EPA does not agree with the commenter that suggested water system should collect more samples so that the number of samples is proportional to the size of the system. Tap water samples are variable, to address this variability in the distribution of lead levels in tap samples, EPA concluded that the 90[th] percentile is the most appropriate, as opposed to the mean, to account for this variability. The requirements of the LCRR seek to strike a balance between the desire for representativeness of the sampling results and the need to ensure that the sampling requirements are reasonable and implementable by public water systems. While increasing the number of sites where samples must be taken provides greater certainty of the representativeness of sampling results, there are costs (in terms of identification and access to homes as well as sampling and testing) associated with increased sampling. The final LCRR better targets highest risk sites, requires 100 percent of samples be collected from LSL sites, collection of the fifth liter at LSL sites to represent water that has been in contact with the LSL and an improved tap sampling protocol will identify those systems that need to take actions to reduce lead in drinking water, such as LSLR, CCT installation or re-optimization and public education. Therefore, the final rule maintains the number of samples by system size from the previous rule.
Regarding school and child care sampling, the final LCRR has separate sampling and public education requirements for CWSs. Samples collected under those provisions should not be included in the 90[th] percentile calculation because there is a different tap sampling protocol and purpose. An exception would be an in-home child care may be a Tier 1 site and may be used for tap sampling in § 141.86. Since children risk the most significant harm from lead exposure, EPA is requiring that CWSs test for lead in drinking water in school and child care facilities. The purpose of the school and child-care facility sampling program under § 141.92 is not the same as the tap sampling requirements for purposes of the 90[th] percentile calculation. See response to comment Section 12.
EPA appreciates commenter suggestions for an alternative method for calculating a 90[th] percentile using tap samples collected from MFRs; however, the LCRR is already a complex rule and the Agency does not believe the additional complexity of the suggested 90[th] percentile calculation methodology is appropriate. EPA reiterates that the purpose of tap sampling is to evaluate CCT effectiveness. EPA is not aware of studies that have evaluated applying percentage of "stagnation time" from MFRs based on the number of units and therefore does not have a scientific basis to determine the appropriate percentages to apply.
In response to questions about sampling at sites with a water softener, the final rule does not allow tap samples to be collected at these sites because these may alter the lead levels.
Regarding concerns with updates to SDWIS, EPA intends to support the data management needs of primacy agencies for the LCRR through the SDWIS Modernization development project, and to have a product available for state use by the compliance date of the LCRR. EPA will work closely with state program and information technology staff on LCRR database needs and on overall SDWIS modernization. EPA will engage with states in the development and testing of the SDWIS Modernization data system. EPA intends to provide LCRR Date Entry Instructions (DEIs) that will provide detailed guidance to primacy agencies regarding the data requirements for LCRR monitoring, record keeping, and reporting.
9.5 Frequency and Number of Samples
Summary of Comments
Several commenters noted the proposed LCRR will increase the tap sampling workload, especially for large systems with LSLs. For example, large systems on annual monitoring will be required to collect 100 samples in a four-month window (June-September). In the past, these systems on reduced monitoring were only required to collect 50 samples in the same time window. They asked that if collection of 100 samples is going to be required, consider expanding the annual monitoring window to six months (May-October) to allow systems to plan and coordinate sample collection.
Several additional commenters asserted that that the number of samples for large systems on annual tap sampling should be 50, and not the standard number of sites of 100 because the larger the required tap sample pool, the more difficult it is to maintain customer participation.
Commenters expressed concern that every water system subject to the rule must submit a revised sampling plan and requested consideration of phased implementation as the current triennial sampling cycles proceed, based on observed lead levels or presence/absence of CCT and the water system's size.
Many commenters requested clarification regarding reduced monitoring and the use of historical (grandfathered) data. Specifically, commenters asked for clarification as to whether all systems on reduced monitoring schedules would be returned to standard (six-month) monitoring when the rule takes effect or remain on their current schedules. Other commenters asserted the rule is unclear regarding how historical (grandfathered) data may be utilized under the proposed rule to meet to establish the monitoring frequency.
Commenters noted that water systems should be allowed to stay on their current (reduced) monitoring plan if the lead levels are below the trigger level, CCT is employed, and they have not changed source water or treatment. Commenters requested additional clarity to clearly differentiate monitoring requirements following a lead trigger level exceedance but not an action level exceedance.
Many comments were received noting that under the new rule, systems that exceed the lead trigger level or action level, but not the copper action level, will have their lead and copper sampling frequencies diverge. The commenters stated that this will create data management challenges and cause an undue burden on customers who participate in collecting tap samples at their residences. Commