). Thus, when analyzing whether ``each revision'' allows for
backsliding, SDWA section 1412(b)(9)'s plain meaning asks the EPA to
compare the whole of a new rule (i.e., the ``revision'' at issue)
against the whole of the prior rule to assess whether the revision
maintains or improves upon health protections.
This is particularly true for a treatment technique regulation. A
treatment technique rule is not centered on a single compliance level,
but rather on an integrated set of actions designed to reduce the
overall level of exposure to a contaminant. Therefore, in assessing
whether a new treatment technique rule maintains or provides for
greater health protection relative to the existing rule, the EPA
evaluates the treatment technique rule as a whole, not on a component-
by-component or provision-by-provision basis. As described in the 2021
LCRR rulemaking, the backsliding analysis for a treatment technique
rule is ``based on an assessment of public health protection as a
result of implementation of a rule as a whole, rather than a comparison
of numerical benchmarks within the treatment technique rule'' (86 FR
4216, USEPA, 2021a). Therefore, when analyzing the LCRI against the
anti-backsliding standard, the EPA assessed the level of public health
protection resulting from implementation of the whole of the final LCRI
(i.e., the ``revision''). Because water systems are required to comply
with the LCR until October 16, 2024, when water systems would have been
required to comply with the 2021 LCRR in the absence of the LCRI, the
EPA conducted two anti-backsliding analyses to compare the LCRI against
the whole of the LCR and then separately against the whole of the 2021
LCRR to assess whether the new rule will maintain or improve public
health protection relative to both prior baselines.
The EPA has found the final LCRI will improve public health
protection over either the LCR or 2021 LCRR in accordance with SDWA
section 1412(b)(9). Below is a more detailed breakdown of some of the
most significant components that make the LCRI, as a whole, more
protective than either the LCR or 2021 LCRR. The central feature of the
LCRI is the mandatory replacement of lead and GRR service lines
regardless of a water system's 90th percentile lead level. This is a
more health protective approach relative to either the LCR or 2021 LCRR
baseline because removing lead and GRR service lines eliminates a
significant source of lead from the distribution system. Replacing lead
and GRR service lines has been shown to significantly reduce lead
levels in drinking water (Camara et al., 2013; Deshommes et al., 2018;
Trueman et al., 2016), which improves public health by reducing the
associated health impacts from lead exposures.
The LCR only requires water systems to replace LSLs systemwide if a
system exceeds the lead action level and allows them to stop
replacements once their 90th percentile lead level is below the lead
action level. The 2021 LCRR requires systems to replace lead and GRR
service lines if they exceed the lead action level, and to initiate a
goal-based replacement program if they exceed the lead trigger level.
In contrast, the LCRI requires systemwide replacement of lead and GRR
service lines regardless of 90th percentile lead levels and at a faster
replacement rate. By eliminating these major lead sources, the LCRI
will result in significant public health benefits. While the EPA
projected that a total of 339,000 to 555,000 lead and GRR service lines
under control of water systems would be replaced under the 2021 LCRR
over a 35-year period, the LCRI requires replacement of all lead and
GRR service lines under control of the system (USEPA, 2020a, Exhibit C-
1) within 10 years for most water systems. This is a key element of the
LCRI and is intended to provide both broader and more certain lead risk
reduction than any of the prior lead rules. The EPA projects that all
lead and GRR service lines will be replaced under the LCRI over the
period covered by the economic analysis. Specifically, the EPA
estimates that 6.7 million lead and GRR service lines will be replaced
within the 10-year mandatory replacement window and the remaining
approximately 200,000 lines will be replaced in the following years for
systems with deferred replacement deadlines. Thus, the number replaced
among all systems nationwide is expected to be substantially greater
than under the 2021 LCRR (USEPA, 2024d). Note that under the LCRI, like
the 2021 LCRR, there are also about 2 million lead connectors that are
required to be replaced when they are encountered by the water system
(i.e., during water main replacement). For additional information on
the EPA's estimated numbers of lead content service lines see chapter
3, section 3.4.4, of the final LCRI Economic Analysis (USEPA, 2024a).
In addition, the LCRI makes changes to the treatment technique for
CCT that will maintain or improve public health protection. These
changes include lowering the lead action level to 0.010 mg/L from 0.015
mg/L under the LCR and the 2021 LCRR. The LCRI lead action level thus
requires water systems to take actions (e.g., install or re-optimize
CCT, conduct public education) both sooner and at lower lead levels
than under the LCR or the 2021 LCRR. Similarly, the LCRI's requirement
to use the higher result of the first- and fifth-liter tap samples at
LSL sites will result in more systems installing or re-optimizing
optimal corrosion control treatment (OCCT) one or more times after the
LCRI compliance date, as well as notifying and educating the public
about health risks from lead.
Several other changes to the LCRI warranted specific anti-
backsliding analysis. First, the EPA is revising the OCCT requirements
to no longer require
[[Page 86437]]
most systems with CCT that exceed the lead action level to re-optimize
their OCCT multiple times before they complete their service line
replacement program if they re-optimized once after the compliance date
for LCRI and are meeting their optimal water quality parameters
(OWQPs). However, the LCRI maintains or improves public health
protection for those systems. Public health protection will be
maintained because systems already conducting OCCT or having re-
optimized OCCT will be required to continue to operate that treatment.
Public health protections will also be maintained or improved because
the LCRI requires systems that continue to exceed the lead action level
to conduct additional public education activities and make filters
available if they have ``multiple lead action level exceedances'' (see
section IV.K of this preamble). The EPA anticipates additional health
benefits from this change to the CCT requirements because systems and
States can prioritize resources for these types of mitigation
activities and, most importantly, lead service line replacement. These
requirements will achieve greater public health benefits overall for
systems with lead service lines by facilitating the removal of the most
significant source of lead in drinking water and are more likely to
lower the level of lead in tap samples compared to repeating OCCT re-
optimization steps that may not achieve further reductions. Also, if
there have been no significant source water or treatment changes
(actions which themselves can require a CCT study), a new re-
optimization study is likely to yield the same outcomes as a previous
study. These systems will have re-optimized once after the compliance
date for the LCRI and persistently high lead levels can be mitigated by
targeted public education activities and the availability of filters.
In addition, the final LCRI requires systems that exceed the lead
action level after they have replaced all lead and GRR service lines to
install or re-optimize OCCT to tailor CCT based on the new conditions
where lead and GRR service lines are no longer the most significant
sources of lead. This can result in maintaining or improving health
protection because systems may achieve better performing CCT when the
study is designed to optimize treatment based on the new system
characteristics. Further, regardless of whether a system is conducting
service line replacement, the final LCRI maintains the rule provision
in Sec. 141.82(h) that allows the State to modify its decision for
OCCT or re-optimized OCCT on its own initiative or in response to a
request by a water system or other interested party.
In addition, the 2021 LCRR allows CWSs serving 10,000 persons or
fewer and all NTNCWSs which exceed the lead action level to choose
between four compliance options: replace lead and GRR service lines,
install and maintain OCCT, conduct full replacement of lead-bearing
plumbing, or install and maintain point-of-use devices, while systems
serving greater than 10,000 persons were required to replace lead and
GRR service lines and install or re-optimize CCT. The LCRI requires all
water systems with lead or GRR service lines to conduct mandatory
service line replacement regardless of lead levels. Accordingly, under
the LCRI, small water systems with lead and/or GRR service lines are
required to remove these significant sources of lead and may not choose
between service line replacement and other options to protect against
lead exposures if they exceed the lead action level. Instead, small
CWSs serving 3,300 persons or fewer (reduced from 10,000 persons or
fewer under the 2021 LCRR) and all NTNCWSs can choose among the
remaining three options if approved by the State. This reduced
threshold ensures appropriate application of the remaining options.
Thus, the LCRI provides greater protection of public health than the
2021 LCRR for small systems with lead or GRR service lines that exceed
the lead action level. As compared to the pre-2021 LCR, the LCRI
improves the level of public health protection provided by the rule for
systems without lead or GRR service lines that serve less than 3,300
persons that exercise this compliance flexibility; these systems will
be subject to the lower action level and improved public education,
including lead sampling at schools and child care facilities. For
systems with lead or GRR service lines that serve less than 3,300
persons that exercise this compliance flexibility, the lower action
level, coupled with a mandatory service line replacement requirement,
increases the level of health protection at those systems as compared
to the pre-2021 LCR.
The EPA is requiring additional improvements across other parts of
LCRI that will result in some actions taken both at lower lead levels
and other actions that must be taken regardless of lead levels to
better protect public health. Exhibit 1 in section II.A of this
preamble summarizes these changes and illustrates comparisons among the
pre-2021 LCR, the 2021 LCRR, and the final LCRI requirements.
As a whole, therefore, the LCRI improves public health protection
relative to the LCR or the 2021 LCRR. This conclusion is supported by a
comparison of the monetized health benefits. See chapter 5, section
5.6.2, and appendix F of the final LCRI Economic Analysis (USEPA,
2024a) for 2021 LCRR to LCRI monetized estimated health benefits
comparisons and appendix C, of the final LCRI Economic Analysis for
pre-2021 LCR to LCRI monetized estimated cost and health benefits
comparisons.
Through this revision of the NPDWR for lead and copper, the EPA is
requiring a more stringent and comprehensive set of lead reduction
requirements compared to the LCR or the 2021 LCRR, including mandatory
service line replacement; changes to the treatment technique for CCT;
and more robust and meaningful public education. Therefore, the EPA
expects the LCRI, as a whole, will improve public health protections
relative to the LCR and the 2021 LCRR in accordance with SDWA section
1412(b)(9).
As part of the anti-backsliding analysis that the LCRI, as a whole,
would improve public health protection relative to the LCR and the 2021
LCRR, the EPA also evaluated the impact of requiring water systems to
comply with the LCR instead of the 2021 LCRR (with some limited
exceptions) between October 16, 2024, and the compliance date of the
LCRI. Through the consultations the EPA conducted as part of the 2021
LCRR review, as well as the engagements and consultations the EPA held
to support the development of the proposed and final LCRI, including
public comments received, many stakeholders, including States and water
systems, provided feedback on the challenge of implementing successive
changes to the LCR over a short period of time, such as the inefficient
use of time and resources needed to prepare to implement requirements
that could be different or no longer apply in the rule's next iteration
and public confusion about rapidly changing requirements. Because of
these challenges, as explained further below, the EPA is requiring that
water systems continue to implement the pre-2021 LCR requirements
between promulgation of the LCRI and the compliance date of three years
after promulgation. In addition, the EPA is requiring water systems to
implement the 2021 LCRR requirements for the initial service line
inventory, notification to persons served by known or potential LSLs,
Tier 1 public notification of lead action level exceedances, and
associated reporting
[[Page 86438]]
requirements (see section V.B of this preamble for further discussion).
The EPA previously recognized that the LCRR is an improvement in
public health protection over the LCR, especially in light of the
inventory requirements of the 2021 LCRR. Notwithstanding the EPA's
elimination of certain LCRR compliance deadlines in the LCRI, the EPA
expects greater health benefits from the LCRI. The improvement of
public health attributable to the 2021 LCRR compared to the LCR is
based primarily on the changes to the treatment technique requirements
of LSLR, OCCT, and public education--actions that occur over extended
periods of time in response to tap sampling results that exceed certain
thresholds. The EPA does not expect those projected improvements from
the 2021 LCRR would have been realized between the October 16, 2024,
compliance date for the 2021 LCRR and the compliance date of the LCRI.
Moreover, the EPA expects that, if compliance with the entire 2021 LCRR
were required starting October 16, 2024, it would negatively affect
water systems' abilities to comply with the LCRI to realize the greater
health risk reduction benefits of the LCRI.
Since LCRI compliance is required in the third year of the 2021
LCRR implementation, systems and States would be simultaneously tasked
with implementation of two different rules at the same time they are
engaged in the startup activities for the LCRI. The startup activities
for water systems include reading and training on the rule to
understand its new requirements, creating a staffing plan, and securing
funds for compliance among other requirements such as developing a
baseline inventory and service line replacement plan. The startup
activities for a State include adopting State regulations, modifying
data systems, and conducting internal and external training. If water
systems are required to simultaneously implement the entire 2021 LCRR
for the first time and prepare for LCRI compliance, the EPA expects
that it would be beyond the capacity of water systems, States, and the
EPA where direct implementation occurs, and therefore, the expected
benefits of one or both rules would not be realized (see section V.B of
this preamble for further discussion).
Allowing water systems to transition from compliance with the LCR
to compliance with the LCRI, while requiring systems to comply with the
2021 LCRR's initial inventory requirements in the interim, will result
in more full service line replacements and, thus, broader and faster
health risk reduction than if adequate planning for LCRI compliance did
not take place because of the diversion of scarce system and State
resources towards short-term implementation of the 2021 LCRR.
F. White House Lead Pipe and Paint Action Plan and the EPA's Strategy
To Reduce Lead Exposures and Disparities in U.S. Communities
The development of the LCRI is a key action of the Lead Pipe and
Paint Action Plan, released by the Biden-Harris Administration in 2021
(The White House, 2021). The aim of the plan is to mobilize resources
from across the Federal Government through funding made available from
the Infrastructure Investment and Jobs Act, also referred to as the
Bipartisan Infrastructure Law (BIL), to reduce lead exposure from pipes
and paint containing lead. The plan includes a goal of eliminating all
LSLs and remediating lead paint.
In October 2022, the EPA published the ``Strategy to Reduce Lead
Exposures and Disparities in U.S. Communities'' (or ``Lead Strategy'')
to ``advance EPA's work to protect all people from lead with an
emphasis on high-risk communities'' (USEPA, 2022a). This agency-wide
Lead Strategy promotes environmental justice in communities challenged
with lead exposure and includes four key goals: (1) reduce community
exposures to lead sources; (2) identify communities with high lead
exposures and improve their health outcomes; (3) communicate more
effectively with stakeholders; and (4) support and conduct critical
research to inform efforts to reduce lead exposures and related health
risks. The LCRI is a key action within the EPA's Lead Strategy and
``reflects EPA's commitment to fulfilling the Biden-Harris
Administration's historic commitment of resources to replace lead pipes
and support lead paint removal under the Lead Pipe and Paint Action
Plan'' (USEPA, 2022a).
G. Bipartisan Infrastructure Law and Other Financial Resources
There are a number of pathways for systems to receive support for
LSLR and related activities, including low- to no-cost financing
through the Drinking Water State Revolving Fund (DWSRF); lead
remediation grants under authorities established by the WIIN Act and
incorporated into SDWA at sections 1459A, 1459B, and 1464; and low-cost
financing from the Water Infrastructure Finance and Innovation Act
(WIFIA) program. The EPA strongly encourages water systems to evaluate
these available funding opportunities to support LCRI implementation
and full LSLR. Water systems are encouraged to contact their State's
DWSRF program to learn about project eligibilities, requirements, and
how to apply for assistance through the DWSRF.
The BIL appropriated $30.7 billion in supplemental DWSRF funding
over a five year period and reemphasized the importance of LSLR under
the DWSRF program by including $15 billion specifically appropriated
for ``lead service line replacement projects and associated activities
directly connected to the identification, planning, design, and
replacement of lead service lines.'' Full service line replacement is
an eligible expenditure under the DWSRF regardless of the ownership of
the property on which the service line is located. The BIL LSLR, BIL
General Supplemental, and base program appropriations can pay for LSLR
and related activities.
The BIL requires that States provide 49 percent of their LSLR and
General Supplemental capitalization grant amounts as additional
subsidization in the form of principal forgiveness and/or grants to
disadvantaged communities, as defined under SDWA section 1452(d)(3).
Assistance provided as additional subsidization does not need to be
repaid. If available, additional subsidization can be used to cover the
cost of customer-side LSLR. State DWSRF programs are strongly
encouraged to prioritize available additional subsidization for this
purpose.
In May 2024, the White House highlighted its efforts to accelerate
progress towards the elimination of LSLs in the United States (The
White House, 2024a). The President announced the availability of $3
billion in funding for LSLR, part of the $15 billion in dedicated BIL
DWSRF funding for LSLR. For example, as part of this available BIL
DWSRF funding, the President announced $76 million for LSLR in the
State of North Carolina, for a total distribution of $250 million in
BIL DWSRF to communities in North Carolina over the first three years
of BIL implementation. In addition, the DWSRF program is part of the
Justice40 Initiative, which has the goal that 40 percent of the overall
benefits of certain Federal investments flow to disadvantaged
communities. Additionally, several cities demonstrate the significance
of BIL funding in assisting communities to equitably replace their LSLs
as quickly as feasible. Pittsburgh, Pennsylvania has received over $40
million in BIL funding and is on track to eliminate LSLs in its city by
2026. The City of Milwaukee, Wisconsin
[[Page 86439]]
is receiving over $30 million in BIL funding for LSLR through the
DWSRF, putting the city on track to replace all its LSLs within 10
years instead of the initially estimated 60 years (The White House,
2024a; 2024b).
Corrosion control planning and design, LSL inventories and
replacement plans, and associated capital infrastructure projects are
eligible for DWSRF funding under the DWSRF General Supplemental
appropriation under the BIL as well as the DWSRF annual base
appropriations. However, CCT is not an eligible activity for DWSRF
funding from the $15 billion specifically appropriated in BIL for LSLR
and associated activities. States may use DWSRF set-aside funds to
assist water systems' development of corrosion control strategies and
LSL inventories and replacement plans.
Under the DWSRF, State programs are authorized to reserve a portion
of their capitalization grants as set-asides that can be spent on non-
infrastructure purposes. Set-asides can fund State programs, technical
assistance and training for water utilities (such as educational
opportunities for operators), and other activities that support
achieving the public health protection objectives of SDWA. Set-asides
taken from BIL LSLR capitalization grants must be used to either
administer the capitalization grant or for eligible projects and
activities that meet the statutory purpose of these LSLR funds.
Activities must be directly connected to the identification, planning,
design, and replacement of LSLs. Examples of eligible projects and
activities from BIL LSLR set-aside funds include, but are not limited
to, planning and design for LSLR; developing or updating service line
inventories; providing technical assistance, education, and outreach;
and non-routine sampling that is not for compliance purposes.
The WIIN Act established three drinking water grant programs
incorporated into SDWA that are available to support activities to
reduce lead exposures in drinking water. The Reducing Lead in Drinking
Water grant program awards funding for the reduction of lead in
drinking water in disadvantaged communities, as defined under SDWA
section 1452(d)(3). This grant program focuses on two priority areas:
(1) Reduction of lead exposures in the nation's drinking water systems
through water infrastructure and treatment improvements and (2)
reduction of children's exposure to lead in drinking water at schools
and child care facilities (USEPA, 2022b). The Voluntary School and
Child Care Lead Testing and Reduction grant program awards funding to
States, Territories, and Tribes to assist local and Tribal educational
agencies in voluntary testing and remediation for lead contamination in
drinking water at schools and child care facilities (USEPA and USHHS,
2023). The Small, Underserved, and Disadvantaged Communities grant
program awards funding to States, Territories, and Tribes to assist
public water systems in underserved, small, and disadvantaged
communities in meeting SDWA requirements, including the lead and copper
NPDWRs (USEPA, 2021f).
The EPA also administers the WIFIA program, a Federal credit
program, to accelerate investment in the nation's water infrastructure
by providing long-term, low-cost supplemental loans for regionally and
nationally significant projects, including those eligible for funding
through DWSRFs (USEPA, 2023b). The WIFIA program can provide financial
assistance for LSLR projects. The City of Chicago is using its $336
million WIFIA loan to assist with replacing LSLs serving single family
homes and small multi-unit buildings citywide whenever there is a leak
or break on a lead line or when performing water and sewer main
updates. The City of Philadelphia received a commitment of over $340
million in WIFIA financial assistance to upgrade its water system,
including an initial $19.8 million WIFIA loan that will help modernize
critical infrastructure by replacing approximately 160 LSLs and 13
miles of water mains.
The EPA's water technical assistance (WaterTA) supports communities
to identify water challenges; develop plans; build technical,
managerial, and financial capacity; and develop application materials
to access water infrastructure funding that results in more communities
with applications for Federal funding, quality water infrastructure and
reliable water services. The EPA collaborates with States, Tribes,
Territories, communities, and other key stakeholders to implement
WaterTA efforts. For example, numerous Environmental Finance Centers
(EFCs) are available to help underserved communities that have
struggled to access Federal funding, such as DWSRF funding, to receive
the support they need to access resources for water infrastructure
improvements, including LSLR. The EFCs each have their own workplans
and many of them include a focus on small systems. Additionally, the
Training and Technical Assistance to Improve Water Quality and Enable
Small PWSs to Provide Safe Drinking Water grant program provides
training and technical assistance to small systems to achieve and
maintain compliance with SDWA. The grant program serves two main
functions for small PWSs--to build their financial and managerial
capacity to provide safe drinking water over the long term and to
improve water quality and sustainable operations.
As part of WaterTA efforts, the EPA utilized BIL funds to establish
the Lead Service Line Replacement (LSLR) Accelerators initiative and
the Get the Lead Out (GLO) Initiative. These initiatives further the
EPA's administration of the BIL DWSRF funding for LSLR by helping
underserved communities access funds from the BIL to accelerate the
replacement of LSLs, which pose risks to the health of children and
families.
In January 2023, the EPA announced the LSLR Accelerators initiative
(USEPA, 2023c). This pilot initiative provides targeted technical
assistance services to four States--Connecticut, Pennsylvania, New
Jersey, and Wisconsin--working with 40 communities across those States
in 2023 and 2024. The EPA is providing direct technical assistance to
guide communities through the process of LSLR, including support in
developing LSLR plans, conducting inventories to identify lead pipes,
increasing community outreach and education efforts, and supporting
applications for Federal funding. In addition to providing direct
technical assistance to communities, the Accelerators initiative is
supporting these States in strategically deploying funding from the BIL
for LSLR while developing best practices that can serve as a roadmap
for other State programs. In light of the ongoing success of the LSLR
Accelerators pilot, the GLO Initiative launched in November 2023 to
expand LSLR technical assistance to approximately 200 communities
across the country. The GLO Initiative will work with water systems to
develop a roadmap for identification and full replacement of all LSLs,
including associated activities such as developing a service line
inventory, community engagement plan, LSL replacement plan, and a DWSRF
application with active involvement from the community. The EPA will
use the lessons learned from the GLO Initiative's direct technical
assistance to develop tools, best practices, and peer exchange and
learning that help communities nationwide address barriers to lead pipe
replacement. While the EPA recognizes external funding may not be
available for all systems, all systems can benefit from these lessons
[[Page 86440]]
learned. For additional information on EPA funding, see https://www.epa.gov/ground-water-and-drinking-water/funding-lead-service-line-replacement. For additional information on technical assistance, see
https://www.epa.gov/water-infrastructure/water-technical-assistance-waterta. In addition, for information on available funding and
technical resources for lead service line replacement in small and
disadvantaged communities please see https://www.epa.gov/sites/default/files/2020-12/documents/ej_lslr_funding_sources-final.pdf.
In addition to the EPA-administered funding for service line
replacement and other lead reduction actions, other Federal programs
outside of the EPA offer significant opportunities to further support
these actions. Examples include Federal and State funds from the
American Rescue Plan (ARP), Community Development Block Grant (CDBG)
programs through the U.S. Department of Housing and Urban Development
(HUD), Rural Development through the U.S. Department of Agriculture
(USDA), and the Public Works Program through the U.S. Department of
Commerce Economic Development Administration (EDA).
ARP funds are eligible to fund LSLR as well as replacement of
internal plumbing and faucets and fixtures in schools and child care
centers. Recipients of the ARP State and Local Fiscal Recovery Funds
budgeted over $519 million for projects to remediate lead in drinking
water as of April 2024 (USDT, 2024). For example, Washington, DC,
budgeted $30 million to increase funding available to assist residents
in replacing LSLs to their homes. Additionally, Buffalo, New York, will
use $10 million to expand its existing program to remove LSLs in 1,000
additional homes (Department of the Treasury, n.d.). Following a lead-
in-water crisis, the City of Benton Harbor, Michigan, replaced all its
LSLs within two years using ARP funding (The White House, 2024a). The
City of St. Paul, Minnesota, received $16 million in ARP funds which
has enabled the city to target replacement of all LSLs by 2032 at no
cost to residents.
HUD CDBG programs support community development through activities
that address needs, such as infrastructure, economic development
projects, public facilities installation, and community centers (USHUD,
2020). In 2017, North Providence, Rhode Island, utilized CDBG funding
from HUD to replace customer-side LSLs (USEPA, 2023d). HUD's Healthy
Homes Production grant program and Healthy Homes Supplements to HUD's
Lead Hazard Reduction grant programs are available to address a wide
range of housing-related hazards including LSLR (USHUD, 2023).
USDA Rural Development provides a variety of grant and loan
programs to rural communities, organizations, businesses, and
individuals to finance infrastructure repair and replacement, including
LSLR (USEPA, 2020b). The EDA Public Works Program supports physical
infrastructure improvements in economically distressed communities
(USEPA, 2020b).
States are using the available Federal funding sources as well as
providing their own funding to support LSLR. As of February 2023,
Illinois EPA has provided almost $89 million for LSLR (IEPA, 2023).
Illinois EPA's DWSRF is providing funding to numerous systems' LSLR
projects, including over $4 million in funding for the City of Sycamore
and $3.9 million for the City of Batavia (IEPA, 2023). Other States are
also providing funding for LSLR. New York's LSLR Program received $20
million in State funding in 2017 and an additional $10 million in 2019
for communities meeting specific eligibility characteristics, including
income, measured blood lead levels, and age of homes (NYDOH, 2019). The
State of Minnesota approved $240 million for replacing LSLs, mapping
and inventory activities, and informing residents about the benefits of
LSLR. The funding was used to establish an LSLR grant program, where
the awarded grants must cover 100 percent of the cost of replacing the
customer's portion of an LSL and prioritize replacing LSLs that are an
imminent threat to public health and safety, areas with children,
lower-income residents, and where replacements will provide the most
efficient use of the grant funding (such as in coordination with main
replacement) (State of Minnesota, 2023). The funding will be available
beginning in 2024 until June 30, 2033, which corresponds to the year
the State has set as their official goal for replacing all LSLs (State
of Minnesota, 2023). Regional authorities, like the Massachusetts Water
Resources Authority (MWRA), are also providing funding to support LSLR.
MWRA provided $100 million in loan funds for LSL investigation and
replacement projects in their metropolitan Boston communities (MWRA,
2023).
The EPA developed ``Strategies to Achieve Full Lead Service Line
Replacement,'' which is a guidance document that discusses funding
sources including additional ways systems have financed full LSLR
(USEPA, 2019a). For example, the City of Green Bay, Wisconsin, used
funding from a stadium tax to fund customer-side LSLR (USEPA, 2019a).
The EPA also developed ``Funding and Technical Resources for Lead
Service Line Replacement in Small and Disadvantaged Communities,''
which is a guide to help small and disadvantaged communities identify
potential Federal funding sources and technical assistance for LSLR
(USEPA, 2020b).
H. Lead Exposure and Environmental Justice, Equity, and Federal Civil
Rights
1. Environmental Justice
Stakeholder feedback and the EPA's environmental justice analysis
informed the agency's understanding of how the LCRI could affect
communities with environmental justice concerns. As described in
section IV.C of the LCRI proposal (88 FR 84898, USEPA, 2023a), the EPA
developed the proposed revisions after engaging with community
stakeholders in cities with concerns about lead in drinking water
during the LCRR review and by holding two public listening sessions on
the topic of environmental justice to support the LCRI rulemaking. The
EPA also prepared an environmental justice analysis for the proposed
rule to inform the EPA's understanding of how the proposed LCRI could
impact communities with environmental justice concerns (USEPA, 2023e).
The EPA is finalizing requirements that are anticipated to achieve
more equitable human health protection outcomes, especially in how
service line replacement programs are planned and implemented. For
example, the LCRI has a requirement for water systems to make their
service line replacement plans publicly accessible to inform their
communities about how they will prioritize service line replacement
(see section IV.C of this preamble). The rule's requirements will also
help to ensure that communication about the replacement program and the
risks of lead in drinking water are more accessible to all consumers
including individuals with limited English proficiency. See section
V.B.9 of the proposed LCRI for further discussion (88 FR 84927, USEPA,
2023a). In addition, as discussed in the previous section, Federal
funds are available to support equity including BIL funds that require
that States provide 49 percent of their LSLR and General Supplemental
capitalization grant amounts as additional subsidization in the form of
principal forgiveness and/or grants to disadvantaged communities, as
defined
[[Page 86441]]
under SDWA 1452(d)(3) (see section III.G of this preamble).
2. Applicability of Federal Civil Rights Laws
The EPA enforces and ensures compliance with Federal civil rights
laws that together prohibit discrimination on the bases of race, color,
national origin (including limited-English proficiency), disability,
sex and age, respectively title VI of the Civil Rights Act of 1964
(title VI), section 504 of the Rehabilitation Act of 1973 (section
504), title IX of the Education Amendments of 1972 (title IX), section
13 of the Federal Water Pollution Control Act Amendments of 1972
(section 13), and the Age Discrimination Act of 1975. The EPA's
nondiscrimination regulations at 40 CFR parts 5 and 7 implement these
Federal civil rights statutes and contain important civil rights
requirements for applicants and recipients of EPA financial assistance.
All applicants for and recipients of EPA financial assistance have
an affirmative obligation to comply with these laws, as do any
subrecipients of the primary recipient, and any successor, assignee, or
transferee of a recipient, but excluding the ultimate beneficiary of
the assistance.
The Federal civil rights laws prohibit discrimination based on
race, color, national origin (including limited-English proficiency),
disability, sex, and age in any program or activity of applicants for
and recipients of EPA financial assistance. Accordingly, water systems
that apply for or receive EPA financial assistance must take reasonable
steps to provide meaningful access to their programs and activities to
individuals with limited-English proficiency. Recipients must provide
individuals with disabilities an equal opportunity to participate in or
benefit from their programs and activities.
When developing service line replacement plans, water systems that
are recipients or subrecipients of EPA financial assistance must ensure
compliance with Federal civil rights laws and the EPA's
nondiscrimination regulations. As a best practice, recipients may
consider including as one component of such a plan an analysis of the
demographic data that recipients of EPA financial assistance are
required to collect under 40 CFR 7.85(a). The EPA encourages water
systems to engage with local community-based organizations and
community members about the service line replacement process and in the
development of the service line replacement plan. The EPA also
encourages States to consider if any State law or regulation may create
barriers that could lead to challenges for water systems to meet their
obligations under Federal civil rights laws and the EPA's
nondiscrimination regulations. To support this effort, the LCRI has a
special primacy requirement for States to identify any potential
barriers to full service line replacement, which is discussed further
in section V.C of this preamble.
IV. Final Revisions to 40 CFR Part 141, Subpart I, Control of Lead and
Copper
A. Regulatory Approach
Section 1412(b)(7)(A) of SDWA authorizes the United States
Environmental Protection Agency (EPA) Administrator ``to promulgate a
national primary drinking water regulation that requires the use of a
treatment technique in lieu of establishing an MCL, if the
Administrator makes a finding that it is not economically or
technologically feasible to ascertain the level of the contaminant''
(42 U.S.C. 300g-1(b)(7)(A)). In the 1991 Lead and Copper Rule (LCR),
the EPA evaluated the best information available at the time consistent
with the statutory standard and determined that lead and copper met the
criteria for establishing a treatment technique rule. For the Lead and
Copper Rule Improvements (LCRI), the EPA is again finding, as it has
consistently done since 1991, that an MCL for lead is not feasible
because ``it is not feasible to ascertain the level of the
contaminant'' within the meaning of the Act. While it is economically
and technologically feasible to detect the presence and/or amount of
lead in a water sample, it is not feasible to ascertain the level of
lead such that the EPA can set an MCL within the purpose of the
statute: i.e., a level of lead applicable to the entire system that
accurately reflects both consumers' exposure to the contaminant and the
public water system's contribution to that exposure or ability to
control it.
Specifically, as described in more detail below, the EPA considered
whether the level of lead and copper can be ascertained at the tap,
whether it was possible to determine single national numerical
standards for lead and copper at the tap that is reflective of the
effectiveness of treatment applied by water systems, and the
feasibility of establishing MCLs for lead and copper when lead and
copper are present in both water systems' distribution system and
building premise plumbing. In making this finding, the EPA conducted a
new analysis of the issue by re-evaluating the information and data and
analyses underlying the EPA's conclusion in the 1991 LCR and evaluating
the new information and data available since the 1991 LCR was
promulgated.
The primary rationale for promulgating the LCR as a treatment
technique rule was due to the nature of lead and copper contamination.
As the EPA described in 1991, and is still accurate today, lead and
copper do not generally occur in source water, but instead are
introduced in drinking water by the corrosive action of water in
contact with plumbing materials containing lead and copper. These
sources of lead and copper were and continue to be present in both the
water system's distribution system and in plumbing materials in homes,
as discussed further below. In 1991, the EPA explained that lead and
copper levels at the tap can be highly variable ``due to many factors
including the amount of lead and copper in the resident's plumbing or
in the PWS's distribution system . . . temperature, age of plumbing
components, chemical and physical characteristics of distributed water,
and the length of time water is in contact with those materials'' (56
FR 26473, USEPA, 1991). The EPA noted that while it is feasible to
accurately measure the level of lead or copper in an individual sample,
the inherent variability across sites and systems makes it
``technologically infeasible to ascertain whether the lead or copper
level at a tap at a single point in time represents effective
application of the best available treatment technology'' (53 FR 31527,
USEPA, 1988). The EPA discussed how if the agency were to select an
MCL, it must be ``as close as feasible'' to the maximum contaminant
level goal (MCLG) in accordance with the statutory standard. The EPA
analyzed lead and copper tap sampling data to determine if there is a
``precise level [of lead] at the tap'' that could be feasibly met by
large water systems if they were to apply treatments representing best
available technology to the water systems themselves (56 FR 26473,
USEPA, 1991). The EPA found that even when minimizing some of the
sources of variability (e.g., the time the water is in contact with the
plumbing materials, age and type of plumbing material), lead and copper
levels still varied considerably. Lead and copper levels varied at the
same system both before and after the application of corrosion control
treatment (CCT), between different systems, and between individual
homes within the same system (56 FR 26473-26475, USEPA,
[[Page 86442]]
1991). The EPA concluded that because of the sources of variability
described above, there is no precise level that would be generally
considered ``feasible'' based upon application of best available
treatment in all water systems and further found that the level that is
as close as ``feasible'' to an MCLG would vary in systems throughout
the country based on the sources of lead and copper, the corrosivity of
the water, and how the water chemistry responds to CCT (56 FR 26473,
USEPA, 1991).
Second, in the development of the 1991 LCR the EPA explained that
an additional challenge for establishing MCLs for lead and copper was
that much of the lead and copper sources are privately owned and/or are
outside of the control of the public water system (PWS), such as
premise plumbing. During the development of the 1991 LCR, the EPA
received comments stating that by ``only establish[ing] MCLs for lead
and copper for the water as it leaves the control of the public water
system'' (56 FR 26472, USEPA, 1991), and therefore monitoring for
compliance in the distribution system (e.g., the entry point to the
distribution system), could the EPA reduce some of the variability
associated with lead and copper levels and address the problem of water
system responsibility for conditions outside of their control. However,
the agency determined that setting an MCL for lead and copper at the
point the water leaves the control of the PWS would be inconsistent
with the Safe Drinking Water Act (SDWA) definition of an MCL as ``the
maximum level allowed of a contaminant in water which is delivered to
any user of a public water system.'' Specifically, the EPA reasoned
that MCLs for lead and copper would have to be assessed with monitoring
at customers' taps to accurately represent the level of the
contaminants in drinking water delivered to the user, noting that,
``EPA has established monitoring requirements for inorganic and organic
contaminants that require monitoring in the distribution system because
this is easier and provides just as accurate an assessment of tap
levels as tap sampling itself'' (56 FR 26478, USEPA, 1991). In
contrast, the EPA determined that monitoring for lead and copper in the
distribution system for compliance with MCLs ``would not adequately
protect the public from lead and copper introduced by the interaction
of corrosive water delivered by the PWS with lead and copper-bearing
materials in the homeowners' plumbing'' (56 FR 26472-26473, USEPA,
1991). Despite the fact that some lead and copper sources may be
outside the control of the water system, including premise plumbing
sources, the EPA determined that ``public water systems can affect, at
least to some degree, water tap lead and copper levels through
adjustment of the corrosivity of water delivered by the water system''
(56 FR 26473, USEPA, 1991). However, as explained in the 1991 LCR
rulemaking, due to the factors described above (e.g., variability of
lead and copper in drinking water, treatment effectiveness, and sources
of lead and copper), water systems can affect drinking water
corrosivity, but not in a manner that would make it technically
feasible to set an MCL applicable to all systems. As explained above,
the EPA is reaffirming that it is not feasible to ascertain the level
of lead such that the EPA can set an MCL within the purpose of the
statute: i.e., a level of lead applicable to the entire system that
accurately reflects both consumers' exposure to the contaminant and the
public water system's contribution to that exposure or ability to
control it.
Third, the EPA reasoned in the 1991 rulemaking that the definition
of a PWS under SDWA precludes the agency from promulgating a
``regulation that holds a [public water system] liable for conditions
that are beyond its control'' (56 FR 26476, USEPA, 1991). In the 1991
rulemaking, the EPA posited that an MCL would not be considered
``feasible'' if a significant number of water systems would be in
noncompliance due to conditions outside of their control, such as lead
exposures from customer's premise plumbing within buildings. The EPA
contemplated an alternative approach of establishing MCLs that would
meet the statutory standard for an MCL in SDWA section 1412(b)(4)(B)
and 1412(b)(4)(D)--``as close to the maximum contaminant level goal as
is feasible''--i.e., ``feasible with the use of the best available
technology, treatment techniques and other means which the
Administrator finds, after examination for efficacy under field
conditions and not solely under laboratory conditions, are available
(taking cost into consideration.)'' The resulting MCLs would need to be
high enough to enable most systems to meet them after installing
treatment (while accounting for the variability of lead and copper
levels that would persist after treatment installation, given the
sources of lead and copper). However, the EPA found that such an
approach would lead ``to unnecessarily high exposures of significant
segments of the population'' and noted that systems below this higher
MCL ``would not be required to install any treatment to be in
compliance'' (56 FR 26477, USEPA, 1991). Therefore, the EPA concluded
that such an approach would be inconsistent with the objective of the
statute to prevent ``known or anticipated adverse effects on the health
of persons to the extent feasible'' (SDWA 1412 (b)(7)(A)). As explained
above, the EPA is reaffirming that it is not feasible to ascertain the
level of lead such that the EPA can set an MCL within the purpose of
the statute.
Considering the above facts, analyses, and statutory requirements,
the EPA concluded that it was not feasible to set MCLs for lead and
copper and promulgated the 1991 LCR that is comprised of four treatment
techniques: CCT, source water treatment, lead service line replacement
(LSLR), and public education. As described in section III.C of this
preamble, the EPA introduced action levels for lead and copper to
implement the treatment technique requirements in the rule. The action
levels are not based on a level of exposure but rather are designed to
determine the systemwide effectiveness of corrosion control and are
compared to the 90th percentile of lead and copper samples collected
from consumer taps to determine if the water system must take actions
under the rule. In 1991, the EPA explained how the action levels are
not MCLs, and they do not function as MCLs (56 FR 26488, USEPA, 1991).
For more information about action levels, including the lead action
level the EPA is finalizing in the LCRI and the EPA's determination
about why an action level was not an MCL under the LCR and is still not
an MCL under the final LCRI, see section IV.F.4 of this preamble.
The EPA's 1991 decision to promulgate a treatment technique rule
for lead was challenged and upheld by the D.C. Circuit Court of Appeals
(American Water Works Association v. EPA (AWWA), 40 F.3d 1266, 1270-71
(D.C. Cir. 1994)). Because the Court agreed with the EPA's analysis,
described above, that it is not feasible to ascertain the level of lead
in drinking water, the Court upheld the EPA's decision not to implement
an MCL for lead (AWWA, F.3d 1266, 1270-71).
As described in the proposed LCRI, the EPA re-evaluated whether a
treatment technique rule in lieu of an MCL is consistent with the
statute. As part of the agency's analysis, the EPA re-evaluated the
information considered and conclusions made in promulgating the LCR in
1991, in addition to the best information and data available in more
than 30 years since the LCR was promulgated, including from stakeholder
feedback received during
[[Page 86443]]
the LCRR review. Based on the analysis conducted, the EPA has
determined that information and factors consistent with SDWA that cause
lead and copper variation identified in the 1991 LCR and supported in
the 2021 LCRR continue to apply today. Therefore, the EPA is finding
that it is not feasible to ascertain the level of the contaminant and
the EPA thus is not establishing MCLs for lead and copper. The EPA
received comments stating that the EPA must promulgate an MCL for lead,
as described below. However, commenters did not raise any new arguments
that change the agency's analysis and understanding of this issue. For
the final LCRI, the EPA is reaffirming the findings and rationale
presented in the proposed LCRI (88 FR 84907-84910, USEPA, 2023a) and as
discussed below.
New information available since the 1991 LCR continues to show that
the variability of lead and copper levels make it infeasible to
ascertain the level of the contaminant, and any level that could be
feasibly set would not provide the protection from lead exposure that
can be provided by the treatment technique. Several reasons contribute
to the EPA's determination on lead and copper variation supporting the
use of a treatment technique. First, as noted in the LCR, ``lead
release can be unpredictable over time and across households, can
originate from many sources owned by the water system and the customer,
can vary based on the sample technique used, and can be affected by
customer water use habits'' (53 FR 31527, USEPA, 1988). Studies
continue to show that the levels of lead and copper measured at the tap
after treatment are variable due to several factors including, but not
limited to, the amount of lead in any individual site's plumbing, the
age of plumbing components, the physical and chemical characteristics
of the water, the length of time water is in contact with material, and
consumer water use patterns (Triantafyllidou et al., 2021). Studies
show that lead levels can widely vary at a single site depending on the
sampling protocol (Del Toral et al., 2013; Lytle et al., 2019; Lytle et
al., 2021; Masters et al., 2021; Triantafyllidou et al., 2015). For
example, Del Toral et al. (2013) showed that there was significant
variability in lead concentrations from water samples collected at the
same site as well as among different lead service line (LSL) sites
across Chicago, Illinois. The EPA's analysis of 2019 State of Michigan
Lead Tap Monitoring Data as part of the 2021 LCRR (see docket item no.
EPA-HQ-OW-2017-0300-1617) also demonstrated variability among collected
water samples grouped by combinations of LSL status, CCT status, and
liter sampled (USEPA, 2020c, Exhibit F-4). Even when using the same
sampling protocol, variation in lead at a single site can still occur
due to water use patterns and highly variable release of particulate
lead (Clark et al., 2014; Masters et al., 2016; Xie and Giammar, 2011).
As described in the proposed LCRI, the EPA analyzed lead data from
the dataset collected for the Six-Year Review 4 (2012 to 2019) for
systems with different characteristics (e.g., CCT and LSL status) to
further evaluate how lead and copper levels at the tap can vary. The
EPA used the Federal version of the Safe Drinking Water Information
System (SDWIS/Fed) (2012 to 2020) data and information on LSL status to
select a subset of 7,161 systems with identified CCT and LSL status
(USEPA, 2023a). The EPA conducted a similar analysis to the one used
for the 1991 LCR, by evaluating the magnitude of difference between two
points in the distribution (i.e., the ratio of the 90th percentile and
50th percentile) as a measure of variability (56 FR 26474, USEPA,
1991). The results of the analysis developed for the LCRI show high
variability across systems for both lead and copper. Lead and copper
levels vary both between systems, and at the same system across various
years, regardless of CCT and LSL status. In some cases, systems had
some tap samples with high levels of lead and copper and other samples
where no concentrations were detected. This information confirms that
lead and copper variability persist at the tap in water systems across
the nation. See Exhibits 2 and 3 of the LCRI proposal for results and
additional details (88 FR 84907-84908, USEPA, 2023a). Commenters did
not dispute that lead and copper levels are variable at the tap.
Second, the conditions of plumbing materials also continue to vary
from water system to water system, and from site to site within a water
system, such that lead in drinking water continues to be subject to
high levels of variability. Studies have shown that LSLs are the
predominant contributor of lead in drinking water where they are
present. A study published by the American Water Works Association
(AWWA) Research Foundation found that LSLs contribute an estimated 50
to 70 percent of the mass of lead at the tap for sites served by LSLs
(Sandvig et al., 2008). Another study found that removal of LSLs
resulted in an average reduction of lead content at the tap by 86
percent (Lytle et al., 2019). However, while removal of LSLs is
critical to reducing lead in drinking water, premise plumbing materials
also continue to be a source of lead in drinking water (Elfland, 2010;
Kimbrough, 2007; Rockey et al., 2021). In addition, premise plumbing
materials can be a source of particulate lead. For example, brass
particles and lead solder particles were identified as the cause of
severe tap water contaminations during three field investigations in
North Carolina and Washington, DC (Triantafyllidou and Edwards, 2012).
This means that even where systems remove all LSLs, CCT must be
continued because of the lead and copper sources that will remain in
the premise plumbing of consumers' homes and other buildings (USEPA,
2020c), and in lead connectors. Systems without LSLs can exceed the
lead action level, for example, due to the corrosion of premise
plumbing containing lead. Under the 2021 Lead and Copper Rule Revisions
(LCRR), the EPA estimated between 2.3 and 4.7 percent of community
water systems (CWSs) without LSLs will exceed the current lead action
level of 0.015 mg/L (USEPA, 2020d, chapter 3, Exhibit 3-25). Thus, the
factors that cause lead and copper variation will continue to exist.
Third, despite changes to the allowable amount of lead in ``lead
free'' plumbing, many older buildings can still be a source of lead.
Some commenters asserted that LSLs have overtaken household plumbing as
the dominant source of lead contamination due to the revised ``lead
free'' standard. However, these commenters misconstrue SDWA section
1417 requirements. SDWA section 1417 prohibits the use of any pipe, any
pipe or plumbing fitting or fixture, solder, or flux in the
installation or repair of any PWS or in plumbing in a residential or
nonresidential facility that provides water for human consumption that
is not ``lead free'' as defined in section 1417(d). The 2011 Reduction
of Lead in Drinking Water Act revised the definition of ``lead free''
in SDWA section 1417(d) from eight percent to a weighted average of
0.25 percent,\10\ lowering the amount of lead that may be in plumbing
materials used in repairs or new installations starting in 2014. The
EPA's Lead Free Rule (85 FR 54236, USEPA, 2020c) requires third-party
certification for new plumbing products
[[Page 86444]]
as of September 1, 2023. However, SDWA section 1417 does not require
anyone to replace previously installed plumbing materials that are not
``lead free'' as currently defined, and many buildings in the U.S. were
constructed prior to 2014. Accordingly, the revisions to the ``lead
free'' definition alone do not change the prevalence of legacy lead
sources. Further, even products that meet the new definition of ``lead
free'' may contain trace amounts of lead that can leach into drinking
water (42 U.S.C. 300g-6(d)(1)). Therefore, premise plumbing in these
buildings will continue to be a source of lead in drinking water. As
illustrated both in peer-reviewed studies and through reported
compliance data, lead levels vary at single sites over time, between
sites within a system, and between systems, both for systems with and
without LSLs and CCT.
---------------------------------------------------------------------------
\10\ The term ``lead free'' provided here is defined under SDWA
section 1417(d) as follows: ``[T]he term `lead free' means--(A) not
containing more than 0.2 percent lead when used with respect to
solder and flux; and (B) not more than a weighted average of 0.25
percent lead when used with respect to the wetted surfaces of pipes,
pipe fittings, plumbing fittings, and fixtures.''
---------------------------------------------------------------------------
Some commenters asserted that the agency's reasons for not setting
an MCL for lead are inconsistent, stating that the EPA's primary
rationale is based on not holding water systems responsible for sources
of lead not owned by the water system while including provisions in the
2021 LCRR and the LCRI for LSLs that apply regardless of water system
ownership (e.g., service line inventory, service line replacement, and
tap sampling requirements). This argument misconstrues the
comprehensive set of reasons for the EPA's decision to not set an MCL
for lead. In deciding whether to set an MCL for a particular
contaminant or set a treatment technique rule, the primary focus of the
statutory analysis is not on who is ``responsible'' for the sources of
lead in drinking water, but whether it is feasible to ascertain the
level of lead in drinking water. As described above, the variability of
lead and copper levels make it ``technologically infeasible to
ascertain whether the lead or copper level at a tap at a single point
in time represents effective application of the best available
treatment technology'' (53 FR 31527, USEPA, 1988). While premise
plumbing is a contributor to lead and copper at the tap, the EPA found,
and continues to find, that the quality of water delivered to customers
can be controlled by systems regardless of whether the system
physically controls all lead sources and that ``water systems can
affect, at least to some degree, water tap lead and copper levels
through adjustment of the corrosivity of water delivered by the
system'' (56 FR 26473, USEPA, 1991). For example, studies indicate that
CCT can reduce drinking water lead levels at the tap (Cardew, 2009;
Hayes et al., 2008; Tully et al., 2019). However, while water systems
can affect drinking water corrosivity, they cannot do so in a way that
allows the EPA to set an MCL due to factors such as variability of lead
and copper in drinking water, treatment effectiveness, and the sources
of lead and copper as discussed above. Additionally, if the EPA were to
establish an MCL despite these factors, it would be based on the
principle that the MCL would set a level that could be met by most
systems (taking into account variability in tap levels among systems
after treatment), resulting in a level too high to be health protective
as water systems below this high level would not be required to take
any actions. Therefore, a treatment technique rule for lead and copper
is also more health protective than an MCL would be.
Some commenters claimed that, because the LCR requires water
systems to conduct tap sampling and take actions based on action
levels, the EPA has found it feasible to ascertain lead levels for the
purposes of a treatment technique, and therefore the EPA must set an
MCL for lead. The EPA notes that the ability to accurately measure the
level of a contaminant in a single sample is not equivalent to finding
that it is ``feasible to ascertain the level of the contaminant'' for
purposes of establishing a rule that prevents lead exposure consistent
with SDWA. The measurement of lead or copper in a single sample alone
does not indicate the extent of corrosion of lead and copper from
plumbing materials (53 FR 31527, USEPA, 1988). As noted above, the EPA
found that there is no precise level of lead at the tap that can be
achieved through application of the best available treatment due to the
high variability of lead at the tap. The EPA has also demonstrated that
the key factors that led to the agency establishing a treatment
technique rule for lead and copper still apply today. Therefore, it is
not feasible to ascertain the level of lead for the purposes of
establishing an MCL.
Additionally, the EPA notes that these commenters misconstrue the
difference between the action level and an MCL. Due to the factors
described above, the lead action level is not a precise statistical
analysis of the effectiveness of treatment, but rather is a general
screening level developed for use as a tool to simplify and enable
implementation of the CCT treatment technique (see section IV.F.4 of
this preamble for discussion of how the action level was developed).
One key difference between action levels and MCLs is that exceeding an
action level alone is not a violation of the rule, but rather a system
is in violation if it fails to take required actions following an
action level exceedance. While the lead action level is a numerical
value, it is not equivalent to an MCL either in function or in terms of
how it is derived (56 FR 26488, USEPA, 1991).
Some commenters claimed that the EPA has established MCLs for other
drinking water contaminants, such as disinfection byproducts (71 FR
388, USEPA, 2006), and that EPA has stated that such contaminants are
similarly prone to sampling variability. However, the preamble for the
Stage 2 Disinfectants and Disinfection Byproducts Rule does not suggest
that disinfection byproduct sampling is subject to the same level of
sampling variability as lead sampling or that disinfection byproducts
are so affected by sampling variability that it impacts the ability of
water systems to accurately ascertain disinfection byproduct
contamination from water samples (71 FR 388, 394, USEPA, 2006).
Specifically, there is no discussion of the disinfection byproduct
levels measured in the distribution systems and used for compliance as
being unrepresentative of the levels in water delivered to consumers at
the tap. Disinfection byproduct levels can vary based on factors such
as residence time in the system, pipe diameter, location where
disinfectants are added, and water temperature (71 FR 394, USEPA,
2006). Water systems are required to sample at different sites across
the distribution system to account for this variability. However, the
greater variability in lead and copper materials from sampling site to
sampling site and the lead and copper levels in water at individual
taps within the system is one difference between the lead and copper
and the disinfection byproduct rules. While both rules require systems
to evaluate water quality within the distribution system, due to the
reasons stated above, the LCR also requires sampling at consumer taps,
which is inherently variable across sites due to factors including
differences in premise plumbing within homes. Sampling in the
distribution system for lead and copper would not be representative of
the levels of lead and copper at the tap. Put simply, there is no
indication that the level of purported sampling ``variability''
associated with disinfection byproducts can be reasonably compared to
that of lead contamination in drinking water.
Another critical distinction between lead and disinfection
byproducts is that, unlike lead, disinfection byproducts arise from
water systems disinfecting the water supply. Water systems
[[Page 86445]]
introduce disinfectants, such as chlorine and chloramine, into the
drinking water supply (71 FR 394, USEPA, 2006). These disinfectants
interact with organic and inorganic material in source waters to form
disinfection byproducts. Water systems can control and account for the
formation of disinfection byproducts, such as through source water
treatment to reduce precursors (e.g., total organic carbon) that can
lead to disinfection byproduct formation when these precursors come
into contact with disinfectants. On the other hand, lead is rarely
found in source water (86 FR 4231, USEPA, 2021a) and instead enters
drinking water through corrosion in lead pipes and fixtures, sometimes
from lead pipes and fixtures outside the direct control of the water
system. As such, there is no inconsistency between regulating
disinfection byproducts through an MCL while finding that a treatment
technique is necessary for lead.
Considering the above information and analysis, the EPA is
determining that the same conditions that prompted the agency to
promulgate a treatment technique rule for lead and copper in 1991 still
exist today and justify continued use of a treatment technique rule for
regulating lead and copper. This includes the nature of lead
contamination, where much of the lead in drinking water continues to
originate in the distribution system and from sources outside the
control of water systems (e.g., premise plumbing), the condition and
composition of water systems' plumbing and distribution system varying
from system to system, and the variability of lead and copper levels at
the tap. In addition to finding that it is not feasible to set an MCL
for lead and copper at the tap, the EPA also notes the benefit of a
treatment technique. As noted above, the EPA can set requirements that
compel the system to take various actions to reduce exposure to lead in
drinking water, while an MCL would not compel action until, and unless,
the MCL is exceeded (USEPA, 2020b). The EPA is prohibited from
requiring a specific treatment when promulgating an MCL (see SDWA
section 1412(b)(4)(E)). For example, the agency would not be authorized
to require all water systems to conduct mandatory service line
replacement or some of public education requirements as part of an MCL
rule.
The conditions that led the agency to make the findings necessary
to promulgate a treatment technique rule for lead and copper in 1991
still apply and are supported by an evaluation of the best information
and data available since the LCR was promulgated. For these reasons,
the agency is continuing to regulate lead and copper through four
treatment techniques: (1) service line replacement, (2) CCT, (3) public
education, and (4) source water treatment.
B. Service Line Replacement
1. Overview
There is no safe level of lead in drinking water. More than 30
years after the EPA promulgated the 1991 LCR, the use of lead and
galvanized requiring replacement (GRR) service lines to deliver water
poses a continual threat of significant adverse health effects. Where
present, LSLs are the most significant source of lead in drinking
water. Even when water systems with lead and GRR service lines have
implemented optimal corrosion control treatment (OCCT), lead can still
be released from these service lines. In addition, improper
implementation of tap sampling and OCCT requirements in the LCR has
resulted in significant increases in lead levels that are unaddressed
and cause increased exposure to lead in drinking water for consumers in
multiple water systems. As a result, this final rule modifies the
National Primary Drinking Water Regulation (NPDWR) for lead by
mandating service line replacement of lead and GRR service lines
regardless of tap sampling results or corrosion control efforts.
The final LCRI requires mandatory replacement of both lead and GRR
service lines. Under the 2021 LCRR, galvanized service lines that
currently are or ever were downstream of lead or unknown service lines
are considered to be ``galvanized requiring replacement'' service lines
(Sec. 141.2) because the risk of high lead levels from these service
lines is comparable to that of LSLs. Where the system is unable to
demonstrate that a galvanized service line ``never was'' downstream of
an LSL, it must categorize the service line as GRR. Galvanized service
lines downstream of a lead connector are not required to be replaced
because the risk is not as significant.
The final rule requires replacement of the entire service line,
such that no portion of a lead or GRR service line remains. Partial
lead or GRR service line replacements do not prevent known or
anticipated adverse health effects and may cause adverse health
effects; however, water systems may, in limited circumstances, need to
conduct partial service line replacements as part of an emergency
repair or to facilitate the completion of planned infrastructure work
(separate from service line replacement activities, such as water main
replacement) that would disturb the service line. Accordingly, the rule
(1) prohibits water systems from conducting a partial lead or GRR
service line replacement, except in the mentioned limited
circumstances, and (2) requires water systems that conduct partial
service line replacement to comply with notification requirements and
other measures to mitigate the potential increased levels of lead as a
result of the partial replacement (section IV.B.5).
The EPA is authorized to promulgate NPDWRs for PWSs and not for
individual property owners. Under SDWA, a PWS is defined to include
service lines (``distribution facilities'') if they are ``under
control'' of the operator of the PWS and ``used primarily in connection
with'' the system (SDWA section 1401(4)(A)). Therefore, the requirement
in the final LCRI for PWSs to fully replace lead and GRR service lines
applies only to service lines ``under control'' of the operator of the
PWS and ``used primarily in connection with'' the system (section
IV.B.3). Where a water system has access (e.g., legal access, physical
access) to conduct full service line replacement, the service line is
under its control, and the water system must replace the service line.
The LCRI does not delineate or establish the criteria for determining
whether a system has access to conduct full service line replacement;
that determination is governed by State or local law or water tariff
agreements. The LCRI does not presume that customer consent is required
for a system to gain access to conduct full service line replacement,
yet the final rule recognizes that customer consent may be a
prerequisite for access in some States and municipalities because, in
some cases, service lines may only be under control of the water system
when the customer provides consent to replace the customer-owned
portion of the line. For that reason, where property owner consent is
required under State or local law, the LCRI requires that the water
system at a minimum make a ``reasonable effort'' (four attempts) to
obtain property owner consent, and if the customer does not consent to
the replacement, the system is not required to make further attempts to
gain access to replace the service line until there is a change in
property ownership.
The final LCRI establishes a deadline for water systems to complete
their service line replacement program within 10 years (section
IV.B.6), unless the State sets a shorter deadline for the system
(section IV.B.7) or the system is eligible and plans to use a deferred
deadline (section IV.B.8). The EPA
[[Page 86446]]
determined that a 10-year replacement deadline is feasible for the vast
majority of water systems. However, the number and proportion of
service lines requiring replacement can vary significantly among
systems, making it difficult to identify a single deadline that
represents the fastest feasible rate of replacement for all systems
across the nation. In recognition of the strong possibility that some
systems may be able to replace all of their lead and GRR service lines
on a faster schedule, and to ensure that the rule meets the statutory
standard for a treatment technique rule to ``prevent known or
anticipated adverse effects on the health of persons to the extent
feasible'' (SDWA section 1412(b)(7)(A)), the rule requires the State to
set a shortened deadline if the State determines an earlier replacement
deadline is feasible for the system.
On the other hand, to ensure that the rule's service line
replacement deadline is not infeasible for a large number of systems,
the final rule includes a pathway for a water system to defer its
replacement deadline if the system meets specific threshold criteria
established in the rule, while also requiring that the State
periodically evaluate whether the deferred deadline and associated
replacement rate the system identifies are the fastest feasible.
Systems on a deferred deadline must regularly provide their State with
information on the deadline and rate they consider as the fastest
feasible to support their continued eligibility for a deferred
deadline, and the State must periodically approve the system's
continued use of the deferred deadline and associated replacement rate
or determine a faster replacement rate. The EPA determined that setting
a deadline of 10 years and incorporating procedures for reducing or
extending that time frame on a case-by-case basis will ensure that the
LCRI requires water systems to replace lead and GRR service lines as
quickly as is feasible.
2. Mandatory Service Line Replacement
a. Rationale and Proposed LCRI Revisions
Lead service line replacement is a highly effective treatment
technique for reducing lead levels in drinking water. It has been part
of the EPA's NPDWR for lead since 1991. The LCRI makes a fundamental
improvement to the LSLR treatment technique in the LCR NPDWR. The 1991
LCR requires systems that exceed the lead action level of 0.015 mg/L to
replace LSLs systemwide at a mandatory replacement rate and allows
these systems to stop replacing LSLs if the system ceases to exceed the
action level. Under the 1991 LCR, systems could meet the mandatory
replacement rate by partially replacing the system-owned portion of the
LSL or through ``test-outs'' of individual service lines. However,
research conducted after 1991 revealed that LSLR is highly effective at
reducing lead levels in drinking water only where the entire LSL is
replaced (Deshommes et al., 2017; Trueman et al., 2016; USEPA, 2011a).
Thus, the 2021 LCRR maintained the approach of the 1991 LCR to require
replacement if a system exceeds the action level of 0.015 mg/L, but
reduced the replacement rate to three percent per year. The 2021 LCRR
also required systems to replace the entire LSL, prohibited ``test-
outs'', and required systems that exceed the lead trigger level of
0.010 mg/L to replace lead and GRR service lines at a goal-based
replacement rate until the system ceases to exceed the lead trigger
level. The 2021 LCRR also required water systems to provide
notification and risk mitigation actions, including the provision of
pitcher filters, when a service line replacement was conducted.
In the 2021 LCRR review, the EPA noted the ``urgency of fully
removing all lead service lines'' and acknowledged that under the 2021
LCRR, millions of LSLs would be left in place, resulting in
``generations of Americans being at risk of significant lead exposure
through their drinking water'' (86 FR 71577, USEPA, 2021b). During the
2021 LCRR review, the EPA listened to the nation's concerns on lead in
drinking water through two days of public listening sessions, 12
community and stakeholder roundtables, and two co-regulator and elected
official meetings. Nearly all commenters expressed support for the goal
of full replacement of all the nation's LSLs. Commenters frequently
suggested that the agency mandate replacement of all LSLs over a
defined time (e.g., 10 to 15 years) regardless of drinking water lead
levels, ban all or certain partial service line replacements, and
increase financial support for LSLR from the EPA and other Federal
agencies (86 FR 71576, USEPA, 2021b). These stakeholder recommendations
reflect a widespread awareness that LSLs pose a continued threat to
public health that cannot be quickly and fully remedied through
installation or re-optimization of CCT.
Consistent with the statutory direction when promulgating a
treatment technique rule, the EPA proposed in the LCRI mandatory full
service line replacement of all lead and GRR service lines, regardless
of lead levels, because full replacement will prevent to the extent
feasible the known or anticipated significant adverse threat to public
health caused by the presence of these service lines. Mandatory full
service line replacement prevents known adverse health effects because
it reduces lead levels in drinking water more than other risk
mitigation actions and treatment, such as OCCT, flushing, and public
education. Even when a system's 90th percentile lead level is
relatively low, full service line replacement is the only risk
mitigation action that permanently removes the lead source and
associated exposure risk. Although OCCT can be effective at reducing
lead levels, it requires consistent proper operation, water quality
parameter monitoring, and tap sampling to ensure it is effective at
reducing lead levels. The EPA's experience with implementing the LCR
for over 30 years has shown that improper implementation of tap
sampling and CCT has resulted in significant increases in lead levels
that were unaddressed and caused increased exposure to lead in drinking
water for consumers in multiple water systems (e.g., Edwards and Dudi,
2004; Lytle et al., 2020; Sarver, 2019; USEPA 2023f). Additionally, in
recent years, systems ranging from small to large have experienced high
lead levels despite having installed OCCT and maintained compliance
with the LCR OCCT requirements (Masters et. al, 2021). In addition,
when elevated levels of lead are detected, OCCT can take years to study
and implement, and some systems, based on the water chemistry in their
source water and distribution systems, may face challenges optimizing
CCT, leaving their consumers at a higher risk of lead exposure compared
to other communities. Recognizing that there is no known safe level of
lead in drinking water, removing the largest sources of lead in
drinking water (lead and GRR service lines where present) can reduce
lead levels more than OCCT alone or in combination with public
education and other risk mitigation activities. Furthermore, lead
particulates can be released sporadically or as a result of service
line disturbances even in systems that have well-operated OCCT and have
measured generally low lead levels (Del Toral et al., 2013;
Triantafyllidou et al., 2007). Thus, systems with 90th percentile
levels below the lead action level or even the lead practical
quantitation limit (PQL) may still have higher lead levels at
individual sites served by lead and GRR service lines. These higher
lead levels then result in increased lead exposure to the consumers
served, but without any
[[Page 86447]]
requirement for systemwide follow-up actions such as CCT, public
education, or LSLR. Cases of lead poisoning in children have been
documented and attributed to drinking water in communities whose
systemwide lead levels remained below the lead action level
(Triantafyllidou et al., 2007; Triantafyllidou and Edwards, 2012).
i. Scope of Mandatory Service Line Replacement
The pre-2021 LCR did not require galvanized service lines to be
replaced. A galvanized service line that currently is or previously was
downstream of an LSL can contribute to lead in drinking water and
resulting lead exposure to consumers (USEPA, 2020d) and, therefore, is
considered a ``galvanized requiring replacement'' or GRR service line
under the 2021 LCRR. Such GRR service lines can adsorb particulate lead
initially mobilized from the upstream LSL, which can later be released
back into the drinking water even after removal of the LSL (McFadden et
al., 2011). The 2021 LCRR's inclusion of GRR service lines in the full
service line replacement requirements ensures that all galvanized
service lines currently or previously downstream of an LSL will be
treated the same as an LSL under the service line replacement
requirements (USEPA, 2020d). The proposed LCRI maintained the 2021 LCRR
requirements for water systems to fully replace both lead and GRR
service lines in their distribution systems.
The 2021 LCRR did not require replacement of galvanized service
lines downstream of a lead connector. Galvanized service lines
downstream of a lead connector may contribute lead into drinking water,
but for the 2021 LCRR, the EPA did not find it appropriate to
categorize these service lines as ``galvanized requiring replacement''
if these lines were not currently or previously downstream from an LSL
(USEPA, 2020e). The EPA determined that it was not feasible to include
a requirement for all systems to inventory lead connectors; therefore,
they cannot be used to categorize a galvanized line as needing to be
replaced under the LCRR (USEPA, 2020e). Additionally, the EPA did not
want LSLR to be slowed by including galvanized service lines downstream
of a lead connector in the total number of service lines requiring
replacement. The 2021 LCRR requires lead connectors to be tracked and
replaced as they are encountered during normal operations. The EPA did
not propose in the LCRI to expand the definition of a GRR service line
to include galvanized service lines downstream of a lead connector for
the same reasons identified in the 2021 LCRR, but the agency did
request public comment on this topic.
The EPA maintained the 2021 LCRR requirement to provide
notification and risk mitigation measures, including pitcher filters,
where full service line replacements were conducted to account for
potential temporary increases in lead levels and further prevent the
potential for known adverse health effects.
b. Summary of Public Comments and the EPA's Response
Many commenters supported the proposed requirement for water
systems to replace lead and GRR service lines regardless of 90th
percentile lead levels, highlighting the benefits of service line
replacement to eliminate the risk of lead exposure posed by these
significant lead sources. A few commenters stated that CCT is effective
at reducing lead in drinking water, and therefore, mandatory service
line replacement should not be required. After consideration of all the
comments on this issue, the agency is requiring full replacement of
lead and GRR service lines in the final rule. Replacement of lead and
GRR service lines can substantially reduce the risk of lead exposure
from drinking water because lead and GRR service lines can release lead
even when systemwide lead levels are low (Triantafyllidou et al.,
2007). Many water systems have proactively and voluntarily replaced
LSLs (USEPA, 2024d), and the States of Illinois, Michigan, New Jersey,
and Rhode Island have passed State laws and regulations requiring
mandatory service line replacement independent of their tap monitoring
results. Proactive and voluntary measures alone, however, cannot
achieve replacement of 100 percent of lead and GRR service lines as
quickly as feasible. A national mandate ensures public health
protection for customers and consumers served by these service lines,
including populations most sensitive to the effects of and communities
disproportionately impacted by lead exposure, in States or water
systems that do not have mandatory or proactive replacement programs.
One comment claimed that the proposed LCRI implicates the major
questions doctrine, violates the commerce clause, is ``unworkable,
underfunded, and unnecessary,'' and is arbitrary and capricious. The
comment was based on the erroneous assumption that the LCRI regulates
homeowners. The EPA disagrees with these characterizations of the
proposed rule. Regarding the major questions doctrine, the comment
claimed that the proposed LCRI implicates the major questions doctrine
because of a substantial expansion in scope, stating that the ``greater
the scope of the proposed action, the clearer that Congressional
authorization must be'' (State of Kansas and Office of Attorney General
of Kansas, 2024). Contrary to the comment's assumption, however, the
EPA has authority under SDWA to regulate PWSs, not homeowners. As a
result, the LCRI regulates PWSs and their distribution systems; it does
not regulate indoor plumbing or require homeowners to take any actions.
Moreover, the LSLR has been a central part of the LCR's treatment
technique as far back as the original 1991 LCR and continuing through
the 2021 LCRR. The LCRI's mandatory service line replacement
requirement differs from the 1991 LCR and 2021 LCRR LSLR requirements
in two ways, but neither difference represents an expansion of scope,
so the major questions doctrine is not applicable to the LCRI's service
line replacement requirements. The first difference is that the LCRI
requires water systems to conduct a full service line replacement
program independent of their tap monitoring results. The EPA notes that
the 2021 LCRR and 1991 LCR both also require systems to conduct
mandatory LSLR if a system exceeds the lead action level. The EPA does
not view the LCRI's similar requirement to be an expansion of scope
simply because the requirement applies independent of tap water
monitoring results. Rather, imposing that requirement irrespective of
tap monitoring results follows directly from SDWA's statutory mandate
in light of current information. SDWA requires the EPA to promulgate
NPDWRs that ``prevent known or anticipated adverse effects on the
health of persons to the extent feasible'' (SDWA 1412(b)(7)(A)). As
section IV.B.1 of this preamble explains, the EPA's finding that a
mandatory, systemwide service line replacement program irrespective of
tap monitoring results is essential to meet this statutory requirement,
as the requirement is both feasible and prevents known or anticipated
health effects of lead exposure from drinking water. For more
information, see section IV.B.1 of this preamble.
The second difference between the LCRI and the LCR and 2021 LCRR is
that the LCRI removes statements about service line ownership and
responsibility to pay for full service line replacement. This change
does not expand the scope of this rule; in fact, the EPA made the
change to better align
[[Page 86448]]
the rule with SDWA's definition of a ``public water system'' and to
clarify that the EPA is not directing through this rule how a water
system should cover the costs of compliance with a NPDWR. How a system
chooses to cover the costs or allocate the costs among users are
matters of State and local law beyond the scope of the EPA's authority
under section 1412 of SDWA. Because State and local governments
regulate how water systems charge for services they provide to their
customers, and the EPA has no explicit statutory authority to regulate
in an NPDWR how water systems charge for their services, under the
LCRI, the EPA has removed all statements in the prior rule about
service line ownership and responsibility to pay.
The EPA disagrees that the LCRI is ``unworkable, underfunded, and
unnecessary,'' particularly, the commenter's assertion that almost none
of the cost of the rule is offset by the Federal Government. On the
contrary, the Bipartisan Infrastructure Law (BIL) dedicates $15 billion
in funding for service line inventory and replacement, and other
Federal funding is also available to support implementation of the LCRI
(see section III.G of this preamble). The final tranche of this BIL
DWSRF funding for lead service line inventory and replacement will be
appropriated in Fiscal Year 2026; however, funds will remain available
for the EPA to obligate (i.e., award) to States during the fiscal year
in which they are appropriated and the following fiscal year,
consistent with SDWA section 1452(a)(1)(C). After the second fiscal
year of availability, any unobligated funds would be reallotted by the
EPA to other States, as described in SDWA section 1452(a)(1)(E). The
EPA notes that its economic analyses for the proposed and final rules
do not account for external funding, such as from BIL, in the
calculation of PWS costs and household cost to residents in CWSs.
Furthermore, the agency also did not rely upon external funding, such
as from BIL, to support its finding that the proposed and final rules
are affordable in accordance with SDWA's definition of ``feasible'' in
section 1412(b)(4)(D) for NPDWRs (``what may reasonably be afforded by
large metropolitan or regional public water systems.'') The EPA finds
the LCRI as a whole is affordable. For discussion on the affordability
of service line replacement, please see section IV.B.6 and IV.B.9 of
this preamble and the final rule's Technical Support Document (USEPA,
2024d). For CCT, please see section IV.F.1 of this preamble. For public
education, please see sections IV.J.1 and IV.K.1 of this preamble. Note
that the EPA is not including a discussion for source water treatment
because those requirements are not being amended by this final rule.
For the EPA's feasibility determination for source water treatment, see
the final LCR (56 FR 26482, USEPA 1991). In addition, the EPA evaluated
the cumulative impact of the LCRI requirements as a whole to household
costs by system size, which are discussed in the EPA's Economic
Analysis for the final LCRI (USEPA, 2024c) in section 4.3.7.3 and shown
in Exhibit 7 and Exhibit 8 in section VI.D.2 of this preamble.
The EPA disagrees that the LCRI is ``arbitrary and capricious.''
The comment claimed the rule would cost the States, PWSs, and
households billions ``without resulting in any measured benefit, and
the agency lacks clear Congressional authorization to impose these
burdens, and the proposed rule does not adequately explain why it is
departing from past practice'' (State of Kansas and Office of Attorney
General of Kansas, 2024). The claim that the proposed rule had no
measured benefit is simply untrue. The final rule's economic analysis
showed that the monetized net annualized incremental benefits range
from $12.0 billion to $23.2 billion (in 2022 dollars, discounted at two
percent) as well as many unquantified benefits, and these benefits
justify the costs (USEPA, 2024a, chapter 6, section 6.3). As described
above, the EPA has clear authority to promulgate the LCRI under SDWA
section 1412. The proposed rule also explained at length the factors it
considered when proposing a mandatory service line replacement
requirement irrespective of lead levels (USEPA, 2023a).
Some commenters suggested that water systems' mandatory service
line replacement programs should extend to replacement of the lead
connector because they are a source of lead in drinking water. The EPA
agrees that lead connectors can contribute lead into drinking water and
encourages their replacement to reduce lead in drinking water. The LCRI
maintains the 2021 LCRR's requirement that lead connectors must be
replaced when they are encountered by the water system (e.g., during
water main replacements). The EPA disagrees, however, that the LCRI
should require systems to locate and then replace all connectors in the
system. Lead and GRR service lines, where present, are the most
significant source of lead in drinking water. Incorporating a
requirement for replacement of lead connectors into the 10-year service
line replacement could take significant time and resources away from
replacing lead and GRR service lines. Systems would be required to
identify where all lead connectors are and then replace them in
addition to the lead and GRR service lines. Furthermore, this would not
be feasible within the 10-year replacement timeframe required for
replacing lead and GRR service lines, and adding this requirement
would, therefore, delay replacement of the most significant sources of
lead exposure in drinking water. The LCRI requires that the system's
inventory include information about lead connectors based on available
information, but the rule does not require systems to engage in a
proactive effort to collect additional information to locate all lead
connectors that may be in the system. Many water systems do not have
information on the presence or location of lead connectors in their
distribution system, but systems conducting a service line inventory
may find that they have records of connectors, and systems may
encounter connectors while conducting service line replacements as well
as conducting repairs and maintenance work. Accordingly, the LCRI
requires water systems that do have records on the location of lead
connectors to include them in their inventory and replace connectors
encountered during service line replacement and other work.
Some commenters argued that galvanized service lines downstream of
a lead connector should be classified as requiring replacement (a
``GRR'') under the system's mandatory service line replacement program,
while other commenters stated that including such lines in mandatory
replacement requirements could significantly impact a system's ability
to complete their service line replacement program within 10 years. The
EPA disagrees with including galvanized service lines downstream of a
lead connector in the mandatory replacement program. In order to
prioritize replacement of the most significant contributors of lead in
drinking water, the final rule does not define galvanized service lines
that are or were downstream of a lead connector as GRR service lines,
and, thus, they are not inventoried or replaced as such (see section
IV.O.3 of this preamble).
c. Final Rule Requirements
The final LCRI requires water systems to conduct full service line
replacement of lead and GRR service lines regardless of their 90th
percentile lead levels. Partial service line replacement and ``test-
outs'' at individual service lines do not count towards mandatory full
[[Page 86449]]
service line replacement. Lead connectors must be replaced where
encountered during normal system operations and service line
replacement unless the connector is not under the control of the
system.
3. Service Lines Under the Control of the System
a. Rationale and Proposed LCRI Revisions
The EPA is authorized by SDWA to regulate PWSs to include any
``distribution facilities under control of the operator of such system
and used primarily in connection with such system'' (SDWA section
1401(4)(A)). In some cases, service line ownership is shared between
customers and PWSs; in other cases, service lines are owned in their
entirety either by customers or by PWSs and used by PWSs to distribute
water. Under the LCR, a water system is required to replace only the
portion of the service line that is owned by the system and offer to
replace the portion of the line not owned by the system. As a result,
for the LCR, ``under control'' of the water system was interpreted as
ownership of the service line. The LCR does not identify how ownership
of the service line would be determined. The LCR explicitly states that
a water system is not required to pay for replacement of the portion of
the service line that is not owned by the system, or to conduct the
replacement of the privately-owned portion of the service line where
the owner chooses not to pay for replacement of the privately-owned
portion of the line, or where replacing the privately-owned portion of
the service line is precluded by State, local, or common law.
Under the 2021 LCRR, water systems are required to conduct full
LSLR, and only full LSLR counts towards a system's mandatory
replacement rate. A system remains in compliance if it is unable to
meet the mandatory replacement rate because a customer refuses to
participate in the replacement program or does not respond to the
system after two good faith efforts to reach the customer. Under the
2021 LCRR, a system must conduct a full service line replacement
regardless of ownership if the customer consents to the replacement of
their portion of the line. However, the 2021 LCRR does not require a
water system to pay for replacement of the portion of the line that is
``customer-owned'' and not owned by the system. The cumulative effect
of these provisions is that a water system is required to conduct full
LSLR where the customer consents to the replacement and agrees to cover
the cost of the replacement or the water system chooses to cover the
full cost of the replacement.
The proposed LCRI builds on 2021 LCRR's requirement to conduct full
LSLR, but the proposed rule did not make any assumptions about customer
consent or payment requirements or assume that there are no other
potential barriers to the system's ability to access the service line
to conduct a full replacement. Under the proposed LCRI, full
replacement of all lead and GRR service lines is required wherever a
system can access the service line in order to conduct a full
replacement. The EPA does not have the authority under SDWA section
1412 to specify whether customer consent is required for a water system
to gain access to a service line, nor does the EPA have the authority
under SDWA section 1412 to determine that a water system is or is not
responsible for the cost of the service line, or how those costs should
be allocated among rate payers, as these are matters determined by
State or local law. In addition, the EPA recognizes that there may be
other barriers that prevent a system from gaining access to conduct a
full service line replacement on a case-by-case basis (e.g., threats to
the safety of system personnel due to site characteristics).
Accordingly, in the proposed LCRI, the EPA proposed to treat a service
line as ``under control'' of the system wherever the system has access
(e.g., legal access, physical access) to conduct a full service line
replacement.
Under the proposed LCRI, a water system's obligation to conduct
full service line replacement extends to those service lines under
control of the system, i.e., those service lines that the system can
access to conduct a full service line replacement. If a system does not
have access to conduct a full service line replacement, it is not
required by the rule to replace the lead or GRR service line, but it
must document the reasons that the water system does not have access
and include any specific laws, regulations, and/or water tariff
agreements that affect the system's ability to gain access to conduct
full service line replacement identified in the service line
replacement plan. The system must provide this documentation to the
State.
The proposal also included requirements for systems to make
reasonable efforts (four attempts using two different communication
methods) to obtain property owner consent where a water system has
legal access to conduct full service line replacement only if the
property owner consent is obtained, where the number of attempts was
doubled relative to the 2021 LCRR requirement and the use of multiple
communication methods was incorporated to better reach property owners
and increase participation in service line replacement programs (USEPA,
2021b). If the system is unable to obtain property owner consent after
four attempts, the system is not required to replace the service line.
However, the system would need to offer full service line replacement
within six months of any change in property ownership and make four
attempts to obtain property owner consent within one year of the change
in property ownership. The EPA proposed that requirement to continue to
apply until a water system no longer has lead, GRR, or unknown service
lines in their inventory. The purpose of this requirement is to ensure
that water systems give property owners an adequate notice and
opportunity to provide any necessary consent for service line
replacement. The EPA also proposed that any water system that was not
able to obtain property owner consent after making a reasonable effort
must certify to the State the number of service lines not replaced due
to property owners not providing consent where consent is required by
State or local law.
The EPA did not propose to delineate the prerequisites or elements
of ``access'' that a system would need to conduct full service line or
connector replacement because of the wide variation of relevant State
and local laws and water tariff agreements as well as the potential for
these to change over time. The proposed LCRI also emphasized the many
possible approaches water systems could use to overcome access barriers
to conduct full service line replacement, some of which may be unique
to the system (88 FR 84925, USEPA, 2023a).
The proposed LCRI included several rule provisions designed to
increase transparency and incentivize systems to find ways to overcome
barriers to a water system's ability to gain access to conduct full
service line replacement. First, the EPA proposed to require water
systems to identify legal barriers (e.g., laws, ordinances, and water
tariff agreements) to gaining access for full service line replacement
in their service line replacement plans and make the plans publicly
accessible, which may facilitate action by the community served to
overcome those barriers (see section IV.C of this preamble for more
information on the replacement plan). Second, the proposed rule
provides a pathway for systems to defer optimizing or re-optimizing CCT
and conducting costly and complex pipe rig/loop
[[Page 86450]]
studies by replacing all lead and GRR service lines in their
distribution system within five years at a rate of a minimum of 20
percent of lines per year. To take advantage of this proposed pathway,
systems must have access to fully replace all lead and GRR service
lines in their inventories and identify all unknown service lines
within five years. Third, the EPA expects systems to be motivated to
find ways to access each lead and GRR service line for replacement
because removing these significant lead sources can reduce the system's
90th percentile lead level, which, in turn, would decrease the
likelihood of a lead action level exceedance and the subsequent need to
(1) install (and maintain) or re-optimize OCCT (that could involve
costly CCT studies), (2) replace lead-bearing plumbing or install
point-of-use filters (for small systems that choose not to install or
re-optimize CCT), and (3) make filters available along with additional
public outreach if the system meets the requirements for multiple lead
action level exceedances. With the most significant lead sources
replaced, systems would also have a lower likelihood of measuring
higher lead levels, which are tied to the Tier 1 public notification
requirements after a lead action level exceedance (also referred to as
the 24-hour public notification) and Distribution System and Site
Assessment (DSSA) requirements. Fourth, systems without lead and GRR
service lines that exceed the action level due to other sources of lead
(i.e., premise plumbing) would be able to conduct less costly, complex,
and time-consuming CCT studies, such as metal coupon tests, should they
be required to initiate OCCT steps. Fifth, the more rigorous sampling
of the first- and fifth-liter samples at LSL sites could also be
avoided where systems accessed and replaced all lead and GRR service
lines. Sixth, systems that have replaced all their lead and GRR service
lines would have to meet fewer public education requirements. For
example, systems without lead, GRR, or unknown service lines would not
have to conduct the proposed notification and risk mitigation
requirements after a service line disturbance or the annual
notification of service line material type to consumers served by these
lines. Seventh, public education requirements in the LCRI are designed
to inform consumers about the adverse health effects associated with
lead in drinking water and risk reduction measures, including full
service line replacement, which may result in more customers providing
access (where property owner consent is required for legal access).
b. Summary of Public Comments and the EPA's Response
The EPA received many comments on the provision in Sec.
141.84(d)(2) of the proposed LCRI stating that ``[w]here a water system
has access (e.g., legal access, physical access) to conduct full
service line replacement, the service line is under its control, and
the water system must replace the service line.'' On one end of the
spectrum, several commenters stated that the EPA's interpretation of
``control'' as access is beyond the EPA's authority under the SDWA.
Many of these commenters argued that the EPA should not change its
prior interpretation of ``control'' as exclusively tied to ownership.
Some of these commenters argued that service lines, or service lines
not owned by the system, are not covered by the definition of ``public
water system'' in section 1401(4) of SDWA at all and are therefore
beyond the reach of a NPDWR; several others asserted that control
should be interpreted as ownership and without ownership, or if the
service line is on private property, then the service line is not under
control of the system. Several commenters raised practical and policy
concerns associated with conducting a lead service line replacement on
private property. On the other end of the spectrum, several commenters
stated that the EPA's interpretation of ``control'' as access is too
narrow and will create a loophole allowing systems to avoid conducting
service line replacement wherever they determine that they lack access.
These commenters argue that the EPA should structure the rule to either
deem service lines as under control of the system (or require States to
do so as a condition of primacy) or create a rebuttable presumption
that service lines are under control of the system, as promulgated by
the EPA in the 1991 LCR.
The EPA disagrees with commenters on both ends of the spectrum.
Commenters advocating that the EPA interpret ``public water system'' to
include either no service lines or only service lines ``owned'' by the
system ignore the statutory definition of ``public water system'' which
is tied to control, not ownership. Moreover, these comments fail to
comport with both SDWA's mandate in section 1412(b)(7)(A) for the EPA
to identify treatment technique requirements that prevent known or
anticipated adverse effects to the health of persons to the extent
feasible and SDWA's requirement in section 1412(b)(9) for any revision
of an existing NPDWR to maintain, or provide for greater protection of
the health of persons. Full lead service line replacement prevents
known or anticipated adverse effects to the health of persons and it is
feasible even where water systems do not own any portion of the service
line. Partial service line replacement does not prevent known or
anticipated adverse effects to the health of persons, and may result in
continued exposure and short-term increased levels of lead in drinking
water. For those reasons, the EPA promulgated the 2021 LCRR to require
water systems to conduct full service line replacements even if they do
not own the service line, as long as the customer provides consent and
to ensure that partial replacements would not be conducted as a result
of a NPDWR. The LCRI similarly requires full service line replacement
even when the system does not own the service line and it does not
require or allow partial service line replacement to meet the
replacement requirement of the rule and in doing so, the EPA is
consistent with the statutory definition of ``public water system'' and
meets the requirements in section 1412(b)(7)(A) and 1412(b)(9). None of
the commenters that advocate for the EPA to limit the service line
replacement requirements to portions of the service line owned by the
system, or give credit for partial replacements, explain how such a
rule would be consistent with section 1412(b)(7)(A) and 1412(b)(9).
The term ``public water system'' is defined in SDWA section 1401(4)
as ``a system for the provision to the public of water for human
consumption through pipes or other constructed conveyances, if such
system has at least fifteen service connections or regularly serves at
least twenty-five individuals. Such term includes (i) any collection,
treatment, storage, and distribution facilities under control of the
operator of such system and used primarily in connection with such
system, and (ii) any collection or pretreatment storage facilities not
under such control which are used primarily in connection with such
system.''
The plain language of the first sentence of this definition
includes service lines because they are ``pipes'' used for the
``provision of water to the public'' through ``service connections''
that ``serve . . . individuals.'' The second sentence explains further
that the definition includes ``distribution facilities under control of
the operator of such system'' (emphasis added). Service lines are used
to distribute water to consumers and as such, are part of the system's
``distribution facilities.'' Therefore, the EPA does not agree with
commenters that state that service lines
[[Page 86451]]
are not part of the definition of ``public water system'' and thus
outside of EPA jurisdiction because they are not covered by either the
first or second sentence. Such an interpretation would be inconsistent
with the statutory text and the EPA's longstanding implementation of
the statutory definition of ``public water system.'' Service lines are
pipes through which drinking water flows to the customer as part of
distribution facilities under control of the operator. Service lines
are directly connected to the water mains that are directly connected
to the treatment facility or storage facilities. These are all
interconnected to convey drinking water to the building for consumption
and the flow of drinking water through these pipes is controlled by the
water system.
Moreover, there is nothing in the definition that suggests the
distribution facility must be owned by the public water system or any
basis to read that requirement into the phrase ``under control of the
operator of such system.'' Public water system operators may not be the
same entity that ``owns'' the system of pipes, service connections,
collection, treatment, storage, and distribution facilities. Therefore,
the question is not whether the public water system ``owns'' the
service line, but whether it is ``under control of the operator of the
system.''
In addition, the interpretation of the ``control'' within the
definition of ``public water system'' to mean ``access'' is consistent
with the dictionary definitions of the terms ``control'' and ``under
control''. As a verb, ``control'' means ``to exercise restraining or
directing influence over'' (Merriam-Webster Dictionary. Retrieved
August 27, 2024, from https://www.merriam-webster.com/dictionary/control#dictionary-entry-1). As a noun, ``control'' means ``an act or
instance of controlling'' and also ``power or authority to guide or
manage'' (Merriam-Webster Dictionary. Retrieved August 27, 2024, from
(n) https://www.merriam-webster.com/dictionary/control). The phrase
``under control'' is defined in the Oxford English Dictionary as
``subject to a restraining or controlling influence, esp. so as not to
cause damage or harm; (of a situation) so as to be managed competently
or dealt with successfully.'' Oxford University Press (2024, March).
``under control'' in control (n). Oxford English Dictionary. Retrieved
August 27, 2024, from https://doi.org/10.1093/OED/6427628422. The
interpretation of service lines as ``under control'' of a water system
whenever the system has ``access (e.g., legal access, physical access)
to conduct full service line replacement'' is consistent with these
definitions. If the water system can, as a factual matter, gain access
over the service line to disconnect it from use and replace it with a
new line, then the water system is directing influence over the line
and exercises power or authority to manage it and it is subject to a
restraining or controlling influence of the system--i.e., ``under
control'' of the system.
At the same time, the EPA does not have the authority to assert in
an NPDWR that a water system has ``control'' of any particular part of
the system's distribution facilities, such as all service lines.
Commenters that advocate for a rule that ``deems'' all service lines as
under control of the system (or requires states to do so as a condition
of primacy) disregard the limits on the EPA's authority to establish a
``primary drinking water regulation'' that ``applies to public water
systems'' (SDWA 1401(1)(A)) and establish requirements under section
1413 of SDWA for ``primary enforcement responsibility for public water
systems.'' The EPA cannot ignore the definition of ``public water
system'' in section 1401(4) of SDWA, which, as explained above, applies
only to the extent the operator has ``control'' of the system. The EPA
cannot simply declare--contrary to the record (LSLR Collaborative,
n.d.b) (see comment IDs EPA-HQ-OW-2022-0801-0845 and EPA-HQ-OW-2022-
0801-1328 in the LCRI docket EPA-HQ-OW-2022-0801 for example)--that all
service lines are ``under control'' of a water system for purposes of
replacement. Instead, whether a service line is under the control of
the water system will depend on: (1) The relevant laws that authorize
and/or condition a water system's ability to exert control over the
line in order to replace it and (2) whether, as a factual matter, a
water system can gain physical access to the service line in order to
conduct a full replacement. Accordingly, as noted above, the rule does
not make any assumptions about customer consent or payment requirements
or assume that there are no other potential barriers to the system's
ability to access the service line to conduct a full replacement.
Instead, under the LCRI, full replacement of all lead and GRR service
lines is required wherever a system can access the service line in
order to conduct a full replacement and not where a system does not
have access to conduct full service line replacement. See Sec.
141.84(d)(2).
Accordingly, the EPA rejects the approaches advocated by commenters
on both ends of the spectrum that would require the EPA to go beyond
the plain language of the statute to use a narrower or broader
definition of ``public water system'' to reduce or expand a water
system's responsibility for replacing lead service lines. In the final
rule, the EPA is requiring full lead service line only ``[w]here a
water system has access (e.g., legal access, physical access) to
conduct full service line replacement'' to meet the mandates of section
1412(b)(7)(A) and 1412(b)(9) while staying within the bounds of the
EPA's authority under SDWA to regulate ``public water systems'' as
defined in section 1401(4).
Some commenters agreed with the EPA's interpretation of control to
mean access. Other commenters agreed with the EPA's proposed approach,
but they described it as vague and subject to different
interpretations. Commenters recommended that the EPA include specific
criteria to specify when a water system has access to prevent systems
from defining access too narrowly in attempts to avoid mandatory
service line replacement. Another commenter provided an example of
specific access criteria: (1) whether the system can safely enter the
property, (2) whether the system can safely conduct the replacement,
and (3) whether the system has obtained the property owner's consent,
if consent is required for access. The EPA agrees that these criteria
are reasonable and appropriate for a system to consider in evaluating
whether it has the requisite access. In fact, physical access is
explicitly referenced in the regulatory text: ``Where a water system
has access (e.g., legal access, physical access) to conduct full
service line replacement, the service line is under its control.''
However, the EPA disagrees that the final rule should include mandated
criteria applicable to all water systems because a water system's
ability to obtain access to a service line to conduct a full service
line replacement is governed by State law, local law, and/or water
tariff agreements and may include requirements for customer cost
sharing for to conduct the replacement. Thus, systems should have some
flexibility to accommodate specific circumstances affecting access that
this rule may not be able to predict. More prescriptive criteria for
determining where a service line is under the control of a system than
``access to conduct full service line replacement'' might be overly
broad and, therefore, beyond the EPA's authority to regulate, or the
criteria may be too narrow and, therefore, not adequately protective of
public health to meet the requirement of SDWA section
[[Page 86452]]
1412(b)(7)(A) to prevent known or anticipated adverse health effects of
persons to the extent feasible.
Some commenters were concerned that defining control as where
systems have access could result in water systems leaving LSLs
unreplaced by claiming a lack of access to any portions of LSLs, such
as those on private property. The final rule is structured to mitigate
this concern. The rule requires replacement of all lead and GRR service
lines under the control of the water system. Where a water system has
access to conduct full service line replacement, the service line is
under its control, even if it is located on private property, and the
water system must replace the service line. For service lines in which
the water system does not have access to conduct a replacement, the
water system must document the reason for lack of access and provide
this documentation to the State. Submitting documentation to the State
explaining why the water system does not have access to a service line
provides the information needed for oversight of this rule requirement
and allows States to ensure water systems are replacing lines in which
they have access.
Where the system has access to conduct full replacement only if
property owner consent is obtained, the system must make a reasonable
effort to obtain consent through at least four outreach attempts using
two different methods of communication. The EPA expects this outreach
will support communication between property owners and the water system
to improve access. In addition, the EPA is finalizing requirements in
the LCRI that provide incentives for systems to overcome barriers to
access or may increase a water system's ability to gain access to
conduct full service line replacement, such as deferring an OCCT study
to replace all lead and GRR service line in the distribution system and
identifying legal barriers in laws, ordinances, or water tariff
agreements to service line access in the replacement plan. (See section
IV.B.3.a of this preamble). The EPA provided several examples in the
proposal on a range of strategies that systems, municipalities, and
States have used to overcome both financial and non-financial barriers
to full service line replacement in the proposed LCRI, even where laws
require customers to provide consent or payment to replace their
portion of the service line (88 FR 84926, USEPA 2023a). Example
strategies are also discussed later in this section. Additionally,
funding and non-regulatory actions can increase water system access to
service lines for full replacement (see section III.G of this
preamble).
Where water systems are unable to gain access to conduct a full
service line replacement, water systems are not in violation of the
treatment technique if they fail to replace these service lines by
their replacement deadline because they are not under the control of
the system. Water systems must continue to publish the addresses of
those service lines in the publicly accessible inventory, deliver
annual notification of service line material to the consumer, and make
a reasonable effort to gain access of the service line for full service
line replacement when the property changes ownership.
Some commenters recommended that the EPA interpret ``under control
of'' the water system as including only those service lines that are
owned by the system, as the EPA did in the 2000 LCR Minor Revisions
(USEPA, 2000a). The EPA disagrees with these commenters. The EPA
interprets the phrase ``under control of'' as distinct from
``ownership'' in SDWA. The term ``control'' is not defined in SDWA, and
use of the phrase ``under control of'' instead of the more commonly
used phrase ``owned by'' suggested that Congress had a different
concept in mind. Moreover, the EPA has never concluded that SDWA
mandates an interpretation of ``control'' to mean ownership
exclusively. In the 1996 proposal to revise the 1991 LCR, the EPA
considered two different interpretations of ``control'', one
interpretation that would require replacement of the system-owned
portion of the service line along with an offer to replace the
customer-owned portion at the customer's expense, and another
interpretation that would require replacement of the system-owned
portion of the service line as well as any additional portions the
system has the authority to replace. In the final LCR published in
2000, the EPA expressed concern that the broader definition of control
``could result in unintended delays and other complications'' and,
therefore, the ``EPA believe[d] it [was] appropriate to equate
`control' with `ownership' to eliminate potential legal confusion and
delays in implementing the Rule'' (65 FR 1950, 1962, USEPA, 2000a).
As discussed in the LCRI proposal, since the 2000 LCR rulemaking,
there are many examples of water systems that have carried out
successful service line replacement programs to fully replace LSLs
regardless of ownership status. There are several documented examples
of systems that have completed or made substantial progress conducting
full replacement of service lines not entirely owned by the system,
including Denver, CO, Flint, MI, Trenton, NJ, York, PA, and projects in
multiple communities through the Massachusetts Water Resource Authority
(USEPA, 2024d). Additionally, the proposed LCRI includes several
examples of communities that changed local ordinances to facilitate
full replacement in areas where service lines are not entirely owned by
the system (88 FR 84926, USEPA, 2023a). Additionally, States have
passed laws to facilitate full service line replacement. For example,
Pennsylvania passed laws to allow rate funds to be used to replace LSLs
on private property that did not change ownership of the service line
or impose any other duties following system funding or replacement of
the service line, unless determined to be necessary by the system
(Pennsylvania General Assembly, 2017). The proposed LCRI also describes
the two laws New Jersey passed to facilitate full service line
replacement both financially and with respect to private property
access. The laws grant municipalities the authority to adopt an
ordinance that allows water systems to enter private property to
conduct LSLR (Ruiz, 2019) and authorizes them to replace LSLs on
private property if the work is an environmental infrastructure project
and funded either by loans from the New Jersey Infrastructure Bank or
by loans issued through the New Jersey Department of Environmental
Protection (State of New Jersey, 2020). Since the proposed LCRI was
published, an Indiana law requires water utilities to work with the
owners of buildings, structures, or dwellings with LSLs to replace
their portions of the service line upon request by the water utility
(Indiana General Assembly, 2024). If the owner refuses or does not
respond, the utility or the utility's agent may enter the property to
replace the customer's portion of the LSL without the owner's
permission or to disconnect water service to the property if prevented
by the owner. Under the law, the non-owner occupant of a property can
grant physical access for service line replacement, where the utility
and occupant are ``held harmless'' by and not liable to the property
owner with respect to the entry or replacement (Indiana General
Assembly, 2024). These State laws do not change ownership of the
service line but show that water systems can obtain access to conduct
full service line replacement without owning the line.
[[Page 86453]]
Some commenters recommended that the EPA explicitly state in the
rule that water systems control all service lines based on an
assumption that without that assertion, LSLs will remain in use around
the country. The EPA does not have the authority to assert in an NPDWR
that a water system has control of any particular part of the system's
distribution facilities, such as all service lines. The examples
provided in the previous paragraph from Pennsylvania, New Jersey, and
Indiana highlight ways States and local governments can change laws or
ordinances to facilitate water system access to conduct full service
line replacement. In addition, the EPA is finalizing several rule
requirements and flexibilities that may lead to an increase a water
system's access to conduct full service line replacement (see section
IV.B.3.a of this preamble).
Finally, the significant Federal funding sources, such as the $15
billion from the BIL, can help increase water system access to conduct
full service line replacement. For example, property owners may be more
likely to agree to replace their portion if the cost is subsidized or
offered at no cost. (See section III.G of this preamble on funding for
service line replacement.) Additionally, the final rule's public
education requirements may increase customer access where property
owner consent is legally required to obtain access to conduct a full
service line replacement. (See sections IV.B.3.a and IV.J.2.a of this
preamble and ``Public Education and Engagement'' in the proposed LCRI
preamble (88 FR 84921, USEPA, 2023a) for more information and examples
of systems that have increased customer participation in service line
replacement programs through their public education.)
c. Final Rule Requirements
In the final rule, where a water system has access (e.g., legal
access, physical access) to conduct full lead or GRR service line
replacement, the service line is under its control, and the system must
replace the service line. Where a water system does not have access to
conduct full service line replacement, the water system is not required
by this rule to replace the line, but the water system must document
the reasons why the water system does not have access. The EPA is not
including specific provisions to delineate where a system has access to
conduct a full replacement. Annually, the system must submit to the
State documentation of the reasons for each line that is not replaced
due to lack of access. Along with other information listed in Sec.
141.90(e)(8), the system must annually submit to the State the total
number of lead and GRR service lines that are not replaced because the
system does not have access to conduct full replacement. The water
system must identify any laws, regulations, and/or water tariff
agreements that affect the water system's ability to gain access to
conduct full lead and GRR service line replacement, including the
citation to the specific laws, regulations, or water tariff agreement
provisions and include them in their service line replacement plan as
well as the publicly accessible version of the plan.
The final LCRI requires that where a water system has access to
conduct a full service line replacement only if property owner consent
is obtained, the water system must make a ``reasonable effort'' to
obtain property owner consent. A reasonable effort must include at
least four attempts to engage the property owner using at least two
different methods of communication (e.g., in-person conversation, phone
call, text message, email, written letter, postcard, or information
left at the door such as a door hanger) before the applicable deadline
of mandatory service line replacement. The State may require systems to
conduct additional attempts and may require specific outreach methods
to be used. Within six months of any change in ownership of the
property, the water system must offer full service line replacement to
any new property owner. Within one year of any change in ownership of
the property, the system must make a ``reasonable effort'' to obtain
the property owner's consent. The EPA expects that changes in property
ownership have likely occurred when water service is initiated or
service is transferred such as when there is a customer name or an
account change on a water billing account. If the water system is
unable to obtain consent from the current property owner after making a
``reasonable effort'' to obtain it, the water system is not required
under the LCRI to replace the line. This requirement applies to systems
until all lead and GRR service lines are replaced in the distribution
system. Annually, the system must submit to the State documentation of
each reasonable effort conducted where the system was not able to
obtain property owner consent where consent is required by State or
local law. The submission for each documented reasonable effort is
required by the January 30 after the system has completed all four (or
more, if required) attempts to engage the property owner as described
in Sec. 141.84(d)(3)(i) and, if applicable, the January 30 after the
specified timeframe (e.g., within one year of any change in property
ownership).
4. Payment for Full Service Line Replacement
a. Rationale and Proposed LCRI Revisions
As noted above, the 1991 LCR and 2021 LCRR include statements
affirming that, while water systems must offer to replace the
customer's portion of a service line, systems are not required to bear
the cost of replacement of the portion of the LSL not owned by the
water system. For the LCRI proposal, the EPA removed these statements
from the regulation, recognizing that how a water system covers the
costs of compliance with an NPDWR cannot be Federally mandated by the
EPA in an NPDWR under SDWA. The EPA does not have statutory authority
to allocate payment; rather, State and local governments regulate how
water systems provide and charge for services to their customers.
Consistent with this approach, the proposed rule did not include a
prohibition on cost sharing for full service line replacement. While
the EPA strongly encourages systems to offer full service line
replacement at no cost to the customer, a prohibition on cost sharing
in the rule is outside the EPA's authority and would result in a
lengthy legal challenge creating uncertainty that would delay
implementation of the rule and further delay service line replacement.
b. Summary of Public Comments and the EPA's Response
Some commenters recommended that the EPA require water systems to
pay for full service line replacement or to prohibit cost sharing,
highlighting potential environmental justice concerns for customers who
are unable to afford to replace their portion of the service line. The
EPA strongly encourages water systems to offer full service line
replacement at no cost to the customer; SDWA does not provide authority
for the agency to direct how a water system covers the costs of
compliance with an NPDWR and the EPA has not used its section 1412
authority under SDWA to do so. This is a matter of State and local law,
as the State and local governments regulate how water systems provide
and charge for services to their customers. The EPA remains concerned,
as it did in the proposal, that any attempt to use an NPDWR to assert
Federal authority over how water systems charge for their services
would be met with a protracted
[[Page 86454]]
legal challenge that would delay implementation of the rule and further
delay service line replacement. Thus, the final rule does not prohibit
cost sharing or mandate how water systems must pay for customer-side
service line replacements.
The EPA strongly encourages customer-side service line replacement
to be offered at no direct cost to the customer wherever possible.
Subsidizing customer-side service line replacement in whole or in part
may result in higher overall participation in the replacement program
and potentially reduce disparities created where service line
replacement is less accessible to lower-income individuals (Baehler et
al., 2022; Environmental Defense Fund (EDF), 2020). The EPA highlights
the significant Federal funding available that can facilitate full
service line replacement (see section III.G of this preamble).
c. Final Rule Requirements
The final rule eliminates regulatory text stating that water
systems are not required to bear the cost of replacement of the portion
of the service line that they do not own. The EPA strongly encourages
water system to offer full service line replacement at no direct cost
to the customer wherever possible, but this is not a requirement of the
LCRI. The final LCRI remains neutral on how water systems provide and
charge for services to their customers.
5. Partial Service Line Replacement
a. Rationale and Proposed LCRI Revisions
Research shows that partial service line replacement does not
reliably reduce lead levels in drinking water and can sometimes
temporarily increase these levels (Deshommes et al., 2017; USEPA,
2011a). For the LCRI, the EPA proposed prohibiting partial service line
replacements unless conducted in coordination with emergency repair or
planned infrastructure projects that affect the service line. Planned
infrastructure work could include water infrastructure or capital
improvement projects that do not solely replace lead and GRR service
lines as part of a service line replacement program. Examples include,
but are not limited to, water main replacement, meter replacement, and
transportation-related construction projects. The proposed prohibition
was intended to ``ensure that the rule itself does not cause additional
partial replacements to be conducted solely for the purpose of LSL or
GRR service line replacement'' (88 FR 84918, USEPA, 2023a), which could
cause negative public health outcomes. While partial service line
replacement has the potential to temporarily increase lead levels in
drinking water, an outright ban on the practice could be infeasible
(USEPA, 2020e). For example, water systems conducting emergency main
replacement may require the removal of at least a portion of the LSL
due to the alignment or spacing requirements to connect the new main
with existing service lines (USEPA, 2020e; USEPA, 2023i). Additionally,
in the case of some emergency repairs, a partial replacement may be
necessary to ensure prompt restoration of water service to the
consumer. Water service is critical to public health as it provides
water for drinking, cooking, and sanitation. Water systems that conduct
full service line replacement in coordination with planned
infrastructure work may realize public health benefits, efficiencies,
and cost savings; however, the agency recognizes that there may be
barriers to a system's access to service lines on private property. In
the proposed rule, the EPA sought comment on this approach to limiting,
but not prohibiting all partial service line replacements, and whether
the exclusion should be limited to only certain types of infrastructure
work.
Lead and GRR service lines are likely to undergo significant
disturbance as a result of planned infrastructure work or emergency
repairs, thereby increasing the risk from all lead sources that remain
following the emergency repair or infrastructure work. To address the
increased risk from this disturbance, the EPA proposed to retain the
2021 LCRR notification and risk mitigation requirements for partial
service line replacement, including requirements for the system to
notify the consumer of the risks of the partial replacement and actions
they may take to minimize lead exposure, provide a pitcher filter or
point-of-use device certified to reduce lead in drinking water and six
months' worth of replacement cartridges, provide flushing instructions,
and offer to take a tap sample between three and six months following
the completion of the partial replacement. The LCRI also proposed to
require water systems conducting a partial replacement to install a
dielectric coupling separating the remaining portion of the service
line and the new portion of the service line, unless the new portion is
made of plastic. A dielectric coupling between the replaced line and
the partial lead or GRR service line reduces the risks of galvanic
corrosion between lead and other metallic pipes that causes lead
release as documented in previous lab-scale studies (DeSantis et al.,
2018; Triantafyllidou and Edwards, 2011; Wang et al., 2012). Multiple
laboratory experiments using harvested pipes showed substantial
decreases in lead release when the electric connection is broken or
dielectric couplings are inserted (Clark et al., 2013; St. Clair et
al., 2016; Wang et al., 2013), demonstrating the value of requiring the
insertion of such couplings. This is consistent with the EPA's Science
Advisory Board (SAB) 2011 report that ``[i]nsertion of a lead-free
dielectric eliminates galvanic corrosion at the new pipe junction by
breaking the electrical circuit between the new and old pipes,''
concluding that ``insertion of a dielectric will likely reduce lead
levels in tap water''; although, the SAB also noted that ``it cannot
confidently estimate the magnitude of the reductions because the
contribution of galvanic corrosion and depositional corrosion to
drinking water lead levels has not been quantified'' (USEPA, 2011a).
The EPA proposed in the LCRI to retain the 2021 LCRR requirements
that apply to a water system when a customer initiates a partial
replacement of an LSL. If the water system is notified that a customer
intends to conduct a partial lead or GRR service line replacement, the
system must replace the remaining portion of the line within 45 days
(or notify the State within 30 days to complete the replacement no
later than 180 days) of the date the customer conducted the partial
replacement and provide notification and risk mitigation measures. The
EPA also proposed in the LCRI to retain the 2021 LCRR requirement that,
if the system is notified or otherwise learns of a customer-initiated
replacement that has occurred within the previous 6 months, the system
must replace any remaining portion of the affected service line within
45 days of becoming aware of the replacement and provide notification
and risk mitigation measures.
b. Summary of Public Comments and the EPA's Response
Some commenters agreed with the proposed approach of banning
partial service line replacement unless conducted as part of an
emergency repair or in coordination with planned infrastructure work,
stating that partial replacement may be necessary in some emergency
scenarios and in coordination with planned infrastructure work; for
example, if a disturbance to the service line is unavoidable and the
water system cannot gain access to conduct a full lead
[[Page 86455]]
service line replacement (e.g., a customer refuses to allow replacement
of the customer-owned portion of the service line). Other commenters
thought partial replacements should be banned in all situations,
including as part of an emergency repair, or that they should be banned
in all situations except as part of an emergency repair. These
commenters highlighted the potential for partial replacements to result
in temporarily elevated lead levels in drinking water and potential
disproportionate impacts to customers who cannot afford to replace
their portion of the service line.
While partial replacements can cause lead levels to temporarily
increase, the EPA shares commenters' concerns about potentially
disproportionate impacts to customers who cannot afford to replace
their portion of the service line where water systems require customer
cost sharing. The final rule does not prohibit all types of partial
replacements because the EPA is concerned that an outright ban on
partial service line replacement is infeasible. For example, water main
replacement may require the removal of at least a portion of the LSL
due to the alignment or spacing requirements to connect the new main to
existing service lines (USEPA, 2020e; USEPA, 2023i), and maintaining
water service is critical to public health as it provides water for
drinking, cooking, and sanitation. The EPA recognizes there are
situations following planned infrastructure work or emergency repair in
which full service line replacement is not possible, such as when the
water system is prohibited by law from replacing all or a portion of
the service line without customer consent and the customer has not
provided consent. While the final LCRI does not further limit the
circumstances when partials may occur following emergency repair or
planned infrastructure work (other than to exclude service line
replacement projects from planned infrastructure work), the EPA has
clarified in the final rule where a water system has access to conduct
full service line replacement, the system must fully replace the
service line. The EPA has also clarified in the final LCRI for
protocols for planned partial service line replacement (i.e., planned
infrastructure work that impacts service lines) that where a system has
access to conduct full service line replacement only if property owner
consent is obtained, the water system must make a ``reasonable effort''
to obtain property owner consent. The EPA strongly encourages water
systems to create plans, such as by developing standard operating
procedures, for planned infrastructure work, emergency repair, and
planning for contingency costs should lead service lines be discovered.
Instead of prohibiting the water system from conducting a partial
replacement in planned infrastructure work or emergency repair, the
final rule requires the water system to take risk mitigation measures
to minimize the risk of lead exposure in drinking water to the persons
served by the affected service line, including providing public
education, a filter and replacement cartridges certified to reduce lead
in drinking water, and an offer to take a follow-up tap sample after
replacement. In addition to these mitigation measures, the final rule
requirements for the service line inventory, replacement plan, and
public education as well as the EPA-administered financial assistance
for full LSLR are aimed at reducing the likelihood that water systems
will need to conduct partial service line replacements as part of an
emergency repair or in coordination with planned infrastructure work. A
discussion of the requirements and support to facilitate systems
gaining access to conduct full service line replacement is included in
section IV.B.3 of this preamble.
The EPA notes that full service line replacement is also a goal of
the DWSRF. While full LSLR is the desired outcome of all DWSRF
assistance for LSLR, the logistics involved with coordinating LSLR with
planned infrastructure projects may dictate that partial replacement of
a service line is necessary if disturbance to the service line is
unavoidable and the water system cannot gain access to conduct a full
lead service line replacement (e.g., a customer refuses to allow
replacement of the customer-owned portion of the service line). For the
purposes of oversight and confirming eligibility, State programs must
require borrowers to document customer refusals, which could consist of
any of the following: a refusal signed by the customer, documentation
of a verbal statement refusing replacement, or documentation of no
response after multiple attempts to reach the customer regarding full
LSLR. State programs are required to report this information to the EPA
(USEPA, 2024i).
A partial LSLR may only be funded by the DWSRF where the water
system shows all of the following: that the partial LSLR is done in
conjunction with planned infrastructure work, that disturbance to that
service line is unavoidable because of the planned infrastructure work,
and that the water system has documented customer refusal showing it
cannot gain access to that property to conduct a full LSLR following
multiple attempts (USEPA, 2024i).
Some commenters also recommended that the EPA not prohibit partial
service line replacement under any circumstances and highlighted the
effectiveness of public education and risk mitigation measures to
reduce exposure following the elevated lead levels that can result from
a partial replacement. The EPA does not agree that partial service line
replacement should be permitted under all circumstances. The
prohibition in the final rule ensures that water systems do not conduct
any partial replacements that would occur outside of an emergency
repair or coordination with planned infrastructure work that impacts
service lines and that is not solely service line replacement. Partial
replacement has not been shown to reliably reduce lead levels and is
known to temporarily increase them. In some cases, increases in lead
levels could extend over longer timeframes (Dore et. al, 2019).
Although the final rule requires water systems to provide information
and filters to consumers to reduce their risk to lead exposure where
partial replacements are unavoidable, these requirements are short-term
measures, and the EPA emphasizes the importance of its prohibition of
partial replacements except in certain circumstances. The EPA considers
avoiding the short-term increases in lead levels caused by partial
replacements preferable to conducting risk mitigation measures to
reduce lead levels after a partial replacement. Lead exposures continue
to remain when partial replacements occur. In addition, risk mitigation
measures such as filters or flushing protocols may not always be
utilized by or correctly implemented by consumers. For example,
existing flushing procedures that call for 30 minutes of flushing at
every tap in the home, to be repeated every two weeks, (i.e., AWWA,
2017) may be challenging to follow, time intensive, and expensive for
some consumers.
Some commenters were concerned that the requirement for water
systems to replace the remaining portion of a service line when a
customer initiates replacement of their private side service line could
worsen environmental justice impacts by allowing customers who can pay
for their replacement to ``jump the line'' as opposed to those who
cannot afford to conduct their own private-side replacement. While the
EPA appreciates these environmental justice concerns, the increases in
lead levels following a customer-initiated partial lead or GRR
[[Page 86456]]
service line replacement could pose an increased risk of adverse health
effects, and this risk will be highest immediately following the
replacement. Thus, replacing the system's portion of the affected
service line and providing notification and risk mitigation measures as
required is necessary to prevent adverse health effects to the extent
feasible.
c. Final Rule Requirements
The final LCRI defines partial service line replacement as the
replacement of any portion of a lead or GRR service line that leaves in
service any length of lead or GRR service line upon completion of the
work. The final rule prohibits water systems from conducting partial
service line replacement, except when the replacement is conducted as
part of an emergency repair or in coordination with planned
infrastructure work that impacts service lines (excluding planned
infrastructure work solely for the purposes of lead or GRR service line
replacement). The final rule clarifies that where a water system has
access to conduct full service line replacement the water system must
fully replace the service line. Where a water system conducts a partial
lead or GRR service line replacement, the system must install a
dielectric coupling separating the remaining service line and the newly
installed service line, unless the newly installed service line is made
of plastic. Where a water system conducts partial service line
replacement, the final rule requires the system to comply with the
notification and risk mitigation requirements.
Where a partial replacement is to be conducted in coordination with
planned infrastructure work that impacts service lines, the system must
notify the property owner, or the owner's authorized agent, as well as
non-owner occupant(s) served by the affected service line at least 45
days prior to the replacement and offer the opportunity to fully
replace the service line. Before the affected service line is returned
to service, the water system must provide the consumer with the
following: written notification that explains that the consumer may
experience a temporary increase of lead levels in their drinking water
due to the replacement; contact information for the water system;
written information about a procedure for the consumer to flush service
lines and premise plumbing of particulate lead following the partial
replacement; and a pitcher filter or point-of-use device that is
certified by an American National Standards Institute (ANSI) accredited
certifier to reduce lead along with six months' worth of replacement
cartridges. The final rule clarifies that where a water system has
access to conduct full service line replacement only if property owner
consent is obtained, the water system must make a ``reasonable effort''
to obtain property owner consent to replace the remaining portion of
the service line. The reasonable effort must be completed before the
partial lead service line replacement.
Where partial service line replacement is conducted due to an
emergency repair, systems must provide the same notification and risk
mitigation measures to consumers as when conducting a planned partial
replacement before the line is returned to service; however, the system
must offer to replace the remaining portion of the service line created
by the emergency repair within 45 days.
Where the customer intends to replace their portion of a lead or
GRR service line, the final rule requires that water systems replace
their remaining portion of the service line at the same time as, or as
soon as practicable after, but no later than 45 days from the date the
customer conducted their partial replacement and provide notification
and risk mitigation measures. The water system must notify the State
within 30 days to complete the replacement no later than 180 days from
the date the customer conducted their partial replacement. Where the
water system is notified or otherwise learns that a customer-initiated
replacement occurred within the previous six months, the system must
replace any remaining portion of the service line within 45 days from
the day of becoming aware of the customer-initiated replacement as well
as provide notification and risk mitigation measures within 24 hours of
becoming aware of the customer-initiated replacement. Where the water
system is notified or otherwise learns of a customer-initiated
replacement that occurred more than six months in the past, the LCRI
does not require the system to replace the remaining portion of the
service line within a certain number of days. Instead, the remaining
portion of the lead or GRR service line must be identified in the
system's inventory and replaced as part of mandatory service line
replacement. For any replacement prompted by a customer-initiated
replacement, the final rule requires notification and risk mitigation
measures be provided to the persons served by the affected service
line.
In the final LCRI, partial service line replacement does not count
towards mandatory full service line replacement. On an annual basis,
water systems must report to the State the number of partial lead and
GRR service line replacements that have been conducted in the preceding
program year and the address associated with each partial replacement
(Sec. 141.90(e)(8)(iii)). Water systems must also annually update that
number in their inventories. Public education to notify customers of
their service line material must continue annually until the entire
lead or GRR service line is replaced. Within six months of any change
in ownership of the property, the system must first reach out to the
new owner with an offer to replace the remaining lead or GRR portion of
the service line. Systems may use new service initiation or service
transfer to a new customer to identify when there is a change in
ownership. Within one year of any change in ownership of the property,
the system must make a reasonable effort to obtain the property owner's
consent to conduct full service line replacement. If the new property
owner declines the replacement, the water system must continue to
provide annual notification of their service line material until the
entire lead or GRR service line is replaced.
The final rule requires the provision of filters following partial
service line replacement to mitigate potential increases in lead
release to drinking water. These requirements are intended to further
protect public health in the event of increased lead release following
a disruption of the scale caused by these events.
6. Time Frame for Full Service Line Replacement
a. Rationale and Proposed LCRI Revisions
Under the LCR, systems must conduct LSLR after the system exceeds
the lead action level at a rate of seven percent per year,
corresponding to a 15-year deadline to replace all LSLs. However, the
rule allowed systems to use partial LSLR and sampling (``test-outs'')
for individual service lines to count toward the replacement rate.
Under the 2021 LCRR, systems must replace the entire service line at a
rate of three percent per year if they exceed the lead action level,
corresponding to an approximately 33-year deadline to replace all lead
and GRR service lines. The 2021 LCRR does not allow partial replacement
and ``test-outs'' to count towards the replacement rate.
For the proposed LCRI, the EPA proposed a 10-year deadline for
water systems to replace all lead and GRR service lines under their
control. In
[[Page 86457]]
recognition of the wide variation among systems with respect to the
number and proportion of lead and GRR service lines in their
distribution systems, the proposed LCRI included two provisions to
adjust the time frame for LSLR. To ensure that the rule meets the
statutory standard for a treatment technique rule to ``prevent known or
anticipated adverse effects on the health of persons to the extent
feasible,'' the EPA proposed to retain the requirement that the State
establish a shortened deadline if the State determines it is feasible
for a water system (e.g., by considering the number of lead and GRR
service lines in a system's inventory) (see section IV.B.7 of this
preamble). To ensure that the rule's service line replacement deadline
is not infeasible for systems with a large number or proportion of lead
and GRR service lines, the EPA proposed provisions for systems to apply
for a deferred deadline (see section IV.B.8 of this preamble).
For the proposed LCRI, the EPA utilized new evidence available
after the promulgation of the 2021 LCRR to determine the feasibility of
conducting full service line replacement by a set deadline. During the
development of the 2021 LCRR, there was a lack of data regarding the
number of lead and GRR service lines in systems as well as very few
broad service line replacement mandates in large geographic regions, or
State laws requiring such. The EPA was only aware of a limited number
of systems that had or were proactively conducting service line
replacement. For the proposed LCRI, however, new and higher quality
evidence and data were available to more accurately assess the
feasibility of requiring full service line replacement by a set
deadline. Many systems have documented the voluntary completion of both
service line inventories and full service line replacement programs
(USEPA, 2023a; USEPA, 2023k). In addition, four State (Illinois,
Michigan, New Jersey, and Rhode Island) service line replacement laws
suggest that States expect broad, mandatory service line replacement by
a set deadline to be ``technically possible'' given the thousands of
systems required to conduct service line replacement simultaneously
within and across these States. Specifically, Michigan requires
replacement of all lead and galvanized previously downstream of LSLs
starting in 2021, to be completed by 2041. Illinois requires
replacement of all LSLs starting in 2027, with the timeline determined
by the number of lead and galvanized lines (if the galvanized lines are
downstream of lead). Both New Jersey and Rhode Island require all LSLs
and galvanized service lines (irrespective of whether there is or was
an upstream LSL) to be replaced in 10 years unless the system is
granted an extension by the State (State of New Jersey, 2021a; State of
Rhode Island, 2023a). Michigan and New Jersey have several years of
experience implementing their service line replacement laws that were
promulgated in 2021, demonstrating the feasibility of the States'
replacement requirements. The EPA notes that these four States have
approximately one-fifth of the lead content service lines in the
country (1.9 lead content lines out of 9.0 million estimated lead
content lines) and have among the most LSLs in the country (USEPA,
2023l; USEPA, 2024n). Finally, BIL and other funding has become
available after the 2021 LCRR promulgation to support lead and GRR
service line replacement projects, which in turn further supports the
feasibility of setting a 10-year replacement deadline because this
requirement is a primary driver of the proposed rule costs.
For the LCRI proposal, the EPA's feasibility analysis used data
from official sources documenting service line replacement rates that
had been achieved in systems nationwide. The EPA used data from 30
systems serving more than 50,000 persons that had maintained proactive
LSLR programs to ensure the resulting rate reflected the technically
possible rate of replacement that may reasonably be afforded by a large
system; in doing so, EPA used the definition of ``large system'' that
has historically been used in the LCR, such as for CCT requirements.
The EPA then normalized the systems' replacement rates by the estimated
number of households served by each water system. The EPA calculated
the 95th percentile of the annual replacements per households served to
set as the national threshold reflecting the fastest feasible annual
replacements per household served that systems could achieve under a
10-year deadline, which equaled 0.039 annual replacements per household
served. The EPA used the 95th percentile rather than the maximum rate
achieved by any one of the 30 systems to avoid setting the per-
household rate based on the rate achieved by an individual system as
that may not accurately reflect the conditions at a wide variety of
systems subject to the replacement requirements in the rule. The
analysis also used the results of the 7th Drinking Water Infrastructure
Needs Survey and Assessment (referred to as ``Needs Survey''), which
was conducted in 2021. The data was published and used in the
feasibility analysis in 2023 (USEPA, 2023l), providing better estimates
on the number of lead, GRR, and unknown service lines in individual
systems and nationwide than were available during the development of
the 2021 LCRR. The EPA used data from the Needs Survey to estimate the
number of systems that would exceed the 0.039 annual replacements per
household served threshold and determined that mandatory service line
replacement in 10 years or less is technically possible and affordable
for 96 to 99 percent of all systems (USEPA, 2023k).
b. Summary of Public Comments and the EPA's Response
Several commenters suggested that the 10-year deadline is not
practical or feasible. Some comments simply asserted, without
explanation, that a 10-year deadline was not feasible. Other commenters
stated that the EPA had not adequately demonstrated feasibility, that
the 10-year deadline was not feasible without the availability of
substantial additional funding, and that the systems used in the
feasibility analysis were not appropriate for determining replacement
feasibility for typical systems under the LCRI. The EPA disagrees that
feasibility of a 10-year replacement deadline was not adequately
demonstrated. In the feasibility analysis for the proposed rule, as in
the updated analysis for the final rule, the EPA examined annual
replacement rate data from water systems that are conducting or have
finished conducting service line replacement. Due to the complexity of
service line replacement and the numerous variables that affect
replacement rates, many of which are specific to each water system or
even each site within a water system, modeling or projecting future
service line replacement rates is highly uncertain. Thus, basing the
feasibility analysis on available data from replacement programs that
have already been conducted by real world systems provides the soundest
basis for evaluating the technical possibility and affordability of
mandatory service line replacement requirements and for establishing a
deadline in a national rule covering a wide variety of systems (also
see preamble sections IV.B.7 and IV.B.8 for shortened and deferred
deadlines).
The EPA considered comments on data for use in the agency's
analysis, such as whether the EPA should include replacement rate data
from systems with ``exceptional'' circumstances, systems serving 50,000
persons or fewer, and
[[Page 86458]]
four water systems that provided data in their public comments. Details
on each aspect of the feasibility analysis are provided in subsequent
paragraphs. In summary, the final LCRI's updated feasibility analysis
excluded replacement rate data from Newark, NJ, and included
replacement rate data from systems serving populations greater than
10,000 persons and from three of the four systems that provided
replacement rate data.\11\ In total, the dataset used for the final
rule's service line replacement feasibility analysis included
replacement rates from 44 water systems. The 95th percentile of these
data is 39 annual replacements per 1,000 service connections (see
section IV.B.8 of this preamble for an explanation on the use of
service connections instead of households served). This information
demonstrates that, based upon the best available service line
replacement data, it is technically possible and affordable for water
systems to replace lead and GRR service lines at a rate of 39 annual
replacements per 1,000 service connections (USEPA, 2024d).
---------------------------------------------------------------------------
\11\ Replacement rate data for one system was provided by a
State, which did not include the name or any identifying information
for the system. Therefore, the annual replacements per service
connection or per household served could not be calculated, and data
from this system was not included in the feasibility analysis
(USEPA, 2024d).
---------------------------------------------------------------------------
Some commenters suggested that the EPA should not use systems with
``exceptional'' circumstances, such as Flint, MI, and Newark, NJ, in
its analysis because they claimed that the average system would not be
able to complete service line replacement as quickly as these systems.
These commenters asserted that these water systems were exceptional
because they had significant external financial subsidies, were in the
midst of much larger lead in drinking water crises, and had taken steps
to initiate their replacement programs prior to the construction period
referenced in the EPA's analysis. These commenters also pointed out
that inclusion of these ``exceptional'' systems in the dataset
influence the per-household threshold, even when using the 95th
percentile, and that they should be excluded from the dataset entirely
to avoid any influence on the per-household rate threshold.
The EPA acknowledged in its feasibility analysis for the proposed
LCRI that two systems (Flint, MI, and Newark, NJ) received substantial
external funding. For the proposed LCRI, the EPA selected the 95th
percentile of the per-household rate to set the fastest feasible rate
while avoiding setting the rate at the maximum recorded annual
replacements per household rate of a single system. For the final LCRI,
the EPA considered the replacement rate data for both Flint, MI, and
Newark, NJ, separately as described below.
With respect to Newark, NJ, the EPA became aware after publication
of the proposed rule of an ongoing formal investigation by the City of
Newark and the NJ Department of Environmental Protection (DEP) into
whether a contractor for the Newark LSLR program conducted partial
service line replacements instead of full replacements in some homes
(City of Newark, 2024). The formal audit is seeking to determine the
number of partial replacements that may have taken place (City of
Newark, 2024). The uncertainties associated with ongoing audit of the
Newark LSLR data could potentially affect the rate at which full
service line replacement was conducted because a partial service line
replacement could be completed more quickly than a full replacement. As
of August 2024, the results of the audit are not yet available. Because
of the new uncertainty this investigation raises with respect to the
Newark data and the importance of moving expeditiously to promulgate
the final LCRI, the EPA has excluded the replacement rate data from
Newark, NJ, from the quantitative analysis for determining the
feasibility threshold rate for service line replacement. Nevertheless,
Newark's LSLR program provides qualitative evidence in support of
finding that it is technically possible to conduct a full service line
replacement program across a large metropolitan or regional PWS in a
short period of time. For example, Newark employed 20 service line
replacement crews simultaneously during their program to replace more
than 20,000 lead and GRR service lines in less than three years (City
of Newark, 2020).
With respect to Flint, MI, the EPA disagrees with commenters that
the City's replacement rate data should be excluded from the dataset
used to calculate the feasible rate threshold. Flint received financial
and technical assistance for its replacement program as well as
substantial press coverage; however, the EPA does not agree that this
support and media coverage warrant exclusion from the feasibility
analysis. The replacement rate data in Flint represents the annual
replacements per 1,000 service connections averaged over the period
from 2016 to 2022, when the City of Flint reported having replaced 97
percent of its service lines requiring replacement (City of Flint,
n.d.). Thus, while nearly 8,000 of the approximately 10,000
replacements conducted in Flint were completed over a 2-year period
between March 2016 and April 2018 (City of Flint, 2019), the EPA uses
an average rate across six years in its feasibility analysis. Thus, the
EPA's analysis uses an average annual rate that does not rely solely
upon the initial replacement rates at the height of the lead crisis. In
addition, while Flint received financial subsidies for service line
replacement, data from the U.S. Census Bureau shows that Flint had a
high poverty rate in 2015, measured at 41 percent (U.S. Census Bureau,
2015a). This is significantly higher than the 2015 national average
poverty rate of 13.5 percent (U.S. Census Bureau, 2015b). Thus, other
cities will have fewer economic challenges than Flint and may be less
reliant on external funding to support service line replacement.
One commenter suggested that the proposed replacement rate and
timeline are not feasible for large systems, particularly when
``large'' systems are defined as systems that serve more than 10,000
persons rather than those that serve more than 50,000 persons. The
commenter noted that a system size of less than 10,000 persons served
is used to assess ``small system impacts under SBREFA and is also the
breakpoint used in SDWA for small systems''. In light of this comment,
the EPA reconsidered its decision to assess feasibility based only on
the 30 systems serving more than 50,000 persons in the proposed rule.
In the final rule, the agency included an additional 12 systems
(serving between 10,000 and 50,000 persons) in the analysis. Of these
12 systems, 10 are within metropolitan statistical areas as defined by
the Office of Management and Budget (OMB) for statistical use (OMB,
2021), supporting that these systems may represent large metropolitan
or regional PWSs. In addition, including such systems increased the
sample size of the EPA's dataset, which can improve the assessment of
feasibility of mandatory full service line replacement for a wider
variety of systems. The EPA also agrees with the commenters noting that
a cut off of 10,000 persons served aligns with the SDWA breakpoint for
small systems and the small system impact analysis under SBREFA.
The EPA did not include replacement rate data identified from two
systems serving 10,000 persons or fewer in the feasibility analysis for
the final rule. In assessing the affordability aspect of feasibility
for purposes of an NPDWR, the EPA evaluates costs to large
[[Page 86459]]
metropolitan or regional PWSs, not small PWSs. Additionally, both small
systems had substantially higher annual replacements per 1,000 service
connections. Small systems having higher replacement rates is not
unexpected in this scenario due to smaller systems having fewer service
lines overall and, therefore, fewer lines to replace compared to larger
systems. Individual service line replacement has generally similar cost
and time needed regardless of system size. Despite potential resource
limitations small systems may face, fewer lead and GRR service lines
require less time and fewer resources, making 100 percent replacement
relatively easier to complete for small systems than for large systems
with similar percentages of lead and GRR service lines in their
inventory. Additionally, service line replacement contrasts to
centralized treatment operations, where the same treatment unit is
employed at the treatment plant for different system sizes, and,
therefore, systems can take advantage of the economy of scale present
in installing and maintaining these treatments.
For the final LCRI, the EPA retained from the proposal the use of
the 95th percentile to set the fastest feasible annual replacements per
1,000 service connections that water systems nationwide can achieve
within 10 years. The EPA did not select the maximum number of annual
replacements per 1,000 connections in the dataset to represent the
fastest feasible rate because the agency did not intend for any single
system with potentially unique circumstances to determine the rate for
a broad range of systems covered by a national rule.
Commenters suggested that the EPA evaluate the feasibility of
alternative deadlines to 10 years. Some commenters suggested a shorter
deadline, such as five years or eight years, to ensure that no system
that could meet an earlier deadline would fail to do so. Other
commenters suggested longer deadlines (such as 15 years), suggesting
that 10 years is not feasible. After consideration of all the comments
and the available data, the EPA determined that 10 years is at feasible
deadline for most systems (USEPA, 2024d). Under the statute, the final
LCRI must meet the standard of preventing lead health effects ``to the
extent feasible,'' which means that the service line replacement rate
must be both feasible and the fastest feasible. If a shorter national
deadline was set, such as five years, this would compromise
implementation of the rule since a larger number of systems would be
eligible for a deferred deadline under the final rule criterion or seek
exemptions or variances. Setting a shorter deadline nationwide in the
rule could also impact States and some water systems' ability to
effectively comply with other aspects of the rule to support and manage
an effective replacement program, including the inventory development
and validation and maintenance of an updated service line replacement
plan. In addition, a more compressed schedule for all systems
nationwide could more significantly impact supply chains for materials
as well as impact worker availability, which some commenters raised as
areas of concern. All of these factors indicate that a national
deadline shorter than 10 years could be infeasible for many water
systems across the United States. The EPA maintains that for some
individual water systems, such as those with a small proportion or
total number of lead and GRR service lines, a rate faster than 10 years
could still be feasible.
Furthermore, using the 10-year replacement deadline helps
streamline the rule and facilitate implementation, a priority
identified in the 2021 LCRR review. The 10-year deadline represents the
EPA's best approximation of the fastest feasible service line
replacement rate for most systems, and therefore, it is the default
deadline. In recognition of the strong possibility that depending on
the specific circumstances, which may evolve over time, many systems
will be able to replace all their lead and GRR service lines even
faster than their replacement deadline (i.e., 10 years, deferred
deadline), the LCRI requires States to set shortened deadlines where it
is feasible. For example, for systems with a small proportion of lead
and GRR service lines, it may be feasible to complete replacement
within a much shorter period than 10 years and at a more rapid rate
than 10 percent of lines per year. In addition, it may be less
efficient to conduct replacement over a 10-year period than a shorter
timeline. For example, Central Arkansas Water, which serves
approximately 205,000 service connections, identified and replaced all
115 remaining LSLs in 14 months. A 10-year replacement program for this
system would lead to approximately 12 service line replacements per
year, which is less efficient and could lead to an increased need of
resources considering replacement crews would be needed over a much
longer period of time (Sweeney, 2020; Central Arkansas Water, 2022).
In addition to failure to meet the ``feasibility'' requirements in
the statute, a shorter mandatory replacement deadline in the final LCRI
would likely result in a greater number of water systems seeking
exemptions from the treatment technique requirements. Systems may seek
an exemption from the LCRI's treatment technique to obtain additional
time to complete their service line replacement programs in accordance
with requirements under Sec. Sec. 142.50 through 142.57. To obtain an
exemption, systems must expend resources demonstrating eligibility for
the exemption. States and the EPA would need to expend resources to
evaluate the exemption request, hold public hearings, and consider the
public input prior to approving or denying an exemption providing a
later compliance date. The EPA thinks that system, State, and EPA
resources are better expended on inventorying and replacing lead and
GRR service lines than evaluating exemptions. The EPA's decision to
establish a 10-year replacement deadline with limited criteria for
extensions will also reduce the resources spent issuing exemptions for
the requirements.
Commenters recommended that instead of a national deadline
established in the LCRI, the replacement rate for each State or system
be determined at the State or local level on a case-by-case basis, as
these entities would have a better understanding of system specific
challenges or advantages that would allow them to determine the fastest
feasible rate. While no single deadline in a national-level regulation
can represent the fastest feasible deadline for each of the nearly
66,000 individual systems nationwide that are required to comply with
the LCRI, the EPA disagrees that replacement rates should be solely
determined at the State or local level. States or local levels of
government determining deadlines would make implementation more
challenging, place significant burden on States to determine either
State- or system-specific deadlines, and complicate State oversight
with a resulting hodge-podge of deadlines. The LCRI's approach of a 10-
year deadline that may be adjusted up or down is essentially a hybrid
approach of single deadline and a case-by-case determination that best
meets SDWA standards for a NPDWR, while giving due consideration to the
variability among systems, and is more streamlined and implementable
than a case-by-case determination. While States may be in a better
position to determine an individual system's unique characteristics and
challenges, it is beyond their resource capacity to make this
determination on a case-by-case basis for each system and unnecessary
[[Page 86460]]
in light of the EPA's feasibility analysis using actual data.
Some commenters recommended use of a binning system in the LCRI,
similar to that employed in the Illinois LSLR requirements (which
assigns systems to one of six default replacement deadlines based on
the number of LSLs in a system), rather than a fixed rate and three-
year rolling average. In the 1991 LCR, the EPA acknowledged that ``it
is difficult to determine a uniform, national replacement schedule
applicable to all public water systems because the circumstances faced
by systems can vary substantially, depending upon the number of lead
lines in a system and system size'' and that large systems with few
lines could replace lines on the fastest schedule, while systems with
high percentages of LSLs would take the longest to complete replacement
(56 FR 26508, USEPA, 1991). For the 1991 LCR, the EPA had considered
alternate ways to structure the LSLR rate to take into account system
size and the number of LSLs in the system. The EPA found that such an
approach, while accounting for various factors affecting feasibility
for individual systems, can yield ``inappropriate results'' in some
cases, requiring systems to complete replacement on an ``inordinately
fast'' schedule that would not be feasible (56 FR 26460, USEPA, 1991).
The 1991 LCR proposal gives the example where the number of
replacements required per year corresponds to a fixed percentage (e.g.,
10 percent) of the total number of service lines in the system. Under a
construct where a system must replace 10 percent of all its service
lines, a large system with 200,000 non-LSLs and 50,000 LSLs would need
to replace all their LSLs in just 2.5 years (i.e., replacing 20,000
LSLs per year at an annual rate of 40 percent) and there are no data to
support that such a rate is feasible. The EPA also considered using a
binning approach but determined it could create implementation
challenges and add complexity to the rule, which runs counter to the
priority identified in the 2021 LCRR review to simplify the rule. The
final LCRI provides a single replacement rate but with some flexibility
to shorten or lengthen schedules in individual cases; this is much
simpler than a multiple bin scheme. Because a binning approach would
add significant and unnecessary complexity to the rule and the LCRI
already provides flexibility to alter the deadline in appropriate
cases, the EPA has determined that the approach in the final rule, with
a national 10-year deadline, and deferred deadline criteria for a
limited number eligible systems, and with the requirement for the State
to set a faster rate where feasible, is a simpler and more
implementable approach to assure LSLs are replaced at the fastest
feasible rate.
i. Additional Discussion of Affordability
Some commenters stated that, because there exists substantial
evidence of water systems conducting service line replacement, the
technology itself is clearly affordable. The EPA agrees with commenters
that service line replacement is an affordable technology, and the
technology has been required by the rule since the 1991 LCR, albeit at
differing scales. As noted previously, service line replacement is
unlike centralized treatment in that the total cost is dependent upon
the number of service lines replaced rather than the cost of the
treatment itself. The cost per customer, if costs of replacement are
spread to all rate-paying customers, is also dependent on the
proportion of lead and GRR service lines to total service lines in the
distribution system. Thus, based on the fastest feasible rate
established by already completed service line replacements, 10-year
service line replacement was demonstrated to be technically possible
and reasonably afforded for approximately 98 percent of systems (see
section IV.B.8 of this preamble for a discussion on deferred
deadlines).
Some commenters suggested that replacement of all LSLs in 10 years
would not be affordable for water systems because they would have to
rely on the ability of their local communities to pay for replacements,
that more State or Federal funding will be needed, or that the EPA had
not adequately demonstrated affordability in the Economic Analysis of
the proposed rule. The EPA disagrees that the 10-year deadline is not
affordable and that the agency has not demonstrated its affordability.
The final rule feasibility analysis for service line replacement
examines replacement rates achieved by systems and concludes that the
rates achieved in this analysis are the highest rates for which
currently available data can demonstrate to have been reasonably
afforded water by systems (USEPA, 2024d). As noted above, the analysis
demonstrates that, based upon the best available service line
replacement data, it is technically possible and affordable for water
systems to replace lead and GRR service lines at a rate of 39 annual
replacements per 1,000 service connections. While some of the
identified systems received varying amounts of financial assistance to
support service line replacement, the EPA did not consider the
availability of external funding in its calculation of household costs
in the economic analysis. Costs of the service line replacement
requirement were calculated over the entire 35-year period of analysis
and per-household costs of implementation of the entire rule (not
limited to LSLR) were estimated based on system size, water source, and
ownership (see Exhibit 6 in section VI of this preamble for annualized
service line replacement cost and Exhibits 7 and 8 for total rule cost
per household). Implementation costs to systems and States were also
considered in the affirmation of the cost-benefit determination (see
Exhibit 10 of this preamble for total annualized rule cost including
PWS and State implementation and section VI.F.3 of this preamble
(Reaffirm Cost-Benefit Determination)). The EPA notes that there is
significant funding available to support service line replacement, and
the EPA expects that the additional funding from BIL will increase the
affordability of the achieved replacement rates (see section III.G of
this preamble for further discussion on funding).
c. Final Rule Requirements
The final rule establishes a 10-year deadline for water systems to
replace all lead and GRR service lines under their control. In
recognition of the wide variation among systems with respect to the
number and proportion of lead and GRR service lines in their
distribution systems, the final LCRI also includes provisions for
systems to apply for a deferred deadline (see section IV.B.8 of this
preamble) and provisions for States to require systems to replace all
lead or GRR lines under a shortened deadline (see section IV.B.7 of
this preamble).
7. Mandatory Service Line Replacement Rate
a. Rationale and Proposed LCRI Revisions
The 1991 LCR requirement to replace (or ``test out'' individual
service lines) at a rate of seven percent per year is calculated on an
annual basis (Sec. Sec. 141.84(b)(1) and 141.90(e)(1) through (3)).
The 2021 LCRR replacement requirements of three percent per year
following a lead action level exceedance and at a ``goal-based rate''
determined by the State following a lead trigger level exceedance must
be calculated using a two-year rolling average.
For the LCRI, the EPA proposed a minimum average annual replacement
rate of 10 percent for most systems,
[[Page 86461]]
calculated as a 3-year rolling average. Water systems would be required
to average the annual percentages of service lines replaced in the
preceding three years of the replacement program, beginning at the end
of the third ``program year'' and annually thereafter. The EPA proposed
for a ``program year'' to be measured from the LCRI compliance date.
The agency proposed a rolling average across a three-year period to
account for stakeholder concerns about the potential annual variability
and temporary disruptions or shortages that impede a system's ability
to replace service lines, such as supply chain delays, workforce
limitations, natural disasters or extreme weather, and difficulties
gaining access for full service line replacement. The EPA anticipated
that this approach would provide water systems with flexibility during
the initial years of their replacement programs to create and manage
their programs, adjust and plan for market corrections in labor and
supplies, apply for and obtain funding, and obtain advice on applicable
laws, regulations, or water tariff agreements associated with the
replacement of lead and GRR service lines. The EPA sought comment on
how to calculate compliance with a service line replacement deadline
and the average annual rolling rate construct, including the complexity
of the construct.
The EPA proposed in the LCRI to require water systems to calculate
the percent of service lines replaced for each year using the
replacement pool and the annual number of service lines replaced. The
proposed LCRI included requirements for water systems to calculate the
baseline replacement pool by adding the total number of lead, GRR, and
unknown service lines in the baseline inventory submitted by the
compliance date. To calculate the number of lead and GRR service lines
a system would need to replace in a given program year, the EPA
proposed to require systems to divide the most up-to-date replacement
pool by the total number of years allowed to complete mandatory service
line replacement (e.g., 10 years). At the beginning of each replacement
program year, water systems must update the replacement pool to account
for inventory updates and recalculate the annual number of service line
replacements needed to meet the replacement rate. The EPA proposed to
require that water systems update their replacement pools by: (1)
Subtracting unknown service lines that are identified as non-lead from
the replacement pool and (2) adding any non-lead lines found to be lead
or GRR service lines. As proposed, unknown service lines identified to
be lead or GRR service lines are recategorized in the replacement pool,
but they do not change the number of lines because they have already
been counted in the number of lines for determining the replacement
pool.
The EPA proposed to not limit the replacement rate to service lines
solely under the control of the system. The proposed rule did not
permit water systems to subtract lead and GRR service lines that are
not under the control of the system from the replacement pool nor count
them towards the annual number of service lines replaced. All water
systems are subject to mandatory service line replacement and must
replace all lead and GRR service lines; however, systems are not
required by this rule to replace lead and GRR service lines that are
not under the control of the system. As discussed in section IV.B.3 of
this preamble, control is not static, and service lines can come under
the control of the system at any time as circumstances change. Counting
lead and GRR service lines that are not under the control of the system
as ``replaced'' provides water systems would not be appropriate as they
could become under the control of the water systems as well as this
would disincentivize systems from actively seeking opportunities to
replacing these lines in the future such as outreach with community
members, which does not protect public health to the extent feasible.
The replacement pool provides the water system with a full account of
the historic and current lead and GRR service lines in the system,
regardless of the system's access or lack thereof at one point in time,
starting at the LCRI compliance date. Removing these lines from the
replacement pool does not remove their risk to consumers.
The proposed LCRI also included requirements on what full lead and
GRR service line replacements must count towards the number of service
lines replaced and the average annual replacement rate. Full service
line replacements would count towards the replacement rate in the
following instances: (1) where the replacement results in the entire
service line to be categorized as non-lead in the inventory, (2) where
a non-lead service lines is installed for use and the lead or GRR
service line is disconnected from the water main or other service line,
and (3) where the system physically disconnects a service line that is
not in use and does not install a new non-lead line because there is no
service line in use (the system must not reconnect the line to resume
service). Service line replacements would not count towards the
replacement rate in the following instances: (1) Where the service line
is partially replaced, (2) where a lead, GRR, or unknown service line
is determined to be non-lead, (3) where only a lead connector is
replaced, and (4) where pipe lining or coating technologies are used
while the lead or GRR service line remains in use. The EPA proposed for
unknown service lines identified as non-lead to not count towards the
number of service lines replaced because such a requirement could
inadvertently incentivize water systems to delay the identification of
the material of unknown service lines so water systems could claim
``replacement'' credit for when lead or GRR service lines have not been
replaced, thereby delaying the public health benefits of replacement to
consumers served by a lead or GRR service line.
b. Summary of Public Comments and the EPA's Response
Some commenters stated that the proposed three-year rolling average
is complex and may be difficult to implement. Other commenters
supported the proposed approach, with one commenter noting that the
LCRI is inherently complex, and the EPA struck a reasonable balance.
Some commenters stated that using a cumulative average approach to
track compliance with LSLR would provide more flexibility for water
systems than a three-year rolling average and accounts for the
potential that replacements become more challenging towards the end of
program when customers are harder to reach or because the replacements
are conducted individually as opposed to in coordination with
infrastructure work where replacement may be more efficient.
The EPA agrees with commenters that a cumulative average is simpler
to understand and calculate than a three-year rolling average.
Simplifying the rule to ease implementation was identified in the 2021
LCRR review as a priority for the final rule. Rather than calculating
an average within a rolling three-year window, a water system
calculates the average rate of replacement from the beginning of the
program. For example, for a water system with a 10-year mandatory
replacement deadline, at the end of the fourth program year, the system
must have replaced at least 40 percent of the lines in the replacement
pool. With a three-year rolling average, the system averages the
replacement rate in program years two, three, and four,
[[Page 86462]]
whereas with a cumulative average, all replacements conducted since the
compliance date are included in the calculation (i.e., average of rates
summed for years one, two, three, and four). A cumulative average has
the additional benefit of providing more flexibility for water systems
that may experience challenges that temporarily disrupt replacement
progress. For example, for a water system that is on track to complete
replacement by the program deadline under a rolling three-year average,
it would be possible to be in violation if they replaced fewer than 10
percent of the replacement pool over a few consecutive years because
only three years of the replacement program are considered in the
calculation. Especially toward the end of the service line replacement
program, remaining property owners with lead or GRR service lines may
be harder to reach, and the remaining replacements may need to be
conducted individually instead of conducted more efficiently in
coordination with other replacements or infrastructure work. A
cumulative average will assure that systems that were ahead of their
replacement schedule initially would not necessarily be in violation if
their replacement rate slows as a result of these difficulties. The
final rule includes a requirement for systems to meet a cumulative
average rather than a three-year rolling average.
The EPA emphasizes that systems should not slow their replacement
rate simply because they have ``banked on'' service line replacements
in earlier years of the program. However, the EPA does not anticipate
this practice occurring because of the many requirements and incentives
that the final rule contains to ensure water systems are replacing lead
and GRR service lines as quickly as feasible. For example, the final
rule provides a pathway for water systems to defer CCT steps and avoid
a more burdensome OCCT study if they replace all remaining lead and GRR
service lines in five years or less (see section IV.F.2.d of this
preamble). Additionally, replacement of these significant lead sources
is likely to reduce the systems 90th percentile lead levels, thereby
reducing the likelihood of a lead action level exceedance and
associated required actions (e.g., OCCT, systemwide public education,
Tier 1 PN). States also must set a faster rate where feasible, which
would also apply if the system intentionally slowed their replacement
rate. Additionally, the final LCRI retains from proposal the inclusion
of unknown service lines in the replacement pool, which incentivizes
more rapid identification of unknown lines.
The EPA received mixed comments about whether to require water
systems to meet the minimum service line replacement rate in each of
the first three program years following the compliance date. Some
commenters said that waiting until the third program year to assess
compliance with the replacement rate could allow water systems to more
effectively scale up their replacement program by engaging in planning
and bidding on contractors and to identifying unknowns, whereas other
commenters said that requiring earlier demonstration of compliance
would allow States to enforce sooner and noted that systems already
have the three years prior to the compliance date to become prepared
for the replacement requirement.
The EPA agrees that requiring calculation and reporting of
compliance with service line replacement three years after the
compliance date provides water systems with additional time beyond the
three-year period between promulgation and the compliance date for the
rule before assessment with the cumulative average replacement rate is
measured. While the EPA anticipates that water systems will use the
three years prior to the compliance date to prepare for mandatory
replacement, water systems will continue to build capacity for their
service line replacement programs, identify service line materials, and
initiate mandatory full service line replacement that is required
during the first few years of the program starting upon the compliance
date. By requiring the cumulative average replacement rate to be
calculated starting at the end of the third program year, water systems
are provided with additional flexibility to scale up their program and
provide more time to enact policies to facilitate full service line
replacement. Under a cumulative rate measured at the end of year three,
water systems will be required to have replaced an average of 10
percent of the replacement pool per year, or 30 percent by the end of
year three. This is the equivalent number of replacements that water
systems would have been required to complete by the end of year three
if the rate was measured annually, but this approach provides more
flexibility for fluctuations in the annual percent replaced, especially
during the first few years after the compliance date. Additionally,
this requirement could also facilitate service line replacement
prioritization as well as facilitate efficiencies in service line
replacement. Therefore, the EPA is requiring that the cumulative
average replacement rate be calculated starting at the end of the third
program year. The EPA adds the text ``water systems must start
mandatory service line replacement programs no later than the
compliance date specified in Sec. 141.80(a)(3)'' to Sec.
141.84(d)(4)(i) to clarify that water systems must comply with service
line replacement on the LCRI compliance date and not by three years
following the LCRI compliance date. Rather, water systems are required
to meet the cumulative average replacement rate of 10 percent, first
assessed at the end of three program years following the compliance
date and annually thereafter.
Several commenters expressed concerns over the inclusion of unknown
service lines in the replacement pool. Commenters stated that the
proposed approach could result in non-compliance where many unknown
service lines remain that are, in fact, non-lead (e.g., the system runs
out of known lead or GRR service lines to replace because its inventory
contains only unknown lines, and, thus, cannot complete the required
number of replacements). The EPA disagrees with commenters that unknown
service lines should be excluded from the calculation of the number of
required annual replacements for multiple reasons. First, the
identification of unknown service lines in a timely manner is important
for public health and transparency, and including unknown lines in the
replacement rate incentivizes their identification as quickly as
feasible. By identifying unknown lines early in the replacement
program, systems can avoid the situation where they run out of lead and
GRR service lines to replace, leading to non-compliance. Second, a
requirement to exclude unknown service lines from their replacement
pool could itself lead to a situation where the system is not in
compliance. For example, if a system determines that many of their
unknown lines are lead or GRR service lines later in the replacement
program, those systems could be in jeopardy of non-compliance with
their service line replacement deadline because they had not set an
appropriate replacement rate in the initial years of the program and
may not be able to complete the replacement of the remaining lead and
GRR service lines by the deadline. Third, systems have had ample notice
to start identifying the material of unknown service lines. The 2021
LCRR requires initial inventories to be submitted by October 16, 2024,
and systems will have
[[Page 86463]]
another three years following promulgation of the LCRI to complete
their LCRI baseline inventory. Furthermore, existing State regulations
already require completion of service line inventories (i.e.,
identification of all unknown lines) on shorter timelines. Rhode Island
finalized an inventory and replacement law in 2023, which requires
initial inventories in 2024 and a completed inventory in 2026 and
Illinois signed their law in 2021, which required initial inventories
in 2022 and final inventories by 2024 (USEPA 2023a, Section D.1;
Illinois General Assemble, 2021; State of Rhode Island, 2023a).
Illinois's experience is instructive. Its law prompted most systems to
complete service line inventory and identify unknown service lines
prior to the compliance date, and the median system had no unknown
service lines remaining as of 2022 (USEPA, 2024d). Fourth, the EPA
provided guidance and support materials for identifying service line
materials and continues to provide guidance and technical assistance to
facilitate water system progress in identifying unknown lines. In 2022,
the agency developed Guidance for Developing and Maintaining a Service
Line Inventory (USEPA, 2022c), inventory templates (https://www.epa.gov/ground-water-and-drinking-water/revised-lead-and-copper-rule), and fact sheets (USEPA, 2023o), and in 2023, provided the small
entity compliance guide for developing service line inventories (USEPA,
2023n). Additionally, the EPA's Get the Lead Out (GLO) Initiative
provides technical assistance to communities to accelerate LSLR,
including inventory development. Finally, funding from BIL and other
sources is available for systems to identify and replace service lines
(see section III.G of this preamble). For all these reasons, water
systems that do not want to include unknown service lines in their
replacement rate calculation have sufficient opportunity to remedy that
by identifying unknown service lines prior to the LCRI compliance date
to avoid non-compliance with service line replacement requirements due
to high numbers of unknown service lines.
The EPA received comments about specific situations that commenters
believed would merit recalculating the replacement rate. For example,
some commenters suggested that the water system should get credit for a
service line replacement when a line previously characterized as a lead
or GRR service line is determined to be non-lead. The EPA disagrees
that systems should be allowed to count identification of lead and GRR
service lines as non-lead as a service line replacement. While the EPA
appreciates the effort required to identify a non-lead line previously
thought to require replacement, allowing systems to count as a
replacement the reclassification of a lead or GRR service line to a
non-lead service line would create a disincentive for systems to
accurately characterize service lines in the inventory. Sufficient
checks to prevent this from disincentivizing systems to create accurate
inventories would greatly complicate the rule. Additionally, the EPA is
concerned that, if water systems are allowed to count non-lead
identifications as replacements, water systems could delay replacing
known lead and GRR service lines by focusing efforts on identifying
unknown lines that are more likely to be non-lead. Under the final
rule, systems can subtract any lead, GRR, or unknown service lines
newly discovered to be non-lead service lines from their replacement
pool, which can reduce the number of service lines they are required to
replace in the following program years; however, systems cannot count a
reclassification as a replacement.
Some commenters similarly argued that water systems should not be
penalized when property owners do not cooperate with providing access
for a full replacement and to allow customer refusals to count as
replacements. The EPA requires systems to conduct four outreach
attempts per property owner to gain access and strongly encourages
water systems take steps to ensure the likelihood of gaining access to
conduct full service line replacement, such as seeking out alternate
funding sources and engaging in comprehensive communication with their
customers. The EPA disagrees with crediting water systems that are
unable to gain access with a count towards full replacement because it
could disincentivize efforts to obtain access. Therefore, customer
refusals do not count as a service line replacement, and water systems
must retain that service line as part of their replacement pool. The
EPA also disagrees that water systems will be penalized if a property
owner does not provide access. Water systems that do not replace all
their lead or GRR service lines by the deadline because they lack
access are not in violation of the treatment technique. Additionally,
the final rule adds text in Sec. 141.84(d)(5)(iv)(A) stating that a
water system is not required to meet the cumulative average replacement
rate if that system has, after the compliance date, replaced all lead
and GRR service lines in the replacement pool that are under the
control of the system, identified all unknown service lines in the
inventory, and documented and submitted to the State the reasons the
system does not currently have access to conduct full replacement of
the remaining lead and GRR service lines in the replacement pool. Those
systems, however, are required to continue to document the reasons the
system does not have access, show those unreplaced service lines in the
publicly available inventory, conduct tap sampling at these sites
(where the sites are included in the sampling pool and the water system
has access to sample), and notify consumers annually about their
service line material, until those service lines are replaced. If
service lines previously not under the control of the system come under
the control of the system at any point prior to the removal of all lead
and GRR service lines, these service lines are required to be replaced
at the fastest feasible rate as described in Sec. 141.84(d).
The EPA received comments requesting procedures for the rare
occurrence of a lead or GRR service line and the need to simplify the
compliance for systems with no or few lead or GRR service lines. The
EPA agrees there should be a path for the rare lead or GRR service line
that may be discovered and has therefore added a provision to the final
LCRI that should a lead or GRR service line be discovered in a system
with only non-lead service lines in their inventory, the system must
replace the affected service line as soon as practicable but no later
than 180 days after the date the service line is discovered. The agency
also recognized in some circumstances, such as freezing conditions, it
may not be practicable to conduct full service line replacement within
180 days after the date of discovery and therefore the system may
request State approval for an extension of no later than one year after
the date the service line was discovered to replace the affected
service line. The request for an extension must be made no later than
90 days after the date of discovery of the affected service line. The
EPA strongly encourages systems to replace lead and GRR services lines
as fast as feasible. Once systems are comprised of only non-lead
service lines implementation burden can be reduced as certain
requirements of the LCRI are no longer applicable such as public
education of service line material and first- and fifth-liter samples
at LSL sites. The EPA notes systems that replace all
[[Page 86464]]
the discovered lead or GRR service lines prior to the start of the next
tap monitoring period would not need to restart standard monitoring as
described in Sec. 141.86(c)(2)(iii)(H).
c. Final Rule Requirements
The final LCRI requires water systems to replace lead and GRR
service lines at an average annual replacement rate of 10 percent
calculated across a cumulative period, unless the system is eligible
for a deferred deadline (see section IV.B.8 of this preamble) or
required to replace service lines on a shortened deadline. The first
cumulative average replacement rate must be assessed at the end of the
third program year and is calculated by dividing the cumulative percent
of service lines replaced by the number of completed program years
(three in this case). Annually thereafter, at the end of each program
year, systems must assess the cumulative average replacement rate by
dividing the most recent cumulative percent of service lines replaced
by the number of completed program years. The cumulative average
replacement rate for systems on a 10-year deadline is 10 percent or
greater each program year, and all water systems must make up any
deficient percentages of their replacement rate for any program year by
the applicable deadline for completing mandatory service line
replacement.
The final LCRI adds a definition for ``program year'' in Sec.
141.84(d)(5)(iii). The first mandatory service line replacement program
year runs from the compliance date to the end of the next calendar year
(December 31, 2028), and every program year thereafter is a calendar
year (January 1 to December 31). A program year is a term used
throughout the replacement and reporting requirements. The term is used
to streamline reporting requirements (see section IV.N.1 of this
preamble for more information) and describe annual activities for
mandatory service line replacement.
The final rule also removes the regulatory text related to
calculating the annual percent of service lines replaced and adds the
term ``cumulative percent of service lines replaced''. To calculate the
cumulative percent of service lines replaced, at the end of each
program year, water systems must divide the total number of lead and
GRR service lines replaced thus far in the program by the number of
service lines within the replacement pool. The cumulative average
replacement rate for systems on a 10-year deadline must be 10 percent
or greater each program year.
Where the State determines that a shortened replacement deadline is
feasible for a water system (e.g., by considering the number of lead
and GRR service lines in a system's inventory), the system must replace
service lines by the State-determined deadline and by a faster minimum
replacement rate. The State must make this determination in writing and
notify the system of its finding. The State must set a shortened
deadline at any time throughout a system's replacement program if a
State determines a shorter deadline is feasible. This requirement also
applies to systems eligible for a deferred deadline (see section IV.B.8
of this preamble). If the State determines a shortened deadline is
feasible, systems must replace lead and GRR service lines at an average
annual replacement rate calculated by dividing 100 by the number of
years needed to meet the shortened deadline determined by the State,
expressed as a percentage. For example, if a State determines a system
can feasibly complete mandatory service line replacement on a shortened
deadline no faster than 5 years, the system's average annual
replacement rate would equal 100/5, or 20 percent. Systems must comply
with the cumulative average replacement rate, where the first
cumulative average replacement rate is assessed at the end of the
program year that is at least one year after the shortened deadline
determination, as determined by the State. If the system's shortened
replacement deadline is less than three years, compliance is assessed
on a schedule determined by the State.
Under the final LCRI, if a lead or GRR service line is discovered
when the system's inventory is comprised of only non-lead service
lines, the system must update their replacement pool with the
discovered service line. The system must also comply with the
requirements to conduct a full service line replacement of the affected
service line as soon as practicable but no later than 180 days after
the date the service line is discovered. Where a system determines that
it is not practicable to conduct a full replacement within 180 days
after the date of discovery, such as due to freezing ground conditions,
the system may request State approval for an extension of no later than
one year after date the line was discovered to replace the affected
line. The request for an extension must be made no later than 90 days
after the date of the discovery of the affected service line. See
section IV.D.2 of this preamble for related inventory requirements in
the proposed and final rules.
8. Deferred Deadlines
a. Rationale and Proposed LCRI Revisions
In the proposed rule, the EPA recognized that the default 10-year
replacement deadline may be infeasible for some systems due to the
large number or proportion of lines that would need to be replaced in
10 years. For these systems, the EPA proposed two ways that a system
could establish eligibility for a deferred deadline to conduct service
line replacements. The first eligibility criterion was proposed for
systems with a high proportion of lead and GRR service lines in their
distribution system relative to their total number of households
served. The EPA used the feasibility analysis in the proposed LCRI to
determine the fastest per-household replacement rate demonstrated to be
affordable for systems with a high ratio of lead and GRR service lines.
This feasibility analysis resulted in a value of 0.039 annual
replacements per household served (39 replacements per 1,000 households
served) (USEPA, 2023k). Also, see section IV.B.6.a of this preamble. In
the proposed preamble, the EPA noted that the per-household replacement
rate identifies an ``affordability threshold''; however, the fact that
replacements were conducted also demonstrates that replacement at these
rates is technically possible for these water systems. For more
information, see the Technical Support Document for the proposed LCRI
(referred to as ``proposed TSD''; USEPA, 2023k).
The proposed rule included a second deferred deadline eligibility
criterion for systems that would be required to replace greater than
10,000 service lines per year under the proposed 10-year deadline. The
EPA selected 10,000 as the proposed upper threshold for what is
technically possible based on the replacement rate achieved in Newark,
NJ, between January and March 2020 and the projected replacement rate
that Detroit, MI, announced it would achieve. The EPA projected that
only three to six systems nationwide would have more than 100,000 lines
requiring replacement to qualify for a deferred deadline based on this
criterion.
In the proposed rule, the EPA also highlighted that the requirement
for the State to set a faster replacement rate where feasible also
applies to systems eligible for a deferred deadline. Thus, the deadline
calculated according to the EPA eligibility criteria would serve as the
maximum allowable time to complete replacement and the State
[[Page 86465]]
could reduce that time if they determine the system can achieve a
faster rate.
The EPA sought comment on the approach and basis of a deferred
deadline for service line replacement at systems with a high proportion
of lead and GRR service lines in their distribution system relative to
the number of households served, the proposed threshold of 0.039
average annual number of replacements per household served, the
proposed threshold of 10,000 annual replacements for systems with
atypically high numbers of lead and GRR service lines, and an alternate
threshold of 8,000 annual replacements. The EPA also requested any data
available that would further inform the value for annual replacements
per household served and the threshold for maximum annual replacement.
b. Summary of Public Comments and the EPA's Response
Some commenters recommended that deferred deadlines be removed from
the rule because the statute does not require that a treatment
technique be feasible for every single system in the nation. They
recommended that, instead of deferred deadlines, water systems apply
for variances to the 10-year service line replacement deadline or
negotiate new deadlines through enforcement actions. The commenters
stated that, because some large, regional water systems have replaced
all their LSLs in 10 years or less, this service line replacement
deadline has been demonstrated to be technically possible and
reasonably afforded by large systems. The EPA agrees that SDWA does not
require the EPA to demonstrate the feasibility of a NPDWR for every
single water system, and the EPA acknowledges that SDWA includes
provisions for variances and exemptions to address the possibility that
not all water systems will be able to comply with an NPDWR by the
compliance date. At the same time, the EPA recognizes that 500 to 700
systems are not likely to be able to replace all lead and GRR lines
within 10 years (USEPA, 2024d). Furthermore, if 500 to 700 systems
applied for a variance or exemption, the significant time and resources
involved in the State's and the EPA's review and approval of these
requests would significantly hamper implementation and enforcement of
the service line replacement requirements and other treatment
techniques in the LCRI, and require significant EPA resources, which
could strain the EPA's efforts to publish guidance, properly oversee
enforcement of the rule, and provide technical assistance to systems
and States. Similarly, it is not realistic to assume that together
States or the EPA would have adequate resources to devote to between
500 and 700 enforcement actions at approximately the same time to
address the systems for whom a 10-year replacement deadline is
infeasible. Instead, the final rule uses a process for establishing
deferred deadlines to manage the systems for which a 10-year deadline
is expected to be infeasible, based on the EPA's current analysis.
Fewer annual service line replacements allow the system to spread the
costs and replacement efforts of the replacement program across
additional years to make the LCRI's replacement provision feasible. The
final rule's deferred deadline provision also includes additional
measures to ensure that systems meeting the criteria for a deferred
deadline are required to replace service lines more quickly if a faster
rate is feasible for the system (also see section IV.C of this preamble
for service line replacement plan requirements). The EPA intends to
create guidance to assist States in determining a system's fastest
feasible replacement rate.
Some commenters supported the deferred deadline option for systems
with a high proportion of lead and GRR service lines using the 0.039
annual replacements per household threshold. Some commenters
recommended that the EPA use the number of service connections, rather
than the number of households, to ease implementation as the number of
service connections is already reported to the State via the service
line inventory, whereas the number of households served may not be
readily available to systems, and ambiguities in what constitutes a
``household'' could lead to inconsistent application of the LCRI
nationwide. Additionally, the use of households may be a less
meaningful measure to assess the scale of service line replacements
needed; multi-household properties are generally served by a single
service line. The EPA agrees that the number of connections provides a
better estimate of the proportion of service lines that require
replacement. The proportion of service lines requiring replacement,
rather than the total number of service lines requiring replacement,
was the basis for normalizing service line replacement rates by system
size, and, thus, it is important that the method of normalization
maintains this proportion. The EPA also agrees that revising the
deferred deadline eligibility criterion to use per connection rather
than per household simplifies the rule and eases implementation, which
was identified in the 2021 LCRR review as a priority for the final
rule. Finally, the use of service connections rather than households
served does not result in major differences in the total number of
systems projected to be eligible for a deferred deadline as compared to
the use of households served (USEPA, 2024d). For these reasons, the
final rule uses the number of connections to calculate the final rule's
deferral threshold. The EPA refers to this threshold in the final rule
as 39 annual replacements per 1,000 service connections rather than
0.039 annual replacements per service connection because this
representation of the deferral option is more understandable and can
ease implementation.
Some commenters claimed that the 0.039 replacements per household
deferral rate threshold was too low and too many systems would be
eligible, while other commenters said that it was too high and should
be lowered to allow more systems to defer their deadlines. The EPA does
not agree with arbitrarily lowering or raising the deferral threshold
and notes that these commenters did not offer an alternate feasibility
analysis to use instead of the proposed rule's feasibility analysis.
The EPA derived the threshold for the final rule based on the EPA's
updated feasibility analysis and the conversion to a per connection
metric. Thus, the final rule's per-connection threshold is based on the
best available data from the EPA's analysis of replacement rates
actually achieved by systems (USEPA, 2024d). Therefore, the identified
fastest feasible rate represents the fastest demonstrated rate to be
both technically possible and affordable, using the currently available
data, and there would be no basis for increasing or decreasing the
threshold. There are many factors that can influence the technical
possibility of a service line replacement rate, including seasonal
weather changes that shorten construction, practical limitations on the
number of street closures and interfering with other system operations,
etc. By using replacement rate data from various real-world systems,
such factors and any other encountered by these systems, are
incorporated into the analysis of technical feasibility.
The EPA received comments about the data used to support the
proposed deferral option for systems that would be required to replace
more than 10,000 service lines per year to meet the 10-year deadline as
well as the extended replacement timelines that resulted from it. Some
commenters suggested that the 10,000 per year threshold is not feasible
due to constraints such as
[[Page 86466]]
weather conditions, holidays, traffic disruptions, and logistical and
planning limitations, and that a threshold of 8,000 service lines per
year is more realistic or achievable. Other commenters suggested,
without detailed explanations, that 8,000 replacements per year would
not be a feasible standard. Other commenters suggested the EPA lower
the threshold to 6,000 or 7,000 replacements per year, based on
anecdotal experience of replacement rates at water systems. Other
commenters suggested that Newark data, which was used to support the
proposed rule's 10,000 threshold, should not be used in this
determination at all because commenters theorized that much higher
replacement rates could be achieved by cities that are much larger than
Newark (commenters specifically mentioned Chicago, IL, and New York,
NY, as examples), due to their relatively larger population size and
associated resources. Other commenters argued that the Newark data
should not be used for opposite reasons, stating that Newark was aided
by substantial funding, technical assistance, and news coverage of
service line replacement that helped Newark conduct an accelerated
service line replacement program that is unlikely to be replicated
nationwide. Some commenters were also concerned that the deferred
deadline threshold of 10,000 allows some systems to defer their service
line replacement deadline by decades, up to 45 years in the case of
Chicago. These commenters said that given the harms of lead exposure
from lead and GRR service lines and the urgency of service line
replacement, these systems should be required to complete service line
replacement sooner.
The EPA agrees with commenters recommending removing this deferred
deadline option. For the final rule, the EPA has eliminated the
deferral option based on a maximum number of annual replacements. The
EPA made this change for several reasons. First, two deferral options
unnecessarily complicate the implementation of the rule, as only three
systems are estimated to be eligible for this deferral option, and two
of those systems are estimated to also be eligible for the per-
connection deferral option. Second, the EPA agrees with commenters that
the underlying data used to determine the replacement maximum might not
reflect replacement feasibility, given that the three systems estimated
to be eligible were all larger than the system whose underlying
replacement data was used to determine the proposed replacement maximum
(Newark, NJ).
Additionally, the EPA acknowledges the challenge in establishing a
single number of replacements per year upper threshold limit, based
upon replacement data from one system (Newark, NJ) and projected data
from a second system (Detroit, MI), to apply to all systems nationwide
and which will continue to apply over the coming years. Therefore, due
to the lack of replacement rate data on the scale required for systems
with more than 100,000 service lines requiring replacement, it is not
possible to determine a maximum number of replacements per year for
such systems and setting a static national maximum based on two cities
has limitations in this situation (see section IV.B.6 of this preamble
on feasibility).
Some commenters suggested that systems with deferred deadlines
should be required to conduct additional actions to protect public
health while their replacement program is ongoing. Other commenters
opposed such requirements, stating that these systems would have the
most challenges in conducting service line replacement and that
additional required actions to protect public health would take away
resources from the systems' replacement program. The EPA does not agree
with requiring additional actions to protect public health and agrees
that additional requirements could draw resources away from service
line replacement itself and prevent service line replacement from
occurring at the fastest feasible rate.
The EPA shares commenter concerns that the maximum replacement
deferral option could result in some systems having deferred deadlines
that could go beyond multiple decades, which is inconsistent with the
urgency of achieving lead and GRR service line replacement as quickly
as feasible. Some commenters also suggested that the required
replacement rate should increase over time due to increases in
expertise, experience, and new technologies, especially after the 10-
year deadline when most other programs have finished replacements and
there is excess capacity in terms of available equipment and trained
workforce. The EPA agrees that conditions can change over the course of
a replacement program, such as the provision of new funding, expanded
access to service lines (such as passage of a State or local law that
overcomes barriers to access), or increased contractor availability as
many systems finish their replacement programs. Additionally, the EPA
agrees that systems that are eligible for the deferred deadline may be
able to complete service line replacement earlier than the deferred
deadline, thus the final rule provides that systems eligible for a
deferred deadline may be put on a shorter deadline where the State
determines it is feasible. The final rule builds on this concept by
allowing a system that is eligible for a deferred deadline to begin its
service line replacement program using a deferred deadline, and
associated cumulative average replacement rate, that is no longer than
needed to conduct at least 39 annual replacements per 1,000 service
connections per year; the system must identify the deferred deadline
and associated cumulative average replacement rate that it is using in
its service line replacement plan along with other information
supporting the system's determination that a faster rate is not
feasible (as described in Sec. 141.84(c)(1)(x)). Then, as soon as
practicable, but no later than the end of the second program year, the
State must evaluate the system's deferred deadline and associated
cumulative average replacement rate to determine if it is the fastest
feasible rate for the system. The State must either approve the
continued use of this replacement rate, or, if the State determines a
faster rate of replacement is feasible, the State must set a new
deferred deadline and replacement rate to ensure that the system is
conducting service line replacement at the fastest feasible rate. The
State must review the replacement rate information submitted by the
system in their service line replacement plan every three years to
ensure that the deferred deadline and associated replacement rate is
regularly assessed and updated throughout the replacement program, and
that systems eligible for deferred deadlines are continuing to replace
service lines at the fastest feasible rate. These provisions are
intended to inform the State's determination of whether the replacement
rate is the fastest feasible. This process will also allow systems and
States to respond to changing conditions to ensure they are replacing
service lines as quickly as feasible (see sections IV.B.6 through 8 of
this preamble).
Some commenters suggested that replacement timelines be determined
by a system's 90th percentile lead level or CCT status and that systems
with lower lead levels should be allowed to start later or given
additional time to complete their replacement program. The EPA
disagrees with this recommendation for several reasons. There is no
safe level of lead in drinking water and the EPA is not aware of data
[[Page 86467]]
showing that accelerated service line replacement is less feasible for
systems with lower lead levels. As such, the recommendation is
inconsistent with the SDWA requirement to promulgate NPDWRs that
``prevent known or anticipated adverse effects on the health of persons
to the extent feasible'' (SDWA 1412(b)(7)(A)). The need for service
line replacement at the fastest rate feasible is described further in
section IV.B.2 of this preamble.
c. Final Rule Requirements
The final rule includes a deferred deadline option for systems with
a high proportion of lead and GRR service lines to total service lines.
The final rule sets the deferral threshold at 39 annual replacements
per 1,000 connections based on the updated feasibility analysis (see
section IV.B.2 of this preamble) and conversion from a per-household
metric to per-connection. To reduce the complexity of this deferral
option, the final rule refers to the threshold as 39 annual
replacements per 1,000 connections instead of 0.039 replacements per
connection per year. Additionally, the final rule is not including the
second deferral option for systems required to replace more than 10,000
service lines per year.
To ensure that systems continue to replace at the fastest feasible
rate throughout their replacement program, the final rule requires the
State to set a faster replacement rate where feasible. The final rule
also requires States to regularly make determinations in writing that
the deferred deadline and associated replacement rate is the fastest
feasible, based on the initial service line replacement plan and
subsequent updates from the system. More specifically, by the end of
the second program year, and every three years thereafter, the State
must evaluate the system's use of the deferred deadline and associated
replacement rate to determine if it is the fastest feasible rate for
the system. The State must either approve the continued use of the
deferred deadline and associated replacement rate, or set a new
replacement deadline and associated replacement rate so that
replacements are conducted as fast as is feasible for the system.
States must report these determinations to the EPA. In their publicly
accessible replacement plan, systems with deferred deadlines must
document their deferred deadline and associated replacement rate, which
must be at least 39 annual replacements per 1,000 service connections
or faster if feasible, the annual number of replacements required, the
length of time (in years and months), the date of completion, and other
information supporting the system's determination that replacing lead
and GRR service line by an earlier date and faster rate is not
feasible. These systems must also provide in their plans additional
information (e.g., the annual number of service lines replaced, the
total number of known lead and galvanized requiring replacement lines
remaining, status of identifying unknown service lines, etc.) that
supports the system's deferred deadline and associated replacement
rate. The EPA intends to issue guidance to assist States in determining
the fastest feasible rate for systems.
9. Summary of the Feasibility of Mandatory Service Line Replacement
a. Overview
In considering the full record for this rulemaking, the EPA
concluded that the mandatory service line replacement requirement is
feasible. It applies only to service lines that a system can access in
order to conduct a full service line replacement. It recognizes that
State or local laws, or water tariff agreements, as well as a
customer's consent, may affect a system's ability to access a service
line to conduct a full replacement. It establishes a 10-year deadline,
with a pathway for a small percentage of systems to obtain a deferred
deadline, while requiring States to set a faster rate where feasible.
This approach ensures that service line replacement requirements do not
overburden primacy States with case-by-case feasibility determinations,
requests for variances or exemptions, or enforcement actions. The EPA
has committed to developing guidance to assist States in evaluating
relevant data to determine the fastest feasible replacement deadline
for a system and improve their ability to set faster rates where
feasible.
b. Summary of Public Comments and the EPA's Response
Some commenters theorized that in the past, systems with
replacement rates documented by the EPA were able to replace lead and
GRR service lines more quickly than future systems will be due to the
lack of ``administrative burden and associated rigidity of the proposed
LCRI framework'' and that the feasibility analysis for the proposed
LCRI did not take this into account. The EPA does not agree with these
comments and highlights that mandatory service line replacement and
other LCRI provisions will increase the replacement rates relative to
previous voluntary programs (see section IV.B.6 of this preamble for
further discussion). Additionally, other rule requirements could
increase public support and knowledge of service line replacement and
benefit future service line replacement programs. For example, the
public education requirements in the rule, such as annual notification
to consumers that their residence is served by a lead or GRR service
line and making inventory with addresses and service line replacement
plan publicly available, will create greater awareness of the remaining
lead and GRR service lines and result in more property owners
interested in participating in the LSLR program. Risk reduction
measures, including for full service line replacement, will aid in
garnering public support or broader awareness of replacement programs
(see section IV.J.2.a of this preamble and ``Public Education and
Engagement'' in the proposed LCRI for examples of public education and
community engagement supporting service line replacement efforts).
Furthermore, the EPA has launched several technical assistance
programs specifically to assist with service line replacement,
including the Lead Service Line Replacement Accelerators and the GLO
Initiative. Since January 2023, the EPA partnered with 40 communities
across four States (Connecticut, New Jersey, Pennsylvania, and
Wisconsin) through the LSLR Accelerators pilot program to address
existing barriers and accelerate progress towards LSL identification
and replacement (USEPA, 2023m). The GLO Initiative takes the lessons
learned and best practices from the LSLR Accelerators program to expand
LSLR technical assistance to approximately 200 additional underserved
and disadvantaged communities (USEPA, 2024e). The EPA has also
published resources for developing and maintaining service line
inventories (USEPA, 2022c; USEPA, 2023n; USEPA, 2023o) and for planning
and conducting service line replacement (USEPA, 2023p). In addition to
the EPA resources, lessons learned, best practices, and other previous
experience documented and publicly shared by water utilities and
drinking water organizations will provide further resources for systems
as they manage mandatory service line replacement programs. The EPA is
aware of additional systems that have conducted or are beginning to
conduct their replacement programs (EDF, 2024), which will provide
further learning opportunities for other systems to develop and
optimize their service line replacement programs. Documents describing
lessons learned and advice for future systems, which have previously
been published (e.g., LSLR
[[Page 86468]]
Collaborative, Denver Water Lessons Learned; see the full list in the
final TSD (USEPA, 2024d)), are also expected to continue to evolve as
service line replacement programs continue. As another recently
announced example, the mayors of the cities of Chicago, IL, Milwaukee,
WI, and Detroit, MI, pledge through the Great Lakes Lead Partnership to
facilitate close, purposeful collaboration among mayors and water
utilities to surmount common challenges, highlight emerging best
practices, and replicate successes from city to city (City of Detroit,
2024). Furthermore, unprecedented funding is available from BIL and
other sources to support service line inventory and replacement efforts
(see section III.G of this preamble).
i. Additional Discussion of Technical Possibility
In the proposed LCRI's feasibility analysis, the EPA explicitly
assumed that the market would correct for any potential shortages in
labor, filters, or material for service line replacement, especially
because compliance with the mandatory replacement requirement would not
begin until three years after the compliance date. The EPA sought
comment on this assumption and the ability of the market to respond to
the service line replacement requirements. Some commenters, including
relevant labor and industry associations, agree that the market can
meet the demand for the potential shortages, while other commenters
expressed concern about potential shortages when conducting required
replacement simultaneously with other systems. While these commenters
listed anecdotal examples of the amount of time it currently takes to
receive various materials, these data do not show that a 10-year
deadline will be infeasible for a large volume of systems, as they are
reflecting the conditions within a single system at the one point in
time, rather than the conditions at a national level at the LCRI
compliance date (i.e., 2027), when mandatory service line replacement
must begin. Based on the record and comments as summarized below, the
EPA disagrees that nationwide service line replacement in 10 years
would be challenged or rendered infeasible by supply chain delays,
labor shortages, and competition for workers and materials.
As discussed in the proposed LCRI, simultaneous full service line
replacement over a large geographic area remains feasible (i.e., no
market or labor shortages), as demonstrated by the fact that LSLR has
been simultaneously conducted in several places in recent years (e.g.,
Flint, MI, Newark, NJ, Denver, CO, etc.). Furthermore, four States
(Illinois, Michigan, New Jersey, Rhode Island) require systems to
conduct mandatory service line replacement are all currently in effect.
These States also have relatively high lead and GRR service line
prevalence compared to other States (see section V.B.2 of the proposed
preamble (88 FR 84912, USEPA, 2023a)), which suggests that these States
also expect full service line replacement to be successfully
implemented over a large geographic area simultaneously.
Additionally, commenters were concerned about the ability of the
market to meet the demands of full service line replacement, including
concerns about the availability of filters, contractors and plumbers,
and replacement materials. Some commenters also raised concerns about
the potential for increased prices or ``price gouging'' due to higher
demand and competition. Some commenters requested that the EPA
undertake a comprehensive assessment of labor and material markets. The
record continues to support the agency's assumption at proposal that
the market will correct for any potential shortages in the three years
before the LCRI compliance date. The EPA obtained confirmatory data
with respect to the share of the copper and PVC pipe supply as well as
the share of domestic copper and PVC production needed to achieve full
replacement to better understand the potential impacts on the
availability of these materials. Assuming that all water systems
replace lines with a single material (which represents the upper bound
because systems may utilize a combination of materials), the EPA
estimates that full service line replacement will require 35.61 million
pounds of copper, or 2.06 percent of the average annual share of
domestic production, and 57.09 million pounds of PVC, or 0.22 percent
of the average annual share of domestic production (ICF, 2024a).
Accounting for the proportions of different materials used in service
line replacement, the EPA estimates that the share of domestic
production necessary to meet the estimated raw material demands is 0.84
percent for copper and 0.07 percent for PVC (Lee & Meehan, 2017). Thus,
the LCRI should not create significant raw material demands, and the
market should be able to adjust to meet the modest increase in demand
created by the LCRI. Three companies from the copper industry affirmed
their readiness to ensure a seamless supply of copper for the increased
demands from the LCRI and mentioned taking various steps to upgrade
operations, hiring new personnel, adding shifts to their existing
infrastructure, and investing in a copper tube mill (Copper Development
Association Inc. (CDA), 2024a). Additionally, the Copper Development
Association, the market development, engineering and information
services arm of the copper industry, stated that there is sufficient
domestic supply of copper to meet the need for replacing lead pipes
(CDA, 2024b).
One commenter from a State with many rural communities expressed
their concern that the filter market would be dominated by larger
cities and States, making filters harder for smaller systems to access
and more expensive. To address these comments, the EPA obtained the
confirmatory data with respect to filter availability to meet all of
the filter provisions of the final rule (i.e., multiple lead action
level exceedances, full or partial service line replacements, certain
service line disturbances, small system flexibility). The data from
multiple sources confirm the EPA's assumption that the filter market
will sufficiently expand to meet these needs over the next 10 years.
For example, one source estimates the market will reach $120.38 billion
by 2032 with a compound annual growth rate of 10.79 percent and is
projected to nearly triple in size in the next decade (Razgaitis,
2023). The EPA also examined filter usage in Denver Water's Lead
Reduction Program (LRP) to assess if they encountered filter supply
issues during LRP implementation. The full program began in 2020 with
nearly 100,000 households participating and a calculated filter
adoption rate of 80 percent (Harvard School of Public Health, 2024).
Surveys from Denver LRP indicate that 93 percent of households filter
their drinking water using filters from Denver Water with 68 percent
report using filtered water for cooking (Harvard School of Public
Health, 2024). Additionally, the EPA found that other States are
turning to filters to reduce levels of lead in drinking water. For
example, Michigan's Filter First law requires schools and child centers
to develop a drinking water management plan, install filters, and test
filtered water for lead. These State laws assume the market will be
able to meet the demands of the program. Finally, two commenters, one
representing a filter manufacturer and the other representing the
point-of-entry and point-of-use filter manufacturing industry, both
indicated their expectations that the industry will be able to meet the
increased filter demand resulting from the LCRI (Docket
[[Page 86469]]
ID EPA-HQ-OW-2022-0801, Comment submitted by the Brita brand and The
Clorox Company, Comment submitted by Water Quality Association (WQA)).
Some commenters had concerns about the availability of workers to
conduct service line replacement within 10 years while other commenters
agreed that the labor market can meet the demand created by the
mandatory service line replacement provisions. One commenter,
representing a trade union, highlighted its numerous training programs
and affirmed its capacity to develop the workforce to complete LSLR
within the next 10 years (Laborers' International Union of North
America (LIUNA), 2024). In the proposed LCRI, the EPA had noted its
assumption that the three years before water systems must begin to
conduct service line replacement would give the market time to adjust
and correct for any potential labor shortages. While some commenters
noted that the construction and infrastructure sectors reported
backlogs for eight to nine months in 2023, those backlogs are not a
measure of hardship, as backlogs do not suggest that construction firms
are behind schedule or having difficulties completing contracted jobs,
but rather there is consistent work indicating a safer investment for
building capacity. The greater the duration of the backlog, ``the more
comfortable contractors can be with their near-term economic
circumstances'' (Associated Builders and Contractors, 2023). In
response to comments and to evaluate whether the EPA's assumption
regarding the market is correct, the EPA reviewed data such as the
projected job growth in labor markets that are relevant to service line
replacement to evaluate the demand created by the final rule's service
line replacement requirements, including plumbers and pipefitters, as
well as operators of heavy equipment. A study from the United
Association of Union Plumbers and Pipefitters in partnership with the
BW Research Partnership for E2 concluded that lead pipe replacement
programs would create an estimated 26,900 construction jobs per year in
10 years, plus additional jobs through supply chain effects. More
specifically, the study estimates that 10 percent of the newly created
jobs would be in pipefitting occupations and 7.2 percent would be in
pipelaying/pipefitting occupations (E2, 2021). Those findings exceed
the EPA estimate using anecdotal evidence that it will take the full-
time equivalent of 17,000 crews to replace 8.8 million lead and GRR
service lines per year with replacement efforts involving approximately
3.6 percent of the pipe worker labor force and 3.5 percent of the
excavator workforce (ICF, 2024b). The studies determining the
percentage of the workforce necessary to meet the LCRI are reinforced
by activities around the country. Unions--the Laborers' International
Union of North America, the United Association of Plumbers and
Pipefitters, and the International Union of Operating Engineers to name
three--are already training workers in LSLR and putting them to work
across the country (The White House, 2024a). Additionally, the White
House has created nine White House Workforce Hub cities to train and
connect American workers to jobs created by the BIL funding and other
Federal investments (The White House, 2024b). The EPA documented in the
proposed rule two water systems (Detroit, MI, and Newark, NJ) and one
State (Rhode Island) that have planned or already implemented
apprenticeship or training programs to increase contractor capacity
during upcoming LSLR projects (see section V.B.2 of the proposed
preamble (88 FR 84912, USEPA, 2023a)). These studies and activities
demonstrate that the skilled workforce is sufficiently robust to meet
the demands of the final LCRI's service line replacement requirement
and will be supplemented by additional job training.
C. Service Line Replacement Plan
1. Rationale and Proposed LCRI Revisions
The service line replacement plan is a critical element of the
LCRI. A well-developed plan can facilitate timely compliance with the
mandatory service line replacement requirements and, therefore, provide
greater public health protection and replacement program efficiency.
Under the 2021 LCRR, the EPA required systems to submit an LSLR plan by
October 16, 2024, so water systems could (1) quickly commence a
systemwide replacement program following a lead trigger level or action
level exceedance and (2) be ready to complete customer-initiated LSLR
requests regardless of their 90th percentile lead level. The LSLR plan
requirements promulgated in the 2021 LCRR required all water systems
with at least one lead, GRR, or unknown service line to create and
submit to the State a replacement plan containing sufficiently detailed
information on six elements: a strategy for determining the material of
unknown service lines, a procedure for conducting LSLR, an approach to
informing customers before replacement, a flushing procedure for
customers, a prioritization plan (based on, but not limited to, known
LSLs and LSLR for communities of concern and populations most sensitive
to the effects of lead), and a funding strategy. Systems serving more
than 10,000 persons must also include in the plan a recommended LSLR
goal-based rate in the event of a lead trigger level exceedance.
For the LCRI, the EPA proposed to expand the 2021 LCRR LSLR plan to
require two additional elements. For the first new element, systems
must develop a communication strategy to inform residential and non-
residential customers (property owners) and consumers (e.g., tenants)
served by the system about the service line replacement plan and
program. This proposed plan element assures that both the consumers and
owners of rental properties are aware of the water system's program to
replace lead and GRR service lines and ensures that both tenants and
their landlords have information about the program. The second new
element requires the identification of any laws, regulations, and/or
water tariff agreements that affect the system's ability to gain access
to conduct full service line replacements, such as any requirements for
customer consent or customer cost-sharing. In the proposal, the EPA
explained that this element would support and encourage water systems
to comply with the requirement to conduct full service line
replacement, especially given that the water system's self-identified
elements of control determine whether the water system must conduct
replacement. The requirement to make these potential access barriers
public would also facilitate public engagement on the effect of State
or local laws or water tariff agreements on a system's access for full
service line replacement.
In addition to the new elements, the proposed LCRI modified the
plan element requiring a funding strategy to specifically require
systems to describe whether and how the system intends to assist
customers who are unable to pay for replacement where the water system
intends to charge customers for the cost of all or any portion of the
replacement because it is authorized or required to do so under State
or local law or water tariff agreement. In addition, the EPA proposed
to require that the plan be made available to the public, and systems
serving more than 50,000 persons must make the plan publicly available
online. Finally, the EPA proposed to remove the element for systems
serving more than 10,000 people to recommend a goal-based replacement
rate because the agency proposed to eliminate the lead trigger level.
[[Page 86470]]
The proposed rule did not require water systems to update their
plan, however the EPA sought comment on a requirement for systems to
update their service line replacement plans if there are any changes,
such as changes to laws and policies applicable to full service line
replacement. The public accessibility requirements, together with the
plan's additional and revised elements, were proposed to ensure that
property owners and consumers have information about the water system's
plans for conducting service line replacements, including any
requirements for customer consent or cost-sharing.
2. Summary of Public Comments and the EPA's Response
Some commenters suggested the EPA require more specific
prioritization criteria for service line replacement in the plan. Some
commenters specifically recommended that water systems be required to
prioritize replacement in accordance with health and socioeconomic
indicators, and at hospitals, nursing homes, child care facilities,
schools, and for disadvantaged consumers. Some commenters also
suggested that the EPA should provide guidance for developing service
line replacement plans, including a template, and provide technical
assistance to help systems design and implement their prioritization
strategies. The EPA disagrees that the national requirements for the
replacement plan should be required to include more specific
prioritization criteria because every community is different, and each
community is better positioned to identify the best way to prioritize
service line replacement. For example, one water system may serve a
community with housing that also contains lead paint, so the water
system could prioritize replacement in that community to reduce
disparities in potential lead exposures. The EPA encourages water
systems to engage with their citizens when devising prioritization
strategies to better understand their communities' needs. The final
LCRI aims to advance equitable service line replacement by enhancing
transparency between the water system and the community on the
practices adopted and progress made towards replacing all lead and GRR
service lines under the control of the system, e.g., by requiring the
service line inventory and plan to be made publicly accessible or
available and by adding or revising elements in the plan. Making the
replacement plan available to the public will increase community
awareness of the prioritization strategy, the laws affecting the
system's ability to gain access to conduct full service line
replacement, and the replacement program. Publication of the service
line inventory will ensure water systems can be held accountable by the
community for replacing lead and GRR service lines in accordance with
their plans.
Some commenters recommended that water systems with lead connectors
or connectors of unknown material should be required to develop a
replacement plan (even if the system does not have any lead, GRR, or
unknown service lines) that includes a strategy to identify and replace
them. The EPA disagrees with these comments because the plan is
intended to support the systems' compliance with the requirements to
replace all lead and GRR service lines, and there is no requirement in
the LCRI for systems to establish a program to locate and replace lead
connectors other than those that would be replaced with a lead or GRR
service line, or connectors that are otherwise encountered by the
system.
Other commenters agreed with the EPA's proposed requirement that
systems identify State and local laws, and water tariff agreements that
affect a water systems ability to gain access to conduct full service
line replacement because they may increase transparency around a
utility's processes and potentially enhancing public discussion around
changes to align laws and policies to support expanded access and swift
and equitable service line replacement. Commenters also affirmed the
EPA's expectation that this requirement could help resolve confusion
and lack of clarity around what, if any, impact such State and local
provisions actually have on access and financing issues. The final LCRI
requires systems to include the citations to the specific laws,
regulations, or water tariff agreement provisions. In some cases, this
exercise may help systems realize that they already have access to the
full service line for replacement. Moreover, making this information
publicly available may facilitate public engagement on the effect of
these laws and water tariff agreements on a system's access for full
service line replacement. The EPA has included examples of systems,
localities, and States, such as the 2024 act passed by the State of
Indiana (Indiana General Assembly, 2024), that have successfully
changed existing laws or agreements to overcome access barriers in
section IV.B.3 of this preamble.
The EPA received comments about lead-lined galvanized service
lines, with some recommending that discovery of one lead-lined
galvanized service line should prompt the system to assume all
galvanized service lines are lead-lined. The EPA agrees that lead-lined
galvanized service lines can contribute significant amounts of lead in
drinking water, and, as the agency previously stated in the 2021 LCRR
and proposed LCRI, these service lines are covered by the definition of
an LSL (USEPA, 2022c; USEPA, 2023a) because a portion of the service
line is made of lead. The EPA disagrees that discovery of one lead-
lined galvanized line should, as some commenters recommended, require
the system to categorize all galvanized service lines in the
distribution system as lead-lined. The EPA found only limited
information about the prevalence of these service lines nationwide, and
commenters did not provide data to support the assumption that if one
lead-lined galvanized service line is discovered, all galvanized
service lines in the system are lead-lined. To address the possibility
that systems may have (or find in the future) lead-lined galvanized
service lines, the EPA is finalizing a new requirement for systems that
identify any lead-lined galvanized service lines to include in their
service line replacement plan a strategy to determine the extent of the
use of lead-lined galvanized service lines in the distribution system
(see section IV.D.1.b.iv of this preamble). If a water system is aware
of their presence in the distribution system, this plan requirement can
help systems understand how widespread their use may be.
Under the proposed LCRI, the EPA sought comment on whether the
service line replacement plan should be updated if there are any
changes, such as changes to laws and policies applicable to full
service line replacement. Some commenters supported a requirement to
update the plan, noting that there may be changes that impact full
service line replacement. One commenter stated that updates to the plan
should be required no sooner than the next service line inventory
update or no sooner than 12 months after the previous submission,
whichever is longer. Other commenters stated that systems should be
required to update the plan if there are changes to applicable legal or
contractual provisions or the service line inventory. The EPA agrees
that water systems should update their plans to accurately reflect the
current service line replacement plan, including any applicable laws,
regulations, or water tariff agreements. Maintaining an up-to-date
service line replacement plan will facilitate customer and consumer
[[Page 86471]]
engagement and cooperation with the system's service line replacement
program as well as State oversight.
The EPA is also revising the plan requirements for water systems
that are eligible for and plan to use a deferred deadline in response
to comments that that plans may need to be updated for changes in
circumstances. The system and the State will regularly evaluate the
system's use of the deferred deadline and associated replacement rate,
which may change over time as conditions change. These systems must
document in the plan (1) the basis for the system's eligibility for a
deferred deadline, showing that 10 percent of the total number know
lead and GRR service lines in the replacement pool exceeds 39 annual
replacements per 1,000 service connections and any additional
supporting information, (2) the fastest feasible replacement rate and
associated deferred deadline that the system has identified in which it
can complete its replacement program, which may not to be less than 39
annual replacements per 1,000 service connections, and (3) information
supporting the system's determination that an earlier deadline and
faster rate than 39 annual replacements per 1,000 service connections
is not feasible. The EPA expects this information may change as systems
identify unknown service lines and update their replacement pools,
which may affect the total number of known lead and GRR service lines
and the annual number of replacements required. These requirements will
provide the State with information necessary for its determination of
the system's ability to replace service lines at a faster rate;
however, the State may also require the system to provide additional
information for the State to consider in its assessment of the
continued use of a deferred deadline and the fastest feasible
replacement rate. Requiring systems to include information about their
deferred deadlines in the replacement plan along with the system's
justification as to why it thinks one is necessary also improves
transparency between the system and the public by explaining the
reasons why the system may take longer than 10 years to replace all
lead and GRR service lines.
Some commenters recommended that the EPA require more systems to
make their service line replacement plans publicly available online by
reducing the threshold to systems serving greater than 10,000 persons
rather than systems serving more than 50,000 persons, as proposed. One
commenter recommended that there should be no threshold and all systems
should publish their plans online. The EPA disagrees with this
suggestion because the EPA is concerned about the feasibility and
ability of systems serving 50,000 people or fewer to maintain and
update websites. In addition, the threshold is consistent with the
recently promulgated requirement for systems serving more than 50,000
persons to make the Consumer Confidence Report available online (USEPA,
2024c).
3. Final Rule Requirements
Under the final rule, all water systems with at least one lead,
GRR, or unknown service line in their inventory must create a service
line replacement plan by the LCRI compliance date. It is important that
systems have developed a comprehensive and detailed plan by the
compliance date so that systems have planned for important aspects of
their service line replacement program and can implement their program
accordingly and begin replacing lead and GRR service lines upon the
compliance date if not sooner. The EPA is retaining most of the service
line replacement plan elements that were proposed. This includes the
requirements for water systems to include in their service line
replacement plans: (1) A description of a strategy to identify the
material of all unknown service lines in the inventory; (2) a standard
operating procedure for conducting full service line replacement (e.g.,
techniques to replace service lines, plans for procurement of
materials, or plans for utilizing contractors); (3) a communication
strategy to inform consumers and customers before a full or partial
lead or GRR service line replacement; (4) a procedure for consumers and
customers to flush service lines and premise plumbing of particulate
lead following disturbance of a lead, GRR, or unknown service line
following full or partial replacement of a lead or GRR service line;
(5) a funding strategy for conducting service line replacement; (6) a
communication strategy to inform residential and non-residential
customers and consumers (e.g., property owners, renters, and tenants)
served by the water system about the service line replacement plan and
program; and (7) identification of any laws, regulations, and water
tariff agreements that affect the water system's ability to gain access
to conduct full lead and GRR service line replacement, including the
citation to the specific laws, regulations, or water tariff agreement
provisions.
The final LCRI clarified the plan element requiring systems to
create a prioritization strategy. The final rule clarifies the
prioritization strategy must be based on factors including but not
limited to known lead and GRR service lines and community-specific
factors, such as populations disproportionately impacted by lead and
populations most sensitive to the effects of lead. This clarification
does not change the intent of the proposed LCRI requirement, but
instead clarifies the plan element to include community-specific
factors. Every community is different, and each community is better
positioned to identify the best way to prioritize service line
replacement.
The final LCRI also includes new plan requirements for any water
system that identifies any lead-lined galvanized service lines in the
development of the service line inventory (the baseline inventory or
any update). One requirement consists of developing a strategy to
determine the extent of the use of lead-lined galvanized service lines
in distribution system and categorizing (or recategorize if they were
categorized as non-lead) the lines as LSLs for mandatory service line
replacement. Lead-lined galvanized service lines contain a lead inner
lining and are, therefore, considered LSLs in the final rule. If a
water system is aware of their presence in the distribution system, it
is important to understand how widespread their use may be to
accurately identify all LSLs in the distribution system.
For a water system that is eligible for and plans to use a deferred
deadline, the plan must include the following items. First, the system
must include documentation of the system's eligibility for a deferred
deadline that shows that 10 percent of the total number of known lead
and galvanized requiring replacement service lines in the replacement
pool exceeds 39 annual replacements per 1,000 service connections.
Second, the system must include documentation detailing mandatory
service line replacement under a deferred deadline at the fastest rate
that system identifies as feasible, including the annual number of
replacements required, the length of time (in years and months), the
date of completion, and the associated cumulative average replacement
rate the system considers to be the fastest feasible but no slower than
the replacement rate corresponding to 39 annual replacements per 1,000
service connections, as well as the annual number of replacements
required, the length of time (in years and months), and the date of
completion for this deadline and replacement rate. Third, the system
must include information supporting the system's determination that
replacing lead and GRR service
[[Page 86472]]
lines at a shorter deadline and faster rate than identified in the plan
is not feasible.
The final LCRI also requires water systems to annually update the
service line replacement plan to reflect any new or updated
information, including any changes that affect the system's ability to
conduct mandatory full service line replacement (e.g., new State or
local laws and water tariff agreements, a new strategy for identifying
the material of unknown service lines based on inventory validation, or
lessons learned from risk communication efforts in the community), and
to submit these updates to the State annually. If the plan does not
need to be updated, the water system may then certify to the State that
the plan has no updates. Water systems may cease annual certifications
to the State when there are no lead, GRR, and unknown service lines
left in the inventory.
Systems with deferred deadlines, in addition to annual updates,
must every three years after the initial submission of the plan, update
their replacement plan with the latest: (1) Documentation of the
system's eligibility for a deferred deadline; (2) documentation
detailing the system's identified replacement rate for completing
mandatory service line replacement under a deferred deadline; and (3)
information supporting the system's determination that replacing lead
and GRR service lines at a shorter deadline and faster rate than
documented in the plan is not feasible (see section IV.B.8 of this
preamble for more information on deferred deadlines). The State will
then review these updates and determine by the end of the fifth program
year, and every three program years thereafter, if a shorter deadline
and faster rate are feasible. The State must also report to the EPA the
system's expected completion date and an explanation for why this date
is the fastest feasible.
Under the final LCRI, water systems are required to make their plan
publicly accessible, and systems serving more than 50,000 persons must
make the plan available online. The publicly accessible plan must also
reflect any updates no later than the deadline to submit the updated
plan to the State.
D. Service Line Inventory
1. Baseline Inventory and General Inventory Requirements
a. Rationale and Proposed LCRI Requirement
A comprehensive and accurate service line inventory is critical to
a water system's ability to inform consumers that may be affected by
lead contamination in their drinking water and to comply with the
requirements in this rule to identify the material of unknown service
lines and replace lead and GRR service lines by a specified deadline.
The service line inventory provides the foundation for a water system
to address a significant source of lead in drinking water, lead and GRR
service lines, and strengthen public health protection. Inventories are
also critical for developing tap sampling plans and conducting targeted
public education. Inventories can help water systems and consumers
(persons served at a service connection) determine the source of high
lead levels in drinking water at a home or building and the possible
solutions for reducing exposure to lead.
Inventories are critical to the EPA's administration of targeted
funding and financial assistance programs, such as the WIIN Act lead
remediation grants, low- to no-cost financing through the DWSRF,
including supplemental funding from the BIL, and low-cost financing
through the WIFIA program (see section III.G of this preamble for more
information on the BIL and other financial resources). In America's
Water Infrastructure Act of 2018, Congress recognized the importance of
increasing the understanding about the extent of LSLs in the nation by
mandating the EPA to include an assessment of costs to replace LSLs in
the 7th Drinking Water Infrastructure Needs Survey and Assessment
(referred to as the Needs Survey) to inform the distribution of DWSRF
BIL LSL funding to States.
The proposed LCRI built upon the LSL inventory requirements in the
2021 LCRR. Under the 2021 LCRR, all water systems must develop an
initial inventory of service lines using available records, make it
publicly accessible or available, and submit it to the State by October
16, 2024. The EPA did not propose to change the LCRR initial inventory
compliance date to ensure that systems make continued progress towards
inventory development. However, the EPA proposed in the LCRI to require
all water systems to update the LCRR initial inventory with information
about connector materials and locations along with any new information
on service lines by the rule compliance date (three years after
promulgation). The updated initial inventory, referred to as the
baseline inventory, aims to better position water systems to
immediately begin mandatory full service line replacement upon the LCRI
compliance date and to better protect public health by improving
transparency and consumer awareness of where they are served by service
lines and connectors that contain lead.
In the 2021 LCRR, the EPA determined that it is practical and
feasible for water systems to prepare an initial inventory by October
16, 2024, and update it because the rule did not impose a deadline on
water systems to determine the composition of every service line
categorized as lead status unknown or ``unknown'' (USEPA, 2020e). The
EPA also considers submission of the baseline inventory by the LCRI
compliance date to be feasible because: (1) Systems are not required to
identify all unknown service lines until the mandatory service line
replacement deadline, (2) systems have had opportunities to gather
information about their service lines to meet the requirements of the
1991 LCR, including conducting materials evaluations for tap sampling
and for systems that exceeded the LCR's lead action level, where
systems identified the number of LSLs, (3) several States have already
required water systems to create service line inventories, and (4)
systems are required to review available records and submit an LCRR
initial inventory by October 16, 2024.
For the LCRI, the EPA proposed to also require water systems to
include connector materials in their service line inventories. The EPA
proposed to require systems to conduct a review of specified sources
(e.g., construction and plumbing codes, records, and other
documentation) on connectors, similar to the requirement for systems to
review these specified sources for service line material information
under the 2021 LCRR, and to identify and track connector material when
encountered during normal operations and when lead connectors are
replaced. The EPA proposed to require the inclusion of lead connectors
in the inventory because it provides additional information to the
system and public on potential sources of lead in drinking water, which
could prompt actions to reduce lead exposure and provide systems with
information to consider during Distribution System and Site Assessment
(DSSA). As stated in the ``Guidance for Developing and Maintaining a
Service Line Inventory'' (or the LCRR Inventory Guidance) document,
this information would allow systems to track and manage this potential
source of lead, improve asset management, and increase transparency
with consumers (USEPA, 2022c). As stated in the proposal, tracking the
locations of connectors, including replaced lead connectors, can
provide additional information relevant to assess potential health
risks, considering lead
[[Page 86473]]
from an upstream source can adsorb onto galvanized pipe over time.
b. Summary of Public Comments and the EPA's Response
i. Baseline Inventory
The EPA received many comments on the inclusion of lead connectors
in the baseline inventory and review of specified sources for connector
materials. Some commenters supported the proposed requirement because
connectors can be a source of lead contamination. One State commenter
noted that the inclusion of these requirements is consistent with that
State's regulatory approach regarding connectors and that the deadline
to submit the LCRI baseline inventory three years after rule
promulgation is ample time for systems to check their records. Some
commenters recommended stricter requirements, such as physically
verifying each connector of unknown material or ``never lead''
connector. Other commenters disagreed with the proposed requirement for
various reasons, including (1) the value is not clear for inventorying
connectors when the proposed rule already requires water systems to
remove lead connectors upon encounter, (2) the burden and inefficiency
to require a review of specified sources for connectors when systems
have already begun or completed a review for service lines, (3) the
burden it would impose on States to send out new inventory templates to
all their systems, (4) the limited public health benefit, and (5) the
lack of available records for connectors. Many commenters stated that
they were under the impression that the EPA would not change the 2021
LCRR inventory requirements in the LCRI. Commenters also requested the
inclusion of connectors to be optional to align the proposed
requirements with past inventorying requirements. Some commenters that
opposed the requirement to conduct a review of specified sources for
connector materials generally were, however, in support of identifying
connector materials and locations when encountered during normal
operations. Lastly, commenters asked the EPA to specify which
connectors along the service line must be included in the inventory,
how many connectors needed to be reported along the line, and if
multiple connectors along the line needed to have unique
identification.
The EPA acknowledges the burden associated with including a review
of specified sources for connector materials and locations in the LCRI
baseline inventory. The EPA also understands that some systems may lack
records on connector materials. However, the agency disagrees that it
is not practical or feasible to conduct a review of specified sources
and include information on connector materials based on those sources
in the LCRI baseline inventory. Systems in some States (i.e., Illinois,
Michigan, and New Jersey) have already begun inventorying lead
connectors because lead connectors are included in the State
definitions of an LSL. The sources that systems must review are clearly
stated in the final rule. Systems also do not need to re-review sources
of service lines that they have already reviewed if they know that
connector materials were not denoted in them. The EPA also determined
that it is practical and feasible for water systems to prepare the
baseline inventory by the rule compliance date (three years after rule
promulgation; see section IV.D.1.a of this preamble for more
information).
The EPA also disagrees that including connectors in the inventory
provides limited benefits to public health. Inventoried lead connectors
can provide additional information to the public on potential sources
of lead in drinking water, both from the lead connector itself and from
lead that might have adsorbed onto galvanized service lines or premise
plumbing that are currently or were previously downstream of the
connector. Although lead connectors are expected to contribute less to
lead in drinking water when compared to LSLs because they are shorter
in length, lead connectors are still a source of lead that may
contribute to lead in drinking water. Commenters did not provide
information or data to support concluding that it is not feasible for
systems to conduct a review of applicable sources for connectors and to
track connectors during normal operations. Lastly, all connectors
identified along a service line must be included in the inventory. The
LCRR Inventory Guidance (USEPA, 2022c) provides recommendations on how
to uniquely label service lines at the same address, which may be
applied to a configuration of multiple connectors along the same
service line and, therefore, the same address.
The EPA received comments on the proposed categories for connector
materials in the baseline inventory. Commenters asked for the
``replaced lead'' category to be made optional due to the increase in
workload to identify where lead connectors have been replaced in the
past, to focus time and resources on higher priority inventory and
replacement activities, the lack of clarity on the intent for including
the category, and the potential for customer confusion due to the lack
of clarity on what actions, if any, should be taken based on this
information. One commenter stated that the category is inconsistent
with categories for service lines, which do not keep track of where
LSLs have been replaced. Another commenter stated that, if an entire
service line has been replaced, there is no reason to ``alarm the
public'' by noting the connectors that were previously made of lead.
The same commenter was also confused as to why the categories did not
mimic the service line categories more (e.g., lead, galvanized, non-
lead, or unknown). Other commenters found the distinction between
certain categories to be unclear, noting an example of copper service
lines falling under the ``never lead'' and ``no connector present''
categories because they do not have connectors, and asked for
clarification on locations where there are no records available. One
commenter stated all connector categorizations were unnecessary,
whereas another commenter supported the connector categorizations as
proposed.
The agency agrees with commenters who raised concerns about
tracking replaced lead connectors when the entire service line has been
replaced as well as the concerns about potential for customer confusion
of the ``replaced lead'' category and what actions consumers should
take, consistency with the service line material categories, and
commenters' confusion on inventorying connectors based on the proposed
rule categorizations. The categories for service lines did not include
replaced LSLs or replaced GRR service lines, which was inconsistent
with the categories for connectors that include replaced lead.
Therefore, the agency is revising the final LCRI to remove the
``replaced lead'' and ``never lead'' connector material categories and
add a new ``non-lead'' category. Water systems would categorize
replaced lead connectors and never lead connectors as ``non-lead,'' and
they would categorize sites where the lead connector was removed and no
non-lead connector replaced it as ``no connector present.'' These
finalized requirements simplify and streamline the proposed
requirements by removing the separate category for replaced lead. The
EPA encourages water systems include additional subcategories for non-
lead connectors or sites with no connectors present, such as whether a
lead connector was replaced at or removed
[[Page 86474]]
from the location. Locations of where lead connectors were previously
replaced may provide the water system with additional information,
particularly when investigating the cause of elevated lead under the
DSSA requirements. This additional information could also be useful to
consumers, such as if they have a downstream galvanized service line or
downstream galvanized premise plumbing that might have adsorbed lead
particulates released from the upstream lead connector. Additionally,
water systems improving their water infrastructure by fully replacing
old, galvanized service lines that are downstream of a known lead
connector or replaced lead connector are eligible for BIL DWSRF LSLR
capitalization grants to conduct these improvements (USEPA, 2022d). See
section IV.D.1.c of this preamble for more information on the final
LCRI requirements for connector material categorization.
ii. Inventory All Service Lines
Under the final LCRI, as proposed, all CWSs and non-transient non-
community water systems (NTNCWSs) must update their LCRR initial
inventories to create a baseline inventory of all service lines in the
distribution system. No service line is to be excluded, regardless of
water system size, system characteristics, service line ownership,
actual or intended use of the service line, historical tap sampling
results, or service line installation date. The inventory requirements
include all service lines connected to the distribution system
including service lines with no known potable applications, such as
those designated for fire suppression or emergencies, as well as
service lines connected to vacant or abandoned buildings even if the
buildings are unoccupied and water service is turned off.
The EPA received comments stating that the agency should not
require water systems to inventory service lines with non-potable
applications (i.e., fire suppression lines), service lines at abandoned
properties, and service lines installed after lead bans became
effective, such as Federal, State, or local bans. Commenters stated
that fire suppression lines are typically larger than lead or GRR
service lines and are used for non-potable purposes. One commenter
stated that the limited resources available to water systems would be
better directed towards activities with greater benefit to public
health because inventorying fire suppression lines provides limited
benefit to public health.
The EPA disagrees with commenters that suggested service lines with
non-potable applications should be excluded from the inventory
requirements. A requirement to inventory only those lines that are
currently being used for potable purposes or may be used for potable
purposes is administratively unworkable. Moreover, it could expose
consumers to lead in drinking water from lead or GRR service lines
because the water system is not aware of all actual uses of the water
service by consumers, which could include potable uses, e.g.,
industrial workers potentially drinking water at the facility or
agricultural workers filling up water bottles from a close by tap that
is primarily used for irrigation. Service lines, as defined by the
rule, are used for the distribution of potable water; therefore,
regardless of their current or intended use, they are capable of being
used for potable purposes. The possibility that the potable water may
in fact be used exclusively for non-potable applications at some point
in time does not preclude the possibility that the potable water could
in fact be used for human consumption or that these service lines could
be repurposed in the future for potable uses. For example, these
service lines may be repurposed for potable use during a natural
disaster or other major emergency or may be repurposed for new
residential use. Furthermore, the EPA is concerned that any exclusion
of service lines to LCRI requirements based on anticipated or intended
use could erroneously exclude some service lines from other LCRI
requirements (e.g., service line replacement, public education, and tap
sampling). The final rule similarly does not exclude service lines
connected to abandoned or vacant properties from the service line
inventory because of the potential for these sites to be occupied by
consumers in the future. An NPDWR provision that applies to only where
the water is actually used for human consumption is administratively
unworkable, difficult to implement, and would introduce unnecessary
complexity into the rule, which would run counter to the EPA's
commitment to simplifying the rule. By including all service lines in
the inventory, water systems can avoid these potential harms to public
health.
The EPA received comments stating that the agency should not
require water systems to inventory service lines on private property.
Commenters also asked whether water systems must inventory service
lines downstream of a master meter (also called, ``mass meter'') or
other single point of connection. Commenters stated that CWSs should
not be responsible for inventorying and taking subsequent actions for
what they characterize as distribution systems that are maintained by
someone other than the water system and ``only connected to the water
system by virtue of the sale of water through a mass meter.''
Commenters noted that the definition of a service line may create a
responsibility for buildings on a college campus, manufactured housing
communities, apartment complexes, etc., where the system does not have
the authority, control, or responsibility beyond the connection point.
Commenters suggested that the regulated system should not be burdened
by these groups of connections beyond a master meter, which they
implicitly assume are separate and/or unregulated PWSs.
The EPA disagrees with commenters that service lines on private
property should not be inventoried. Therefore, the final rule, like the
2021 LCRR, requires water systems to include in their inventory all
service lines that are connected to the distribution system, regardless
of ownership. Because all service lines are connected to the PWS's
distribution system, they are accessible at that juncture to the PWS in
order to allow for identification. If the service line is connected to
the distribution system, then the water system should be aware of its
composition in order to comply with the requirements in the rule to
provide public education to persons served by lead and GRR service
lines and to replace these lines if they are under the control of the
system. Under the 1991 LCR, systems have been able to identify service
line materials even where the service lines traverse private property
to comply with the tap sampling and service line replacement
requirements, and water systems have been developing an inventory of
all service lines connected to a distribution system, regardless of
ownership, to comply with the 2021 LCRR.
In some situations, an apartment complex, manufactured housing
community, or other multi-family or multi-unit entity will have a
master meter at the property line of the community. If these
communities are considered part of or within a CWS or NTNCWS service
area, then that water system is required to inventory all service
lines, even if they are beyond a master meter, just as the system is
required to inventory service lines between a water main and a single-
family residence regardless of the presence of a meter between the
water main and the building inlet. As stated above, the inventory must
include all service lines connected to the public
[[Page 86475]]
water distribution system. If the group of connections beyond a master
meter meets the definition of a PWS (i.e., serve at least 15 service
connections or 25 persons for 60 days per year) and receives some or
all of its finished water from one or more wholesale systems, it would
meet the EPA's definition of consecutive system (Sec. 141.2,
definition of ``consecutive system''). Consecutive systems that are
CWSs or NTNCWSs must complete and submit the LCRR initial inventory to
their State by October 16, 2024, and follow the requirements of the
LCRI. Some of these systems may meet the criteria that allows a system
to not comply with NPDWRs under SDWA section 1411 and Sec. 141.3. The
EPA encourages systems to contact their State for questions concerning
the application of these criteria to a specific system.
iii. Methods To Categorize and Identify Service Lines
The EPA received comments on methods for service line material
identification. Some commenters stated that water systems should be
able to use the age of the service line and the effective date of the
lead ban as well as statistical approaches (like interpolation and
predictive modelling) to categorize a service line as non-lead. These
and other commenters also stated that the EPA should prescribe
acceptable methods for service line identification along the entire
line and provide guidance on how to determine whether an emerging
method is acceptable. One commenter stated that every service line
should not need to be ``manually verified,'' and a different commenter
stated that, if a utility has identified 10 percent of their service
lines as non-lead, the rest of the service lines should be assumed to
be non-lead. Another commenter stated that NTNCWSs should be allowed to
use sampling as a preliminary assessment to determine the potential
presence of LSLs before using more invasive investigative methods that
may disrupt facility operations. Another commenter stated that unknown
service line identification should be risk-based (e.g., taking into
account the probability an LSL exists and identifying unknown lines
based on that probability).
The EPA disagrees that the agency should prescribe a list of
acceptable methods for service line identification beyond the list of
specified sources in the rule, which allows for the use of additional
sources and new technologies developed in the future to aid in
determining service line material if approved or required by the State.
The EPA proposed to require systems to review certain specified sources
described in Sec. 141.84(b)(2)(i) through (iii). Water systems may use
the age of the service line and the date of the applicable lead ban to
categorize service lines because such records fall under the sources of
information that systems must review as described in Sec.
141.84(b)(2)(ii). Water systems may use any sources that are or
previously have been approved or required by their States. While the
EPA disagrees with commenters that the rule should prescribe a list of
additional specific acceptable methods for identifying service line
materials at the national level, the EPA notes that it has published
the LCRR Inventory Guidance that discusses available methods that water
systems could use with State approval (USEPA, 2022c). The agency has
also published other guidance documents on developing and maintaining
service line inventories including a general fact sheet, inventory
template, and small entity compliance guidance (USEPA, 2023n; USEPA,
2023o).
The EPA disagrees that the inventory should include additional
``risk-based'' categorizations for unknown service lines (e.g., likely
lead versus unlikely lead). Water systems may choose to include this
type of information, and the EPA notes that, in Sec. 141.84(a)(3), the
definition of a lead status unknown service line indicates that water
systems can provide additional information regarding their unknown
service lines as long as the inventory clearly distinguishes unknown
lines from those where the categorization of the material is based on
the applicable sources of information specified in Sec. 141.84(b)(2)
(e.g., records, codes, inspections, and other documentation). There is
nothing in the rule that would preclude systems from providing
additional information in the inventory to describe the basis for the
categorization or the likelihood that the service line is made of lead.
For example, a system that adds subcategories, such as ``unknown--
likely lead'' and ``unknown--not likely lead,'' may use that
information to prioritize identifying service lines suspected or likely
to be lead. The EPA agrees that the LCRI should not preclude the
inclusion of this type of information, but the agency does not agree
that all water systems should be required to include this level of
categorization as it would add burden, make the rule more complex, and
could take time and resources away from identifying unknown service
lines.
iv. Lead-Lined Galvanized Service Lines
The EPA received comments about lead-lined galvanized service lines
in the proposed rule. Commenters recommended that the EPA require water
systems that identify lead-lined galvanized service lines in their
distribution system to categorize all galvanized lines in those systems
as lead-lined galvanized service lines and replace them. Because these
pipes can be difficult to detect and verify, these commenters said all
galvanized lines should be assumed to be lead to protect public health.
One commenter stated that the EPA should require water systems to check
for lead lining in galvanized service lines using specific technologies
and to update the EPA's guidance on service line inventories to
incorporate lessons learned from systems with lead-lined galvanized
service lines.
The EPA agrees that lead-lined galvanized service lines can
contribute significant amounts of lead in drinking water, and, as the
agency previously stated in the 2021 LCRR Inventory Guidance and
proposed LCRI, these service lines are covered by the definition of an
LSL (USEPA, 2022c; USEPA, 2023a) because a portion of the service line
is made of lead. Therefore, as clarified in the final LCRI, any lead-
lined pipe is required to be categorized as an LSL in the inventory and
is treated as an LSL for all other requirements in the rule, such as
mandatory service line replacement, public education, tap sample
tiering, and risk mitigation.
The EPA disagrees with the suggestion that water systems should be
required to categorize all galvanized service lines in the system as
LSLs if there is at least one lead-lined galvanized service line in the
distribution system. During the proposal and development of the final
rule, the EPA conducted a web search and found limited information
about the existence or past installation of lead-lined galvanized
service lines in about 30 communities in varying amounts, where the
majority of these communities are in the State of Massachusetts (City
of Rochester, n.d.; Klemick et al., 2024; MWRA, 2023; Sedimentary Ores,
n.d.). The information collected provided no data about the prevalence
of lead-lined galvanized service lines nationwide or whether these
lines, some of which were installed over a century ago, have already
been replaced. Additionally, commenters did not provide data to support
the assumption that, if one lead-lined galvanized service line is
found, then all galvanized lines in the system are lined with lead.
Because the EPA
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could not find nor was the agency provided with significant data on the
prevalence of lead-lined galvanized service lines nationwide, the
agency does not agree with requiring that all galvanized service lines
be designated as lined with lead based on the presence of one or a
small number of galvanized lines lined with lead in a system. States or
localities may use information specific to their region to better
inform this type of assumption. To address the possibility that systems
may have (or find in the future) lead-lined galvanized service lines,
the EPA is finalizing a new requirement for systems that identify any
lead-lined galvanized service lines to include in their service line
replacement plan a strategy to determine the extent of the use of lead-
lined galvanized service lines in the distribution system (see section
IV.C of this preamble). Water systems can check GRR service lines
currently or previously downstream of LSLs to evaluate whether they are
lined with lead when they are replaced under the mandatory service line
replacement program. The average service life of cast iron and ductile
iron pipe is 40 years (Florida Department of State, 2010), and any
lead-lined galvanized service lines are expected to be approximately a
minimum of 40 years old by the LCRI compliance date in late 2027
because installation of new lead-lined galvanized lines would have been
prohibited under section 1417 of SDWA, given the Federal lead ban that
was enacted in June 1986 and enforced through State and local plumbing
codes no later than June 1988. Additionally, as water systems replace
old, galvanized service lines (in addition to replacing GRR service
lines during mandatory replacement) over time and improve their water
infrastructure to reduce water loss, respond to service line breaks,
remediate low water pressure to buildings, and increase efficiency
across the system, they will have opportunities to check whether any
galvanized service lines are lined with lead and remove them from their
distribution system.
c. Final Rule Requirements
For the final LCRI, all water systems are required to develop a
baseline inventory that includes the material of each service line and
identified connector that is connected to the public water distribution
system regardless of ownership status and intended use. Water systems
must develop the baseline inventory by the LCRI compliance date in
Sec. 141.80(a) by updating the LCRR initial service line inventory
with any new information on service line materials from the applicable
sources described in Sec. 141.84(b)(2) and information on connector
materials identified through a review of specified sources. Systems are
required to review specified sources of information, such as
construction and plumbing codes, permits, and records, that describe
connector material and locations; and systems may use other sources of
information not listed if approved or required by the State. The system
may categorize a service line or connector as non-lead where the
service line is determined through an evidence-based record, method, or
technique to not be a lead or GRR service line. The final LCRI includes
a definition of newly regulated PWSs in Sec. 141.2, where these
systems are required to develop a baseline inventory on a schedule
established by the State that does not exceed three years from the date
the system is subject to NPDWRs (see section IV.O.3 of this preamble).
For the final LCRI, water systems must conduct a review of
specified sources on connector materials and include information on
connector materials in their service line inventories. Water systems
must identify connector materials as they are encountered during normal
operations and update the inventory to include the newly encountered
connector. Connector materials must be categorized in the inventory as
either lead, non-lead, unknown, or no connector present. The lead
category is for connectors made of lead. The unknown category is for
connectors that are identified through an available source, but the
material of the connector is not known or documented in the source.
Systems are not required to document connector materials and locations
where the system's review of specified sources and lack of encounters
during normal operations have not revealed whether there is or is not a
known connector at the location. The non-lead category is for
connectors that are determined through an evidence-based record,
method, or technique not to be made of lead. Water systems may include
additional information such as the specific material of a non-lead
connector (e.g., copper or galvanized) as an alternative to
categorizing it as ``non-lead.'' Water systems may also provide more
information regarding their non-lead connectors, such as whether a lead
connector was replaced at the location. Lastly, the ``no connector
present'' category is for where there is no connector at the location,
such as locations where the connector was removed or locations where
there never was a connector, e.g., in instances where the service line
directly connects a water main to a building inlet.
2. Inventory Updates and Discrepancies
a. Rationale and Proposed LCRI Requirements
For the LCRI, the EPA proposed that water systems update the
inventory annually. Under the 2021 LCRR, systems are required to update
the inventory and submit it to the State on the same frequency as the
system's tap sampling and monitoring schedule, but no more frequently
than annually. Decoupling the inventory update submissions from the tap
sampling and monitoring schedule was proposed to: (1) Ensure the system
is providing up-to-date information to consumers on an annual basis and
(2) enhance compliance with the mandatory service line replacement
requirements, which are assessed annually, and annual public education
requirements. Annual inventory updates also increase transparency for
consumers and States relative to the 2021 LCRR, which allowed inventory
updates every three years. Consistency between annual updates and other
LCRI requirements would reduce discrepancies between the information,
i.e., the service line material in the inventory may not match the
material provided in the consumer notification if the inventory is not
updated annually. For example, water systems would need to update their
inventories over time because service line material categorizations may
change as service line materials are identified over time through
normal operations, targeted investigations of unknown service lines,
and service line replacements.
For the LCRI, the EPA also proposed that water systems include the
total number of lead, GRR, and unknown service lines, the number of
lead connectors in the inventory, and the number of full lead and GRR
service line replacements completed with each inventory update
submitted to the State and to make them available in the publicly
accessible inventories to improve transparency and customer tracking of
inventory and service line replacement progress. This information is
also important for compliance and enforcement of the mandatory service
line replacement requirements and for the EPA's administration of
financial assistance programs.
The EPA proposed to expand the 2021 LCRR requirement for a water
system to update their inventory by the next submission deadline if a
system, including a system whose inventory previously consisted solely
of non-lead
[[Page 86477]]
service lines, discovers a lead or GRR service line. The agency
proposed to require systems to add the discovered lead or GRR service
line to the replacement pool for the mandatory service line replacement
program. The agency also proposed to require systems to replace the
service line within six months of discovery if the system's inventory
only contained non-lead lines, such as after the system finished
mandatory service line replacement. Systems must then comply with any
additional actions required by the State. This requirement ensures that
systems update the inventory with the newly discovered lead or GRR
service line and replace the line accordingly.
Additionally, the EPA proposed to require water systems to respond
to consumer inquiries of a suspected incorrect categorization of their
service line material in the inventory with an offer to inspect the
service line within 60 days of receiving the notification. The EPA
explained that this would provide another opportunity for the system to
assess the accuracy of its inventory to inform potential actions to
remedy discrepancies at the individual site and throughout the
distribution system more broadly (88 FR 84935, USEPA, 2023a). For
example, if a consumer previously replaced a service line that is still
listed as lead or GRR based on a historical record, the system can
correctly recategorize that service line material.
b. Summary of Public Comments and the EPA's Response
The majority of commenters supported the proposed requirement for
inventories to be updated and submitted to the State annually. Some
commenters stated that submission of annual updates to the State would
be too frequent and burdensome, especially for smaller systems with few
staff. One commenter requested that inventories be updated ``as
needed'' as replacement programs progress.
The EPA disagrees with commenters that it is unnecessarily
burdensome for systems to submit updated inventories to the State on an
annual basis and make them available to the public no later than the
deadline for the State submission. Annual inventory updates increase
transparency for consumers and States and are essential to comply with
the annual consumer notification and mandatory service line replacement
requirements. Water systems will need to update their inventories over
time as service line material categorizations change as a result of
replacement and validation and as the materials of unknown service
lines are identified. The EPA expects water systems to update their
inventories in real time or regularly throughout the year as new data
becomes available, which will lessen the burden with preparing,
submitting to the State, and publishing the updated inventory for the
public. Annual submission to the State of updated inventories will
allow systems time to compile the updated information while assisting
States in ensuring compliance with requirements, including public
education and service line replacement. Water systems are subject to
several annual reporting requirements in NPDWRs and have demonstrated
the ability to prepare annual reports.
The EPA received comments on the content of the inventory updates.
One commenter stated that, to simplify inventory updates, systems with
online inventories should only have to notify their States annually
with summary information of any updates and provide them with
instructions on how to access the online inventories. The commenter
noted that it would be unnecessary to annually re-submit an online
inventory to the State. Another commenter advocated including
additional information in the summary of information provided with each
update, such as the number of partial LSLRs conducted. Some commenters
also stated that the updated inventories should include the number of
abandoned or disconnected LSLs and lead connectors left in the ground
because they are concerned abandoned sections of lead pipe in the
ground may later contribute to soil and ground water contamination.
The EPA agrees that systems should be able to provide States with
summary information and instructions on how to access online
inventories in lieu of submitting the entire inventory because,
together, the summary information and instructions to the online
inventory are effectively the same as submitting full documentation for
the updated inventory as described in Sec. 141.84(b); they fulfill the
same purpose of ensuring State and public access to the most up-to-date
inventory information on at least an annual basis. Therefore, the EPA
is revising the final LCRI to allow water systems that make the
publicly accessible inventory and its subsequent updates available
online (e.g., an online map or downloadable file on a website) the
flexibility to provide instructions on how to access the updated
inventory information instead of preparing a fixed copy of the entire
updated inventory (which includes the summary information), submitting
it to the State, and making it available to the public on an annual
basis. These systems will only need to provide the summary information
regarding service line material identification and replacement as
specified in Sec. 141.84(b)(2)(iv) and instructions on how to access
the updated inventory to their States. Systems that utilize this
flexibility must ensure the required summary information is publicly
available online (e.g., listed on the same web page as the online map)
to fulfill the inventory updates requirement. A State may also request
their water systems who take advantage of this option to provide them
with an indication of where changes have occurred since the previous
submitted inventory because this would allow States to focus on where
changes were made.
The EPA agrees with commenters requesting additional items in the
list of summary information to be included and submitted with the
inventory. As a result, the EPA is revising the proposed list of
information water systems must include with each updated inventory to
also contain the total number of each of the following: non-lead
service lines in the inventory, connectors of unknown material in the
inventory, and the number of partial lead and GRR service line
replacements that have been conducted in each preceding program year.
This provides consumers with additional information to understand their
public water distribution system and the potential risks of lead
exposure in their drinking water. By including the number of partial
service line replacements conducted each year, the State and consumers
can more easily monitor the system's compliance with service line
replacement requirements. The EPA recommends that systems include the
number of lead service lines and connectors that remain in the ground
after ``abandon-in-place'' or ``pipe splitting'' practices are used to
replace these pipes; however, this information is not required to be
included in the inventory or service line replacement plan. Tracking
information on these lead materials would ensure that this locational
information exists should the system or the public need such
information in the future. However, once the service line is cut, it is
not a part of the water service (see code 9.14 in the LCRI Response to
Comments document for more information, USEPA, 2024k).
The EPA received comments on the proposed requirement that water
systems must offer to inspect a service line that a consumer suspects
is incorrectly categorized. Commenters stated that the EPA should allow
systems to provide available
[[Page 86478]]
documentation on why a service line is categorized as such and allow
follow-up actions (e.g., phone calls, emails, and submitted photos)
with the consumer to determine if visually inspecting the service line
is necessary. One commenter stated that systems should be allowed a
longer period to inspect service lines where the material is unknown.
Another commenter stated that systems should inspect the service line
within 60 days rather than only offering the inspection within 60 days.
The EPA agrees that there are several effective ways for a water
system to respond to a customer request for inspection besides on-site
visual inspection. The EPA is not specifying the timeframe for which
water systems would need to conduct the inspection, recognizing (1) the
actions that are most appropriate can vary across systems (e.g., on-
site visual inspection of the pipe exterior; virtual inspection such as
a photo or video submission from the consumer or a video call with the
consumer) and (2) the system-specific conditions, such as freezing
ground conditions in some climates, can impact when certain types of
inspections can be conducted. A visual inspection of the pipe conducted
remotely can be as effective as an on-site inspection and will reduce
the burden on a system to respond to consumer notifications of
suspected incorrect categorizations of service line materials. The EPA
did not propose to require water systems to offer to inspect and follow
through with the inspection within 60 days and has clarified that rule
text accordingly. Additionally, the agency is revising the final rule
to require systems to offer inspection within 30 days of receiving the
notification from the consumer or the customer (if different from the
person served at that service connection). The 30-day period to offer
to inspect is required to ensure timely follow-up with the consumer or
customer has occurred.
c. Final Rule Requirements
The final LCRI retains the proposed requirement for water systems
to continue to update their service line inventories until their
inventories contain only non-lead service lines, non-lead connectors,
or no connectors present. Systems with lead, GRR, or unknown service
lines, lead connectors, or connectors of unknown material must submit
the inventory updates to the State annually and make the update
available to the public no later than the deadline for submitting it to
the State. Systems must update the inventories based on the sources of
information specified in the rule, other sources of information
approved or required by their States, their mandatory service line
replacement programs, and encounters during normal operations.
Inventories must be updated with information from any encounters
with service line or connector materials, service line inspections, and
replacements that have occurred since the previous update. Systems must
also report summary information that includes the total number of
service lines for each service line material category (lead, GRR,
unknown, and non-lead), the total number of lead connectors, and the
total number of connectors of unknown material as well as the number of
full lead and GRR service line replacements and the number of partial
lead and GRR service line replacements that have been conducted in each
preceding program year. A water system that makes the publicly
accessible inventory and its subsequent updates available online (e.g.,
online map or downloadable file on a website) has the option to submit
to the State the summary information regarding service line material
identification and replacement as specified in Sec. 141.84(b)(2)(iv)
and instructions on how to access the updated inventory in lieu of
providing a fixed copy of the entire updated inventory that includes
the required summary information. A system that uses this option must
ensure the summary information is publicly available online.
All water systems that discover a lead or GRR service line that was
previously inventoried as non-lead must update their inventories,
notify the State in accordance with the reporting requirements, and
comply with any additional actions required by the State to address the
inventory inaccuracy. The final LCRI requirements to replace the
discovered lead or GRR service lines have been moved to Sec.
141.84(d)(4)(ii) and are discussed in section IV.B.7.c of this
preamble.
If a consumer or customer (if different from the person served at
that service connection) notifies the water system of a suspected
incorrect categorization of their service line material in the
inventory, the system must respond to the consumer or customer within
30 days of receiving the notification to make an offer to inspect the
service line.
3. Public Accessibility of the Inventory and the Inclusion of Addresses
in the Publicly Accessible Inventory
a. Rationale and Proposed LCRI Requirements
Publicly accessible inventories can facilitate community engagement
and improve transparency. These inventories inform the public of the
location of possible lead exposures and provide transparency to the
State and the public of system progress on service line identification
and replacement. In turn, publicly accessible inventories can help
protect public health by making this information broadly available. For
the LCRI, the EPA built upon the 2021 LCRR's publicly accessible
inventory requirements by proposing that water systems make not only
service line materials accessible to the public, but also connector
materials and the street address of each identified service line and
connector.
The proposed LCRI retained the 2021 LCRR requirement for systems
serving greater than 50,000 persons to make the publicly accessible
inventory available online. This threshold was set in the 2021 LCRR
because of the potential burden associated with digitizing and hosting
the inventory online for smaller systems (USEPA, 2020e). It is feasible
for large systems to host their inventories online (USEPA, 2020e). In
the proposed LCRI, the EPA sought comment on changing the threshold.
The 2021 LCRR requires water systems to create and maintain an
inventory that includes the specific addresses associated with each
service line connected to the water system, but the 2021 LCRR does not
require the publicly accessible inventory to include the specific
addresses of lead or GRR service lines; instead, water systems are
permitted to use a ``location identifier,'' which could be a street
address, block, intersection, or landmark. For the LCRI, the EPA
proposed to require water systems to include a street address
associated with each service line and connector in the publicly
accessible inventory; where a street address is not available for an
individual service line or connector, the EPA proposed that systems use
a unique locational identifier. The EPA proposed this requirement to
increase transparency with their consumers about the locations and
materials of service lines and connectors connected to their residences
or other buildings they may occupy (e.g., places of employment and
child care facilities). This ensures that all persons served by a lead,
GRR, or unknown service line have access to this information, not just
those
[[Page 86479]]
consumers who received targeted public education from the system. As
stated in the proposal, including addresses in the publicly accessible
inventory is critical to make more people aware of their risk to lead
in drinking water because the requirements for notification may not be
sufficient to reach all persons at or who use that site (e.g. where the
persons served are short-term residents in non-owner occupied
buildings, parents and guardians of children at in-home child care
facilities, and residents of long-term care facilities). Additionally,
it is feasible for systems to make publicly accessible the specific
addresses where connectors and lead, GRR, unknown, and non-lead service
lines are located, as demonstrated by the fact that several systems are
already publishing service line inventories containing addresses (88 FR
84936, USEPA, 2023a).
b. Summary of Public Comments and the EPA's Response
The EPA received comments supporting and opposing the proposed
requirement to include street addresses in the publicly accessible
inventory. Some commenters supported the proposed requirement because
it provides transparency, builds accountability and trust with the
public, makes people aware of their risk of lead in drinking water,
and, if searchable by address, can provide information to prospective
buyers and renters and create an incentive for property owners to
provide consent for full service line replacement.
Some commenters opposed the inclusion of specific addresses in the
publicly accessible inventory for a range of reasons. Some commenters
noted that sites, such as those in very rural areas, with water service
may not have street addresses and, instead, water systems typically
have Global Positioning System (GPS) coordinates for those properties.
Some commenters suggested addresses are unnecessary because consumers
served by lead, GRR, and unknown service lines will receive an annual
notification of service line material. Some commenters questioned the
EPA's authority for the requirement and expressed concerns, without
explanation, about potential liability and complications due to privacy
laws. Some commenters suggested that the requirement would discourage
property owners from providing consent to identify service line
material using field investigation methods like potholing and act as a
disincentive for water systems serving less than 50,000 persons from
posting their inventory online.
The EPA agrees that, in some cases, a site may not have a street
address. In these cases, the final rule allows water systems to assign
a non-address locational identifier (e.g., a block, intersection, or
landmark) to a service line or connector. The final rule adds GPS
coordinates as a potential example of a non-address locational
identifier that can be used in circumstances where a street address
does not exist.
The EPA disagrees with commenters that the agency has no need or
clear authority to require addresses be included in the publicly
accessible inventory. This provision is authorized under SDWA section
1412(b)(7)(A) because, as explained below, it prevents known or
anticipated adverse effects on the health of persons. In addition, SDWA
section 1417(a)(2) requires ``[e]ach owner or operator of a public
water system'' to ``identify and provide notice to persons that may be
affected by lead contamination of their drinking water where such
contamination results from [. . .] the lead content in the construction
materials of the public water distribution system.'' A publicly
accessible inventory with street addresses ensures that all persons
served by a lead, GRR, or unknown line have access to this information,
not just those consumers who received targeted public education from
the system. The requirements for notification (such as the requirements
for annual notification of known or potential lead service line
material) may not be sufficient to reach all persons at or who consume
water at that site, such as where the persons served are short-term
residents and visitors, parents and guardians at child care facilities,
residents of long-term care facilities, and employees. The inclusion of
addresses in the publicly accessible inventories also strengthens
public health protection by incentivizing property owners to identify
and replace service lines.
In light of the public health benefit of this requirement, the EPA
does not agree that the rule should not require the use of street
addresses in the publicly accessible inventory due to the perceived
concerns that water systems could face potential liability for the
public disclosure of this information. No commenters provided any
detail to explain the basis for their concerns about potential
liability. Many water systems across the nation have published or made
publicly available inventories that include street addresses, such as
the City of Columbus Department of Public Utilities, OH; the City of
Grand Forks, ND; the City of Lincoln, NE; the City of Somerville, MA;
the City of Troy Department of Public Utilities, NY; the City of
Wheaton Water Division, IL; DC Water, DC; Marshfield Utilities, WI;
Pittsburgh Water and Sewer Authority, PA; and Saint Paul Regional Water
Services, MN. All systems in New Jersey are required to include the
locations of all service lines in their inventories, and systems
serving 3,300 persons or more are required to host their inventories on
their websites (State of New Jersey, 2021b). Additionally, the Rhode
Island State Department of Health plans to publish and maintain an
online map of the specific location of each service line and identify
whether it is a lead or unknown service line (State of Rhode Island,
2023b).
The EPA received comments on the threshold to make a publicly
accessible inventory available online. Commenters stated that the EPA
should maintain the threshold at systems serving more than 50,000
persons because smaller systems are less likely to have the resources
to comply with the requirement, implementation of the various NPDWRs
would be easier and more streamlined if the thresholds for making
information available online were more aligned across NPDWRs, and the
uncertainty about whether the requirement would be feasible for medium
systems. One commenter stated that that the EPA should not revisit the
threshold but should instead incentivize online posting of the
inventory by eliminating detailed data submissions to the State for all
systems that meet the following requirements: post the inventory
online, update the online inventory with new information as required by
the rule, and provide the inventory website to the State. Conversely,
other commenters stated that the threshold should be either lowered to
include medium systems (systems serving more than 10,000 persons) or
the threshold should be eliminated, requiring all water systems to make
the inventory publicly available online. Commenters stated several
reasons for lowering the threshold, such as: (1) The lack of readily
accessible information about water systems can be a barrier to
participation in the replacement program, trust in the system, and
successful prevention of the risk of lead exposure from drinking water
for homeowners and tenants; (2) more water systems are capable of
posting their inventories online; and (3) sharing critical information
appropriately is one of the most important and least expensive tools
for public health protection, public transparency, and public
education. One commenter representing a State noted that a
[[Page 86480]]
threshold of 10,000 persons could be feasible if inventories can be
made available online via an online file sharing services instead of a
website. Another commenter representing a State noted that their
experience shows that systems serving more than 10,000 persons have the
resources and capacity to make their inventories available on the
municipal or water system website. One commenter stated that States
should be authorized to post the inventories on their own website for
individual water systems and serve as a central database, where systems
would only have to post an external link to the State's website on
their websites for consumers to easily access.
The EPA agrees that publicly accessible information about
inventories is important to all consumers as provided by the LCRI
public education requirements. However, as discussed below, the EPA
disagrees that the threshold for requiring the inventory be available
online should be lowered from 50,000 persons served and, therefore, the
EPA is retaining the threshold of systems serving more than 50,000
persons in the final LCRI. When developing the final LCRR, the EPA
determined that this threshold is feasible for larger systems as
mentioned in section IV.D.3.a of this preamble. This threshold also is
consistent with other requirements, including the CCR requirements. The
EPA selected this threshold because it is feasible for systems serving
over 50,000 persons to publish the inventory online (USEPA, 2020e). For
systems serving 50,000 persons or fewer, however, the potential burden
associated with digitizing and hosting the inventory online is greater
and would likely take resources away from developing the inventory,
identifying unknown service lines, and conducting lead and GRR service
line replacement. As stated above, systems serving 50,000 persons or
fewer are given the flexibility to choose how they make their
inventories accessible to the public. The EPA anticipates that systems
serving 50,000 persons or fewer that have the ability may choose to
host their inventories online as this would ease their inventory
submission burden to the State as well as provide a convenient way for
their customers and consumers to access the inventory. Additionally,
States may set a lower threshold if they choose.
However, the EPA agrees with the suggested incentive for systems
that post their inventories online, and, as discussed in section IV.D.2
of this preamble, the final LCRI provides water systems that make their
inventory and its subsequent updates available online (e.g., an online
map or downloadable file on a website) along with the summary
information regarding service line material identification and
replacement as specified in Sec. 141.84(b)(2)(iv) the option to
provide instructions to access to the online inventory and the summary
information to the State in lieu of providing a fixed copy of the
entire inventory as described in Sec. 141.84(b). Additionally, the EPA
notes that inventories can be made available online via online file
sharing services. The LCRR Inventory Guidance states that, for systems
that may not have the capacity for online GIS mapping applications,
there are other online data sharing methods that better fit the needs
of these systems and their consumers, such as through an online cloud-
based data sharing, online spreadsheet, file transfer protocol (FTP)
server, or a downloadable format linked to text or an image on the
system's website (USEPA, 2022c). Furthermore, the EPA agrees that
States and their systems may take this approach to publishing the
baseline inventories and subsequent updates to the inventory online and
satisfy this part of the requirements; however, systems will still need
to annually report the information regarding service line material
inspections and replacements to their States.
c. Final Rule Requirements
The final LCRI requires water systems to make their service line
inventories publicly accessible. The publicly accessible inventory must
include the material and street address of each service line and
identified connector in the service line inventory. Where a street
address is not available for an individual service line or connector, a
unique locational identifier (e.g., block, GPS coordinates,
intersection, or landmark) may be used instead. The publicly accessible
inventory must reflect any updates to the inventory no later than the
deadline to submit the updated inventory to the State, including the
listed information regarding service line material identification and
replacement that has occurred since the previous update. Water systems
serving greater than 50,000 persons must make the publicly accessible
inventory available online.
When a water system has no lead, GRR, or unknown service lines and
no known lead connectors or connectors of unknown material in their
distribution system, the system may use a written statement in lieu of
a publicly accessible inventory. The written statement must include a
general description of all applicable sources used in the inventory to
determine that the distribution system does not have any lead, GRR, or
unknown service lines, known lead connectors, and connectors of unknown
material. Water systems, including those with publicly accessible
inventories consisting only of a written statement, must include
instructions to access the publicly accessible inventory in their CCRs.
4. Inventory Validation
a. Rationale and Proposed LCRI Requirements
Accurate service line inventories are essential to ensure
replacement of all lead and GRR service lines. The EPA heard, through
stakeholder engagement, concern for accuracy in inventories. To
increase the accuracy of service line inventories, the EPA proposed
that water systems must validate a subset of the non-lead service lines
in their inventory. The proposed validation requirement would test the
reliability of certain methods, techniques, and alternative sources of
information used to identify service lines as non-lead and facilitate
action to remedy any discrepancies that may be discovered as a result
of the validation as well as provide systems, States, and consumers
with additional confidence in the accuracy of the inventory. The EPA
proposed to require the inclusion of all non-lead service lines in the
validation pool unless the service lines were identified through the
specified sources listed in Sec. 141.84(b)(2)(i) through (iii) such as
construction and plumbing codes and water system records, visual
inspection of the pipe exterior at a minimum of two points, or
previously replaced lead or GRR service lines. The EPA proposed to
require water systems to confirm the service line material of a random
sample of non-lead service lines from the validation pool using a
visual inspection of pipe exterior at a minimum of two points and
provide the validation results to the State. Under the proposal,
systems would be required to validate the number of service lines
necessary to achieve a 95 percent confidence level. For more
information on the methodology used to determine the minimum number of
validations required based on a system's validation pool, see the
``Technical Support Document for the Proposed LCRI'' (USEPA, 2023k).
The EPA proposed to require systems to complete the validation by year
7 of a 10-year replacement program to allow time for the system to
address potential issues identified in the validation process and
complete replacement by the deadline. For systems subject to a deferred
[[Page 86481]]
deadline for service line replacement, the State would be required to
set a deadline no later than three years prior to the deadline for
replacement.
b. Summary of Public Comments and the EPA's Response
Some commenters support including a validation requirement in the
LCRI to ensure inventory accuracy, enhance the effectiveness of the
service line replacement plans (e.g., inform the methods used to
identify service lines of unknown or unconfirmed material), build
trust, and help ease concern over using State-approved methods like
predictive modelling and emerging identification technologies.
Conversely, other commenters oppose a validation requirement because it
diverts time and resources from service line replacement and is
unnecessary because they assert that systems using predictive modelling
(if approved by the State) already complete some form of validation
process for their models. One commenter suggested that the rule require
water systems to validate their inventories only after any inaccuracies
are found, and another commenter suggested the rule allow systems to
either visually verify the material of all service lines in 10 years or
complete the proposed validation requirement by the 7-year deadline.
Some commenters suggested that the rule waive, or allow a State to
waive, the validation requirements if the water system completed an
inventory validation prior to the promulgation of the LCRI.
The EPA agrees with the commenters that support the inventory
validation requirements for the reasons mentioned: ensuring inventory
accuracy, enhancing the effectiveness of the service line replacement
plans (e.g., inform the methods used to identify service lines of
unknown or unconfirmed material), building trust with the public, and
increasing confidence in the reliability of State-approved methods like
predictive modelling and emerging identification technologies. The
validation process does not divert time and resources from the service
line replacement requirements but rather supports the effective
implementation of the service line replacement requirements. Inventory
validation increases the confidence of consumers, systems, States, and
the EPA that the methods used to categorize non-lead service lines in
the inventory are accurate and that systems are truly replacing all
lead and GRR service lines in their distribution system. In addition,
the deadline for validation provides systems with ample time to
complete the validation process and will allow systems to combine
validation efforts with normal operations and service line replacement
activities to increase efficiency of validation.
The agency also acknowledges the concern for water systems that
have already completed inventory validations, including systems that
conducted previous validation efforts to develop and train predictive
models. Therefore, the EPA is finalizing a flexibility for systems to
be able to make a written request to the State to approve a waiver of
the inventory validation requirements if the system completed
validation efforts prior to the compliance date that are at least as
stringent as the LCRI requirements.
In the proposed LCRI, the EPA requested comment on its proposed
methodology to calculate the minimum number of validations systems
would be required to perform. The EPA's proposed methodology set the
size of the validation pool to achieve a 95 percent confidence level
or, for systems with relatively few of these service lines, to validate
20 percent of the non-lead service lines in their validation pools.
Some commenters supported the methodology and stated that the approach
is reasonable. One commenter recommended that the EPA increase the
number of validations required for larger systems. On the other hand,
some commenters questioned why the EPA maintained an expected sample
proportion of 0.5 even though it provides the most conservative number
of validations required and why the agency does not allow each water
system's ``consultant'' to develop a testing program that achieves a 95
percent confidence level at a sample proportion catered to each system.
The same commenters stated that the EPA should clarify the validation
calculations, e.g., the data used to determine the expected sample
proportion, the relevant comparison between the number of validations
required and the validation pool, and where the EPA derived its
formulas for determining the number of validations required.
The EPA used a conservative sample proportion of 0.5 because the
agency does not have sufficient data to estimate a sample proportion
specific to discovering a non-lead service line as a lead or GRR
service line and, therefore, used 0.5 to ensure the minimum number of
validations required is statistically significant in all systems
nationwide regardless of the possibility for a more precise sample
proportion at an individual system's level. A sample proportion of 0.5
is used when a better estimate is unavailable (Daniel and Cross, 2013).
The EPA disagrees that water systems or their designated consultants
should be required to conduct a testing program or pilot study to
estimate the sample proportion prior to conducting inventory validation
because conducting a testing program or pilot study would be resource
intensive and add burden to systems. The validation requirements ensure
systems do not need to do that by setting a procedure at the national
level.
The EPA derived the equations to calculate the minimum number of
validations required from the formulas used to assess the distribution
of the sample mean when sampling without replacement by using the
finite population correction factor (Daniel and Cross, 2013). The
minimum number of validations required is the sample size of a finite
population when sampling without replacement, and the validation pool
is the assumed finite population size. See the ``Technical Support
Document for the Final Lead and Copper Rule Improvements'' (final TSD)
for an expanded derivation of the minimum number of validations
required for a system's validation pool of non-lead service lines
(USEPA, 2024d).
In the proposed LCRI, the EPA requested public comment on whether
non-lead service lines that were categorized based on records should be
subject to the validation requirements. Some commenters encouraged the
EPA to include non-lead service lines categorized based on historical
records in the validation pool. For example, one commenter recommended
that the agency require service lines categorized based on records
unless the records show the lines were installed, inspected, or
replaced after the effective date of a local lead ban. Another
commenter suggested requiring a random sampling of historical records
because the initial inventory requirements in the 2021 LCRR did not
require systems to identify the specific source used to categorize
service lines. Other commenters were concerned that the reliability of
historical records may vary across systems and provided examples of
systems having inaccurate records. For example, one commenter mentioned
that, in Flint, Michigan, inspections during a service line replacement
project revealed that 24 percent of the service lines identified as
copper based on historical records were actually made of lead (372 out
of 1,489 service lines; BlueConduit, 2020). Commenters provided the
example of the Lead Free DC task force, where the task force found that
20 percent of service lines identified as copper
[[Page 86482]]
through historical records were actually made of lead (Betanzo and
Attal, 2022). A commenter representing a State also noted that some
systems within their jurisdiction have found that historical records
have been inaccurate.
In addition to these examples of inaccurate historical records
raised by commenters, the EPA is aware of other data showing that
historical records can be unreliable sources of information for service
line material categorization. As the EPA noted in the LCRR Inventory
Guidance, only 63 percent of the Pittsburgh Water and Sewer Authority's
historical records were accurate because of the service line repair and
maintenance activities that have taken place since the records were
created (USEPA, 2022c). In addition, a 2023 study on the accuracy of
service line identification methods found that, of the 159 control
homes, records for 90 percent of the 99 known LSL sites were accurate,
whereas records for 3 percent of the 60 non-lead service line sites
accurately identified the service line material (Smart et al., 2023).
Therefore, the EPA is revising the final LCRI to require the validation
pool to include records of non-lead service lines. The EPA agrees,
however, that records showing that the service line was installed after
the effective date that the Federal, State, or local lead ban in the
validation pool would have been enforced (June 19, 1988, if there was
no enforcement of a State or local lead ban prior to that date) would
be more reliable because these regulatory changes marked a change in
system and plumbing practices nationally, where previous studies show
instances of inaccurate records prior to these regulatory dates.
The EPA received comments on the proposed 7-year deadline for water
systems to complete inventory validation when the system is subjected
to a 10-year mandatory service line replacement deadline or only has
non-lead service lines in their inventory. Some commenters supported
the proposed deadline because it would allow systems three years before
the deadline for service line replacement to implement changes if
inaccuracies are found. Conversely, other commenters questioned whether
requiring inventory validation efforts to be conducted within the first
seven years is the best use of water system resources, instead
recommending that validation be completed after (1) all unknown service
lines have been identified to be representative of all non-lead service
lines that could be included in the validation pool or (2) all known
lead and GRR service lines are removed, so water systems can focus on
lead and GRR service line replacement. Another commenter stated that
the EPA should require inventory validation to be completed within the
first three years of rule promulgation, or no later than halfway
through the mandatory service line replacement timeline if extra time
has been granted, because the proposed deadline is ``far too late.''
The EPA agrees with the commenters that supported the seven-year
deadline because the deadline allows systems three years to address
potential discrepancies found by the validation. The agency proposed a
seven-year deadline to allow water systems to focus on identifying
unknown service lines as well as validate service lines identified
during the replacement program using field investigation techniques and
alternative sources of information approved by the State. The EPA
disagrees with the commenters that questioned whether the inventory
validation requirement would be representative of all potential non-
lead service lines to be added to the validation pool if validation is
completed before water systems identify all unknown service lines. If a
system complies with the inventory validation process sometime before
seven years into the replacement program, it is expected to be reliable
because the sources of information the system would be using are
expected to be the same in the beginning years of inventory development
to the end, especially if the validation results provide further
confidence in the use of those sources, unless the system is approved
or required by the State to use another source or method of
identification. In that instance, if a system discovers a lead or GRR
service line where a non-lead line was inventoried, the system is
required to notify the State with the methods used to categorize the
service line material and comply with any additional actions required
by the State to address the inventory inaccuracy. Conducting inventory
validation before the deadline for mandatory service line replacement
allows the system time to investigate certain methods used to
categorize non-lead service lines if discrepancies are found during the
validation process before they complete replacement.
The EPA received comments on the proposed rule's requirements to
address discrepancies found during the validation process. Some
commenters advocated for requirements for water systems to take actions
to increase the accuracy of their inventories if they identify
discrepancies during the validation process because failure to include
concrete steps to improve inventories could undermine the trust and
reliability of the document that is the ``backbone'' of LCRI compliance
(BlueConduit, 2024; Office of the People's Counsel for the District of
Columbia (OPC-DC), 2024). One commenter recommended that water systems
that inaccurately identify lead or GRR service lines as non-lead should
be required to submit a plan to their States about how they will
increase the accuracy of their inventories.
The EPA agrees that, when inventory discrepancies are identified
during the validation process, remedial actions can improve the
inventory's accuracy. The final LCRI requires water systems to submit
to the State a list of the locations of any non-lead service lines
identified to be a lead or GRR service line through the validation
along with the methods used to categorize those service lines. The
final LCRI also requires systems to comply with any additional actions
required by the State to address the inventory inaccuracies found
during the validation process. Given the range of possible reasons for
inventory inaccuracies, the EPA expects States to be better suited to
identify the appropriate actions systems must take to improve the
accuracy of their inventories. A single, prescribed approach in a
national rule could be overly broad and unnecessary if, for example,
there is only one misidentified line, or inadequate to remedy the
problem if the validation shows widespread inaccuracies of
categorizations. Moreover, it would not adequately capture the broad
range of potential responses that could improve inventory accuracy.
Instead, the appropriate remedy is best identified on a system-
specified basis tailored to the system's specific inventory
inaccuracies and potential systemwide issues discovered during
inventory validation.
c. Final Rule Requirements
In the final LCRI, the EPA made clarifying revisions to ensure the
requirements are clear based on comments received. Under Sec.
141.84(b)(5) of the final rule, water systems must validate the
accuracy of the methods used to categorize service lines as non-lead.
First, water systems must identify a ``validation pool'' of service
lines that were determined to be non-lead through specific sources and
exclude service lines determined to be non-lead through: (1) Records
showing the service line was installed after the effective date of the
Federal lead ban (June 19, 1988), or after the compliance date of a
State or local law prohibiting the use of service lines that do not
meet
[[Page 86483]]
the 1986 definition of lead free in accordance with SDWA section 1417,
whichever is earlier, (2) visual inspection of the pipe exterior at a
minimum of two points, or (3) previously replaced lead or GRR service
lines. Previous visual inspections of the pipe exterior must consist of
an inspection of at least two points. Previous lead or GRR service line
replacements may also be excluded when identified during their review
of specified sources. The EPA compiled a list of the lead ban
provisions by State in appendix D of the LCRR Inventory Guidance
(USEPA, 2022c); however, water systems should verify the compliance
date for any local or State lead ban before using a date earlier than
June 19, 1988.
Under the LCRI, water systems must confirm the service line
material of a random sample of non-lead service lines from the
validation pool by visual inspection of the pipe exterior at a minimum
of two points. Visual inspection of the pipe exterior could be
conducted by, but not limited to, potholing, viewing the service line
material in the meter pit or stop box, or viewing the service line
entering the building. Where ownership is shared, the water system must
conduct at least one visual inspection on each portion of the service
line (i.e., one inspection on the system-owned portion and one
inspection on the customer-owned portion of the service line). Where
ownership is shared and only one portion of the service line is
included in the validation pool, systems must conduct at least one
point of visual inspection on the unconfirmed portion of the service
line. For example, a non-lead service line is included in the
validation pool because the system-owned portion of the line is made of
copper due to a previous partial LSLR and the customer-owned portion of
the line is estimated to be non-lead based on the materials observed in
other homes built around the same time in the same neighborhood. The
system will need to confirm that the customer-owned portion of the
service line is non-lead through at least one point of visual
inspection of the pipe exterior.
The size of the random sample of non-lead service lines from the
validation pool is based on the number of service lines a water system
needs to validate, at a minimum, to achieve a 95 percent confidence
level (USEPA, 2023k; USEPA, 2024d). To achieve the 95 percent
confidence level, the EPA requires water systems with more than 1,500
non-lead service lines in their validation pool to confirm the material
at between 322 and 384 sites, as specified in the rule, depending on
the specific size of the validation pool. Systems with 1,500 or fewer
non-lead service lines in their validation pools must validate at least
20 percent of the total number of non-lead lines in the pool. If
physical access to private property is necessary to complete the
validation and the water system is unable to gain access, the system is
not required to validate the service line material at that site.
Instead, the system must randomly select a new service line from their
validation pool to conduct the validation.
Once water systems have completed their inventory validation, they
must submit to the State the results of the validation by the
applicable deadline based on the system's mandatory service line
replacement program. Systems required to replace lead and GRR service
lines in 10 years or less must complete their inventory validations no
later than December 31 following seven years after the LCRI compliance
date. Systems who have reported only non-lead service lines are also
subject to the validation requirement and must complete inventory
validation no later than December 31 following seven years after the
LCRI compliance date. Where States have required systems to replace
service lines on a shortened deadline, the State is required to set a
deadline for the validation. Systems that are eligible for and plan to
use deferred deadlines must complete inventory validation by a deadline
established by the State to be no later than three years prior to the
deferred deadline. Systems must submit the results of the inventory
validation. The final rule clarifies that the results of the inventory
validation must also include the submission of the specific version
(including the date) of the inventory that was used to determine the
number of non-lead lines included in the validation pool in order to
provide the State with the information needed to assess the inventory
validation. The system must comply with any additional actions required
by the State to address inaccuracies in the inventory.
The final LCRI was updated to also include a flexibility for water
systems that have previously conducted inventory validation efforts
that, at a minimum, are as stringent as the LCRI inventory validation
requirements. Water systems may make a written request to the State to
approve a waiver of the inventory validation requirements. To obtain a
waiver, the system must submit documentation to the State by the LCRI
compliance date to demonstrate that they conducted an inventory
validation effort that is at least as stringent as the validation
requirements specified in the rule and obtain written approval of the
waiver from the State.
5. Deadline To Identify All Unknown Service Lines
a. Rationale and Proposed LCRI Requirements
For the LCRI, the EPA proposed to require water systems to identify
the material of all service lines categorized as unknown in the
inventory by the system's deadline to complete mandatory full service
line replacement for several reasons. Using the same deadline for these
two requirements eliminates the need for a separate set of requirements
for this purpose, such as a minimum rate for identifying unknown
service lines. In the LCRI proposal, the EPA also explained that this
approach prevents additional rule complexity as well as reporting and
tracking burden, a priority identified in the EPA's 2021 LCRR review
notice to assure that States and water systems can effectively
implement the LCRI. It also provides systems with flexibility to plan a
full service line replacement program that meets local needs. Without a
separate and earlier deadline to identify unknown service lines,
systems can plan to identify service line materials in tandem with
other infrastructure work, such as water main or meter replacement, as
they are planned to occur in the proceeding years up until the deadline
for service line replacement. This could allow water systems to
identify service line materials more efficiently as they will already
be onsite and, in some cases, may encounter the service line material
directly as they perform other planned work. This efficiency could
reduce the overall costs and time to identify service line materials.
Aligning the service line replacement and inventory completion deadline
could improve inventory information quality because systems could take
additional time to develop an inventory with an emphasis on accuracy by
choosing, for example, a more time-consuming technique that is also
more reliable. Finally, in the proposed LCRI, the EPA noted that new
technologies for identifying service line materials may be developed in
coming years and existing technologies may be refined; therefore,
aligning the deadline for service line replacement and inventory
completion will allow systems to use these new or refined technologies
on a greater proportion of their unknown lines.
For the proposed LCRI, the EPA determined that it is feasible
(i.e., technically possible and reasonably
[[Page 86484]]
affordable relative to a large system) for water systems to create a
complete and accurate inventory of service line materials by the
proposed service line replacement deadline to support the treatment
technique for mandatory service line replacement. For the 1991 LCR, the
EPA anticipated that systems that were triggered into an LSLR program
should be able to locate their LSLs and provide this information in 8
to 10 years even with poor records of service line materials (56 FR
26507, USEPA, 1991). The EPA also evaluated more recent efforts by
systems to replace all their LSLs and complete their inventories in 10
years or less. Seven States have inventory laws (i.e., California,
Illinois, Michigan, New Jersey, Ohio, Rhode Island, and Wisconsin),
which together comprise nearly a third of the Nation's estimated lead
content service lines (32 percent; 3.2 million lead content lines out
of an estimated 9.0 million lead content lines) (USEPA, 2023l), meaning
that these systems will have made progress on their inventories beyond
the 2021 LCRR requirements. These State laws indicate that an inventory
requirement is feasible, and inventory data show relatively low
incidence of unknown service lines in some States as well as rapid
progress towards identification of their unknown service line materials
(USEPA, 2023k). The One-Time Update to the Needs Survey indicates that
many participating systems have made substantial progress on
identifying unknown service lines (median percentage of unknown lines
per system is 6.5 percent); however, other participating systems have
made much less progress or have not yet reported service line statuses
(USEPA, 2023l; USEPA, 2024d). Furthermore, four States (Illinois,
Michigan, New Jersey, and Rhode Island) passed State laws that require
LSLR by a specified deadline. For these systems, inventory completion
is required to comply with the mandatory LSLR requirements. For
example, Michigan law requires their applicable water systems to submit
a preliminary materials inventory by January 2020 and a complete
materials inventory, including verification methodology and results, by
January 2025, which is a five-year deadline to identify all unknown
service lines (Michigan Administrative Rules, 2023). The Illinois
Environmental Protection Agency (IEPA) first required their CWSs to
submit an inventory by April 2018 in the repealed Public Act 099-0922
along with annual updates. Under the 2022 Lead Service Line Replacement
and Notification Act, IEPA required systems to submit a complete
material inventory by April 2024 (Illinois General Assembly, 2021),
which gave their systems six years to identify all unknown service
lines. Finally, the EPA is aware of several water systems who have
fully eliminated LSLs from their distribution system at a rapid pace,
which would not be possible if unknown service lines remained in the
system's inventory (USEPA, 2023k).
b. Summary of Public Comments and the EPA's Response
Many commenters supported keeping the deadline to identify unknown
service lines and the deadline to complete mandatory service line
replacement consolidated because it streamlines administrative
processes, allows systems to focus more time and resources on replacing
lead and GRR service lines and identifying unknown service lines, and
provides the type of flexibility to allow for inventory efforts to be
tailored to individual system needs and replacement programs.
Conversely, other commenters supported an earlier deadline to identify
unknown service lines before the replacement deadline, ranging from
three years after promulgation of the LCRI to three years before the
10-year replacement deadline to reduce the possibility of noncompliance
with the service line replacement deadline. Some commenters also
suggested the final rule should include a requirement for systems to
meet interim deadlines to identify unknown service lines and remove
unknown lines from the replacement pool.
The EPA disagrees with commenters requesting an earlier deadline
for identifying all unknown service lines, noting that a single
deadline streamlines administrative processes, allows time and
resources to focus on both replacing lead and GRR service lines and
identifying unknown service lines, and provides flexibility for water
systems. Therefore, the EPA is finalizing the requirement for systems
to identify all unknown service lines by the applicable mandatory
service line replacement deadline, as proposed. In doing so, the EPA
will prevent complicating the rule.
The 2021 LCRR requires water systems to review available sources
and submit an initial inventory by October 16, 2024, and the EPA has
been recommending through its LCRR Inventory Guidance that systems
should identify unknown service lines (USEPA, 2022c). Therefore, the
EPA expects water systems will be prepared to make necessary progress
to identify unknown service lines without setting an earlier deadline
for inventory completion.
c. Final Rule Requirements
In the final LCRI, water systems are required to categorize the
material of all unknown service lines in the inventory by the system's
deadline to complete mandatory full service line replacement.
E. Tap Sampling for Lead and Copper
1. Rationale and Proposed LCRI Revisions
Tap sampling for lead and copper is required to evaluate CCT
performance using the action level and serves ``to identify the need
for additional treatment and to ensure that adequate treatment is
installed'' (56 FR 26514, USEPA, 1991). Specifically, the purpose of
tap sampling is to identify situations where the water is too
corrosive, and therefore, can trigger additional actions that water
systems are required to take to reduce lead and copper exposure,
including by reducing the corrosivity of water in a system by
installing or re-optimizing OCCT, or through public education.
Conversely, tap sampling itself is not intended to assess exposure to
lead and copper from drinking water because the sampling protocol is
designed to assess CCT by targeting the highest levels of lead and
copper typically present at the tap, representing the high end of
actual human exposures (USEPA, 1988), rather than designed to capture
typical exposure to consumers. In turn, a system's compliance with the
treatment technique rule is not based on tap sampling results alone,
but rather on compliance with actions triggered by those results.
The EPA designed tap sampling requirements in the LCR primarily to
evaluate the corrosion of lead and copper sources present in the
distribution system. Water systems are required to sample at sites with
a higher potential to contribute lead and copper using a sampling
protocol to ``assess the degree to which a system has minimized
corrosivity for lead and copper'' (56 FR 26520, USEPA, 1991). Tap
sampling under the rule is not intended to represent typical drinking
water consumption or exposure; rather, again, it is intended to
determine the effectiveness of OCCT and whether corresponding actions
are needed to reduce lead levels (USEPA, 2020e).
a. First- and Fifth-Liter Sampling
In the LCRI, the EPA proposed that systems must take first-and-
fifth-liter-paired samples for lead at LSL sites and use the higher of
the two values to calculate the 90th percentile lead level. This
requirement would improve identification of sites with higher levels of
lead at the tap and better determine
[[Page 86485]]
when OCCT or re-optimized OCCT in the system is necessary. The
requirement to take a fifth-liter sample was first promulgated under
the 2021 LCRR, while the requirement to take a first-liter sample is
from the 1991 LCR. Based on evidence from Del Toral et al., 2013,
Deshommes et al., 2016, Masters et al., 2021, and Betanzo et al., 2021
that lead released from LSLs is not reliably captured in just the
first- or fifth-liter sample alone, as discussed in the preamble to the
proposed LCRI, the EPA proposed that systems must collect both liters
during the same sampling event when sampling at sites with LSLs (88 FR
84930, USEPA, 2023a).
Both first- and fifth-liter samples have been determined to provide
information relevant to assess CCT. At the time of the 2021 LCRR, the
EPA determined that fifth-liter samples increase the likelihood that
samples capture water that has been sitting in contact with LSLs. The
EPA recognized that the variability of plumbing configurations does not
allow for a single prescribed sample volume to capture the highest lead
level at every site; however, the EPA reviewed data from Sandvig et al.
(2008), Del Toral et al. (2013), and Lytle et al. (2019) in support of
selecting the fifth-liter sample in the final 2021 LCRR as a screen
that is likely to detect higher lead levels than first-liter samples
alone (86 FR 4226, USEPA, 2021a). In the proposed LCRI, the EPA also
cited Masters et al. (2021) and Deshommes et al. (2016) in support of
maintaining the requirement to collect a fifth-liter sample from the
2021 LCRR (88 FR 84929, USEPA, 2023a).
First-liter samples, which have been implemented as the compliance
sampling protocol since the 1991 LCR, are useful for capturing water
that has been sitting in contact with premise plumbing. For LCRI, the
EPA reviewed implementation data from Michigan's revised LCR that shows
that some samples collected at LSL sites measure higher lead levels in
the first liter than the fifth. Michigan's requirement under State law
to use the higher lead level of the two samples to calculate the 90th
percentile lead level has resulted in more systems exceeding the lead
action level of 0.015 mg/L than only collecting either the first- or
fifth-liter sample (Betanzo at al., 2021). In addition to data from
Michigan, the EPA is aware of studies that have evaluated lead sampling
data collected from multiple liters at the same site in cities
including Washington, DC, Flint, Michigan, and Chicago, Illinois. The
data compiled in these studies similarly show variability in which
liter contains the highest lead level. These data also suggest that
collecting two samples and using the higher of the first- and fifth-
liter lead values at LSL sites captures lead presence more effectively
than collecting only one sample (Masters et al., 2021; Mishrra et al.,
2021).
For the LCRI, the EPA proposed to continue collecting only first-
liter samples at Tier 3 sites comprised of sites with lead connectors
and sites with galvanized service lines and/or galvanized premise
plumbing that were ever downstream of an LSL or connector. The EPA
proposed that the first liter is more appropriate for galvanized
service lines because they contribute lead primarily through the
release of lead particulate. Because the mobilization of particulate
lead can be highly variable, depending upon changes in pressure and
flow volume, velocity, and/or direction (Schock, 1990), particulate
release is not captured consistently in any individual sample. The EPA
proposed that the first liter is also more appropriate for lead
connectors because detectable contributions of lead from lead
connectors are most likely to occur as a result of particulate lead
that has dislodged from the pipe and is caught in premise plumbing,
such as faucet aerators (Deshommes et al., 2016; Lytle et al., 2019).
It is also difficult to identify a single designated service line
sample volume that would capture water that has stagnated in a lead
connector, which are short in length and typically installed closer to
the water main. Additionally, water traveling from the lead connector
to the faucet will undergo dispersion, resulting in lower
concentrations of lead at the tap. At the time of proposal, the EPA
acknowledged that particulate lead is challenging to predict and could
occur in any sample volume. However, the first liter has been
documented to capture the highest fraction of particulate lead
(Deshommes et al., 2010). Therefore, to capture particulate lead
release from lead connectors and from galvanized service lines and/or
galvanized premise plumbing that were ever downstream of an LSL or
connector, the first liter presents the highest likelihood of a single
sample capturing particulate lead.
b. Tiering of Sampling Sites
The EPA proposed three revisions to the tiering criteria as
promulgated under the 2021 LCRR. The EPA proposed to update the
definition for Tier 1 and Tier 2 sites to include sites with premise
plumbing made of lead due to the high potential of lead contributions
associated with premise plumbing made of lead. By ``premise plumbing
made of lead'', the proposal refers to premise plumbing that consists
of pure lead pipes, rather than pipes made from metal alloys that may
contain lead content. When sampled, systems would follow the first-
liter sampling protocol at sites with lead premise plumbing, unless the
site is also served by an LSL, which would require first- and fifth-
liter sampling. The EPA also proposed to correct the Tier 3 description
from the 2021 LCRR that inadvertently described a galvanized site
currently downstream of an LSL as Tier 3 when it is a site served by an
LSL and would meet the criteria of a Tier 1 or 2 site. The proposal
removes the term ``currently'' from the Tier 3 provision to implement
this correction. While the EPA described in the final 2021 LCRR
preamble the agency's intention for galvanized service lines to be
included in Tier 3, the 2021 LCRR Tier 3 provision includes only sites
which ``contain galvanized lines,'' which refers to premise plumbing
material and not service lines. As such, the EPA also proposed to
clarify that sites served by galvanized service lines or containing
galvanized premise plumbing that are identified as ever being
downstream of an LSL or a lead connector in the past are included in
Tier 3.
The EPA also proposed several revisions and additions for sites
included in Tier 3. In addition to maintaining sites with galvanized
premise plumbing that are downstream from a lead connector in Tier 3,
the EPA proposed to expand the sites included in Tier 3 to also include
any sites with galvanized premise plumbing or served by galvanized
service lines that were ever served by a lead connector in the past.
While the EPA was not aware of information at the time of the proposed
LCRI regarding the national extent of homes containing galvanized
premise plumbing that are downstream of a lead source, the addition of
galvanized premise plumbing is consistent with the inclusion of
galvanized service lines that were ever downstream of an LSL as sites
with a higher potential to contribute lead to drinking water than sites
in Tiers 4 and 5. Like galvanized service lines downstream of an LSL
discussed in section IV.E.1.a of this preamble, galvanized premise
plumbing that is downstream of a lead source can also adsorb and
release lead primarily through particulate release.
The EPA also proposed to include in Tier 3 sites with any non-lead
service line material or non-lead premise plumbing that are currently
served by a lead connector. With the proposed revisions to inventory
requirements to include information on lead connectors, some systems
will have improved
[[Page 86486]]
knowledge of sites with lead connectors. The EPA proposed that sites
with lead connectors are not Tier 1 or 2, but Tier 3, based on the
EPA's priorities for the proposed LCRI to identify sites through
sampling with the highest lead levels and the difficulty in detecting
lead contributions for lead connectors, which is similar to galvanized
service lines discussed in section IV.E.1.a of this preamble. At the
time of proposal, the EPA cited Deshommes et al. (2016) and Lytle et
al. (2019) that show detectable contributions of lead from lead
connectors are most likely to occur as a result of particulate lead
that has dislodged from the pipe and is caught in premise plumbing,
such as faucet aerators. The EPA recognized that, due to the limited
length of lead connectors, the amount of lead contributed from them is
expected to be less than from LSLs, which are typically much longer in
length, where all other aspects of the pipes are equal. Under the
proposal, Tier 3 would include: (1) Sites served by galvanized service
lines that ever were downstream of an LSL or lead connector; (2) sites
with galvanized premise plumbing that ever were downstream of an LSL or
lead connector; and (3) other sites currently served by a lead
connector (e.g., a site served by a copper service line downstream of
lead connector.) The EPA proposed to maintain the criteria for Tier 4
and Tier 5.
c. Sample Site Selection
For LCRI, the EPA did not propose any changes to the requirement
for systems to select replacement sampling sites within a reasonable
proximity. In the proposed LCRI, as maintained from the 2021 LCRR,
systems must sample from the same sites in consecutive tap monitoring
periods and, when unable to do so, must select a replacement site that
meets the same tiering criteria and is within reasonable proximity of
the original site.
The EPA also did not propose any changes to the requirement for
systems to sample sites from the highest tier available (Tier 1 is the
highest and Tier 5 is the lowest), as well as the requirement for
systems to collect 100 percent of samples from available LSL sites. The
proposed LCRI specifies that systems may choose alternate sampling
sites when they are not able to gain access to a site.
d. Frequency and Quantity of Sampling
In LCRI, the EPA proposed revisions to tap sampling frequency
requirements to conform with the proposed elimination of the trigger
level. The EPA proposed to maintain six-month monitoring as the
standard monitoring frequency, as well as the pathway to triennial
monitoring for any system that does not exceed the PQL for two
consecutive monitoring periods. With the proposed elimination of the
trigger level, the EPA proposed that small and medium systems
monitoring annually would qualify for triennial monitoring if they do
not exceed the lead and copper action levels for three consecutive
years. The EPA also proposed to maintain the pathway to annual
monitoring for any system that does not exceed the action level for two
consecutive six-month tap monitoring periods, at the lower proposed
action level of 0.010 mg/L. Also, the EPA proposed to maintain the
nine-year reduced monitoring waiver.
The EPA did not propose any changes to the minimum number of
samples required to be collected by systems. The proposed rule
maintained the requirement for systems on annual reduced monitoring to
collect and analyze the standard number of samples for lead and a
reduced number of samples for copper.
e. Standard Monitoring
In LCRI, the EPA proposed that systems with unknown sites in their
inventory at the compliance date would be required to conduct standard
six-month monitoring in the first six-month tap sampling period
following the compliance date. These systems would be in addition to
the 2021 LCRR requirement, which was maintained in the proposed LCRI,
that any systems with lead and/or GRR service lines in their inventory
at the compliance date conduct standard monitoring beginning with the
first full six-month monitoring period after the compliance date. The
proposed requirement to begin standard monitoring following the
compliance date was accompanied by the proposed requirement for systems
to submit an updated site sample plan to the State prior to the first
tap monitoring period, as described in section IV.N of this preamble.
The EPA proposed that systems with lead, GRR, and unknown service lines
sample under the standard monitoring schedule to ensure that systems
with the highest potential for lead, and which are most impacted by the
changes to sampling protocol, could determine whether they are
exceeding the new action level as soon as practicable to determine next
steps such as remediation activities through CCT or public education to
protect public health. Systems required to conduct standard monitoring
in accordance with this requirement would need to complete two
consecutive, six-month tap monitoring periods before they could qualify
for a reduced monitoring schedule.
f. 90th Percentile Value Calculation and Inclusion of Additional
Samples
The EPA proposed to maintain the LCRR approach for calculating the
90th percentile level when a system with LSLs does not have enough
sites in Tiers 1 and 2 to meet the minimum number of samples required.
Specifically, a system must use all samples collected at Tier 1 and 2
sites and only the highest results from samples collected at Tier 3, 4,
and 5 sites (in that order) to meet the minimum number of samples. For
example, if a system is required to collect 100 samples and the system
collects 80 samples at Tier 1 and 2 sites, and 30 at Tier 3 sites, the
system would have to use the 80 samples from Tier 1 and 2 sites and
only the 20 samples with the highest lead concentration from the Tier 3
sites. While the EPA was not aware of situations where higher
concentrations in lower tiers are expected, as discussed in the
preamble to the proposed LCRI (88 FR 84932, USEPA, 2023a), the purpose
of this proposed requirement was to prevent systems from collecting
additional samples from sites less likely to contain lead (i.e., Tiers
3, 4, and 5) to reduce their 90th percentile lead value.
The EPA proposed to clarify that water systems seeking to reduce
monitoring frequency or cease specific actions under the rule,
including CCT and public education-related requirements, cannot do so
with fewer than the required minimum number of samples. For example, a
small or medium system without CCT would be allowed to propose stopping
the CCT steps using data showing the system is at or below the lead
action level for two consecutive tap monitoring periods. As described
in the preamble to the proposed LCRI, systems have been advised in past
EPA guidance to calculate 90th percentile lead and/or copper levels
even when there are insufficient samples (88 FR 84932, USEPA 2004c,
USEPA 2023a). Under the proposed rule, the data showing the system has
a 90th percentile lead level at or below the lead action level must be
calculated from a compliance data set of at least the minimum number of
samples required. In other words, a system with an insufficient number
of samples cannot use the results to reduce treatment technique
actions. The EPA proposed this clarification to improve implementation.
In addition, the agency is concerned that water systems may
purposefully fail to comply with the minimum monitoring requirements in
[[Page 86487]]
an attempt to reduce required compliance actions through provisions
intended for systems with demonstrated lower lead or copper levels.
The EPA proposed to exclude additional samples collected as part of
required monitoring following full or partial service line replacement
from the 90th percentile calculation. The 2021 LCRR requires water
systems to use results of any additional monitoring (e.g., consumer-
requested samples) in the 90th percentile calculation if the samples
meet the tiering and sample protocol requirements. At the time of the
LCRI proposal, the EPA was concerned that water systems may include
samples from follow-up monitoring following full or partial replacement
that may not be known to meet the correct sampling tier and may not be
reflective of corrosion control performance.
The EPA proposed to maintain flexibility for systems sampling at
sites in response to customer requests to use alternative sample
volumes and stagnation times. The EPA proposed a revision to require
these samples to include sample volumes representative of both premise
plumbing and the service line when the customer is served by a lead,
GRR, or unknown service line (see section IV.J of this preamble for
details on consumer-requested sampling). The EPA also proposed to
maintain the requirement for these additional samples to be included in
the 90th percentile calculation only if the sample meets the compliance
site tiering and sampling protocol, including stagnation time, sample
volume, and whether the sample is collected within the tap sampling
period.
g. Wide-Mouth Bottles
The EPA proposed a revised definition of wide-mouth bottles for tap
sampling to address uncertainty around which diameter should be
measured. In the proposed LCRI, the EPA clarified the definition for
wide-mouth bottles to specify it means bottles that are one liter in
volume with a mouth, the outer diameter of which measures at least 55
mm wide (see section IV.O.3 of this preamble).
h. Sample Invalidation
The EPA proposed that States have the authority to invalidate
samples not collected in accordance with Sec. 141.86(b)(1), including
requirements for minimum stagnation period, sample volume, sample
bottle characteristics, sample collection location, and rules regarding
sampling instructions. The EPA proposed that this authority is in
addition to the existing authority under the 2000 LCR for States to
invalidate samples not collected in accordance with the tiering
criteria in Sec. 141.86(a)(4). The proposed revision would allow
States to invalidate samples based on information regarding sample
collection. For example, the rule specifies collection of samples at a
kitchen or bathroom sink cold-water tap. If a sample was taken at a
hose bib, States could invalidate that sample because it would not meet
the sample collection criteria.
i. Practical Quantitation Limit
The PQL is defined at 40 CFR 141.2 as the minimum concentration of
an analyte (substance) that can be measured with a high degree of
confidence that the analyte is present at or above that concentration.
PQL is the level established in a regulation to identify the lowest
reliable concentration of an analyte laboratories are able to measure.
For the proposed LCRI, the EPA reconsidered the practical
quantitation limit used in the LCR to see if there was evidence to
support lowering it. The lead practical quantitation limit is currently
set at 0.005 mg/L and is incorporated into the National Environmental
Laboratory Accreditation Conference (NELAC) Institute (The NELAC
Institute, 2021) accreditation process. NELAC was established by the
EPA in 1995 to develop consensus national standards for environmental
laboratory accreditation. These established standards work to ensure
the quality of environmental data from lab to lab. The EPA also
received data, during the development of the proposed LCRI, from a
company that conducts proficiency testing and at that time, the agency
was not aware of data to support proposing to lower the PQL (``Lead
Drinking Water Proficiency Testing Data (2016-2022)'' available in the
LCRI docket EPA-HQ-OW-2022-0801). The EPA also noted that while the
method detection limit (MDL) of lead can be as low as 0.0006 mg/L under
certain EPA approved methods (Diebler, 2013), the PQL is set higher
than the method detection limit to account for analytical variability,
along with the EPA's standard practice of adding an uncertainty factor
of 5-10 (53 FR 31550, USEPA, 1988). Thus, the EPA proposed that the
current practical quantification limit of 0.005 mg/L is consistent with
published detection limits. Further, the EPA was not aware of national-
scale data evaluating lead detection limits, or on the number or
percentage of labs nationwide measuring lower levels. The EPA was not
aware of any additional evidence to support lowering the current lead
PQL below 0.005 mg/L in the proposed LCRI.
2. Summary of Comments and the EPA's Response
a. First- and Fifth-Liter Sampling
The EPA received many comments supporting the proposed sampling
protocol, including the use of the higher of the first- and fifth-liter
sample in the 90th percentile calculation. These commenters stated that
the first- and fifth-liter protocol better assesses situations with a
higher potential of lead faced by consumers. Some commenters expressed
concern that the fifth-liter sample does not adequately represent CCT
performance. Other commenters asserted that the fifth-liter sample
should not be used for multi-family sites because it is not possible to
meet the intent of sampling, including both capturing water in contact
with the service line and meeting the six-hour minimum stagnation time.
Some that supported the proposed protocol requested that it be applied
in additional situations, such as at Tier 3 sites and at sites
following service line removal.
The EPA agrees with comments in support of requiring systems to
collect the first- and fifth-liter samples at sites served by LSLs. As
discussed in the proposed LCRI under section V.C.1, the EPA evaluated
implementation data from Michigan's revised LCR that shows some first-
liter samples collected at LSL sites measure higher lead levels than
fifth-liter samples collected at the same sites (Betanzo at al., 2021).
The EPA cited Masters et al. (2021) and Mishrra et al. (2021) which
also show results where the first and fifth liters are more effective
than either sample alone at indicating the presence of lead in drinking
water.
The EPA disagrees that the fifth-liter sample should not be used
for compliance sampling. The EPA acknowledged in the final LCRR
preamble that the fifth-liter sample may not correspond to the sample
volume with the highest lead levels in all cases, but selected it as a
sample ``more representative of lead concentrations in service lines
than the first-liter sample'' and ``most likely to contain the water
that remained stagnant within a customer-owned portion LSL'' (86 FR
4226, USEPA, 2021a). This remains true for multi-family residences
where the LSL may reside at a location farther than that captured by
the fifth liter, but the fifth liter, as compared to the first liter,
will capture water that has undergone less dispersion since the LSL.
For this reason, the EPA does not agree that the
[[Page 86488]]
fifth liter should not be used at multi-family residences. The EPA also
disagrees that the fifth liter cannot be used to assess CCT
performance. Both first- and fifth-liter samples seek to identify
situations with high lead levels, specifically by selecting the water
volumes most likely to contain elevated lead levels, that can be
remedied by adjustments to CCT and public education outreach.
The EPA does not agree the first- and fifth-liter sampling protocol
should be applied to Tier 3 sites. As previously discussed in IV.E.1.a
of this preamble, the fifth liter does not help to assess CCT
performance in situations such as galvanized service lines where
particulate lead is the most likely contributor to lead in drinking
water and lead connectors where lead components are situated far from
the tap and undergo dispersion prior to reaching the tap. Specifically,
in these situations, a first-liter sample is more appropriate to
evaluate CCT as it will capture water in contact with particulate lead
trapped in premise plumbing.
The EPA also requested comment on ``the applicability of alternate
sampling protocols to assess CCT performance, increase customer
participation, and other relevant factors.'' Commenters requested that
only the fifth liter be used to calculate the 90th percentile since
systems are not required to remove premise plumbing features containing
lead. Similarly, commenters cited concerns over the requirement to
leave aerators in place during sampling because systems do not have to
clean aerators with trapped particulate. Other commenters expressed
support for only using the first liter in 90th percentile calculations,
since the lead and copper NPDWRs implemented to date have only required
systems to take first-liter samples and thus, fifth-liter samples would
be a departure from tap sampling used in the past to evaluate CCT
performance. The EPA interprets this comment to indicate that the
commenter feels a long record of sampling under a single protocol
offers valuable information when applying the data to decisions
regarding CCT. One commenter requested the EPA further study the
potential of random daytime sampling as a method that better represents
lead and copper exposure and is easier to implement, since the method
does not require a set stagnation period. Lastly, the EPA also received
a request to allow the use of updated lead-sensing technology, such as
a rapid biosensor test that can evaluate the presence of lead above
0.010 mg/L in water, as part of a CCT evaluation protocol.
The EPA disagrees with only requiring systems to consider the
fifth-liter sample in calculating the 90th percentile and also
disagrees that systems are not responsible for controlling for lead in
premise plumbing through CCT, including lead trapped in faucet
aerators. While systems are not required to remove lead premise
plumbing materials, the EPA determined in the LCR that water systems
can affect lead levels at the tap by adjusting the corrosivity of the
water delivered to consumer so it will not leach lead from multiple
sources of lead in the distribution system, including premise plumbing
(see section IV.A of this preamble for further discussion on the EPA's
regulatory approach). Additionally, as described in the proposed LCRI
in section V.C.1 (88 FR 84929, USEPA, 2023a), the first-liter sample
can capture higher levels of lead from LSLs than the fifth-liter sample
in some conditions. Specifically, when water chemistry results in the
formation of relatively fragile scales, maximum lead values have been
documented in the first liter of sampling at some homes in Flint,
Michigan (Lytle et al., 2019), Washington, DC (Clark et al., 2014),
Providence, Rhode Island (Clark et al., 2014), and Chicago, Illinois
(Masters et al., 2021). The lead release captured in the first liter is
attributed primarily to lead particles that can become detached, such
as from the LSL or from galvanized pipes that are or were downstream of
lead pipes, and have accumulated in the premise plumbing. Therefore,
the EPA finds that systems should continue to sample the first liter,
as required under the 1991 LCR, in addition to the fifth liter, as
incorporated from the 2021 LCRR, to best identify situations where CCT
is operating insufficiently to prevent lead in drinking water.
The EPA disagrees that past use of first-liter sampling prevents
the agency from adopting a new protocol based on new and updated
information because prior requirements, including tap sampling
protocols, do not limit the agency's ability to update lead and copper
NPDWRs based on the best-available scientific and technical information
and the learned experiences of States and systems. The first- and
fifth-liter sampling protocol has been implemented for several years at
the State-level in Michigan and is accompanied by evidence
demonstrating that the protocol proposed by the EPA is better able to
identify lead presence than the first- or fifth-liter sample alone
(Betanzo et al., 2021). The EPA disagrees that the first- and fifth-
liter sampling protocol is less effective for evaluating CCT than the
first-liter sampling protocol. The first- and fifth-liter sampling
protocol is suitable for compliance testing because it uses the same
basis for evaluation of CCT performance as was used for the first-liter
sampling protocol--that is, whether lead is released as either
dissolved or particulate lead. The EPA agrees that systems' history of
first-liter sampling since the 1991 LCR will offer systems valuable
information about their CCT performance and adds that the fifth-liter
samples will improve the information available to make decisions
regarding CCT. Additionally, as previously discussed in IV.E.1.a of
this section, the EPA finds that the fifth liter can capture water in
contact with the service line in many, though not all, sites. Further,
the EPA disagrees that the change is too difficult for systems and
States to implement. Without revisions in the LCRI, a fifth-liter-only
protocol is in effect under the 2021 LCRR. The EPA is adding the fifth-
liter sample, which many systems are currently preparing to implement,
to the existing first-liter sample to improve the monitoring technique
for detection of lead at drinking water taps when service line sources
of lead are known.
The EPA acknowledges that a protocol with reduced stagnation time
can ease consumer sampling burdens. However, no commenters submitted,
and the EPA does not find that there is, sufficient information to
select random daytime sampling and other alternative sampling
technologies in lieu of the current sampling protocol for the
assessment of CCT, especially for sampling water in contact with the
service line. The first-liter and the first- and fifth-liter sampling
protocols in the LCRI are required in combination with tiering criteria
that prioritize sites with the highest potential exposure to lead and
copper to conduct targeted assessments of systemwide CCT performance.
The agency does not agree that these alternative sampling methodologies
have been shown to provide equal or improved public health protection
as a compliance strategy without further study.
Regarding comments requesting that the EPA consider the use of
rapid at home testing for lead in drinking water for regulatory
compliance, the EPA does not agree that there currently is a role for
rapid at-home lead-sensing technology for assessment of the
effectiveness of CCT. Generally, at-home lead-sensing technologies can
be characterized as qualitative because they do not assess the
contribution of particulate lead. Qualitative, at-home
[[Page 86489]]
tests are useful for assessing the potential presence of lead in
drinking water but not for making quantitative assessments; nor do they
account for the variability of lead levels as discussed in section IV.A
of this preamble.
b. Tiering of Sampling Sites
For the proposed LCRI, the EPA requested comment on the sites
included in Tier 3 and whether all of the proposed sites should be
included in Tier 3, if additional sites should be included, or if some
should be included in a different, lower priority tier, such as Tier 4.
Specifically, comment on whether sites served by galvanized service
lines or containing galvanized premise plumbing that are identified as
ever being downstream of an LSL or lead connector should be included in
the same tier as other sites with a current lead connector (e.g.,
copper service line downstream of a lead connector). The EPA received
comments on the sites proposed to be prioritized in Tier 3, including
requests to move sites with galvanized service lines downstream of a
previously removed lead connector and sites with lead connectors to a
lower tier than sites with lead solder, which were proposed to be
included in Tier 4. In support of this recommended revision, commenters
described data showing that lead levels at sites served by galvanized
service lines downstream of previously removed lead connectors were
consistently lower than lead levels at sites with lead solder. However,
these commenters did not provide the data described to the EPA. The EPA
also received comments both in support of, and stating concerns with,
including sites characterized by premise plumbing in the tiering
criteria. The latter commenters articulated concerns over whether
systems would be required to inspect plumbing within structures to
determine whether they contain material that would place the structure
in a sampling tier, such as Tier 1 or 2 for sites with lead premise
plumbing and Tier 3 for sites with galvanized premise plumbing. Some
commenters provided support for including lead connectors in Tier 3 and
agreed connectors should be in lower tiers than sites served by LSLs.
Lastly, the EPA received requests to simplify the tiering structure,
including suggestions to remove premise plumbing characteristics and a
suggestion to remove multi-family versus single-family structure
characteristics. Commenters asserted that complicated tiering is
difficult to implement when homeowners are the ones conducting
sampling.
The EPA agrees that galvanized service lines downstream of a
previously removed lead connector are likely to present a lower
likelihood of contributing to lead in drinking water than sites with
galvanized service lines downstream of a previously removed LSL (Tier
3) as well as sites with lead solder (Tier 4). Lead connectors are
shorter in length than LSLs and the length of LSL has been correlated
with the amount of lead released (Deshommes 2016). Thus, a relatively
shorter upstream lead connector may lead to less buildup of lead-
containing scale on downstream galvanized pipe scale than an upstream
LSL. For the final LCRI, Tier 5 includes sites that are representative
of sites throughout the distribution system. Where galvanized service
lines downstream of a previously removed connector are representative
of sites throughout the distribution system, they would be sampled in
Tier 5.
As proposed, the EPA placed sites with lead connectors in Tier 3.
The EPA agrees with commenters that sites with lead connectors should
be tiered below sites with LSLs in Tiers 1 and 2. The EPA also
emphasizes that sites with minor variations in the likelihood of lead
contributions do not need to be prioritized into separate tiers since
further divisions within tiers would result in smaller pools of sites
that are likely to be insufficient to equal or exceed the minimum
required number of samples. All samples included in the 90th percentile
calculation are given equal weight in the 90th percentile calculation,
including samples from different tiers and samples with different
probability of lead contribution within the same tier. The equal weight
given in the 90th percentile calculation means that even if sites are
prioritized differently for sample collection, once they are sampled
and if used in the calculation of the 90th percentile, each site
contributes equally in the calculation. Sites such as those grouped
under Tier 3, each of which may have slightly higher or lower
likelihood of contributing lead to drinking water, will all be included
in the 90th percentile calculation. Therefore, while the types of sites
included in Tier 3 may have slight differences in the likelihood of
contributing lead, in many cases, systems will likely need to sample at
multiple types of Tier 3 sites to meet their minimum required number of
sites and consider those samples equally for compliance purposes.
As previously stated, the EPA disagrees that systems should not be
required to sample for lead in drinking water when the lead sources are
in premise plumbing. Premise plumbing, like service lines, is impacted
by the corrosivity of the tap water. Thus, preventing the leaching of
lead and copper from premise plumbing as a result of water corrosivity
is under the control of water systems. The purpose of sampling at sites
with premise plumbing known to contain lead is to alert the system to
potential corrosion control issues leading to elevated lead in such
sites. Commenters opposed to including premise plumbing in site tiering
may be incorrectly characterizing the requirement to identify premise
plumbing materials in their service line inventory. The LCRI does not
require water systems to conduct material inventories for premise
plumbing as required for service lines (Sec. 141.84(a)); however, the
LCRI does require that sites with lead premise plumbing and galvanized
premise plumbing material ever having been downstream of a LSL be
included as part of site sample collection if known to the water
system. Systems should include sites with lead premise plumbing as Tier
1 or 2 and galvanized premise plumbing ever having been downstream of a
LSL as Tier 3 when they are aware of the material composition; however,
again, the LCRI does not require systems to proactively identify or
inventory where lead premise plumbing exists for purposes of meeting
the tiering requirements. Systems may encounter premise plumbing in the
course of normal operations including through service line
identification and replacement that would provide information to inform
tier site selection.
The EPA disagrees with commenter suggestions to remove premise
plumbing from sample tiering, for reasons described above, and with
suggestions to combine single-family and multi-family structures. The
2021 LCRR maintained the tiering structure established in the LCR for
prioritized, targeted monitoring of sites with a higher potential for
lead contribution to drinking water, with the highest priority tiers
(Tiers 1 and 2) comprised of sites with LSLs representing the sites
with the highest potential to contribute lead. Tier 1 sites include
single-family structures served by LSLs and Tier 2 sites include multi-
family residences served by LSLs. The Tier 2 sites serve to distinguish
multi-family structures with lead as sites with a higher potential to
contribute lead to drinking water than Tier 3 sites, which are sites
that are served by a lead connector or sites served by a galvanized
service line or containing galvanized premise plumbing that are
identified as ever
[[Page 86490]]
having been downstream of a lead service line. In addition, the EPA did
not include multi-family structures in Tier 1 because they have more
complex plumbing layouts compared to single-family structures in Tier
1. While the fifth-liter sample increases the chance of detecting water
that has been sitting in contact with an LSL, generally, it is more
difficult to detect corrosion control issues in multi-family structures
as compared to single-family structures.
c. Sample Site Selection
The EPA received comments regarding the selection of replacement
sites from the sampling pool when previously sampled sites are no
longer accessible, and the timing under which systems can sample at
replacement sites, including sites that are in a lower tier.
Specifically, as mandatory service line replacement is underway,
commenters expressed concern over identifying replacement sites as the
number of sites in Tiers 1 and 2 diminish. Commenters expressed concern
that the requirement for systems to sample at 100 percent of LSL sites
under Sec. 141.86(a)(3) could make them repeatedly return to homes
with LSLs that have refused or declined to respond to requests for
sampling. Commenters requested the EPA better describe how and when
sites can be considered unavailable. Another comment suggested that
systems should be required to maintain records on customer refusals for
tap sampling for customers with Tier 1 sites. Commenters noted this
recordkeeping would help States ensure that no Tier 1 sites are missed
by systems. Commenters also expressed concern over the requirement for
systems to replace unavailable sampling sites with locations in a
reasonable proximity. These commenters stated it could be difficult for
systems to interpret the meaning of ``reasonable proximity.''
The EPA agrees that systems should be able to consider sites
unavailable when customers refuse to participate in tap sampling,
recognizing the tap sampling sites are within structures such as homes,
and that this would constitute a lack of access by the system to
conduct tap sampling at that site (see section IV.A of this preamble
for details on control). As such, the EPA added a provision to the
final LCRI at Sec. 141.86(a)(4) to allow systems to consider sites
unavailable for tap sampling after a customer refuses to participate or
a customer does not respond after two outreach attempts.
In addition, the EPA agrees in part with requests to add system
reporting requirements to help States review when customer refusals
lead to a lack of access for tap sampling and systems sample at
replacement sites. To assist State tracking of system activities
related to selection of replacement sites, the EPA added a requirement
to the final LCRI at Sec. 141.90(a)(2)(viii) for systems to report the
number of customer refusals to participate in tap sampling during each
tap sampling period. This requirement is in addition to existing
reporting requirements under Sec. 141.90(a)(2)(v) for systems to
provide an explanation for any site sampled for compliance monitoring
that was not sampled in the previous tap monitoring period.
The EPA also agrees that the 2021 LCRR requirement to identify
replacement sites within a reasonable proximity as this could be
challenging to interpret and is no longer needed with the LCRI
requirement of mandatory service line replacement. Therefore, the EPA
removed this requirement in the final LCRI.
The EPA requested comment on ``whether State authority to specify
sampling locations when a system is conducting reduced monitoring
should apply regardless of the number of taps meeting sample site
criteria.'' Commenters expressed that States may not have the
appropriate information to specify locations, or if they have that
knowledge, they may not have the resources or capacity to do so. Others
expressed that States will likely not exercise their authority to
specify locations, but the authority may come in use from time to time.
The EPA disagrees that States do not have the information necessary
to specify accurately tiered locations since systems are required to
report their inventory of service line material to the State under
Sec. 141.90(e). States have access to information provided by systems,
submitted via both site sample plans and service line material
inventories, and are able to review them, as needed, to determine if
the selected sampling pool should be modified to prioritize sampling at
sites with a higher potential for lead contribution. State review of
sampling locations can be helpful to assess system-specific situations
where the selection of sites, even when the selection meets rule
requirements, underestimates the potential for lead in the systems
drinking water (Stratton, et al., 2023). The final LCRI maintains the
authority for States to require modifications to site sample plans, but
does not require that States review and approve them. The option to
review site sample plans enables States to prioritize resources for the
systems most in need of oversight. The EPA encourages States to review
site sample plans to provide feedback to systems to ensure that their
sampling approach meets the requirements under the LCRI, instead of
waiting until sample results are submitted to the State to alert
systems to issues in the sampling approach that could result in the
need to resample, such as due to incorrect tiering.
The EPA also received a comment requesting clarification on whether
sites with installed point-of-use treatment can be sampled for lead and
copper when the point-of-use device is bypassed. Installed point-of-use
devices are those attached to premise plumbing and deliver treated
water through a tap. While point-of-use devices can be bypassed, such
that samples can be collected through premise plumbing without passing
through the point-of-use device, doing so requires a more complex
sampling protocol. The EPA disagrees with increasing the complexity of
tap sampling in this way and did not make changes to the final LCRI to
allow for sampling at bypassed sites. Therefore, the final LCRI does
not allow sites with installed point-of-use or point-of-entry devices
to be selected for compliance tap sampling, except in water systems
using these devices at all service connections for primary drinking
water taps to meet other primary and secondary drinking water standards
as under Sec. 141.93(c)(1).
d. Frequency and Quantity of Sampling
The EPA received comments regarding the number of sites sampled and
the frequency of sampling.
i. Minimum Number of Sites
Some commenters were concerned that the reduced minimum number of
sites required for systems on reduced monitoring is insufficient and
recommended that systems always collect at the standard minimum number
of sites regardless of their monitoring schedule. Other commenters
supported the use of a reduced number of monitoring sites but suggested
the EPA simplify and reduce burden on systems by requiring those on
annual reduced monitoring to sample at a reduced number of sites for
both lead and copper instead of the current requirement to sample at
the standard number of sites for lead and the reduced number of sites
for copper.
The EPA disagrees with commenters stating the number of sampling
sites required for reduced monitoring is too low or that all systems
should sample at the same number of sites. Reduced sampling
requirements effectively prioritize sampling resources, including
[[Page 86491]]
State time and effort, to systems with the highest potential for lead
and copper in drinking water. Additionally, the lower lead action level
means that systems must meet a stricter threshold to qualify for
reduced monitoring. The EPA is maintaining the requirements for reduced
monitoring in the final LCRI; systems can only qualify for a reduced
minimum number of monitoring sites after they have demonstrated low
levels of lead in at least two consecutive tap monitoring periods. At
their discretion, systems remain able to collect samples above the
minimum number required, including samples taken by customer request
under Sec. 141.85(c) that meet the requirements for compliance lead
and copper samples.
The EPA does not agree that requiring different minimum numbers of
sites for annual monitoring of lead and of copper is too burdensome or
confusing for systems because the same sample can be used for both lead
and copper analysis. The tiering criteria for site selection is not
dependent on whether the sample is collected for both lead and copper
analysis or only lead analysis. Systems only need to collect one first-
liter or first-and-fifth-liter-paired sample from sites equal to the
standard minimum number of sites to meet the requirements of annual
reduced monitoring according to Sec. 141.86(d)(2)(i). All samples
collected from the standard minimum number of sites are analyzed for
lead. Then, systems are only required to analyze a portion of those
samples equal to the reduced minimum required number of copper
monitoring sites, thus reducing the costs of sample analysis.
The EPA maintains that a standard number of monitoring sites for
lead for systems on an annual reduced monitoring schedule is reasonable
and disagrees with comments that systems on annual reduced monitoring
should sample at a reduced number of sites for both lead and copper.
The purpose of reduced monitoring is to alleviate sampling burdens on
systems with a lower potential of lead and copper occurrence in
drinking water, while maintaining a minimum level of monitoring
commensurate to the likelihood of deviations in CCT performance.
Systems on annual reduced monitoring already have a reduced burden by
sampling once instead of twice per year, thereby representing a burden
reduction even when sampling at the standard number of sites for lead.
Furthermore, triennial reduced monitoring, where systems sample every
three years at a reduced number of sites for both lead and copper, is
allowed only after systems have met more rigorous requirements of three
years at or below the action level or one year at or below the PQL and
systems with CCT must also maintain their OWQPs. Reduced monitoring on
a triennial schedule is reserved for the systems with the lowest
potential of lead and copper in drinking water, as evidenced by
consistently low levels of lead. The final LCRI maintains the standard
number of sites for lead on an annual monitoring schedule due to the
critical role of sampling in assessing issues in CCT performance and
the goal of preventing adverse health effects from lead to the extent
feasible. See section IV.M of this preamble for details on the LCRI
approach to copper.
ii. Nine-Year Waiver
Some commenters recommended the EPA eliminate the nine-year waiver
to limit the amount of time between sampling. The EPA disagrees that
the nine-year waivers, which includes the copper waiver and lead
waiver, should be eliminated. The nine-year waivers, which have been a
part of the lead and copper NPDWRs since the 2000 LCR, offer
flexibility to the smallest systems, and requires that those systems
meet strict criteria to receive a waiver. Specifically, water systems
must meet both a materials criteria (Sec. 141.86(g)(1)) and a
monitoring criteria (Sec. 141.86(g)(2)). Water systems may qualify for
a lead and/or copper waiver to monitor at a nine-year frequency only if
they certify to the State that the system has no lead and/or copper-
containing plumbing materials in their system, including premise
plumbing, and have sampling results that do not exceed the lead and/or
copper PQLs, respectively. The nine-year waivers provide very small
systems with the lowest potential for lead and/or copper a potential
pathway to allocate limited resources for other purposes. The nine-year
waivers are not available to larger systems since it is not feasible
for larger systems to determine a complete absence of plumbing
materials containing lead and/or copper in their distribution system
and premise plumbing.
iii. Sampling During Mandatory Service Line Replacement
The EPA also received feedback that sampling during mandatory
service line replacement would place too much burden on systems. In
response, some commenters requested the EPA waive sampling requirements
until service line replacement is completed to help systems meet
service line replacement deadlines. The EPA does not agree that systems
should be allowed to waive or otherwise suspend sampling during service
line replacement because it is important and feasible for systems to
maintain the treatment technique for CCT and public education during
service line replacement, which includes maintaining OCCT and taking
public education actions following an action level exceedance. Tap
sampling is a critical component for both assessing CCT performance and
requiring certain public education activities. Further, systems have
been conducting sampling under the LCR for many years and already have
processes and experience in place to continue conducting monitoring.
e. Standard Monitoring
The EPA requested comment on whether a phased or alternative
approach should be considered for systems required to begin standard
monitoring and required to submit site sample plans to the State by the
start of the first full tap sampling period following the compliance
date. Commenters expressed concerns over the ability of States to
review new site sample plans in a short timeframe, lab capacity and
supply chain issues, and the ability of systems to simultaneously
implement additional monitoring requirements while conducting mandatory
service line replacement. Commenters offered several suggestions for
phased and alternate approaches. Commenters suggested that systems be
phased into standard monitoring based on system size, such as an
approach similar to one employed under another EPA rule, the Stage 2
Disinfection By-products Rule. Commenters recommended large systems
should comply with standard monitoring first. These commenters argued
this option would offer the most public health protection since large
systems combined serve the greatest total number of people, while
allowing smaller systems, which serve fewer people and typically have
more limited resources, more time before beginning standard monitoring.
Other commenters suggested that small systems should comply soonest
followed by medium systems and then large systems, as small systems
have the least complex site sample plans and require the least review.
These commenters indicated that site sample plans from larger systems,
which sample at the greatest number of sites, will require more time
for States to review them. Other commenters suggested that systems be
staggered according to the value of their 90th percentile lead level,
where systems with the highest lead levels would be required to begin
standard monitoring
[[Page 86492]]
before systems with lower lead levels. This approach would prioritize
State and system resources to review and implement sampling at the
greatest number of sites and with the highest frequency for systems
with the highest potential for lead and copper in drinking water.
Additionally, the EPA received comment that all systems should be
required to conduct two rounds of standard monitoring as a result of
promulgating the LCRI, with varied suggestions ranging from one year
after promulgation to dates staggered for the first few years after the
compliance date. Lastly, the EPA received suggestions for exemptions
conducting standard monitoring at the compliance date, including
systems with State-approved supplemental monitoring programs and
systems already implementing first- and fifth-liter monitoring at LSL
sites.
The EPA agrees that the rule should both limit the burden on
systems and States and prioritize actions that are most protective of
public health to the extent feasible. To facilitate these goals, the
EPA is finalizing requirements at Sec. 141.86(c)(2)(i) for only those
systems with any lead and/or GRR service lines in their inventory at
the compliance date and at Sec. 141.86(c)(2)(ii) for any system at the
compliance date whose most recent 90th percentile lead and/or copper
levels exceed the action levels under the LCRI to conduct standard
monitoring starting with the first full tap monitoring period after the
compliance date. The EPA does not agree that systems with known lead-
contributing service lines should delay monitoring, since it is
important to assess CCT with the updated tap sampling protocol for
systems with known sources of lead. Systems without known lead and GRR
service lines in their inventory at the compliance date will only be
required to conduct standard monitoring if they do not qualify for
reduced monitoring, including meeting the lead and copper action levels
under the LCRI. This incentivizes systems to identify and replace all
lead and GRR service lines in their distribution system before the
compliance date, resulting in the public health benefits of service
line replacement to be realized more quickly. Additionally, systems
with lead and GRR service lines that adopt the sampling protocol under
the LCRI prior to the compliance date and measure 90th percentile
levels at or below the LCRI action levels are not required to conduct
standard monitoring at the compliance date. More specifically, for
systems with lead and GRR service lines to stay on reduced monitoring,
the complete sampling protocol must include the first- and fifth-liter
sampling protocol at sites served by LSLs as described in Sec.
141.86(b)(1)(ii), all sample collection requirements in Sec.
141.86(b)(1) and (3) (such as stagnation times and sample volume), and
priority tiering requirements to sample at sites served by lead and GRR
service lines as described in Sec. 141.86(a).
The EPA is not finalizing the proposed requirement to require
systems with unknown sites but no lead and/or GRR service line sites in
their inventory at the compliance date to start standard six-month
monitoring in the first six-month tap sampling period following the
LCRI compliance date. The EPA has determined that systems with known
lead and GRR service lines have the greatest potential to have lead
that can be better identified with the revised tap sampling protocols.
By requiring these systems to implement the revised tiering and tap
sampling protocols as soon as possible, the final rule facilitates
expedited identification of systems that need to take additional
actions based on their tap sampling results to reduce drinking water
lead exposure and protect public health. Systems with unknown service
lines but without at least one known lead and/or GRR service line on
the LCRI compliance date will not have to meet the standard monitoring
requirements under the LCRI unless they identify a known lead or GRR
service line among their unknown lines or are required by another
provision in the LCRI, such as exceeding the action level or conducting
source water/treatment changes. The EPA estimates that many of the
systems with either all unknown service lines or a combination of
unknown and non-lead service lines are small water systems. This
conclusion is based on an evaluation of the 7th Drinking Water
Information Needs Survey and Assessment, which indicated that an
estimated 44 percent of small systems serving 3,300 persons or fewer,
approximately 20,000 systems, have either all service lines of unknown
material or some service lines of unknown materials and non-lead
service lines (USEPA, 2024a, chapter 3). The EPA believes these systems
will better be able to focus time and resources on the service line
materials inventory requirement to determine the material of all
unknown service lines which can lead to improved public health
protection such as the replacement of an LSL. The EPA notes that these
systems would be required to start standard monitoring on the
compliance date if their most recent 90th percentile level exceeds
0.010 mg/L (Sec. 141.86(c)(2)(ii)).
Allowing systems with unknowns to focus on developing their
inventory can result in greater public health benefits by prioritizing
the investigation of unknowns, which could lead to the identification
of lead and/or GRR service lines. Additionally, the final LCRI, under
Sec. 141.86(c)(2)(iii)(H), requires that if a system identifies a lead
or GRR service line at any time, it is required to conduct standard
monitoring in the next six-month tap sampling period. Therefore,
systems cannot avoid standard monitoring by postponing development of
their service line materials inventory. If a system identifies a lead
and/or GRR service line in its inventory, it must sample at the highest
tiered sites according to the final LCRI's revised tiering and tap
sampling protocols until all lead and GRR service lines are replaced.
Water systems without lead or GRR service lines in their inventory must
start standard monitoring if they subsequently discover a lead or GRR
service line in the distribution system, unless the system replaces all
the identified service lines prior to the start of the next tap
monitoring period. If a system can replace those service lines prior to
the next tap monitoring period, it would be a system with no lead and/
or GRR service lines and therefore, would not need to start standard
monitoring. The EPA does not anticipate that this requirement will
disincentivize water systems from developing their inventory in order
to avoid standard monitoring. Because the service line replacement pool
includes unknowns, water systems are strongly incentivized to
investigate the material of unknowns to reduce the annual number of
replacements they must conduct (i.e., where unknowns are determined to
be non-lead). Additionally, the identification of unknowns as non-lead
service lines can reduce system burden in other rule areas, such as
providing annual public education to persons served by unknown service
lines and risk mitigation measures following service line disturbance.
Systems on reduced monitoring that are not required to start
standard monitoring at the first six-month tap sampling period
following the LCRI compliance date will continue reduced monitoring in
accordance with the requirements of the LCRI. Systems that do not meet
the reduced monitoring criteria, including measuring 90th percentile
lead and copper levels at or below the action levels of 0.010 mg/L and
1.3 mg/L, respectively, in the tap sampling period prior to the
compliance
[[Page 86493]]
date, must begin standard monitoring at the first six-month monitoring
period following the LCRI compliance date. Nearly all systems, except
some systems on a nine-year waiver, will conduct their first tap
monitoring period under the rule within three years of the compliance
date. In contrast, systems not in compliance with the requirements of
Sec. 141.86(c)(2)(i), or in exceedance of the action levels under the
LCRI at the compliance date, will begin their first tap monitoring
period in January or July following the compliance date, whichever is
sooner. The EPA encourages States to adopt LCRI sampling requirements
prior to the compliance date to assist systems with implementing the
new requirements and reducing the number of systems required to start
or continue standard monitoring at the same time.
The EPA does not agree that all systems need to begin conducting
standard monitoring following promulgation of the LCRI, whether soon
after promulgation or phased in over a few years. The purpose of the
requirement for some systems to begin conducting standard monitoring as
soon as possible after the compliance date is so that systems with the
highest risk of lead in drinking water can determine, under updated
sampling and tiering requirements, whether they have exceeded the
action level under the LCRI and must conduct additional actions to
prevent lead exposure and protect public health. Systems without lead
and/or GRR service lines in their inventory at the compliance date
represent systems with a lower risk and therefore, are not required to
change their monitoring frequency at the compliance date unless they do
not qualify for reduced monitoring. Systems may still be required to
begin conducting standard monitoring following the compliance date if
they meet any of the criteria in Sec. 141.86(c)(2)(iii) or if they
exceed the lead or copper action level under the LCRI in the tap
monitoring period immediately preceding or on the compliance date
according to Sec. 141.86(c)(2)(ii). The EPA added the requirement at
Sec. 141.86(c)(2)(ii), and maintained the provision at Sec.
141.86(c)(2)(iii)(A) to require systems exceeding the lead or copper
action level to begin standard monitoring. The EPA considers 90th
percentile levels as current until the next 90th percentile is
calculated following a subsequent tap sampling period. Thus, under the
LCRI, systems with their most recent 90th percentile lead values that
exceed 0.010 mg/L will be required to begin standard monitoring upon
the compliance date. The addition at Sec. 141.86(c)(2)(ii) clarifies
that this requirement applies to all systems using their most recent
90th percentile lead levels.
The EPA disagrees with suggestions made by commenters to stagger or
postpone the requirement for some systems, as summarized above, to
conduct standard monitoring following the compliance date because the
suggestions offered would either require additional State burden to
track changing monitoring frequencies for several years following
compliance or would not prioritize systems with the highest risk of
lead in drinking water. The EPA considered suggestions to stagger
requirements to begin standard monitoring following the compliance date
by system size or by 90th percentile lead level and the agency does not
anticipate that the solutions offered would substantially reduce
administrative burden or enhance public protection for systems as part
of the CCT or public education. Further, the EPA determined that
staggering by 90th percentile lead level is not dissimilar from
sampling requirements triggered by the lead action level where systems
with high 90th percentile lead levels would already be required to
conduct standard monitoring. Therefore, staggering by 90th percentile
lead level captures systems that are already likely to sample at a
higher frequency due to their 90th percentile levels. Instead, the EPA
selected a solution for requiring systems to return to standard
monitoring that would also capture systems that measure low levels of
lead under the LCR but have known sources of lead in the form of lead
and/or GRR service lines. Thus, the EPA is finalizing the approach to
require systems with lead and galvanized requiring replacement service
lines in their inventory at the LCRI compliance date to conduct
standard monitoring, and for other systems to otherwise monitor in
accordance with the requirements of the LCRI.
Some commenters expressed concern that it is infeasible to require
systems to begin standard monitoring at the same time because States
will have to review too many site sample plans at the same time. The
EPA disagrees with the commenters' interpretation of the proposed and
now final requirement for States to review site sample plans. In the
preamble to the 2021 LCRR, the EPA indicated that States could review
and approve site sample plans that include locations and tiering
criteria of sites identified for sampling (USEPA, 2021a). While systems
must submit site sample plans to the State (Sec. 141.90(a)(1)(i))
under the final LCRI, States do not have to review and approve them.
For the final LCRI, the EPA is clarifying that States nonetheless may
review and approve site plans; however, they do not have to do so prior
to a system's first tap sampling period after the compliance date.
Though States are not required to review site sample plans, States are
required to review similar information on sample locations and tiering
criteria after systems have completed sampling. At the end of each tap
sampling period, systems must submit the results of sampling along with
documentation of the location of each site and information to support
the site selection according to tiering criteria (Sec.
141.90(a)(2)(i)). This is the same information as required in the site
sample plan under Sec. 141.90(a)(1)(i). States may, at their
discretion and at a time of their choosing, review site selection
criteria in the site sample plans to assist system compliance with tap
sampling requirements. The EPA encourages States to prioritize review
of these plans to ensure and support compliance with the tap sampling
requirements. The LCRI incorporates requirements from the 2021 LCRR for
States to require changes to the site sample plan, including the
authority to specify sites for compliance tap sampling (Sec.
141.86(a)(1)).
f. 90th Percentile Value Calculation and Inclusion of Additional
Samples
The EPA requested comment on the potential inclusion of samples
from lower-priority tiers (i.e., Tiers 3 through 5) that have a higher
lead or copper concentration than samples from Tier 1 and Tier 2 sites
for calculating the 90th percentile value for systems that do not have
a sufficient number of samples from Tier 1 and 2 sites to meet the
minimum number of samples required. The EPA received a range of
comments. Some supported the proposed approach to include the highest
samples from lower tiers and others suggested the samples with the
highest lead and copper concentrations be included regardless of tier.
Additionally, the EPA requested comment and any relevant data on
the number and tiering of samples used to calculate the 90th percentile
lead and/or copper levels for systems with LSLs for purposes of
assessing the effectiveness of CCT. Specifically, whether samples from
non-lead service line sites that have higher lead concentrations than
samples from LSL sites should be included and whether these higher
values should replace lower values from LSL sites in the 90th
percentile calculation, including at systems that are collecting
compliance
[[Page 86494]]
samples from all Tier 1 and 2 sites. The EPA received a range of
comments, with some requesting that the highest samples be included
regardless of tier, and other comments asking for Tiers 1 and 2 to be
prioritized. Some commenters specified that the compliance samples with
the highest lead and copper concentrations should be considered, while
others did not specify the specific type of samples (e.g., compliance,
consumer-requested) that should be included as part of the 90th
percentile calculation. The EPA received a suggestion to consider all
samples collected regardless of tier, including consumer-requested
samples, and for systems to calculate the 90th percentile based on the
highest samples equal in number to the minimum number required in all
cases. The commenters noted such an approach would take the strictest
stance on preventing the 90th percentile from being diluted due to
samples with lower lead concentrations.
The EPA also received recommendations that additional samples
should have limited inclusion in the 90th percentile calculation,
including recommending that additional samples only be included when
they are consumer-requested samples that meet the same tiering and
protocol requirements as compliance samples. Some commenters were
concerned about the potential for these additional samples to alter the
system's compliance dataset because they would not necessarily be
included in the sites identified in the site sample plan. Some
commenters stated that including additional samples that were not
collected for compliance in the 90th percentile calculation would
assess the highest levels of lead regardless of cause, and may not
represent CCT performance, especially if samples would be included
without consideration of tiering priorities.
Additional concerns raised by commenters included the potential to
include duplicate samples from sites sampled multiple times in a
sampling period, and the potential for additional samples to be
geographically clustered. Some commenters had concerns that systems
would reduce voluntary supplemental monitoring programs if the sample
results would potentially be included in their 90th percentile
calculation, with a suggestion that systems only include additional
samples up to the minimum number of required samples. Other commenters
stated concerns over the applicability of samples to assess CCT if they
are collected within other sampling programs, including voluntary
programs conducted by systems, and particularly if those programs are
not designed to take compliance samples and may not have information on
site tiering. Lastly, the EPA received comments that the proposed rule
was unclear about which additional samples can and cannot be included
in the 90th percentile calculation.
The EPA agrees that Tiers 1 and 2 represent the highest risk of
lead in drinking water. The EPA uses tiering to prioritize sites
selected for tap sampling according to the likelihood of having
elevated lead levels based on the presence of service lines and
plumbing materials most likely to contribute lead to drinking water.
Therefore, tiering supports public health protection under SDWA by
capturing the highest levels of lead typically at the tap, which in
turn indicate the need to assess the effectiveness of CCT in order to
maximize reducing exposure of lead in drinking water and inform next
steps to control lead releases. The EPA agrees that water systems
should not be allowed to ``dilute'' the 90th percentile with compliance
samples from lower-priority tiers when a system does not have enough
Tier 1 and 2 sites to meet the minimum number of required samples. The
EPA also did not receive any data during public comment to support the
inclusion of all samples from lower tiers that, though unlikely, have
higher lead levels than higher tier sites for the purposes of assessing
CCT. The final LCRI, the EPA is maintaining the proposed approach to
require water systems to use samples from Tiers 1, 2, and from the next
higher available tier (i.e., Tier 3, 4, or 5) only up to the minimum
number of required samples. The EPA agrees that a high lead value
indicates a public health risk regardless of tier and individual sites
with a lead result above 0.010 mg/L require the system to investigate
the site as part of Distribution System and Site Assessment (see
section IV.H of this preamble).
The EPA notes CCT is also assessed at each individual site with a
lead result above 0.010 mg/L, including at lower or unknown tiers,
under the rule's Distribution System and Site Assessment requirements
See section IV.H of this preamble for more details. All sampling
results must be submitted to the State, regardless of whether the
sample is used in the 90th percentile value calculation. The State has
the authority to take action, including re-evaluation of approved OCCT,
as a result of high lead values resulting from consumer-requested
sampling.
The EPA also agrees that the proposed 90th percentile calculation
is complex because water systems, or the State, will be required to
separate out the Tier 1 and 2 samples and identify only the samples
with the highest lead and copper concentrations from the next highest
tier (i.e., Tier 3, 4, and 5) in order to meet the minimum required
number of samples. The EPA has simplified the 90th percentile value
calculation procedure for systems with insufficient Tier 1 and 2 sites
to meet the minimum number required. For the final LCRI, systems must
include samples from each tier at which the system conducted compliance
sampling. Then, systems must use the highest samples from among those
samples equal to the minimum number of samples required to calculate
the 90th percentile. While the EPA anticipates in many cases that this
approach will not yield different results than what the EPA proposed
because of the higher likelihood of lead in samples collected at Tier 1
and 2 sites, the EPA is making this change in the final LCRI to
simplify the calculation and streamline the rule in response to
comments. For the final LCRI, the EPA also clarified how systems that
sample at a mix of Tiers 1 and 2 and lower tiered sites (i.e., Tiers 3,
4, and 5) but do not sample at enough sites to meet the minimum number
required can still calculate 90th percentile values. While systems that
do not sample at the minimum number of sites required are in violation
of the rule, systems must calculate 90th percentile values from the
samples collected in order to prevent systems from avoiding an action
level exceedance by undersampling. Systems with less than the minimum
number of samples must calculate their 90th percentile values based on
the total number of samples, rather than the minimum number of samples
required (Sec. 141.80(c)(3)(iii)(G)). This calculation is the same as
one that is used for systems sampling only at Tiers 3 through 5 sites.
The EPA disagrees with restricting the number of samples that can
be used to calculate the 90th percentile in situations where systems
have sufficient Tier 1 and 2 sites to meet the minimum number of
samples and are collecting compliance samples at those sites. The EPA
also disagrees with requiring water systems to use the highest tap
samples regardless of tier to calculate the 90th percentile for systems
in those situations. The EPA introduced the tiering criteria to
prioritize sampling at sites most likely to contain lead and does not
anticipate that there will be many instances where systems have samples
from lower priority tiered sites
[[Page 86495]]
with higher lead results than those at Tier 1 and 2 sites. In the 2021
LCRR, the EPA expanded tiering from three tiers to five tiers in order
to make lead service lines the highest priority and to help prioritize
sampling at the highest risk lead sources when systems do not have lead
service lines (86 FR 4225, USEPA, 2021a). Tiers 1 and 2 represent sites
with lead sources that, when present, have the greatest contribution to
lead in drinking water. See section IV.E.2.b of this preamble for
additional discussion on the prioritization of sites within each tier.
The EPA acknowledges concerns that water systems may collect additional
samples in efforts to dilute the 90th percentile level but disagrees
with prohibiting systems from using more than the minimum number of
required samples when a system is sampling at sites within the same
tier. Additional samples collected within the same priority tier do not
represent dilution because they share the same likelihood of lead
contributions. Rather, additional data that meets the tiering and
sampling protocol requirements can provide better systems-wide
assessment of CCT performance at those sites. The EPA notes that water
systems are not permitted to collect compliance samples from a lower
tier if the system has sufficient number of sites at a higher tier
under Sec. 141.86(a). For example, a system with enough Tier 1 and 2
sites to meet the minimum number of samples required may not collect
samples from lower-priority tiered sites for inclusion in the 90th
percentile calculation. This is to ensure that water systems prioritize
sampling from higher tier sites while sites remain available and
prevents diluting the 90th percentile by including samples from lower
tiers that are likely to have lower lead concentrations. The EPA is
only limiting the number of samples used for the 90th percentile
calculation in the situation where a system does not have enough Tier 1
and 2 sites to meet the required minimum number of samples to limit the
dilution of the 90th percentile calculation when a system has a mix of
samples from lead service line sites and lower tiered sites. The EPA is
also not limiting the number of samples used for the 90th percentile
calculation in the situation where a system is collecting all
compliance samples at sites in Tiers 3 through 5 but the agency notes
as described in the regulatory text under Sec. 141.86(a) water systems
must prioritize compliance sampling at the highest tier available. For
example, for a water system to use Tier 4 sites it must have an
insufficient number of Tier 1 through 3 sites. A CWS with insufficient
Tier 1, Tier 2, and Tier 3 sampling sites shall complete its sampling
pool with ``Tier 4 sampling sites''.
As noted above, some commenters were unclear whether the rule
requires systems to include consumer-requested samples as part of the
90th percentile calculation, particularly if the samples do not match
the tier of compliance samples. The EPA agrees with commenters that
consumer-requested sampling is conducted for public education purposes
and are not required to use the same protocol as required for
compliance sampling nor collected according to the site sample plan.
Water systems develop site sampling plans to ensure compliance sample
sites meet the tiering criteria and to maintain consistency in sample
site locations that meet the required tiers between sampling periods.
The EPA is concerned that requiring water systems to include consumer-
requested samples regardless of tier will make it more difficult for
water systems and States to verify that sampling tiering and protocol
were accurately followed, and that lack of consistency in sample sites
used for the 90th percentile calculations may make it more difficult
for water systems to identify potential issues with CCT. Therefore, the
EPA is finalizing the proposed requirement for consumer-requested
samples to be included in the 90th percentile calculation only if the
sampling meets the compliance sampling tiering and protocol.
In the final LCRI, systems are required to offer sampling to any
site with a lead or GRR service line (Sec. 141.85(c)(2)), and to offer
lead sampling to any site, regardless of service line material type,
following a lead action level exceedance (ALE) (Sec. 141.85(c)(1)).
These sample results may produce additional valuable information
regarding CCT performance as well as provide consumers with information
about lead in drinking water. The EPA agrees that any samples that do
not meet the same criteria as compliance samples collected in
accordance with Sec. 141.86(a) and (b) should not be included in the
90th percentile calculation as it may dilute the 90th percentile level,
but disagrees that all consumer-requested samples should be excluded.
Samples that meet the same tier and protocol as the required compliance
samples offer additional information to water systems to evaluate CCT
performance at those sites and must be included in the 90th percentile
calculation (Sec. 141.86(e)). The EPA also disagrees that these
requirements will disincentivize voluntary programs. The EPA is aware
that systems may offer sampling under different protocols (e.g.,
sequential sampling) to provide consumers with information about lead
in their drinking water. The EPA clarified in the final LCRI at Sec.
141.86(b)(1)(iv) that systems have flexibility to use alternate
sampling protocols for consumer-requested samples. Consumer-requested
sampling in accordance with Sec. 141.85(c) maintains flexibility but
specifies that water systems sampling at lead service line sites must
offer samples that capture water in contact with both the lead service
line and the premise plumbing. Systems may choose to use the standard
compliance sampling protocol for consumer-requested samples for ease of
implementation (e.g., one set of sampling instructions) and to address
challenges with identifying enough participation in compliance sampling
to obtain the minimum number of required samples. Alternatively, water
systems may choose to devise alternate protocols to assess site-
specific water quality issues. However, samples collected in accordance
with Sec. 141.85(c) that do not meet the appropriate tier and protocol
requirements of Sec. 141.86(a) and (b) may not be included in the 90th
percentile calculation in accordance with Sec. 141.86(e). See section
IV.J of this preamble for more information on requirements for
consumer-requested samples. When multiple samples that meet the
standard compliance tap sampling requirements are collected from the
same site during a tap sampling period, the EPA agrees including each
of these in the 90th percentile calculation can result in an inaccurate
reflection of CCT performance. In the final rule, only the highest
sample reading from that site can be included in the 90th percentile
calculation (Sec. 141.86(e)).
g. Wide-Mouth Bottles
The EPA requested comment on the proposed updated definition of
wide-mouth bottles, that is ``bottles that are one liter in volume with
a mouth, whose outer diameter measures at least 55 millimeter wide,''
and specifically on the availability of qualifying bottles. The EPA
received comments noting concern that the definition of wide-mouth
bottles with a minimum of 55 millimeter outer diameter is too
restrictive based on the sizes of one-liter bottles available
commercially. Commenters suggested that a 40 millimeter inner diameter
is more representative of commercially available bottles, given that
suppliers typically categorize products by the inner diameter of the
opening, and is still sufficient to maintain the benefits of
[[Page 86496]]
collecting samples in a wide-mouth bottle. The EPA agrees that the
definition of a wide-mouth bottle should describe items that are
readily and commercially available to systems and revised the
definition of wide-mouth bottles for the final LCRI to include an inner
diameter that measures at least 40 millimeter diameter. The EPA also
anticipates that this change to accommodate commercial availability of
wide mouth bottles, per commenters' concerns, will not impact the
functionality of wide-mouth bottles to allow for sample collection with
the tap fully open. The EPA also heard concern that restricting other
characteristics of the sample bottle, such as size, shape, color, and
material, reduces options for systems to creatively develop customer
sampling solutions around the more complex first- and-fifth-liter
paired sample protocol. The EPA confirms that there is no restriction
on bottle size, shape, color, or material aside from being one liter in
volume with a mouth measuring a minimum of 40 millimeter inner
diameter.
h. Sample Invalidation
The EPA received comments supporting revisions that allow the State
to invalidate samples not collected in accordance with requirements.
Commenters asked that the invalidation authority be expanded, such as
to include samples incorrectly collected from sites with point-of-use
or point-of-entry devices. The EPA agrees that sites with point-of-use
or point-of-entry devices are not suitable for compliance tap sampling
and has revised the final rule to allow States to invalidate based on
any site selection criteria in Sec. 141.86(a). When information on
site characteristics includes information that a point-of-use or point-
of-entry device is installed, States may use that information to
determine whether the sample is invalid. A site with a point-of-use or
point-of-entry device may be eligible for sampling under Tier 5, such
as when the site is representative of other sites in the system and the
system has no sites in Tiers 1-4. The final rule gives States the
authority to invalidate samples based on any site selection criteria
under Sec. 141.86(a), and finalizes proposed language to give States
additional authority for invalidation based on sample collection
criteria under Sec. 141.86(b)(1), including minimum stagnation time
and sample volume.
Additionally, the EPA requested comment and data, including
modeling and sampling data, on potential maximum stagnation times, and
specifically how stagnation times inform corrosion rates. Many
commenters suggested setting a maximum time for stagnation under sample
collection criteria, beyond which samples could be invalidated.
Commenters did not offer data to support a scientific reason for any
suggested maximum stagnation times provided in their comment. One
commenter advocated against setting a maximum time for stagnation since
stagnant water may still be used for human consumption and thus
represents water delivered under the control of systems. The EPA
clarifies that systems have the authority to review sample collection
criteria as reported by consumers, and to request replacement samples
if the system believes that the sample is not representative of water
in the distribution system. However, systems may not challenge samples
after they have been sent for analysis. This provision prevents systems
from targeting samples with high lead and copper readings to submit for
invalidation.
The EPA received comments requesting the EPA extend the time
allowed for acidification of samples following sample collection.
Commenters expressed that there is no scientific difference with
respect to sample analysis between acidification after two weeks and
acidification after four weeks and noted extending the acidification
window would allow systems to batch more samples and process them more
efficiently. The EPA did not receive data in support of these comments
to consider an extended acidification window and is not aware of data
that would support such a change. Therefore, the EPA is unable to
assess the validity of these comments and is not amending the proposed
LCRI requirements for the time for sample acidification.
i. Practical Quantitation Limit
The EPA received comments on the lead PQL suggesting that the EPA
should consider lowering the lead PQL from 0.005 mg/L. Many of these
commenters suggested lowering the lead PQL to 0.001 mg/L, the current
lead MDL in the LCRI. These commenters presented studies of individual
labs demonstrating the use of an EPA method able to achieve MDLs below
the 0.005 mg/L lead PQL.
The EPA disagrees with lowering the lead PQL below the level of
0.005 mg/L. As discussed in the proposed LCRI, due to the lack of
national-scale data demonstrating lead MDLs at levels significantly
lower than the current MDL of 0.001 mg/l, there is not enough
scientific evidence to lower the PQL. Compared to the PQL, the MDL is
the minimum measured concentration of a substance that can be reported
with 99 percent confidence that the measured concentration is
distinguishable from method blank results (Sec. 136.2(f)). The current
lead PQL is based on the approved MDLs of the analytical methods for
lead detection in Sec. 141.23(k)(1). Based on these methods, the EPA
established the MDL for lead as 0.001 mg/L in Sec. 141.89(a)(1)(iii),
and the PQL is established with a margin of error around demonstrated
MDLs. The EPA is not aware of sufficient evidence to show the
widespread analytical capability of laboratories for lower MDLs.
Additionally, the commenters arguing for a lower PQL did not provide
the EPA with national scale date that demonstrates widespread
analytical capability for lower MDLs, so the EPA is retaining the
requirement for the lead PQL at 0.005 mg/L.
3. Final Rule Requirements
a. First- and Fifth-Liter Sampling
The final LCRI requires water systems to take first- and fifth-
liter paired samples for lead at LSL sites (Sec. 141.86(b)) and use
the higher of the two values to calculate the 90th percentile lead
level (Sec. 141.80(c)(ii)(A) and Sec. 141.80(c)(iii)(A)). For sites
that are Tier 1 or Tier 2 because they have lead premise plumbing only
and no LSLs, only the first liter must be sampled. The final rule
maintains that systems continue to collect first-liter samples at Tiers
3, 4, and 5 sites.
b. Tiering of Sampling Sites
For LCRI, the EPA is finalizing the tiers for sampling sites as
proposed with minor modifications (Sec. 141.86(a)(4)). Tier 1 sampling
sites are single-family structures with either premise plumbing made of
lead and/or are served by an LSL. Tier 2 sampling sites are buildings,
including multiple-family residences, with premise plumbing made of
lead and/or served by an LSL. The rule promulgates corrections to Tiers
1 and 2 that were inadvertently dropped from the 2021 LCRR, such that
lead premise plumbing is included in Tiers 1 and 2. Tier 3 sampling
sites are sites that are served by a lead connector. Tier 3 sites are
also sites served by a galvanized service line or containing galvanized
premise plumbing that are identified as ever having been downstream of
an LSL. Tier 3 for community water systems only includes single-family
structures.
Tier 4 sampling sites are sites that contain copper premise
plumbing with lead solder installed before the effective
[[Page 86497]]
date of the State's applicable lead ban. Tier 4 for community water
systems only includes single-family structures. Tier 5 sampling sites
are sites that are representative of sites throughout the distribution
system. For purpose of Sec. 141.86(a), a representative site is a site
in which the plumbing materials used at that site would be commonly
found at other sites served by the water system.
c. Sample Site Selection
Under the final LCRI, each water system must identify potential tap
sampling sites and submit a site sample plan to the State by the start
of the system's first lead and copper tap monitoring period (Sec.
141.90(a)(1)(i)). States have the authority to require systems to
modify site sample plans or use specific sampling sites (see section
IV.N of this preamble on reporting for additional details). The EPA
encourages States to evaluate site sample plans prior to the start of a
systems' tap sampling period to ensure site locations meet the
requirements of the LCRI.
Water systems must select sampling sites from the highest tier
available as described above in accordance with Sec. 141.86(a). The
final rule continues to require systems to sample at the same sites
between tap monitoring periods. The final rule removes the requirement
to select replacement sample sites within reasonable proximity when
systems are unable to access previously sampled sites to provide more
flexibility for systems and in recognition of the difficulty in
selecting similar sites while service line replacement is underway.
In the final rule, the EPA is also clarifying that sample sites are
no longer available for sampling following either a customer refusal
for participation or customer non-response after a system conducts two
outreach attempts. The number of customer refusals for compliance
sampling must be submitted to the State. These requirements will enable
systems, particularly those required to conduct 100 percent of samples
at sites served by LSL or with lead premise plumbing under Sec.
141.86(a)(3), to move on to subsequent tiers once all potential sites
in a higher tier are unavailable. Systems that expect to be short of
sites in a particular tier may commence sampling at lower tiers to meet
the minimum number of required samples by the reporting deadline.
Systems must document reasons for site unavailability when they are not
included in the compliance dataset and they were not previously
documented as unavailable, such as for LSL sites that must be sampled
under Sec. 141.86(a)(3).
d. Frequency and Quantity of Sampling
With the elimination of the trigger level in the final rule, the
EPA is finalizing the revised tap sampling frequency requirements as
proposed (Sec. 141.86(c) and (d)). Any system that is at or below the
lead action level of 0.010 mg/L and copper action level of 1.3 mg/L for
two consecutive six-month tap monitoring periods qualifies for annual
reduced monitoring. Any system that meets the lead PQL of 0.005 mg/L
and copper PQL of 0.65 mg/L for two consecutive tap monitoring periods
qualifies for triennial reduced monitoring. Small and medium systems
that meet the action level for three consecutive years (which may
include a combination of standard and annual reduced monitoring)
qualify for triennial reduced monitoring. The LCRI does not include any
changes to the nine-year reduced monitoring waiver, nor any changes to
the minimum number of sample sites required under standard and reduced
monitoring.
e. Standard Monitoring
In the final rule, systems with lead or GRR service lines in their
inventory on the LCRI compliance date must begin standard monitoring in
the first six-month tap monitoring period after the compliance date,
unless they adopt tap sampling protocols according to the final LCRI
prior to the compliance date. Specifically, systems with lead and GRR
service lines do not need to begin standard monitoring if they conduct
sampling meeting the tap sampling protocol including the first- and
fifth-liter sampling protocol at sites served by LSLs as described in
Sec. 141.86(b)(1)(ii), all sample collection requirements in Sec.
141.86(b)(1) and (3) (such as stagnation times and sample volume), and
priority tiering requirements to sample at sites served by lead and GRR
service lines as described in Sec. 141.86(a). Since there are no
substantive changes to the sampling protocol and tiering criteria for
systems with service lines of unknown material and/or non-lead service
lines, these systems are not required to begin standard monitoring in
the first full tap monitoring period after the compliance date, unless
required to begin standard monitoring under other rule provisions such
as exceeding the action level or changing source water or treatment. If
later, these systems discover lead and/or GRR service lines in their
distribution system (unless the system replaces all the discovered
service lines prior to the start of the next tap monitoring period), or
otherwise meet any of the criteria in Sec. 141.86(c)(2)(iii)(H), they
must begin standard monitoring.
The final rule's requirement to begin standard monitoring is
similar to the requirement under the 2021 LCRR that all systems with
lead or GRR service lines must begin standard monitoring immediately
following the compliance date. The LCRI clarifies that if systems with
known lead and/or GRR service lines conduct monitoring meeting the new
tap sampling protocol requirements (first- and fifth-liter sampling,
all sample collection requirements in Sec. 141.86(b)(1) and (3), and
priority tiering requirements of the LCRI) prior to the compliance
date, they do not need to begin standard monitoring, unless their most
recent 90th percentile lead and/or copper results exceed the action
level. The EPA is aware of some systems, such as in Michigan, that may
meet these requirements prior to the compliance date. The agency
encourages all systems and States to consider early adoption of these
requirements to help systems determine their 90th percentile levels
under the LCRI requirements as soon as possible and to reduce the
number of systems beginning standard monitoring upon the compliance
date. These requirements are critical to ensuring that systems with
known sources of lead in drinking water can determine as soon as
practicable following the compliance date whether additional actions
are needed to address situations with a higher potential of lead
exposures faced by consumers.
To continue on reduced monitoring, systems must meet the criteria
in Sec. 141.86(d) based on 90th percentile lead and copper levels at
or below the lead and copper action levels and/or the lead and copper
PQLs. As the final LCRI lowers the lead action level to 0.010 mg/L,
systems with 90th percentile lead levels above 0.010 mg/L during the
tap sampling period prior to the compliance date will not be able to
continue on reduced monitoring and must conduct standard monitoring in
the first full tap monitoring period following the compliance date.
This requirement is also clarified under Sec. 141.86(c)(2)(ii) which
requires all systems with a most recent 90th percentile lead level
above 0.010 mg/L or a most recent 90th percentile copper level above
1.3 mg/L to begin standard monitoring at the compliance date.
The final LCRI also requires an update to the cross-reference under
Sec. 141.83(a)(4) regarding the requirement for systems to conduct
standard monitoring following installation of source water treatment
under Sec. 141.86(c)(2)(iii)(F), due to the
[[Page 86498]]
revisions to this section, specifically the order of the requirements.
f. 90th Percentile Value Calculation and Inclusion of Additional
Samples
For systems with a sufficient number of Tier 1 and 2 sites to meet
the minimum number required, systems must only use samples collected at
Tier 1 and 2 sites to calculate the 90th percentile (Sec.
141.80(c)(3)(ii)). These systems may not include samples from Tier 3,
4, or 5. For systems sampling at Tier 1 and 2 sites that do not have
sufficient Tier 1 and 2 sites to meet the minimum required number of
samples, systems must calculate the 90th percentile concentration using
the highest samples from the highest tiers with available sampling
sites equal to the minimum number of samples required (Sec.
141.80(c)(3)(iii)). For systems only sampling at Tier 3 through 5
sites, they must calculate the 90th percentile value using samples
collected at the highest tiers with available sampling sites from Tiers
3 through 5 (Sec. 141.80(c)(3)(i)).
The EPA is clarifying in the final LCRI that additional samples
collected according to the requirements for compliance samples
described in Sec. 141.86(a) and (b), must be considered for
determinations, such as calculating the 90th percentile. The final LCRI
requires systems (or States) to use consumer-requested samples (Sec.
141.85(c)) that meet the requirements of Sec. 141.86(a) and (b) to
calculate the system's 90th percentile level. Systems may collect
consumer-requested samples according to different protocols than what
is required for lead and copper compliance samples in Sec. 141.86(b).
However, only consumer-requested samples collected in accordance with
the requirements of Sec. 141.86(a) and (b) may be used in the 90th
percentile calculation. Systems may not include samples collected as
part of DSSA (see section IV.H of this preamble) or follow-up samples
collected as a result of monitoring after service line replacement (see
section IV.B of this preamble) in the 90th percentile calculation.
The EPA recognizes that requirements for systems to offer consumer-
requested sampling may result in sampling at sites more than once
during a tap sampling period. The final rule adds a requirement that
systems are required to include only the highest sample from among all
those collected at a site during the same tap sampling period that also
meets the requirements for a compliance sample (Sec. 141.86(e)).
g. Wide-Mouth Bottles
In response to comments provided during the public comment period,
for the final LCRI, the EPA is revising the definition of wide-mouth
bottle to reduce the minimum ``inner diameter'' from 55 to 40
millimeters. See section IV.O.3 of this preamble for further discussion
on definitions.
h. Sample Invalidation
The final LCRI includes specific language providing States
opportunities to invalidate samples which were collected in a manner
that did not meet the sample collection criteria under Sec.
141.86(b)(1). The final LCRI also includes revised language to allow
States to invalidate samples based on any incorrect site selection
criteria under Sec. 141.86(a), including samples collected incorrectly
at sites with installed point-of-use and/or point-of-entry devices. In
addition, systems may make determinations for resampling on a site-by-
site basis, prior to submitting samples for analysis, for when samples
are not representative of regular water usage.
i. Practical Quantitation Limit
The final LCRI retains the lead PQL of 0.005 mg/L.
F. Corrosion Control Treatment
1. Rationale and Proposed LCRI Revisions
a. Feasibility of the CCT Treatment Technique
CCT refers to methods (e.g., alkalinity/pH adjustment, addition of
corrosion inhibitors) that water systems can take to reduce the
leaching of lead and copper into drinking water from drinking water
infrastructure, such as service lines and premise plumbing. CCT is one
of the four treatment techniques the EPA promulgated in the LCR. At
Sec. 141.2, OCCT is defined as the ``corrosion control treatment that
minimizes the lead and copper concentrations at users' taps while
ensuring that the treatment does not cause the water system to violate
any national primary drinking water regulations.'' In the LCR, the EPA
stated that CCT was an ``important element of the final treatment
technique [rule]'' because ``most of the lead and copper found in
drinking water is caused by corrosion of materials containing lead and
copper in the distribution system and in the plumbing systems of
privately owned buildings'' (56 FR 26479, USEPA, 1991). After examining
the data available at the time on the effectiveness of corrosion
control treatment on reducing lead in tap water, the use of corrosion
control treatment in full-scale systems, and the cost of these
technologies to large water systems, the EPA concluded in the LCR that
this treatment technology is feasible within the meaning of section
1412(b)(5) of SDWA (56 FR 26486, USEPA, 1991). For the LCRI, the EPA
evaluated the feasibility of the CCT treatment technique in accordance
with SDWA sections 1412(b)(4)(D) and 1412(b)(7) and as described in
section III.D.3 of this preamble and finds CCT to be effective,
affordable for large systems, technically feasible, and prevents known
or anticipated health effects to the extent feasible.
First, the EPA found that CCT is effective and available for use.
The EPA determined in the 1991 LCR that available data demonstrated the
effectiveness of CCT for reducing lead and copper at the tap. The EPA
also acknowledged the challenge of quantifying the effectiveness of CCT
in terms of developing a single numeric value or specific level of
treatment that is feasible for all water systems (see section IV.A of
this preamble). This is in part due to water system-specific
characteristics including the physical and chemical properties of the
source water, the material composition of the distribution system, lead
and copper content of premise plumbing, consumer water use habits, and
other factors. In addition, the EPA determined that CCT had been used
in water distribution systems for many years demonstrating its efficacy
under field conditions (56 FR 26485-26486, USEPA, 1991). CCT also
continues to be a ``best technology, treatment technique[s] or other
means'' for use by water systems in accordance with the definition for
feasibility at SDWA section 1412(b)(4)(D). As noted in the LCRI
proposal, based on many years of implementation of the LCR with
thousands of PWSs utilizing corrosion control strategies, the EPA
determined that these treatments are still effective at reducing lead
and copper levels at the tap (88 FR 84937, USEPA, 2023a). Additionally,
the EPA identified research which continues to show that CCT
effectively reduces lead and copper from leaching into drinking water
(Hayes and Hydes, 2012; Roy and Edwards, 2020; Tam and Elefsiniotis,
2009; Vijayashanthar et al., 2023). For example, an estimated 99
percent of water systems serving more than 50,000 persons currently use
CCT (chapter 3, Exhibits 3-6 and 3-7, USEPA, 2024a). Therefore, CCT is
an effective treatment technique in accordance with SDWA section
1412(b)(4)(D).
Second, the EPA determined in 1991 that CCT was affordable because
the
[[Page 86499]]
costs of alkalinity adjustment, pH adjustment, and the addition of
corrosion inhibitors were reasonable for large water systems (56 FR
26485-26486, USEPA, 1991). Although not required for determining what
may reasonably be afforded by large water systems to meet the
feasibility standard for CCT as a treatment technique at SDWA section
1412(b)(7)(A) (see section III.D.3 of this preamble), the EPA later
evaluated the affordability of compliance technologies for small
systems in accordance with the 1996 amendments to SDWA and determined
that CCT is affordable for all system sizes (63 FR 42039, USEPA, 1998a;
USEPA, 1998b). For the LCRI, the EPA continues to find CCT affordable.
In addition, the EPA evaluated the cumulative impact of the LCRI
requirements as a whole to household costs by system size, which are
discussed in the EPA's ``Economic Analysis for the Final Lead and
Copper Rule Improvements'' (USEPA, 2024a) in section 4.3.7.3 of this
preamble.
Third, the EPA has determined CCT is technically feasible. There
are several factors the agency considered to assess technical
feasibility for systems to implement CCT in accordance with SDWA. This
includes considering the capacity of systems to evaluate and implement
CCT. As discussed above, CCT has been shown to be a best available
treatment technique, effective at reducing lead and copper in drinking
water. The EPA notes that water systems of all sizes have implemented
CCT under the 1991 LCR (USEPA, 2024a, chapter 3, section 3.3.3).
However, there are technical challenges for water systems with regard
to CCT that the agency considered when developing CCT requirements for
the 1991 LCR and in the final LCRI that affect technical feasibility.
As described in the proposal, CCT expertise is highly technical because
corrosion chemistry is complex and theoretical predictions are rarely
sufficient to fully understand treatment performance in a system (Tully
et al., 2019; 88 FR 84942, USEPA, 2023a). This is because unlike
technologies used to treat source water contaminants, the use of
corrosion control technologies does not remove the contaminants, such
as lead and copper, from drinking water directly; instead, these
treatment technologies prevent these contaminants from being introduced
into drinking water by corrosion of plumbing materials. As discussed in
section IV.A of this preamble, factors such as the amount of lead or
copper in the distribution system and premise plumbing, water
chemistry, stagnation time, and water use patterns result in
variability of lead and copper levels at the tap. While the EPA
determined that water systems can address water corrosivity by using
corrosion control treatment, it is ``technologically infeasible to
ascertain whether the lead and copper level at the tap at a single
point in time represents effective application of the best available
treatment technology'' (53 FR 31527, USEPA, 1988). In other words,
corrosion control is system specific and there is no single numerical
standard capable of adequately reflecting the application of the best
available treatment in all systems. Lead and copper levels vary
considerably both before and after the application of corrosion control
treatment, between different systems, and between individual buildings
within the same system (56 FR 26473-26475, USEPA, 1991). See section
IV.A of this preamble for the EPA's analysis supporting setting a
treatment technique for lead in lieu of an MCL. Because corrosion
control treatment is system-specific, the unique factors of a system
may pose particular challenges that require technical expertise
including designing and conducting corrosion control studies and
providing recommendations for treatment. Furthermore, as noted in the
1991 LCR, there are additional technical challenges of mitigating
potential secondary effects of corrosion control treatment, including
potential increased levels of disinfection byproducts and precipitation
of other metals such as iron and manganese which may lead to a decrease
in health protection (56 FR 26487, USEPA, 1991). Literature shows that
these types of challenges continue to be a factor in applying CCT
(e.g., Schock et al., 2008).
In addition, the EPA is aware that some water systems may lack the
expertise to design and implement CCT without assistance from outside
technical experts and the State, particularly smaller water systems.
These systems typically require the most extensive level of interaction
with States with regards to evaluating, selecting, implementing, and
overseeing OCCT. The burden on large systems is typically lower as they
tend to be more sophisticated and generally require less technical
support (56 FR 26492, USEPA, 1991). While larger systems serve the
majority of the U.S. population, small systems comprise the vast
majority of PWSs. Out of 66,947 CWSs and NTNCWSs subject to the
requirements of the LCR, 62,518 (93 percent) serve 10,000 persons or
fewer and 57,330 (86 percent) serve 3,300 persons or fewer (USEPA,
2024a, chapter 3, section 3.3.1). Therefore, because many smaller water
systems often require additional technical assistance and oversight
from the State to implement CCT, the capacity of States to provide such
assistance affects the technical feasibility for systems. Additionally,
as described in the LCRI proposal, the EPA is concerned about the lack
of technical experts available nationally to assist water systems in
planning for and implementing OCCT on an ongoing basis, which may
otherwise alleviate some of the burden on water systems and States (88
FR 84942, USEPA, 2023a). Based on years of LCR implementation, the EPA
is aware that water systems, particularly small systems, face these
technical challenges.
Fourth, as discussed in section III.D.3 of this preamble, the EPA
considered how the technical factors regarding technical feasibility
above (i.e., variability of lead in drinking water, system-specific
nature of CCT, technical expertise, and capacity for States to provide
assistance to smaller systems) affect the EPA's ability to establish
requirements for the CCT treatment technique to ``prevent known or
anticipated health effects to the extent feasible'' in accordance with
SDWA section 1412(b)(7)(A). In the LCR, for the purposes of meeting the
statutory feasibility standard for a treatment technique, the EPA
considered the balance of these technical factors with ensuring the CCT
treatment technique was the most health protective. The EPA also
clarified in the proposed LCRI how the agency considered the technical
factors, including administrative burden, in developing the CCT
requirements.
In the LCR, and retained in the LCRI, as described below, the EPA
developed action level and tap sampling requirements, among others, to
make CCT feasible for water systems, consistent with SDWA section
1412(b)(7)(A). The action levels in particular address the technical
feasibility challenges detailed above. In the LCR, the EPA introduced
action levels for lead and copper to simplify implementation of the
rule. Specifically, these action levels were introduced ``as a method
to limit the number of PWSs that would need to complete a detailed
demonstration that they have installed corrosion control treatment to
minimize lead and/or copper levels at taps'' (56 FR 26488, USEPA,
1991). The EPA discussed in the proposed LCRI (88 FR 84906-84910,
USEPA, 2023a) and reaffirms in section IV.A of this preamble, that the
agency established a treatment technique rule for lead and
[[Page 86500]]
copper because it is not ``technologically feasible to ascertain the
level of the contaminant'' (42 U.S.C. 300g-1(b)(7)(A)) at the tap. As
noted above, it is not technically feasible or possible to determine a
precise level of lead and copper at the tap that represents the
application of best available treatment across systems, in part due to
the specific characteristics of each system (e.g., composition of the
distribution system, presence of lead and copper in premise plumbing,
physical and chemical water characteristics, consumer water use
habits). Because the resulting lead and copper levels from application
of the best available treatment is system specific, selection of the
lead and copper action levels is not based on a precise statistical
evaluation of treatment data for all systems. Instead, the action
levels were selected based on the lead and copper levels in water
systems with OCCT for the purpose of making the CCT treatment technique
technically feasible (see section IV.F.4 of this preamble).
In the LCR, the EPA set the action levels for lead and copper at
0.015 mg/L and 1.3 mg/L, respectively. Because of the limitations of
predicting CCT efficacy, tap sampling is necessary both before and
after implementation of treatment to assess its performance (56 FR
26486, USEPA, 1991). Under the LCR, small and medium systems
demonstrated they were optimized by measuring 90th percentile lead
levels at or below the action level. The EPA used 90th percentile lead
data from systems with OCCT to select the action level as a level the
EPA determined was generally representative of what systems with OCCT
were meeting. The EPA required large systems to conduct a detailed
demonstration of OCCT regardless of 90th percentile levels because
large systems served the greatest number of people and had ``the
greatest technological capabilities and access to technical support and
other resources that would enable them to perform the sophisticated
treatment manipulations that might further reduce lead levels'' (56 FR
26492, USEPA, 1991). However, the EPA also acknowledged that some
systems already at or below the action level (which was determined to
be generally representative of OCCT) may not be able to reduce their
lead levels further (56 FR 26492, USEPA, 1991) because of the system-
specific nature of OCCT. Likewise, some systems may not be able to meet
the action level even after installing OCCT, because of factors that
lead to high lead variability at the tap (e.g., water chemistry,
composition and condition of the distribution system, lead content in
plumbing materials). The action level is not a health-based number in
that it is not established based on human health risks to lead, but
rather is a tool to make the treatment technique feasible for systems.
As a level that is generally representative of OCCT, the action level
prompts a detailed OCCT demonstration for water systems (e.g.,
conducting a study, treatment recommendation). However, whenever a
system is required to conduct a detailed OCCT demonstration and
installation, the system must identify and apply the best technology in
their system in accordance with Sec. 141.2, and not simply apply the
treatment sufficient to meet a specified level. The action level
supports the public health benefits that can be realized through CCT
while addressing some of the technical feasibility challenges described
above, by limiting the need for detailed optimization demonstrations
for small and medium systems at or below the action level. This made
``implementation of the rule administratively workable'' (56 FR 26492,
USEPA, 1991) and thus, CCT technologically possible compared to
requiring small and medium systems to conduct detailed OCCT
demonstrations regardless of their tap sampling results. Tap sampling
is therefore used in conjunction with the action level to address this
technical challenge.
The EPA is clarifying its statement in the LCRI proposal that the
action level is used to ``ensure the rule is implementable for small
and medium systems'' (88 FR 84940, USEPA, 2023a) as the action level
also triggers actions for large systems. The EPA notes that while large
systems were required to conduct a detailed demonstration of
optimization since LCR, systems of any size with CCT, including large
systems, use the action level to prompt installation or re-optimization
of OCCT (Sec. 141.81(a)(1)(i), (a)(2)(i), and (a)(3)(i) in the 2021
LCRR). Accordingly, the action level serves a function for all system
sizes in the CCT treatment technique. Some large systems never had to
conduct a detailed demonstration because their lead levels were at or
below the PQL of 0.005 mg/L, and therefore, they were deemed optimized.
If those large systems exceed the PQL, they must conduct a detailed
OCCT demonstration. Future re-optimization of these systems is prompted
by an action level exceedance. Large systems with CCT installed that
have lead levels at or below the PQL but later exceed the PQL may also
be required by the State to re-optimize even if at or below the action
level.
The EPA is finalizing revisions to several elements of the CCT
treatment technique, including the lead action level, that support the
feasibility of the CCT treatment technique as a whole, consistent with
SDWA section 1412(b)(7)(A). For the LCRI, the EPA is maintaining the
approach of using the action level, in addition to finalizing other
revisions, in furtherance of the feasibility of the CCT treatment
technique. This includes tap sampling requirements that are designed to
better capture the lead levels of water in contact with sources of
lead, including changes to the sampling protocol and site tiering (see
section IV.E of this preamble). The EPA estimates that this change will
result in more systems' exceeding the action level and evaluating CCT
compared to the LCR (88 FR 84940, USEPA, 2023a; USEPA, 2024a, chapter
3, section 3.3.5). The EPA is also requiring most systems with lead and
GRR service lines to conduct standard monitoring at the compliance date
(see section IV.E.3.e of this preamble). This would require systems
that are most likely to have higher levels of lead in drinking water,
to monitor with the updated tap sampling protocol and assess 90th
percentile lead levels against the action level after the first full
six-month tap monitoring period after the LCRI compliance date, to
ensure timely action is taken in response to elevated lead levels, if
necessary. However, the EPA is maintaining the use of tap sampling in
combination with the action level to determine when systems must
install and re-optimize OCCT. The agency accounted for these revised
tap sampling requirements in selecting the final action level (see
section IV.F.4 of this preamble). In the final LCRI, the EPA has
reduced the lead action level to 0.010 mg/L. Specifically, the EPA
identified 0.010 mg/L as being generally representative of OCCT based
on updated data and over 30 years of LCR implementation experience (see
section IV.F.4 of this preamble for a discussion on the action level
analysis). In selecting this action level, the EPA considered what is
technically possible for small and medium systems in light of the
identified challenges that still exist, including their fewer resources
and more limited technical capacity compared to large systems and a
limited number of CCT experts available nationally. Therefore, the EPA
has determined that an action level of 0.010 mg/L would support the
treatment technique for CCT overall, in addition to
[[Page 86501]]
other elements of this treatment technique, and is the most health
protective level technically possible; it thus meets the feasibility
standard at SDWA section 1412(b)(7)(A).
In addition to reducing the action level to 0.010 mg/L, the EPA
established other requirements and flexibilities that would help
address some of the technical challenges with CCT to ensure the
treatment technique overall is feasible, some of which are discussed in
this section. For example, the LCRI includes an option for water
systems that are able to complete service line replacement at a
mandatory minimum annual rate within five years or less to defer OCCT
evaluation, which for large and medium systems with LSLs, involves
conducting pipe rig/loop studies (Sec. 141.81(d)(1)(i) and (e)(1)(i)).
The EPA anticipates that this option will address some of the technical
concerns for systems that are able to remove a significant source of
lead in their system within the five-year time period and which would
otherwise be required to study and implement OCCT. For those systems,
OCCT evaluation may no longer be necessary after service line
replacement due to the removal of the most significant contributor of
lead, or the CCT evaluation would be much less complex (e.g., coupon or
desktop study). During the five-year period after the compliance date
for the LCRI, this provision will lead to less competition for outside
corrosion control experts or system-State consultations on the
appropriate corrosion control treatment as these systems complete their
LSLR programs, which can ease implementation burden for systems
otherwise required under the LCRI to optimize or re-optimize OCCT
during this period after an action level or PQL exceedance. This is
especially compelling for smaller systems that may be capable of
completing service line replacement in less time, but doing so while
simultaneously conducting OCCT evaluation and installation would
exacerbate the existing technical challenges detailed above. Therefore,
this new provision helps to ensure the technical feasibility of the CCT
treatment technique, in addition to supporting the feasibility of other
rule revisions, including mandatory service line replacement, and to
maximize the public health protection of the LCRI as an NPDWR overall.
Additionally, the EPA is finalizing the proposed provision in Sec.
141.81(a) that water systems that have re-optimized once after a lead
action level exceedance and continually met all WQPs while they are
completing their service line replacement program, are not required to
re-optimize again in response to subsequent lead action level
exceedances unless or until all lead and GRR service lines have been
removed or required by the State (Sec. 141.81(a)(1) through (3)). As
noted above, the EPA is aware that there are systems with OCCT that are
not capable of reducing lead levels below the action level. The EPA
anticipates that this will continue to be the case for some systems
under the LCRI with updated tap sampling requirements and a lower
action level. Also, water distribution systems will be undergoing
changes in the form of mandatory service line replacement. The re-
optimization requirements in the final LCRI are intended to prevent
water systems from continually conducting re-optimization studies while
simultaneously implementing their service line replacement program when
further reduction in lead levels is unlikely due to various water
system-specific factors (e.g., water chemistry, composition of
distribution system, lead in premise plumbing). This will also reduce
burdens associated with the system-State interactions on re-optimized
OCCT, and like the flexibility described in the paragraph above, is
intended to address the technical challenges that impact the
feasibility of the CCT treatment technique. Furthermore, as noted
above, there may be challenges mitigating the secondary effects of CCT
on drinking water quality (e.g., increased risk of other contaminants)
that may limit the effectiveness of OCCT for the purposes of reducing
lead and copper levels. While the EPA is not requiring water systems to
re-optimize more than once while they are conducting service line
replacement as described above, the agency has added the requirement
for systems that have removed all lead and GRR service lines that
subsequently exceed the lead action level to re-optimize. The EPA
expects that with the largest source of lead in drinking water removed,
the optimal corrosion control may differ and systems can more
appropriately address corrosion in the changed distribution system and
better address health risks from lead remaining in premise plumbing.
Additionally, water systems could potentially reduce CCT costs by
changing their treatment, as appropriate, due to the removal of a
significant lead source. Therefore, this requirement combined with the
State discretion to require water systems to re-optimize will help to
ensure the CCT treatment technique is both technically feasible and
protects public health to the extent feasible. The EPA is retaining the
definition of OCCT that requires water systems to minimize lead and
copper concentrations at user's tap while ensuring that the treatment
does not cause the water system to violate any NPDWRs (Sec. 141.2).
The EPA also introduced in the 2021 LCRR flexibilities for small water
systems to implement an alternative option to CCT if approved by the
State (see section IV.I of this preamble).
Given the analysis above and in accordance with the statutory
standard, the EPA finds that the CCT treatment technique for LCRI meets
the feasibility standard in accordance with SDWA section 1412(b)(7)(A).
CCT continues to be a best available technology effective at preventing
adverse health effects from lead and copper in drinking water to the
greatest extent that is both affordable and technically possible given
the final requirements in LCRI.
In addition to finding the CCT treatment technique for LCRI is
feasible, the EPA also evaluated the water system burden of CCT in the
context of other important actions water systems will be taking to
reduce lead levels in drinking water. Notably, all water systems are
required to conduct LSLR regardless of lead levels (see section IV.B of
this preamble), which the EPA estimates will increase both water system
and State burden. Therefore, the EPA finds that the CCT requirements
also help to support the feasibility of the separate but complementary
treatment technique for mandatory service line replacement to address
the multiple and unique sources of lead contamination as part of this
NPDWR.
b. 2021 LCRR CCT Requirements
This section includes a brief summary of CCT requirements in the
2021 LCRR that are important context for the EPA's proposed and final
changes in LCRI and the EPA's responses to comments, addressed in
section IV.F.2 of this preamble.
Under the 2021 LCRR, medium and large systems are required to
install or re-optimize OCCT in response to a lead or copper action
level exceedance. Medium and large system with LSLs that exceed the
lead action level are required to harvest lead pipes from the
distribution system and conduct flow-through pipe rigs to evaluate
options for OCCT or re-optimized OCCT. Large systems with CCT that
exceed the lead PQL of 0.005 mg/L may be required to re-optimize their
OCCT. Large systems without CCT that exceed the lead PQL are required
to complete steps to install CCT.
Under the 2021 LCRR, in the case of a trigger level exceedance for
systems
[[Page 86502]]
without CCT, small and medium systems must recommend their approach to
CCT to their primacy agency (except for small systems that select other
compliance alternatives). Unless there is a subsequent action level
exceedance, small and medium water systems without CCT are not required
to conduct a subsequent corrosion control study. In the 2021 LCRR, the
EPA also clarified that the continued operation and maintenance of OCCT
and re-optimized OCCT requirements apply to consecutive systems in
Sec. 141.82(g), including those distributing water that has been
treated for corrosion control by another system. For context, a
consecutive system is defined at Sec. 141.2 as ``a public water system
that receives some or all of its finished water from one or more
wholesale systems. Delivery may be through a direct connection or
through the distribution system of one or more consecutive systems.''
c. LCRI Proposed CCT Revisions
For the LCRI, the EPA proposed several changes for CCT including
removing the trigger level, lowering the lead action level, adopting
regulatory flexibilities for some systems simultaneously complying with
mandatory service line replacement requirements, and changing the water
quality parameter monitoring requirements for medium systems. The EPA
also proposed new or revised regulatory text to streamline
implementation of the rule. This section includes a brief summary of
these proposed changes and the agency's primary rationale for each one.
System sizes discussed below in CCT requirements include, as defined in
Sec. 141.2, small systems (serves 10,000 persons or fewer); medium
systems (serves greater than 10,000 persons and less than or equal to
50,000 persons); and large systems (serves more than 50,000 persons).
Under the LCRI, the EPA proposed to eliminate the lead trigger
level and to require systems to install or re-optimize OCCT after an
exceedance of the proposed lead action level of 0.010 mg/L. As stated
at proposal, streamlining the rule to only use an action level reduces
the complexity of the rule. As a result of eliminating the trigger
level, reducing the lead action level, and including a more rigorous
tap sampling protocol, the EPA anticipates more systems could exceed
the lead action level even when re-optimized than under the LCRR,
especially in the first few years after the compliance date for LCRI
where systems would also implementing the mandatory service line
replacement requirements under the proposed LCRI. Thus, the EPA
proposed in Sec. 141.81(a) that systems that have re-optimized once
after the LCRI compliance date and continuously meet optimal water
quality parameters (OWQPs) would not be required to re-optimize again
if there are subsequent action level exceedances, unless required by
the State. While the lead action level is intended to be generally
representative of effective OCCT, the EPA recognizes that there may be
some instances where systems would be unable to meet the proposed
lowered lead action level of 0.010 mg/L because tap water lead levels
can be influenced by other factors. As discussed in the proposed LCRI,
lead level variability at a single site can occur due to water use
patterns and physical disturbances of pipes causing particulate release
(see sections V.A and V.E.1 of proposed LCRI preamble (88 FR 84878,
USEPA, 2023a)). Elevated lead levels due to these factors would not be
reflective of the performance of the corrosion control treatment. For
systems that have already evaluated the CCT options under the re-
optimization process, resources would be better devoted to other lead
mitigation activities, such as replacing lead and galvanized service
lines, rather than repeating the same steps. However, States may
require such systems to conduct a corrosion control study. In addition,
the EPA is retaining the 2021 LCRR requirements that States may require
a system to conduct a corrosion control study to re-evaluate corrosion
control treatment for purposes such as to obtain State approval for a
long-term treatment change or addition of a new source in the LCRI. The
proposed LCRI had duplicate language for the notification requirement
in Sec. Sec. 141.81(h) and 141.90(a)(4). The final LCRI consolidates
most of the requirements in Sec. 141.81(h) with a cross-reference in
Sec. 141.90(a)(4). The EPA also revised the second sentence in Sec.
141.81(h) to clarify language regarding the State's discretion to
require actions to ensure that the system will operate and maintain
OCCT.
As proposed, States would retain the discretion to modify previous
designations of OCCT and re-optimized OCCT based on their own
determination or in response to a request by a water system if the
State concludes that a change is necessary to ensure the system
continues to optimize corrosion control treatment (Sec. 141.82(h)).
The EPA also proposed that States can require the system to conduct
additional CCT studies. The EPA anticipates that removing sources of
lead in drinking water, such as through mandatory LSLR, would reduce
the number of systems that exceed the lead action level over time. In
the meantime, water systems would be required to continue to operate
and maintain their re-optimized OCCT as demonstrated through monitoring
for OWQPs, and comply with other proposed mitigation measures (e.g.,
conduct public outreach and make filters available for systems with
multiple lead action level exceedances) to reduce exposure to lead in
drinking water.
At Sec. 141.81(f), the EPA also proposed to allow a system with a
lead action level exceedance to defer installing or re-optimizing OCCT
if the system can replace 100 percent of its LSLs and GRR service lines
within five years of the date the system first exceeds the lead action
level. The purpose of this proposed requirement would be to allow
systems to avoid the costly and time-consuming process of conducting a
harvested LSL pipe rig/loop CCT study and installing the corresponding
OCCT when the identified treatment would not be tailored for the
system's long-term distribution system conditions without LSLs. As the
EPA estimated at proposal, it generally takes approximately five years
to complete the CCT evaluation and installation process: 30 months to
construct a pipe rig/loop and conduct a treatment study followed by 30
months to install the State-approved OCCT and an additional one year to
conduct follow-up monitoring (see section V.E.1 in the proposed LCRI
(88 FR 84937, USEPA, 2023a)). If a system is on track to replace all
its lead and GRR service lines within five years, the optimal treatment
identified by a costly and time-consuming pipe rig/loop study may no
longer be the optimal treatment after all LSLs and GRR service lines
are replaced. This is because the pipe rig/loop studies are based on
lead pipes in the water system and if all of those are replaced, the
results of the pipe rig/loop study would likely be no longer relevant.
Following 100 percent lead and GRR service line replacement, a
different and less resource-intensive study, such as a coupon or desk
study, evaluating OCCT on current conditions in the system would be
more appropriate.
Under this proposed option, eligible systems would only be allowed
to defer optimizing or re-optimizing OCCT if water systems meet both of
the following two requirements: (1) Annually replace at least 20
percent of their remaining service lines that require replacement (in
accordance with the proposed Sec. 141.84(d)(5)(v)); and (2) have no
lead, GRR, or unknown service
[[Page 86503]]
lines remaining at the end of the five-year period. Systems would need
to ensure they have access to replace all lead and GRR service lines in
their inventories and have identified all unknown service lines in
their inventory. During this five-year period, eligible systems would
still be required to meet all other rule requirements including public
notification, public education, and if applicable, public education
following multiple action level exceedances, including making filters
available. Systems with CCT that elect this option would be required to
continue operating their existing CCT throughout those five years.
The EPA anticipates that greater overall public health benefits
could result from replacing all lead and GRR service lines within five
years compared to implementing the requirement to install or re-
optimize OCCT with a lower action level because the most significant
sources of lead in drinking water, when present, would be removed from
the system (Sandvig et al., 2008). Additionally, this proposed
requirement would allow water systems to dedicate more staffing and
financial resources to solely replacing lead and GRR service lines
within five years rather than being required to divide these resources
between completing mandatory service line replacement and conducting a
pipe loop study with results that may no longer be applicable following
100 percent replacement of lead and GRR service lines.
As further provided in the proposed requirements, large and medium
systems unable to replace a minimum of 20 percent of the lead or GRR
service lines in a system's distribution system annually or unable to
replace 100 percent of their lead and GRR service lines within five
years must proceed with the harvested pipe rig/loop study and install
or re-optimize OCCT. The pipe loop requirements would apply to any
small system required by the State to conduct a pipe rig/loop study.
Small systems unable to replace a minimum of 20 percent of the lead
or GRR service lines in a system's distribution system annually or
replace 100 percent of the lead and GRR service lines in a system's
distribution system within five years would be required to recommend
OCCT or re-optimized OCCT; and all NTNCWSs and the subset of CWSs
serving 3,300 persons or fewer would be required to propose a small
system compliance option and implement the State-approved approach (see
section IV.I of this preamble for further discussion on compliance
alternatives for CWSs serving 3,300 persons or fewer and NTNCWSs).
Water systems that replace 100 percent of the lead and GRR service
lines in this five-year period but subsequently exceed the action level
(or the PQL for large systems without CCT) after the compliance date
for the LCRI would be required to proceed with meeting the proposed CCT
requirements for systems with only non-lead service lines.
In addition, the EPA proposed changes to expedite when States can
approve CCT re-optimization treatment changes for systems. Under the
2021 LCRR, States can approve existing CCT re-optimization
modifications without requiring a new CCT study for systems that have
90th percentile lead levels between the trigger level of 0.010 mg/L and
the lead action level of 0.015 mg/L. For the LCRI, the EPA proposed to
eliminate the trigger level and to lower the lead action level to 0.010
mg/L. Concurrently, the EPA also proposed that States may approve,
without a new CCT study, a CCT re-optimization treatment change for a
system that exceeds the proposed action level for lead, but which
previously conducted a CCT study. In developing the CCT change, the
State would be required to evaluate a water system's past CCT study
results. The EPA proposed this update because it would expedite
treatment changes, allowing the benefits of treatment modifications to
be realized sooner and avoiding a redundant CCT study that may not
produce different results from previous studies. The treatment
recommendation and CCT study process can take multiple years to
complete. The CCT study and State designation of re-optimized OCCT
based on the results of that study under Sec. 141.81(d)(3) and (4),
respectively takes two additional years. For water systems with
existing CCT, the water system may be able to alter the existing
treatment (e.g., increase pH and/or orthophosphate dose) without a new
CCT study on a much faster timeframe rather than waiting for study
results that may indicate that same change.
The EPA proposed modifications to the CCT studies that may be
required in the event of a lead action level exceedance for small
systems with LSLs. Under the 2021 LCRR, small systems that chose CCT
and exceed the action level are required to propose a treatment option
to the State. The State may require small systems to conduct corrosion
studies using a pipe rig/loop (Sec. 141.82(c)(3)). For the 2021 LCRR,
the EPA also recommended that small systems serving 10,000 persons or
fewer with LSLs that exceed the lead action level choose the LSLR small
system flexibility option rather than CCT because the cost of the pipe
rig/loop studies would be approximately equal to the cost of replacing
55 LSLs (USEPA, 2020e). However, as discussed in section V.G of the
proposed LCRI (88 FR 84944, USEPA, 2023a), the EPA proposed to remove
the LSLR option from the small system flexibility options because LSLR
would be mandatory under the proposed LCRI. Therefore, the EPA proposed
under the LCRI to exclude small systems with LSLs serving 10,000
persons or fewer from having to conduct a pipe rig/loop study because
these systems often lack the technical expertise required to design and
construct and operate the pipe rig/loop. Instead, these small systems
could better focus limited resources on replacing lead and GRR service
lines, that would otherwise be dedicated to a pipe rig/loop if they
exceed the lead action level and are required to identify OCCT or a
small system compliance flexibility option. Under the proposed LCRI,
the State may require a pipe rig/loop study for a small system if the
State determines that the small system has the technical capabilities
to conduct such a study (see Sec. 141.82(c)(3) for large and medium
systems with LSLs and other systems as required by the State to conduct
pipe rig/loop studies).
In addition, the EPA proposed to require that States designate
OWQPs for medium systems that must install or re-optimize OCCT after
exceeding the lead action level (Sec. 141.81(a)(2)(i)). The EPA also
proposed that States designate OWQPs for medium systems with CCT that
have not exceeded the action level (Sec. 141.81(a)(ii)). While the
State could require medium systems with OCCT to meet OWQPs in the 2021
LCRR, the EPA proposed in the LCRI that States must establish OWQPs for
medium systems with CCT and that these systems must meet their OWQPs.
This proposed requirement would allow States to better assess whether
these types of medium systems are maintaining their OCCT or re-
optimized OCCT, as well as provide better day-to-day process control
since source water quality can vary both daily and seasonally.
The EPA proposed to streamline some requirements in Sec. 141.80,
which resulted in the EPA proposing to move a 2021 LCRR provision from
Sec. 141.80(d)(4) to Sec. 141.81(h). This requirement is for systems
to notify the State before a long-term treatment change or the addition
of a new source, and that States must review and approve the change or
addition before it can be implemented by the system. This allows the
State to require the water system to take additional actions to control
corrosion. However, the EPA
[[Page 86504]]
notes the provision remains unchanged in substance from the 2021 LCRR.
2. Summary of Comments and the EPA's Response
a. Consecutive Systems
The EPA received comments about consecutive systems and the
responsibilities for wholesale versus distribution systems related to
CCT and DSSA requirements. Commenters asked the EPA to clarify which
systems were supposed to monitor WQPs in the distribution system and
which system is responsible if parameters are outside the designated
range. Commenters also requested the EPA clarify which system would be
required under the LCRI to conduct CCT studies and which system would
be required to install it.
To respond to these comments, it is important to first provide
additional context for consecutive systems requirements and the EPA
guidance beginning with the 1991 LCR that goes beyond the specific rule
areas and changes proposed for LCRI. In the preamble of the 1991 final
LCR rule, the EPA strongly discouraged States and systems from using
Sec. 141.29 to modify monitoring requirements, noting that Sec.
141.29 allows a State to modify the monitoring requirements imposed by
specific regulations when a public water system supplies water to one
or more other public water systems if the interconnection of the
systems justifies treating them as a single system for monitoring
purposes. EPA did not believe that modification by States of the
monitoring requirements of the rule, as provided in Sec. 141.29, would
be appropriate because the primary source of high lead or copper levels
at the tap is materials within the distribution system itself. Treating
multiple water suppliers as one system would not distinguish between
the different systems that may have different amounts of lead or copper
materials in the distribution system and thus require different
treatment strategies to reduce these levels. This contrasts with other
contaminants where the contaminant level is uniform throughout the
distribution system. EPA did not envision situations where multiple
water systems should be considered as one system for purposes of Sec.
141.29 and, therefore, strongly discourages States from allowing the
modification to the monitoring requirements. (56 FR 26513, USEPA, 1991)
After the 1991 LCR was published, the EPA received proposals from
several States and water systems to consolidate tap water and water
quality parameter monitoring in consecutive water systems under Sec.
141.29. In response to the proposals, the EPA issued a water supply
guidance on January 10, 1992, entitled ``Consecutive Systems Regulated
under the National Primary Drinking Water Regulation for Lead and
Copper'' (USEPA, 1992). This guidance discusses the elements the EPA
recommends should be included in the consecutive system agreements for
the lead and copper rule, including those related to CCT. This guidance
indicates that State proposals should identify the systems that would
be responsible for completing the CCT requirements. In the guidance,
the EPA states the agency expects that the wholesale or ``parent''
supply would be responsible for corrosion control throughout the entire
service area. However, the EPA also notes that depending upon
contractual agreements, the size and configuration of the satellite
system(s), and the distance from the parent treatment facility,
individual CCT may need to be installed at a point or points other than
the parent plant.
While the EPA recognizes the implementation confusion raised by
commenters with regard to CCT requirements for wholesale versus
consecutive systems, as defined at Sec. 141.2, the EPA disagrees with
the commenters' requests to make changes to the LCRI to address these
concerns. These questions are better addressed at the State level for
the following reasons.
In the more than 30 years since the guidance was published, the EPA
has promulgated or revised a number of regulations that can impact CCT.
In particular, disinfection, disinfection by-products, and filtration
treatment strategies can impact CCT. Given this additional complexity
and the previously stated configuration factors in the guidance, the
roles and responsibilities of the wholesale and consecutive systems
regarding CCT should be worked out, on a system specific level, with
the State. The EPA recommends any updates to a consecutive system
agreement should discuss updated roles and responsibilities and also
include how they relate to the DSSA under Sec. 141.82(j), including
water quality parameter monitoring in the distribution system, follow-
up tap sampling at sites that exceed 0.010 mg/L, the treatment
recommendation required under Sec. 141.82(j)(3), and any distribution
system actions or modifications of corrosion control treatment that
result from the DSSA process. The EPA plans to update guidance on these
topics after the LCRI is finalized.
b. Pipe Rig/Loop Studies
The EPA received comments related to pipe rig/loop studies. Some
commenters claimed the EPA was being overly prescriptive by mandating
when pipe rig/loop studies must occur noting they did not think
harvested pipe rigs were necessary to assess OCCT. Other commenters
suggested that pipe rig/loop studies should be optional or at a State's
discretion or requested that the use of pipe rigs/loops be scaled back
in the final rule because of the cost and complexity of pipe rig/loop
studies (both in conducting the study and reviewing results from the
study). Several commenters stated the mandatory pipe rig/loop
requirements in the proposed LCRI should not apply to small systems
because they believed pipe rig/loop studies are too costly and complex
for small systems. Some commenters objected to the use of coupon
studies because they asserted coupon studies do not evaluate the impact
of corrosion control alternatives on the existing pipe scale in the
distribution systems, which is evaluated in a harvested lead pipe rig/
loop study.
Under the 2021 LCRR, small systems can choose a small system
flexibility option, including LSLR and OCCT, but due to mandatory LSLR
for all systems, the flexibility to choose LSLR was not included in the
proposed LCRI. Therefore, the EPA proposed under the LCRI to exclude
small systems with LSLs serving 10,000 persons or fewer from having to
conduct a pipe rig/loop study because these systems often lack the
technical expertise required to design and construct and operate the
pipe rig/loop and they could better focus limited resources that would
be dedicated to a pipe rig/loop on replacing their LSLs. However, the
EPA stated in the proposed LCRI preamble that States could require
small systems to conduct a pipe rig/loop study if the State determines
that the small system has the technical capabilities to conduct such a
study.
The EPA disagrees with commenters that suggested pipe rig/loop
studies for all systems should be optional or at a State's discretion.
The EPA is retaining the mandatory pipe rig/loop study requirements as
proposed in the LCRI under Sec. 141.81(d)(1) and (e)(1) for the subset
of medium and large systems that will need to install or re-optimize
OCCT (except those that meet the requirements under Sec. 141.81(f) to
replace all lead and GRR service lines in five years or less, or Sec.
141.81(d)(1)(iv) for systems waived by the State that meet specific
requirements). Systems, such as those with source water or treatment
changes,
[[Page 86505]]
need to understand how changes in their corrosion control affect the
existing pipe scale of LSLs. A pipe rig/loop study using harvested lead
pipe from the distribution systems effectively demonstrates how that
scale will interact with the CCT options and will provide vital
information to determine the OCCT option. The EPA agrees with
commenters that stated that coupon studies should have a limited role
when evaluating impacts of corrosion control alternatives on existing
pipe scales. The EPA proposed that coupon studies can be used to reduce
the number of options that are evaluated in the harvested pipe rig/loop
study, but cannot be used instead of the pipe rig/loop study because
they do not evaluate the impact of the CCT options on the existing
scale (Sec. 141.82(c)(3)).
In response to the commenter raising concerns about small systems'
conducting mandatory pipe rig/loop studies, this was not a proposed
requirement. The EPA excluded small systems from the proposed LCRI
requirements for systems that must conduct a mandatory pipe rig/loop
study because they often lack the technical knowledge and expertise to
design and construct and operate the pipe rig. However, the EPA
maintains that States could require small systems to conduct a pipe
rig/loop study if the State determines that the small system has the
technical capabilities to conduct such a study under 40 CFR
141.82(c)(3).
c. Re-Optimization for Systems Meeting Optimal Water Quality Parameters
Many commenters supported the proposed revisions from the 2021 LCRR
in Sec. 141.81(a)(1) through (3) to no longer require systems, unless
required by the State, to re-optimize OCCT if they have already
conducted CCT studies to re-optimize once following the compliance date
for LCRI, continue to meet OWQPs designated by the State, and continue
to operate and maintain their existing OCCT. The reasons cited by these
commenters include that re-optimization takes extensive study and
review and systems need to focus on other aspects of the rule and that
it could become a paperwork exercise as systems are only able to
control things at the entry point to the distribution system. Some
commenters asked the EPA to provide States discretion to require
systems to re-optimize OCCT even if they meet the criteria in Sec.
141.81(a)(1)(i), (a)(2)(i), and (a)(3)(i) because the system might not
be truly optimized or the treatment might not be effective at
addressing lead or copper issues at that particular system. Some
commenters did not support this change in the proposed LCRI and wanted
the EPA to continue to require systems to re-optimize after action
level exceedances, unless the State has determined after a full and
carefully documented consideration that re-optimization is not needed.
The reasons cited by the commenters include that EPA's rationale
assumes that the water system and the State properly identified the
single optimal CCT for the system in the one re-optimization process.
The commenters also noted that the EPA's rationale describing that
repeated action level exceedances may result from factors other than
the performance of CCT is at odds with the EPA's rationale for setting
the action level at 0.010 mg/L, which is supported by data as being
generally representative of OCCT.
The EPA agrees in part with commenters who supported removing the
requirement to re-optimize OCCT in certain instances. The EPA also
agrees with commenters who support providing States with discretion to
require systems to re-optimize even if they meet the criteria in Sec.
141.81(a)(1) through (3). The EPA finalized the requirements in Sec.
141.81(a)(1) through (3) and added language to each section clarifying
that the State may require a system to re-optimize under Sec.
141.82(h). The EPA agrees that under some circumstances, treatment
could be re-evaluated and adjusted, and States are in the best position
to determine whether a system must re-optimize. As discussed in the
preamble to the proposed LCRI, States have the ability in LCRR to
require re-optimization under Sec. 141.82(h), which allows for the
State to modify treatment decisions for OCCT and re-optimized OCCT. The
EPA has added clarifying language in Sec. 141.81(a)(1) through (3)
that the State can require a system to re-optimize under the existing
provision in Sec. 141.82(h). The State can modify its decision for
either OCCT or the OWQPs for OCCT. Under Sec. 141.82(h), States can
require a system to conduct a CCT study to support modification of the
existing treatment. Water systems or other interested parties can also
request a modification of the determination of OCCT with supporting
documentation under this section of the rule. For the final LCRI, the
EPA made edits to Sec. 141.81(a)(1) through (3) to clarify that States
have the discretion to require systems to re-optimize under Sec.
141.82(h).
The EPA added a re-optimization requirement in the final LCRI for
systems that exceed the lead action level after completing the removal
of all lead and GRR service lines and have no lead status unknown
service lines remaining in their inventory (Sec. 141.81(a)(1)(iii),
(a)(2)(iii), and (a)(3)(iii)). The EPA added the requirement for
systems that have removed all lead and GRRs service lines that
subsequently exceed the lead action level to re-optimize because the
EPA expects that after removing the most significant source of lead in
drinking water, optimal corrosion control may change and systems may
need to adjust their CCT once the most significant source of lead has
been removed following study of corrosion control. While this long-term
treatment change would also be covered by the requirements in Sec.
141.81(h), there could be situations where the scaled-back CCT leads to
an action level exceedance and the need for that OCCT to be re-
optimized. Therefore, the EPA made this change for the final LCRI in
partial response to commenters by trying to balance the need for the
realities of re-optimizing CCT and the need for re-optimization during
and after service line replacement given competing system requirements
and the changes in the distribution system. This is similar to the
requirement in Sec. 141.81(f) for systems deferring OCCT while
completing a LSLR program within five or less years.
The EPA disagrees in part with commenters who want the EPA to
continue to require systems to re-optimize unless the State has
determined after a full and carefully documented consideration that re-
optimization is not needed. Under this provision, eligible systems will
have already performed two optimizations, their initial optimization
and the re-optimization under LCRI, which includes specific benchmarks
that must be evaluated. The EPA anticipates repeating the same steps
using the same tools more than once after the LCRI compliance date in
systems with LSLs is unlikely to produce different results. Water
systems with LSLs completing their replacement program may only qualify
for this provision if they have already re-optimized once after the
compliance date for LCRI, continue meeting their OWQPs designated by
the State, and continue to operate and maintain their OCCT. Systems
that experience a long-term change in treatment or source water must
notify the State, and the State may require additional monitoring or
take other actions, such as treatment studies, to ensure water systems
maintain minimal levels of corrosion control in the distribution
system. In addition, as discussed above, the EPA also included a
requirement in the final LCRI for systems that have replaced all lead
and
[[Page 86506]]
GRR service lines to re-optimize again if they exceed the lead action
level, in addition to the ability for States to require systems re-
optimize under Sec. 141.81(h).
As noted in the proposed LCRI, the EPA recognizes that there may be
some instances where systems may be unable to meet the proposed lowered
lead action level of 0.010 mg/L because tap water lead levels can be
influenced by other factors. As discussed in the proposed LCRI, lead
level variability at individual sites can occur due to water use
patterns and physical disturbances of pipes causing particulate
release. Elevated lead levels due to these factors may not reflect the
performance of CCT. The resources of systems that have already
evaluated the CCT options under the re-optimization process would be
better devoted to other mitigation activities (e.g., conduct public
outreach and make filters available for systems with multiple lead
action level exceedances) rather than repeating the same steps.
d. Deferred OCCT
Many commenters supported the proposed OCCT deferral option if a
system removed 100 percent of service lines within five years, but
others expressed concern that the option required systems to replace
portions of lead or GRRs service lines that are beyond their control,
which would conflict with the requirements under SDWA.
To address the confusion about replacing lines beyond the control
of the water system the agency is clarifying the final rule language at
Sec. 141.81(f) to confirm that systems must conduct full replacement
of all lead and GRR service lines to be eligible and that no lead, GRR,
or unknown service lines remain in the system's service line inventory
at the end of the five-year-or-less period (Sec. 141.81(f)(1)(iii)).
The OCCT deferral option is a compliance alternative for systems that
have or can obtain access to all lead, GRR, and unknown lines; nothing
in the rule requires systems to exercise this option.
Instead, the EPA strongly encourages systems that would like to
exercise this deferral option to work to obtain control to replace each
lead and GRR service line in order to take advantage of this provision.
The EPA recommends systems identify ways to address some of the
potential challenges typically associated with service line
replacement, including obtaining access to a customer's property where
consent is required and overcoming potential funding and financing
barriers to complete customer-side replacements. Potential strategies
could include community outreach to promote the service line
replacement program to increase participation. While neither SDWA
section 1412 nor the LCRI require water systems to pay for customer-
side replacements (see section IV.B.4 of this preamble), the EPA also
encourages systems to pursue financing to remove 100 percent of service
lines within five years or less. For example, some systems utilizing
this OCCT deferral option will no longer need to conduct the mandatory
pipe rig/loop study, which the EPA estimates to cost between $308,000
and $377,000 depending upon the complexity of the study, if they
complete 100 percent service line replacement within the five-year-or-
less period (USEPA, 2024a, chapter 4, section 4.3.3). Those systems may
be able to allocate the funds that would have been used for pipe rig/
loop studies to replace customers' portions of lines instead, similar
to what the City of Madison, Wisconsin did regarding potential avoided
sewage costs for phosphorus removal if orthophosphate had to be added
for corrosion control (Sandvig et al., 2008).
The EPA also received comments questioning whether the proposed
regulatory language ``within five years'' only applied to systems
completing their programs in five years or would also apply to systems
completing those programs in less than five years. Other commenters
expressed concerns about a system's ability to replace lines on a
schedule less than five years. The EPA also received comments that were
concerned whether a water system could use the full five-year period to
avoid optimizing or re-optimizing OCCT during that period when it is
feasible for them to complete 100 percent service line replacement in
less than five years.
The EPA agrees with commenters that ``within five years'' is
somewhat ambiguous and could create implementation confusion or be
unnecessarily limiting to only apply to systems completing their
programs in five years. For the final LCRI, the EPA is clarifying that
the requirement encompasses systems completing 100 percent service line
replacement in five years or less by modifying the regulatory text at
Sec. 141.81(f)(1)(i)(A) and (B) to read ``in five years or less''
instead of ``within five years.'' This approach is consistent with the
EPA's rationale at proposal. Specifically, the five-year timeframe is
based on the time it would take for a system to construct and conduct a
pipe rig/loop study, make a treatment recommendation based on that
study, and install and operate the State-approved OCCT (88 FR 84937,
USEPA, 2023a). The results of a pipe loop study may no longer be
applicable following 100 percent replacement of lead and GRR service
lines. The EPA anticipates that there will be greater health benefits
from replacing all lead and GRR services line in five years or less
compared to if the system were required to complete the CCT steps and
take longer than five years to complete LSLR, because a significant
source of lead will be removed from the system (see section IV.F.1.a of
this preamble). Like systems completing their LSLR program in five
years, systems completing their programs in less than five years would
be less far along in the optimization/re-optimization process. The
costs to conduct a pipe rig/loop study would be best used to accelerate
the LSLR program.
With respect to the concern that water systems may use the full
five years even if it is feasible for the system to complete 100
percent service line replacement in less than five years, the State
must set a faster replacement rate if feasible (Sec. 142.16(d)(6)) and
the agency does not intend for the deferral option in Sec. 141.81(f)
to supersede a determination that it is feasible for a system to
complete replacement in less than five years. Accordingly, the EPA
revised the regulatory language for the final LCRI to specify how
systems with a replacement timeframe of less than five years will be
required to proceed under this option and how to calculate their annual
replacement rate to ensure the systems meet their shorter replacement
deadline. Systems must replace their lead or GRR service lines in less
than five years if the State determines that a replacement deadline of
less than five years is the fastest rate feasible or if they have less
than five years left to complete their replacement program, based on
their applicable mandatory replacement deadline.
This clarification necessitated additional changes to the
regulatory text at Sec. 141.81(f) to ensure this provision, as whole,
was consistent throughout the rule and consistent with a parallel
requirement for shortened service line replacement program deadlines,
at Sec. 141.84(d)(5)(v). In addition, these changes make the OCCT
deferral option more workable for systems and States. For systems that
can replace lead or GRR service lines in less than five years, the
mandatory minimum annual replacement rate percentage to achieve 100
percent replacement at the end of their five-year-or-less period would
not be 20 percent. Therefore, the EPA changed the 20 percent mandatory
minimum annual replacement rate to an annual replacement rate in
[[Page 86507]]
Sec. 141.81(f)(1)(ii) based on the total number of years for
replacement in Sec. 141.81(f)(1)(i). This corresponds with and gives
meaning to the modification clarifying that systems completing 100
percent service line replacement in less than five years will need a
different minimum annual rate to add up to 100 percent. This will make
it easier for systems to adopt a mandatory minimum annual replacement
rate depending on their replacement program and LSL inventories. For
example, systems removing 100 percent of their service lines in four
years must do so at an annual minimum rate of 25 percent of those
service lines each year, compared to a system completing service line
replacement in three years at a minimum annual rate of 33 percent of
service lines each year, barring the need to replace lines faster, as
provided in the requirements at Sec. 141.81 and discussed below.
As discussed in section IV.B.6 of this preamble, the EPA recognizes
that some water systems will be able to replace service lines faster
than the 10-year replacement deadline, such as systems that have few
lead and GRR service lines. The EPA identified multiple water systems
that have completed or are expected to completely replace all lead or
GRR service lines within five years (USEPA, 2024d), which corresponds
to a 20 percent or greater annual replacement rate. The EPA expects
that these types of systems may elect to use this OCCT deferral option.
The EPA also anticipates this option being used by systems that are
replacing their lines at an annual rate less than 20 percent, but could
exceed the lead action level later in their service line replacement
program. Therefore, these systems may be able to feasibly replace at
least 20 percent of their remaining lead and GRR service lines
annually.
Further, to make this deferral option more consistent with the
service line replacement provisions at Sec. 141.81(f)(4) and provide
States with the ability to monitor and ensure system compliance, the
EPA revised the provision to require that systems provide written
documentation to the State about the number of lead and GRR service
lines replaced. In addition, to ensure that systems' service line
replacement programs maximize public health protection and avoid the
need for a system to allocate limited resources to conduct a pipe rig/
loop study to install or re-optimize OCCT when a system's service line
composition is changing, the final rule clarifies that systems must
complete their service line replacement program as fast as is feasible
at Sec. 141.81(f)(1)(i). This text also helps to clarify that the
requirement for systems on a shortened service line replacement
deadline at Sec. 141.81(f)(1)(i)(C) applies for systems availing
themselves of this deferral option, but in a way that is consistent
with the requirements of Sec. 141.81(f)(1). Since the maximum length
of the replacement program under Sec. 141.81(f) is five years and all
lead and GRRs service lines must be replaced, different annual
replacement rates must be applied to these systems than those under
Sec. 141.84(d)(5). The EPA also added dates and reference points
mirroring other parts of the proposed and final LCRI service line
replacement and inventory requirements to make this provision clearer
and more implementable.
e. Long-Term Source or Treatment Change
The EPA also received comments stating the language in Sec.
141.81(h) on notification requirements for upcoming long-term change in
treatment or source is confusing. In the proposed LCRI, language from
Sec. 141.90(a)(3) under the 2021 LCRR was moved to Sec. 141.81(h) as
it relates to the notification and approval requirements before a long-
term treatment change or addition of a new source. The proposed LCRI
changed some of the 2021 LCRR language and made an inadvertent error
stating that actions could be required to ensure that the system
maintains minimal levels of corrosion control rather than to ensure the
system will operate and maintain optimal corrosion control treatment.
To reduce confusion, in the final LCRI, the EPA has reverted back to
the 2021 LCRR language related to OCCT in Sec. 141.81(h) and has
included the examples of long-term treatment changes in Sec. Sec.
141.90(a)(4) and 141.81(h) to ensure these examples are considered
long-term treatment changes.
3. Final Rule Requirements
The EPA is finalizing most CCT requirements as proposed, except for
clarifying some regulatory text in light of public comments received.
In addition, the EPA is making some changes to the OCCT deferral option
for systems that can complete 100 percent replacement of full lead and
GRR service lines in five years or less at a minimum annual rate in
response to comments raising questions about eligibility requirements
and how this option would be implemented by systems and States, among
others. The EPA is also including a requirement for systems without
lead and GRR service lines to re-optimize again if they exceed the lead
action level after completing their service line replacement program.
The final LCRI requires water systems that exceed the action level
to optimize or re-optimize their OCCT. Consistent with the proposal for
LCRI, the EPA is eliminating the 2021 LCRR trigger level and finalizing
revisions to expedite when States can approve an existing CCT
modification for re-optimization under Sec. 141.81(d)(1)(iv). Systems,
depending on their size, must either conduct treatment studies or
consult with the State to determine the most appropriate treatment
steps. The EPA is maintaining the 2021 LCRR requirement in Sec.
141.82(g) for continued operation and maintenance for OCCT and re-
optimized OCCT for all systems, including consecutive systems.
The EPA is also finalizing the requirement that large and medium
systems with LSLs that must optimize or re-optimize OCCT, and cannot
meet the existing treatment modification or the five-year or less
replacement of all lead and GRR service lines requirements in Sec.
141.81(d)(1)(iv) or (f), will need to conduct a mandatory harvested
pipe rig/loop study (Sec. 141.81(d)(1)(i) and (e)(1)(i)). Under the
final LCRI Sec. 141.82(c)(3), small systems would not be required to
conduct a harvested pipe rig/loop study, unless required to do so by
the State.
In addition, the EPA is finalizing the requirements at Sec.
141.81(a)(1)(i)(A), (a)(2)(i)(A), and (a)(3)(i)(A) that systems with
lead and GRR service lines must only re-optimize once after the
compliance date of the rule if they meet the following criteria listed
in of Sec. 141.81(a)(1)(i) and (ii), (a)(2)(i) and (ii), and (a)(3)(i)
and (ii) of the rule: the system has already once re-optimized OCCT,
currently meets OWQPs designated by the State, continues to operate
OCCT, and the State is not requiring re-optimization under Sec.
141.82(h). The EPA also included a requirement under Sec. 141.81(a)(1)
through (3) for systems that have completed their service line
replacement program and have no lead, galvanized requiring replacement,
or lead status unknown service lines remaining in their inventory to
re-optimize again if they exceed the lead action level. In addition,
the EPA also added Sec. 141.81(a)(1)(ii), (a)(2)(ii), and (a)(3)(ii)
to ensure it is clear that States have the discretion to require
systems to re-optimize based on Sec. 141.82(h).
The EPA is finalizing the OCCT deferral option for systems that can
remove all lead and GRR service lines in five years or less at Sec.
141.81(f). For the final LCRI, the EPA is clarifying some regulatory
text from the proposal, and adding some associated requirements for the
OCCT deferral
[[Page 86508]]
option for systems that can complete lead and GRR service line
replacement in five years or less. These changes address concerns
raised by commenters that systems could use the full five years to
avoid optimizing or re-optimizing OCCT when it is feasible for them to
complete 100 percent service line replacement in fewer than five years
(see Sec. 141.81(f)(1)). For a more in-depth discussion of the final
LCRI requirements for the OCCT deferral option, please see section
IV.F.2.d of this preamble.
The EPA is finalizing the revisions to the existing treatment
modification that States can allow without an additional CCT study
under Sec. 141.81(d)(1)(iv) for re-optimization for some systems. The
EPA is finalizing the revisions under Sec. 141.81(a)(2) that medium
systems with CCT (except those that meet Sec. 141.81(b)(3)) need to
demonstrate OCCT by meeting OWQPs (as discussed in section IV.G of this
preamble). The EPA is also finalizing other non-substantive textual and
structural changes, as proposed, that streamline and clarify the rule
language in order to improve implementation of the requirements. For
example, the EPA has reverted back to the 2021 LCRR language related to
OCCT in Sec. 141.81(h) and has included the examples of long-term
treatment changes in Sec. Sec. 141.90(a)(4) and 141.81(h) to ensure
these examples are considered long-term treatment changes.
4. Lead Action Level and Trigger Level
a. Rationale and Proposed LCRI Revisions
In the 1991 LCR, the EPA set the action levels for lead and copper
at 0.015 mg/L and 1.3 mg/L, respectively. As discussed in section
IV.F.1 of this preamble, the EPA introduced lead and copper action
levels in the LCR as a tool to limit the number of PWSs that would need
to complete a detailed CCT demonstration and/or install OCCT. The EPA
stated that its selection of values for the action levels ``reflects
EPA's assessment of a level that is generally representative of
effective corrosion control treatment and [it] is therefore, useful as
a tool for simplifying the implementation of the treatment technique''
(56 FR 26490, USEPA, 1991). In 1991, the EPA evaluated treatment data
from 39 medium size systems without LSLs and 11 with LSLs and selected
a 90th percentile lead level of 0.015 mg/L that was ``generally
representative'' of OCCT, while acknowledging that some systems may not
be able to achieve that level. Not only is there no precise level of
lead and copper at the tap that reflects application of effective CCT
in water systems nationally, but the EPA further noted that CCT
demonstration studies ``cannot be expected to predict the precise lead
and copper levels at the tap'' and that ``relying solely on laboratory
studies to predict the effectiveness of corrosion control treatment
would not indicate the levels of lead or copper at taps'' (56 FR 26486,
USEPA, 1991). Accordingly, the EPA relied on tap sampling data to
characterize CCT performance for reducing lead and copper levels at the
tap.
Under the LCR, systems serving 50,000 persons or fewer systems
demonstrated they were optimized by meeting the action level of 0.015
mg/L as the level generally representative of effective corrosion
control treatment. Systems serving over 50,000 persons were required to
conduct a detailed demonstration of OCCT regardless of 90th percentile
levels unless they measured 90th percentile lead levels below the PQL
of 0.005 mg/L and were deemed optimized. As noted in section III.C of
this preamble, the EPA introduced the lead trigger level of 0.010 mg/L
in the 2021 LCRR to prompt water systems to take proactive actions
prior to an action level exceedance, including studying and/or re-
optimizing OCCT. Additionally, systems of any size with CCT are
required under the 2021 LCRR to re-optimize if they exceed the action
level.
For the LCRI, the EPA proposed to eliminate the lead trigger level
and lower the lead action level to 0.010 mg/L. These changes were
proposed to address priorities identified in the LCRR review, including
reducing the complexity of the rule and re-evaluating options to
consolidate the action level and trigger level, as well as feedback the
EPA heard during the development of the proposed LCRI (86 FR 71578-
71579, USEPA, 2021b). As described in the proposed LCRI preamble, the
EPA evaluated the trigger level with respect to complexity,
implementation, and the public communication challenge associated with
two lead levels. Additionally, the EPA considered lowering the lead
action levels in the context of other proposed changes in the LCRI,
including service line replacement irrespective of lead levels and a
revised tap sampling protocol designed to better characterize lead
levels in drinking water (88 FR 84939, USEPA, 2023a).
In the proposed LCRI preamble, the EPA evaluated potential lead
action levels of 0.015 mg/L, 0.010 mg/L, and 0.005 mg/L (88 FR 84939-
84942, USEPA, 2023a). The EPA considered several factors when selecting
the proposed lead action level of 0.010 mg/L. Specifically, the EPA
selected an action level of 0.010 mg/L as the preferred alternative at
proposal because it is supported by past CCT performance data as being
generally representative of OCCT when adjusted for the LCRI tap
sampling protocol. The EPA found that the ability of systems to limit
the corrosivity of water in the distribution system has greatly
improved over the past 30 years of LCR implementation and that more
recent data supports a lower level as being a more appropriate screen
for determining which small systems and medium systems without CCT are
required to conduct a detailed OCCT demonstration, and for which all
systems with CCT, including large systems, are required to re-optimize.
The EPA also considered factors affecting technical feasibility that
the action level concept is intended to address for the purposes of
making the CCT treatment technique feasible (see section IV.F.1 of this
preamble). These factors include the administrative burden on water
systems required to install or re-optimize OCCT after a lead action
level exceedance, the availability of technical experts to support CCT
implementation, and the technological limitations of reliably measuring
lead levels (i.e., the PQL) (88 FR 84941-84942, USEPA, 2023a). These
technical feasibility considerations are in addition to the agency's
evaluating requirements for the CCT treatment technique in the context
of other actions that would be required by systems in the LCRI,
including service line replacement.
b. Summary of Comments and the EPA's Response
i. Lead Action Level
The EPA received a range of comments on the value for the lead
action level. Many commenters supported reducing the lead action level
to 0.010 mg/L stating that it is a reasonable level for evaluating CCT
and would prompt more water systems to take actions to reduce lead
levels. Other commenters disagreed and stated that the EPA should
maintain the current lead action level at 0.015 mg/L. Some of these
commenters indicated that the EPA did not demonstrate in the proposal
that water systems can reliably achieve 0.010 mg/L and that the
requirements are not feasible, specifically when combined with the
proposed changes to the tap sampling protocol, sample site tiering, and
90th percentile calculation instructions. Other commenters supported a
[[Page 86509]]
reduction in the lead action level but stated that the EPA must reduce
the level to 0.005 mg/L or lower, citing public health benefits that
would result from actions taken at lower levels and stating that there
is no safe level of lead in drinking water. The EPA also received
comments that disagreed with the agency's analyses used to support
proposing a lower action level of 0.010 mg/L and not 0.005 mg/L,
including that the EPA used past CCT performance data that does not
reflect how effective CCT can be, stating that systems have not been
trying to reduce lead and copper levels in drinking water to ``as low
as possible'' under the LCR, and that the CCT requirements in the LCR
do not reflect advances in corrosion control science. Additionally, a
few commenters stated that the EPA must use a different percentile
other than the 90th percentile to compare against the action level.
Specifically, some stated that the EPA must use a higher percentile
(e.g., 95th, 98th, 99th) or a maximum level because doing so would
result in more systems having action level exceedances and therefore be
required to take actions. They added that the 90th percentile allows
lead levels to be higher than the action level at more individual sites
than a higher percentile would and noted that the water system is not
required to take action at those sites. Another commenter stated that
the EPA should use a measure of central tendency (e.g., median) because
the 90th percentile is too conservative in the context of other risk
reduction measures in the LCRI including public education and LSLR.
The EPA disagrees with commenters who stated that the EPA must set
the lead action level at a level that is ``reliably achievable'' by
water systems. These commenters misconstrue the function and purpose of
the lead action level. The action level is used to evaluate CCT, and it
is set at a level that the EPA determined is generally representative
of optimized CCT such that the overall treatment technique for CCT is
feasible in accordance with SDWA section 1412(b)(7)(A). The action
level is not independently evaluated for feasibility. The action level
is one element of the treatment technique. The EPA evaluates the
entirety of the treatment technique (i.e., CCT) for feasibility. Based
on the plain reading of the statutory requirements for determining the
feasibility of a treatment technique, the action level supports the
agency's feasibility determination for CCT (see section IV.F.1 of this
preamble) but it is not required to meet the feasibility standard at
SDWA section 1412(b)(7)(A) on its own. For further discussion see the
regulatory history section on feasibility in section III.D.3 of this
preamble.
Additionally, water systems are not required to achieve the action
level under the LCRI; the action level is not an MCL and serves a
different purpose than an MCL. Notably, the action level is not a
health-based level and it does not determine the compliance status of a
system like an MCL does. If a system fails to meet the action level
either initially or after the installation of treatment, the system is
not in violation of the rule providing the water system complies with
the CCT requirements (e.g., CCT has been optimized or re-optimized). It
is for the same reason that the EPA disagrees with commenters who
stated that the EPA must set the action level to a level as close to
the MCLG of 0 mg/L as feasible. As discussed in detail in section IV.A
of this preamble, the EPA established a treatment technique rule for
lead and copper because it is not ``economically or technologically
feasible to ascertain the level of the contaminant'' (42 U.S.C. 300g-
1(b)(7)(A)). The action level is not an MCL and is not required to
adhere to the statutory standard applied to MCLs.
The EPA notes that there were comments both for and against the
EPA's proposed action level of 0.010 mg/L. For the final LCRI, the EPA
is setting the lead action level at 0.010 mg/L. The EPA considered
several factors when selecting its proposed lower lead action level of
0.010 mg/L. The EPA's primary consideration was the finding that an
action level of 0.010 mg/L is supported by past CCT performance data as
being generally representative of OCCT. More recent and higher quality
lead data are available from over 30 years of implementing LCR, which
allowed the EPA to reassess which level is generally representative of
OCCT using data from systems with CCT. The EPA disagrees with
commenters who argued that past CCT performance data do not reflect
effective CCT in part because systems were not required under the LCR
to reduce lead levels to ``as low as possible.'' The EPA reasoned that
90th percentile lead levels from systems with CCT, collected through
LCR reporting, is the best available data for determining a revised
action level. As discussed in section IV.F.1 of this preamble, while
CCT is effective at reducing lead and copper levels in drinking water,
there are other secondary effects of treatment which may prevent a
water system from reducing lead levels to ``as low as possible'' with
CCT, including that the treatment could lead to increased levels of
other compounds which are also public health risks. The EPA defines
OCCT as the ``best'' treatment technique for the purposes of this rule
(see SDWA section 1412(b)(4)(D)) as ``corrosion control treatment that
minimizes the lead and copper concentrations at users' taps while
ensuring that the treatment does not cause the water system to violate
any National Primary Drinking Water Regulations'' (Sec. 141.2). When
the State evaluates the CCT studies and sets OWQPs, they are required
to do so in a manner to reduce lead and copper concentrations as low as
technically possible while ensuring compliance with other NPDWRs.
Historical data from systems with CCT collected through LCR reporting
reflect real world conditions that account for protecting public health
from other contaminants in addition to lead and copper. Specifically,
systems that have installed OCCT under the LCR are controlling
corrosion to reduce lead and copper concentrations accounting for the
unique characteristics of their water system, such as water chemistries
and other potential contaminants.
Furthermore, these commenters did not offer alternative data for
the EPA to consider, nor detail how the EPA should account for how lead
and copper concentrations at the tap would differ based on if the LCR
had included a different set of requirements (e.g., a different
definition of OCCT in Sec. 141.2). Additionally, it is not possible
for the agency to predict how lead and copper levels would be different
based on theoretical studies. As noted in the 1991 LCR, ``relying
solely on laboratory studies to predict the effectiveness of corrosion
control treatment would not indicate the level of lead or copper at
taps'' (56 FR 26486, USEPA 1991). More recent literature shows that
theoretical predictions may not align with real-word conditions. For
example, Tully et al. (2019) evaluated model predictions of LSL systems
and found that 13 out of 22 systems evaluated did not follow model
predictions of scale formation and lead release, demonstrating the
importance of pilot studies to evaluate and optimize CCT and
corresponding tap sampling for demonstrating performance. Therefore,
the EPA used 90th percentile lead levels from systems with CCT,
collected through LCR reporting, for determining a revised action level
and to inform a determination of OCCT feasibility because it is the
best available data.
To inform the selection of the lead action level, the EPA
identified a 90th percentile lead level that is generally
representative of OCCT. As discussed in section IV.F.1 of this preamble
the
[[Page 86510]]
action level is not based on a precise statistical evaluation of
treatment at all systems. Rather, the EPA considered 90th percentile
lead levels reported to the EPA's Safe Drinking Water Information
System (SDWIS) over the years 2012-2020 for community water systems (of
all sizes) with known LSL and CCT status (i.e., information on whether
a system has LSL sites and whether the system has installed CCT). For
the final LCRI, the EPA updated the number of evaluated systems from
6,529 in the proposal to 6,551 systems (see USEPA, 2024a, chapter 3,
sections 3.3.3-3.3.5 for how the agency determined LSL and CCT status
and lead 90th percentile values for these systems). While the agency
considered data from all systems with known CCT and LSL status, the
data from systems with CCT installed is particularly relevant in
identifying a level generally representative of OCCT. The available
lead 90th percentile data were collected using the tap sampling
protocol and tiering criteria in the LCR. Contrary to the suggestion of
some commenters, in selecting a lower action level, the EPA took into
account that changes to the tap sampling protocol and site selection
criteria in the LCRI will likely affect some water systems' 90th
percentile lead levels. To account for the differences in the tap
sampling requirements under the LCR and the LCRI, the EPA developed
adjustment ratios. The EPA developed an adjustment ratio using first-
and fifth-liter tap sample data from the State of Michigan to account
for the LCRI requirement for LSL systems to collect both first- and
fifth-liter samples and use the higher value to calculate the 90th
percentile. An analysis of LCR compliance data in Slabaugh et al.
(2015) that compared lead 90th percentile values from samples collected
from all LSL sites to lead 90th percentiles from samples collected from
both lead and non-LSL sites was used to develop an adjustment ratio to
account for the requirement introduced in the 2021 LCRR and retained in
the final LCRI that LSL systems collect all samples from LSL sites
where possible. The reported 90th percentile values were multiplied
with the adjustment ratios to estimate what the values would be if they
were collected in accordance with the LCRI. This adjustment accounts
for changes in the sampling protocol and tiering and this methodology
has the benefit of being applicable to a large set of data to evaluate
a level of generally representative OCCT. The action level analysis
conducted in the LCRI is more robust than what was available to the
agency when it first selected a lead action level of 0.015 mg/L (56 FR
26484, USEPA, 1991). See the final LCRI Economic Analysis (USEPA,
2024a, chapter 3, section 3.3.5) for additional details about the
multiplier approach and the associated uncertainties.
The EPA categorized the 6,551 systems based on combinations of LSL
and CCT status using their highest 90th percentile lead level (as
adjusted for the LCRI sampling protocol) reported over the 2012 to 2020
analysis period to estimate the percentage of systems at or below the
potential lower action levels (``Analysis of reported 90th percentile
values from 2012-2020 for final LCRI.xlsx'' in the LCRI docket). The
EPA specifically evaluated 0.015 mg/L, 0.010 mg/L, and 0.005 mg/L
because they correspond to the LCR lead action level, the 2021 LCRR
lead trigger level, and the lead PQL, respectively. Their estimates are
presented in Exhibit 2 by LSL and CCT status.
Exhibit 2--Percent of Systems by LSL and CCT Status With Lead Levels at or Below Potential Lead Action Levels
Adjusted for the Final LCRI Sampling Protocol
[2012-2020]
----------------------------------------------------------------------------------------------------------------
P90 \2\ <= P90 \2\ <= P90 \2\ <=
LSL and CCT status (number of systems) \1\ 0.015 mg/L (%) 0.010 mg/L (%) 0.005 mg/L (%)
----------------------------------------------------------------------------------------------------------------
No LSLs/CCT (2,062)............................................. 95 92 82
LSLs/CCT (1,277)................................................ 73 60 38
No LSLs/No CCT (2,731).......................................... 95 91 78
LSLs/No CCT (481)............................................... 80 64 37
----------------------------------------------------------------------------------------------------------------
\1\ Data from 6,551 community water systems with known CCT and LSL status. See ``Analysis of reported 90th
percentile values from 2012-2020 for final LCRI.xlsx'' in EPA-HQ-OW-2022-0801.
\2\ Systems categorized based on their highest lead 90th percentile (P90) value reported (SDWIS 2012-2020).
When accounting for the final LCRI sampling requirements, the EPA
estimates between 60 and 92 percent of the 6,551 systems evaluated are
at or below the revised action level of 0.010 mg/L (Exhibit 2). The EPA
notes that while up to 82 percent of non-LSL systems with CCT are
estimated to be at or below 0.005 mg/L, only 38 percent of the
evaluated systems with LSLs are expected to be at or below that level.
This is far below half of the 1,227 LSL systems with CCT that the EPA
evaluated. Therefore, 0.005 mg/L is not generally representative of
OCCT, particularly for LSL systems. The EPA also discussed in the LCRI
proposal how the action level cannot be set below the lead PQL of 0.005
mg/L, which represents the limitations of reliably measuring lead
levels (88 FR 84942, USEPA, 2023a). The EPA received comments which
agreed that the action level should not be set lower than the lead PQL.
The EPA also received comments requesting the agency re-evaluate if
0.005 mg/L should remain the PQL for lead. See section IV.E.2.i of this
preamble for further discussion of the PQL and the public comments
received.
The EPA acknowledges that a higher percentage of systems are
estimated to meet the previous action level of 0.015 mg/L (i.e., 73 to
95 percent); however, a large and generally representative number of
systems can also meet 0.010 mg/L and therefore, it is also technically
possible for systems to meet an action level of 0.010 mg/L as part of
the treatment technique for CCT. Additionally, while the action level
is not an MCL, an action level of 0.010 mg/L would trigger more systems
into detailed optimization demonstrations or re-optimization than an
action level of 0.015 mg/L and will likely contribute to a greater
reduction in lead levels at those systems, thereby supporting more
public health benefits that can be realized through CCT. Because the
EPA finds that both 0.010 mg/L and 0.015 mg/L are technically possible
for systems based on the data, the EPA cannot maintain an action level
of 0.015 mg/L. Given the best available and most recent information,
0.015 mg/L would
[[Page 86511]]
not support the greatest level of health protection to the extent
feasible for the CCT treatment technique compared to 0.010 mg/L.
Additionally, because the EPA is removing the lead trigger level in the
LCRI, a lead action level higher than 0.010 mg/L would result in CCT
requirements applying for systems at higher lead levels relative to the
2021 LCRR (see section III.E of this preamble for the agency's anti-
backsliding analysis).
Furthermore, a lead action level of 0.010 mg/L is supported by the
available data. As noted in the proposal, the EPA acknowledges that
when the agency selected 0.015 mg/L as the action level in the 1991
LCR, a small percentage of LSL systems with CCT in the dataset were
able to meet this level. However, at that time, the EPA acknowledged
the limitations of the available data including the small sample size
(e.g., 39 systems without LSLs and 11 systems with LSLs), and
challenges of ``extrapolating generalized estimates of treatment
performance . . . which are collected from relatively few, like-sized
systems operated under relatively favorable natural water quality
conditions'' (56 FR 26491, USEPA, 1991). Also, the EPA noted that the
systems evaluated for the LCR were not yet attempting to minimize lead
levels per the definition of OCCT in Sec. 141.2. For the LCRI, the
dataset to evaluate the action level is a much larger dataset compared
to the 1991 LCR dataset, comprised of 90th percentile values collected
under the requirements of the LCR, from systems of various sizes and
OCCT and LSL status and is informed by analysis of lead samples that
are all collected at LSL sites and a dataset from the State of Michigan
that includes a similar sampling protocol as the LCRI. Therefore, this
recent larger dataset is of higher quality than the 1991 LCR dataset
for selection of the action level in LCRI, and the EPA finds that 0.010
mg/L is reasonably representative of lead levels that can be achieved
in systems after they install OCCT.
The EPA also disagrees with commenters indicating that the EPA must
use a different statistic to compare against the action level. In 1991,
the EPA chose a 90th percentile statistic to simplify the LCR's
requirements. Specifically, the EPA had considered using a 95th
percentile but chose a 90th percentile value so that systems would not
be required to perform a more complex calculation based on the results
of the monitoring. For example, the 95th percentile of 30 samples is
the 28.5th highest sample result whereas the 90th percentile is the
27th highest result. Additionally, water systems have decades of
experience using and calculating 90th percentile values and submitting
that information to States.
For these same reasons, the EPA does not agree that a measure of
central tendency should be used in the rule. While the commenter claims
that CCT efficacy can be evaluated through a central tendency
statistic, changing the metric for evaluating CCT efficacy after over
30 years for implementation would likely cause confusion and
compatibility issues with past datasets. Retaining a 90th percentile
statistic maintains consistency, which enhances implementability.
Furthermore, as discussed in section IV.F.1 of this preamble and in
this section, an action level of 0.010 mg/L based on a 90th percentile
supports the technical feasibility of the CCT treatment technique.
The EPA also disagrees with using a maximum lead value (i.e., the
highest collected sample) for comparison with the lead action level.
Using a maximum value against the action level would mean that a single
sample would prompt an action level exceedance. As discussed in section
IV.A of this preamble, lead and copper levels at the tap are highly
variable due to a variety of factors and a single tap sample at a
single site is not necessarily representative of conditions in the
system. As described in section IV.F.1 of this preamble, the purpose of
the action level is to evaluate the CCT of the system. Therefore, using
a single sample to prompt systemwide actions would not be appropriate.
The EPA notes that commenters suggesting a higher percentile state
that doing so would result in more action level exceedances. In the
LCRI, the EPA is finalizing requirements that will result in more
action level exceedances relative to the LCR, including reducing the
lead action level to 0.010 mg/L and new tap sampling protocol and
tiering requirements. The EPA has considered the feasibility of the CCT
treatment technique as a whole in the context of these changes (see
section IV.F.1 of this preamble). Additionally, the agency disagrees
with commenters who assert that water systems are not required to take
actions when a percentage of collected samples are higher than the
level used for the action level (i.e., up to 10 percent of samples in a
90th percentile). The LCRI includes requirements at both individual
sites and systemwide that are not dependent on the 90th percentile
level. For example, water systems are required to conduct Distribution
System and Site Assessment at sites exceeding 0.010 mg/L including when
the system's 90th percentile is at or below the lead action level (see
section IV.H of this preamble). Additionally, water systems are
required to conduct public education independent of the water system's
90th percentile lead levels, such as providing information to consumers
at all sites that are sampled regardless of the individual lead result
(see section IV.J.4.b of this preamble) and including information about
lead in the CCR (see section IV.O.1.c of this preamble). And
importantly, under the LCRI, water systems must now also conduct lead
and GRR service line replacement regardless of tap sample results (see
section IV.B of this preamble).
ii. Additional Factors Supporting Selection of the Lead Action Level
The EPA also received comments on the anticipated benefits and
tradeoffs of a lower action level, including for public health and
administrative burden on systems and States. Some commenters supported
an action level of 0.010 mg/L but noted that the lower action level
will increase the number of systems required to conduct CCT actions,
thereby increasing the burden on States and water systems. Some of
these commenters expressed concern with reducing the action level below
0.010 m/L, citing technical challenges including the administrative
burden on systems and States and the need to consider resources to
implement other aspects of the rule including service line replacement.
The commenters believed these issues would be exacerbated if the EPA
selected an action level of 0.005 mg/L. Some noted factors such as the
lack of national CCT expertise. Several States provided information
about burden estimates for their States and impact to their operating
budget for CCT requirements if the EPA were to decrease the action
level to 0.005 mg/L. Some commenters disagreed, stating that because
there is no safe level of lead, the public health benefits should be
considered over any administrative burden or lack of expertise. A few
commenters indicated that the EPA must base its determination of an
action level based on what is both affordable for large metropolitan
systems and technically possible to achieve and base a determination on
every single water system, and that the EPA may not consider
administrative burden or availability of technical experts as factors
under the statute for selecting an action level. The commenters noted
that even if there are concerns about the capacity of smaller water
systems to study and install CCT, small systems are permitted to select
an alternative compliance option besides CCT.
[[Page 86512]]
The EPA disagrees with commenters that the agency cannot consider
factors such as administrative burden, availability of technical
experts, and other technical factors in selecting the action level. In
section IV.F.1 of this preamble, the EPA discussed the factors that
impact technical feasibility, and how the agency introduced the concept
of the action level, among other requirements, such that the CCT
treatment technique is feasible in accordance with SDWA section 1412.
The EPA is not evaluating the feasibility of the action level as an
independent component, but rather in the context of the treatment
technique as a whole (see section III.D.3 of this preamble). For the
LCRI, the EPA considered technical challenges including administrative
burden, availability of national experts, and the technological
limitations of reliably measuring lead levels when selecting an action
level that supports the overall feasibility of the CCT treatment
technique. The final LCRI clarifies how the agency evaluated these
factors consistent with the statutory feasibility standard (see section
IV.F.1 of this preamble). The EPA disagrees that only large systems,
compared to other size systems, must be considered for the purposes of
determining what is feasible. While SDWA legislative history and case
law specifies that a NPDWR must be affordable ``relative to a large
regional or metropolitan water system,'' there is no such limitation
for determining what is technically possible; and therefore, the best
interpretation of the statute is the EPA should evaluate what is
``technically possible'' relative to all size systems. See section
III.C of this preamble for the background on statutory authority and
discussion of feasibility.
For the LCRI, the EPA considered the administrative burden on
systems and States with respect to a lower action level, specifically
for smaller systems that lack the technical resources of large systems
and require additional State input and technical assistance. As
discussed in section IV.F.1 of this preamble, the EPA found that
requiring all water systems to study and install OCCT without
considering their tap levels would ``impose an unworkable
administrative burden on States'' (56 FR 26492, USEPA, 1991). This was
particularly compelling for small and medium systems because of the
technical challenges many of those systems may face meaning they
``generally will require the most extensive input from States in
evaluating, selecting, and overseeing implementation of optimal
corrosion control treatment'' (56 FR 26492, USEPA, 1991). Therefore,
State capacity to provide this input and support to water systems
affects the feasibility of the CCT treatment technique for water
systems.
For the LCRI, the EPA used data from the 6,551 water systems of all
sizes with known CCT and LSL status and reported 90th percentile values
in SDWIS from 2012-2020 (see Exhibit 2) to select 0.010 mg/L as a level
that is generally representative of OCCT as the lead action level. To
further inform whether the selected level of 0.010 mg/L supports the
action level's purpose of addressing the technical feasibility of the
CCT treatment technique, the EPA used the same data to estimate how
many CWSs are likely to exceed various potential action levels
nationally to demonstrate the estimated burden on systems and States
(see Exhibits 4.1 and 4.2, USEPA, 2024d).
CCT requirements may take systems several years to complete and
include multiple interactions with the State. The administrative burden
for the State includes activities, such as reviewing CCT study results,
setting OWQPs, and reviewing OWQP data (USEPA, 2024a, chapter 4,
section 4.4.3). Particularly for LSL systems, CCT studies can require
additional time and technical expertise (e.g., conducting pipe rig/loop
studies), which in turn will likely require additional State oversight.
The EPA estimated that a higher percentage of systems are estimated to
exceed 0.010 mg/L than 0.015 mg/L nationally, but it is not a
significant increase (see Exhibit 4.2, USEPA, 2024d). While this will
increase burden on systems and States relative to retaining an action
level of 0.015 mg/L, more benefits can be realized through more systems
evaluating and installing CCT. Conversely, the number of systems
expected to exceed 0.005 mg/L is almost double that of 0.010 mg/L and
triple that of 0.015 mg/L. Systems are expected to exceed in each
system size category, and the EPA expects the number of systems to
exceed 0.005 mg/L would exacerbate existing technical challenges for
both systems and States. Thus, lowering the action level beyond 0.010
mg/L could affect the State's ability to provide meaningful input to
individual systems and adequately oversee OCCT implementation statewide
and consequently impact the technical feasibility for water systems.
Based on updated data and over 30 years of LCR implementation
experience, the EPA finds that while a lead action level of 0.010 mg/L
will increase the burden on water systems relative to 0.015 mg/L, that
burden is technically possible to the extent feasible to support the
EPA's determination that the CCT treatment technique is feasible in
accordance with SDWA (see section IV.F.1 of this preamble).
As discussed in the LCRI proposal, the EPA also considered that the
significant State resources required to oversee OCCT studies and
implementation could affect the State's ability to oversee other
proposed requirements in the LCRI (88 FR 84942, USEPA, 2023a).
Specifically, the EPA is concerned that if the agency sets the action
level at a level that may not be generally representative of OCCT
(e.g., 0.005 mg/L), that too many water systems would be required to
conduct a detailed demonstration to determine OCCT, which would impact
their ability to reduce lead levels through service line replacement
and other actions under the rule due to competing resources, and that
this could result in less public health protection overall. For
example, if a significant number of small water systems were
simultaneously required by the State to conduct CCT studies and take
other actions associated with an action level exceedance, it could
strain State resources to simultaneously oversee requirements for full
lead and galvanized service line replacements, which are the most
significant source of lead in drinking water, where present. The EPA
estimates that a higher percentage of systems with LSLs (both with and
without CCT) nationally, will exceed each of the action levels
evaluated as compared to those without LSLs, and may require additional
technical assistance (Exhibit 4.1., USEPA, 2024d). This is especially
compelling at 0.005 mg/L because the EPA has estimated that 0.005 mg/L
is not generally representative of OCCT, particularly for systems with
LSLs (see Exhibit 2). Therefore, water system resources would be better
directed towards reducing lead levels through service line replacement,
and therefore, achieving greater health protection, rather than
attempting to optimize or re-optimize OCCT when above 0.005 mg/L
because it may not lead to a reduction in lead levels for system who
are optimized above 0.005 mg/L. Conversely, almost twice the percentage
of the systems with LSLs and CCT in Exhibit 2 meet 0.010 mg/L compared
to 0.005 mg/L, so there is a higher potential for lead reduction in
systems optimizing or re-optimizing OCCT when above 0.010 mg/L. The EPA
notes that regardless of the value of the lead action level, States
will also have an increased level of administrative burden in the
[[Page 86513]]
final LCRI relative to the current rule due to requirements for water
systems to conduct service line replacement along with other additional
public education requirements (USEPA, 2024a, chapter 4, sections 4.4.4
and 4.4.6). Additionally, while large systems are typically more
technologically sophisticated and have access to more resources than
small and medium systems, there will be large systems with LSLs that
will need to conduct pipe rig/loop studies as a result of the rule.
Commenters representing States and water systems have noted that few
States and systems have experience with these types of complex studies,
which likely will also require additional oversight (see section IV.F.1
of this preamble for discussion of CCT study requirements).
In the proposed LCRI, the EPA discussed the national availability
of technical experts as an additional factor to consider in setting the
action level in terms of how the action level prompts systems to
conduct detailed demonstrations of OCCT (88 FR 84942, USEPA, 2023a).
The EPA is concerned that constraints on the availability of expertise
would pose significant challenges if the action level were reduced to
0.005 mg/L. The EPA notes that some States and water systems indicated
that lack of technical expertise was one reason why the agency should
not lower the action level to 0.005 mg/L. As discussed in section
IV.F.1 of this preamble, small systems are unlikely to have in-house
experts to design corrosion control optimization and may lack staff
with relevant experience in installing and operating OCCT. The ability
to hire outside experts is limited by national availability. The EPA
received comments offering suggestions for actions the EPA can take to
incentivize additional training of CCT experts. However, the commenters
did not explain how this gap could be addressed by the LCRI rule
compliance date. The EPA notes that knowledge of relevant chemistry
alone is usually not sufficient to perform comprehensive CCT studies
and operation. Experts typically rely on knowledge gained through
practical on-the-job experience that cannot otherwise be replicated.
The EPA anticipates that systems and States would encounter challenges
acquiring this technical expertise, if too many systems are
simultaneously conducting CCT evaluations, such as with an action level
of 0.005 mg/L.
The EPA notes that some States provided their own estimates of
administrative burden based on action level exceedances in public
comments in support of these considerations. One State noted that there
are 640 water systems in their State subject to lead and copper
sampling. They noted that there have been 117 action level exceedances
since 2013 (18.3 percent of systems), but that if the action level were
0.005 mg/L, almost half of their water systems would have been required
to study and install CCT. They also noted that CCT requires higher
certification levels for operators and additional on-going training.
Another State indicated that a lower action level would require more
systems to conduct detailed OCCT demonstrations and thereby increase
the need for State interaction by two to five times depending on the
final action level, thus requiring additional staff and increases to
State operating budget for CCT requirements alone. Specifically, they
stated that a decrease in the action level to 0.005 mg/L would lead to
a six percent increase in their personnel and indirect cost budget that
would require additional funding. As discussed in section IV.F.1 of
this preamble, the action level construct is intended to address the
technical challenges associated with CCT. The EPA has determined that
an action level of 0.010 mg/L would support the treatment technique for
CCT, in addition to other elements of this treatment technique, in
meeting the feasibility standard at SDWA section 1412(b)(7)(A). For the
reasons discussed above, the EPA has determined that if the agency set
the action level at 0.005 mg/L, the action level would not function as
intended to address the described technical challenges in a way that
makes the CCT treatment technique feasible. The EPA has considered
these additional factors relating to technical feasibility and for the
reasons described above is revising the action level to 0.010 mg/L and
not 0.005 mg/L, and is not retaining the LCR action level of 0.015 mg/
L.
Removal of Lead Trigger Level
The EPA received comments indicating almost universal support for
removing the lead trigger level. Commenters generally agreed that the
trigger level increased the rule complexity and some noted the
confusion of explaining two separate lead levels to the public.
For the final LCRI, the EPA is removing the lead trigger level. The
EPA introduced the lead trigger level in the 2021 LCRR to take certain
actions including optimizing or re-optimizing OCCT, replacing LSLs, and
educating or notifying the public. The purpose of the trigger level was
to prompt proactive actions including conducting CCT studies, re-
optimizing OCCT, and conducting goal-based LSLR to prepare for a more
rapid response should they later exceed the lead action level (88 FR
84939, USEPA, 2023a). The EPA agrees with commenters that the trigger
level increased the complexity of the rule and that explaining the
purpose and function of trigger level would likely be challenging for
water systems and confusing to the public. The EPA also notes the
redundancy of several of the actions in LCRI, including the new
requirement for water systems to conduct mandatory lead and galvanized
service line replacement regardless of lead levels, with actions that
would have resulted if the agency kept the trigger level from the 2021
LCRR.
Separate Action Level for Public Education
In the proposed LCRI, the EPA requested comment on whether the
agency should use a different action level to trigger public education
activities compared to CCT. Many commenters disagreed with the concept
of establishing a separate action level for public education, with some
noting that it would increase complexity of the rule. However, many
commenters also emphasized that the action level is not a health-based
level and that the MCLG is set at 0 mg/L, while citing the health
benefits of public education at lower levels. One commenter supported
the selection of 0.010 mg/L as an appropriate level to prompt CCT
evaluation but supported selection of a lower level for water systems
to be required to conduct public education activities for that reason.
The EPA agrees that establishing a separate action level for public
education would increase the complexity of the rule. In the final LCRI,
the EPA is finalizing a single lead action level at 0.010 mg/L. The EPA
agrees with commenters that the action level is not a health-based
level but rather is set at a level that is generally representative of
OCCT. The EPA noted in the LCR that while water system actions
including CCT are expected to reduce lead drinking water levels,
``there are situations where elevated lead levels will persist at
consumers' taps during or even after these efforts'' (56 FR 26500,
USEPA, 1991). For the LCRI, the EPA requires the use of the action
level for some systemwide public education activities but has added new
requirements that are intended to strengthen the public education
requirements. These include clear statements that there is ``no safe
level of lead'' in public education materials, and additional public
education requirements that are not associated with the action level
that are intended
[[Page 86514]]
to reduce exposure to lead in drinking water. Public education
requirements that are not triggered by a lead action level exceedance
include information about lead in the CCR, notification of lead, GRR,
and unknown service lines, and notification of tap sample results.
These communications include information on the health effects of lead
and steps consumers can take to reduce exposure. See section IV.J.1 of
this preamble for a discussion of the feasibility of the public
education treatment technique and sections IV.J.4 and IV.O.1 of this
preamble for a discussion of the final LCRI public education and CCR
requirements, respectively.
c. Final Rule Requirements
For the LCRI, the EPA is finalizing the lead action level of 0.010
mg/L. The EPA is also finalizing the revision to remove the lead
trigger level of 0.010 mg/L that was previously introduced in the 2021
LCRR, such that there is a single level used to prompt water system
actions in the final rule for LCRI. For discussion about the specific
CCT, public education, and tap sampling requirements that water systems
will be required to follow based on lead action levels, see sections
IV.F.2, IV.F.3, IV.J, and IV.E of this preamble, respectively.
G. Water Quality Parameter Monitoring
1. Rationale and Proposed LCRI Revisions
Water quality parameters (WQPs) are an important component of the
treatment technique for CCT because they are monitored to gauge CCT
implementation to ensure its continued effectiveness. WQPs can include
pH, alkalinity, orthophosphate, and silicate. OWQPs are the values of
the WQPs that are associated with optimized or re-optimized OCCT.
Systems must monitor WQPs at taps and at entry points to the
distribution system for pH and, when applicable, alkalinity,
orthophosphate, silica, and any additional parameter set by the State.
Under Sec. 141.87, the proposed LCRI would require all systems
with OCCT serving 10,001 to 50,000 persons to monitor for WQPs
regardless of the lead and copper levels, except those systems whose
90th percentile lead level is at or below the PQL of 0.005 mg/L, in
accordance with Sec. 141.81(b)(3). This proposed change would increase
the number of water systems conducting WQP monitoring. Systems serving
greater than 50,000 persons are already required to monitor for WQPs
regardless of lead and copper levels, unless deemed optimized under
Sec. 141.81(b)(3). By extending this requirement to all water systems
with OCCT serving greater than 10,000 persons, any changes in WQPs
could be evaluated more quickly to determine if re-optimizing OCCT is
warranted; this could reduce the time needed for water systems serving
between 10,001 and 50,000 persons to evaluate and optimize OCCT under
the LCRI. The EPA proposed to maintain the authority for States to
require any system, including a system serving 10,000 persons or fewer,
to monitor WQPs more frequently and/or with more parameters beyond the
minimum requirements of the rule.
Also, the proposed LCRI clarified that States can designate
additional WQPs to determine the effectiveness of CCT (i.e., in
addition to pH or an orthophosphate residual). While this requirement
was included in the LCR (and maintained in the LCRR) under Sec.
141.82, the proposed LCRI revisions were intended to clarify the
implementation of this already available option by including the
designation of State-specified parameters in the list of required
parameters under Sec. 141.87.
The proposed LCRI did not change the 2021 LCRR requirement to add
WQP monitoring sites to the sites that must be sampled by a system in
each WQP monitoring period when those sites are sampled as a result of
activities under DSSA in Sec. 141.82(j). The purpose of keeping these
new sites in the monitoring pool, until the pool is at least twice the
number of minimum monitoring sites required under Sec.
141.87(b)(1)(i), is to ensure that sites with previous high lead levels
are fully benefitting from installed CCT.
2. Summary of Public Comments and the EPA's Responses
The EPA received comments recommending the EPA require WQP
monitoring for more systems, such as requiring all systems, regardless
of CCT status, to conduct WQP monitoring. The EPA disagrees with
requiring systems without OCCT installed to monitor for WQPs because
the purpose of monitoring for WQPs is to ensure optimal operating
parameters for CCT. Monitoring for WQPs in systems without OCCT would
have little benefit since there would be no State-approved parameters
that would represent the optimal range for CCT performance as developed
through a prerequisite CCT study; therefore, there would be no baseline
parameters for comparison. Another commenter requested that small
systems be required to continue WQP monitoring once they have started,
such as following a lead action level exceedance. The EPA recognizes
that continuous WQP monitoring can be beneficial for some small systems
with OCCT by offering more frequent feedback regarding their CCT
implementation. Therefore, in the LCRI, the EPA has maintained the
authority for States to require small systems with or without
designated OWQPs to start or continue WQP monitoring beyond the minimum
requirements of the rule (Sec. 141.87(b)(4)(iv) and (b)(3)(iii),
respectively). However, the EPA disagrees with requiring small systems
to continue to conduct WQP monitoring regardless of lead levels due to
the limited resources of small systems. WQP monitoring and compliance
lead and copper tap sampling are two methods for monitoring OCCT. To
balance the trade-off between monitoring and burden, all small systems
are required under the LCRI to continually monitor lead and copper
through tap sampling (see section IV.E of this preamble). In
comparison, only those small systems with CCT with the most concerns of
high lead or copper levels, by exceeding a lead or copper action level,
are required to monitor WQPs under LCRI (Sec. 141.87(b)(4)(ii)).
Additionally, any system with individual sites exceeding the action
level must add those sites to the ongoing list of locations monitored
for WQP parameters (Sec. 141.87(b)(1)(i)). Under LCRI, small systems
that are allowed to stop WQP monitoring and subsequently restart must
sample at the list of locations that includes added sites, thus
offering added public health protection to ensure that installed CCT is
reaching all sites within the distribution system. Lastly, since not
all small systems will need to install CCT following an ALE, such as
those opting for small system flexibility, continued WQP monitoring
would cause undue burden on those systems which, due to a lack of WQP
baseline based on designated CCT, receive no benefit from WQP
monitoring. The WQP monitoring requirements for small systems in the
final LCRI allow small systems to prioritize limited resources for
determining whether WQPs are within designated OWQP ranges in a way
that is technically possible for these size systems in contrast to
larger systems and ensure protection of public health by prioritizing
small systems with the highest lead and copper concerns.
The EPA received comments stating that calcium, conductivity, and
temperature should be re-added to the list of required parameters for
WQP monitoring for the reason that these parameters have the potential
to affect lead release. The 2021 LCRR removed
[[Page 86515]]
calcium carbonate stabilization as an option for CCT and therefore, the
requirement to monitor associated WQPs related to calcium hardness
(i.e., calcium, conductivity, and temperature) were also eliminated. In
the 2021 LCRR, the EPA agreed with commenters that said calcium
carbonate stabilization has not been shown to be an effective corrosion
control treatment strategy (USEPA, 2020e). The EPA continues to agree
there is a lack of support in the available literature for the use of
calcium carbonate stabilization in reducing tap lead levels. For LCRI,
the EPA is incorporating the 2021 LCRR determination to remove calcium
carbonate stabilization as an option for CCT and excluding calcium,
conductivity, and temperature from WQP monitoring. As described in the
preamble to the 2021 LCRR, systems that have State-designated OCCT
based on calcium carbonate stabilization can continue to rely on the
designated treatment, including monitoring of any State-designated
parameters in addition to the minimum rule requirements (86 FR 4230,
USEPA 2021a). However, as calcium carbonate stabilization is no longer
an option for OCCT as finalized in the 2021 LCRR, systems that exceed
the action level may not re-optimize using calcium carbonate
stabilization. With the removal of the treatment option, calcium,
conductivity, and temperature are not relevant for most systems and
requiring monitoring of these parameters is unnecessary. The EPA also
received comments to streamline and simplify the list of required
parameters, further supporting the EPA's decision to not add previously
removed parameters.
The EPA received comments on the requirement at Sec.
141.87(b)(1)(i) for systems to add WQP monitoring sites to the standard
minimum number of sites required to be sampled during each WQP
monitoring period when those sites were sampled for WQP parameters
under the DSSA. These commenters cited concerns that this requirement
could result in a continuously changing minimum sampling pool and
increase overall rule complexity for systems. The EPA disagrees with
removing this requirement because the relatively few number of sites
that could be added as a result of monitoring under DSSA is technically
possible for systems and a reasonably ensures that the public health
protection associated with ensuring OCCT is fully implemented
throughout the distribution system. The standard number of monitoring
sites for WQPs ranges from one site for systems serving 500 or fewer
persons to 25 sites for systems serving greater than 100,000 persons.
The maximum possible number of required monitoring sites is 50, which
the EPA finds to be technically possible for the largest systems. The
additional number of added sites is capped at not more than twice the
minimum number of sites per system size. Therefore, the EPA is
retaining the 2021 LCRR requirement to require systems to conduct
ongoing sampling at added sites to monitor OCCT implementation at sites
in the distribution system with past elevated lead levels. The EPA
disagrees that the minimum sites would be continuously changing or
overly complex for systems since sites are only added as a result of
DSSA, and changes to the monitoring pool require a State determination
to switch out sites for newer ones that can better assess effectiveness
and/or remove sites during sanitary survey evaluation of OCCT Sec.
141.82(j)(1)(ii)(B).
The EPA also received comments requesting that WQP monitoring
generally play a larger role in the rule, such as being used to assess
CCT in place of lead and copper tap sampling. The EPA disagrees that
WQP monitoring should be used in lieu of lead and copper tap sampling
because the agency continues to find that both lead and copper tap
sampling and WQP monitoring must be used to evaluate CCT performance in
accordance with the LCRI requirements for systems. Tap sampling and WQP
monitoring provide systems and States with different data points that
are critical to inform different aspects of CCT. WQP monitoring
provides data to evaluate if OCCT is implemented with sufficient levels
of corrosion control throughout the distribution system. Lead and
copper tap sampling offers direct data about OCCT effectiveness;
namely, the levels of the contaminants for which corrosion is being
controlled. Thus, the EPA maintains that WQPs alone are not sufficient
for evaluating OCCT performance for any system, and that lead and
copper tap sampling continues to be a necessary component of the LCRI
and NPDWRs for lead and copper to evaluate CCT.
The EPA also received comment requesting systems be required to
make WQP monitoring results publicly available to increase system
transparency and public accountability. The EPA disagrees that making
WQP monitoring results publicly available would result in meaningful
benefits for public awareness and education because interpreting WQP
results requires technical and system-specific knowledge of the CCT as
designed. Communicating to the public-at-large how to interpret WQP
monitoring data would require additional information and potential
technical support. More relevant to consumers is information about
whether the system has met their designated OWQP range; systems with
more than nine OWQP excursions, that is, WQP readings outside the
designated range, in a monitoring period must issue a Tier 2 public
notification in accordance with Sec. 141.203 and must report the
violation in their CCR. Thus, the EPA finds that the burden on systems
to make WQP results publicly available in a meaningful way along with
the necessary context for interpretation of the results would outweigh
the potential benefits.
Commenters requested that systems be required to collect additional
information under WQP monitoring to better inform them about their CCT,
including by monitoring for WQP parameters at taps more frequently,
such as monitoring for WQPs during each tap sampling period or
increasing WQP monitoring at taps to quarterly. Commenters also
recommended additional monitoring requirements for WQP parameters in
untreated source water (i.e., at the point of water intake). The EPA
does not agree to changes to WQP monitoring at taps because the LCRI
requires systems to sample at a regular frequency throughout the
monitoring period for consistent and continuous monitoring of WQPs and
to reflect seasonal variability of source water quality (Sec.
141.87(a) through (c)). While CCT is designed to account for seasonal
variability, sampling for WQPs at one point in time does not offer
information about CCT implementation at another point in time.
Unanticipated interactions between seasonal factors, source water
quality, and CCT implementation can result in WQP excursions even when
previous samples fall within OWQP ranges. The LCRI also continues to
require the addition of monitoring sites when systems sample sites
under Distribution System and Site Assessment, with a maximum number of
sites twice the standard minimum required (Sec. 141.87(b)(1)(i)).
These requirements ensure that system monitoring is prioritized by
establishing sampling sites and a sampling frequency that targets
information collection most beneficial to monitoring OCCT
implementation. The EPA has also previously heard in public comments
for the LCRR review that conducting distribution system sampling of
WQPs within homes is difficult, particularly because certified samplers
are required. The EPA does not agree that benefits from further
increasing the WQP tap
[[Page 86516]]
sampling requirements will outweigh the additional burden of in-home
sampling. Lastly, the EPA does not agree that mandatory monitoring for
WQP parameters at the water intake is necessary to ensure proper
implementation of OCCT because OCCT is designed to alter the
composition of treated water. WQPs in untreated water are neither an
indication of corrosivity in the finished water, nor an indicator of
the effectiveness of OCCT implementation. Independently, system
operators may choose to monitor water at the point of intake to assist
implementation of OCCT, but the EPA does not agree that such monitoring
should be required of all systems with OCCT. The EPA agrees that
switching source water can raise issues with OCCT; therefore, the LCRI
requires systems with an upcoming addition of new source water or long-
term change in treatment to notify States and to resume standard
monitoring for lead and copper (Sec. Sec. 141.90(a)(4) and
141.86(c)(2)(iii)(G), respectively). This allows States to modify
designated CCT, as necessary.
3. Final Rule Requirements
The final LCRI requires all medium systems with OCCT to continually
monitor WQPs, with an exception for medium systems whose 90th
percentile lead level is at or below the PQL of 0.005 mg/L, in
accordance with Sec. 141.81(b)(3). In the final rule, large and medium
systems (systems serving greater than 10,000 persons) with OCCT are
required to conduct WQP monitoring, and small systems serving 10,000 or
fewer persons with OCCT must conduct WQP monitoring after exceeding the
action level. The final rule maintains the 2021 LCRR provision that
provides State authority to set additional WQPs beyond those specified
in the rule, and to require any system with OCCT to conduct WQP
monitoring more frequently and/or for more parameters than those
required by the rule.
The final rule also incorporates the 2021 LCRR requirements for
systems with OCCT conducting WQP monitoring for DSSA under Sec.
141.82(j) (formerly known as ``find-and-fix'') to add those sites to
the WQP monitoring sampling pool. Systems are not required to add DSSA
sites if the number of sites in the sampling pool is at least twice the
standard minimum number of samples. See section IV.H of this preamble
for further discussion on DSSA requirements.
H. Distribution System and Site Assessment
1. Rationale and Proposed LCRI Revisions
In the 2021 LCRR, the EPA introduced the ``find-and-fix'' provision
for the first time in a lead and copper NPDWR to potentially identify
the cause of and actions to address localized elevated lead levels in
drinking water. More specifically, this provision requires water
systems to collect follow-up tap samples at sites where lead levels
exceed 0.015 mg/L under the LCRR tap sampling. The 2021 LCRR requires
water systems to collect follow-up lead tap samples no more than 30
days after they receive the results of the sample that exceeds 0.015
mg/L. The water system must also sample at a new WQP site that is on
the same size water main in the same pressure zone and located within a
half mile of the location with the action level exceedance within five
days of receiving the sample results. Small water systems without CCT
have up to 14 days to collect the samples. Water systems must also
attempt to determine the cause of the exceedance and propose an action
or a ``fix'' to address the cause of the exceedance. Further, States
have six months to approve any action recommended by a system or
require the system take an alternative action.
For the LCRI, the EPA proposed to maintain the requirement for
systems to collect follow-up tap samples at sites that exceed the lead
action level, specified as 0.010 mg/L. The EPA heard concerns in the
LCRR review and stakeholder engagements held to inform the agency's
development of the proposed LCRI that the term ``find-and-fix'' is an
inaccurate title for this section and should be changed because it
implies the water system will or be able to implement the ``fix'' in
all cases (USEPA, 2023i). For example, one stakeholder commented on how
the cause of the lead level could be a premise plumbing issue that the
water system may not be authorized to ``fix.'' Recognizing that the
``fix'' to address the exceedance may be outside of the control of the
water system, among other potential implementation challenges, the EPA
proposed to rename this section, ``Distribution System and Site
Assessment'', to more accurately reflect these requirements. Consistent
with the EPA's proposed change to the lead action level for the LCRI,
systems would be required to conduct the DSSA requirements for any
sampling site that exceeds 0.010 mg/L.
In addition, the EPA proposed to clarify the requirements under the
2021 LCRR for assessing CCT under Step 1 at Sec. 141.82(j)(1).
Specifically, the EPA proposed that systems would be required to
identify a DSSA WQP sample location within a half-mile ``radius'' of
each site with a test result above 0.010 mg/L. The 2021 LCRR required
sample locations be within a half-mile of the location with an action
level exceedance of 0.015 mg/L. The proposal added ``radius'' and
clarified the lead action level of 0.010 mg/L.
The proposed LCRI also maintained the requirement from the 2021
LCRR that systems serving 10,000 persons or fewer without CCT can have
up to 14 days from the date they receive sample results above the
action level to take WQP samples in the distribution system as opposed
to the other systems serving more than 10,000 persons that only have 5
days (Sec. 141.82(j)(1)).
2. Summary of Public Comments and the EPA's Responses
The EPA received comments noting concern for the number of systems,
especially small systems, that would be triggered into this requirement
from individual tap samples exceeding 0.010 mg/L. Commenters requested
that States be provided discretion to forego this requirement for small
systems if the underlying cause of the action level is clear by
evaluating monthly reporting. Other commenters noted the DSSA
requirement should be triggered by a lower level of lead, such as the
PQL. The EPA disagrees that States should be provided discretion to
forego the DSSA requirements. Identifying sources of lead in drinking
water is a critical component to mitigating lead and improving public
health protection. Also, a system may not exceed the lead action level,
but can still have 10 percent of tap samples above 0.010 mg/L and it is
important to understand whether it is a localized problem or is due to
water quality issues in the distribution system. To reduce the burden
of the DSSA requirements the EPA is maintaining the 2021 LCRR provision
that caps the number of distribution system WQP sites in response to
DSSA requirements that must be added to twice the minimum number of
required WQP sites. The final LCRI also removes requirements for WQP
monitoring for systems without CCT. In addition, the EPA is maintaining
the provision that systems in the process of optimizing or re-
optimizing do not need to submit treatment recommendations to the State
as they are already undergoing treatment processes to reduce lead
exposures in drinking water.
[[Page 86517]]
The EPA received comments requesting that the DSSA WQP monitoring
be scaled back from the requirements proposed in LCRI. Some commenters
suggested States should be given discretion to require when systems
take DSSA actions. The EPA disagrees with scaling back DSSA WQP
monitoring actions beyond the proposed requirements or leaving the
decision to the State because the EPA finds that all of the current
requirements are necessary to evaluate elevated levels of lead. As
described in the 2021 LCRR, the intent of the required WQP sample for
water systems with CCT is to help determine if CCT is optimized, if
additional WQP sites are needed, and/or if WQPs set by the State are
being met (86 FR 4235; USEPA 2021a). However, the EPA notes the DSSA
requirement includes provisions that address some concerns raised by
commenters. The minimum number of required sites ranges from 1 to 25
sites, therefore doubling leads to a range of 2 to 50 sites as the
maximum. This is less than the required number of monitoring sites for
total coliform in the distribution system; therefore, this requirement
is not requiring water systems to sample at a number of sites that they
have not already shown to be capable of handling. The proposed and
final rule language provides States with discretion to determine
whether these additional newer sites can better assess the
effectiveness of CCT once the system has reached the cap (Sec.
141.82(j)(1)(ii)(B)).
Other commenters requested that the rule clarify whether only
systems required to meet OWQPs to demonstrate OCCT would need to
potentially add new sites under DSSA requirements in Sec.
141.82(j)(1)(ii)(B). The addition of WQP sites under Sec.
141.82(j)(1)(ii)(B) only applies to systems required to meet OWQPs to
demonstrate OCCT. Therefore, the EPA revised the final DSSA rule
requirements to include a statement that systems without CCT do not
have to collect WQP data. These systems would not typically have OCCT
or any pH, alkalinity adjustment, or inhibitor addition processes.
Since they would not be adjusting these parameters in response to a
sample over 0.010 mg/L, the EPA expects WQP monitoring would be
unlikely to catch any short-term variations of these parameters in the
natural water quality, especially up to 14 days after the system
receives the tap sampling results. In addition, these systems would not
have any State-designated optimized WQPs to compare against new WQP
sampling results.
3. Final Rule Requirements
The EPA is finalizing the revision to rename this section,
``Distribution System and Site Assessment'' to more accurately reflect
these requirements. The EPA is finalizing the clarification under Step
1 for assessing CCT that requires water systems to take a DSSA WQP
sample at a location within a half-mile ``radius'' of each site with a
lead result above 0.010 mg/L. In addition, the EPA revised the final
LCRI to exclude small systems without CCT from conducting the WQP
monitoring under Step 1 of the DSSA process. These systems are still
required to conduct the other steps of the DSSA process.
I. Compliance Alternatives for a Lead Action Level Exceedance for Small
Community Water Systems and Non-Transient Non-Community Water Systems
1. Rationale and Proposed LCRI Requirements
In the 2021 LCRR, the EPA included alternative compliance options
for systems serving 10,000 or fewer persons and all non-transient non-
community water systems (NTNCWS) where a State or Tribe that has
primacy elects to adopt the alternative compliance provision. Systems
that exceed the lead trigger level must choose among four compliance
options: replace all lead service lines within 15 years, install and
maintain optimal CCT, install and maintain point-of-use treatment
devices at each household or building, or replace all lead-bearing
plumbing materials on a schedule specified by the State but not to
exceed one year. States seeking primacy are not required to adopt the
compliance alternative provision in which case systems must comply with
the requirements for OCCT and LSLR in the 2021 LCRR. While the EPA
previously determined that OCCT is an affordable technology for water
systems of all sizes (see section IV.F.1.a of this preamble) (USEPA,
1998b), small systems may still have technical difficulties
implementing this technology. The agency recognizes that it is often
difficult for smaller systems to find operators that have the advanced
skills to implement and maintain OCCT. Additionally, smaller systems
may face challenges retaining those operators once they have acquired
advanced skills. Because maintaining OCCT is an ongoing process and
finding and retaining skilled operators can be especially challenging
for very small systems (systems serving 3,300 or fewer persons), point-
of-use filtration and plumbing replacement options may be better
options for some systems. Operator turnover or poor oversight of OCCT
can reduce the effectiveness of the system's ability to prevent lead
corrosion, even resulting in increases of lead in drinking water
(USEPA, 2016b). Because of the challenges that small systems face in
implementing OCCT, point-of-use devices and plumbing replacements can
be effective alternative compliance technologies for small systems, and
therefore, the rule allows systems the option to seek State approval to
use one of them as an alternative to OCCT.
The EPA proposed in the LCRI to maintain a compliance flexibility
provision in Sec. 141.93 with some modifications. The EPA proposed to
lower the eligibility threshold for CWSs from those serving 10,000 or
fewer persons to 3,300 or fewer persons. Due to the proposed LCRI
requirement to replace all LSLs irrespective of lead levels, the EPA
also proposed to remove LSLR as an option for small system compliance
flexibility. The proposed LCRI compliance alternatives to OCCT include
installing and maintaining point-of-use devices or replacement of all
lead-bearing plumbing. If a system chooses, and a State approves the
point-of-use device compliance option, the system would be required to
provide, install, and maintain the device(s) in each household and each
building served by the water system, including monitoring one third of
the point-of-use devices each year, with all devices being monitored
within a three-year cycle. In addition, the system must provide public
education regarding how to use the device. If the system has control
over all plumbing in its buildings, and is not served by lead,
galvanized requiring replacement, or unknown service lines it may seek
State approval to implement the replacement of lead-bearing plumbing
compliance option. In that case, the water system would be required to
replace all plumbing that does not meet the definition as ``lead free''
on a schedule established by the State not to exceed one year.
In the LCRI, the EPA proposed to make these alternatives available
to CWSs serving 3,300 persons or fewer persons and all NTNCWSs that
have had an action level exceedance. This is because the EPA has
determined that the point-of-use device and replacement of lead-bearing
plumbing options are impractical for systems serving 3,301 to 10,000
consumers (88 FR 84878). If systems that request the use of an
alternative have OCCT, they would still be required to operate and
maintain it until the State determines, in writing, that it is no
longer necessary.
[[Page 86518]]
The EPA also proposed to consolidate the small system flexibility
provisions in Sec. 141.93 and remove cross-references to Sec. 141.93
in other rule sections (except for those in Sec. 141.90). This
approach comports with the EPA's goal in the 2021 LCRR review notice of
simplifying the rule and streamlining rule requirements. It also
recognizes that States seeking primacy for the LCRI are not required to
adopt the small system compliance flexibility provision. It will be
helpful for the small system flexibility provision in the Federal rule
to be separate and therefore severable from the remainder of the LCRI
because it would allow those States to incorporate the LCRI by
reference without the need for extensive revisions to the remainder of
the LCRI.
2. Summary of Comments and the EPA's Response
Some commenters agreed with maintaining small system flexibility
because of the financial, administrative, and economic challenges small
systems may face and how the LCRI addresses this by giving small
systems the option to choose either point-of-use device installation or
replacement of lead-bearing plumbing instead of re-optimizing OCCT. One
comment expressed concern that small system flexibility provisions
would be more burdensome as small systems would need more expertise to
implement the alternative compliance options. Another comment stated
that alternative compliance options are less stringent and that small
systems should still implement CCT and LSLR.
The EPA agrees with commenters supporting the inclusion of a small
system flexibility and disagrees that it would be a burden for small
systems to implement. Small CWSs and NTNCWSs tend to have more limited
technical capacity to implement complex treatment technique rules such
as the LCR (USEPA, 2011b). For instance, great expertise is needed for
systems to identify the OCCT and WQP monitoring to assure that lead and
copper levels are reduced to the extent feasible. The determination of
the OCCT is specific to each water system because it is based on the
specific chemistry of the system's source water and must be designed
and implemented to take into account treatments used to comply with
other applicable drinking water standards (56 FR 26487, USEPA, 1991).
System operators that do not already have it may be required to obtain
advanced certification to properly operate and maintain OCCT.
Many small CWSs face challenges in reliably providing safe drinking
water to their customers and consistently meeting the requirements of
SDWA and NPDWRs (USEPA, 2011b). Long-term compliance challenges affect
public health protection. Therefore, small system flexibility provides
small systems alternatives to CCT that may be more easily implementable
while still being effective in minimizing lead in water.
The EPA disagrees that the alternative compliance options would not
be as protective as OCCT. While the EPA has determined that CCT is a
feasible treatment technique for all system sizes, for systems serving
3,300 or fewer persons, the EPA determined point-of-use filtration and
replacement of all lead-bearing plumbing can be as effective as CCT in
minimizing exposure to lead in water for small systems (88 FR 84945,
USEPA 2023a; SDWA section 1412(b)(7)(A)).
Commenters provided feedback on the EPA's proposed eligibility
threshold for the small system flexibility alternatives. Some
commenters were in favor of the proposed threshold of 3,300. Other
commenters noted 3,300 was too high of a threshold for systems to
effectively implement the compliance alternatives. Some of these
commenters recommended a threshold closer to 500 persons. Other
commenters prefer a threshold of 10,000 as in the 2021 LCRR. One stated
justification for raising the threshold to 10,000 was that it
maintained the flexibility for systems that could implement the
alternatives and that systems would not implement the alternatives if
not feasible for them. Commenters also stated the EPA should not set a
threshold for CWSs as the agency did not set a size threshold for
NTNCWSs.
The EPA agrees with commenters that support a small system
threshold of 3,300 and agrees with commenters stating it is not likely
practical or effective for systems serving more than 3,300 persons to
implement the compliance options remaining after the removal of LSLR.
In addition, the point-of-use provision and the replacement of all
lead-bearing plumbing compliance alternatives are not easily
implementable by water systems serving over 3,300 persons. In the LCRI
proposal, the EPA described an example scenario in which a system that
serves 3,301 consumers would have to provide and maintain approximately
1,000 point-of-use devices (88 FR 84878, USEPA, 2023a). Every year, at
least 300 point-of-use devices would have to be monitored by the water
system, which would require a significant coordination effort and over
300 household visits by the water system. The burden required to
undertake this compliance alternative and implement it correctly would
be difficult for a water system serving more than 3,300 persons to
carry out given financial, administrative, and technical limitations.
To implement the replacement of lead-bearing plumbing, the system would
have to own or have access to replace all premise plumbing in the
residences and buildings they serve, which the EPA expects would be
highly unlikely for water systems serving over 3,300 persons. The final
small system compliance options are impractical for systems serving
more than 3,300 persons and will not likely be effectively implemented
as an alternative to OCCT as system size increases.
The EPA disagrees with commenters advocating for a lower
eligibility threshold in the LCRI, however, nothing in the LCRI
precludes States from using a lower eligibility threshold. The EPA
determined the small system alternatives could be effectively
implemented by systems serving up to (and including) 3,300 consumers.
Nevertheless, this may not be the case for some small systems, which is
also why the State must approve any small system alternative. For
instance, point-of-use devices have been recognized by the EPA as
effective and affordable variance technologies for water systems
serving up to 3,300 consumers (USEPA, 1998b). These treatment
techniques are as effective at lead risk reduction for this category of
systems as OCCT. For replacement of lead-bearing plumbing, for many
small systems serving 3,300 persons or under, it is more likely they
may control or have access to all the water infrastructure to make any
necessary replacements compared to systems serving more than 3,300
persons. In contrast, systems serving more than 3,300 persons are less
likely to face the same challenges with maintaining CCT than smaller
systems, but they would face more challenges in implementing a system-
wide point-of-use or plumbing replacement option than systems serving
3,300 or fewer persons that meets the requirements associated with
those options. Given those implementation challenges, for systems
serving more than 3,300 persons, unlike smaller-sized systems, these
options are unlikely to be as effective as OCCT. The EPA also disagrees
that CWSs should not have a threshold since NTNCWSs do not have a
threshold. NTNCWSs are much more likely to control their entire system
and the buildings they serve; therefore it is more likely that they can
effectively implement the small system flexibilities
[[Page 86519]]
when serving populations greater than 3,300 persons.
Some commenters expressed concern about the possibility of point-
of-use filters underperforming, potentially due to the unique water
chemistry of each drinking water system. Other comments expressed
skepticism that a filter program could be an adequate alternative to
OCCT. The EPA disagrees with commenters expressing concern that the
installation of point-of-use devices is not an effective alternative to
OCCT at systems serving 3,300 persons or less. As explained above,
because of the challenges that small systems face in implementing OCCT,
point-of-use devices can be an effective alternative compliance
technology for small systems. While the EPA recognizes that drinking
water chemistry does vary by system, the final LCRI has device
installation and maintenance requirements that water systems must
follow to ensure that point-of-use devices are consistently working
properly. For instance, the final LCRI requires that filters be
independently certified by a third party to meet the ANSI standard
applicable to the specific type of point-of-use unit to reduce lead in
drinking water. This is to ensure that filters are of an adequate
quality prior to installation. The LCRI also requires that the devices
must be maintained in accordance with the manufacturer's
recommendations to ensure the filter continues to be effective. This
can include ensuring filter cartridges are changed as appropriate and
resolving any operational issues. The devices must also include
mechanical warnings to inform the user if the device is having
operational problems. The final rule also includes regular testing
requirements to ensure the filters' continued efficacy. Specifically,
water systems must monitor one-third of all point-of-use devices every
year, such that every three years all installed devices will have
undergone monitoring (Sec. 141.93(c)(1)(iv)). The samples must be
taken after water passes through the POU device to assess the device's
performance. If any sample does exceed 0.010 mg/L, the water system
must notify the persons served by the POU device and/or building
management no later than one business day of receiving the tap sample
results. The system must then document and complete corrective action
within 30 days after the detected exceedance to ensure that filters are
back to adequately performing. In addition, the LCRI requires systems
that implement the point-of-use device option to provide instructions
upon delivery of the device to help ensure consumers use the devices
properly.
Commenters noted the challenge of notifying persons served by the
POU device and/or building management no later than 24 hours after the
results are received by the water system if the samples exceed the lead
action level, as proposed in the LCRI for systems utilizing the point-
of-use compliance option in Sec. 141.93(c)(1)(iv). The EPA agrees that
there are situations when the point-of-use monitoring results may be
challenging to provide within 24 hours, such as if results are received
over a weekend. Therefore, the EPA is revising the final LCRI to
require water systems conducting point-of-use monitoring under Sec.
141.93(c)(1)(iv) to provide notification to consumers within one
business day of receiving a sample that exceeds 0.010 mg/L instead of
24 hours as proposed. The EPA also notes the point-of-use devices are
required to include mechanical warnings to ensure consumers are
notified of operational problems under Sec. 141.93(c)(1)(iii).
Therefore, consumers would know if their point-of-use device is not
performing properly immediately, not just based on a sample result, and
can contact the water system and take other appropriate steps to
prevent exposure while the issue is addressed.
Commenters highlighted that some NTNCWS serve industrial facilities
that may use potable water for non-consumptive uses (i.e., cooling
water). In these cases, commenters suggested that premise plumbing
replacement that transports water not consumed by humans be exempt from
replacement because the water would not be consumed by humans and
therefore, allegedly, no humans would be exposed to lead from drinking
water. The EPA recognizes that there may be a diverse range of water
uses across NTNCWS, including for non-potable uses. The EPA provides
two alternative compliance options: point-of-use filters or the
replacement of lead-bearing plumbing. In this case, the NTNCWS could
choose the option to install point-of-use filters at every tap that is
used for cooking and/or drinking in non-residential buildings. A
commenter suggested that NTNCWS should be exempt from LSLR if it
installs point-of-use devices. The EPA disagrees with exempting NTNCWSs
from LSLR. As noted in the LSLR section (section IV.B), LSLs, when
present, are the most significant source of lead in drinking water, and
it is essential that they be replaced as quickly as feasible. LSLR
removes the source of lead exposure whereas point-of-use devices reduce
exposures to lead.
The EPA also received comments supporting strengthened public
education requirements to ensure people use point-of-use devices
appropriately. The EPA agrees with commenters that support requiring
public education to ensure proper use of point-of-use devices. In
addition to requiring public education along with point-of-use devices
that informs users how to properly use a point-of-use device, the EPA
is adding a new requirement in Sec. 141.93(c)(1)(v)(A) for the final
LCRI that public education materials must also meet requirements of
Sec. 141.85(a)(1)(ii) through (iv) that includes information on health
effects of lead, sources of lead, and steps the consumer can take to
reduce their exposure to lead in drinking water.
3. Final Rule Requirements
The EPA is finalizing revisions in the LCRI to lower the
eligibility threshold to CWSs serving 3,300 or fewer persons and all
NTNCWSs, and removing LSLR as a compliance option. The EPA is adding a
revision to Sec. 141.93(c)(1)(iv) in the final LCRI for the water
system to notify consumers, customers, and/or building management when
a point-of-use sample exceeds 0.010 mg/L within one business day
(rather than 24 hours). The final rule also finalizes the consolidation
of the small system flexibility provisions in Sec. 141.93 and removes
cross-references to Sec. 141.93 in other rule sections. In addition to
requiring public education along with point-of-use devices that informs
users how to properly use a point-of-use device, the EPA is adding a
new requirement in Sec. 141.93(c)(1)(v) for the final LCRI that public
education materials must also meet requirements of Sec.
141.85(a)(1)(ii) through (iv).
J. Public Education
1. Rationale and Feasibility of Public Education
Public education is one of the four components of the treatment
technique rule the EPA promulgated in 1991, in addition to LSLR, CCT,
and source water treatment (56 FR 26500, USEPA, 1991). As described in
section III.D of this preamble, in establishing treatment technique
requirements, the Administrator is required to identify those treatment
techniques ``which, in the Administrator's judgment, would prevent
known or anticipated adverse effects on the health of persons to the
extent feasible.'' 42 U.S.C. 300g-1(b)(7)(A). ``Feasible'' is defined
in section 1412(b)(4)(D) of SDWA as ``feasible with the use of the best
technology, treatment techniques and
[[Page 86520]]
other means which the Administrator finds, after examination for
efficacy under field conditions and not solely under laboratory
conditions, are available (taking cost into consideration).'' See
section III.D.3 of this preamble for discussion of how the EPA
considers feasibility.
Public education is effective for reducing lead exposure in
drinking water. In the 1991 LCR, the agency explained that while
actions such as CCT and LSLR will address a ``large portion of the lead
problem in drinking water,'' there are ``situations where elevated lead
levels will persist at consumers' taps during or even after these
efforts. In these cases, it will be important for consumers to take
actions in their homes (such as flushing tap water or replacing
fixtures) to reduce their exposures to lead'' (56 FR 26500, USEPA,
1991). Public education was not intended to substitute for the other
treatment techniques of the LCR, but rather to supplement and support
them. Public education, particularly when combined with other actions
and policies to reduce public health hazards, is an effective way to
improve public health by influencing people's knowledge, beliefs, and
behaviors. It may also promote service line replacement by encouraging
property owners, including landlords of multi-family residences, to
allow access for replacements. In developing the 1991 LCR, the EPA
conducted pilot studies to evaluate the effectiveness of public
education in reducing consumer exposure to lead in drinking water (56
FR 26500, USEPA, 1991). The agency found that ``well-designed and
effectively implemented programs can change the knowledge and/or
behavior of audiences and thereby reduce individual exposures'' (56 FR
26501, USEPA, 1991). The EPA concluded that public education is an
``effective method for reducing exposure to lead in drinking water by
raising consumers' awareness of the problem and, consequently,
modifying behavior that reduces their exposure'' (56 FR 26501, USEPA,
1991). By reducing exposure, public education thereby reduces the risk
of experiencing adverse health effects. The literature continues to
support the effectiveness of public education programs for risk
reduction for a variety of contaminants (Harding and Anadu, 2000;
Jordan et al., 2003; Greene et al., 2015; Brown et al., 2017; Lilje and
Mosler, 2018; Neri et al., 2018).
It is feasible for PWSs to conduct public education. Since 1991,
water systems have demonstrated that it is technically possible to
conduct various lead public education activities, including both
systemwide activities following an ALE (public education, consumer-
requested sampling programs) and focused outreach to particular groups
(e.g., individual customers at sites sampled for lead, organizations
that serve pregnant people, infants, and young children) as required by
the original rule and subsequent revisions. The final LCRI requirements
both rely on and build upon similar types of actions in the LCR,
including notifying and conducting consumer-requested sampling to
subsets of consumers (e.g., people served by known or potential LSLs).
Therefore, the EPA does not anticipate water systems will experience
new technical challenges in conducting the LCRI public education
requirements. Additionally, the EPA found in the 1991 LCR that public
education is affordable for large systems (56 FR 26501, USEPA, 1991).
The total national annualized costs for the LCRI public education
requirements are estimated to range from $234.3 to $244.5 million in
2022 dollars, discounted at two percent (see the final LCRI Economic
Analysis (USEPA, 2024a), chapter 4, section 4.3.6).
Public education, whether conducted after a lead action level
exceedance or independent of a water system's lead levels, also
prevents known or anticipated adverse health effects. The 1991 LCR
required water systems to conduct public education after an ALE as ``a
supplemental program either while the PWS is working to reduce lead
levels through corrosion control, source water treatment, or LSLR, or
after such actions fail to meet the lead action level'' (56 FR 26500,
USEPA, 1991). In the LCRI, the EPA is retaining public education
requirements following a lead action level exceedance. As discussed in
the LCRI proposal, a systemwide lead action level exceedance triggers
water systems to take action to reduce lead levels, such as installing
or re-optimizing OCCT. While the tap sampling protocol was designed to
assess CCT efficacy and not typical exposure (see section IV.E of this
preamble), lead levels in individual tap samples could potentially
represent water being consumed by individuals, given the potential for
consumption of water that has been stagnant and in contact with leaded
materials, especially in the mornings and upon returning home from work
or school when the water has not been used for some time. Although the
action level is not health-based (there is no safe level of lead; see
section IV.F of this preamble) and the 90th percentile is not a good
metric for determining individual health risks associated with lead
exposure, an ALE indicates higher lead levels systemwide and potential
corrosion issues, and therefore, public education can help consumers
take steps to reduce their exposure to potentially higher lead levels
at their tap. In addition, because actions such as OCCT and LSLR may
take years to implement and systems may repeatedly exceed the lead
action level during that time, the EPA is introducing additional
requirements for water systems with recurring lead action level
exceedances to further enhance public education on how consumers can
reduce their exposure (see section IV.K of this preamble for
discussion).
The EPA is also strengthening public education requirements
unassociated with specific lead levels in the LCRI. On the one hand,
the EPA understands that requiring additional systemwide public
education in response to a level lower than the action level may reduce
its efficacy. For example, in the 2000 Public Notification (PN) Rule,
the EPA discussed limiting the number of instances of violations or
situations that require Tier 1 PN to increase the effectiveness of
those notices thereby leading to greater health protection (65 FR
25995, USEPA, 2000b). Similarly, the EPA noted that the use of urgent
language in lower tiered notices could hinder the effectiveness of the
more immediate notices (65 FR 25995, 26001, USEPA, 2000b). As
introduced under the 2021 LCRR, a lead action level exceedance also
requires Tier 1 public notification within 24 hours. The requirements
in the LCRI are intended to ensure the effectiveness and impact of the
public education requirements without overwhelming consumers with
information.
On the other hand, the EPA recognizes that public education
irrespective of the lead action level prevents known or anticipated
adverse health effects. Drinking water can contain lead, sometimes at
very high levels, and may cause adverse health effects whether or not
there is a systemwide action level exceedance. Exposure to lead in
drinking water can vary between individual homes, and sampling
conducted to evaluate CCT performance may not reflect risks at every
site. Therefore, public education only associated with action level
exceedances is not sufficient. Consumers can take actions to reduce
their individual exposure to lead in drinking water, especially at
sites with significant sources of lead (e.g., LSLs). Furthermore,
public education directed at consumers with known or potential
[[Page 86521]]
LSLs supports the LSLR requirements by increasing consumer awareness
and engagement. The EPA requires water systems to conduct public
education independent of lead levels in a variety of contexts (e.g.,
individual notices of tap sample results, notifications to people
served by known or potential LSLs, lead information in the CCR, and
public education and sampling in schools and child care facilities)
because public education not associated with the action level can
produce benefits by prompting consumers to take actions that reduce
their exposure.
Therefore, the EPA is retaining systemwide public education
requirements based on the lead action level and strengthening public
education requirements unassociated with specific lead levels in the
LCRI. These public education requirements are feasible and prevent
known or anticipated adverse health effects to the extent feasible.
2. Proposed LCRI Revisions
The EPA proposed in the LCRI to retain the overall framework of the
public education provisions in the 2021 LCRR with some revisions. The
public education requirements under the 2021 LCRR include providing
public education with consumers' individual lead tap sampling results;
notification and public education for consumers served by a lead, GRR,
or lead status unknown service line; public education to persons
affected by a disturbance to a lead, GRR, or lead status unknown
service line; and public education about the system's goal-based LSLR
program when a system exceeds the lead trigger level. The 2021 LCRR
also requires water systems to conduct public outreach activities if
they exceed the trigger level and fail to meet their LSLR goal rate.
Systems must also conduct several public education actions if they
exceed the lead action level, including delivering public education
materials to customers, public health agencies, and organizations that
serve pregnant people and children, as well as other public education
activities. In addition, all CWSs must conduct annual outreach to local
and State health agencies about ``find-and-fix'' (renamed as
Distribution System and Site Assessment in the LCRI). Small CWSs and
NTNCWSs that select point-of-use devices as their compliance option in
response to a lead action level exceedance must provide public
education materials to inform users how to properly use point-of-use
devices to maximize the units' effectiveness in reducing lead levels in
drinking water. These public education provisions are required under
Sec. 141.85 of the 2021 LCRR. There are also public education related
requirements in other parts of the 2021 LCRR, which are described
further in other sections of this preamble. For example, Sec. 141.92
requires lead sampling and public education in schools and child care
facilities (see section IV.L of this preamble). In addition, Sec.
141.84(d) and (e) of the 2021 LCRR include requirements for water
systems to provide public education to consumers during partial and
full LSLR. There are also requirements for a CCR, which must include
information about lead and copper in drinking water under the CCR Rule
(see section IV.O.1 of this preamble), and public notification for lead
action level exceedances and violations to the LCR under the PN Rule
(see section IV.O.2 of this preamble).
For the LCRI, the EPA proposed to retain the overall framework of
the public education provisions in the 2021 LCRR with revisions to (1)
increase the likelihood that the public education activities are
effective in preventing adverse effects of lead on the health of
persons to the extent feasible, and (2) conform to proposed changes to
other aspects of the rule such as the removal of the lead trigger
level. The EPA also proposed new public education requirements for
copper. These proposed changes are described below.
a. Service Line Related Outreach
i. Required Public Education To Encourage Participation in Full Service
Line Replacement
Because there is no trigger level in the LCRI, the EPA proposed to
remove the 2021 LCRR's public education requirements related to service
lines that apply as a result of a trigger level exceedance (Sec.
141.85(g) and (h) of the 2021 LCRR).
The EPA proposed in the LCRI to require outreach activities to
encourage customer participation in LSLR for water systems that fail to
meet the proposed LCRI's mandatory replacement rate (Sec. 141.85(h)).
These water systems would be required to conduct outreach at least once
in the year following the failure to meet the mandatory service line
replacement rate and annually thereafter until the water system meets
the replacement rate or until there are no lead, GRR, or unknown
service lines remaining in the inventory, whichever occurs first. (See
section V.H.2 of the proposed LCRI preamble (88 FR 84947, USEPA, 2023a)
for a description of the proposed activities.)
Under the proposed LCRI, water systems with lead, GRR, or unknown
service lines would also be required to provide information about the
service line replacement program to consumers through other public
education including materials provided after a lead action level
exceedance and the notification of service line material; CWSs would
also provide this information in the CCR (see section IV.O.1 of this
preamble for information about CCR requirements).
Findings from a study on voluntary LSLR grant programs in Trenton,
NJ suggest that programs are more effective at increasing customer
participation in LSLR when they use extensive public outreach and
education (e.g., community meetings, door-to-door visits, mailings, and
social media) (Klemick et al., 2024). As described in the proposed LCRI
preamble, Chelsea, MA and Detroit, MI provide additional examples
demonstrating how effective public education and community engagement
can be to support service line replacement efforts (LSLR Collaborative,
n.d.d; City of Detroit, 2023). The EPA's proposed requirement for
additional outreach for systems that fail to meet the mandatory service
line replacement rate similarly seeks to help water systems to engage
their communities and raise awareness about risk from lead and GRR
service lines and their replacement program to encourage greater
participation in the service line replacement program. As described in
the proposed LCRI preamble, many of the activities the EPA proposed in
the LCRI are consistent with recommendations from AWWA and the LSLR
Collaborative for outreach to encourage customer participation in LSLR
(AWWA, 2022; LSLR Collaborative, n.d.e). Some of these activities are
also responsive to feedback heard during the National Drinking Water
Advisory Council (NDWAC) consultation for the proposed LCRI, in which
NDWAC members described the importance of engaging with community
members and community groups to provide public education (NDWAC, 2022,
see section on ``Consultation on Proposed National Primary Drinking
Water Regulation: Lead and Copper Rule Improvements'').
ii. Notification of Service Line Material
Under the LCRI, the EPA proposed revisions to the requirements for
notification of a lead, GRR, or unknown service line (Sec. 141.85(e)).
Specifically, the EPA proposed requiring the same notification content
requirements for LSLs and GRR service lines since both increase the
risk of exposure to lead. In the 2021 LCRR, only notices to households
with LSLs are required to
[[Page 86522]]
include information about programs that provide financing solutions to
assist property owners with replacement of their portion of the service
line, and a statement that the water system is required to replace its
portion of the service line when the property owner notifies the system
that they are replacing their portion of it. The EPA proposed in the
LCRI to require water systems to include this information in notices
for households with either lead or GRR service lines. In addition, the
EPA proposed to require water systems to include information in all
notices (households with lead, GRR, and unknown service lines) on how
to obtain a copy of the service line replacement plan, or view the plan
on the internet if the system is required to make the plan available
online, neither of which are required under the 2021 LCRR. The EPA
proposed to require all notices to include steps consumers can take to
reduce exposure to lead in drinking water that meet the requirements of
Sec. 141.85(a)(1)(iv), which contains proposed content updates,
including information about using a filter certified to reduce lead.
The EPA also proposed that the notices for persons served by a lead or
GRR service line include instructions for consumers to notify the water
system if they think the material categorization is incorrect (e.g., if
the service line is categorized as lead in the inventory but is
actually non-lead). The EPA proposed that water systems follow up with
consumers who notify the water system that they think the material is
incorrect, verify the correct service line material, and update the
inventory (see section IV.D of this preamble). In addition, to help
ensure that consumers are aware of the EPA's proposed requirement in
Sec. 141.85(c) that water systems must offer to sample the tap of any
consumer served by a lead, GRR, or unknown service lines who requests
it (see section IV.J.2.c.i of this preamble), the EPA proposed that the
notice of service line material include a statement about this
requirement.
iii. Notification of a Service Line Disturbance
The EPA proposed revising the requirement for notification of a
disturbance to a lead, GRR, or unknown service line (Sec. 141.85(g) of
the proposed LCRI) to also include disturbances from actions such as
physical actions or vibrations that could result in pipe scale
dislodging and associated release of particulate lead. This is
consistent with the type of disturbances that could be caused due to
inventorying efforts, such as potholing, and conforms with the
recommendations in the LCRR inventory guidance (USEPA, 2022c). The EPA
also proposed revisions to clarify that reconnecting a service line to
the water main is an example of an action that could cause a
disturbance requiring notification and requested comment on whether to
require distribution of filters for this type of disturbance. The EPA
also proposed requiring the notification of a disturbance to be
provided to both the customer and the persons at the service
connection.
b. Individual Notification of Tap Sampling Results
i. Lead
The EPA proposed requiring consumer notification of an individual's
lead tap sampling results within three calendar days of the water
system receiving the results, regardless of whether the results exceed
the lead action level (Sec. 141.85(d)). In contrast, the 2021 LCRR
requires notification within three calendar days only for results that
exceed 0.015 mg/L (the 2021 LCRR lead action level), while water
systems have 30 days to notify consumers of results at or below 0.015
mg/L. The EPA proposed this change in response to stakeholder concerns
about the lead action level being incorrectly interpreted as a health-
based level. Because there is no safe level of lead in drinking water,
setting delivery time frames based on how an individual sample compares
to the lead action level is likely to contribute to this
misinterpretation. The EPA's proposed delivery within three calendar
days would allow all consumers whose taps were sampled for lead to be
quickly notified of their results and informed of steps they can take
to reduce exposure. Water systems would be required to deliver the
notice either electronically (e.g., email or text message), by phone,
hand delivery, by mail (postmarked within three days of the system
learning of the results), or by another method approved by the State.
Water systems that choose to deliver the notice by phone would be
required to follow up with a written notice hand delivered or
postmarked within 30 days of the water system learning of the results;
the EPA notes that while the proposed LCRI preamble correctly described
the EPA's intent, the regulatory text of the proposed rule incorrectly
referred to written follow-up being required after either phone or
electronic delivery and incorrectly referred to the time frame for
written follow-up as three days. As noted in the proposed LCRI
preamble, written follow-up would allow greater information
accessibility and would allow consumers to keep a copy of their results
to use as a reference in the future, including the steps they can take
to reduce exposure to lead in drinking water, and the other information
provided in the notice. This written follow-up would also enable States
to verify the content of the notice, which would be difficult to do if
the notice were only delivered by phone.
ii. Copper
Under the LCRI, the EPA proposed to require water systems to
provide consumer notice of an individual's copper tap sampling results
(Sec. 141.85(d)). The proposed content requirements for this notice
are described in section V.H.3 of the proposed LCRI (88 FR 84949,
USEPA, 2023a), along with the EPA's rationale for introducing this new
copper public education requirement. The EPA proposed the same three-
calendar-day time frame and delivery methods for notification of copper
tap sampling results as for lead. This allows for simplicity and
administrative ease. In cases where copper samples are collected at the
same time as lead, the EPA proposed to allow systems to combine the
lead and copper results and required information into a single notice.
This further simplifies implementation and reduces administrative
burden.
c. Other Public Education Materials
i. Supplemental Monitoring and Notification
The EPA proposed to require systems to offer to sample the tap
water for lead for any consumer served by a lead, GRR, or unknown
service line that requests it (Sec. 141.85(c)). Since LSLs and GRR
service lines increase the risk of exposure to lead in drinking water,
the EPA believes this proposed requirement would encourage more people
who are at greater risk of lead exposure to have their tap sampled to
find out if there is lead in their drinking water and what actions they
can take to reduce their risk of exposure. The EPA also proposed to
require the system to notify consumers of the results of supplemental
tap sampling so they are informed and can decide to take any needed
steps to reduce their exposure to lead in their drinking water. Systems
would be required to provide consumers with these results in the same
three-day time frame required for results of compliance tap sampling in
accordance with Sec. 141.85(d).
[[Page 86523]]
ii. Public Education After a Lead Action Level Exceedance
Under the LCRI, the EPA proposed that water systems must conduct
the public education activities under Sec. 141.85(b)(2) for CWSs and
Sec. 141.85(b)(4) for NTNCWSs within 60 days of the end of the tap
sampling period in which a lead action level exceedance occurred, even
if an exceedance also occurred in the previous tap sampling period
(i.e., ``a consecutive action level exceedance''). This would ensure
that consumers receive information following every lead action level
exceedance, instead of waiting 12 months where two lead action level
exceedances were consecutive.
The EPA also proposed to clarify that water systems must repeat the
public education activities until the system is at or below the lead
action level, and that the calculated 90th percentile level at or below
the lead action level must be based on at least the minimum number of
required samples under Sec. 141.86 in order for the system to be able
to discontinue public education.
The EPA proposed to allow a State that grants an extension for a
water system to conduct the public education activities, to make the
deadline no more than 180 days after the end of the tap sampling period
in which the lead action level exceedance occurred. The EPA also
proposed to restrict the extension such that it would only apply to the
public education activities in Sec. 141.85(b)(2)(ii) through (vi)
(i.e., delivery of public education materials to public health agencies
and other organizations; submitting a press release; implementing
additional activities like public meetings) and would not apply to
delivery of public education materials to consumers under Sec.
141.85(b)(2)(i).
Under the LCRI, the EPA proposed to require the public education
materials be delivered to every service connection address served, in
addition to the bill paying customer. The EPA proposed this change to
better ensure that renters receive this important information so that
they can decide to take any needed steps to reduce their exposure to
lead in drinking water.
The EPA also proposed revisions to clarify that CWSs must deliver
``written'' public education materials to customers and service
connections, rather than limiting the delivery to only printed
materials. Similarly, the EPA proposed revisions to clarify that the
required content of public education materials would not only apply to
printed materials, but written materials more broadly. Written
materials can include printed as well as digital materials delivered
via email. The EPA proposed this update given the increasing use of
electronic methods for accessing information and so that water systems
can choose the most appropriate format for providing public education
to the persons they serve.
The EPA proposed that States would only be allowed to approve
changes to the content requirements of the public education materials
if the State determines the changes are more protective of human
health. The EPA proposed this revision to ensure that information
provided in public education materials is most protective of human
health and in recognition that some water systems may need to provide
more tailored information to their community in order to provide
greater public health protection (e.g., systems with many lead, GRR, or
lead status unknown service lines).
The EPA proposed to require the public education materials to
include information about lead, GRR, and unknown service lines for
systems that have lead, GRR, or unknown service lines. In addition to
the required LSL information, the EPA proposed that systems must
include information about replacing GRR service lines, identifying the
material of unknown service lines, and accessing the service line
replacement plan. Systems with known lead connectors or connectors of
unknown material in their inventory would be required to include
information in the public education materials about how consumers can
access the inventory. The EPA also proposed to require that the public
education materials include instructions for consumers to notify the
water system if they think the service line material classification is
incorrect. The EPA proposed to require all water systems, including
NTNCWSs, to include information in the public education materials about
lead in plumbing components and about how consumers can get their water
tested, including information about the proposed provision of
supplemental monitoring and notification in Sec. 141.85(c).
The EPA also proposed requiring public education materials to
include additional steps that consumers can take to reduce their
exposure to lead in drinking water, including explaining that using a
filter certified by an ANSI accredited certifier to reduce lead is
effective in reducing lead levels in drinking water. (See section V.H.4
of the proposed LCRI (88 FR 84950, USEPA, 2023a) for additional
revisions the EPA proposed to the public education content
requirements.) The EPA's proposed revisions to the mandatory lead
health effects language are described in section IV.J.2.d.i of this
preamble.
iii. Public Education for Small System Compliance Flexibility Point-of-
Use Devices
The EPA proposed moving the public education requirements for small
water system compliance flexibility point-of-use devices from Sec.
141.85 to Sec. 141.93, so that the small system compliance flexibility
provisions are all in the same rule section (see section IV.I of this
preamble).
d. Requirements for Language Updates and Accessibility
i. Lead Health Effects Language
The EPA proposed to require the lead health effects language in
public education materials to begin with a statement that there is no
safe level of lead in drinking water. This was proposed to address
concerns about water systems with detectable lead levels below the lead
action level making statements that downplay or detract from the health
effects language. The EPA reiterates that the lead action level is not
a health-based level and there is no safe level of lead in drinking
water. The agency previously established an MCLG for lead of zero.
The EPA also proposed revisions to the language to clarify that it
identifies some and not all the health effects of lead, and to
encourage consumers to consult their health care provider for more
information about their risks. Health care providers are an important,
trusted source of information about lead for consumers and are
influential in encouraging consumers to take actions, particularly for
those at highest risk from lead in drinking water (Jennings and Duncan,
2017; Griffin and Dunwoody, 2000). In addition to noting the risk to
all age groups, the EPA proposed adding language to highlight the risks
to pregnant people, infants (both formula-fed and breastfed), and young
children. The EPA also proposed revisions to simplify the language so
that it is easier for consumers to understand. The EPA proposed the
following revised mandatory lead health effects language in the
proposed LCRI:
There is no safe level of lead in drinking water. Exposure to
lead in drinking water can cause serious health effects in all age
groups, especially pregnant people, infants (both formula-fed and
breastfed), and young children. Some of the health effects to
infants and children include decreases in IQ and attention span.
Lead exposure can also result in new or worsened learning and
behavior
[[Page 86524]]
problems. The children of persons who are exposed to lead before or
during pregnancy may be at increased risk of these harmful health
effects. Adults have increased risks of heart disease, high blood
pressure, kidney or nervous system problems. Contact your health
care provider for more information about your risks.
The same wording would be required for use in the health effects
description in the public notifications for a lead action level
exceedance and treatment technique violations as well as in the CCR.
ii. Translation Requirements
To ensure greater protection of consumers with limited English
proficiency, the EPA proposed to require all the public education
materials under 40 CFR 141.85 to include: (1) Information in the
appropriate language(s) for the community the water system serves
regarding the importance of the materials, and (2) contact information
for persons served by the water system to obtain a translated copy of
the materials or assistance in the appropriate language, or the
materials must be translated into the appropriate language. This would
be required for systems that serve a large proportion of consumers with
limited English proficiency, as determined by the State.
3. Summary of Comments and the EPA's Response
a. Feasibility of Public Education Requirements
In the proposed LCRI, the EPA requested comment on the proposed
determination that the public education treatment technique is feasible
and prevents known or anticipated adverse health effects to the extent
feasible. While some commenters agreed, others thought the proposed
public education requirements did not go far enough to protect public
health while still others thought they may overwhelm consumers and that
the proposed time frames of some of the public education requirements
(e.g., consumer notices of tap sampling results) were not feasible for
many water systems. In light of these comments, the final LCRI includes
revisions that make public education more health protective without
reducing its efficacy, for example, by clarifying the required text
about the risks of lead in drinking water and requiring more frequent
public messaging about those risks and steps consumers can take to
protect their health (see section IV.J.3.f of this preamble). The
agency is also adjusting the time frame for consumer notices of tap
sampling results to three business days (instead of the proposed three
calendar days) to be feasible for water systems, given the significant
increase in notices required, while still ensuring that consumers
receive information as quickly as feasible (see section IV.J.3.d of
this preamble).
b. Streamlining Public Education Requirements
The EPA requested comment on additional ways to streamline public
education and associated certification requirements. Commenters
expressed concerns about the complexity of the public education and
associated reporting requirements and the burden on water systems to
conduct them. Some commenters suggested ways to simplify or streamline
the public education and associated certification requirements by
reducing the number of public education requirements or aligning due
dates for public education reporting requirements. The EPA disagrees
with reducing the number of public education requirements because they
are necessary to inform consumers and prevent adverse health effects
and the agency determined they are feasible (see section IV.J.1 of this
preamble). However, the EPA agrees that streamlining public education
reporting requirements would ease administrative burdens for both water
systems and States. Thus, the EPA is combining deadlines for when water
systems must report information about public education to the State
(see section IV.N.1 of this preamble for the reporting requirements).
Some commenters suggested the EPA provide communication templates
for water systems to assist them with conducting the public education
requirements. The EPA agrees with this recommendation and intends to
provide public education resources and templates to assist water
systems and States.
Some commenters recommended requiring water systems to develop and
submit a public education plan or communication strategy to the State
to streamline regulatory reporting and State review and approval. Some
commenters stated this would also help systems to have public education
materials prepared ahead of time. While the EPA agrees that a public
education plan could be helpful to water systems and encourages water
systems to do so where appropriate, the agency is not introducing such
a requirement at this time due to the additional administrative burden
for water systems and States. In addition, the timing and need for
certain public education can vary such as public education following a
lead action level exceedance or multiple lead action level exceedances,
and it may not make sense for systems and States to spend limited
resources on public education plans that will not be implemented.
c. Service Line Related Outreach
i. Required Public Education To Encourage Participation in Full Service
Line Replacement
In the proposed LCRI, the EPA requested comment on whether the
types and timing of outreach activities proposed for systems failing to
meet the mandatory service line replacement rate are appropriate and
whether other activities should be considered. Some commenters
supported the proposed activities; some recommended requiring systems
to do more of these activities than proposed and to require that at
least one activity involve face-to-face contact. Some commenters
requested more information on the required outreach activities, such as
the options of conducting a social media campaign and visiting targeted
customers. Some commenters cautioned against the EPA being overly
prescriptive on the types of required activities, recommending that
systems have flexibility to tailor outreach and community partnerships
to their community, similar to some comments received regarding the
additional proposed activities for systems with multiple lead action
level exceedances (see section IV.K.2 of this preamble).
The EPA encourages water systems to conduct additional public
outreach; however, the agency disagrees with requiring systems to
conduct a greater number of activities than proposed because requiring
water systems to conduct at least one additional activity if they do
not meet the LSLR rate is sufficient to encourage customer
participation in the service line replacement program without
detracting from water systems' efforts to meet the other public
education requirements and requirements of the LCRI more broadly. The
proposed LCRI includes several other public education requirements that
provide consumers with information about lead, GRR, and unknown service
lines described in section IV.J.2.a of this preamble. Therefore, the
EPA is finalizing the number and types of activities as proposed.
The EPA agrees with commenters about the effectiveness of direct
customer and consumer contact in community outreach. AWWA's 2022 Lead
Communications Guide and Toolkit and the LSLR Collaborative describe
direct customer and/or
[[Page 86525]]
consumer contact as particularly effective methods of communicating
about LSLR (AWWA, 2022; LSLR Collaborative, n.d.e). That is why the
LCRI includes several options for face-to-face activities, including
conducting a public meeting, participating in a community event, and
visiting targeted customers. However, the EPA also agrees with
commenters that the requirements should not be overly prescriptive and
that water systems should have flexibility to develop an activity that
works best for their community. During the Small Business Advocacy
Review for the proposed LCRI, the EPA also received feedback that face-
to-face contact is particularly effective for engaging smaller
communities, especially those with a higher percentage of older adults
(USEPA, 2023j). However, this might not be the most appropriate option
for a larger system, which might determine that a social media campaign
and visiting targeted customers is more appropriate. Therefore, the
LCRI offers a variety of activities for systems to choose from so that
they can tailor the outreach to the community they serve.
While some commenters requested more information about what kind of
social media campaign would meet the outreach requirement (e.g., the
number or frequency of social media posts, the types of social media
networks), the EPA decided not to prescribe this level of detail as it
will depend on the water system and community as well as the social
media platform chosen to distribute information. A water system may
consider collaborating with community partners and/or conducting a
focus group with community members to determine what kind of social
media campaign would be most effective for the community it serves.
Some commenters recommended removing the options to visit targeted
customers or to send certified mail to all customers and consumers
served by LSLs and GRR service lines, noting that these would be time
intensive and expensive for water systems. Some commenters also noted
that customers ignore certified mail rendering it ineffective. Given
the benefits of face-to-face contact, the EPA disagrees with commenters
who recommended removing visiting targeted customers as an option.
Water systems for which this option is not feasible have many other
options to choose from in the rule. The EPA also disagrees with
recommendations to remove certified mail as an option; the purpose of
certified mail as an option is to offer another opportunity for mailed
public education about the replacement program and to ensure that the
consumer receives it. Systems that find certified mail not to be an
effective method of outreach in their communities can choose another
option. The EPA is retaining these options because they are necessary
to provide flexibility for system outreach that best meets the needs of
their community.
Some commenters said the number of outreach activities required
should depend on system size. The EPA proposed and maintained in the
final LCRI requirements based on system size including that systems
serving 3,300 or fewer persons must conduct at least one of any of the
activities listed in Sec. 141.85(h) while systems serving more than
3,300 persons must conduct at least one of the activities from Sec.
141.85(h)(2)(i) through (iv) or at least two of the activities from
Sec. 141.85(h)(2)(v) through (viii).
Some commenters requested clarification on when systems can
discontinue the outreach activities. The EPA notes that a water system
can discontinue the activities once the system meets the required
replacement rate or after there are no lead, GRR, or unknown service
lines remaining in the inventory, whichever occurs first. For example,
a water system that has only replaced 35 percent by Year 4 of the LSLR
program would not meet the required rate and therefore would have to
start conducting the additional outreach activities. The water system
would have to be back on track with at least 50 percent replaced by the
end of Year 5 to discontinue the activities.
Some commenters expressed concerns with the proposed requirement
for additional outreach being imposed as a penalty for systems that
fail to meet the replacement rate. The EPA clarifies that the purpose
of the additional outreach is to help water systems achieve greater
customer participation in their LSLR programs so that they can get back
on track towards replacing all LSLs in 10 years. LSLR programs that
incorporate extensive community outreach have demonstrated how
effective public education can be in increasing LSLR participation
(Klemick et al., 2024; City of Detroit, 2023; LSLR Collaborative,
n.d.d). To clarify this intention in the final rule, the EPA is calling
this requirement ``Outreach activities to encourage participation in
full service line replacement'' rather than the proposed ``Outreach
activities for failure to meet the lead service line replacement
rate.''
ii. Notification of Service Line Material
The EPA requested comment on whether to require additional public
education requirements to encourage service line replacement faster
than the 10-year replacement deadline. Some commenters recommended
maintaining the notification of a lead, GRR, or unknown service line
requirement as annual, while some commenters recommended increasing the
frequency to every six months. In contrast, some commenters questioned
whether increased frequency of this notification would have an impact
on public health. In the final rule, the EPA is maintaining the
notification as annual. Between this annual notification and other
requirements for water systems to provide information about the
publicly available service line inventory and service line replacement
plan (e.g., CCR, public education after a lead action level exceedance)
and the requirement for systems to offer to sample the tap for lead for
any consumer served by a lead, GRR, or unknown service line who
requests it, the EPA believes these public education requirements will
encourage swift service line replacement without overburdening water
systems and detracting from their efforts to identify and replace LSLs.
The EPA also requested comment on whether the agency should require
systems to annually notify consumers if they are served by a lead
connector, similar to the required notifications for sites with lead,
GRR, or lead status unknown service lines. Some commenters recommended
requiring notification of a lead connector. Some commenters said if
lead connectors are required in the service line inventory, notifying
the consumer should also be required. However, some commenters said if
lead connectors are not actively required to be replaced, then systems
should not be required to notify consumers of their presence. In the
final rule, the EPA is not requiring annual notification of lead
connectors to individuals served by lead connectors. For the final
LCRI, the EPA is requiring water systems to include identified
connectors in their service line inventory (see section IV.D.1 of this
preamble). Consumers have access to the publicly available service line
inventories to determine if they are served by a lead connector.
Information about how to access the service line inventory is required
in notifications of a service line that is known to or may potentially
contain lead, public education materials provided after a lead ALE (see
section IV.J.4.c of this preamble), and the widely distributed CCR (see
section IV.O.1 of this preamble). The EPA is also maintaining the
requirement for water systems to
[[Page 86526]]
replace lead connectors as encountered (see section IV.B of this
preamble). Given the differences in how service lines and connectors
are required to be identified and replaced and their associated risks
of lead exposure, the EPA determined that it is sufficient to require
water systems to provide consumers with information on how they can
access the inventory to find out if they are served by a lead connector
rather than requiring an annual notification of connector material. The
EPA is requiring notifications for persons served by a lead, GRR, or
lead status unknown service line to raise awareness to consumers that
they are consuming drinking water served by a service line that may
contribute lead to drinking water, educate them about identification
and replacement (therefore likely increasing replacement
participation), and steps they can take to reduce exposure to lead in
drinking water. The EPA is not requiring water systems to identify all
lead connectors in their distribution system, unless they can be
identified through available information, and is requiring water
systems to replace lead connectors when encountered. This is because
lead connectors are expected to contribute less to exposures from lead
in drinking water when compared to LSLs because they are shorter in
length and to enable water systems to prioritize funding and staffing
resources towards replacement of lead and GRR service lines and
identifying unknown service lines. Providing direct notification to
consumers with lead connector materials would provide limited
information in terms of location (for those with unknown connectors)
and replacement opportunities.
iii. Notification of a Service Line Disturbance
The EPA received comments on the requirement for notification of a
disturbance to a lead, GRR, or unknown service line. The EPA proposed
in the LCRI to require notification, including providing public
education materials and flushing instructions, to customers and persons
served by the water system that are served by a lead, GRR, or unknown
service line following actions taken by a water system that cause a
disturbance to the service line. The EPA proposed that this includes
actions that result in a shut off or bypass of water to an individual
or group of service lines such as operating a valve on a service line
or meter setter, or reconnecting a service line to the main. The EPA
proposed that water systems must provide filters when the disturbance
results from the replacement of an inline water meter, water meter
setter, or connector, and requested comment on whether to require
provision of filters for disturbances resulting from replacement of a
water main, in addition to the proposed requirement for public
education materials and flushing instructions. Some commenters
expressed support for providing filters for disturbances caused by
water main replacement, noting that lead releases from these
disturbances are unpredictable and flushing would not suffice. Other
commenters were opposed to any notification requirement for
disturbances caused by water main replacement, expressing concerns that
water systems would have to provide notification on multiple occasions
since water main replacement can be a multi-day process.
The EPA is requiring that when the water main replacement results
in a service line being physically cut, water systems must provide
persons served at that service connection with a pitcher filter or
point-of-use device certified by an ANSI accredited certifier to reduce
lead, instructions to use the filter, and six months of filter
replacement cartridges, in addition to the proposed public education
materials and flushing instructions. Water systems would provide the
filters to consumers at the same time as the public education materials
and flushing instructions so such a requirement would not require any
additional outreach effort. In the final rule, the EPA is requiring
provision of filters for disturbances to a lead, GRR, or unknown
service line caused by replacement of an inline water meter, water
meter setter, connector, or water main to increase public health
protection since all these replacements involve cutting pipe, which can
cause lead releases in the water when LSLs or GRR service lines are
present (Lewis et al., 2017; Camara et al., 2013; Del Toral et al.,
2013).
Some commenters supported the proposed revision to add significant
disturbances caused by inventorying efforts to the types of
disturbances that would require notification. However, other commenters
perceived this designation as being too open-ended, stating that
compliance would be infeasible and that there is not a technical basis
for this proposed requirement. For these reasons, they recommended
removing the proposed regulatory text ``or other actions that cause a
disturbance to a service line or group of service lines, such as
undergoing physical action or vibration that could result in pipe scale
dislodging and associated release of particulate lead.'' The EPA is
maintaining the proposed requirement in the final rule. First, the EPA
disagrees with the claim that there is no technical basis for this
requirement. Field methods used for inventory efforts can disturb a
service line or group of service lines such that lead is released and
puts consumers at risk of exposure to lead in drinking water (Hensley
et al., 2021). The regulatory text specifies actions that result in
``pipe scale dislodging and associated release of particulate lead''
that would put consumers at increased risk of lead exposure and
therefore necessitate notifying consumers so they can decide to take
precautions to prevent adverse health effects. It is for these same
technical reasons that the EPA included recommendations in the agency's
LCRR inventory guidance to notify consumers about the potential for
temporarily elevated lead levels and provide them with information
about reducing lead levels following an LSL or GRR disturbance during
excavation (USEPA, 2022c). Second, the EPA believes it is feasible for
water systems to notify consumers when there is a disturbance to a
service line or group of service lines that could result in pipe scale
dislodging and associated release of particulate lead and disagrees
that this type of disturbance is too broad for water systems to comply
with the requirement. However, the EPA is making the following small
correction to the punctuation in the final regulatory text ``or other
actions that cause a disturbance to a service line or group of service
lines, such as undergoing physical action or vibration, that could
result in pipe scale dislodging and associated release of particulate
lead'' to clarify that the agency is specifically referring to
disturbances resulting in pipe scale dislodging and associated release
of particulate lead whereas the proposed regulatory text could have
been interpreted as any disturbances to a service line or group of
service lines.
Some commenters expressed concerns about the feasibility of
notifying a customer before returning the line to service or within 24
hours if the customer does not reside at the service connection (e.g.,
a customer who is a property owner and renting their property). The EPA
agrees with these concerns, and in the final rule, the agency is
allowing water systems up to 30 days after the disturbance to notify
customers who are not at the service connection (i.e., non-resident
property owner) since they would not likely be consuming the water and
therefore would not likely be exposed to the potentially elevated lead
levels caused
[[Page 86527]]
by the disturbance. Although a non-resident customer may not be at risk
of exposure (such as a rental property owner), it is appropriate to
notify the customer if infrastructure work is conducted on their
property. In addition, there may be situations where the non-resident
customer could consume drinking water at their property. Water systems
must still notify persons at the service connection of the disturbance
before the service line is returned to service or within 24 hours of
the disturbance if service was not shut off or bypassed.
d. Individual Notification of Tap Sampling Results
In the proposed LCRI, the EPA requested data, analyses, and
comments on the proposed determination that water systems are capable
of providing consumer notices of individual tap sampling results within
three calendar days of learning of those results, regardless of whether
the results exceed the lead or copper action level, or if a longer time
frame is needed (e.g., three business days, seven calendar days, 14
calendar days). Many commenters expressed concerns with the feasibility
of the proposed three calendar-day time frame, particularly if a system
receives results before a weekend or holiday, and recommended the EPA
extend the deadline for systems to deliver consumer notice of lead and
copper tap sampling results, including on-request. Suggested time
frames included three business days, five business days (or seven
calendar days), 10 days, 14 days, or 30 days for all results. Some
commenters recommended allowing more time for results that do not
exceed the action level or the practical quantitation limit. On the
other hand, some commenters recommended maintaining the proposed three
calendar days for notification of all results or shortening the time
frame to 24 hours.
The EPA disagrees with including different timeframes based on lead
levels found as there is no safe level in drinking water and consumers
should be made aware of any lead in their individual tap sample results
as soon as possible. There is no safe level of lead in drinking water
and while the tap sampling protocol is designed to inform assessment of
CCT, as discussed above an individual tap could potentially represent
water being consumed by individuals and therefore individual results
are useful to provide to the consumer. Recognizing implementation
concerns, the EPA determined having a single time frame for delivery of
notifications simplifies implementation and reporting. In addition,
providing all tap sample results in the same, timely manner is
important to build trust with consumers who often must be willing to
participate in the sampling. After considering public comments and the
increased number of consumer notifications of tap sampling results
required under the LCRI, the EPA has determined that it may not be
feasible for water systems to provide consumer notification within
three calendar days. Therefore, the final rule requires water systems
to provide consumer notice of lead or copper tap sampling results as
soon as practicable but no later than three business days of the system
learning of the results. Three business days rather than three calendar
days alleviates concerns raised about notification requirements on
weekends and holidays, recognizing water systems may not have staff
available to conduct notification. This is the same time frame
regardless of lead or copper levels and includes both tap sampling
results from lead and copper tap water monitoring carried out under the
requirements of Sec. 141.86 as well as consumer-requested tap sampling
results from supplemental tap water monitoring carried out under the
requirements of Sec. 141.85(c). The EPA notes that there are many
approved delivery methods for this notification, including electronic
delivery (e.g., email, text message, notification in water system
portal) so that water systems can choose the most suitable option for
the persons they serve and so that they are able to meet the three
business day time frame.
Some commenters noted a discrepancy between the preamble and
regulatory text with regards to the proposed written follow-up that
would be required for systems that deliver the notice orally by phone.
The preamble to the proposed rule correctly stated that written follow-
up would be required for notices delivered by phone within 30 days of
the system learning of the results. The regulatory text incorrectly
referred to this written follow-up as being required for notices
delivered by phone or electronically, and also incorrectly stated that
it would be required within three days of the system learning of the
results. The EPA corrected this in the final rule which requires
written follow-up only for notices delivered by phone call or voice
message since this would be an oral communication and consumers need
access to a written copy of the results and other information such as
steps to reduce their risk of exposure to lead in drinking water. The
purpose of allowing water systems to deliver the notification by a
voice phone call is to make it easier for systems to notify consumers
of their tap sampling results as quickly as possible within three
business days, since some systems may not be able to deliver the notice
using other methods such as mail within this time frame or other
methods such as electronic delivery may not be appropriate for their
community. The final rule requires this written follow-up within 30
days, and not three days, as the latter would defeat the purpose of the
phone delivery option and would be redundant with a system simply
delivering the written notice within three business days, which is
already an option.
Some commenters requested clarification on when the delivery time
frame begins, and specifically when a water system is considered to
have ``learned of'' the results. This can vary for water systems
depending on how the water system learns of the results. Some systems
have their own labs where they know the results as soon as their labs
analyze the samples. Other systems send their results to private labs,
and the systems would learn of the results potentially by mail, fax,
email, or other means. The EPA is not prescribing how systems must
learn of the results. In any case, once the system learns of the
results, it then has up to three business days to deliver the consumer
notice. Some commenters requested clarification on the time frame for
copper tap sampling results and on-request sampling results. The EPA
notes that the same notification time frame applies to all lead and
copper sampling results. In cases where copper samples are collected at
the same time as lead, systems can combine the lead and copper results
and required information into a single notice. The EPA expects that
this would simplify implementation by allowing systems to deliver both
the lead and copper results and associated required information at the
same time.
Some commenters appeared to conflate the notice of individual tap
sampling results with the Tier 1 public notification that is required
within 24 hours of a systemwide lead action level exceedance (based on
the 90th percentile calculation). The EPA notes that this requirement
concerns tap sampling results from an individual site and is different
from the 90th percentile calculation of a system's lead levels, which
requires 24-hour public notification (see section IV.O.2 of this
preamble), and public education within 60 days when there is a
systemwide lead action level exceedance (see section IV.J.4.c.ii of
this preamble).
[[Page 86528]]
e. Supplemental Monitoring and Notification
In the proposed LCRI, the EPA requested comment on whether the
proposed requirement for water systems to offer lead sampling to
consumers with lead, GRR, or unknown service lines in the notice of
service line material is effective at reducing adverse health effects.
The EPA also requested comment on the proposed requirement for water
systems to deliver consumer-initiated test results within three
calendar days of obtaining those results. Some commenters agreed that
offering lead sampling is effective at reducing adverse health effects.
However, some commenters expressed concerns with the burden on water
systems relative to the level of risk reduction the proposed
requirement could achieve. Some noted that it would be difficult for
water systems to budget for an uncertain amount of sampling and
recommended a cap on the number of samples that the water system would
have to pay for or a cap on water system spending on consumer-requested
sampling. Some commenters recommended only offering sampling to persons
served by LSLs and GRR service lines, but not unknowns. Some commenters
requested clarification on what exactly it means for a water system to
``offer'' sampling and whether the water system would be required to
pay for analyzing the sample. Some commenters stated that the rule
should specify that this sampling be done at no charge to the
individual consumer. The EPA also requested comment on the proposed
requirement for water systems to deliver consumer-initiated test
results within three calendar days of obtaining those results. Some
commenters supported the three-day time frame proposed for delivery of
consumer-requested sampling results, while others expressed concerns
noting that it would disincentivize systems from offering free lead
testing to consumers.
The EPA agrees with commenters that offering lead tap sampling to
consumers with lead, GRR, or unknown service lines is effective at
reducing adverse health effects and disagrees with commenters that it
has limited risk reduction relative to the burden on water systems. As
stated in the proposal, lead and GRR service lines can increase the
risk of exposure to lead in drinking water (88 FR 84878, 84950, USEPA,
2023a). This requirement will encourage more people who are at greater
risk of lead exposure to have their tap sampled to find out if there is
lead in their drinking water and what actions they can take to reduce
their risk of exposure, thereby reducing adverse health effects. The
EPA disagrees with withholding the offer for lead sampling from
consumers served by unknown service lines as they may also potentially
contain lead which increases the risk of exposure for these consumers.
The EPA does not agree that this requirement has limited risk reduction
relative to the burden on water systems. This requirement could be
implemented similarly to other lead tap sampling regularly conducted by
the water system such as providing consumers with sampling materials
and instructions, collecting tap samples, analyzing samples in-house or
commercially, and informing consumers of the results. The rule also
provides that consumer-requested sampling does not have to conform to
compliance sampling requirements to provide flexibility and meet the
needs of consumer requests; however, at sites served by a lead, GRR, or
lead status unknown service line the samples must capture both water in
contact with premise plumbing and water in contact with the service
line. With regards to who bears the cost of consumer-requested
sampling, as described in the LCRI proposal, the requirement to offer
sampling does not address how a water system would cover the cost of
the sampling. The EPA does not direct how a water system covers the
costs of compliance with a NPDWR as this is, at its core, a matter of
State and local law. State and local governments regulate how water
systems allocate costs for services provided to their customers.
Therefore, the final rule does not include any specifications as to the
entity responsible for the cost of consumer-requested sampling. (See
section IV.J.4.b of this preamble about the time frame for delivery of
lead tap sampling results).
f. Public Education After a Lead Action Level Exceedance
In the proposed LCRI, the EPA requested comment and supporting data
on the capacity of water systems to conduct some or all of the required
public education activities in 30 days, or another period of time that
is less than 60 days, after the end of the tap sampling period in which
a systemwide lead ALE occurs. Most commenters recommended maintaining
the time frame as 60 days after the end of the tap sampling period in
which the lead ALE occurred, stating that a shorter time frame of 30
days would be difficult or would not be feasible for many systems.
However, some commenters stated it would be feasible to conduct the
public education requirements within 30 days. Some commenters
recommended that the EPA consider increasing the time frame to 90 days.
Some commenters recommended requiring different time frames based on
the size of the system and also different time frames for the different
public education activities required after a lead ALE (e.g., different
time frames for delivery of public education materials to consumers and
organizations, submitting a press release, etc.).
The EPA is maintaining the 60-day time frame for conducting public
education after a lead ALE. The EPA believes that systems need the 60
days after the end of the tap sampling period to develop and/or update
public education materials, consult with the State, identify the
organizations that they need to share these materials with, plan
activities (e.g., public meetings, public service announcements) in
consultation with the State, and submit a press release, among other
public education tasks required under Sec. 141.85(b)(2) for CWSs and
Sec. 141.85(b)(4) for NTNCWSs. Given the increase in lead ALEs that
may occur as a result of the reduced lead action level and revised tap
sampling protocol, water systems will likely have more ALEs leading to
the need to conduct more public education, in addition to the 24-hour
Tier 1 public notification of a lead ALE. For this reason, the EPA
disagrees with shortening the deadline for conducting public education.
In addition, since the PN Rule requires all water systems to conduct
public notification within 24 hours of the system learning of a lead
ALE, consumers will have already received information about the
situation, potential adverse health effects, and actions they should
take. The EPA disagrees with increasing the time frame to 90 days as
water systems have demonstrated for decades their ability to conduct
the public education requirements within 60 days, and the rule already
allows water systems to apply to States for an extension if they are
unable to meet this time frame. The extension would only apply to the
activities in Sec. 141.85(b)(2)(ii) through (vi) for CWSs (or Sec.
141.85(b)(4)(i) and (ii) for NTNCWSs) and would not apply to delivery
of public education materials directly to consumers under Sec.
141.85(b)(2)(i) because, as demonstrated by the many years this
requirement has been in place, it is feasible for systems to distribute
public education materials to consumers within 60 days. The EPA
disagrees with requiring different time frames for conducting the
public education
[[Page 86529]]
requirements based on system size as the rule already includes fewer
public education requirements for systems exceeding the lead action
level that serve 3,300 or fewer persons (see Sec. 141.85(b)(9) of the
LCRI).
The EPA received many comments on the content of public education
materials, including both public education materials after a lead ALE
as well as other public education materials that require some of the
same content. Some commenters expressed concerns about water systems
including incorrect or misleading information in public education
materials about the safety of their drinking water. The EPA notes that
the rule specifies that if water systems include additional information
in public education materials beyond what the EPA has required, this
additional information must be consistent with the required
information. Any changes made to required information must be approved
by the State as more protective of human health. In addition, water
systems are required, and have been required since 2007, to provide
States with a copy of all public education materials required under
Sec. 141.85 prior to delivery, in accordance with Sec. 141.85(a)(1).
This means that States should be aware of any incorrect or misleading
statements that systems include in public education materials and have
a chance to intervene to ensure the information is corrected prior to
delivery to consumers. Additionally, the State may require the system
to submit for review and approval the content of the materials prior to
delivery. This is specified under Sec. 141.85(a)(1) of the rule;
however, there is not a corresponding reporting requirement in Sec.
141.90(f), which may lead systems and States to overlook this
requirement. To ensure systems and States are aware of this existing
requirement and thereby encourage stronger rule implementation, in the
final LCRI the EPA has added a reporting requirement to Sec. 141.90(f)
that reiterates this same requirement for systems to submit copies of
public education materials to the State prior to delivery. This State
oversight should be adequate to help ensure that public education
materials do not include inaccurate information about lead in drinking
water and thereby provide for greater public health protection. The EPA
also believes that the proposed revisions made to the lead health
effects language that the EPA is finalizing, including requiring an
explicit statement that there is no safe level of lead in drinking
water, will help ensure that consumers have a more accurate
understanding of the risks of lead in their drinking water.
Some commenters recommended adding language to public education
materials about the risk of lead exposure even when tap results at a
given point in time do not detect lead. The EPA also heard these
concerns from some NDWAC members in the NDWAC Public Meeting on the
final LCRI (NDWAC, 2024). In response to commenters' concerns, the EPA
has updated the content requirements for public education materials in
Sec. 141.85(a)(1)(iii)(B) to require water systems to explain that
lead levels may vary and therefore lead exposure is possible even when
tap sampling results do not detect lead at one point in time, in
addition to the requirements to provide information on the sources of
lead in drinking water. This information would apply to any public
education materials that are required to meet the content requirements
of Sec. 141.85(a)(1)(iii)(B), which include the consumer notice of
lead tap sampling results, public education distributed after a
systemwide lead action level exceedance, and public education
distributed by systems that do not meet the mandatory LSLR rate. The
EPA is also requiring the CCR to include similar information in its
informational statement about lead. The EPA believes that this added
information will also help to ensure that consumers have a more
accurate understanding of the risks of lead in their drinking water so
they can decide whether to take additional protective measures and
which ones are appropriate for their situation (e.g., remove lead
plumbing, remove LSL, use a filter certified to reduce lead).
The proposed LCRI would have required CWSs to deliver public
education and DSSA information to local and State health agencies by
mail or another method approved by the State, similar to the 2021 LCRR
(see Sec. 141.85(i)). Some commenters recommended that water systems
be allowed to deliver these materials by email, noting that email would
make it easier to reach the appropriate person and attach data. The EPA
agrees with commenters that email delivery of this information would
facilitate data sharing and therefore the agency has added email as an
allowed delivery method in the final rule.
g. Translation of Public Education Materials
The EPA proposed to require all public education materials under
Sec. 141.85 to include (1) information in the appropriate language(s)
regarding the importance of the materials, and (2) contact information
for persons served by the water system to obtain a translated copy of
the materials, request assistance in the appropriate language, or the
materials must be translated into the appropriate language.
Many commenters supported the proposed translation requirements to
help overcome language barriers and make public education materials
about lead in drinking water more accessible and understandable to a
wider community, noting that they would support greater environmental
justice. Some commenters requested clarification on the meaning of a
``large proportion'' of consumers with limited English proficiency. The
rule specifies that this proportion is determined by the State;
moreover, this phrase has been a part of the LCR since 2007 (72 FR
57782, USEPA, 2007a) and the same phrase has been used in the CCR Rule
(Sec. 141.153(h)) and PN Rule (Sec. 141.205(c)(2)) translation
requirements after which this provision was originally modeled. Some
commenters requested clarification on what constitutes ``limited
English proficiency.'' As stated in the proposed LCRI preamble,
individuals with limited English proficiency include those who do not
speak English as their primary language and who have a limited ability
to read, write, speak, or understand English.
In the proposed LCRI, the EPA requested information and data on
when a system provides translated materials to consumers with limited
English proficiency, what resources are used to translate materials
(e.g., State resources, community organizations), and what barriers
water systems may face in providing accurate translated materials. The
EPA also requested comment on whether the agency should require States,
as a condition of primacy, to provide translation support to water
systems that are unable to do so for public education materials to
consumers with limited English proficiency.
Some commenters supported requiring States to provide translation
assistance to systems, while others were opposed and expressed concerns
about cost and expertise for many States. Some commenters noted States
have had difficulty with acquiring translation services for public
notices and also expressed concern with the accuracy of translation
services that water systems obtain on their own. Some commenters said
it would be infeasible for States to provide translated public
education materials to consumers without additional EPA assistance. The
EPA received many comments requesting
[[Page 86530]]
that the agency provide translation resources and translated templates
to assist water systems and States. The EPA intends to provide
templates of public education materials that provide greater
accessibility to consumers, including in multiple languages to assist
water systems. In response to commenters' concerns about States'
capacity to provide translation support, the EPA is requiring that
States provide technical assistance to systems in communities with a
large proportion of consumers with limited English proficiency, as a
condition of primacy for the LCRI. This is consistent with the EPA's
Final CCR Rule Revisions, which include a similar requirement (89 FR
45980, USEPA, 2024c). The EPA believes that it should be feasible for
States to provide technical assistance to water systems. Depending on
the State's capacity, this could be as simple as providing resources
for water systems to translate their public education materials,
including EPA-provided translations of required content for public
education materials (e.g., health effects language, definitions) and
translated templates of public education materials through a website.
This can also include providing water systems with information on how
consumers can contact the State for translation assistance upon
request.
4. Final Rule Requirements
a. Service Line Related Outreach
i. Required Public Education To Encourage Participation in Full Service
Line Replacement
In the final LCRI, the EPA is requiring, as proposed with minor
revisions, outreach activities to encourage customer participation in
full service line replacement for CWSs that do not meet the mandatory
service line replacement rate calculated across a cumulative period as
required under Sec. 141.84(d)(5). For the final LCRI, the EPA is
revising the proposed requirement to account for the change from a
rolling three year period to a cumulative period (see section IV.B of
this preamble). These water systems must conduct the outreach at least
once in the year following the calendar year for which the system does
not meet their cumulative average replacement rate and annually
thereafter until the water system meets the replacement rate or until
there are no lead, GRR, or unknown service lines remaining in the
inventory, whichever occurs first. The EPA is also revising the
proposed requirement to specify that it only applies to CWSs, whereas
the proposed requirement would have applied to all water systems that
do not meet the service line replacement rate. In the final rule, CWSs
serving more than 3,300 persons must conduct at least one of the
following activities to discuss their service line replacement program
and opportunities for replacement and to distribute public education
materials:
Conduct a public meeting;
Participate in a community event to provide information
about its service line replacement program;
Contact customers by phone call or voice message, text
message, email, or door hanger; or
Use another method approved by the State to discuss the
service line replacement program and opportunities for replacement.
Alternatively, CWSs serving more than 3,300 persons must conduct at
least two of the following activities:
Send certified mail to customers and persons served by
LSLs or GRR service lines to inform them about the water system's
service line replacement program and opportunities for replacement;
Conduct a social media campaign;
Conduct outreach via the media including newspaper,
television, or radio; or
Visit targeted customers (e.g., customers in areas with
lower service line replacement participation rates) to discuss the
service line replacement program and opportunities for replacement.
CWSs serving 3,300 persons or fewer must conduct at least one
activity from either set of options. The final rule excludes NTNCWSs
from this requirement as a NTNCWS would likely own its entire system
and therefore would not likely have consumers to engage with. In the
proposed rule, one of the activities included conducting a townhall
meeting; the final rule revised this to be a public meeting more
generally since a townhall meeting may imply government involvement.
The option to send certified mail to customers and persons served by
lead or GRR service lines to inform them about the water system's
service line replacement program and opportunities for replacement is
separate from, and cannot be substituted by, the notification of
service line material required under Sec. 141.85(e).
ii. Notification of Service Line Material
In the LCRI, the EPA is finalizing the clarifications to the
requirement for water systems with lead, GRR, or unknown service lines
in their inventory to notify customers and consumers if they are served
by one of these service lines, as proposed. The EPA is requiring the
same notification content requirements for lead and GRR service lines
since both increase the risk of exposure to lead. In addition, all
notices (lead, GRR, and unknown service lines) are required to include
information about accessing the service line replacement plan and steps
consumers can take to reduce exposure to lead in drinking water. These
notices must meet the requirements of Sec. 141.85(a)(1)(iv) which
contains finalized revisions to update content requirements, including
information about using a filter certified to reduce lead. The public
education materials for lead and GRR service lines must include
instructions for consumers to notify the water system if they think the
material categorization is incorrect (e.g., if the service line is
categorized as lead in the inventory but is actually non-lead). Water
systems must follow up with consumers that notify the water system that
they think the material is incorrect, verify the correct service line
material, and update the inventory as appropriate (see section IV.D of
this preamble). In addition, the notice must include a statement that
water systems must offer to sample the tap water of any consumer served
by a lead, GRR, or unknown service line who requests it in accordance
with Sec. 141.85(c).
iii. Notification of a Service Line Disturbance
Notification of service line disturbance is required following
actions taken by a water system that cause a disturbance (Sec.
141.85(g) of the proposed LCRI but updated to Sec. 141.85(f) in the
final LCRI). This includes actions that result in a shut off or bypass
of water to an individual service line or a group of service lines
(e.g., operating a valve on a service line or meter setter, or
reconnecting a service line to the main). This can also include other
actions that cause a disturbance to a service line or group of service
lines, such as undergoing physical action or vibration, that could
result in pipe scale dislodging and associated release of particulate
lead (e.g., disturbances following inventorying efforts). For these
disturbances, water systems are required to provide persons at the
service connection with public education materials and instructions for
a flushing procedure to remove particulate lead.
For some disturbances, water systems are required to provide
persons at the service connection with public education materials and
pitcher filters or point-of-use devices certified by an ANSI accredited
certifier to reduce lead, along with filter instructions and filter
[[Page 86531]]
replacement cartridges. This is the case when the disturbance results
from the replacement of an inline water meter, water meter setter, or
connector. Under the final rule, the EPA has added a requirement that
water systems must also provide filters when the disturbance results
from the replacement of a water main whereby the service line pipe is
physically cut (Sec. 141.85(f)(2)). The EPA is requiring distribution
of filters in these situations because disturbances that involve
physically cutting a service line that is known to or may potentially
contain lead are particularly at risk of causing elevated lead levels
in the drinking water (Lewis et al., 2017; Camara et al., 2013; Del
Toral et al., 2013). In the final rule, the EPA is also requiring that
water systems provide instructions for a flushing procedure to remove
particulate lead for these disturbances so that persons at the service
connection are provided this additional information for reducing lead
in drinking water.
In the final rule, the public education materials provided after a
disturbance must meet the content requirements in Sec.
141.85(a)(1)(ii) through (iv), which describe health effects of lead
and steps consumers can take to reduce their exposure, as proposed. The
EPA is also requiring the public education materials to include the
information on lead, GRR, and unknown service lines specified in Sec.
141.85(a)(1)(vi) so that customers and persons at the service
connection receive information about opportunities for replacing lead
and GRR service lines and identifying the material of unknown service
lines.
Water systems that cause a disturbance to a lead, GRR, or unknown
service line are required to notify persons both at the service
connection and customers. Water systems must notify persons at the
service connection of the disturbance before the service line is
returned to service or within 24 hours of the disturbance if service
was not shut off or bypassed. In the final rule, the EPA is providing
water systems up to 30 days after the disturbance to notify customers
who do not reside at the service connection (e.g., a customer who is a
property owner and renting their property) since they would not be
consuming the water and therefore would not be exposed to the
potentially elevated lead levels caused by the disturbance but should
still be notified since the disturbance affects their property.
b. Individual Notification of Tap Sampling Results
i. Lead
The EPA is finalizing the requirement for water systems to provide
notification to consumers of their individual lead tap sampling results
within three business days of learning of the results. The EPA revised
the proposed requirement from three calendar days to three business
days for the final rule. This includes notification of results from
compliance tap sampling as well as consumer-requested sampling in
accordance with Sec. 141.85(d) and (c), respectively. The same time
frame applies to all lead levels, regardless of whether an individual
sample's lead levels exceed 0.010 mg/L (the lead action level). Water
systems can deliver the notice either electronically (e.g., email or
text message), by phone call or voice message, hand delivery, by mail
(postmarked within three business days of the system learning of the
results), or by another method approved by the State. Water systems
that choose to deliver the notice orally by phone would be required to
follow up with a written notice hand delivered or postmarked within 30
days of the water system learning of the results. In addition to
including the proposed content requirements, the final rule also
requires the notice of lead tap sampling results to include information
about possible sources of lead in drinking water that meets the
requirements of Sec. 141.85(a)(1)(iii)(B), which includes explaining
that lead exposure from drinking water is still possible even if tap
sampling results do not detect lead at one point in time. This is in
addition to the other information that the EPA is requiring in the
final LCRI, including the mandatory lead health effects language
provided in Sec. 141.85(a)(1)(ii) and steps consumers can take to
reduce their risk of exposure provided in Sec. 141.85(a)(1)(iv), among
other information.
ii. Copper
Water systems must also provide notification to consumers of their
individual copper tap sampling results within three business days of
learning of the results. The EPA is requiring the same delivery methods
for notification of copper tap sampling results as for lead. In cases
where copper samples are collected at the same time as lead, systems
can combine the lead and copper results and required information into a
single notice. Similar to the notice of lead tap sampling results, the
notice of copper tap sampling results must include the results of
copper tap water monitoring for the tap that was tested, an explanation
of the health effects of copper as provided in appendix B to subpart Q
of part 141 (Standard Health Effects Language for Public Notification),
a list of steps consumers can take to reduce exposure to copper in
drinking water, and contact information for the water system. The
notice must also provide the MCLG and the action level for copper, both
of which are 1.3 mg/L, and the definitions for these two terms from
Sec. 141.153(c).
c. Other Public Education Materials
i. Supplemental Monitoring and Notification
The EPA is finalizing the requirements, as proposed, for water
systems to offer to sample the tap for lead for any consumer served by
a lead, GRR, or unknown service line that requests it. Systems must
deliver results of this on-request sampling in the same time frame of
three business days required for results of compliance tap sampling.
The EPA revised the proposed requirement from three calendar days to
three business days. The EPA is finalizing flexibility for water
systems to determine the sampling protocol for this supplemental
monitoring, as proposed in the LCRI. For sites with a lead, GRR, or
unknown service line, the sampling must capture the water stagnant in
the service line as well as any premise plumbing (e.g., first- and
fifth-liter samples, sequential sampling, flush samples); however, the
water system can determine the particular sampling protocol to capture
water in the service line and premise plumbing.
The EPA is also clarifying in the final rule that when there is a
systemwide lead action level exceedance, water systems must offer to
sample the tap for lead for any consumer that requests it, and not just
customers. As noted above, results of this on-request sampling must be
delivered within three business days.
ii. Public Education After a Lead Action Level Exceedance
Under the final LCRI, CWSs that exceed the lead action level must
deliver public education materials to bill paying customers and every
service connection address served, as proposed. The public education
materials must be written, meaning they can be printed (i.e., delivered
by mail or hand) or electronic (i.e., delivered by email) materials.
However, the public education cannot be oral (i.e., delivered by phone
call or voice message), unless this is done in addition to one of the
other allowed delivery formats. The
[[Page 86532]]
EPA is requiring CWSs to conduct the public education activities under
Sec. 141.85(b)(2) and NTNCWSs to conduct the public education
activities under Sec. 141.85(b)(4) within 60 days of the end of the
tap sampling period in which the exceedance occurred (i.e., June 30 or
December 31 for standard monitoring, or September 30 or the last day of
an alternative four-month tap sampling period approved by the State for
annual and reduced monitoring). The public education activities must
always be conducted within this 60-day time frame, instead of allowing
systems to wait 12 months to conduct public education when there are
consecutive action level exceedances as previously required. If a State
grants an extension for a water system to conduct the public education
activities, the deadline must not extend beyond six months after the
end of the tap sampling period in which the lead action level
exceedance occurred. Extensions can only be granted for the activities
in Sec. 141.85(b)(2)(ii) through (vi) for CWSs and the activities in
Sec. 141.85(b)(4)(i) and (ii) for NTNCWSs. The proposed rule
inadvertently left out this extension provision for NTNCWSs; therefore,
the final rule includes a technical correction to reinstate the
extension provision for NTNCWSs. These requirements in the final LCRI
are the same as proposed, with the technical correction.
In the final LCRI, the EPA also revised the regulatory language in
Sec. 141.85(b)(2)(ii)(A) and (B) to clarify that the purpose of the
requirements for community water systems to deliver public education
materials to local public health agencies and other organizations after
a lead action level exceedance is to reach ``consumers'' (i.e., people
who drink the water) who are most at risk rather than ``customers'' of
the water system who may be paying the bill but not drinking the water
(i.e., a customer who is a property owner and renting their property).
This is a clarifying edit which does not impact the activities that
community water systems must conduct.
The EPA is finalizing the proposed content requirements with some
additional required content in response to comments received on the
proposed LCRI. Public education materials must include information
about lead, GRR, and unknown service lines not only if the system has
LSLs, but also GRR and unknown service lines. In addition to required
LSL information, systems must include information about replacing GRR
service lines and identifying the material of unknowns as well as
information on how to access the system's service line replacement
plan. Where the water system intends for customer payment for a portion
of the replacement where it is required or authorized by State or local
law or a water tariff agreement, the notice must also include
information about financing solutions to assist property owners with
replacement of their portion of a lead or GRR service line. Systems
with known or unknown lead connectors in their inventory must also
include information in the public education materials about accessing
the inventory. The public education materials must include instructions
for consumers to notify the water system if they think the material
classification is incorrect.
All water systems, including NTNCWSs, must include information in
the public education materials about lead in plumbing components and
about how consumers can get their water tested, including information
about the provision of supplemental monitoring and notification in
Sec. 141.85(c). In response to comments received on the proposed LCRI,
the EPA is requiring the public education materials to explain that
lead levels may vary and therefore lead exposure is possible even when
tap sampling results do not detect lead at one point in time (Sec.
141.85(a)(1)(iii)(B)).
The EPA is requiring public education materials to include
additional steps that consumers can take to reduce their exposure to
lead in drinking water, including explaining that using a filter
certified to reduce lead by an ANSI accredited certifier is effective
in reducing lead levels in drinking water. Water systems must emphasize
additional measures to reduce exposure to lead in drinking water for
pregnant people, infants, and young children since they are at higher
risk of adverse health effects from lead exposure. Water systems must
also provide additional information about flushing the pipes, including
noting that consumers served by LSLs and GRR service lines may need to
flush for longer periods. In addition, water systems must include
contact information for the State and/or local health department so
that consumers can contact them for more information about lead. States
may only approve changes to the content requirements of the public
education materials if the State determines the changes are more
protective of human health. This information is required not only in
public education after a lead action level exceedance but any of the
public education requirements that cite the steps for reducing exposure
to lead in drinking water in Sec. 141.85(a)(1)(iv), such as the
consumer notice of lead tap sampling results and the notification of
service line material.
iii. Public Education to Local and State Health Agencies
For the final LCRI, the EPA is allowing CWSs to provide local and
State health agencies with public education and DSSA information via
mail, email, or another method approved by the State (see Sec.
141.85(i)).
d. Requirements for Language Updates and Accessibility
i. Lead Health Effects Language
For the final LCRI, the EPA is requiring the revised lead health
effects language in public education materials, as proposed and
previously described in section IV.J.2.d.i of this preamble.
ii. Translation Requirements
The EPA is requiring in the final rule all public education
materials under Sec. 141.85 to include (1) information in the
appropriate language(s) regarding the importance of the materials, and
(2) information where persons served by the water system may obtain a
translated copy of the materials, or request assistance in the
appropriate language(s), or the materials must be translated into the
appropriate language(s). For the final rule, the EPA is also adding a
requirement that States, as a condition of primacy for the LCRI,
provide technical assistance to systems in meeting the requirement to
provide translation assistance in communities with a large proportion
of consumers with limited English proficiency. This can include
providing water systems with contact information for inclusion in the
system's public education materials where consumers can contact the
State for translation assistance upon request. Other examples of
technical assistance include providing resources for water systems to
translate their public education materials, including EPA-provided
translations of required content for public education materials (e.g.,
health effects language, definitions) and translated templates through
a website.
K. Additional Requirements for Systems With Multiple Lead Action Level
Exceedances
1. Rationale and Proposed LCRI Revisions
While water systems must take actions to reduce lead levels in
response to a systemwide lead ALE, such as installing or re-optimizing
OCCT, these actions can take several years to be fully implemented.
Consequently, the LCRI proposed requiring water systems to
[[Page 86533]]
conduct public education activities and make filters that are certified
to reduce lead available to consumers in the event of multiple lead
action level exceedances. These actions are intended to provide greater
public health protection to drinking water consumers by educating
consumers about filters and increasing the likelihood of their use. The
EPA proposed requiring water systems to take additional actions in
response to three lead ALEs within a rolling five-year period. Multiple
ALEs are indicative of recurring high lead levels that warrant
additional measures while OCCT and mandatory service line replacement
are being implemented, or that longer-term measures are not effective
at reducing lead levels below the action level (e.g., a system that has
re-optimized once and is meeting optimal water quality parameters). The
EPA proposed the five-year period because it generally takes systems
that long to conduct an OCCT study and to install treatment.
Three lead ALEs (in five years) is also used to identify water
systems with a pattern of higher lead levels over time. Many water
systems have one or two ALEs and do not have another, so three action
level exceedances are a better indicator of longer-term problems. See
the final LCRI Economic Analysis (USEPA, 2024a) chapter 3, section
3.3.5, Exhibit 3-31 for additional information on the percent of
systems with two ALEs that go on to experience three ALEs. In addition,
having three or more lead ALEs within five years is a sign that
consumers are being continually exposed to elevated lead levels.
To prevent known or anticipated adverse health effects to the
extent feasible, the EPA believes that while these water systems are
taking actions to reduce lead in drinking water and continue to
experience higher lead levels, they must provide additional public
education on lead in drinking water and steps consumers can take to
reduce their exposure, including how to properly use a filter, and make
filters available to their consumers. Public education is effective for
reducing lead exposures in drinking water, by influencing individuals'
knowledge, beliefs, and behaviors, for example by making them aware of
lead in their drinking water and actions they can take to reduce their
exposure (see section IV.J.1 of this preamble). In addition, recent
filter effectiveness studies conducted by the EPA have shown that
properly installed and operated filters certified by an ANSI accredited
certifier to reduce lead are effective at reducing lead in drinking
water (Bosscher et al., 2019; Tang et al., 2023; Tully et al., 2023).
Access is one factor that influences uptake of public health
interventions. When filters or point-of-use devices and instructions on
their proper use are made more accessible, consumers are more likely to
use them (Reese et al., 2023; Mulhern et al., 2022). The EPA is
requiring the public education materials to discuss the use of filters
certified to reduce lead as one of the steps people can take to reduce
their exposure to lead. Making filters available to consumers when a
water system has multiple action level exceedances enhances existing
public education messaging and reduces lead exposure if the filters are
used properly. The EPA also finds that it is affordable and technically
possible for water systems to make filters available for their
consumers, as demonstrated by numerous systems that have provided
filters to some or all consumers or as part of service line replacement
programs, many of these at no direct cost to the consumer. Examples of
communities that have implemented filter programs include Newark, New
Jersey (City of Newark, n.d.); Pittsburgh, Pennsylvania (City of
Pittsburgh, n.d.); Kalamazoo, Michigan (City of Kalamazoo, 2023);
Benton Harbor, Michigan (Berrien County Health Department, 2023);
Elgin, Illinois (City of Elgin, 2023); and Denver, Colorado (City of
Denver, 2023). Furthermore, the EPA has made adjustments in the final
LCRI to require water systems to start developing a plan for making
filters available earlier so that the provision of filters to consumers
is not unnecessarily delayed (see section IV.K of this preamble).
Under the proposed LCRI, if during a rolling five-year period there
are three systemwide lead action level exceedances, a water system
would be required to make available to all consumers pitcher filters or
point-of-use devices that are certified by an ANSI accredited certifier
to reduce lead, six months of replacement cartridges, and instructions
for use within 60 days after the end of the tap sampling period in
which it met the criteria for multiple lead action level exceedances.
Replacement cartridges would be made available until there are no
longer three action level exceedances in a rolling five-year period. No
later than 30 days after the system has third ALE during a rolling
five-year period, the water system would be required to provide a
filter distribution plan to the State, and the State would be required
to review and approve the plan within 15 days. If there is a subsequent
ALE, the system would not be required to submit another filter plan
unless the State requires it or if there are any changes to the filter
plan. The filter plan would include a description of which methods the
system will use to make filters and cartridges available and a
description of how the system will address any barriers to consumers
obtaining filters. In addition, the water system would be required to
carry out at least one community outreach activity. This activity must
discuss the multiple lead ALEs, the steps the system is taking to
reduce lead in drinking water, and measures consumers can take to
reduce their exposure to lead. The EPA proposed the following community
outreach activities for systems with multiple ALEs: (1) conducting a
townhall meeting; (2) participating in a community event where the
system can make information about ongoing lead exceedances available to
the public; (3) contacting customers by phone call or voice message,
text message, email, or door hanger; (4) conducting a social media
campaign; and/or (5) using another method approved by the State. The
water system would be required to conduct at least one of the
aforementioned activities once every six months. The EPA included these
outreach requirements to increase transparency and protect public
health by providing consumers information on how to minimize their risk
of lead exposure. Water systems would be able to discontinue these
measures when they no longer have met the criteria of three ALEs within
a rolling five-year period.
2. Summary of Comments and the EPA's Response
The EPA received comments both in support and opposed to the
proposed requirement for water systems to conduct additional measures
(i.e., outreach activities and making filters available) in response to
multiple ALEs. Some thought the proposed requirement should provide
greater public health protection by requiring delivery of filters to
all consumers, including at no charge. Others recommended that the EPA
require water systems to make water filters available to only those
customers served by lead, GRR, and unknown service lines, due to the
cost of the filters as well as logistical challenges associated with
making filters available to all consumers, especially for large water
systems.
The EPA disagrees with the recommendation to limit the requirement
to make point-of-use devices and pitcher filters only available to
households or consumers that are currently being served by a lead, GRR,
[[Page 86534]]
or unknown service line. The EPA recognizes that LSLs are a significant
source of lead in drinking water; however, lead can also enter drinking
water from other sources, such as premise plumbing, affecting persons
with or without LSLs. Therefore, availability of point-of-use devices
and pitcher filters to all consumers ensures greater protection of the
public from lead exposure in communities with recurring high lead
levels.
The EPA recognizes the possible economic and logistical challenges
that some systems may face in making available point-of-use devices or
pitcher filters to all consumers. The EPA disagrees with comments that
assumed or recommended water systems provide filters directly to all
consumers. The proposed LCRI regulatory text at Sec. 141.85(j)
regarding the requirement for systems to make available to all
consumers pitcher filters or point-of-use devices does not mean that
systems are required to deliver filters, although that would be one
option for a system to meet the requirement to make filters available.
The rule allows systems (with the approval of the State) to determine
the most appropriate way to meet the requirements, without prescribing
specifically how systems must meet that requirement. For example, a
system may decide to use more than one way to make filters available,
such as operating a distribution center combined with providing at-home
delivery on request, to accommodate consumers with different
accessibility needs based on transportation and other considerations.
The EPA requested comment on using the proposed criteria of three
ALEs in a rolling five-year period to identify systems with ``multiple
ALEs.'' Some commenters raised issues with setting the criteria for
``multiple ALEs'' at three ALEs in five years and suggested alternative
criteria. For example, a commenter suggested that the number of
exceedances in the ``multiple ALEs'' criteria should be based on the
number of customers. Another commenter stated that the three ALEs in
five years metric would be ``at odds'' with these same systems' ability
to remove LSLs over the same five-year period because systems would
have to allocate limited resources to simultaneously implement both
requirements. On the other hand, some commenters stated that three ALEs
is ``too lenient'' or that the filter provision should be required
after a single lead ALE, rather than three.
After consideration of these comments, the EPA is finalizing the
criteria for multiple lead ALEs consistent with the proposal;
specifically, a system with at least three lead ALEs in a rolling five-
year period must meet the public education treatment technique
requirements at Sec. 141.85(j). The five-year timeframe was selected
because it typically takes five years to study, select, install, and
operate OCCT. The EPA disagrees with requiring filters be made
available after one ALE as the system will be undertaking multiple
activities following a single ALE including public education described
in section IV.J.4.c of this preamble that will advise consumers to take
actions to reduce their exposure, among other ongoing public education
activities (see section IV.J.4 of this preamble). Following the ALE the
system will be involved in activities to install or re-optimize OCCT,
as appropriate (see section IV.F.3 of this preamble). Three ALEs is a
more accurate indicator of sustained high lead levels that would not be
timely reduced by new or re-optimized CCT and which therefore merits
the rule requirement to make filters available to reduce these
exposures over a sustained period.
Some commenters recommended requiring water systems to submit the
filter plan after the second ALE rather than the third ALE. Similarly,
another commenter recommended requiring water systems to start working
on filter plans earlier than the proposed 30 days after the third ALE
to have more time to provide filters. The EPA agrees with comments that
recommend requiring submission of a filter plan after the second ALE
instead of the third ALE. This provides water systems more time to
prepare to make filters available by requiring water systems to submit
the filter distribution plan to the State within 60 days after the
second ALE in five years rather than within 30 days of the third ALE.
The State will also have 60 days to review and approve the plan, rather
than the proposed 15 days. This provides States with time to engage
with the systems on their filter plans, as appropriate, and coordinate
to address challenges with making filters available to consumers. By
requiring systems to submit the filter plan after the second ALE,
systems will be more likely to successfully implement the plan should
the water system have a third ALE.
Following approval of the filter plan, the water system will have
time to resolve any potential logistical and financial challenges in
advance of when they may need to implement the filter plan should the
water system exceed the lead action level for a third time in a five-
year period. The EPA encourages systems to plan for making filters and
cartridges available at no direct cost to low-income consumers, at a
minimum. In addition, the water system has 60 days from the end of the
tap sampling period when the third ALE occurs to implement the plan and
make filters available to all consumers.
Some commenters raised concerns about the proposed 60-day timeframe
for water systems to make filters available after multiple ALEs.
Specifically, some commenters questioned whether it would be feasible
for water systems to make filters available to all consumers within 60
days. In particular, some commenters mentioned that pitcher filters
would be hard to obtain and provide to consumers within that timeframe.
Another commenter requested that water systems be allowed to request a
time extension to make filters available. In contrast, the EPA also
received comments requesting a shorter timeframe for making filters
available as proposed. A commenter suggested that water systems should
be able to deliver filters in 30 days.
The EPA disagrees that 60 days may not be enough time for water
systems to obtain and make filters available to consumers. The final
LCRI requires filters be made available 60 days after the end of the
tap sampling period when the third ALE occurs (Sec. 141.85(j)(2)).
Since systems will have already prepared the filter plan following the
second ALE, with the 60-day time limit in mind, they will be prepared
to implement it, such as procuring the initial allocation of filters
and handling the logistics of making them available to their consumers
quickly. As a result, 60 days is a feasible amount of time needed to
make filters available to consumers. Also, the EPA disagrees with
shortening the time to make filters available to 30 days because that
may not provide water systems sufficient time to implement their plan.
The EPA requested comment on the market's ability to correct for
potential material shortages and provide enough filters to comply with
the proposed LCRI. For the proposed LCRI, the EPA assumed that the
market would correct for any potential shortages, including for
filters, in the three years before the LCRI compliance date. The EPA
received comments from a filter manufacturer and a filter certification
association supporting the EPA's assumption that the market would
correct for potential shortages, noting that water systems would be
able to purchase many types of filters in large quantities. The EPA
also found additional data on the growing water filtration market that
confirms the EPA's assumption in the proposed rule that the market
would correct on its own to meet the demands expected as a result of
the LCRI requirements (ICF, 2024c).
[[Page 86535]]
Some commenters raised concerns about the supply of filters if many
water systems have to implement these measures at the same time, but
did not provide any information to support the concern. Therefore, for
the final LCRI, the EPA affirms its assumption at proposal that the
market has the ability to correct for potential material shortages and
provide enough filters for systems to with multiple ALEs meet the
requirement to make filters available to all consumers.
Some commenters provided input on the proposed public education
activities for systems with multiple lead ALEs. A commenter suggested
increasing the use of public awareness campaigns. Another commenter
suggested requiring water systems with multiple ALEs to conduct at
least two public education activities rather than only one additional
activity as proposed to be able to reach more people. Another commenter
suggested that the required outreach activity in the rule should be
based on system size; larger water systems should be required to
conduct more frequent and more extensive outreach than small systems
(e.g., media campaigns) since they serve a larger population.
The EPA recognizes the importance of public education, which is why
the LCRI requires systems with multiple ALEs to conduct a community
outreach activity in Sec. 141.85(j)(4)(i) through (v) in addition to
the public education activities that are required in the event of each
single lead ALE in Sec. 141.85(b). The EPA expects this additional
community outreach activity will better protect public health than the
public education required by a single ALE alone by prompting consumers
to take voluntary actions to reduce their exposure to lead during
periods of recurrent action level exceedances by providing information
to consumers about the multiple ALEs, steps the water system is taking
to reduce lead, how consumers can minimize their lead risks, and how to
obtain a filter certified to reduce lead. As provided in the final LCRI
at Sec. 141.85(j)(4), the community outreach activity must: (1)
discuss the multiple ALEs that have occurred; (2) lay out the steps the
water system is taking to reduce lead in drinking water; (3) inform
consumers of measures they can take to reduce their risk; and (4)
provide information on how to obtain a filter. The EPA disagrees with
requiring two additional outreach activities, instead of one additional
activity every six months, for water systems with multiple ALEs because
these water systems are already required to conduct three other
outreach activities and other public education tasks following every
lead ALE in accordance with Sec. 141.85(b)(2). The EPA believes the
requirement for at least one additional outreach activity every six
months and making filters available in accordance with Sec. 141.85(j),
along with the other public education requirements under Sec.
141.85(b)(2), will ensure consumers have access to information and
resources to reduce their risk of lead exposure while water systems are
working to address the underlying problem through longer-term efforts
like OCCT and LSLR. However, the EPA notes that these requirements do
not prohibit water systems from implementing additional and other types
of outreach activities from the list in Sec. 141.85(j)(4). Systems may
do more outreach than required to best meet the needs of their
community. In addition, the EPA disagrees with specifying the type and
frequency of the outreach activity based on system size because the
agency does not want to limit water system's ability to choose the most
effective activity, as the water system is in the best position to
determine how to reach all their consumers, based on the community they
serve. Therefore, the final LCRI provides water systems the flexibility
to consider community-specific information, such as water system size,
to inform which one of the five outreach options for outreach
activities offered in the LCRI the water system chooses to conduct. As
noted above, the agency believes requiring at least one outreach
activity every six months is sufficient and the water system may
conduct additional activities as needed.
The EPA requested comment on whether to allow systems with multiple
lead action level exceedances to consult with the State on alternative
requirements and for States to determine the appropriate action. Most
commentors supported authorizing the State to determine appropriate
actions as alternatives to the LCRI requirements. The main
justification provided by commenter is that States have a better
understanding of the unique situations of water systems and determine
more appropriate actions tailored to the water system.
The EPA does not agree with these comments. The EPA determined that
when any systems has multiple ALEs, additional public education is
needed and making filters available to consumers will prevent adverse
public health impacts as a result of the sustained ALEs. Systems are
free to implement additional measures appropriate for their community.
As there is no safe level of lead exposure from drinking water, a
sustained ALES is indicative of the need for these specific additional
actions to help expeditiously reduce exposure to lead in drinking water
while the system works to comply with the OCCT requirements triggered
by the ALE, or if longer-term measures to control corrosion and remove
service lines are not effective at reducing systemwide lead levels to
below the action level. Nevertheless, the EPA agrees that some level of
State involvement is important to help ensure the water system has an
appropriate plan in place and therefore, is requiring the State to
approve the system's filter plan. In the final rule, the requirement of
state approval of the filter plan will give the State an opportunity to
work with the water system to develop a plan to make filters available
for all consumers.
The EPA requested comment on whether to include a provision where
the State has discretion to allow systems to discontinue actions to
address a sustained ALE sooner than otherwise required if the system
has taken tangible actions to reduce lead levels in response to
multiple ALEs. In the proposed LCRI preamble, the EPA gave the example
of a system that has taken actions ``e.g., installs OCCT or re-
optimized CCT, completed mandatory service line replacement and is at
or below the lead action level for two consecutive monitoring
periods.'' Commenters generally supported the approach to provide the
State with that discretion; one commenter disagreed with it. Another
commenter recommended changing the LCRI to allow water systems to
discontinue the actions.
The EPA agrees with commenters that States should be able to allow
water systems with multiple ALEs to discontinue the required actions if
the water system is at or below the lead action level for two
consecutive tap monitoring periods and if the water system has taken
actions to reduce lead levels. The EPA is including this discretionary
authority in the final LCRI because the additional actions taken to
reduce lead levels, such as re-optimized OCCT or completed LSLR
program, and lack of ALEs are indications that lead corrosion is being
controlled. Therefore, the final rule adds a provision to give States
the discretion to allow a water system to discontinue the required
actions under Sec. 141.85(j) taken after multiple ALEs earlier if: (1)
the system has taken actions to reduce lead levels, such as re-
optimized OCCT or completed LSLR; and (2) the system is at or below the
lead action level for two consecutive tap monitoring periods.
[[Page 86536]]
3. Final Rule Requirements
For the LCRI, the EPA is finalizing requirements for water systems
related to multiple lead action level exceedances at Sec. 141.85(j).
Water systems are required to take additional actions if the system
exceeds the lead action level three times during a rolling five-year
period. The first rolling five-year period ends five years after the
compliance date specified in Sec. 141.80(a)(3) followed by assessments
every six months thereafter. No later than 60 days after the tap
sampling period in which a water system meets the criteria described
above, a water system must make available to all consumers pitcher
filters or point-of-use devices certified by an ANSI accredited
certifier to reduce lead, six months of replacement cartridges, and
instructions for use. A water system must continue to make replacement
cartridges available until the system meets the requirements to
discontinue actions as described below.
To provide additional time for systems to prepare for filter
availability, the final LCRI requires water systems to submit a filter
plan to the State no later than 60 days after the system exceeds the
lead action level for the second time in a rolling five-year period
(Sec. 141.85(j)(3)). This plan would include: (1) a description of the
methods that would be used to make filters and filter cartridges
available to consumers and (2) a description of how the system will
address any barriers in making these filters available. The State must
review and approve the system's filter plan within 60 days. This
provides time for the State to engage with the water system on the
filter plan, as needed, and time for the system to make any necessary
updates before the need to implement the plan.
In addition to providing filters, following the third action level
exceedance in a five-year rolling period, the final LCRI requires water
system to conduct at least one community outreach activity in addition
to the required outreach specified in the public education section (see
Sec. 141.85(b)(2)) for systems that exceed the lead action level. The
EPA is clarifying for the final LCRI that water systems must conduct at
least one of the activities within six months of the start of the tap
monitoring period after the most recent lead ALE. In the proposed rule,
one of the activities included conducting a townhall meeting; the final
rule revised this to be a public meeting more generally since a
townhall meeting may imply government involvement.
Under the final LCRI, water systems may discontinue making filters
or point-of-use devices available and conducting community outreach
activities when there are no longer three ALEs in a five-year period
(Sec. 141.85(j)(6)). The final LCRI provides States discretion to
allow a water system to discontinue these additional requirements
earlier if the system is at or below the action level for two
consecutive tap monitoring periods and the water system has taken
actions to reduce lead levels (e.g., re-optimized OCCT, completed LSLR)
(Sec. 141.85(j)(6)).
L. Lead Sampling at Schools and Child Care Facilities
1. Rationale and Proposed LCRI Revisions
For LCRI, the EPA proposed to retain many of the 2021 LCRR
requirements in Sec. 141.92 for CWSs to conduct public education and
sample for lead in the schools and licensed child care facilities they
serve. Children are especially vulnerable to lead exposure and spend a
significant amount of time in these facilities. While the EPA is aware
that some States have requirements for lead sampling in schools and
child care facilities, including several States that have passed new
laws since the LCRR was promulgated, the EPA is also aware that some
schools or child care facilities have not been or are not being tested
under existing State or local requirements or through other voluntary
programs (USGAO, 2018; USEPA, 2023a, chapter 3, section 3.3.10).
Accordingly, many schools or child care facilities may not have
experience with lead in drinking water testing. The EPA promulgated
these requirements in the 2021 LCRR as part of the public education
treatment technique in order to educate schools and licensed child care
facilities about the risk from lead in premise plumbing and the
importance of sampling for lead in drinking water, to provide these
entities with some experience testing for lead in drinking water, and
to help inform their decisions to mitigate lead risks, including by
establishing their own sampling programs (86 FR 4232, USEPA, 2021a;
USEPA, 2020e). This includes providing schools and child care
facilities with the EPA's ``3Ts for Reducing Lead in Drinking Water in
Schools and Child Care Facilities--A Training, Testing and Taking
Action Approach (3Ts),'' which was developed to assist schools, child
care facilities, and States with addressing lead exposure (USEPA,
2018).
While larger buildings such as schools are not likely to be served
by LSLs, premise plumbing may contain lead. Additionally, large
buildings, such as schools, can have a higher potential for elevated
lead levels. This is because, even when large buildings are served by a
water system with well-operated OCCT, they may have lead in drinking
water due to lead in premise plumbing, larger and more complex plumbing
configurations, and inconsistent water use patterns (e.g., summer,
holiday, or other breaks) that can result in longer stagnation times
(88 FR 84956, USEPA, 2023a; Barn et al., 2014; Deshommes et al., 2016;
Proctor et al., 2020). As described in the proposed LCRI preamble, due
to these factors, a water system's 90th percentile lead level is not
necessarily reflective of lead levels in schools, and water system
adjustments to OCCT will likely not address elevated lead levels in
schools. Therefore, setting additional treatment technique requirements
for corrosion control would not be effective (88 FR 84957, USEPA,
2023a). Therefore, the EPA has determined that public education and
sampling at schools and child care facilities is an element of the
treatment technique rule for public education and not CCT. Accordingly,
the EPA determined the public education treatment technique is feasible
for the reasons cited in section IV.J.1 of this preamble, including for
CWSs to conduct public education and sampling at these facilities to
contribute to increased awareness of lead in drinking water in these
facilities (88 FR 84957, USEPA, 2023a). Also see section IV.L.2 of this
preamble for a discussion of the EPA's authority to require CWSs to
conduct these activities.
For LCRI, the EPA proposed to retain the requirements from the 2021
LCRR for CWSs to conduct public education and sampling in the schools
and licensed child care facilities that they serve. The EPA proposed
minor changes to clarify the intent of the provisions and proposed two
new waiver provisions in Sec. 141.92(h) to increase the flexibility of
States to waive sampling requirements for CWSs where they would be
duplicative of alternative sampling programs that would meet the
requirements. The EPA also proposed to reduce the time frame from
annually to 30 days for when CWSs must submit sampling results to the
State and State and local health agencies.
In developing public education and sampling requirements for
schools and child care facilities under the 2021 LCRR and LCRI, the EPA
is authorized under SDWA to establish NPDWRs that are legally
enforceable standards for PWSs as defined in SDWA section 1401(4) and
Sec. 141.2. The EPA does not have the authority under SDWA section
[[Page 86537]]
1412 to require schools and child care facilities that are not
regulated as PWSs to act under an NPDWR. The EPA did not propose public
education and sampling requirements for schools and child care
facilities that are regulated as PWSs because these facilities must
comply with NPDWRs, including the LCRI, unlike schools and child care
facilities that are not PWSs. This includes requirements to monitor for
lead and copper in drinking water (Sec. 141.86), conduct public
education (Sec. 141.85), conduct mandatory LSLR (Sec. 141.84),
optimize or re-optimize OCCT (Sec. Sec. 141.81 and 141.82) or
implement a small system flexibility as applicable (Sec. 141.93).
Requiring schools and child care facilities that are regulated PWSs to
comply with the requirements of Sec. 141.92 would be duplicative. The
EPA intended for these requirements to only apply to CWSs as part of
the public education treatment technique to educate the schools and
licensed child care facilities they serve on the risks of lead in their
buildings so that schools and child care facilities can take voluntary
actions.
2. Summary of Public Comments and the EPA's Response
a. General Requirements
The EPA received comments stating that the school and child care
sampling requirements should be removed from the final rule because the
EPA does not have the authority under SDWA to require PWSs to sample at
these locations. Conversely, the EPA received comments requesting that
the EPA require water systems to take additional actions in schools and
child care facilities, including installing filters certified to reduce
lead in drinking water and more frequent and comprehensive tap
sampling. These commenters indicated that the proposed requirements are
not effective as a component of the public education treatment
technique because they will not protect children's health. They stated
that the sampling would be only voluntary and limited, and would not
require water systems to take remediation actions or publicly post
results. In turn, they provided corresponding suggestions for new or
more stringent requirements for addressing lead in schools and child
care facilities.
The EPA disagrees with commenters who stated that the EPA does not
have the authority to include requirements for school and child care
lead sampling under SDWA. The EPA notes that it is not accurate for
commenters to frame the EPA's school and child care sampling
requirements under LCRI as regulating those facilities in lieu of water
systems. As stated above, the EPA is authorized under SDWA section 1412
to establish NPDWRs that are legally enforceable standards for PWSs as
defined in SDWA section 1401(4) and Sec. 141.2. Therefore, the EPA has
the authority under SDWA section 1412 to require CWSs, which are a
subset of PWSs, to comply with lead tap water requirements, which
include conducting public education and sampling for lead in schools
and child care facilities as part of the treatment technique for public
education. Further, the EPA's authority to promulgate the requirement
for CWSs to conduct public education and sampling at these facilities
is under the EPA's authority to promulgate a treatment technique rule
to ``prevent known or anticipated adverse effects on the health of
persons to the extent feasible'' (SDWA section 1412(b)(7)(A)). As noted
above, children are especially vulnerable to lead exposure and spend a
large portion of their day in schools and child care facilities. As
part of the feasibility demonstration for public education (see section
IV.J.1 of this preamble) and in accordance with SDWA section
1412(b)(7)(A), the EPA determined it is feasible for CWSs to conduct
public education and sampling at these facilities to contribute to
their increased awareness of lead in drinking water and thus facilitate
actions that the schools and child care facilities, or the families of
children who attend, can take to reduce lead exposures. Therefore, the
EPA is authorized to and made the requisite determination under SDWA
section 1412(b)(7)(A) to promulgate a treatment technique for public
education and to include water system sampling requirements at schools
and child care facilities that are feasible and can reduce lead
exposures. In addition, consistent with every lead and copper NPDWR,
CWSs already routinely conduct public education activities to customers
within their service area and have experience with conducting consumer-
requested sampling (see Sec. 141.85(c), 56 FR 26500-26503, USEPA,
1991). As described in section IV.L.1 of this preamble, the sampling
requirements are part of public education to educate schools and child
care facilities and their users about the risks from lead in premise
plumbing and the importance of sampling for lead in drinking water, to
provide them with some experience testing for lead in drinking water,
and help inform their decisions to mitigate lead risks, as appropriate,
including potentially establishing their own testing program for which
Federal funding is available (see section III.G of this preamble).
The EPA also disagrees with commenters who stated that the EPA
should require water systems to install filters in all schools and
child care facilities either in lieu of or in addition to sampling. As
discussed in section IV.L.1 of this preamble, elevated lead levels in
larger buildings such as schools are generally due to conditions
outside of the water system's control (e.g., complex premise plumbing
arrangements, inconsistent water use patterns), and persist even in
systems with well-operated OCCT. While it is within the control of
water systems to conduct public education activities and sampling,
water systems are typically not in control of premise plumbing in
schools and child care facilities. While water systems could have
access to drinking water outlets in schools and child care facilities
to install and maintain filters (e.g., if a school or child care
facility gives a PWS permission to access the property for this
purpose), the EPA notes that premise plumbing is typically not part of
the PWS distribution system and CWSs typically are therefore not
responsible for taking such actions. Notably, the ``filter-first''
legislation cited by commenters impose requirements on schools and
child care facilities, not on PWSs, to install filters, conduct
sampling, and ensure maintenance (e.g., City of Philadelphia, 2022;
State of Michigan, 2023).
Additionally, requiring water systems to install and maintain
filters in all the schools and child care facilities they serve would
impose a significant financial and technical burden on water systems.
While commenters argue that installing and maintaining filters is more
cost effective than a sampling program, the agency notes that the
commenters assumed a sampling program that included sampling of all
outlets used for human consumption twice a year and replacement of 40
percent of the faucets sampled with lead-free components in the first
year. This assumption is significantly more expansive than the
requirements for CWSs under Sec. 141.92. See section IV.L.2.d of this
preamble for a discussion on the scope and frequency of sampling.
Furthermore, as stated in section IV.L.1 of this preamble, the purpose
of these requirements is to provide public education to schools and
child care facilities in the form of information about the risks of
lead in their facilities, experience with how to sample for lead, and
the 3Ts guidance to inform potential actions (e.g., additional
sampling, remediation,
[[Page 86538]]
installation of filters). Installation and maintenance of filters in
all schools and child care facilities served by a water system is
outside of the intended scope of the requirements and is not necessary
to fulfill the stated purpose of the requirements as a public education
program under the public education treatment technique. Therefore,
schools and child care facilities and not water systems are generally
responsible for addressing premise plumbing and remediation actions
within their buildings, including installing filters and/or bottle
filling stations. For further discussion and additional reasons
supporting the EPA's decision not to require water systems install and
maintain filters in addition to sampling requirements as part of public
education, see discussion of remediation in section e. below.
The EPA also disagrees that the requirements will not be effective
for the purposes of providing public education to schools and child
care facilities because the LCRI does not include a specific frequency
or number of samples (e.g., semi-annually or annually, all taps used
for cooking and drinking), or requires remediation activities, or
specific reporting requirements, as suggested by the commenters. In
promulgating these requirements as part of LCRI, the EPA does not
intend for them to be a replacement for more comprehensive testing in
schools and child care facilities. The EPA anticipates they will be
effective to achieve their intended purposes of providing schools and
child care facilities information about lead risks in their buildings
and experience with testing for lead to help inform decisions for
addressing lead, as stated above. As noted in section V.L.1 of this
preamble, the EPA is aware that many schools and child care facilities
are not knowledgeable about drinking water lead risks and currently do
not receive direct information from an entity such as the water system
or the State about lead in drinking water and approaches to reduce risk
(USGAO, 2018; final LCRI Economic Analysis (USEPA, 2024a), section
3.10.10). Furthermore, as noted above, many schools and child care
facilities do not have direct experience with sampling. The EPA
previously developed guidance for schools and child care facilities
(i.e., the 3Ts) to assist in addressing lead in drinking water. There
have been significant Federal resources provided to States to support
voluntary programs (88 FR 84957, USEPA, 2023a). The EPA anticipates
that the requirements in Sec. 141.92 will build upon these non-
regulatory efforts and increase school and child care facility
awareness of lead in drinking water in their buildings and provide them
with tools to take additional actions. For a discussion on the
limitations of requiring schools and child care facilities to
participate in sampling, see the below section c on public education
and outreach.
b. Applicability
The EPA received public comments about which schools and child care
facilities are covered by the requirements for school and child care
sampling in Sec. 141.92(a). The EPA received comments supporting the
proposed revision for water systems to submit an initial list of the
schools and child care facilities that they serve to the State by the
LCRI compliance date. However, some commenters indicated that States
should not be required to review the list for accuracy, stating that
State drinking water programs do not have enough information or
resources to assess the validity of the list. The EPA also received
public comments requesting clarification as to whether schools and
child care facilities not covered under the requirements in Sec.
141.92(a) must be included on the list. The EPA also received comments
that the EPA should not exclude schools and child care facilities that
were constructed or had full plumbing replacement after January 1, 2014
or the date a State adopted standards that meet the definition of lead
free in accordance with section 1417 of SDWA; these comments noted that
lead-free plumbing materials could still contain lead. The EPA received
comment that schools and child care facilities that are served by a
lead, GRR, or unknown service line should not be excluded. The EPA also
received comments stating the agency should require schools and child
care facilities that are regulated as NTNCWSs to take additional
actions, such as installing filters on all outlets used for cooking and
drinking.
The EPA is finalizing the proposed requirement for water systems to
submit the initial list of schools and child care facilities to the
State by the LCRI compliance date in Sec. 141.92(b)(1). The EPA
proposed this requirement because while the 2021 LCRR required CWSs to
develop a list of schools and child care facilities that they serve by
the rule compliance date and to send an updated list to the State or
certify that the list has not changed at least once every five years,
there was no initial requirement to submit the list to the State by the
compliance date. The submission of the initial list at the time systems
must begin to comply with the requirements of Sec. 141.92 rather than
five years later is a necessary prerequisite for State oversight and to
ensure compliance with regulatory provisions that support health
protection and public education in schools and child care facilities
(88 FR 84956, USEPA, 2023a). The EPA disagrees with commenters who
indicated that the State should not review the list for accuracy. While
States may not be able to confirm every individual entry on the list,
States must ensure that systems have appropriately applied the
definitions of schools and child care facilities in Sec. 141.2 to
identify the schools and child care facilities they serve.
Additionally, the EPA anticipates that State drinking water programs
may be able to access information about schools and licensed child care
facilities from other State or local agencies to assist CWSs in
developing the lists. The EPA anticipates States may be in a good
position to help systems, hence, this requirement facilitates that
support. The expectation for State review is described in Sec.
142.16(d)(12). See section V.C of this preamble for more discussion
about the special primacy requirements associated with Sec. 141.92.
While Sec. 141.92(a) exempts CWSs from conducting public education
and sampling in schools and child care facilities based on the date of
adoption of the revised ``lead-free'' definition in accordance with
section 1417 of SDWA, the EPA agrees that it is ambiguous whether these
excluded facilities must be included on the list of schools and child
care facilities served by the CWS in Sec. 141.92(b). The provision in
Sec. 141.92(a)(1) requires CWSs to conduct public education and lead
monitoring at the schools and licensed child care facilities they serve
with the stated exceptions. The list is intended to assist CWSs in
fulfilling the public education and sampling requirements of Sec.
141.92 and for State oversight. The EPA did not intend for CWSs to
include schools and licensed child care facilities on the list that are
excluded under Sec. 141.92(a). The agency notes the requirements for
conducting public education in schools and child care facilities in
Sec. 141.92(c) and sampling in Sec. 141.92(d) and (e) all reference
the schools and licensed child care facilities identified in the list
in Sec. 141.92(b). To be responsive to these commenters and provide
clarity, the EPA added the phrase ``that meet the criteria of paragraph
(a)'' in Sec. 141.92(b)(1) in the final LCRI.
The EPA disagrees with commenters who said that water systems
should conduct public education and school sampling in facilities
regardless of construction date. The EPA excluded facilities based on
the date of adoption
[[Page 86539]]
of the revised ``lead-free'' definition in accordance with section 1417
of SDWA because these facilities are not likely to contain significant
lead sources (USEPA, 2020c). As noted in section IV.A of this preamble,
plumbing certified as ``lead free'' may still have an allowable level
of lead; however, contribution of lead to drinking water from these
sources is low. Additionally, plumbing replacement with new plumbing
materials is frequently conducted as a remediation approach to address
sources of lead. Water system resources are best used for public
education and sampling in schools and child care facilities with more
significant sources of lead rather than at sites with lead-free
plumbing. If schools or child care facilities that are newly
constructed or have conducted plumbing replacements to remove sources
of lead have potential concerns about lead in drinking water, those
facilities can choose to conduct their own sampling. However, the EPA
is not requiring CWSs to conduct public education and lead sampling at
these schools and child care facilities in the final LCRI.
The EPA agrees that any school or child care facility that has
undergone full plumbing replacement or were constructed after the date
of the ``lead free'' definition was adopted should not be excluded if
they are served by LSLs. LSLs were generally not constructed with an
interior diameter greater than two inches, therefore they are typically
connected to single family homes or buildings with limited number of
units (USEPA, 2022c). While larger schools and child care facilities
are therefore unlikely to be served by an LSL, it would be inconsistent
to exclude schools and child care facilities on the basis of meeting
the ``lead free'' definition unless the service line is also non-lead.
The EPA notes that this is consistent with the criteria for full
plumbing replacement for small systems under Sec. 141.93(c)(2). The
EPA is revising Sec. 141.92(a)(1) in the final LCRI to add a clause
Sec. 141.92(a)(1)(ii), which specifies that the schools and child care
facilities that were constructed or had full plumbing replacement after
the ``lead free'' date are not served by a lead, GRR, or unknown
service line.
The EPA disagrees with commenters who suggest the EPA set different
requirements for schools and child care facilities that are regulated
as NTNCWSs. The EPA notes these commenters did not provide sufficient
information supporting their recommendations about specific
requirements for the agency to be able to evaluate how or why these
water systems should be regulated differently. In the 2021 LCRR and in
the LCRI proposal, the EPA did not propose requiring NTNCWSs that are
also schools and child care facilities to meet the requirements of this
section. The purpose of the requirements in Sec. 141.92 is to further
public education for schools and child care facilities that are served
by CWSs. Schools and child care facilities that are regulated as PWSs
already have knowledge about lead sources in their buildings and
experience with actions like sampling and remediation. The agency notes
that these NTNCWSs are required to take other actions under the LCRI as
applicable that would address lead in these facilities including public
education, service line replacement, and potential installation of
treatment or implementation of a small system flexibility. Therefore,
the requirements of Sec. 141.92 would be duplicative and would not
provide the public education benefits as intended for schools and child
care facilities that are not PWSs. Based on the EPA's intent to
regulate all NTNCWSs the same across the LCRI and the lack of
information submitted, the final rule does not include different
requirements for schools that are NTNCWSs.
c. Outreach to Schools and Licensed Child Care Facilities
Some commenters disagreed with the agency's different proposed
approaches for outreach to elementary schools and child care facilities
versus secondary schools for the first five years after the compliance
date. Some commenters stated that all schools and child care facilities
should be treated the same, with the more direct outreach that is
required for elementary schools and child care facilities to be
extended to secondary schools. Others suggested only requiring CWSs to
offer sampling on request and not require systems to attempt to
schedule sampling for the elementary schools and child care facilities
during the first five years following the LCRI compliance date, stating
that it would simplify the rule. These commenters indicated that all
sampling is ``voluntary'' because elementary schools and child care
facilities can decline sampling or not respond to outreach when
contacted by the water system during the first five years. Some
commenters stated that the EPA should make the sampling mandatory such
that all schools and child care facilities are sampled, stating that a
voluntary program will lead to schools and child care facilities not
being sampled for lead. The EPA also received comments suggesting that
the EPA allow CWSs to only conduct outreach to a school district or
central office that manages child care facilities instead of each
individual site, stating that individual outreach would circumvent
official lines of communication. Still others requested that the agency
specify that CWSs are not required to provide information related to a
lead action level exceedance under the requirement in Sec. 141.92(c)
for CWSs to provide information to schools and licensed child care
facilities consistent with Sec. 141.85(a)(1), stating such information
would not be relevant.
The EPA disagrees with commenters who stated that all schools and
child care facilities should be treated the same under Sec. 141.92.
The EPA notes that the primary difference between the CWS requirements
for elementary schools and child care facilities and secondary schools
is the type of outreach that the system must conduct. The EPA is
maintaining different requirements for CWS outreach to elementary
schools and child care facilities compared to secondary schools during
the first five years following the LCRI compliance date because
children under the age of six are at the greatest risk of adverse
health effects due to lead exposure (CDC, 2022a). Requiring CWSs to
conduct more intensive outreach to elementary schools and child care
facilities relative to secondary schools during the first five years
after the LCRI compliance date prioritizes sampling in the facilities
serving children with the greatest risks associated with lead exposure
and provides this group of schools and child care facilities with the
opportunity to have more direct information. Specifically, the final
LCRI requires water systems to provide more direct outreach to these
schools and child care facilities in the first five years by mandating
the water system make at least two separate outreach attempts to
schedule sampling. Conversely, CWSs are required to provide an annual
notice to secondary schools who must request sampling. This approach
will reduce the overall burden on CWSs to conduct outreach and enable
them to focus on facilities with the subpopulation most susceptible to
experiencing health risks from lead while still maintaining an
opportunity for secondary schools to be sampled if they request it. It
is for these same reasons that the EPA disagrees with commenters who
say that CWSs should only offer sampling on request to the elementary
schools and licensed child care facilities as required for the
secondary schools. While the EPA agrees with commenters who said that
the sampling requirements are voluntary
[[Page 86540]]
on the part of the school or child care facility, the EPA estimated in
the 2021 LCRR that the more extensive outreach for elementary schools
and child care facilities was likely to result in a higher level of
participation relative to sending out letters offering sampling to
schools and child care facilities (86 FR 4232, USEPA, 2021a).
Regardless of the outreach required, all schools and licensed child
care facilities served by the systems have the same opportunity to be
sampled and at the same frequency.
The EPA acknowledges that some schools and child care facilities
will decline or not respond to CWS outreach. However, the EPA disagrees
with commenters that the agency can require that all schools and child
care facilities be sampled. The EPA is authorized under SDWA to
establish NPDWRs that are legally enforceable standards that apply to
PWSs as defined in SDWA section 1401(4) and Sec. 141.2. The EPA does
not have the authority under SDWA section 1412 to require schools and
child care facilities that are not regulated as PWSs to act under an
NPDWR to either allow CWSs to sample within the schools and child care
facilities or to require the facilities themselves to conduct sampling
or undertake other actions. Therefore, the EPA does not have the
authority to require a school or child care facility to allow a CWS to
conduct sampling. Schools and child care facilities may not consent to
tap sampling in their buildings and CWSs do not have control over these
facilities. Additionally, a CWS cannot be in violation of the LCRI
where a school or child care facility declined to participate in lead
sampling because CWSs do not generally have control over these
facilities.
The EPA disagrees with commenters who stated that CWSs should only
be required to conduct outreach to administrative entities, such as
school districts or central offices, instead of individual schools and
child care facilities. As described in section IV.L.1 of this preamble,
these requirements are part of the public education treatment
technique. As such, it is important that each school and licensed child
care facility receive the required information about lead in drinking
water directly from the CWS. While CWSs may wish to and can choose to
involve an administrative entity as part of school and child care
facility outreach, such as copying these entities on the outreach
materials or working with them in some way, the EPA does not agree that
offering this information to individual facilities would overstep the
administrative chain of command. For example, individual schools
typically have their own school-specific administration and facilities
management in addition to school district-wide administration. Schools
and child care facilities can determine for themselves if they must
consult with a central office or other administrative entity before
proceeding with lead sampling. Additionally, neither the EPA nor the
CWS can require an entity such as a school district or central office
to disseminate information to individual schools and child care
facilities. The requirements are intended to provide each school and
child care facility with information about the health risks of lead,
the 3Ts, and information about sampling. The agency notes that there
may be instances where collaborating with school districts or other
entities may help encourage participation and build connections between
schools and child care facilities and water systems. However, the
agency also anticipates that information may not be disseminated to the
individual schools and child care facilities and that coordinating
sampling and answering questions through an intermediary may be
inefficient. While a CWS may choose to include outreach to an
administrative entity (e.g., a school district), the agency is not
allowing CWSs to conduct outreach to these entities in place of
outreach to the schools or child care facilities they serve. The EPA is
concerned that the suggested revision would reduce the effectiveness of
the requirements by reducing the likelihood that individual schools and
child care facilities would receive the information.
The EPA agrees with the comment that the information about health
risks that CWSs are required to be provided schools and child care
facilities under Sec. 141.92(c)(1) should not include information that
refers to a lead action level exceedance, because it is not relevant
for the purposes of Sec. 141.92. Therefore, the EPA is revising Sec.
141.92(c)(1) in the final LCRI to specify CWSs must provide information
about health risks from lead in drinking water consistent with Sec.
141.85(a)(1)(ii) through (iv) and (vi). This omits only the content in
Sec. 141.85(a)(1) that is directly related to a lead action level
exceedance. The agency notes that a school or child care facility would
receive public education that includes all of the information in Sec.
141.85(a)(1) if the system has an action level exceedance in accordance
with Sec. 141.85(b).
d. Sampling
The EPA requested comments about whether the agency should require
CWSs to collect more samples and/or more frequently in schools and
child care facilities. The EPA received many comments stating that the
EPA should require more frequent sampling at more taps. Suggestions
included requiring water systems to sample at all taps used for human
consumption, and increasing the frequency to three years, annually, or
every six months. Some of these commenters stated that limited sampling
is not useful as a public education tool because the samples are not
representative of the entire building and could lead to a false sense
of security if lead is not detected. Conversely, many commenters also
stated that the EPA should not increase the required minimum number of
samples of five samples per school and two per child care facility, or
the sampling frequency, for reasons including that the proposed
provisions are sufficient for public education purposes and increased
burden on water systems may distract from other actions under the LCRI.
Some commenters supported the proposed requirements stating that the
purpose of the requirements is public education. Some commenters also
indicated that schools and child care facilities can conduct additional
sampling, if desired. The EPA also received comments stating that
sampling is not necessarily effective as a public education tool due to
variability in lead levels over time and suggested different
requirements for the EPA to require CWSs to install filters certified
to reduce lead in schools and child care facilities with periodic
sampling to ensure efficacy.
In the final LCRI, the EPA is maintaining the requirements for CWSs
to collect at least five samples per school and two per child care
facility when sampling for lead. The EPA agrees with commenters that
samples at one tap are not representative of all taps within a building
but disagrees that the sampling will lead to a false sense of security.
The purpose of the requirements in Sec. 141.92 are for public
education. Tap sampling is one but not the only way to provide
information to schools and child care facilities about lead in their
buildings. The sampling in Sec. 141.92 serves as an initial sample set
for lead risks within schools and child care facilities and coupled
with the public education materials (e.g., the EPA's 3Ts guidance), are
intended to encourage schools and child care facilities to take
additional actions, including additional comprehensive sampling. As
noted in section V.L.1 of this preamble, the EPA is aware that many
schools or child care facilities
[[Page 86541]]
lack knowledge and experience regarding lead sampling in schools and
child care facilities. CWSs are required to provide schools and child
care facilities with a copy of the EPA's 3Ts guidance prior to
sampling. The EPA's 3Ts guidance clearly encourages schools and child
care facilities to conduct comprehensive sampling as part of routine
building maintenance and provides tools to assist them in these
efforts. Additionally, the EPA is concerned that increasing the number
of required samples and frequency of sampling will place an increased
burden on water systems and divert time and resources from other
requirements under the LCRI, such as LSLR. The EPA received comments
from water systems noting the large number of schools and child care
facilities they serve. For example, one system stated that they serve
approximately 2,000 elementary schools and child care facilities and
would be required to collect up to 1,000 samples per year under Sec.
141.92 if the schools and child care facilities agree to be sampled.
They noted that this sampling effort is a significant increase over
what is required for compliance (e.g., 400 samples per year under
standard monitoring if collecting first- and fifth-liter samples at
each site). The EPA notes that increasing sampling to all taps used for
human consumption and/or increasing the frequency would significantly
increase burden and likely make this provision unworkable. Rather, the
initial sampling offered by the water system coupled with the
information in the 3Ts is sufficient to educate schools and child care
facilities on the steps they can take to reduce lead risks in their
facilities, including steps such as routine sampling and installation
of filters. The EPA does not agree that additional samples are needed
to fulfill the intent of the requirements and therefore is not
increasing the number of samples or sampling frequency in the final
LCRI.
e. Remediation
Some commenters stated that the EPA should set a school-specific
action level that would require either schools and child care
facilities or CWSs to take actions based on the sampling results,
asserting that otherwise, the requirements would not protect children
from lead exposure. Some of these commenters highlighted existing State
requirements that include action levels for schools and require
remediation, citing these as support for the EPA to consider requiring
similar actions. Some commenters stated that the EPA should require
CWSs to install filters certified to reduce lead, such as bottle
filling stations, in all schools and child care facilities, citing
``filter-first'' legislation adopted in States, such as Michigan. These
commenters indicated that lead may be present in drinking water
regardless of tap sample results due to variability, and that filters
are necessary to protect public health. Other commenters agreed with
the EPA's proposed approach for CWSs to provide schools and child care
facilities with the results and remediation recommendations consistent
with the EPA's 3Ts.
The EPA does not agree that Sec. 141.92 should include an action
level for use at schools and child care facilities whereby systems are
required to take remediation actions if the level is exceeded.
Commenters included a range of suggestions for how such a level would
function, including various suggestions for levels (e.g., 0.010 mg/L,
0.005 mg/L, 0.001 mg/L), who would be responsible for the remediation
action (e.g., the school or child care facility, the water systems),
and how it would be applied (e.g., to individual taps, not specified).
See the discussion on the public education purpose of Sec. 141.92 in
section IV.L.2.a of this preamble for why water systems are not
required to conduct remediation activities as part of these
requirements. The examples of State-level requirements that include
``action levels'' to require remediation or filter-first legislation
offered by commenters do not impose requirements on PWSs. These laws
require schools and child care facilities to conduct sampling and/or
take specific actions, such as installing and maintaining filters
certified to reduce lead. These examples of State requirements are
fundamentally different than the proposed requirements for the LCRI
because PWSs are generally not the entities required to carry out these
actions. Further, since the EPA can only regulate PWSs in NPDWRs under
SDWA section 1412, the examples are not consistent with the EPA's
authority. Even if the EPA did set an action level for use by schools
or child care facilities in the LCRI, the EPA would not have the
authority under SDWA section 1412 to require schools and child care
facilities that are not regulated as PWSs to take specific actions at
that level. Therefore, it would be unenforceable and likely cause
confusion. Instead, the EPA is requiring CWSs to provide schools and
child care facilities with the 3Ts, which includes resources to help
schools and child care facilities identify potential lead sources and
reduce their lead levels. The 3Ts recommends that schools and child
care facilities reduce their lead levels to the lowest levels possible,
recognizing there is no safe level of lead in drinking water. While not
required under Sec. 141.92, the EPA encourages schools and child care
facilities to prioritize any remediation efforts based on the highest
results or areas of concern (e.g., older fixtures, classrooms serving
younger children). However, the EPA recognizes the authority of States
to impose requirements on schools and child care facilities and
included a waiver provision in Sec. 141.92(h) for States to waive
requirements for CWSs when schools and/or child care facilities are
otherwise sampled, including through State laws and regulations on
schools and child care facilities. See the section g on waivers below
for discussion on State ability to offer waivers for alternative
requirements.
f. Providing Results
The EPA requested comment on if CWSs should be required to make the
school sampling results publicly available. Some commenters stated that
the EPA should not require CWSs to make results public stating that
schools and child care facilities are responsible for communicating
results. A few commenters indicated that if the public learns the
sampling results from the water system rather than from the school or
child care facility, that it would establish an adversarial
relationship between the water system and the school or child care
facility. Other commenters disagreed and stated that schools and child
care facilities may not share results with staff and users of the
building and their families and that CWSs should be required to
disseminate results to the public. Some commenters agreed with the
EPA's proposed approach for CWSs to include a statement in the CCR
informing the public that sampling is available to schools and child
care facilities and direct them to contact their school or child care
facility for more information, while others disagreed (see section
IV.O.1 of this preamble for more information on this proposed
requirement).
The EPA acknowledges the concerns from commenters about whether
sampled schools and child care facilities will share results and other
information with occupants of the buildings and the public. The EPA did
not propose for CWSs to make results public due to the additional time
and resources such a requirement would impose (88 FR 84959, USEPA,
2023a). Additionally, CWSs would not likely be in the best position to
answer questions from the
[[Page 86542]]
public, including about why a school or child care facility declined or
did not opt to participate in sampling or what the school or child care
facility is doing to address any lead issues in their buildings. The
EPA has heard from some commenters that schools and child care
facilities should communicate with the users of their buildings. While
the EPA does not have the authority under SDWA section 1412 to require
schools and child care facilities that are not PWSs to take this
action, the EPA strongly encourages them to share results and other
relevant information as outlined in the 3Ts guidance. The EPA expects
that many schools and child care facilities have experience with
sharing such information (88 FR 84959, USEPA, 2023a). However, to
increase public transparency, the EPA proposed and is finalizing a
requirement for CWSs to include a statement in the CCR about school and
child care facility lead sampling and direct members of the public to
their local school or child care facility for information. The EPA
received many comments supporting the proposed provision. The EPA
intends for this requirement to help raise awareness among the general
public and to incentivize schools and child care facilities to be
proactive about sharing information. See section IV.O.1 of this
preamble for further discussion of the final CCR requirement.
The EPA is also requiring in the final rule for CWSs to submit any
sampling results to the State and to State and local health agencies
within 30 days, but as soon as practicable, after CWSs receive the
results. The EPA reduced the time from annually under the 2021 LCRR to
within 30 days in the final LCRI such that the State, and State and
local health agencies would know about sampling results in a timely
manner, especially if the school or child care facility does not share
the results. These State and local agencies can use this information to
determine if they should take additional steps such as working with
schools and child care facilities to address lead in their buildings or
establishing requirements such as those as discussed below. The EPA
notes that States may voluntarily choose to disseminate sampling
results to the public (e.g., posting on a website).
g. Waivers
The EPA received many comments detailing existing State
requirements for school and/or child care facility sampling and
requested that the EPA allow States to waive the sampling requirements
for water systems. Many commenters stated that the EPA should provide
flexibility for States to issue waivers for recent or ongoing
alternative programs. Some commenters also requested clarification on
conditions for waivers and when they can be obtained. The EPA requested
comment on two new waiver provisions in the proposed LCRI. The EPA
received comments on whether the EPA should allow States to waive the
sampling requirements of Sec. 141.92 in schools and child care
facilities that had been sampled between January 1, 2021 and the LCRI
compliance date for the first five-year sampling cycle after the
compliance date. Many commenters supported this provision but stated
that the EPA should extend this date to as early as January 1, 2014,
citing the new lead-free standards and stating that sampling conducted
over this time period should ``count'' towards compliance with the
LCRI.
The EPA also requested comment on the agency's proposal to allow
States to waive the sampling requirements of Sec. 141.92 in schools
and child care facilities that install and maintain filters on all
outlets used for cooking and drinking. Additionally, the EPA requested
comment on whether this should only be allowed if the schools and child
care facilities are required by State or local law to install and
maintain them. Some commenters did not support limiting the waivers
based on State or local law stating that the provision should be
flexible to maximize the number of eligible CWSs. Other commenters did
not support the requirement as proposed, with some noting that it would
be difficult for a water system to know which schools and child care
facilities maintain filters. Some States indicated they would not offer
waivers for schools and child care facilities that use filters without
an existing requirement, stating sampling or other maintenance
requirements are necessary to determine efficacy.
The EPA is aware that some States have requirements for lead
sampling in schools and child care facilities (see the final LCRI
Economic Analysis (USEPA, 2024a, chapter 3, section 3.3.10.2.1)). Many
of these regulations require recurring sampling of all outlets used for
cooking and drinking and may require remediation actions (e.g.,
Minnesota Statutes 2023, section 121A.335; New Jersey Administrative
Code [N.J.A.C.], section 6A:26-12.4; 10 New York Codes, Rules and
Regulations [NYCRR] Subpart 67-4; State of Vermont, 2019). The majority
of these existing laws impose requirements directly on schools and
child care facilities, and do not involve PWSs. The EPA included waiver
provisions in the LCRR recognizing that it would be duplicative to
require CWSs to conduct public education and sampling in schools and
child care facilities that are already being sampled under an
alternative program. The EPA also included provisions for waivers to
cover schools and child care facilities sampled under voluntary
programs, including those funded under SDWA section 1464(d). The EPA
also emphasizes that the alternative voluntary programs are not
required to involve the water system or be administered by the State
drinking water program for the State to issue a waiver. For example, in
some States, the Department of Education may administer voluntary
sampling efforts using a grant awarded under SDWA section 1464(d).
The EPA notes several commenters cited various State requirements
and asked the agency if they would qualify for a waiver. Other
commenters requested flexibility to offer waivers even if the sampling
was not conducted in alignment with the requirements of Sec. 141.92.
The EPA has included criteria in Sec. 141.92(h) for States to
determine if the alternative program is at least as stringent as the
sampling requirements in Sec. 141.92. Although commenters' requests
that the agency evaluate whether any programs would qualify for a
waiver under the final LCRI, the final rule leaves this to the State
and includes flexibilities in sample frequency, number, and protocol
provided the overall program is at least as stringent as the
requirements in LCRI. For example, a State requirement for all schools
to be sampled once every six years but all outlets used for cooking and
drinking are sampled and some remediation is required could be eligible
for a waiver. Similarly, a program using a different sampling protocol
may qualify for a waiver if outlets are sampled and remediation is
required. The EPA also clarified that waivers can apply to groups of
schools and licensed child care facilities (e.g., all public elementary
schools), may not exceed the time period covered by the sampling
conducted under an alternative program, and automatically expire at the
end of any 12-month period during which sampling is not conducted. Once
a school or child care facility is no longer covered under a waiver,
the CWS must fulfill the sampling requirements of Sec. 141.92 at that
site. Additionally, States can issue waivers at any time given that
laws or programs may be established after the LCRI compliance date.
As described above, many commenters requested that the EPA require
actions such as requiring all
[[Page 86543]]
schools and child care facilities to participate in sampling (i.e.,
mandatory sampling), require remediation actions, and filter
installation. As discussed in section V.L.1 of this preamble, the EPA
does not have the authority under SDWA to require schools and child
care facilities that are not regulated as PWSs to take these actions.
However, there are many examples of States under State law that have
successfully adopted such requirements (see the final LCRI Economic
Analysis (USEPA, 2024a, chapter 3, section 3.3.10.2). Other Federal
agencies may also issue requirements under their statutory authorities.
In 2019, 14 Federal and non-Federal partners signed a Memorandum of
Understanding (MOU) on Reducing Lead Levels in Schools and Child Care
Facilities to voluntarily support and encourage schools and child care
facilities to conduct sampling, remediation, and communication
activities to reduce lead risks in their facilities (USEPA, 2019b). The
signatories to the MOU agreed to encourage schools and child care
facilities to take actions to address lead in their facilities, which
could include regulations promulgated under their respective legal
authorities or other non-regulatory initiatives like public education
and outreach and technical assistance. Notably, on August 21, 2024, the
Administration for Children and Families within the U.S. Department of
Health and Human Services (HHS) issued a final rule ``Supporting the
Head Start Workforce and Consistent Quality Programming,'' which
requires Head Start programs in facilities where lead may exist to
develop a plan to prevent children from being exposed to lead in water,
including sampling and inspection at least every two years, and
remediation as needed (89 FR 67720, USHHS, 2024). Additionally, on
March 24, 2023, the EPA and the HHS issued a joint letter to governors,
encouraging State and local governments to use Federal funding to
address lead in schools and child care facilities. Specifically, the
letter encourages governments to ``establish or strengthen child care
licensing and monitoring requirements to test for and address lead in
early childhood settings along with funding to support the associated
costs'' and promote the use of the EPA's 3Ts guidance (USEPA and USHHS,
2023). The EPA strongly encourages States to adopt lead testing
requirements for schools and child care facilities, using a variety of
means, including incorporating requirements in State and local
licensing of schools and child care facilities. States are likely
better positioned than the EPA to administer lead testing and
remediation programs because States can establish regulations for
schools and child care facilities that would provide for greater
consistency of education, testing, remediation activities, and public
communication across all schools and child care facilities throughout a
State. Additionally, States can directly apply for and have access to
funding to support schools and child care facilities that may not be
available to CWSs. If a State chooses to adopt requirements for schools
and child care facilities, the State may waive the sampling
requirements of Sec. 141.92 for CWSs in the schools and licensed child
care facilities covered by the alternative requirements. In the final
rule, the EPA has provided a range of criteria for waivers such that
States have the flexibility to establish alternative programs (Sec.
141.92(h)).
The EPA proposed allowing States to waive water systems from the
sampling requirements in Sec. 141.92 for the first five years after
the LCRI compliance date in schools and child care facilities that had
been sampled between January 1, 2021 and the LCRI compliance date. As
proposed in LCRI, CWSs would be required to sample at the request of
any school or child care facility they serve after the first five-year
cycle (i.e., starting five years after the rule compliance date) unless
the State grants a waiver for an ongoing alternative program. The EPA
notes general support for this concept and is finalizing the
requirement. The EPA disagrees with extending the cut-off date to as
early as January 1, 2014. The EPA proposed to limit the cut-off date to
January 1, 2021. While the EPA recognizes that some schools and child
care facilities may have been sampled under a one-time requirement or
voluntary program as early as 2014, extending the cut-off date would
result in an extended time period in which a school or child care
facility would not be eligible for sampling under the LCRI. For
example, if a school that had been last sampled in 2014 was covered by
a waiver for the first five-year sampling period, the school would not
receive an offer for sampling from the CWS until six years after the
LCRI compliance date, or almost 15 years from when they were last
sampled. In contrast, schools and licensed child care facilities have
the opportunity to be sampled at least once every five years by their
CWS under the LCRI. Additionally, the EPA proposed a cutoff date prior
to the LCRI compliance date in response to concerns that many schools
and child care facilities are currently being tested for lead under
existing State or local requirements and through WIIN grant funded
efforts and should be allowed to ``count.'' Specifically, such a
provision is intended to ensure that the final LCRI will not
incentivize the delay of any voluntary school or child care facility
lead sampling efforts in order to align with the LCRI compliance dates.
The EPA encourages States to use available Federal funding, including
WIIN grants, to conduct sampling in school and child care facilities as
soon as practicable. Federally funded efforts could reduce the burden
on CWSs, particularly during the first five-year cycle after the LCRI
compliance date. Additionally, many schools and child care facilities
were closed in 2020 due to the COVID-19-related shutdowns. The agency
estimates that any data collected during 2020 COVID-19-related closures
would be unrepresentative due to low water usage and longer than normal
stagnation times. Based on the reasons described above, the EPA is not
extending the January 1, 2021, cut-off date in the final rule. The EPA
notes that CWSs are not required to sample if a school or child care
facility declines or does not respond to the offer to sample. Schools
or child care facilities that have previously been sampled and may have
taken steps to address lead in their buildings may likely not respond
to the offer for sampling.
The EPA is finalizing the provision allowing States to waive the
sampling requirements of Sec. 141.92 for CWSs in schools and child
care facilities that install or maintain filters certified to reduce
lead on all outlets used for cooking and drinking as proposed. The EPA
proposed this requirement to account for regulatory and voluntary
efforts to install filters certified to reduce lead in schools and
child care facilities. The EPA is aware that some States have specific
requirements including requirements to periodically sample or maintain
filters, or for schools to only install filters if results are above a
certain threshold (e.g., 0.005 mg/L). The EPA requested comment on
whether waivers should only be issued if there is a State or local
requirement for installation and maintenance but decided to finalize
the provision as proposed to maximize flexibility. The EPA acknowledges
the implementation concerns raised by commenters, including that States
or water systems may not be aware of which schools or child care
facilities may be utilizing filters. However, the waiver will apply
where the water system is aware of such school and child care
facilities and will
[[Page 86544]]
encourage voluntary and proactive actions to reduce lead in drinking
water. The EPA expects that water systems will work with their States
if they are aware of schools and child care facilities that have taken
actions to install and maintain these devices. States may also choose
to issue waivers if the State has enacted ``filter-first'' legislation,
which require filters to be installed and maintained.
3. Final Rule Requirements
a. Applicability
For the final LCRI, the EPA is requiring all CWSs to conduct public
education and lead sampling in all schools and licensed child care
facilities they serve (Sec. 141.92). The EPA is finalizing the
proposed revisions clarifying the exclusion for schools and licensed
child care facilities that were constructed or had full plumbing
replacement after January 1, 2014 or the date the State adopted
standards that meet the definition of lead free in accordance with
section 1417 of SDWA, whichever is earlier and is renumbering this
provision from Sec. 141.92(a)(1) to Sec. 141.92(a)(1)(i). The EPA is
adding a revision in the final LCRI to specify that the excluded
schools and licensed child care facilities must not be served by a
lead, GRR, or unknown service line as a new clause in Sec.
141.92(a)(1)(ii). The EPA is finalizing the revisions specifying that
these requirements do not apply to NTNCWSs, including schools and child
care facilities that are regulated as PWSs (Sec. 141.92(a)(2)). The
EPA is also finalizing the proposed reorganization of Sec. 141.92 that
clarifies the requirements of this section compared to the 2021 LCRR
and more clearly states the requirements in plain language.
All CWSs are required to develop a list of all elementary and
secondary schools and licensed child care facilities they serve. The
EPA is adding a revision in the final LCRI to clarify in Sec.
141.92(b)(1) that schools and licensed child care facilities that are
excluded under Sec. 141.92(a) are not required to be included on the
list. The EPA is finalizing the proposed requirement for CWSs to submit
the initial list to the State by the LCRI compliance date in accordance
with Sec. 141.92(b). CWSs are not required to include schools and
child care facilities on the list that do not meet the applicability
requirements in Sec. 141.92(a), such as a school constructed after
January 1, 2014. CWSs must update the list at least once every five
years following the LCRI compliance date and submit it to the State or
certify that no changes have been made to the list in accordance with
Sec. 141.92(b)(2).
b. Outreach to Schools and Licensed Child Care Facilities
All CWSs must conduct public education about the health risks of
lead in drinking water to all elementary schools, secondary schools,
and child care facilities on their list in accordance with Sec.
141.92(c) at least annually. The EPA is adding a revision in the final
LCRI to clarify that the information on the health risks in drinking
water must be consistent with the content requirements of Sec.
141.85(a)(1)(ii) through (iv) and (vi). Within the first five years
following the LCRI compliance date, CWSs must notify the elementary
schools and licensed child care facilities they serve that they are
eligible for lead sampling (Sec. 141.92(c)(2)(i)). The notice must
include a proposed schedule for the water system to conduct the
sampling and a copy of the EPA's 3Ts guidance. CWSs must provide this
notice to at least 20 percent of the elementary schools and child care
facilities they serve per year such that each elementary school and
child care facility on the list receives the outreach during the first
five-year sampling cycle after the rule compliance date (Sec.
141.92(d)(1)). Additionally, CWSs must notify all secondary schools
annually that they may request lead sampling from the water system
(Sec. 141.92(c)(2)(ii)). Starting in the sixth year following the rule
compliance date, all CWSs must annually notify all the elementary
schools, secondary schools, and licensed child care facilities they
serve that the water system will sample at the request of the school or
child care facility (Sec. 141.92(c)(3)).
c. Sampling Frequency
The EPA is retaining requirements from proposal for water systems
to conduct sampling in 20 percent of the elementary schools and 20
percent of the licensed child care facilities they serve per year for
the first five years after the rule compliance date until all
facilities are sampled or are considered non-responsive (Sec.
141.92(d)(1)). If an elementary school or licensed child care facility
either declines the offer for sampling or is non-responsive after at
least two outreach attempts, the CWS may count the facility under the
20 percent for that year (Sec. 141.92(d)(1)(i)). However, the CWS must
include information about the schools and child care facilities that
either did not respond or declined sampling in a report submitted to
the State as described in Sec. 141.90(i)(3) (see section IV.N of this
preamble). Starting in the sixth year following the compliance date,
CWSs must sample any elementary school or licensed child care facility
that requests sampling. Starting with the rule compliance date, CWSs
must sample any secondary school if requested (Sec. 141.92(e)). When
conducting sampling on request, CWSs are not required to sample more
than 20 percent of the schools or licensed child care facilities they
serve per year and may defer requests above 20 percent to the next year
(Sec. 141.92(d)(2)(i) and (e)(2)). A CWS is not required to sample an
eligible school or child care facility more than once in a five-year
period. If a school or child care facility is added to the list in
Sec. 141.92(b), the CWS must conduct the outreach in Sec.
141.92(c)(1) such that all elementary schools and child care facilities
receive one round of proactive outreach from the water system prior to
only being offered sampling on request (Sec. 141.92(d)(3)).
d. Sampling
The EPA is retaining the proposed sampling protocol requirements in
the final LCRI in Sec. 141.92(f). When conducting sampling, CWSs must
collect at least five samples per school and two samples per child care
facility in accordance with Sec. 141.92(f)(1). If there are not enough
taps available to meet the required minimum number of samples, CWSs
must collect a sample from all the taps used to provide water for human
consumption. Samples may be collected from outlets with point-of-use
devices only if there are point-of-use devices on all outlets typically
used to provide water for human consumption. Samples must be collected
according to the protocol in Sec. 141.92(f)(2). Samples may be
collected by the CWS, the school or child care facility staff, or
another appropriately trained individual (Sec. 141.92(f)(3)).
e. Providing Sample Results
The EPA is finalizing the proposed requirements in Sec.
141.92(g)(1) for water systems to provide results to the sampled school
or child care facility, the State and local health agencies and the
State as soon as practicable but within 30 days of receiving the
results. See section IV.N of this preamble for school and child care
facility reporting and section IV.O.1 for requirements for CWSs to
include information about school and child care facility sampling
opportunities in the Consumer Confidence Report. The EPA is retaining
the requirements for water systems to provide information about
remediation (e.g., the EPA's 3Ts or other related materials) to the
sampled schools and
[[Page 86545]]
child care facilities along with sample results in Sec.
141.92(g)(1)(i)).
f. Waivers
The EPA is finalizing the proposed provision in Sec. 141.92(h)(5)
allowing States to waive the sampling requirements for water systems in
Sec. 141.92 for the first five years following the final LCRI
compliance date for any schools or child care facilities that were
sampled between January 1, 2021 and the LCRI compliance date that meet
the requirements of this section. CWSs must conduct the sampling
requirements of Sec. 141.92 for all other eligible schools and
licensed child care facilities. Additionally, CWSs must conduct the
sampling requirements in all the schools and licensed child care
facilities on the list in Sec. 141.92(b) starting in the sixth year
after the LCRI compliance date, unless those facilities are covered by
a different waiver under Sec. 141.92(h).
The EPA is also finalizing the proposed provision allowing States
to waive the sampling requirements for water systems in Sec. 141.92
for any schools or licensed child care facilities that install and
maintain filters certified to reduce lead (Sec. 141.92(h)(1)(iv)). The
EPA is retaining the other waiver provisions introduced in the 2021
LCRR and proposed for LCRI including allowing States to waive sampling
requirements for water systems to sample in schools and child care
facilities that are covered by alternative testing programs that are at
least as stringent as the sampling requirements in Sec. 141.92 as
provided in Sec. 141.92(h). CWSs are required to fulfill all the
requirements of Sec. 141.92 in the subset of schools and licensed
child care facilities they serve that are not covered by a waiver or
once a waiver no longer applies (Sec. 141.92(h)(2) and (3)).
M. Copper
1. Rationale and Proposed LCRI Requirements
Copper is an essential trace element required for several metabolic
processes; however, excess copper intake is toxic and linked to various
adverse health effects. Acute gastrointestinal conditions are the most
common adverse health effects observed among adults and children.
Chronic exposure to copper is particularly a concern for people with
Wilson's disease, an autosomal recessive genetic disorder of copper
metabolism affecting 1 in 30,000 individuals (Ala et al., 2007). These
individuals are prone to copper accumulation in body tissue, which can
lead to liver damage, neurological, and psychiatric symptoms (Dorsey
and Ingerman, 2004). Additional information on the health effects
associated with copper are available in appendix E of the final LCRI
Economic Analysis (USEPA, 2024a).
Under the LCRI, the EPA proposed to require water systems to
provide customer notice of an individual's copper tap sampling results.
Similar to the notice for lead tap sampling results, the notice for
copper tap sampling results must include the results of copper tap
water monitoring for the tap that was tested, an explanations of the
health effects of copper as provided in appendix B to subpart Q of part
141 (Standard Health Effects Language for Public Notification), a list
of steps consumers can take to reduce exposure to copper in drinking
water, and contact information for the water system. The EPA proposed
that systems must provide all consumer notices of individual copper tap
sampling results as soon as practicable but no later than three
calendar days after the water system learns of the tap monitoring
result and any notifications conducted by mail must be postmarked
within three days. The EPA proposed the notice must also provide the
MCLG and action level for copper, both of which are 1.3 mg/L and the
definitions for these two terms from Sec. 141.153(c). The EPA proposed
to allow systems to combine the lead and copper results and required
information into a single notice in cases where copper and lead samples
are collected at the same time. This would also include notification of
results from on-request tap sampling required under Sec. 141.85(c).
2. Summary of Comments and the EPA's Response
The EPA received several comments on the proposed LCRI about the
regulation of copper. The EPA received comments focused on creating
separate sampling requirements for lead and copper. Commenters
requested that water systems collect copper and lead samples from
different locations, with copper samples focusing on locations with
expected high concentrations of copper (i.e., sites with newly
installed copper service lines). Commenters noted the proposed LCRI
targets sites most likely to have elevated lead levels and not
necessarily sites that may have elevated copper levels.
The EPA disagrees with creating separate sampling pools for lead
and copper. The sample site selection criteria at Sec. 141.86(a)(4)
require sampling from sites with the highest risk (lead) followed by
sites that have copper pipes (Tier 4 sites). Tier 5 includes sites that
are representative of sites throughout the distribution system that can
include sites served by copper pipes. Commenters also noted the
challenges with recruiting volunteers to collect tap samples, which
would further be exacerbated by requiring additional separate sites for
copper. In addition, maintaining two sample pools, one for lead and one
for copper, would further complicate the rule. Recognizing the inherent
complexity of the tap sampling requirements for the LCR, the agency did
not develop a separate tiering structure for copper sites to ease
implementation.
Moreover, because the sources of lead and copper in drinking water
are generally the same (i.e., corrosion from fixtures of pipes
containing the metal), and because the treatment technology for
elevated copper levels is also the primary treatment for lead (i.e.,
reducing corrosion in the distribution system), it is rational to group
these two contaminants into a single rule (56 FR 26490, USEPA 1991).
Additionally, both lead and copper require sampling at taps, rather
than at the entry point of the distribution. While the EPA did not
propose many revisions to address copper, the rule revisions will also
reduce copper levels. Treatments to control for lead are also effective
at controlling for copper, such as pH and alkalinity adjustment and
orthophosphate inhibitors. For example, installing and re-optimizing
OCCT for systems above the lead action level will likely reduce copper
levels. Although the tiering structure for the final LCRI has not
changed with regard to copper, Tier 4 includes sites with copper lines;
thus sampling will occur at higher-risk copper sites when the higher
risk lead sites are no longer available.
Additional comments on copper included encouraging the EPA to
reassess public education requirements for copper. These comments
requested the EPA require water systems to inform their users when a
system exceeds the copper action level, in a manner similar to how
water systems are required to inform their users when a system exceeds
the lead action level. The EPA disagrees with requiring water systems
to inform their users of a copper ALE. The LCRI requires water systems
to issue Tier 2 Public Notification if the system has a treatment
technique violation in response to a copper ALE. In addition, a water
system must report copper tap sampling compliance information in its
CCR under Sec. 141.153(d), along with the new requirement for water
systems to provide notification to consumers of their individual copper
tap sampling results under Sec. 141.85(d). The EPA
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expects that elevated copper levels may be addressed by CCT, in
addition to systems' providing the appropriate health effects language
to consumers through public notification or the CCR, thus protecting
individuals at most risk of adverse health effects due to copper
exposure (i.e., those with Wilson's Disease). Additionally, the health
impacts of acute copper exposure versus acute lead exposure are vastly
different. Exposure to lead poses serious health risks to the brain and
nervous system of children, while copper exposure causes
gastrointestinal distress for a majority of the population, except for
those with Wilson's Disease who should be aware of all potential
exposure sources of copper. Therefore, the EPA finds it is reasonable
to rely on these requirements for public health protection from copper
for purposes of the treatment technique for public education in lieu of
adding others, as requested by commenters.
3. Final Rule Requirements
The final LCRI retains the proposed changes to copper including the
timing of the notification for an individual's copper tap sampling
result. Water systems must provide notification of the tap sampling
result as soon as practicable but no later than three business days and
any notifications by mail must be postmarked within three business days
of the system's learning of the tap sampling results as stated in Sec.
141.85(d)(2). In cases where copper samples are collected at the same
time as lead, systems are permitted to combine lead and copper results
and required information into a single notice. The EPA expects that
this will simplify the implementation of the rule by allowing systems
to deliver both the lead and copper results and associated required
information at the same time.
N. System Reporting and Recordkeeping
1. System Reporting Requirements
a. Rationale and Proposed LCRI Revisions
The EPA proposed in the LCRI to revise water system reporting
requirements in accordance with other proposed changes to the LCRI
(Sec. 141.90). The proposed revisions to these sections were primarily
driven by the changes and additions to the corresponding requirements
in other sections of the proposed LCRI to ensure consistency and
completeness of reporting requirements. Revisions proposed in other
parts of the rule affect reporting of tap sampling results for LSL
sites, documentation requirements for customer refusals, reporting
requirements for systems with multiple lead action level exceedances,
compliance with the service line inventory and replacement
requirements, and reporting requirements for systems with schools and
child care facilities. System reporting requirements should match the
LCRI requirements to inform State decision-making and improve
implementation and oversight.
The EPA proposed modifying the tap sampling reporting requirements
for systems sampling at LSL sites to report both first- and fifth-liter
sample results in accordance with the updated tap sampling protocol.
In the 2021 LCRR, systems are required to report summary numbers of
lead, GRR, and unknown service lines when they submit their service
line material inventory. The LCRI proposal expanded the inventory
reporting requirements to include lead connectors and non-lead service
lines, beginning with the baseline inventory due by the LCRI compliance
date.
Under the 2021 LCRR, systems with LSLs are required to begin
conducting standard tap monitoring within one year of the rule
compliance date, and submit a site sample plan to the State for review
prior to the start of the first tap monitoring period. In LCRI, the EPA
proposed to expand this requirement to start standard monitoring to all
systems with lead, GRR, and/or unknown service lines.
The EPA proposed to require that all systems conducting service
line replacement report their compliance with the service line
inventory and replacement requirements to the State. Each year, systems
would be required to submit inventory summary information, including
the current number of LSLs, GRR service lines, unknown service lines,
non-lead service lines, and lead connectors. They would also be
required to report information on their replacement program, including
the total number and street addresses of locations where full, partial,
and GRR service lines and lead connectors were replaced. The EPA also
proposed that systems report the total number of unknown service lines
determined to be non-lead and the street address of any service line
inventoried as non-lead that is later discovered to be a lead or GRR
service line. Under the LCRI proposal, systems would be required to
certify to the State the number of service lines not replaced due to
property owners not providing consent to conduct service line
replacement.
As part of the reporting requirements, systems must certify that
various requirements have been completed. The EPA proposed two required
certifications for systems conducting public education and making
filters available following multiple lead action level exceedances.
First, they must certify to the State that they conducted at least one
required outreach activity in the previous year. Second, they must
certify that they complied with filter availability requirements in the
previous year by providing a copy of the filter distribution plan and
the number of filters provided each tap sampling period.
The EPA proposed improvements to the reporting requirements for
water systems with schools or child care facilities. The EPA proposed
to require systems to submit the initial list of schools and child care
facilities they serve by the rule compliance date. The EPA also
proposed to require systems provide the results of school and child
care sampling to the State within 30 days of receiving them (see
section IV.L of this preamble). The 2021 LCRR requires water systems to
submit a summary report to the State containing information about
school and child care sampling during the prior calendar year,
including the number of schools and child care facilities sampled and
the number of elementary schools and child care facilities that
declined or did not respond to attempts for sampling. The EPA proposed
in the LCRI that the report must also include the names of the schools
and child care facilities. The EPA anticipated that this would help
States identify which schools and child care facilities have not been
sampled and why.
b. Summary of Comments and the EPA's Response
The EPA received comments stating there were too many system
reporting requirements and recommended the EPA remove requirements or
decrease the number of requirements. These commenters stated that
multiple and different types of reporting requirements are too
burdensome both on the systems that must complete the reporting
requirements and on the States that must review them.
In response to these comments, the EPA reviewed all system
reporting requirements for the LCRI. The EPA disagrees with these
commenters because the agency determined that each of the reporting
requirements in the proposal provide information that is essential to
public health protection or the implementation of the rule. The EPA
acknowledges that there are several reporting requirements associated
with this rule. However, the LCRI is a complex rule with multiple
components that requires adequate system reporting
[[Page 86547]]
to provide the necessary data for public health protection and
effective oversight and enforcement.
The EPA received comments stating that there were too many dates
throughout the year when systems would be required to report
information to the State. Reporting requirements in the proposed LCRI
included reporting sampling results, service line inventory information
and certifications that required actions had been taken by systems. To
reduce complexity and administrative burden, some of these commenters
suggested the final rule should align the frequency of some of the
certifications to streamline the reporting requirements. The EPA agrees
with these commenters that a more streamlined set of reporting dates
would help ease confusion and reduce burden for systems and States. For
the final LCRI the EPA has limited the total number of dates throughout
the year when reporting will be required by aligning the reporting
schedules to the greatest extent possible. Specifically, the EPA
adjusted the reporting deadlines in Sec. 141.90(a)(1)(ii), (a)(3)(i),
(e)(3) through (10) and (13), and (f)(3), (6) through (8), and (10).
The majority of the reporting elements are now required on either the
date three years after the compliance date, 10 days after the tap
sampling period, or annually by January 30. Other reporting elements
retain different reporting dates due to the specific nature of those
reporting requirements.
The items that must be reported on the date three years after the
compliance date are generally items that are associated with the
service line inventory. Examples of this are the initial inventory and
documentation of previous inventory validation efforts that have been
completed by the system prior to the LCRI. These items are necessary at
the compliance date because they provide information that systems will
need to comply with the LCRI.
The items that must be reported 10 days after the tap sampling
period are generally associated with tap sample results from that tap
sampling period. These results provide information vital to
understanding public health risk, such as concentrations of lead and
copper in drinking water at consumers' taps. The reporting results can
also lead to system requirements for taking action to protect public
health triggered by the 90th percentile lead and copper values, such as
follow up sampling and public education. Since this information may
lead to actions by systems or individuals to protect public health,
these items must be reported relatively quickly.
The items that must be reported annually by January 30 are
generally related to the LSL replacement program, the service line
inventory, public education summaries, or other certifications provided
by systems that they are meeting the various requirements of the LCRI.
These items are less time sensitive and therefore can be reported on an
annual basis. The date of January 30 was selected because many
reporting items in the proposal and the 2021 LCRR would already occur
on this date. The emphasis of January 30 meant that for the final LCRI,
the EPA changed some reporting items, mostly certifications associated
with public education and outreach, from a July 1 date to January 30.
The EPA maintained the annual frequency for these items because the EPA
did not receive comments stating that the frequency was inappropriate.
However, the EPA aligned the reporting dates to respond to comments
that suggested that a more streamlined approach would reduce confusion
and burden for systems and States.
In addition, the EPA modified the regulatory language describing
the January 30 date in some instances for clarity and consistency,
without changing the reporting date. For example, the proposal used
terms such as ``30 days after the end of the calendar year'' or ``30
days after the end of the program year'' to describe January 30. This
could result in confusion about the actual reporting deadline, when the
EPA intends for all applicable reporting requirements to be met
annually by January 30. Hence, for the final LCRI, the EPA amended
language in Sec. 141.90 of the rule to consistently say ``annually by
January 30.''
The EPA also adjusted reporting requirements to match the change
from proposal in the designation of the program year. The agency made
this change to reduce implementation burden. For the final LCRI, the
EPA added the definition for program year to Sec. Sec. 141.90(e) and
141.84(d)(5)(iii) to clarify that the first mandatory service line
replacement ``program year'' is from the compliance date specified in
Sec. 141.80(a)(3) to the end of the next calendar year and that every
subsequent program year is aligned with the calendar year. This means
that the first program year will be slightly longer than one calendar
year and subsequent program years will be one calendar year long. All
program years, including the first program year, will end on December
31. The reporting deadlines for many items in the proposal were dates
stated in relation to the program year (e.g., ``no later than 30 days
after the end of each program year''). The EPA changed many of these
deadlines to cite specific days throughout the year (e.g., ``annually
by January 30'') for clarity. While the language describing the date
has changed, these systems still have the same amount of time for
reporting since they are still 30 days after the program year. The
revised language and the alignment of program year to calendar year
responds to comments that a more streamlined approach will reduce
confusion and burden.
Finally, there are some reporting requirements that have different
reporting dates. These types of requirements generally fall into two
categories. This first category is items that require fast action,
often sooner than 10 days, due to an interest in public health
protection, such as certification that public education materials were
delivered appropriately after a lead action level exceedance. Public
health is protected by quick reporting because the reporting can result
in action taken by the system or the public to protect from the risk of
lead or copper contamination in their drinking water. The second
category is an item that is relatively uncommon but will lead to a
major change in the system's requirements under the rule, such as the
discovery of an LSL in a system that was previously thought to be free
of LSLs. In these cases, the system will often need to take action to
modify their operations and it would not be appropriate to wait for up
to a year to begin. These specific circumstances are not appropriate
for the agency to make changes in the final LCRI to align these
requirements with the other more common ones previously discussed.
The EPA received comments concerning the requirement to report tap
sampling results within 10 days of the end of the tap sampling period,
which is the period when systems must collect samples within the tap
monitoring period. Some commenters felt that it would not be possible
to meet this deadline, and instead this reporting should be tied to the
tap monitoring period. These commenters reasoned that for samples taken
near the end of the tap sampling period, there is not sufficient time
for systems to send them to a laboratory, receive the results, perform
the 90th percentile calculations, and report to the State all within
ten days. The EPA disagrees with these commenters because there is a
high public health value of having systems report results to States
within 10 days of the tap sampling period. This is because high levels
of lead or copper, as
[[Page 86548]]
indicated by tap sample results, require quick action by water systems
to protect public health. These actions include conducting public
education so consumers can take informed actions to protect their
health and reducing exposure to these contaminants through CCT. In
addition, ensuring the State receives the 90th percentile data within
10 days will allow the State to provide oversight should actions need
to be taken to protect public health. The EPA also notes water systems
have flexibility as to when tap sampling occurs within the tap sampling
period. Systems do not need to wait to the last day of the tap sampling
period if the system is concerned about receiving laboratory results in
time to calculate the 90th percentile and provide results to the State
within 10 days. Therefore, the EPA determined 10 days is an appropriate
timeframe.
The EPA received several suggestions for minor technical changes to
the reporting requirements in the areas of system reporting, mainly for
consistency with other sections of the rule, clarity, and
understandability of the regulatory text. The EPA agrees that
consistency, clarity and understandability are important goals for the
LCRI. Therefore, the EPA agrees with advancing these goals and adjusted
the LCRI accordingly. In general, these changes did not substantially
impact the requirements of the rule.
For example, the EPA received comments noting that in many
locations in Sec. 141.90, some language was used inconsistently. In
the proposal, words like ``certify,'' ``document,'' and ``demonstrate''
were used interchangeably. The EPA agrees that terminology should be
used consistently to ease implementation of the LCRI. Therefore, for
the final LCRI, the EPA revised Sec. 141.90 to consistently use
``certify'' to document whether a system has completed a rule
requirement when data or other details are not required. This revision
occurs at Sec. 141.90(a)(2)(iii) and (f)(4) and (7). Conversely, in
Sec. 141.90(e)(10), the EPA changed the language from ``certify'' to
``submit'' to reflect that the reporting requirement is the number of
service lines, not simply to notify the State that the requirement has
been met.
In the proposal language in Sec. 141.90(a)(2)(iii), commenters
noted that the requirement for systems to document that the results of
monitoring will be made publicly available was presented in a way that
could be perceived to require documentation of an action that would
happen in the future and that this would be difficult to document and
enforce. The EPA agrees with these comments that the way this
requirement was worded would be challenging for systems to implement.
Therefore, the EPA has revised the final requirement to be a
certification of an action that has occurred in the previous tap
monitoring period.
c. Final Rule Requirements
The final LCRI contains minor textual revisions to enhance the
clarity of Sec. 141.90 and to ensure that all the reporting
requirements are consistent with other provisions of the rule. The EPA
also streamlined many of the reporting requirements of the rule.
For the final LCRI, the EPA revised the reporting requirements for
tap monitoring for lead and copper and for distribution system and
entry point monitoring for water quality parameters to provide
clarifications and update references. The EPA also made changes to
clarify that the tap sampling protocol must meet the requirements of
Sec. 141.86(b) and to clarify that if a system modifies its protocol,
it must be submitted to the State prior to the next tap sampling period
(Sec. 141.90(a)(1)(ii)).
The EPA revised Sec. 141.90(a)(2)(iii) to require the system to
certify that they made the results from the preceding tap monitoring
period publicly available. The proposed LCRI required the system to
certify they would make the results public in the future, which would
have been difficult to enforce. The EPA also revised this section to be
consistent with the rest of the LCRI by replacing the word
``documentation'' with ``certification.''
For the final LCRI, the EPA added a provision (Sec.
141.90(a)(2)(viii)) to require systems to report the number of sites
with non-responsive customers or customer refusals during the tap
sampling. The agency is adding this clarification to be consistent with
requirements in Sec. 141.86(a)(4).
The final LCRI added a requirement for systems qualifying under
Sec. 141.86(b)(3) to submit updated documentation when there are
changes to standing times and/or locations for substitute compliance
tap samples (Sec. 141.90(a)(3)(i)). The agency is adding this
clarification to be consistent with other requirements in Sec.
141.86(b)(3).
In the proposal, Sec. 141.90(a)(4) contained language that
described system and State requirements when implementing a new source
or a long-term treatment change. The EPA determined this language is
substantive language about system and State requirements beyond
reporting. Therefore, the EPA added this language to Sec. 141.81(h),
because Sec. 141.81 contains requirements concerning corrosion control
treatment requirements, which are most closely related to requirements
concerning implementing a new source or a long-term treatment change.
The EPA has also retained identical language in Sec. 141.90(a)(4) to
reflect the importance of the requirement and to emphasize both the
substantive and reporting aspects of the requirement.
The EPA added language to Sec. 141.90(c)(5), which applies to
systems that choose to defer OCCT because they can complete service
line replacement in five years or less at a minimum annual rate, as
described in Sec. 141.81(f). The language in the proposal stated that
these systems must certify that they have completed their mandatory
service line replacement program. The EPA added language to clarify
that the system may also certify that they have met the minimum annual
replacement rate calculated under Sec. 141.81(f)(1)(ii). The agency
added this text for clarity and it does not change the requirements of
this section from the proposal.
For the final LCRI, the EPA added a description of ``program year''
to the service line inventory and replacement reporting requirements
(Sec. 141.90(e)) to provide clarity and ease implementation. This
description is also provided under the service line replacement
requirements (Sec. 141.84(d)(5)(iii)). The EPA is adding this
description for clarity and ease of implementation.
The final LCRI requires systems to submit a baseline inventory that
includes a summary of the total numbers of each of the following (Sec.
141.90(e)(2)): lead, GRR, unknown, and non-lead service lines, lead
connectors, and connectors of unknown material. The EPA is adding this
clarification to be consistent with other requirements in Sec.
141.84(a)(2) through (4).
For the final LCRI, the EPA added a requirement (Sec.
141.90(e)(3)(ii)) for systems to certify annually that there have been
no changes to their service line replacement program, or if there have
been changes, they must submit a revised service line replacement plan.
This requirement is necessary to give States appropriate awareness and
oversight on any potential changes to the plan. This reporting
requirement is consistent with the new requirement in the LCRI for
systems to annually update their replacement plan (Sec. 141.84(c)).
For more information on this requirement, see section IV.C of this
preamble.
For the final LCRI, the EPA added a provision (Sec.
141.90(e)(3)(iii)) that requires systems eligible for the deferred
deadline provisions for LSLR to report
[[Page 86549]]
updated service line replacement plan information to the State at
intervals described in Sec. 141.84(d)(5)(vi) (see section IV.C of this
preamble). The EPA added this language to be consistent with the
requirements in Sec. 141.84(d)(5)(vi).
The LCRI proposal required systems to submit the updated LSL
inventory to the State. The EPA added clarifying language to Sec.
141.90(e)(4) stating that a water system may provide instructions to
the State on how to access the updated LSL inventory online instead of
submitting the entire inventory to the State. The EPA expects this will
help reduce the administrative burden associated with this requirement
on systems and States.
The EPA included a new requirement at Sec. 141.90(e)(8)(i) for
systems to report the number of connectors of unknown material as part
of their inventory. The EPA added this language to be consistent with
requirements in Sec. Sec. 141.84(b)(2)(iv) and 142.15(c)(4)(iii)(D).
For more information about the documenting connectors of unknown
material in the inventory, please see section IV.D.1 of this preamble.
The EPA included a requirement in the final LCRI in Sec.
141.90(e)(9) for systems to submit to the State the specific version
(including the date) of the service line inventory used to determine
the number of non-lead service lines used when the number of non-lead
service lines in the validation pool was determined. The EPA included
this requirement to be consistent with requirements found in Sec.
141.84(b)(5)(v). For more information on requirements for inventory
validation, please see section IV.D.4 of this preamble.
The EPA modified Sec. 141.90(e)(10) to enhance the clarity of the
language. Specifically, the text now makes it clear that the system
must provide documentation of service lines not replaced for systems
that lack access, as described in Sec. 141.84(d)(2). In addition, the
language clearly states that for systems that lack access because of
lack of owner consent where consent is required by State or local law,
the system must provide documentation of each reasonable effort
conducted by the system as described in Sec. 141.84(d)(3). The EPA
also moved the requirement to report the total number of lead and
galvanized requiring replacement service lines not replaced because the
system does not have access to conduct full service line replacement
from Sec. 141.90(e)(10) to Sec. 141.90(e)(8)(ix) because it is
summary information that is similar to the other items in the latter
section. The EPA moved this provision for clarity and the move does not
substantively impact the requirement.
For the final LCRI, the EPA added clarifying language to the public
education reporting requirements (Sec. 141.90(f)(1)) for systems to
submit a copy of all written materials to the State prior to delivery.
The EPA also added a provision to provide the State discretion to
require approval of the written materials prior to their delivery. This
language is consistent with the language in Sec. 141.85(a)(1) of the
LCRI. In addition, the EPA clarified that systems that have previously
submitted to the State a list of newspapers, radio stations, television
stations, and facilities and organizations to which the system
delivered public education materials, do not need to resubmit this
list, unless required to do so by the State (Sec. 141.90(f)(2)).
The EPA added clarifications to Sec. 141.90(f)(3) on the reporting
requirement to send an example copy of the consumer notification of tap
sampling results to the State along with a certification that the
notification has been distributed in a manner consistent with the
requirements of Sec. 141.85(d). This requirement applies to all tap
sampling results, including those used to calculate the 90th percentile
value as described in Sec. 141.86 and consumer-requested samples
outside the tap sampling period for systems on reduced monitoring. The
new text clarifies that some items must be reported 30 days following
the end of the tap sampling period and that some items must be reported
annually by January 30. The different schedules are necessary because
certain types of tap sampling, such as consumer-requested samples, may
occur outside the tap sampling period. The EPA made this change for
clarity and to allow for deadlines that made sense for samples that may
be taken outside the tap sampling period.
For the final LCRI, the EPA reordered the school and child care
facility sampling at Sec. 141.90(i) to clarify that if systems report
they do not serve schools or child care facilities, they must continue
to certify that they do not serve schools or child care facilities. If
they do begin to serve one or more schools or child care facilities,
they must meet the requirements of the rest of the section. The EPA
made this change because language in the proposal could be read to
provide that the systems would not be required to monitor for new
schools or child care facilities after initially reporting none served.
The EPA finds it critical that all new or newly identified schools and
child care facilities are subject to the remaining reporting
requirements of this section. In addition, the EPA reorganized sections
Sec. 141.90(i)(3)(iii) through (vi) to make the sections more readable
and understandable. However, the EPA did not make substantive changes
to these sections for the final rule.
O. Other Proposed Revisions to 40 CFR Part 141
1. Consumer Confidence Report Rule (40 CFR Part 141, Subpart O)
a. Rationale and Proposed LCRI Revisions
All CWSs are required by SDWA to provide their customers at least
once a year with a CCR, a drinking water quality report that summarizes
the state of their drinking water supply. The CCR must include
information about the water system, sources of water, detected
contaminants including lead, compliance with drinking water rules
including the lead and copper rules, as well as other information. CCR
requirements are described in the CCR Rule (40 CFR part 141, subpart
O), which is part of the 1996 Right to Know provisions of SDWA. On May
24, 2024, the EPA published a final rule to strengthen the CCR Rule (89
FR 45980, USEPA, 2024c). The EPA revised the CCR Rule in accordance
with America's Water Infrastructure Act (AWIA) of 2018 and to improve
the readability, clarity, and understandability of CCRs as well as the
accuracy of the information presented, improve risk communication in
CCRs, incorporate electronic delivery options, provide supplemental
information regarding lead levels and control efforts, and require
systems who serve 10,000 or more persons to provide CCRs to customers
biannually (twice per year). Under the LCRI, the EPA proposed to revise
the lead and copper related requirements of the CCR to further enhance
risk communication and provide additional information about sampling in
schools and child care facilities and the service line replacement
plan. These proposed revisions are described below.
i. Lead Information Statement
All CWSs are required to include an informational statement about
lead in drinking water in their CCRs. The lead information statement is
intended to help ensure vulnerable populations or their caregivers
receive information at least once a year on how to reduce their risk of
exposure to lead in drinking water. In the LCRI, the EPA proposed to
revise the lead information statement. The proposed revisions included
providing information about the risks of lead to all age groups,
additional measures consumers can take to reduce
[[Page 86550]]
exposure to lead in drinking water, new language recommending flushing
for water used in cooking and formula feeding, and using filters
properly. Revisions to the lead information statement were in response
to various stakeholder comments, including feedback received as part of
the LCRR review engagements, public meetings on environmental justice
considerations and other stakeholder meetings held to support the
development of the proposed LCRI (USEPA, 2023g; USEPA, 2023h), written
public comments submitted to the LCRI docket following the
environmental justice meetings (Docket ID EPA-HQ-OW-2022-0801), and
written comments submitted on the proposed CCR Rule Revisions (Docket
ID EPA-HQ-OW-2022-0260). The proposed revised information statement
about lead was as follows and as described in the proposed LCRI:
Lead can cause serious health effects in people of all ages,
especially pregnant people, infants (both formula-fed and
breastfed), and young children. Lead in drinking water is primarily
from materials and parts used in service lines and home plumbing.
[INSERT NAME OF UTILITY] is responsible for providing high quality
drinking water and removing lead pipes, but cannot control the
variety of materials used in the plumbing in your home. You can help
protect yourself and your family by identifying and removing lead
materials within your home plumbing and taking steps to reduce your
family's risk. Using a filter, certified by an American National
Standards Institute accredited certifier to reduce lead, is
effective in reducing lead exposures. Follow the instructions
provided with the filter to ensure the filter is used properly. Use
only cold water for drinking, cooking, and making baby formula.
Boiling water does not remove lead from water. Before using tap
water for drinking, cooking, or making baby formula, flush your
pipes for several minutes. You can do this by running your tap,
taking a shower, doing laundry or a load of dishes. If you have a
lead service line or galvanized requirement replacement service line
you may need to flush your pipes for a longer period. If you are
concerned about lead in your water and wish to have your water
tested, contact [INSERT NAME OF UTILITY and CONTACT INFORMATION].
Information on lead in drinking water, testing methods, and steps
you can take to minimize exposure is available at https://www.epa.gov/safewater/lead.
ii. Mandatory Lead Health Effects Language
Under the CCR Rule Revisions, CWSs are required to include in the
report the mandatory lead or copper health effects language listed in
appendix A to subpart O of part 141 when they fail to take one or more
actions prescribed by Sec. 141.80(d), Sec. 141.81, Sec. 141.82,
Sec. 141.83, Sec. 141.84, or Sec. 141.93. With the LCRI, the EPA
proposed to require CWSs to include the mandatory lead or copper health
effects language when they fail to take one or more actions prescribed
by Sec. Sec. 141.80 through 141.93. This would expand the requirement
to apply to more situations, such as failing to meet the public
education requirements in Sec. 141.85 or requirements for sampling in
schools and child care facilities under Sec. 141.92, so that consumers
are more informed of the health effects of lead and copper.
Additionally, the proposed LCRI revised the mandatory lead health
effects language as described in the LCRI proposal and provided in
section J.2.d of this preamble to clarify health effects in all age
groups and include information about contacting your health care
provider for more information. The EPA proposed the same health effects
language in public education and public notification about lead in the
proposed LCRI.
iii. Other Requirements
The EPA proposed, under Sec. 141.153, to require that water
systems include in the CCR a statement that the water system is
required to sample for lead in schools and licensed child care
facilities as requested by the facility, in accordance with Sec.
141.92 of the proposed LCRI, to direct relevant members of the public
to contact their school or child care facility for further information
about potential sampling results.
In the LCRI, the EPA proposed to require water systems to make
their service line replacement plan publicly available. Accordingly,
the EPA also proposed to require CWSs with lead, GRR, or unknown
service lines in their inventory to include in the CCR information on
how to obtain a copy of the service line replacement plan or for
systems serving more than 50,000 persons, how to view the plan on the
internet. Including information about how to access the plan in the CCR
would further increase transparency about the service line replacement
process, accessibility of the plan, and consumer awareness about
service line replacement in their community.
The EPA proposed in the LCRI to expand the 2021 LCRR requirement to
include a statement on the service line inventories to also include
information on known lead connectors or unknown connectors.
b. Summary of Comments and the EPA's Response
i. Comments on Language About the Safety of Water in the CCR
The EPA received comments concerning systems using misleading
language in the CCR about the safety of the water in relation to lead
and copper. Commenters were concerned that water systems have used
language in the CCR suggesting a community's water was safe with
respect to lead because it met the lead action level or was in
compliance with the rule. Commenters argued this suggestion
contradicted the EPA's messaging that there is no level of lead without
health risks. Some commenters also expressed concerns with the language
about consumers having their water tested if they are concerned about
lead, noting that a one-time test could be misleading. In response to
commenters' concerns about statements indicating the water is safe if
the system's sampling results are below the lead action level and in
regulatory compliance, the EPA has updated the lead information
statement (Sec. 141.154(d)(1)) required in the CCR to note that there
is still a risk of lead exposure even when tap results at a given point
do not detect lead. The EPA also notes that the existing CCR Rule in
Sec. 141.153(h)(5) states that systems may include such additional
information as they deem necessary for public education consistent
with, and not detracting from, the purposes of the report. As noted in
the Final CCR Rule Revisions, ``the EPA interprets these provisions as
precluding misleading statements by water systems because such
statements would detract from the purpose of the report by downplaying
the situational information and potential risks to consumers served by
the system'' (89 FR 45980, USEPA, 2024c). In addition, as noted in the
Final CCR Rule Revisions, the EPA intends to work with stakeholders on
developing CCR communication tools and guidance to continue to support
CCRs that are accurate, clear, understandable, and readable with
regards to lead as well as other contaminants (89 FR 45980, USEPA,
2024c).
Some commenters wrote that the CCR should include information about
how common lead is not only in service lines but in premise plumbing
and that the CCR should discuss all sources of lead in drinking water.
The EPA notes that the lead information statement has included, since
the 2007 LCR revisions and maintained in the LCRI, language that
service lines and home plumbing are the primary sources of lead in
[[Page 86551]]
drinking water. The EPA requires the statement to include information
on sources of lead exposure recognizing there could be sources beyond
the control of the water system, such as premise plumbing, to help
inform the consumer of all potential lead drinking water risks so they
can take proactive steps to protect their health. The lead information
statement recommends that consumers identify and remove any lead
plumbing parts from their home and includes additional steps to help
reduce their exposure to lead in drinking water such as using a filter
certified to reduce lead.
Some commenters asked the EPA to adopt language in the CCR lead
informational statement that recommends all consumers at all times use
a filter certified to remove lead. The EPA disagrees with these
commenters because not all consumers have lead plumbing or are served
by service lines that are known to or potentially contain lead.
However, the EPA notes that the lead information statement includes
filters as an effective option for reducing lead exposure and
emphasizes their proper use (Sec. 141.154(d)(1)).
Some commenters expressed concerns with the CCR's proposed lead
information statement being too long, particularly the added steps for
consumers to reduce their exposure to lead in drinking water. Some
commenters recommended including this information in guidance instead
so that water systems have more flexibility in how they present the
information. The EPA disagrees with removing this mandatory language
from the CCR as it is necessary to inform consumers of actions they can
take to reduce their risk of exposure to lead in drinking water and
thereby prevent known or anticipated adverse health effects to the
extent feasible. In addition, the rule has allowed, since the 2007 LCR
revisions, water systems to write their own informational statement in
consultation with the State in accordance with Sec. 141.154(d)(2).
Under the scope of the revised CCR Rule, the EPA revised Sec.
141.154(d)(2) to require approval of an alternative educational
statement from the CWS's primacy agency to use in the CCR. Therefore,
water systems may make adjustments to the way they present the
information with approval of the State.
ii. Comments on Inclusion of Replacement Plan Information in the CCR
The EPA proposed in the LCRI to require CWSs with lead, GRR, or
lead status unknown service lines to include in the CCR information
about the service line replacement plan and how to obtain a copy of the
replacement plan. The EPA received comments supporting the inclusion of
this information in the CCR and is retaining these requirements in the
final LCRI. The final rule states that for systems with lead, GRR, or
lead status unknown service lines in the systems inventory pursuant to
Sec. 141.84(a) and (b), the CCR must include information on how to
obtain a copy of the service line replacement plan or view the plan on
the internet if the system is required to make the service line
replacement plan available online (Sec. 141.153(h)(8)(iii)).
iii. Comments on Including Statement About School Sampling in the CCR
The EPA requested comment in the proposed LCRI on the proposed
requirement for systems to provide an informational statement in the
CCR about school and child care sampling requirements and that
consumers can contact the school or child care facility about any
potential sampling results. The EPA received mostly supportive comments
for this provision to be included in the final LCRI. The EPA also
received comments noting the inclusion of this information in the CCR
could potentially make the CCR more confusing due to the report already
being complicated. While the EPA acknowledges commenters' concerns
about the amount of information in the CCR, the agency is maintaining
this requirement in the final rule given the public health benefit this
information provides. Since the EPA does not have the authority under
SDWA to require schools and child care facilities to share their
sampling results, the agency is requiring this CCR provision to help
ensure that consumers are aware of the school and child care sampling
requirements and that they can reach out to the school or child care
facility about any potential sampling results. Directing consumers to
contact the school or child care facility connects the consumer with
the entity who can better respond to any follow-up questions as well
such as questions regarding next steps including any remediation
actions.
The final rule retains the proposed requirement to include an
informational statement in the CCR about school and child care sampling
requirements with a slight modification to be clearer that the system
should direct consumers to contact the school or child care facility
for further information about potential sampling results as stated in
Sec. 141.153(h)(8)(v).
c. Final Rule Requirements
i. Lead Information Statement
In the final LCRI, the EPA is revising the lead information
statement with minor modifications in response to comments that
recommended adding language to the CCR about the risk of lead exposure
even when tap results at a given point in time do not detect lead. The
EPA is finalizing the below lead information statement that includes
changes made in the proposed LCRI as well as additional changes made in
response to comments received on the proposed LCRI:
Lead can cause serious health effects in people of all ages,
especially pregnant people, infants (both formula-fed and
breastfed), and young children. Lead in drinking water is primarily
from materials and parts used in service lines and in home plumbing.
[INSERT NAME OF SYSTEM] is responsible for providing high quality
drinking water and removing lead pipes but cannot control the
variety of materials used in the plumbing in your home. Because lead
levels may vary over time, lead exposure is possible even when your
tap sampling results do not detect lead at one point in time. You
can help protect yourself and your family by identifying and
removing lead materials within your home plumbing and taking steps
to reduce your family's risk. Using a filter, certified by an
American National Standards Institute accredited certifier to reduce
lead, is effective in reducing lead exposures. Follow the
instructions provided with the filter to ensure the filter is used
properly. Use only cold water for drinking, cooking, and making baby
formula. Boiling water does not remove lead from water. Before using
tap water for drinking, cooking, or making baby formula, flush your
pipes for several minutes. You can do this by running your tap,
taking a shower, doing laundry or a load of dishes. If you have a
lead service line or galvanized requiring replacement service line,
you may need to flush your pipes for a longer period. If you are
concerned about lead in your water and wish to have your water
tested, contact [INSERT NAME OF SYSTEM and CONTACT INFORMATION].
Information on lead in drinking water, testing methods, and steps
you can take to minimize exposure is available at https://www.epa.gov/safewater/lead.
ii. Mandatory Lead Health Effects Language
In the final rule, the EPA is finalizing the mandatory health
effects language, as proposed, listed in appendix A to subpart O of
part 141 to be included in the CCR when a CWS fails to take one or more
actions prescribed by Sec. Sec. 141.80 through 141.93. Additionally,
the rule finalizes the lead health effects language, as proposed and
provided in section IV.J.2.d of this preamble.
[[Page 86552]]
iii. Other Requirements
The final LCRI requires water systems to include in the CCR a
general statement that the CWS is required to sample for lead in
schools and licensed child care facilities in accordance with Sec.
141.92 (see Sec. 141.153(h)(8)(v)). This provision will help ensure
that consumers are aware of the school and child care sampling
requirements and that they can reach out to schools or child care
facilities about any potential sampling results. Due to comments
received on the proposed LCRI, this language has been modified for the
final LCRI to be clearer that the system should direct consumers to
contact the school or child care facility for further information about
potential sampling results in accordance with Sec. 141.92. The school
and child care facility can provide additional information to the
sampling results including next steps such as any remediation actions.
The final rule requires that the CCR expand the service line
inventory statement to include information on known and unknown lead
connectors such that the statement describes that a service line
inventory (including inventories with no lead, GRR, lead status
unknown, known lead connectors or unknown connectors) has been prepared
and the statement must include instructions on how to access the
inventory (Sec. 141.153(h)(8)(ii)).
The final LCRI requires water systems to make the service line
replacement plan publicly available (see section IV.C of this preamble
for more information about the replacement plan). Additionally, CWSs
with lead, galvanized requiring replacement, or lead status unknown
service lines in their inventory are required to include in the CCR
information on how to obtain a copy of the service line replacement
plan or for systems serving more than 50,000 persons, how to view the
plan on the internet (Sec. 141.153(h)(8)(iii)).
The CCR Rule Revisions (89 FR 45980, USEPA, 2024c) moved the CCR
requirement for a service line inventory statement from Sec.
141.153(d)(4)(xi) to Sec. 141.153(h)(8)(ii) and the requirement for
information about accessing complete lead tap sampling data from Sec.
141.153(d)(4)(xii) to Sec. 141.153(h)(8)(i) of the CFR. Therefore, the
final LCRI is also moving other requirements that were proposed in
Sec. 141.153(d)(4) to Sec. 141.153(h)(8); these include the statement
about the service line replacement plan and school sampling. In
addition, the CCR Rule Revisions added a requirement for information
about corrosion control efforts in Sec. 141.153(h)(8)(iii) which the
final LCRI moved to Sec. 141.153(h)(8)(iv) in order to keep the
requirements related to information on the service line inventory and
replacement plan together.
2. Public Notification Rule (40 CFR Part 141, Subpart Q)
a. Rationale and Proposed LCRI Revisions
The EPA promulgated a Public Notification (PN) Rule in 40 CFR part
141, subpart Q, in 2000 (65 FR 26035, USEPA, 2000b). This PN Rule
implements section 1414(c)(1) and (2) of SDWA. The PN Rule requires
water systems to provide public notification of any failure of the
water system to comply with a maximum contaminant level, a prescribed
treatment technique, or failure to perform required water quality
monitoring, or testing procedures; any variance or exemption the system
has been granted, or failure to comply with the requirements of any
schedule set under a variance or exemption; or reporting and
recordkeeping violations under subpart Y; and certain specified
situations such as the occurrence of a waterborne disease outbreak or
emergency and the availability of unregulated contaminant monitoring
data (see Sec. 141.201, table 1).
In 2016, Congress amended sections 1414(c)(1) and (2) of SDWA, in
the Water Infrastructure Improvements for the Nation (WIIN) Act, to
require the EPA's implementing regulations to ``specify notification
procedures for'' public notice no later than 24 hours after the water
system learns of each exceedance of the action level for lead
prescribed under Sec. 141.80(c) of 40 CFR part 141, ``or a prescribed
level of lead that the Administrator establishes for public education
or notification in a successor regulation promulgated pursuant to
section 1412'' if the exceedance ``has the potential to have serious
adverse effects on human health as a result of short term exposure''
(42 U.S.C. 300g-3(c)(1)(D) and (c)(2)(C)). In the 2021 LCRR rulemaking,
the EPA determined that ``such exceedances [of the lead action level]
have the potential to have serious adverse health effects on human
health as a result of short-term exposure'' and therefore warranted the
same treatment as other situations currently categorized as Tier 1
violations subject to the 24-hour notification requirements (86 FR
4239-4240, USEPA, 2021a). Under the revisions to subpart Q introduced
in the 2021 LCRR, CWSs and NTNCWSs with a lead action level exceedance
must provide public notice to persons served by the system within 24
hours of learning of the action level exceedance; that is, within 24
hours of the system receiving and calculating the 90th percentile
value, or after the data is submitted to the State and the State
calculates the 90th percentile. The notice must be in a form and manner
reasonably calculated to reach all persons served, as described in the
PN Rule (Sec. 141.202(c)). A copy of the notice must also be sent to
both the State and the EPA Administrator in accordance with the public
notification reporting requirements of Sec. 141.31(d), which was also
amended in the 2021 LCRR. This notice to the Administrator for a lead
action level exceedance is needed because section 1414(c)(2)(C)(iii) of
SDWA was amended by the WIIN Act to require that such notifications be
provided to the Administrator in addition to the State to allow the EPA
to identify whether the agency must provide notice where required in
section 1414(c)(2)(D). It provides that if a State with primacy
enforcement responsibility or the water system has not issued a notice
for a lead action level exceedance that has the potential to have
serious adverse effects as a result of short-term exposure, the
Administrator is required to issue the notice. Because the EPA does not
have any obligation to issue a Tier 1 public notice for violations of
other drinking water standards in States with primacy, there is no need
for the EPA to be notified in those other Tier 1 situations.
In addition to lead action level exceedances, there are violations
that also require public notification for both lead and copper (see
appendix A to subpart Q of part 141). Tier 2 public notification is
required for a treatment technique violation for both lead and copper
no later than 30 days after the system learns of the violation. Under
the revisions to subpart Q introduced in the 2021 LCRR, this includes
violations to Sec. Sec. 141.80 through 141.84, which describe
compliance dates of the rule, the action level, CCT, source water
treatment, and service line inventory and replacement requirements;
however, Sec. 141.80(c), which describes exceedances of the lead
action level, is excluded from the Tier 2 public notification
requirements since lead action level exceedances require Tier 1 public
notification. Tier 2 public notification is also required for
violations to Sec. 141.85(a) through (c) and (h), which concern the
content of public education materials and inclusion of information for
consumers with limited English proficiency, delivery of public
education after a lead action level
[[Page 86553]]
exceedance, supplemental monitoring for lead when there is a systemwide
lead action level exceedance, and outreach activities for community
water systems that fail to meet the LSLR goal under the 2021 LCRR. In
addition, Tier 2 public notification is required for violations to
Sec. 141.93, which describes flexibilities for small water systems to
comply with the rule.
As described in section IV.J.2.c of this preamble, the EPA proposed
in the LCRI to require consumer notification of supplemental monitoring
results for lead under Sec. 141.85(c)(3); the EPA proposed to exclude
this from the Tier 2 public notification requirements in subpart Q as
this pertains to notification of supplemental sampling conducted at
individual tap sampling sites, rather than systemwide. In addition, as
discussed in section IV.J.2.a of this preamble, the EPA proposed in the
LCRI to revise Sec. 141.85(h) to require outreach activities for
systems that fail to meet the average annual replacement rate, instead
of the goal LSLR rate as required under the 2021 LCRR. Violations to
this proposed requirement would require Tier 2 public notification
under the proposed LCRI. The EPA also proposed to revise subpart Q to
require Tier 2 public notification for violations to the proposed
additional public education and filter requirements for water systems
with multiple lead action level exceedances under Sec. 141.85(j). See
section IV.J of this preamble for more information about the proposed
public education requirements. Tier 3 public notification is required
for monitoring and testing procedure violations for both lead and
copper no later than one year after the system learns of the violation
or begins operating under a variance or exemption. These include
violations to Sec. Sec. 141.86 through 141.90 of the 2021 LCRR and
proposed LCRI. The EPA also proposed to require Tier 3 public
notification for violations to Sec. 141.92; as with violations to
other monitoring and testing requirements, the EPA believes that the
public should be notified when water systems fail to conduct required
sampling in schools and child care facilities.
The EPA also proposed to make conforming changes to the PN Rule as
a result of changes the agency proposed to make in the proposed LCRI
and the CCR related to the standard health effects language for lead in
appendix B to subpart Q of part 141, to be consistent with the proposed
revised lead health effects language required in public education and
the CCR. See section IV.J.2.d of this preamble for more information
about the proposed revised mandatory lead health effects language.
b. Summary of Comments and the EPA's Response
Some commenters opposed the Tier 1 24-hour public notification
requirement for a lead action level exceedance. Some commenters
recommended only requiring Tier 1 public notification for a lead action
level exceedance to customers served by a lead, GRR, or lead status
unknown service line. The EPA notes that the PN Rule requires water
systems to provide public notices to ``persons served by the water
system.'' The EPA also believes it is important for all persons served
by a water system to be notified of a systemwide lead action level
exceedance in the same time frame. While people served by a lead, GRR,
or unknown service line are at higher risk of exposure to lead in
drinking water than those who are not, other people may also be exposed
through lead-containing plumbing, particularly if there is a systemwide
issue such as increased corrosivity of the water. Therefore, it is
important for all persons served by the system to be notified so they
can decide whether to take protective actions to reduce their potential
exposure to lead in drinking water.
Some commenters disagreed with the Tier 1 designation for a lead
action level exceedance, arguing that lead does not pose ``acute''
public health risks like other Tier 1 situations and expressed concerns
with lead ALEs being determined based on the 90th percentile. The EPA
has determined that exceedances of the lead action level have the
potential to have serious adverse health effects on human health as a
result of short-term exposure and therefore warrant the same treatment
as other situations currently categorized as Tier 1 violations subject
to the 24-hour notification requirements. While the lead action level
is not a health-based level, there is no safe level of lead in drinking
water and the MCLG for lead is zero. In addition, there are life stages
(e.g., early childhood) where any lead exposure is especially
problematic (USEPA, 2013; American Academy of Pediatrics, 2024).
Some commenters requested that systems start the process to
distribute the public notice of a lead action level exceedance within
24 hours, but not have to complete delivery within 24 hours. The EPA
notes that the PN Rule requires systems to deliver all Tier 1 public
notices within 24 hours; this requirement is not limited to lead action
level exceedances as other situations also can require a Tier 1 public
notice (see Sec. 141.202). Moreover, the EPA has determined that it is
feasible for water systems to provide Tier 1 public notice of a lead
action level exceedance within 24 hours of the system learning of the
exceedance. The EPA notes that the PN Rule provides water systems with
several delivery options to ensure the Tier 1 public notice reaches all
persons served within 24 hours, including use of broadcast media,
posting the notice in conspicuous locations throughout the service
area, hand delivery of the notice, or using another method approved by
the primacy agency (Sec. 141.202(c)). Systems can prepare to provide
the notice by creating a notification template in advance and may
choose from several options for distribution of a public notification
that make it feasible to provide the notice to all persons served by
the system within 24 hours of learning of the exceedance.
Some commenters requested that to ensure consistent messaging in
public notifications, the EPA standardize the language or provide
resources and materials. They stated that this would also reduce the
burden on systems to develop the notices and on States to ensure their
quality and accuracy. The PN Rule includes minimum requirements for
what kind of information must be included in public notices (see Sec.
141.205(a) and (b)) for many drinking water contaminants, including
standardized health effects language for lead and copper as well as
other standardized language that applies to any drinking water
contaminants. States have the authority to implement their own
requirements for additional standardized language (see Sec.
142.16(a)(1)). In addition, the EPA has already provided public
notification resources and templates to assist water systems and States
with the revisions to subpart Q introduced in the 2021 LCRR. These
templates provide consistent language that also enables water systems
to provide system-specific information about the sources of lead in
their community and the actions the water system is taking to reduce
lead levels. See https://www.epa.gov/dwreginfo/lead-and-copper-rule-implementation-tools#TIER_1. The EPA also intends to provide updated
resources, templates, and example public notification materials to
assist water systems and States with the revisions to subpart Q
introduced in the LCRI.
Some commenters requested that the materials should use plain
language and be translated to different languages. The PN Rule requires
that the public notices do not include overly technical language (Sec.
141.205(c)(1)). The PN Rule also includes multilingual requirements for
public notices (Sec. 141.205(c)(2)). The PN Rule requires water
systems serving
[[Page 86554]]
a large proportion of non-English speaking consumers, as determined by
the primacy agency, to contain information in the appropriate
language(s) regarding the importance of the notice or contain a
telephone number or address where persons served may contact the water
system to obtain a translated copy of the notice or to request
assistance in the appropriate language.
Some commenters stated that failure to sample for lead in schools
and child care facilities, in accordance with Sec. 141.92, should not
be a Tier 3 violation. The EPA disagrees and notes that monitoring and
testing procedure violations constitute Tier 3 violations, therefore it
is appropriate for this to include violations to monitoring
requirements for lead in schools and child care facilities. As noted
earlier, the EPA believes that the public should be notified when water
systems fail to conduct required sampling in schools and child care
facilities. Tier 3 violations require public notification no later than
one year after the system learns of the violation. The EPA notes that
if the State has issued a waiver under Sec. 141.92(h), the water
system would not be in violation for not sampling in the schools and
child care facilities covered by the waiver (see section IV.L.2 of this
preamble for a discussion on waivers for school and child care facility
sampling).
c. Final Rule Requirements
Under the LCRI, a lead action level exceedance will continue to
trigger the requirement for Tier 1 public notification as required in
section 1414(c)(2)(C) of SDWA. The EPA has concluded that lead action
level exceedances have the potential to have serious adverse effects on
human health as a result of short-term exposure. SDWA mandates that
notice in such a situation be distributed ``as soon as practicable, but
not later than 24 hours after the PWS learns of the violation or
exceedance.'' While the feasibility analysis the EPA conducts in
establishing a NPDWR is not a prerequisite to implementation of this
statutory mandate, water systems have been complying with the Tier 1
24-hour notice requirement for other situations besides a lead action
level exceedance since the May 6, 2002, compliance date of the PN Rule,
and therefore should also be able to do so for lead action level
exceedances.
Because the EPA is not prescribing a level of lead for public
notification in the LCRI that is different from the lead action level
in Sec. 141.80(c), the EPA is updating appendix A to subpart Q of part
141 to reflect the agency's revised lead action level of 0.010 mg/L in
the contaminant description in the left column (see section IV.F.4 of
this preamble for more information about the action level). As noted in
the proposed LCRI (88 FR 84968, USEPA, 2023a), water systems must
comply with this provision starting October 16, 2024. Beginning on that
date, systems must comply with the Tier 1 PN requirement for a lead
action level of 0.015 mg/L, and beginning on the final LCRI compliance
date, systems must comply with the revised lead action level of 0.010
mg/L (see section IV.F.4 of this preamble).
Water systems required to conduct Tier 1 public notification for a
lead action level exceedance must send a copy of the notice to the
Administrator and head of the primacy agency within 24 hours of
learning of the exceedance in accordance with Sec. 141.31(d)(2).
Within 10 days of completing the public notification requirements, the
water system must also send certification of compliance along with a
copy of the distributed notice to the primacy agency (Sec.
141.31(d)(1)); this reporting requirement also applies to all other
public notices required under the PN Rule (40 CFR part 141, subpart Q).
When the EPA amended Sec. 141.31(d) in the 2021 LCRR to add the
requirement for providing a copy of the Tier 1 public notice of a lead
action level exceedance to the Administrator and head of the primacy
agency within 24 hours of learning of the exceedance (Sec.
141.31(d)(2)), the agency inadvertently removed the pre-existing
requirement in Sec. 141.31(d)(1) to provide copies of Tier 1 public
notices for violations and situations involving drinking water
contaminants other than lead (e.g., violations of the MCL for E. coli,
waterborne disease outbreaks, etc.) to the primacy agency. The 2021
LCRR amendment also inadvertently left out a requirement for water
systems to provide a copy of the distributed Tier 1 public notice for a
lead action level exceedance when certifying compliance to the primacy
agency. In the LCR, prior to the revisions introduced by the 2021 LCRR,
a copy of all distributed public notices was required to be provided
with certification to the primacy agency within 10 days of completing
the public notification requirements. For the final LCRI, the EPA is
making technical corrections to the requirements by restoring the text
that was deleted in the 2021 LCRR version of Sec. ; 141.31(d)(1) to
prevent these errors introduced in the 2021 LCRR from being
implemented. This technical correction will ensure that representative
copies of all distributed public notices must be provided to the
primacy agency with certification within 10 days of completing the
public notification requirements, in addition to requiring a copy of
Tier 1 public notices of lead action level exceedances to the
Administrator and head of the primacy agency within 24 hours. The EPA
is requiring water systems to continue to comply with Sec.
141.31(d)(1) as codified on July 1, 2020, between October 16, 2024, and
the LCRI compliance date to avoid any lapse in requirements (see
section V.B of this preamble for discussion of compliance dates).
The EPA is finalizing revisions to the lead and copper violations
that require Tier 2 and Tier 3 public notification in appendix A to
subpart Q of part 141. Water systems must conduct Tier 2 public
notification for treatment technique violations to Sec. Sec. 141.80
(except paragraph (c)) through 141.84 and 141.85(a) through (c) (except
paragraph (c)(3)), which describe compliance dates of the rule, CCT,
source water treatment, service line inventory and replacement
requirements, the content of public education materials and inclusion
of information for consumers with limited English proficiency, delivery
of public education after a lead action level exceedance, and
supplemental monitoring for lead. As noted earlier, Sec. 141.80(c)
which describes exceedances of the lead action level is excluded from
the Tier 2 public notification requirements since lead action level
exceedances require Tier 1 public notification. The EPA is also
excluding from the Tier 2 public notification requirements violations
to Sec. 141.85(c)(3), which requires a water system to notify a
consumer of their supplemental lead sampling results under the LCRI. In
addition, Tier 2 public notification is required for violations to
Sec. 141.93, which describes flexibilities for small water systems to
comply with the rule. The EPA is finalizing requirements for water
systems to conduct Tier 2 public notification for violations to Sec.
141.85(h), which requires outreach activities for systems that do not
meet the mandatory service line replacement rate, and Sec. 141.85(j),
which requires additional public education and filter requirements for
water systems with multiple lead action level exceedances under the
LCRI. Tier 3 public notification will be required for lead and copper
monitoring and testing procedure violations to Sec. Sec. 141.86
through 141.90 and 141.92, which concern tap water monitoring, water
quality parameter monitoring,
[[Page 86555]]
source water monitoring, analytical methods, reporting requirements,
and sampling for lead in schools and child care facilities.
The EPA is finalizing conforming changes to the PN Rule as a result
of changes the agency is making in the LCRI and the CCR related to the
standard health effects language for lead in appendix B to subpart Q of
part 141, to be consistent with the revised lead health effects
language required in public education and the CCR. See section IV.J.2.d
of this preamble for more information about the revised mandatory lead
health effects language.
3. Definitions
a. Rationale and Proposed Requirements
In accordance with the EPA's goal to simplify the LCRI, the EPA
proposed new and revised definitions for inclusion in Sec. 141.2
(USEPA, 2023a). The EPA proposed new definitions to conform to new
regulatory requirements and updated existing definitions to conform to
changes made to existing requirements. For the LCRI, the EPA proposed
new and updated definitions for ``action level,'' ``child care
facility,'' ``connector,'' ``Distribution System and Site Assessment,''
``find-and-fix,'' ``galvanized requiring replacement,'' ``lead service
line,'' ``lead status unknown service line,'' ``newly regulated public
water system,'' ``partial service line replacement,'' ``service line,''
``small water system,'' ``tap monitoring period,'' ``tap sampling
period,'' and ``wide-mouth bottle.'' The EPA proposed to remove the
definition of ``full service line replacement,'' ``gooseneck, pigtail,
or connector,'' ``partial lead service line replacement,'' ``trigger
level,'' and ``tap sample monitoring period.'' The EPA also proposed
minor revisions to select definitions for ``elementary school,''
``galvanized service line,'' ``pitcher filter,'' ``secondary school,''
``medium-size water system'' (renamed and updated as ``medium water
system''), ``optimal corrosion control treatment,'' ``tap sampling
protocol,'' and ``system without corrosion control treatment.'' The
LCRI proposal contains how the EPA proposed to add, revise, or remove
the definitions listed above.
b. Summary of Comments and the EPA's Response
Commenters suggested various revisions to the proposed definition
of ``service line,'' which was defined as ``a portion of pipe which
connects the water main to the building inlet. Where a building is not
present, the service line connects the water main to the outlet.''
Commenters noted that there may be some situations where a water main
does not exist in the system (e.g., a single building with a service
line connecting the wellhouse to the building), and, therefore, the
definition should be revised accordingly to accommodate for other
distribution system configurations. The EPA acknowledges that water
mains may not be present in all cases where there are service lines, as
described in the EPA's ``Developing and Maintaining a Service Line
Inventory: Small Entity Compliance Guide'' (or LCRR Small Systems
Guidance) guidance document, which includes examples of service lines
that are not connected to a water main (e.g., connected to a pressure
tank or if they draw water directly from a well) (USEPA, 2023n). Thus,
the EPA is defining service line in the final rule to reflect that
service lines may be connected to a ``water main'' or ``other conduit
for distributing water to individual consumers or groups of
consumers.'' The reference to ``water main'' in the proposed definition
was for descriptive purposes, and commenters did not identify a
technical, policy, or legal reason to exclude service lines in the
absence of a water main. This addition to the definition clarifies that
the descriptive term ``water main'' was not intended to reduce the
scope of the service line inventory or replacement requirements that
apply to all services lines (i.e., the lines that distribute water from
the PWS's conduit for moving water from its source to its customers and
consumers).
Commenters recommended that the EPA exclude pipes not anticipated
for potable use from the service line definition because they would not
result in human lead exposure. The EPA disagrees with this
recommendation. The service lines covered by the rule may be used for
the distribution of potable water regardless of whether that is their
intended use. Water lines used exclusively for non-potable applications
does not preclude the possibility that the water lines could in fact be
used for human consumption as well. An NPDWR provision that applies
only to where the water is actually used for human consumption is
administratively unworkable and difficult to implement. See section
IV.D.1 of this preamble for information related to inventorying all
service lines in a water system's service area regardless of intended
potable or non-potable applications.
Commenters suggested that the EPA clarify whether water lines in a
community downstream from a master meter or other single point of
connection meet the proposed definition of ``service line.'' In some
situations, an apartment complex, manufactured housing community, or
other multi-family entity will have a master meter at the property line
of the community. If these communities are considered part of or within
a CWS or NTNCWS service area, then that water system is required to
inventory all service lines, even if they are beyond a master meter,
just as the system is required to inventory service lines between a
water main and a single-family residence regardless of the presence of
a meter between the water main and the building inlet. See section
IV.D.1 of this preamble for information related to master meters and
inventorying all service lines in a water system's service area.
Some commenters disagreed with the EPA's proposed deletion of
references to ownership in the service line definition. Commenters were
concerned that without mention of ownership, water systems could define
a service line in multiple parts, such as the portion that is system
owned. The EPA disagrees with these comments because the ownership is
not relevant to the system's ability to inventory or replace service
lines; instead, it is based on control, which the final rule equates to
access. Additionally, statements about access or control are related to
regulatory requirements, are included in Sec. 141.84, and are less
suited for inclusion in the service line definition. See section IV.B
of this preamble for further discussion on access and control. The EPA
also notes that the final definition includes the entire service line,
stating that the service line connects to the building inlet (or the
outlet where a building is not present).
Commenters recommended that the EPA clarify or define the term
``building inlet'' within its service line definition. Because there
are a multitude of plumbing configurations that can exist, it can be
challenging to encapsulate all potential configurations in a single,
national-level definition. However, the term ``building inlet'' best
encapsulates these configurations. Commenters expressed concerns with
use of the term ``building inlet'' because systems may interpret the
definition in a way that results in short service line segments
remaining in place past the building inlet after full service line
replacement. The final LCRI mandates full LSLR, which requires the
removal of all lead material along the service line and associated lead
connector.
While some commenters agreed with the proposed connector length of
two feet in their comments on the proposed rule, others stated that
their water
[[Page 86556]]
system uses connectors greater than two feet (e.g., three, four, and
five feet) and recommended the EPA update the connector definition to
account for these longer connectors. While no commenter provided
additional data beyond anecdotes from their system and State, the EPA
evaluated data on connector length from current manufacturers websites
and historical sources while considering the lengths recommended by
commenters (The Cadmus Group, 2024a; 2024b). Many recent sources define
lead connectors at two feet; however, it is unclear if these sources
cite this length because it was included in the EPA's LCRR Inventory
Guidance (USEPA, 2022c). The EPA did not find connectors currently sold
by manufacturers, instead finding information suggesting connectors are
not currently used in drinking water infrastructure because modern
flexible alternatives for piping eliminate the need for them. While the
EPA found generally limited data, one historical plumbing and heating
materials catalogue showed lead connectors sold and widely distributed
at lengths ranging from 18 to 36 inches (USEPA, 2022c). Thirty-six
inches (three feet) was one of the pipe lengths recommended by
commenters. Accordingly, the EPA chose to update the connector
definition to encompass lead pipes up to three feet in length. While
individual water systems indicated in their comments use of connectors
in greater length, one of the primary goals of the LCRI is to replace
lead and GRR service lines as quickly as feasible. Lead pipes are
anticipated to contribute more lead into drinking water with increasing
length (Deshommes et al., 2016; Sandvig et al., 2008), so defining
these longer lead pipes as connectors instead of LSLs would exclude
them from the system's service line replacement program, resulting in
potentially delayed replacement from these significant lead sources.
Commenters also stated that the connector definition should exclude
reference to a specific length, as water systems may not know the
length of connectors in their distribution system. The EPA acknowledges
that some systems may lack records which indicate connector length;
however, other commenters supported the clarity that a defined length
provides for water systems and States to distinguish whether a lead
pipe is subject to requirements for lead connectors or LSLs (i.e.,
inventorying, replacement, tap sampling, and public education).
Additionally, the EPA is concerned that lack of a clear definition
could create a loophole by which systems avoid replacing LSLs as part
of their service line replacement program by classifying them as
connectors. Thus, the final LCRI defines connector as piping limited to
three feet that can be bent and is used for connections between service
piping, typically connecting the service line to the main.
The EPA received comments suggesting that the EPA should remove the
clause that galvanized service lines that ``ever were'' downstream of
an LSL be considered GRR, or the GRR definition should not include
galvanized service lines where systems are unable to show no upstream
LSL has ever been in place. Such commenters argued that the lead
exposure risks to public health decrease over time and that systems
should be permitted to conduct studies and adapt their replacement
strategy based on observed GRR service line lead levels and site-
specific conditions in their water system. One commenter provided
sampling data from GRR service lines in its system showing lead levels
similar to non-lead lines in that system to demonstrate the lower risk
of lead release of GRR service lines. The EPA disagrees that galvanized
service lines that were ever downstream of an LSL stop being a risk of
lead exposure after any period of time. In the proposed LCRI, the EPA
referenced a study showing that galvanized service lines downstream of
LSLs could trigger lead releases over the remaining pipe lifetime
depending on the depth of the lead scales in the pipes (McFadden et
al., 2011). Thus, even low lead levels measured during a GRR service
line's lifetime may not indicate the end of a public health risk, and
future water quality changes or disturbances could still cause release
of lead. These lead particulate releases may not be captured by tap
sampling referenced by the commenter. Therefore, the EPA is finalizing
the requirements for this definition to include galvanized service
lines that were ever downstream of an LSL, regardless of how long ago
the LSL may have been replaced.
The EPA recognizes that some systems may lack records demonstrating
there never was an upstream LSL. The final LCRI includes these
galvanized service lines in the definition of an GRR service line due
to the importance of ensuring all GRR service lines are replaced. While
this may result in the replacement of some galvanized service lines
that were never downstream of an LSL, this broad approach ensures that
all GRR service lines, which can contribute significant lead into
drinking water, are replaced as quickly as feasible. In this scenario,
the final LCRI's definition of GRR service lines include these service
lines as GRR to ensure these potentially significant lead sources are
not left out of the system's service line replacement program. The EPA
expects that as water systems' inventories improve, they may gain
additional information that can help identify which GRR service lines
were never downstream of an LSL, avoiding the costs to replace
galvanized service lines that were never downstream of an LSL. The LCRR
Inventory Guidance recommends that water systems treat the inventory as
a ``living dataset that is continuously improved over time as the
inventory is updated'' (USEPA, 2022c). As water systems gain experience
with their inventory and utilize additional methods to categorize
service line materials, such as predictive modeling, water systems may
be able to better distinguish between galvanized service lines that are
GRR service lines and those which are non-lead.
The EPA disagrees that galvanized service lines with upstream lead
connectors should be classified as GRR service lines. While any source
of lead, including lead connectors, can potentially contribute lead
which can adsorb onto downstream galvanized service lines, the final
rule's service line replacement requirements are designed to prioritize
replacement of the most significant contributors of lead into drinking
water (i.e., LSLs and GRR service lines) as quickly as feasible.
Galvanized service lines downstream of an LSL, which may be tens of
feet long, are likely to contribute more lead into drinking water than
a galvanized line downstream of a lead connector, which the final rule
defines as no greater than three feet in length. Additionally, the
proposed rule notes that the poor condition of galvanized lines may
result in these pipes breaking or bursting during construction
following re-pressurization after main replacement or replacement of a
service line or connector, necessitating replacement of the entire
service line. Replacing galvanized service lines downstream of a lead
connector (including replacing the lead connector as encountered) in
conjunction with other infrastructure work, as opposed to replacing
them as part of the system's mandatory service line replacement program
in the LCRI, would not only allow systems to prioritize removing the
most significant lead sources (i.e., LSLs and GRR service lines) as
quickly as feasible, it would also facilitate a more cost-efficient
approach to update drinking water
[[Page 86557]]
infrastructure that would allow more resources to be devoted to
replacement of lead and GRR service lines.
The EPA is revising the proposed definition of ``wide-mouth
bottles.'' While the proposed definition used outer diameter to specify
the minimum mouth width, commenters noted that inner diameter is the
more typical specification. Commenters also raised concerns about the
supply and commercial availability of bottles using the proposed 55-
millimeter outer diameter threshold and colored or tinted bottles, the
latter which some water systems use to better distinguish between the
first- and fifth-liter samples from the second, third, and fourth
liters for sampling at LSL sites. The EPA agrees with multiple
commenters' recommendations for the EPA to use the inner-diameter and
to reduce the size to 40 millimeters. The final rule's definition
includes a reduced inner-diameter mouth width of 40 millimeters. This
revision addresses commenters' concerns about using more common
diameter specifications as well as concerns about adequate bottle
availability while maintaining sufficient width for sample collection
at full flow when lead is most likely to be detected.
One commenter also noted that the proposed rule retained the 2021
LCRR definition for ``first draw sample;'' however, under the proposed
LCRI, the phrase ``first draw'' is found in just one portion of the
regulatory language, under Sec. 141.92(f)(2)(i), and that in all other
locations where ``first draw'' is used in the 2021 LCRR, the term
``first draw'' is replaced with ``first-liter.'' The commenter
recommended that the EPA delete the definition for ``first draw
sample'' and provide a definition for ``first-liter sample'' instead.
The EPA agrees with the commenter and, therefore, made this change for
the final LCRI, adding that it would improve rule implementation and be
consistent with having a definition which specifies ``fifth-liter
sample.''
c. Final Rule Requirements
For the final rule, the EPA is making several revisions to the
proposed definitions proposed for Sec. 141.2. The EPA is revising the
proposed definition of ``service line'' to include pipes which are not
connected to water mains, as service lines may be connected to other
conduits for distributing water to individual consumers or groups of
consumers (e.g., a direct connection from a well to a single building).
The EPA is increasing the proposed defined connector length from two to
three feet. The EPA is also revising the proposed definition of ``wide-
mouth bottle'' to reduce the diameter from 55 millimeters to 40
millimeters, and to specify that the diameter refers to the inner
diameter.
The EPA is maintaining the following new or updated definitions
from the proposed LCRI: ``action level,'' ``child care facility,''
``Distribution System and Site Assessment,'' ``galvanized requiring
replacement service line,'' ``lead service line,'' ``lead status
unknown service line,'' ``newly regulated public water system,''
``partial service line replacement,'' ``small water system,'' ``tap
monitoring period,'' and ``tap sampling period.''
The EPA is also maintaining proposed minor revisions to the
following definitions: ``elementary school,'' ``galvanized service
line,'' ``pitcher filter,'' ``secondary school,'' ``medium-size water
system'' (revised as ``medium water system''), ``optimal corrosion
control treatment,'' ``tap sampling protocol,'' and ``system without
corrosion control treatment.'' The final rule eliminates the following
definitions: ``find-and-fix,'' ``full service line replacement,''
``gooseneck, pigtail, or connector,'' ``partial lead service line
replacement,'' ``lead trigger level,'' and ``tap sample monitoring
period.''
In the final LCRI, the EPA is adding a new definition for ``first-
liter sample'' and eliminating the definition for ``first draw
sample.'' The definitions are worded slightly differently but similarly
reference the first one-liter sample of tap water collected in
accordance with the rule's required tap sampling protocol.
V. Rule Implementation and Enforcement
A. General
1. Rationale and Proposed Requirements
The United States Environmental Protection Agency (EPA) proposed
requirements to the National Primary Drinking Water Regulation (NPDWR)
for lead and copper to improve its oversight and enforcement. For
example, the EPA proposed to eliminate the trigger level, (see section
IV.F.4 of this preamble), simplify the small system flexibility
provision (see section IV.I.1 of this preamble), streamline public
education following elevated lead measurements (see section IV.J.2 of
this preamble), increase reporting by both States (see section V.D of
this preamble) and systems (see section IV.N of this preamble), and
require enhanced sampling for detecting corrosion control issues in
lead service line (LSL) systems (see section IV.L.1 of this preamble).
The EPA intends to develop guidance and support materials to support
implementation and enforcement of the Lead and Copper Rule Improvements
(LCRI). The agency has already developed materials and technical
assistance to support service line inventory and lead service line
replacement (LSLR) including guidance on service line inventories.
Additionally, the EPA has launched several technical assistance
programs specifically to assist with LSLR, including the Lead Service
Line Replacement (LSLR) Accelerators and the Get the Lead Out (GLO)
Initiative.
2. Summary of Comments and the EPA's Response
Commenters expressed general concern that the proposed rule placed
additional workload burden on States and that more resources in the
form of funding, staffing, and time would be needed to effectively
implement the rule. The EPA has estimated the additional costs for
States to implement and enforce the rule in the proposed and final
rules. See the final LCRI Economic Analysis (USEPA, 2024a) chapter 4,
section 4.4 for more information about State costs and chapter 6 of the
final LCRI Economic Analysis for the overall costs and benefits of the
final rule. The EPA worked to streamline State requirements for the
final LCRI wherever possible (see section V.D of this preamble for a
discussion on reporting and recordkeeping). While States will have
additional responsibilities under the final LCRI compared to previous
versions of the rule, the rule will also provide greater health risk
reduction benefits and thus justifies the associated costs (see chapter
3, section 6.3 of the final LCRI Economic Analysis). See section III.G
of this preamble for information on available funding sources to
support implementation of the LCRI requirements.
Commenters also expressed concerns that the additional burdens on
States would be compounded by additional burdens associated with the
EPA's final NPDWR for six per- and polyfluoroalkyl substance (PFAS),
which had yet to be finalized at the time the comment period was open
for the LCRI. The EPA notes that Safe Drinking Water Act (SDWA) section
1412(b)(3)(C)(i)(III) requires that the agency consider the costs and
benefits that will result solely a result of compliance with the
proposed rule and not resulting from other proposed or final
regulations. Therefore, the EPA did not include costs and benefits
associated with the PFAS rule in the final LCRI Economic Analysis.
However, the agency did consider the costs to States and regulated
water systems of implementing the new PFAS rule in the
[[Page 86558]]
Economic Analysis for the PFAS NPDWR (USEPA, 2024f, Section 5).
Commenters noted that the complexity of the reporting and
recordkeeping requirements on both States and systems in the LCRI
require an appropriate data system to manage the data requirements of
the LCRI. Some commenters also specifically mentioned the need for
updates to the Safe Drinking Water Information System (SDWIS) to match
the reporting requirements of the LCRI. Commenters also expressed a
concern that these updates would not be possible in time for LCRI
implementation. The EPA remains committed to providing high quality
tools to assist States with their implementation of the LCRI. The EPA
intends to support states' data management needs through both SDWIS/
State and the development of Drinking Water State Federal Tribal
Information Exchange System (DW SFTIES). The EPA intends to have SDWIS
State available for State use by the compliance date of the LCRI. The
EPA is currently developing the DW SFTIES, which is an updated system
that will replace SDWIS. The EPA will also work closely with State
program and information technology staff on LCRI needs for DW SFTIES
development. The EPA intends to provide LCRI Data Entry Instructions,
which will provide detailed guidance to States regarding the LCRI
monitoring, recordkeeping, and reporting requirements.
Commenters recommended that the EPA strengthen reporting
requirements to increase enforcement of the LCRI provisions. Some
commenters noted the LCRI must have timely and transparent reporting
requirements to ensure compliance. For the final rule, the EPA
carefully considered all reporting requirements to ensure that the
required reporting elements provide value to the State and/or the EPA
for oversight or enforcement, and do not create unnecessary burdens.
(See section IV.N of this preamble for discussion on reporting and
recordkeeping requirements of the final LCRI.) Commenters suggested
that the LCRI should require direct electronic reporting of sample
results from labs and/or systems to a database shared by the EPA and
the States. The EPA requires reporting by the States to submit
quarterly and annual reports in a format prescribed by the agency in
Sec. 142.15(a). At this time, States use SDWIS/Fed to meet these
reporting requirements. While the EPA does not require direct
electronic reporting of sample results from systems, the EPA recently
promulgated the Consumer Confidence Report (CCR) Rule Revisions to
require States to submit compliance monitoring data to the EPA (89 FR
45980, USEPA 2024c).
3. Implementation and Enforcement of the Final Rule
The final rule will provide for improved oversight and enforcement
of the NPDWR for lead and copper relative to the Lead and Copper Rule
(LCR) and 2021 Lead and Copper Rule Revisions (LCRR). The EPA intends
to develop and provide guidance and tools to support rule
implementation. The EPA provides water technical assistance (WaterTA)
which supports communities to build technical, financial, and
managerial capacity that results in more communities with applications
for Federal funding, quality water infrastructure, and reliable water
services. The EPA has also launched the GLO Initiative in light of the
ongoing success of the LSLR Accelerator pilot to expand LSLR technical
assistance to communities across the country. The EPA additionally
outlines funding that can be used for LCRI implementation such as
through the Drinking Water State Revolving Fund (DWSRF), Reducing Lead
in Drinking Water grants, the Water Infrastructure Finance and
Innovation Act (WIFIA) program, and other Federal and State funding
opportunities (see section III.G of this preamble).
B. What are the rule compliance dates?
1. Rationale and Proposed LCRI Revisions
In the LCRR review notification published on December 17, 2021, the
agency stated its intention to propose revisions to the 2021 LCRR
compliance deadlines ``only for components of the rule that the Agency
will propose to significantly revise'' (86 FR 71580, USEPA, 2021b) in
the LCRI. In the proposed LCRI, the EPA proposed to replace most of the
2021 LCRR with the LCRI and proposed to require certain 2021 LCRR
requirements to apply between the 2021 LCRR's October 16, 2024,
compliance date and the final LCRI compliance date.
The EPA proposed a compliance date of three years after the
promulgation of the final LCRI and proposed for water systems to
continue to comply with the LCR (Sec. Sec. 141.80 through 141.91)
until that date, except for the 2021 LCRR's initial LSL inventory,
notification of service line material, and the associated reporting
requirements. The EPA also stated that the agency was not changing the
compliance date for the Tier 1 public notification (PN) requirement for
a lead action level exceedance under subpart Q that was introduced
under the 2021 LCRR, and that systems must comply with that provision
starting October 16, 2024. The EPA did not propose to change the
compliance date of the revisions to 40 CFR part 141, subpart O, that
were included under the 2021 LCRR. With these noted exceptions, the EPA
proposed a direct transition from the LCR to the LCRI for all rule
provisions so that States and water systems could focus their resources
on preparing and updating service line inventories and conducting Tier
1 PNs following lead action level exceedances, in addition to preparing
for LCRI requirements, such as preparing their service line replacement
plan (88 FR 84967, USEPA, 2023a).
The EPA requested comment on these proposed compliance dates and
also whether it is practicable for water systems to implement any of
the proposed LCRI requirements sooner than three years from the date
the LCRI is finalized. Specifically, the EPA requested comment on
whether water systems should be required to conduct the risk mitigation
measures after full and partial service line replacement and service
line disturbances and related reporting requirements (Sec. Sec.
141.84(h), 141.85(g), and 141.90(e)(6) and (f)(6) of the proposed
LCRI). The EPA received a range of comments on these issues including
requests for both earlier and later LCRI compliance dates.
2. Summary of Public Comments and the EPA's Response
a. Requirements for Water Systems Between October 16, 2024, and the
LCRI Compliance Date
The EPA received comments supporting the EPA's proposal to have
water systems continue to comply with the requirements of the LCR,
except for the few requirements introduced in the 2021 LCRR that the
EPA proposed to maintain, until the LCRI compliance date. According to
commenters, complying with requirements introduced in the 2021 LCRR
that the EPA proposed to replace in the LCRI would not be an
appropriate use of resources and could distract water systems from
preparing to comply with the LCRI. Commenters stated that the EPA
should delay the compliance date for submitting the initial inventory
to provide water systems more time to accurately identify service line
material according to the EPA guidance. Several commenters also
requested that EPA clarify the compliance dates for the LSLR and tap
sampling plans and the
[[Page 86559]]
compliance tap sampling requirements introduced in the 2021 LCRR.
The EPA also received comments from water systems and utility
organizations asking the agency to delay the provisions that water
systems will not be required to comply with starting on October 16,
2024, by at least one year, prior to finalizing the LCRI. The
commenters stated that until the final LCRI is promulgated, water
systems will assume they are required to comply with all the
requirements of the 2021 LCRR starting October 16, 2024, and may invest
time and resources on requirements that may be revised in the final
LCRI.
The EPA notes the broad commenter support for requiring water
systems to transition directly from the LCR to the LCRI. Commenters
cited wasted time and resources complying with parts of the LCRR that
will be replaced with the LCRI instead of preparing for implementation
of the LCRI. The EPA agrees that water systems should continue to
comply with the pre-2021 LCR until the LCRI compliance date, with the
exceptions identified in Sec. 141.80(a) (i.e., the initial LSL
inventory, notification of service line material, and the associated
reporting requirements, and Tier 1 PN following a lead action level
exceedance). The EPA is finalizing significant changes relative to the
2021 LCRR meaning that many requirements in the 2021 LCRR will be
rendered obsolete upon the LCRI compliance date. For example, in the
final LCRI, the EPA is removing the lead trigger level and many of the
associated actions that are required after a trigger level exceedance,
including reporting to States, which could demand significant
resources. Additionally, as discussed in the proposed rule, many of the
2021 LCRR requirements are interrelated, so changes to one rule area
impact other areas (see 88 FR 84967-84968, USEPA, 2023a). Accordingly,
the EPA is not requiring water systems to comply with requirements
under the 2021 LCRR that will be replaced under the final LCRI prior to
the LCRI compliance date, because of the significant level of effort
required of water systems to plan for compliance with the LCRI, as well
as the complexity of the 2021 LCRR. Because of the limited time and
resources available to water systems and States, their time and
resources are better spent complying with the specifically identified
2021 LCRR requirements with a compliance date of October 16, 2024 (as
noted above), preparing to implement the final LCRI, and voluntarily
replacing LSLs ahead of the LCRI compliance date using resources that
are currently available, such as the Bipartisan Infrastructure Law
(BIL) funding. Requiring water systems and States to implement the 2021
LCRR in its entirety between October 16, 2024, and the compliance date
of the LCRI would waste these limited resources and compromise the
ability of systems and States to effectively implement the LCRI, and
thereby delay the greater public health benefits associated with
implementation of the LCRI. For example, by focusing States' and
systems' efforts on establishing service line replacement programs
rather than implementing 2021 LCRR provisions that have been changed or
eliminated, the LCRI will result in systems removing more lead and
galvanized requiring replacement (GRR) service lines, which, where LSLs
are present, they are the most significant source of drinking water
lead exposure.
The EPA is maintaining the October 16, 2024, compliance date for
selected requirements first promulgated in the 2021 LCRR rulemaking
that the agency is not significantly revising in the final LCRI. Some
minor changes were made to ensure consistency across requirements. In
the final rule, the EPA is correcting the citations in Sec.
141.80(a)(4)(i) for the reporting requirements associated with
notifications of a known or potential LSL as codified on July 1, 2023
(Sec. 141.90(e)(13) and (f)(4)). Additionally, for the final LCRI, the
EPA is not requiring water systems to comply with Sec. 141.84(a)(6) as
codified on July 1, 2023. This requirement references submitting an
updated inventory to the State in accordance with Sec. 141.90(e)(3)
and requires water systems to update the publicly available inventory
no less frequently than the required updates to the State. The
requirement in Sec. 141.90(e)(3) as promulgated in the 2021 LCRR ties
the timing of submission of the inventory to the State to the
applicable tap monitoring frequency. Under the LCRI, systems are
required to prepare and submit the baseline inventory by the compliance
date of the LCRI, and all systems will be required to update that
inventory on an annual basis (Sec. Sec. 141.84(b)(1) and
141.90(e)(4)). Implementation of a requirement to update the LCRR
inventory based on monitoring schedules for only the three years before
the LCRI compliance date would be challenging for States and systems to
manage while also preparing the updated initial inventory to comply
with the LCRI. Many systems are on reduced monitoring and therefore,
many systems would only submit an update once, if at all during those
three years. For example, water systems that do not monitor between
submitting an initial inventory and the LCRI compliance date would not
be required to submit an updated inventory, or water systems who are on
triennial monitoring would only be required to submit an update once.
Additionally, water systems will be preparing to submit the LCRI
baseline inventory by the LCRI compliance date, and submission of
updates to the 2021 LCRR initial inventory would likely distract from
that effort. State resources are best directed towards the LCRI
baseline inventory and service line replacement. Additionally, not
requiring an annual update of the 2021 LCRR inventory until the LCRI
compliance date would not decrease public health protection in the
short-term. The EPA notes that between October 16, 2024, and the LCRI
compliance date, water systems are required to identify and track
service line materials in the inventory on an ongoing basis (Sec.
141.84(a)(5) as codified on July 1, 2023) and comply with the public
education requirement to notify persons served by a lead, GRR, or
unknown service line. Because these requirements will remain applicable
prior to the LCRI compliance date, public health protection will not be
diminished by the EPA not requiring water systems to submit an updated
version of the 2021 LCRR initial service line inventory to the State
prior to the LCRI compliance date. The EPA encourages water systems to
continue to identify unknown service lines and conduct replacements
prior to the LCRI compliance date while developing the LCRI baseline
inventory. Water systems that update their initial LCRR inventory
during this interim period to identify the material of any unknown
service lines will reduce their burden if any of the lines are non-lead
because they would no longer be required to provide annual notification
of service line material to persons served by that service line.
The EPA is not changing the October 16, 2024, compliance date for
Tier 1 PN following a lead action level exceedance for the reasons
provided in the LCRI proposal (88 FR 84968, USEPA, 2023a). Between
October 16, 2024, and the LCRI compliance date, water systems are
required to conduct Tier 1 PN following an exceedance of the lead pre-
LCRI action level of 0.015 mg/L. The EPA notes that the compliance date
for the new lead action level of 0.010 mg/L is three years from the
date the final LCRI is published. In the final LCRI, the EPA is
retaining the October 16, 2024, date for additional associated
provisions, such as the use of the mandatory health
[[Page 86560]]
effects language in Sec. 141.85(a)(1)(ii) as introduced in the 2021
LCRR starting October 16, 2024. This change will ensure consistency in
messaging between the Tier 1 PN notices after a lead action level
exceedance and any public education materials that are distributed
prior to the LCRI compliance date. The EPA also notes that systems must
comply with the reporting requirements in Sec. 141.31(d)(2) as
codified on July 1, 2023, which requires the water system to provide a
copy of the Tier 1 notice for a lead action level exceedance to the
Administrator and to the head of the primacy agency as soon as
practicable, but not later than 24 hours after the system learns of the
exceedance. However, in the final LCRI, the EPA is requiring water
systems to continue to comply with Sec. 141.31(d) as codified on July
1, 2020, between October 16, 2024, and the LCRI compliance date. This
is to correct an error introduced in the 2021 LCRR that inadvertently
removed the requirement for water systems to submit a representative
copy of other types of Tier 1 notices to the State when certifying the
system has complied with the notice requirements. See section IV.O.2 of
this preamble for further discussion. Additionally, in the final LCRI,
the EPA is also retaining the October 16, 2024, compliance date for the
reporting requirement in Sec. 141.90(h)(3) as codified on July 1,
2023. This provision requires States to provide the results of the 90th
percentile lead and copper calculations, in writing, to the water
system within 15 days of the end of the tap sampling period in
instances where the State calculates the water system's 90th percentile
level. The EPA is maintaining the October 16, 2024, compliance date for
this provision in the final LCRI to facilitate timely compliance with
the Tier 1 PN requirement for a lead action level exceedance.
In the final LCRI, the EPA is also adding specific citations in
Sec. 141.80(a)(4)(i) to identify which requirements apply during the
time period between October 16, 2024, and the LCRI compliance date that
relate to the provisions discussed in the proposal. For example, the
EPA is clarifying that between October 16, 2024 and the LCRI compliance
date water systems must comply with the definitions in Sec. 141.2 as
codified on July 1, 2020, that correspond to the requirements in
Sec. Sec. 141.80 through 141.91 as codified on July 1, 2020. See
section V.B.3, Sec. 141.80(a)(4), and section II.C of this preamble
for additional information.
The EPA disagrees with commenters who indicate that the agency
should change the compliance date for submitting the initial inventory.
Water systems and States are aware of and should be prepared to meet
this deadline. The EPA provided Guidance for Developing and Maintaining
a Service Line Inventory in August 2022 (USEPA, 2023n). The EPA's
December 17, 2021, Federal Register notification on the review of the
LCRR and the December 6, 2023, proposed LCRI specifically stating that
the agency expected systems to submit an initial inventory by October
16, 2024 (86 FR 71574, 71579, USEPA, 2021b; 88 FR 84968, USEPA, 2023a).
Inventories are critical to support lead reduction efforts because they
help systems identify the location of lead and GRR service lines, allow
customers to know if they are served by those lines, and evaluate the
extent of these sources in the drinking water system. With the
inventory, water systems will be able to conduct the required
notification of persons served by a lead, GRR, or unknown service line
and provide them with steps they can take to reduce their lead
exposure. Additionally, the inventory is integral to help water systems
take actions that will facilitate compliance with the LCRI: identify
sampling locations; determine the extent of lead and GRR service lines
within their systems; plan for service line replacement, including
applying for grants and loans; and replace lead and GRR service lines.
The EPA also disagrees with commenters requesting that the agency
formally delay the 2021 LCRR requirements prior to the final LCRI.
Formally delaying the 2021 LCRR prior to the final LCRI is unnecessary
because the final LCRI largely replaces provisions in the 2021 LCRR in
this action. Additionally, a delay of the 2021 LCRR requirements would
have required a separate rulemaking and diverted agency resources from
other actions, including finalizing the LCRI. It is also unnecessary
because the final LCRI largely replaces the 2021 LCRR in this action.
The EPA disagrees that water systems must assume they must comply with
the 2021 LCRR starting October 16, 2024. The EPA recognizes the
uncertainty caused by the LCRI rulemaking, but also notes the agency's
efforts to help water systems and States make informed decisions in
light of the uncertainty. For example, in the December 17, 2021,
Federal Register notification, the agency stated it did not intend to
change the compliance dates for the initial service line inventory,
notification of service line material, or the Tier 1 PN notice for a
lead ALE. Similarly, the EPA stated that the agency ``also expects to
propose to delay the October 16, 2024, deadline for submitting LSLR and
tap sampling plans so that systems can incorporate any potential
revisions made through the LCRI rulemaking'' (82 FR 71580, USEPA,
2021b). The EPA provided additional clarity in the proposed LCRI by
proposing for water systems to continue to comply with the LCR between
October 16, 2024, and the LCRI compliance date, with limited
exceptions. Additionally, on April 17, 2024, the EPA released a fact
sheet and frequently asked questions document on the 2021 LCRR
compliance and encouraged water systems to focus resources on complying
with the provisions introduced in the 2021 LCRR for which EPA did not
intend to change the October 16, 2024, compliance date (USEPA, 2024g;
USEPA, 2024h).
b. LCRI Compliance Date
The EPA received comments supporting the agency's proposal for
setting the LCRI rule compliance date three years after the rule is
finalized, noting the complexity of the rule and need for time to
prepare to implement the requirements. Some of these commenters stated
that it is not practicable to set compliance dates for any LCRI
requirements earlier than three years. The EPA also received comment
that the agency should provide an additional nationwide two-year
extension to the LCRI compliance date as provided under SDWA section
1412(b)(10). The comment indicated the extension would be for capital
improvements in the form of LSLR. Conversely, some commenters stated
that some of the LCRI requirements do not substantially differ from the
2021 LCRR requirements and requested that the EPA set earlier
compliance dates for the LCRI for some or all of the requirements
(e.g., no later than one year after rule publication). These commenters
stated that a faster compliance schedule would maximize public health
benefits and better align with Federal funding sources currently
available to assist water systems.
Section 1412(b)(10) of SDWA provides that NPDWRs shall take effect
three years after promulgation ``unless the Administrator determines
that an earlier date is practicable.'' The EPA agrees with commenters
that the complexity of the LCRI and time needed to prepare to implement
the final rule support a compliance date three years from the date the
rule is promulgated. Providing water systems three years from the date
the LCRI is finalized
[[Page 86561]]
provides the amount of time necessary for States to work with water
systems to prepare to comply with the final LCRI requirements, which
includes revisions to most of the provisions introduced in the 2021
LCRR. The EPA disagrees with commenters that indicate one year is
sufficient. The LCRI is complex and while some aspects may have
similarities with 2021 LCRR requirements, it is different and water
systems will need time to plan for and implement these changes. For
example, new requirements for tap sampling, changes in tap sampling
schedules for many water systems, a lower lead action level and the
actions prompted by that level, including corrosion control treatment
(CCT) requirements and new requirements for multiple ALEs, will require
significant water system and State resources to prepare to implement.
Furthermore, these requirements are all highly interrelated, and
therefore setting different compliance dates for different provisions
would increase rule complexity further, create implementation
challenges, and may lead to widespread non-compliance (88 FR 84969,
USEPA, 2023a).
Specifically, one of the key features of the LCRI is for all water
systems to identify and replace all lead and GRR service lines as
quickly as feasible, regardless of system lead levels. While some
systems are voluntarily initiating service line replacement programs
due to historic funding provided under the BIL, many systems have not
or are not currently conducting service line replacement. Many systems
have not been required to conduct LSLR under the LCR and may not have
experience developing replacement programs. Water systems and States
have noted the potential challenges of implementing replacement
programs effectively, including availability of equipment and supplies,
difficulty securing funding, and hiring crews to complete replacements.
The EPA is working with States and water systems to demonstrate best
practices for overcoming or mitigating these challenges through the
technical assistance initiatives, Lead Service Line Replacement
Accelerators (USEPA, 2023c) and the Get the Lead Out (GLO) Initiative
(USEPA, 2024e). The three-year period after promulgation of the final
LCRI is for systems to plan for compliance, including hiring additional
staff, soliciting bids for contractors, securing grants or other types
of funding, and continuing to improve inventories to ensure that they
are better positioned to conduct mandatory service line replacement. It
would also provide time for the market to correct for potential
shortages in resources or workers.
Additionally, the EPA is concerned that not providing water systems
enough time to prepare to implement these requirements could undermine
their efficacy. For example, as discussed in section IV.B of this
preamble, water systems must be prepared to conduct a variety of
actions that if not adequately prepared for, may result in fewer
service line replacements. The EPA anticipates that water systems will
use the three-year period prior to the LCRI compliance date to identify
unknowns, develop their service line replacement plan, identify
barriers to full service line replacement, and develop outreach
materials that are intended to support full service line replacement.
Additionally, an earlier compliance date for all the other LCRI
requirements besides mandatory LSLR would divert resources from
planning for mandatory service line replacement and may delay a
system's ability to start replacing lead and GRR service lines.
The EPA also disagrees with providing a nationwide two-year
extension to the compliance date under SDWA section 1412(b)(10). As
described in section II.C of this preamble, in accordance with SDWA
section 1412(b)(10), the Administrator, or a State (in the case of an
individual system), may allow up to two additional years to comply with
a treatment technique if the Administrator or State (in the case of an
individual system) determines that additional time is necessary for
capital improvements. Where a State, or the EPA where it has primacy,
chooses to provide such an extension, the system would have up to five
years from the rule's promulgation date to begin compliance with the
treatment technique. The EPA has not determined that an additional two
years is necessary for water systems nationwide to make capital
improvements to begin compliance with the LCRI. Systems have been
subject to more stringent requirements for LSLR and CCT since the
promulgation for the 2021 LCRR that allowed time to prepare and obtain
funding for any necessary capital improvements. Moreover, there is
significant funding available through the BIL and other sources for LSL
identification and replacement. The EPA has also been working with
States to provide extensive technical assistance to water systems to
replace LSLs. Additionally, as noted above, the EPA is providing water
systems three years before the LCRI compliance date to identify
unknowns and prepare for service line replacement, which may include
voluntarily replacing lead and GRR service lines. The EPA has
determined that a cumulative average 10 percent per year replacement
schedule is feasible in the LCRI and provides deferred deadline options
for some systems (section IV.B.8). Furthermore, the commenter does not
indicate why an additional two years is necessary for capital
improvements in the form of LSLR to comply with the requirements of the
LCRI.
c. Early Implementation of LCRI Risk Mitigation Provisions
The EPA requested comment on whether the agency should require
water systems to comply with the LCRI requirements for risk mitigation
after a full or partial service line replacement, service line
disturbances, and associated reporting upon the effective date of the
LCRI. Commenters supported such a requirement citing the similarity of
the LCRI requirements to those first introduced in the 2021 LCRR and
the value of providing health protective measures sooner while water
systems are conducting service line replacement. Others disagreed on
the grounds that it would be impracticable to implement these
requirements upon the effective date of the LCRI. Some commenters
supported voluntary implementation of the provisions prior to the LCRI
compliance date.
The EPA agrees that a compliance date earlier than three years
after promulgation is not practicable and therefore, implementation of
the LCRI risk mitigation requirements prior to that date should be
voluntary. As noted in the proposal, while the EPA expects that earlier
implementation of these actions would reduce lead exposure, setting an
earlier implementation date for these select LCRI requirements would
result in systems complying with a mix of requirements across three
versions of the CFR (i.e., as amended by LCR, LCRR, and LCRI). The EPA
is concerned about this complexity and that it could divert resources
away from preparing to comply with the other LCRI requirements. In
addition, water systems would not likely have time to prepare to
implement this requirement by October 16, 2024, the 2021 LCRR
compliance date. As described above, setting an implementation date
between October 16, 2024 and the LCRI compliance date would introduce
confusion and complexity for implementation, reporting, and
recordkeeping. The EPA strongly encourages water systems to voluntarily
implement these provisions as best practices prior to the LCRI
compliance date. The EPA's May 1, 2024 memorandum ``Implementing Lead
[[Page 86562]]
Service Line Replacement Projects Funded by the Drinking Water State
Revolving Fund'' details the risk mitigation measures, including
follow-up tap sampling, point-of-use devices and pitcher filters, that
are eligible under the DWSRF funding (USEPA, 2024i). Additionally,
States can require water systems to implement these provisions early.
3. Final Rule Requirements
For the final LCRI, the EPA is setting the compliance dates for the
LCRI revisions to 40 CFR 141.2 and 141.31 and subparts I, Q, and O of
part 141 to three years after the publication date of this final rule
in the Federal Register (see section II.C of this preamble).
The EPA is also specifying provisions as codified in the CFR on
July 1, 2020, and on July 1, 2023, that water systems must comply with
between October 16, 2024, and the LCRI compliance date, in accordance
with Sec. 141.80(a)(4)(i).
Beginning on October 16, 2024, water systems are required to comply
with the requirements of Sec. Sec. 141.2, 141.31(d), and 141.80
through 141.91 as codified on July 1, 2020. In addition, water systems
will also be required to comply with the provisions listed in Exhibit 3
as codified on July 1, 2023.
Exhibit 3--Requirements Introduced in the 2021 LCRR That Water Systems
Must Comply With Between October 16, 2024, and the LCRI Compliance Date
------------------------------------------------------------------------
Citation (CFR codified July 1, 2023) Description
------------------------------------------------------------------------
Sec. 141.84(a)(1) through (10) Initial public service line
(excluding paragraphs (a)(6) and (7)). inventory development.
Sec. 141.90(e)(1).................... Submission of initial inventory
to the State.
Sec. 141.85(e)....................... Initial and annual notification
of known or potential service
line containing lead.
Sec. 141.85(a)(1)(ii)................ Revised lead health effects
language.
Sec. 141.90(e)(13) and (f)(4)........ Annual reporting and
certification of the
notifications in Sec.
141.85(e) to the State.
Sec. 141.90(h)(3).................... State provides results of the
90th percentile lead
calculations, in writing, to
the water system within 15
days of the end of the tap
sampling period (if
applicable).
Sec. Sec. 141.201(a)(3)(vi) and Tier 1 PN for exceedance of the
141.202(a)(10). lead action level as specified
in Sec. 141.80(c).\1\
Sec. Sec. 141.201(c)(3) and Submit copy of Tier 1 PN for a
141.31(d)(2). lead action level exceedance
to the head of the primacy
agency and the EPA
administrator no later than 24
hours after the system learns
of the exceedance.
40 CFR part 141, appendix A to subpart Tier 3 PN required for: failure
Q, section I.C.1 (excluding Sec. to notify persons served at
141.90, except paragraphs (e)(1) and service connections of a known
(13) and (f)(4)). or potential service line
containing lead and failure to
submit initial inventory to
the State by October 16, 2024.
40 CFR part 141, appendix B to subpart Revised lead health effects
Q, section D.23. language for required PN.
------------------------------------------------------------------------
\1\ As codified on July 1, 2020.
Additionally, starting October 16, 2024, failure to conduct the
reporting requirements in Exhibit 3 (i.e., Sec. 141.90(e)(1) and (13)
and (f)(4)) require Tier 3 PN in accordance with 40 CFR part 141,
appendix A to subpart Q. Tier 3 PN for failure to conduct other
requirements in Sec. 141.90 will not begin until the LCRI compliance
date associated with those provisions.
The EPA notes that the CCR requirements in 40 CFR part 141, subpart
O, that were revised under the 2021 LCRR rulemaking also have a
compliance date of October 16, 2024, in accordance with Sec.
141.152(a). The one exception is the requirement for water systems to
notify consumers in the CCR that complete lead tap sampling data are
available for review and include information on how to access the data
(Sec. 141.153(d)(4)(xii) as codified July 1, 2023, and renumbered to
Sec. 141.153(h)(8)(i) in the final CCR Rule (89 FR 45980, USEPA,
2024c)), which has a compliance date of three years after the
publication of the LCRI. This is because the current requirements for
tap sampling and calculating the 90th percentile are subject to the
LCRI compliance date. The compliance date for systems to notify the
public that this data is publicly available should not be earlier than
the compliance date for the data collection to avoid administrative
complications of these piecemeal implementation of these related
provisions.
C. State Primacy and Special Primacy Requirements
1. Rationale and Proposed LCRI Revisions
SDWA authorizes the EPA to promulgate and enforce NPDWRs (SDWA
section 1412 and 1414). States that have been approved by the EPA for
primary enforcement authority may also enforce drinking water standards
under State law. SDWA section 1413 and the EPA's implementing
regulations set forth the requirements that primacy agencies (States)
must meet to obtain and maintain primary enforcement responsibility
(primacy) for its public water systems (PWSs). These include: (1)
adopting drinking water regulations that are no less stringent than
Federal NPDWRs under section 1412(a) and 1412(b) of SDWA, as well as
the CCR Rule and the PN Rule under section 1414 of SDWA; (2) adopting
and implementing adequate procedures for enforcement; (3) keeping
records and making reports available on activities that the EPA
requires by regulation; (4) issuing variances and exemptions (if
allowed by the State) under conditions no less stringent than allowed
by SDWA sections 1415 and 1416; and (5) adopting and being capable of
implementing an adequate plan for the provision of safe drinking water
under emergency situations. The regulations in 40 CFR part 142 set out
the specific program implementation requirements for States, Tribes,
and Territories to obtain and maintain primacy for the Public Water
System Supervision (PWSS) Program, as authorized under section 1413 of
the SDWA.
PWSs in these primacy States must then comply with both sets of
State and Federal regulations, although in practice, PWSs would only
comply with the more stringent of the two regulations. Generally,
primacy States monitor compliance with regulations; however, the EPA
can also take enforcement actions against water systems for failure to
comply with NPDWRs. The EPA conducts annual reviews of State programs
and can also withdraw primacy under certain circumstances (see Sec.
142.17).
[[Page 86563]]
Under Sec. 142.12(b), all primacy agencies are required to submit
a revised program to the EPA for approval within two years of
promulgation of the final LCRI or request an extension of up to two
years in certain circumstances. In order to be granted an extension, a
primacy agency will be required to meet certain requirements as deemed
appropriate by the EPA on a case-by-case basis to ensure adequate
implementation and enforcement of the LCRI until the program revision
is approved. To be approved for a program revision, primacy agencies
are required to adopt revisions at least as stringent as the revised
LCR, CCR, and PN lead-related provisions. To obtain primacy for this
rule, primacy applications must address the general requirements
specified in subpart B of part 142. The EPA proposed special primacy
requirements for the lead and copper NPDWR (Sec. 142.16(d)), to ensure
compliance with the revised State requirements described in the LCRI.
To retain primary enforcement authority, States must adopt
revisions at least as stringent as the provisions in 40 CFR part 141,
subpart I (Control of Lead and Copper); Sec. Sec. 141.153, 141.154,
141.201, and 141.202; appendix A to subpart O of part 141 ([Consumer
Confidence Report] Regulated Contaminants); appendix A to subpart Q of
part 141 (NPDWR Violations and Other Situations Requiring Public
Notice); and appendix B to subpart Q of part 141 (Standard Health
Effects Language for Public Notification).
In the proposed LCRI, the EPA proposed revising the existing
special primacy requirements by modifying some, and establishing new,
special primacy requirements for States as a condition of primacy. The
EPA proposed to eliminate the special primacy requirement related to
systems' goal-based service line replacement programs, given the
proposed LCRI requirement for mandatory service line replacement. The
EPA also proposed a new special primacy requirement that States would
be required to identify State laws, including statutes and
constitutional provisions, relevant to a water system's ability to
obtain access to conduct a full service line replacement and notify
water systems in writing whether such laws exist or not. States would
be required to provide this notification by the compliance date and
within six months of the enactment of new or revised State law that
pertains to access. The purpose of this requirement is to ensure States
are informing systems about requirements under State law and provide
consistent interpretation of State law across the State. The State is
the appropriate entity to compile this information because many systems
are unlikely to have expertise to make these interpretation
determinations. Consistent interpretation of laws regarding access is
important because mandatory full service line replacement of lead and
GRR service lines is an important component of the LCRI to protect
public health to the extent feasible and compliance should be enforced
uniformly within States.
Under the 2021 LCRR, like the 1991 LCR, States must determine if a
greater mandatory LSLR rate is feasible and to notify the system of its
determination in writing. The EPA proposed to modify this to require
States to set a shortened deadline at any time throughout a system
replacement program if the State determines a shorter deadline is
feasible. The EPA also proposed requiring States to establish an
appropriate deadline to complete inventory validation when they
determine a shortened deadline is feasible. The purpose of these
requirements is to ensure that States are meeting their
responsibilities to make determinations on whether a faster mandatory
LSLR rate is feasible. State oversight of the service line replacement
rate is essential because lead and GRR service lines are a major source
of lead in drinking water so increasing the replacement rate when
feasible will have significant public health benefits.
The EPA also proposed modifications to special primacy requirements
under the LCRI with respect to the requirement for States to set a
deadline for systems to prepare an updated inventory where they find
discrepancies in their inventory. The 2021 LCRR only requires States to
set this deadline where water systems identify an LSL that was
categorized as non-lead in the inventory. In the LCRI, the EPA proposed
inclusion of GRRs because these are included in the proposed service
line replacement requirements and may also be improperly identified. In
addition, the EPA proposed inclusion of lead connectors in the
inventory and requiring systems that have inventories with no lead
connectors and no unknown connectors to update their inventory if a
lead connector is found. Therefore, the EPA proposed a requirement for
States to set a deadline for systems to prepare an updated inventory in
these cases.
The EPA also proposed, related to monitoring for lead in schools
and child care facilities, requiring States to describe how the State
will determine if an alternative lead sampling program is as
``stringent as the Federal requirements'' including how the State will
use the definitions of elementary schools, secondary schools, and child
care facilities as defined in Sec. 141.2 to issue waivers. The EPA
also proposed that States describe how they will meet the requirement
to review the lists of schools and child care facilities submitted by
CWSs to ensure entries conform to the definitions of school and child
care facility in Sec. 141.2, and that States would be required to
ensure that the list of schools and child care facilities is complete.
Prior to proposal, the EPA received questions about the LCRR
requirement for States to define schools and child care facilities. The
EPA is aware that the types of facilities that meet the definition of
child care facility under Sec. 141.2 may differ among States (e.g.,
which facilities are licensed by the State). However, it is not the
EPA's intention for States to develop new definitions for schools and
child care facilities for purposes of complying with the new rule. In
LCRI, the EPA proposed the definition of ``child care facility.''
The EPA proposed requiring that States verify that systems have
complied with follow-up requirements following a single site sampled
above the action level. Under the 2021 LCRR, this requirement was part
of ``find-and-fix''. In the proposed LCRI, this requirement was
relabeled as Distribution System and Site Assessment (see section IV.H
of this preamble). This change was proposed to be consistent with the
terminology in the rest of the LCRI and is not a substantive change in
requirements from the 2021 LCRR.
2. Summary of Public Comments and the EPA's Response
a. Identifying State Laws Pertaining to Access
The EPA received comments both in favor of and against the special
primacy requirement in Sec. 142.16(d)(8) for States to identify State
laws, including statutes and constitutional provisions, that pertain to
a water system's access to conduct full service line replacement and to
notify water systems in writing whether any such laws exist or not.
Commenters against this provision stated that individual systems should
be responsible for determining which laws, statutes, or constitutional
provisions apply to their system and that there would be additional
State burden associated with this research. Commenters in favor of this
provision felt that it would be a benefit to systems to have access to
this information. The EPA retained this requirement in the final rule
because while the EPA acknowledges that this provision will
[[Page 86564]]
require additional effort by States, there is value and efficiency in
having the State provide consistent information to all systems in the
State. In addition, States are better positioned to interpret State
laws or statutes than individual water systems. Neither the proposed
nor final rule require States to identify specific local laws relevant
to a water system's ability to obtain access to conduct a full service
line replacement.
b. Setting Shortened Replacement Deadlines
In the proposal, the EPA requested comment on whether States, as a
condition of primacy, or the EPA when it is directly implementing the
program, should be required to set initial shortened service line
replacement deadlines by a certain timeframe, such as no later than 60
days after the compliance date. Many commenters responded to this
request for comment by saying that shortened deadlines are not feasible
and that States should not have the authority to set shortened
deadlines. (See section IV.B.7 of this preamble for more information
about the EPA's determination to require States to evaluate shortened
replacement deadlines.) Those who commented on defining the timeframe
for the decision about shortened deadlines were split on the need to
establish a specific timeframe for the State's decision. Some supported
a shorter timeframe, citing the need to establish shortened deadlines
quickly for faster public health protection and to establish
predictability for systems. Some supported longer timeframes or no
timeframes at all, citing the State burden of evaluating complex
information for multiple systems simultaneously before reaching a
conclusion. For systems that are not eligible for deferred deadlines,
the EPA decided not to include a specific timeframe for State decisions
on shortened service line replacement deadlines in the final LCRI
because the conditions for which a system may be able to replace at a
faster rate may change throughout the replacement program. Therefore,
the LCRI language in Sec. 141.84(d)(5)(v) requires the State to make a
shortened deadline determination at any time throughout a system's
replacement program when a State determines a shorter deadline is
feasible, which would include within 60 days of the compliance date.
This would address the burden concerns expressed by some commenters by
not requiring States to review all replacement programs at the same
time, but also provide the flexibility to make shortened deadline
decisions as early as possible to enhance public health and provide
predictability for systems. This also allows States to use information
obtained during the replacement period through inventory investigations
that may inform the State's decision to require a shorter deadline. The
EPA intends to develop guidance to assist States in making shortened
deadline determinations. For systems that are eligible for deferred
deadlines, the EPA included specific deadlines for State decisions on
whether the deferred deadline and associated replacement rate
identified by the system is the fastest feasible. Specifically, States
are required under Sec. 141.84(d)(5)(vi)(C) to make determinations as
soon as practicable, but no later than the end of the second program
year and every three years thereafter. This is not expected to
significantly impact State burden because of the small number of
systems that will be eligible for deferred deadlines. (See section
IV.B.8 of this preamble for more information on State requirements for
making these determinations and the public health value of these
provisions.)
c. Deferred Deadlines
The EPA requested comment on whether to require the State, as a
condition of primacy, to approve the use of the deferred deadline
provision where the water system qualifies for it and/or whether to
require the State to assess whether it would be feasible for a system
to meet the 10-year deadline or a shorter deadline even if the system
meets the regulatory criteria for the deferred deadline. The EPA
received mixed comments in response to this request. Some commenters
favored requiring States to approve the use of the deferred deadline
provisions and not permitting States to set shorter deadlines for
systems that qualify and apply for deferred deadlines, as described in
Sec. 141.84(d)(5)(vi). These commenters stated that this placed
additional burden on States and that systems could be subject to
arbitrary decisions by States about deferred deadlines. Other
commenters stated that States should always be required to assess
whether systems that meet the requirements of Sec. 141.84(d)(5)(vi)
could meet the standard 10-year deadline and therefore a special
primacy condition is appropriate because extremely long timeframes for
replacement could put people at risk for much longer than necessary.
The EPA agrees that due to the urgency to complete lead and GRR
service line replacement as quickly as feasible, States should be
required to regularly evaluate whether shorter deadlines are feasible
for systems eligible for a deferred deadline. The LCRI maintains the
proposed requirement for States to set a shortened deadline at any time
throughout a system replacement program if the State determines a
shorter deadline is feasible. The final LCRI also contains new
provisions that require States to evaluate, as soon as practicable, but
no later than the end of the second program year and every three years
thereafter, and either approve the continued use of the deferred
deadline and replacement rate as the fastest feasible for the system,
or set a shorter deferred deadline and identify an associated
replacement rate to ensure the system is replacing service lines at the
fastest feasible rate for the system (see section IV.B.8 of this
preamble). The LCRI requires States to determine whether the system's
recommended deferred deadline and associated cumulative average
replacement rate are the fastest feasible to conduct mandatory service
line replacement. In addition, the EPA cannot preclude a State from
adopting or enforcing more stringent requirements, consistent with
other SDWA regulations.
d. Translation Support
In the preamble for the proposal, the EPA requested comment on
``Whether the Agency should require States, as a condition of primacy,
to provide translation support to water systems that are unable to do
so for public education materials to consumers with limited English
proficiency.'' (See section IV.J.3.g of this preamble for the EPA's
response to these comments.) The EPA elected to include a special
primacy requirement to require States to provide technical assistance
to systems in meeting the requirement to provide translation assistance
to consumers with limited English proficiency. The EPA selected this
approach because it is consistent with the approach in the Final CCR
Rule Revisions (89 FR 45980, USEPA, 2024c).
3. Final Rule Requirements
The EPA retained the proposed special primacy requirements, with
minor editorial revisions for clarity, to ensure effective oversight
and implementation of the LCRI by States. In addition to finalizing the
proposed items, the EPA made minor adjustments to include provisions
that implement other requirements of the LCRI as described below. State
primacy requirements are located in Sec. 142.16(d).
The EPA included Sec. 142.16(d)(9) in the final LCRI, which
requires, as a condition of primacy, States to make
[[Page 86565]]
determinations about systems eligible for deferred deadlines, including
determining if the deferred deadline is the fastest feasible or whether
a faster deadline is feasible, and reporting the results of these
determinations to the EPA. This requirement is necessary to implement
State requirements in Sec. Sec. 141.84(d)(5)(vi) and
142.15(c)(4)(iii)(H). The EPA intends to issue guidance to assist
States in making determinations on the fastest feasible deadlines for
service line replacement. For more information on the changes to the
deferred deadlines provisions, please see section IV.B.8 of this
preamble.
The EPA included a special primacy requirement in Sec.
142.16(d)(5)(ii) for States to provide or require the review of
inventory validation efforts, including making determinations on
whether previous validation efforts are at least as stringent as the
requirements and providing written approval to the system, and
requiring additional actions for systems based on the results of the
inventory validations. This requirement is necessary to implement State
requirements in Sec. 141.84(b)(5).
The EPA also included a special primacy requirement in Sec.
142.16(d)(10) to require States, as a condition of primacy, to make
determinations about which water systems serve a large proportion of
consumers with limited English proficiency and provide technical
assistance to these systems in meeting the requirement to provide
translation assistance in these communities. This requirement is
necessary to implement State requirements in Sec. 141.85(b)(1).
D. State Reporting and Recordkeeping Requirements
1. State Recordkeeping Requirements
a. Rationale and Proposed LCRI Revisions
State recordkeeping provisions are essential elements of the LCRI
because they ensure that States and the EPA have the data and
information they need in order to ensure effective implementation and
enforcement of the rule. State recordkeeping requirements are located
in Sec. 142.14 of the final rule.
The EPA proposed several changes to State recordkeeping
requirements to conform with changes proposed elsewhere in the proposed
LCRI. Because the EPA proposed eliminating the trigger level and
requiring mandatory full service line replacement, the EPA also
proposed removing recordkeeping requirements for any State
determinations of LSLR goal rates. The EPA proposed changing instances
of LSLR to ``service line replacement'' and ``lead and galvanized
requiring replacement service lines'' to reflect the proposed mandatory
full service line replacement requirements of both lead and GRR service
lines. The EPA also proposed clarifying that the requirement in Sec.
142.14(d)(8)(ix) for States to maintain records of system-specific
determinations for some NTNCWSs and CWSs to collect non-first draw
samples refers to samples that do not meet the minimum six-hour
stagnation time.
The EPA also proposed clarifying existing requirements regarding
the length of the records retention period. The EPA requires each State
with primacy enforcement responsibility to retain records listed under
Sec. 142.14(d) for not less than 12 years. States must maintain
records of all currently applicable or most recent State
determinations, including all supporting information and technical
basis for each decision, under Sec. 142.14(d)(8). Revisions to the LCR
in 2000 added a requirement that if no change is made to the State
determinations under Sec. 142.14(d)(8) during the 12-year retention
period, that the State must retain the record until a new decision,
determination, or designation has been issued. The EPA proposed
revising Sec. 142.14(d)(8) in the LCRI to clarify the existing record
retention requirement and improve implementation. The EPA also proposed
changing the order of provisions in Sec. 142.14(d)(8) to improve
readability.
The EPA also proposed moving requirements for States to maintain
records of service line replacement plans, service line inventories,
and compliance sampling pools to Sec. 142.14(d)(9) with other reports
and information submitted under Sec. 141.90. The EPA proposed this
change to improve organization and clarity because these records are
not State determinations. Because the EPA proposed requiring systems to
complete a baseline service line material inventory by the rule
compliance date, the EPA also proposed requiring that States maintain
records on these baseline inventories in addition to the initial
service line inventory and any required updates to the inventory.
b. Summary of Public Comments and the EPA's Response
In the proposal, the EPA requested comment on whether States should
be required to maintain records related to Distribution System and Site
Assessments (DSSA) conducted by water systems. Some commenters stated
that this information would be valuable to States and therefore should
be maintained. Other commenters stated that retaining this information
would cause additional burdens for States with no additional benefit.
Some commenters not in favor of State maintenance of records indicated
that systems should be required to maintain the information and make it
available to the State upon request. Some commenters also expressed
concern that the data systems that are used to store State data may not
be set up to store this information. The EPA agrees with commenters
concerned about the burden of such a requirement for States to maintain
records on DSSAs and therefore is not adding a requirement to do so in
the final LCRI. The EPA also received general comments about State
burden and agrees that adding such a requirement would increase the
overall burden of the LCRI on States. The EPA does not want to create
additional unnecessary burden on the States so they can focus on
implementing the requirements of the LCRI that have important direct
public health benefits such as LSLR, CCT, and public education, among
other things. The EPA notes that States will be receiving DSSA
information from systems as required in Sec. 141.90(g)(1) and that the
final rule (Sec. 142.14(d)(8)) requires the State to retain all
currently applicable or most recent State determinations, including
supporting information, for all decisions regarding the LCRI. To the
extent that DSSA information was used in State decision making, it must
be retained under this provision. Should States need information on
DSSA sites they can request this information from the water system.
In the proposal, the EPA requested comment on ``whether States
should be required to maintain documentation of determinations of more
stringent implementation, including but not limited to conditions or
approvals related to reduced compliance monitoring and additional
information required to conduct a review or designate OCCT.'' Some
commenters stated support for maintaining this information, while other
commenters did not. One commenter stated that the provisions of Sec.
142.14(a) and (d)(8) require States to maintain records on which their
decisions are made, so a specific requirement on more stringent
implementation would be redundant. The EPA agrees that the requirements
in this request for comment would be redundant based on Sec.
142.14(d)(8) and therefore has not made any additions to the final LCRI
regulatory text that require maintaining this type of documentation.
[[Page 86566]]
c. Final Rule Requirements
State recordkeeping requirements found in Sec. 142.14(d)(8)
through (10) in the proposal were all finalized without substantive
changes from the proposal. Minor revisions to these sections in the
final LCRI include updates for clarification and organizational
purposes. Additional revisions were made to match revisions in other
sections of the final rule with corresponding revisions or to correct
references to other sections of the rule.
The final LCRI adds Sec. 142.14(d)(8)(v), which requires State to
keep records of designations of optimal water quality parameters
(OWQPs), as a technical correction to ensure consistency with Sec.
142.15(c)(4)(iii)(C), which requires States to report this information
to the EPA on a quarterly basis. These requirements mirror the
requirements for States to designate and review OWQPs under Sec.
141.82(f). This should not require any additional effort by States
because States are required to report this information, so they would
need to collect it. The rest of the items in Sec. 142.14(d) were
renumbered to accommodate this inserted requirement.
The final LCRI also adds Sec. 142.14(d)(8)(ix) to correspond to
the addition of a new requirement for additional system reporting and
State approvals for systems that are eligible for deferred deadlines
provisions in their LSLR program as defined in Sec. 141.84(d)(5)(vi).
There is a corresponding State reporting requirement for this
information, therefore the States must retain this information. For
more information on the revisions to the deferred deadlines provisions,
please see section V.B of this preamble.
2. State Reporting Requirements
a. Rationale and Proposed LCRI Revisions
State reporting provisions are essential elements of the LCRI
because they ensure that States and the EPA have the data and
information they need to ensure effective implementation and
enforcement of the rule. State reporting requirements are located in
Sec. 142.15 of the finalized rule.
The EPA proposed making two changes to quarterly State reporting to
conform with the changes proposed elsewhere in the LCRI. In the 2021
LCRR, States were required to report summary numbers of LSLs, GRR
service lines, and unknown service lines, as reported by systems in
their mandatory service line inventories. The EPA proposed requiring in
the LCRI to expand the inventories to include lead connectors and non-
lead service lines and to require States to report totals for these
additional categories per system. In the 2021 LCRR, goal-based LSLR was
introduced in addition to mandatory LSLR upon an action level
exceedance and requires States to report the date that systems must
begin LSLR for all systems required to do so. As the LCRI proposed
mandatory service line replacement irrespective of measured lead
levels, the EPA proposed that States instead report the calculated
replacement deadline for each system under either the proposed
mandatory 10-year deadline, shortened deadlines, or under proposed
options for deferred deadlines. In addition, the EPA proposed requiring
States to report the number and type of service lines replaced each
year, as reported by systems.
The EPA also proposed consolidating reporting requirements in Sec.
142.15(c)(4)(i) and (iii). Under LCRR, the EPA removed dates
differentiating reports submitted by States to the EPA prior to January
1, 2000, and those submitted after January 1, 2002, resulting in some
duplicative requirements. Specifically, the EPA proposed maintaining
requirements for States to report the date of CCT and source water
treatment related milestones (e.g., the date CCT study results are
submitted to the State, date of OCCT installation is complete) and
removing duplicative requirements such as reporting the systems with
action level exceedances given that States are required under LCRI to
report the 90th percentile values of all water systems in addition to
the first and last days of the tap monitoring period. These reporting
elements are necessary for the EPA's enforcement and oversight.
The EPA also proposed changing State reporting to implement section
1414(c)(2)(D) of SDWA, as amended by the Water Infrastructure
Improvements for the Nation (WIIN) Act. This provision requires the EPA
to issue a Tier 1 PN of a system's lead action level exceedance if a
system fails to do so; however, the EPA would need to know of the
action level exceedance to conduct the notice. Therefore, the EPA
proposed requiring that States submit the 90th percentile lead level
for any system with an action level exceedance within 15 days following
the end of each applicable tap monitoring period or within 24 hours of
receiving notification of a lead action level exceedance from a water
system, whichever is earlier.
b. Summary of Public Comments and the EPA's Responses
Commenters expressed general concern that the proposed rule placed
additional burden on States and that more resources in the form of
funding, staffing and time would be needed by States to effectively
implement the rule. The EPA has accounted for costs to States to
implement and enforce the rule in the proposed and final rules. While
the costs to States have increased in the final rule relative to the
currently implemented LCRR provisions, the increase in State burden is
needed to ensure the improvements to the LCRI, including increased
public health protection, are correctly implemented and enforced. See
section VI.D.3 of this preamble for more information about State costs.
Commenters also expressed concerns that the additional burdens on
States would be compounded by additional burdens associated with the
EPA's final NPDWR for six PFAS. Under the requirements in SDWA section
1412(b)(3)(C), Economic Analyses for NPDWRs must be conducted using the
costs and benefits associated with the rule under consideration only
and are not permitted to factor in costs or benefits associated with
other proposed or final EPA regulations. Therefore, costs and benefits
associated with the PFAS rule have not been included in the final LCRI
Economic Analysis and it is not appropriate to factor any PFAS burden
considerations into the EPA's decision-making on the LCRI. The EPA also
notes that while there are new requirements the States must perform in
the LCRI and other recent regulations, including PFAS, many of the
State requirements for the LCRI are the same or similar to existing
regulations. Therefore, States will be in a good position to continue
the similar requirements while adapting to the new requirements. States
will have three years between the final rule date and the compliance
date to prepare for the new requirements.
Commenters expressed that the complexity of the reporting and
recordkeeping requirements of the LCRI require an appropriate data
system to manage the data requirements of the LCRI. Some commenters
also specifically mentioned the need for updates to the Safe Drinking
Water Information System (SDWIS) and/or the Drinking Water State
Federal Tribal Information Exchange System (DW SFTIES) to match the
reporting requirements of the LCRI. Commenters also expressed a concern
that these updates would not be possible in time
[[Page 86567]]
for LCRI implementation. The EPA remains committed to providing high
quality tools to assist States with their implementation of NPDWRs. The
EPA intends to support the data management needs of primacy agencies
for the LCRI through the Drinking Water State Federal Tribal
Information Exchange System (DW SFTIES) development project, and to
have a product available for State use by the compliance date of the
LCRI. The EPA will work closely with State program and information
technology staff on LCRI database needs and on overall SDWIS
modernization. The EPA is intending to provide LCRI Data Entry
Instructions (DEIs). The LCRI DEIs will provide detailed guidance to
primacy agencies regarding the LCRI monitoring, recordkeeping, and
reporting requirements.
Commenters recommended that the EPA strengthen reporting
requirements to ensure improved enforcement of the LCRI provisions.
Some comments suggested that the proposed rule, in their view, lacked
timely and transparent reporting needed to assure compliance. The EPA
does not agree that the reporting requirements in the LCRI are
insufficient to support effective enforcement. The EPA added further
reporting requirements to align with new requirements for the final
LCRI as described in section IV.N of this preamble. The EPA carefully
considered all reporting requirements to ensure that all required
reporting elements provided some value to the State and/or the EPA for
public health or enforcement. Some commenters suggested that the LCRI
should require direct electronic reporting of sample results from labs
and/or systems to a database shared by the EPA and the States. The EPA
did not include such a requirement because the EPA does not wish to
place overly prescriptive requirements on States on how reporting
should be done. The EPA acknowledges that in some States, direct
electronic reporting may be an option for systems to report to States.
However, not all systems and States are set up for this type of
reporting therefore it is not appropriate to require it in the LCRI.
The EPA notes the LCRI does not prohibit States from setting up direct
electronic reporting. In addition, the EPA notes that the recently
promulgated Consumer Confidence Rule Revisions include a requirement
for States to submit compliance monitoring data annually to EPA for all
NPDWRs beginning in 2027, which will improve the EPA's ability to
fulfill oversight responsibilities under SDWA, including those
associated with the LCRI. Prior to adoption of DW SFTIES, the EPA will
facilitate primacy agency reporting to minimize reporting burden. A
primacy agency could submit CMD using one of two formats: (1) As a data
extract using the EPA's SDWIS State Data Extraction Tool; or (2) As an
extracted copy of its database and database documentation (USEPA,
2024c).
Commenters expressed concern with the deadline of 15 days after the
sampling period to calculate the 90th percentile and report the results
to the EPA. Commenters pointed out that the systems have up to 10 days
to submit the results to the State, which means in some circumstances
the State would only have five days to perform the analysis necessary
to calculate the 90th percentile and report to the EPA. Since the
language does not say five business days, it could become even more
challenging to meet in cases where a weekend is within the five-day
window. The final LCRI retains the 10-day reporting timeframe for
systems and the 15-day reporting timeframe for States. The EPA
determined that these timeframes are appropriate, and that systems and
States will be able to meet these deadlines. The EPA acknowledges that
in some cases the States may have a short turnaround time to complete
the calculations and the reporting requirement, however, the public
health interest in receiving this information in a timely manner is
extremely important. When a system has an action level exceedance,
there are various actions that systems, States, or the EPA must take in
order to alert the public to the potential risks to their health.
Section 1414(c)(2)(D) of SDWA, as amended by the WIIN Act, requires the
EPA to issue a Tier 1 PN (a 24-hour notification) of a system's lead
action level exceedance if a system fails to do so. The EPA would need
to know of the action level exceedance to conduct the notice. Given the
public health interest in issuing the Tier 1 notice in a timely manner,
in cases where the EPA is issuing the notice, the EPA must be made
aware in an appropriate timeframe.
c. Final Rule Requirements
The EPA finalized proposed State reporting requirements found in
Sec. 142.15(c)(4)(iii)(B) through (G) without substantive changes from
the proposal. The agency made minor adjustments from the proposal for
clarification and organizational purposes. The EPA made additional
revisions to align with revisions in other sections of the final rule
with corresponding revisions or to correct references to other sections
of the rule.
The EPA made a technical correction to the Reports by States
section (Sec. 142.15). Specifically, the agency added language to the
introductory paragraph (Sec. 142.15(c)(4)) to clarify that the
requirement for States to report the 90th percentile calculation for
systems that exceed the action level to the EPA is not a quarterly
requirement as originally stated in the introduction. In the proposal,
this language was not consistent with the language in Sec.
142.15(c)(4)(iii)(G) in the proposal and final rule, which requires 15
days of the end of the tap sampling period.
The EPA added new State reporting requirements in Sec.
142.15(c)(4)(iii)(H). These new requirements correspond to new State
requirements in Sec. 141.84(d)(5)(vi) to review service line
replacement plans for those systems that are eligible for deferred
deadlines and make determinations as to whether a shortened deferred
deadline is feasible. Under this provision, States are required to
report the result of the State's determination as to whether the
deferred deadline is the fastest feasible, the deadline at the fastest
feasible rate, and the reasons for the State's decision. For more
information on the changes to the deferred deadlines provisions, please
see section IV.B.8 of this preamble.
VI. Economic Analysis
This section summarizes the final Lead and Copper Rule Improvements
(LCRI) Economic Analysis supporting document (USEPA, 2024a), which was
prepared in compliance with Safe Drinking Water Act (SDWA) section
1412(b)(3)(C). This analysis is commonly called the Health Risk
Reduction Cost Analysis (HRRCA). SDWA section 1412(b)(3)(C)(i) lists
the analytical elements of the required HRRCA as follows: (1)
quantifiable and non-quantifiable health risk reduction benefits; (2)
quantifiable and non-quantifiable health risk reduction benefits from
reductions in co-occurring contaminants; (3) quantifiable and non-
quantifiable costs that are likely to occur solely as a result of
compliance; (4) incremental costs and benefits of rule options; (5)
effects of the contaminant on the general population and sensitive
subpopulations including infants, children, pregnant women, the
elderly, and individuals with a history of serious illness; (6) any
increased health risks that may occur as a result of compliance,
including risks associated with co-occurring contaminants; and (7)
other relevant factors such as uncertainties in the analysis and
factors with respect to the degree and nature of the risk.
Based on this final LCRI HRRCA analysis, the United States
[[Page 86568]]
Environmental Protection Agency (EPA) Administrator reaffirms the
finding made at proposal, under SDWA section 1412(b)(4)(C), that the
estimated quantified and non-quantifiable benefits of the regulation
justify the quantified and non-quantifiable costs.
In this analysis, the EPA assumes that the LCRI National Primary
Drinking Water Regulation (NPDWR) will be promulgated in 2024. The
agency estimated the year or years in which all costs and benefits
accrue over a 35-year period of analysis. The 35-year window was
selected to capture costs associated with rule implementation as well
as water systems conducting service line replacement and installing and
operating optimal corrosion control treatment (OCCT). The EPA accounts
for the Illinois, New Jersey, Michigan, and Rhode Island State-required
service line replacement programs in the regulatory analysis baseline,
so that the estimated final LCRI cost will not double count the service
line replacement costs already required by States.
The EPA annualized the estimated future streams of costs and
benefits that accrue from compliance activities occurring over this
same period of analysis symmetrically. The EPA does not capture the
effects of compliance with the final LCRI after the end of the period
of analysis, although, the agency does account for benefits that
continue to accrue in the future from compliance activities that occur
during the 35-year window. Costs and benefits are presented as
annualized values in 2022 dollars. The EPA determined the present value
of these costs and benefits using a discount rate of two percent as
prescribed by the Office of Management and Budget (OMB) Circular A-4
(OMB, 2023).
Estimated benefits, in terms of health risk reduction from the
final LCRI, result from the activities performed by water systems,
which are expected to reduce risk to the public from exposure to lead
and copper in drinking water at the tap. The EPA quantifies and
monetizes some of this health risk reduction from lead exposure by
estimating the decrease in lead exposures accruing to both children and
adults from the installation and re-optimization of OCCT, service line
replacement, the implementation of point-of-use filter devices, and the
provision of pitcher filters in systems with multiple action level
exceedances and by quantifying and monetizing the resulting increases
in intelligence quotient (IQ) in children zero to seven years old, and
reductions in incidents of low birth weight, attention-deficit/
hyperactivity disorder (ADHD) in children, and adult cardiovascular
disease premature mortality.
A. Summary of Public Comments and the EPA's Response
The EPA published an economic analysis for the proposed rule in
accordance with SDWA section 1412(b)(3)(C) (USEPA, 2023q). The proposed
rule Economic Analysis and the appendices to the proposed rule Economic
Analysis can be found in the rule docket, under the document ID number
EPA-HQ-OW-2022-0801-0712. The EPA requested comment, information, and
data on all aspects of the proposed rulemaking including the Economic
Analysis.
The EPA received comments and data submissions. As a result of the
new information submitted by commenters and additional data obtained by
the EPA in response to comments, the agency has improved the estimates
of costs and benefits for the final rule.
Commenters indicated that the EPA should be using a two percent
discount rate when calculating the annualized social costs and benefits
of the LCRI, not the three and seven percent rates used in the proposed
rule analysis. The EPA agrees with the commenters and notes that the
U.S. White House and OMB recently finalized and re-issued the A-4
benefit-cost analysis guidance (OMB, 2023), and the update includes new
guidance to use a social discount rate of two percent. The updated OMB
Circular A-4 states that the discount rate should equal the real
(inflation-adjusted) rate of return on long-term U.S. government debt
which provides an approximation of the social rate of time preference.
For the LCRI, the OMB Circular A-4 does not require the agency to
follow the updated guidance for this final rulemaking; however, the
guidance does encourage ``to the extent feasible and appropriate, as
determined in consultation with OMB, agencies should follow this
Circular's guidance earlier than these effective dates.'' Given the
OMB's statement encouraging early implementation of the Circular A-4
guidance and public input received on the discount rates considered by
the EPA in the proposed LCRI, for this final rule, the EPA estimated
national benefits and costs at the two percent discount rate and
incorporated those results into the final LCRI Economic Analysis
(USEPA, 2024a). Because the EPA provided cost estimates discounted at
three and seven percent for the proposed LCRI based on OMB guidance,
which was in effect at the time of the proposed rule analysis (OMB,
2003), the agency has also calculated the cost impacts at both the
three and seven percent discount rates. See the final LCRI Economic
Analysis (USEPA, 2024a), appendix F for results.
Commenters requested that the EPA should show the costs of the LCRI
over each year of the period of analysis. The EPA agrees that having
information on the distribution of cost over the course of the period
of analysis can be useful in understanding impacts to regulated
entities. Providing this information is also consistent with OMB
Circular A-4 (OMB, 2023) guidance. See the final LCRI Economic Analysis
(USEPA, 2024a), chapter 6, section 6.3 for the undiscounted annual
costs and benefits of the final LCRI.
Commenters suggested that the agency should include the social cost
of the incremental greenhouse gas emissions that might result from
compliance with the final LCRI. The EPA disagrees with commenters that
SDWA requires the EPA to quantify and consider the climate disbenefits
associated with GHG emission increases from this final rule in the
HRRCA. The HRRCA requirements of SDWA 1412 (b)(3)(C)(i)(III) require
the agency to analyze ``quantifiable and nonquantifiable costs . . .
that are likely to occur solely as a result of compliance with the
maximum contaminant level''. Therefore, the EPA considered as part of
its HRRCA analysis the compliance costs to facilities, including the
costs to purchase electricity for the operation of OCCT at drinking
water treatment facilities and fuel costs for the use of construction
and transport vehicles in the replacement of lead and galvanized
requiring replacement (GRR) service lines. Also, the agency did not
include in the HRRCA analysis the climate disbenefits from GHG
emissions associated with producing the electricity needed to operate
CCT and the combustion of the fuel used in the replacement of service
lines because these impacts do not qualify as compliance costs to
public water systems (PWSs).
The EPA is committed to understanding and addressing climate change
impacts in carrying out the agency's mission of protecting human health
and the environment. While the EPA is not required by SDWA
1412(b)(3)(C) to consider climate disbenefits under the HRRCA the
agency has estimated the potential climate disbenefits from the
operation of OCCT at drinking water treatment facilities and the use of
construction and transport vehicles in the replacement of lead and
galvanized requiring replacement (GRR) service lines. The EPA's final
rule is based on the EPA's record-based analysis of the
[[Page 86569]]
statutory factors in SDWA 1412(b), and this disbenefits analysis is
presented solely for the purpose of complying with the directives in
E.O. 12866 (Regulatory Planning and Review). OMB Circular A-4 states
``[l]ike other benefits and costs, an effort should be made to quantify
and monetize additional effects when feasible and appropriate'' (OMB,
2023). The scope of the monetized climate disbenefits analysis is
limited to the climate impacts associated with the incremental GHG
emissions from the operation of OCCT at drinking water treatment
facilities and the use of construction and transport vehicles in the
replacement of lead and galvanized requiring replacement (GRR) service
lines required under the final LCRI. See section VI.E.10 of this
preamble for a summary of the EPA's assessment of the final rule's
incremental greenhouse gas emissions, and see chapter 5, section 5.9 of
the final LCRI Economic Analysis (USEPA, 2024a) for additional detail
on the analysis.
Commenters raised a number of points associated with the general
concept that the EPA should consider, in this LCRI rulemaking,
including the potential financial impacts to affected drinking water
systems of the LCRI, other ongoing capital management obligations,
Clean Water Act (CWA) compliance obligations (for combined sewer and
drinking water systems), climate change related expenditures, and a
number of other regulations proposed by the EPA. One of the commenters
highlighted the proposed per- and polyfluoroalkyl substances (PFAS)
NPDWR, which since the closure of the LCRI proposed rule comment period
was finalized on April 10, 2024, indicating that overlapping compliance
schedules will create affordability issues. A commenter also indicated
that the agency should consider the percentages of systems likely to
make treatment changes due to PFAS NPDWR maximum contaminant level
(MCL) exceedances and how that would impact the costs associated with
LCRI requirements. The other proposed rules mentioned by commenters
were the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) hazardous substance designation, the Stage 3
Microbial and Disinfection Byproducts NPDWR rulemaking, and the CWA
designated use and water quality criteria rulemaking for the Delaware
River. Commentors indicated that the EPA cannot impose a cumulative
regulatory burden on communities that is not economically sustainable
or leads to inadequate resources for other key public health
protections. In response, the EPA notes that the HRRCA, required by
SDWA, excludes costs that result from compliance with other
regulations. Specifically, SDWA section 1412(b)(3)(C)(i)(III) requires
that the EPA include quantifiable and non-quantifiable costs that are
likely to occur solely as a result of compliance with the rule
including monitoring, treatment, and other costs and excluding costs
resulting from compliance with other proposed or promulgated
regulations. The agency also notes that the impact from other non-NPDWR
regulations (e.g., CWA water quality standards), aging water
infrastructure, and non-revenue water control are not part of the
evaluation of routine compliance in drinking water regulations and,
thus, are not accounted for in the EPA's cost analysis. Nonetheless,
the EPA has not identified any other drinking water regulations or
requirements that will inhibit compliance with the final LCRI, nor
should the final LCRI regulation significantly impair compliance with
other regulations (e.g., installing a treatment technology to comply
with the PFAS NPDWR MCLs does not inhibit a system from taking action
to meet OCCT requirements under the final LCRI). The potential
implementation overlap between the PFAS NPDWR (now final) and the LCRI
could potentially result in a large number of public water systems
(PWSs) and States facing rule start-up, administrative, and sampling/
service line inventory costs associated with both rules within a few
years after the promulgation of the rules. Also, the more significant
costs of installing and operating OCCT and/or conducting full service
line replacement along with installing and operating PFAS treatment
technology in a similar time frame are expected to fall on some
systems. The EPA does not have sufficiently detailed lead/GRR service
line information and 90th percentile lead tap sample data, and PFAS
occurrence data to explore the potential treatment cost interactions of
the two rules. However, it is feasible for water systems to comply with
both regulations by taking appropriate mitigating actions, potentially
similar to the ones outlined in the PFAS NPDWR Best Available
Technologies (BAT) and Small Systems Compliance Technologies (SSCT)
Support Document (see the PFAS BAT/SSCT Support Document, USEPA 2024j)
to address the impacts that PFAS treatment may have on CCT. This is
especially true in light of increased funding available under the BIL,
including $11.7 billion in DWSRF funding that can be used for PFAS
treatment and lead service line replacement, $15 billion in dedicated
funding for service line replacement, and $9 billion in dedicated
funding for emerging contaminants in drinking water, especially PFAS
($4 billion in DWSRF emerging contaminants funds and $5 billion from
the Emerging Contaminants in Small or Disadvantaged Communities (EC-
SDC) grant program). Note, the EPA reasonably anticipates BIL funding
is likely to be able to support a substantial portion of the initial
capital costs of the final PFAS rule. (See section 1.5 in the LCRI
Response to Comment document and section 2.4 of the PFAS Response to
comment document (USEPA, 2024k; USEPA, 2024l).) The EPA also notes that
the extended five-year compliance date for meeting the PFAS MCLs may
provide implementation flexibility for those systems facing the
potential for simultaneous installation of PFAS and OCCT treatment
technologies. The EPA acknowledges the potential that operational
adjustments may be necessary to adjust the corrosivity of finished
water if treatment is installed to meet the PFAS NPDWR MCLs. Ion
exchange resins or reverse osmosis, for instance, may make water more
corrosive if post-treatment stabilization (e.g., pH adjustment) is not
performed. However, the increase in corrosivity is short-lived after an
ion exchange media change-out (see the PFAS BAT/SSCT Support Document,
USEPA 2024j) and would likely not create the long-term water chemistry
issues that would trigger the LCRI study requirements associated with
significant treatment changes nor significant adjustment to LCRI
corrosion control treatment (CCT). Systems using reverse osmosis would
likely need post-treatment stabilization to address corrosivity
although as part of the PFAS regulatory analysis the EPA found that it
is highly unlikely that drinking water systems would select this
technology largely due to the challenges presented by managing the
treatment residuals, in fact the final PFAS analysis assumed that no
systems would implement reverse osmosis (see chapter 5 of the Economic
Analysis for the Final PFAS NPDWR (USEPA, 2024f)). Given this
information, the EPA made no changes to its baseline assumptions on
existing pH levels in finished water nationally, so the PFAS NPDWR was
found to have no quantifiable impact on the final LCRI Economic
Analysis modeling, although the EPA acknowledges that it is possible
that LCRI CCT costs may be underestimated based on the impact of PFAS
treatment.
[[Page 86570]]
The EPA received a number of comments indicating that the agency
under costed service line replacement. Commenters did not provide
adequate rationales or supporting data for altering the agency's
proposed rule national level service line replacement cost methodology
and estimated cost range. The EPA maintains the 7th Drinking Water
Infrastructure Needs Survey and Assessment (DWINSA) survey as the
source of service line replacement unit costs. The EPA agrees with
commenters that unit costs for service line replacement can vary
greatly: the full range of service line replacement unit costs
considered in the DWINSA data set is $1,248 to $15,837. A wide range of
costs is also cited by CDM Smith (2022) and Betanzo and Speight (2024).
The EPA evaluated both its existing and new data, obtained as a result
of the public comment process, including the DWINSA dataset, the CDM
Smith report (2022), individual service line replacement costs reported
by commenters, and the Betanzo and Speight (2024) literature review and
engineering cost estimate. Based on the EPA's review, which is provided
in appendix A of the final LCRI Economic Analysis (USEPA, 2024a), the
EPA maintained the DWINSA as the primary source of data for service
line replacement unit cost estimates. The DWINSA collects actual
project and asset data from a stratified random statistical sample of
water systems, which minimizes bias and uncertainty in the survey and
results. No other data source provided detailed project-level data as
required by the DWINSA. The DWINSA \12\ cost dataset contains responses
from small, medium, and large systems and from urban and rural systems,
representing 31 water systems in 13 States across EPA Regions 1, 2, 3,
5, 7, and 8 and representing States in the Northeast, the Midwest, and
the West. These systems serve populations ranging from 3,000 to over
2,000,000 persons, although the dataset includes more projects for
systems serving more than 10,000 persons, which is consistent with the
relative prevalence of lead content service lines in these systems. The
dataset includes a mix of project types including targeted service line
replacement for sensitive subpopulations, replacement of lead pipes and
GRR service lines when found, and service line replacement in
coordination with water main replacement. The EPA adjusted the DWINSA
reported costs to account for regional differences in prices to produce
a national average. Each service line replacement cost estimate, from a
given system replacement project, is weighted by the DWINSA sample
weights, which reflect the probability that each system is included in
the sample. Each project was also weighted by the number of service
lines included in the project to capture the relative importance of the
project cost estimate in comparison with the total dataset. The
weighted values were then used to estimate descriptive statistics for
the cost of service line replacement per line. Overall, the DWINSA
dataset provides the most complete picture of the range of possible
service line replacement costs. As described in chapter 4, section
4.2.2.2 of the final LCRI Economic Analysis (USEPA, 2024a), the EPA
uses the 25th and 75th percentile values to provide a range of national
costs for the final LCRI that reflect the degree of uncertainty in the
average service line replacement unit cost ($6,507 and $8,519 for a
full service line replacement). The EPA did not use the minimum and
maximum values, from the 33 DWINSA reported projects,\13\ for this
bounding exercise given that applying these figures to 100 percent of
service line replacements seemed unreasonably extreme. Using minimum
and maximum values would have produced a national estimate range
greater than what is warranted given the uncertainty in the
distribution of service line replacement unit costs.
---------------------------------------------------------------------------
\12\ Note 7th DWINSA service line replacement costs data come
from 2021 survey effort. The replacement cost data was not targeted
for update as part of the additional one-time update that took place
in 2023.
\13\ Note two systems provided two projects each.
---------------------------------------------------------------------------
A commenter raised concerns that the EPA may be overestimating both
baseline and changes in drinking water lead exposure by its use of
modeled fifth-liter water lead concentration values (calculated based
on the agency's drinking water lead concentration profile data) as a
proxy for exposure in the proposed rule benefits analysis. The EPA
reassessed its water lead concentration modeling and given recent
findings (Urbanic et al., 2022) from the comparison of composite
samples, which approximate lead exposure given water use patterns at a
residence, and profile samples, where a volume weighted average lead
concentration was calculated, at sites in two cities, the agency chose
to use a volume weighted average lead concentration calculated using
data from the first 10 liters of profile data in approximating exposure
at the tap for the final LCRI benefits analysis.
The Association of State Drinking Water Administrators (ASDWA)
provided the EPA with an updated LCRI 2024 version of their Costs of
States Transactions Study (CoSTS) model which estimated the first five
years of total and incremental burden to States for implementing the
proposed LCRI. Burden totals from this model were significantly higher
for some State oversight activities than those estimated by the EPA for
the proposed LCRI. The EPA carefully evaluated the information and
assumptions in the updated 2024 CoSTS model and used a subset of the
information from the model to assist in the development of revised
State burden estimates for the cost analysis of the final rule. The EPA
compared the per-activity State burden estimates in the ASDWA 2024
CoSTS model to those included in the proposed rule and to those
included in the 2020 CoSTS model, which ASDWA provided as part of the
2021 Lead and Copper Rule Revisions (LCRR) rulemaking, and selected the
higher burden estimates for use in the cost estimates for the final
rule. The EPA revised cost estimates for a number of State activities
including: the review and approval of the small system flexibility
option, reviewing initial lead monitoring data and preparing systems
for any new requirements under the LCRI, reviewing changes in tap
sampling locations, reviewing monitoring results and 90th percentile
calculations, reviewing school and child care facility testing program
materials, reviewing CCT study data and determining the type of OCCT to
be installed, reviewing CCT study data and determining the needed OCCT
adjustment, reviewing CCT guidance and its applicability to individual
PWSs, consulting on required actions in response to a treatment change,
reviewing the filter plan, reviewing annual service line inventory
updates, reviewing the annual service line replacement program report,
and reviewing copies of consumer notices and certifications. In
addition to this list of updated burden variables, several estimates in
the ASDWA 2024 CoSTS model were consistent with the proposed rule
requiring no update for the final rule analysis. These included the
implementation and administration activities, reviewing sample
invalidation requests, reviewing water quality parameter (WQP) sampling
data and compliance with OWQPs, reviewing source water monitoring
results, consulting with the system prior to any Distribution System
and Site Assessment CCT adjustments, reviewing the report on
Distribution System and Site Assessment responses, reviewing point-of-
use public education materials, reviewing the inventory validation
[[Page 86571]]
report, reviewing the service line replacement plan, participating in
joint communication efforts with local and State health departments,
and consulting with community water systems (CWSs) on other public
education activities in response to a lead action level exceedance.
Overall, the updated burden values will result in higher estimated
State and total costs for the final rule when compared to the burden
estimates used in the analysis of the proposed rule. See chapter 4 of
the final LCRI Economic Analysis for more detail on the information the
EPA used from the ASDWA CoSTS models in the adjustment of State cost
variables (USEPA, 2024a).
B. Affected Entities and Major Data Sources Used To Develop the
Baseline
The entities potentially affected by the final LCRI are PWSs
classified as either CWSs or NTNCWSs and primacy agencies (States). In
the economic modeling performed, the EPA uses the Safe Drinking Water
Information System Fed Data Warehouse (SDWIS/Fed) to derive the number
of CWSs and non-transient non-community water systems (NTNCWSs), 49,529
and 17,418, respectively. The agency also assumed, for modeling
purposes, 56 primacy agencies.\14\
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\14\ The 56 primacy agencies include 49 States (excluding
Wyoming), Puerto Rico, Guam, United States Virgin Islands, American
Samoa, North Mariana Islands, and Navajo Nation. For cost modeling
purposes, the EPA also included the District of Columbia (DC) as a
primacy agency when assigning burden and costs of the rule although
some of these costs are incurred by the actual primacy agency, EPA
Region 3.
---------------------------------------------------------------------------
The EPA used a number of data sources to develop the drinking water
industry characterization for the regulatory analysis. Exhibit 4
(Exhibit 3-1 in chapter 3 of the final LCRI Economic Analysis (USEPA,
2024a)) lists the major data sources, describes the data used from each
source, and explains how it was used in the estimation of the
regulatory analysis baseline, which corresponds to the 2021 LCRR.\15\
Additional detailed descriptions of these data sources and how they
were used in the characterization of baseline industry conditions can
be found in chapter 3 of the final LCRI Economic Analysis (USEPA,
2024a).
---------------------------------------------------------------------------
\15\ Note that the EPA provides an alternative regulatory
analysis, which assumes a pre-2021 LCR baseline during the 35-year
period of analysis starting in 2024, in appendix C of the final LCRI
EA (USEPA, 2024a). Because PWSs and Primacy Agencies will likely not
have implemented the parts of the 2021 LCRR associated with
compliance dates after October 16, 2024, the agency is providing
this alternative baseline analysis that describes LCRI incremental
costs and benefits relative to a non-LCRR state of the industry.
Exhibit 4--Data Sources Used To Develop the Baseline for the Final LCRI
------------------------------------------------------------------------
Baseline data derived from the
Data source source
------------------------------------------------------------------------
SDWIS/Fed fourth quarter 2020 PWS inventory,
``frozen'' dataset \1\. including population served,
number of service connections,
source water type, and water
system type. Also used to
identify NTNCWSs that are
schools and child care
facilities.
Status of CCT,
including identification of
water systems with CCT and the
proportion of water systems
serving <=50,000 persons that
installed CCT in response to
the pre-2021 LCR.
Analysis of lead 90th
percentile concentrations to
identify water systems below,
at, or above the lead and/or
copper action levels at the
start of rule implementation
by LSL status, i.e., presence
or absence of LSLs for the pre-
2021 LCR, 2021 LCRR, and LCRI.
Used in concert with data from
Michigan described below for
the LCRI.\2\
The proportion of
water systems that are on
various reduced monitoring
schedules for lead tap and WQP
monitoring.
The frequency of
source and treatment changes
and those source changes that
can result in additional
source water monitoring.
Number of distribution
system entry points per
drinking water system for
systems that were not included
in the UCMR 3 dataset.
2006 CWSS (USEPA, 2009)................ PWS labor rates.
UCMR 3 (2013-2015)..................... Number of distribution
system entry points per
drinking water system.
7th DWINSA and Supplemental One-time Service line material
Update. characterization.
Service line
replacement costs.
State service line information......... Service line material
characterization.
Geometries and Characteristics of Design and average
Public Water Systems (USEPA, 2000c). daily flow per system.
Six-Year Review 3 ICR Occurrence Baseline distribution
Dataset (2006-2011). of pH for various CCT
conditions.
Baseline
orthophosphate dose for CCT.
State of Michigan Lead and Copper Analysis of the ratio
Compliance Monitoring Data (Michigan of fifth- to first-liter lead
EGLE, 2019-2021). tap samples to estimate the
increase in lead 90\th\
percentile levels for LSL
systems based on the use of
the higher of the first- or
fifth-liter sample result.
Ratios are applied to SDWIS/
Fed system level lead 90th
percentile data to identify
systems below, at, or above
the action level under the
final LCRI by LSL status.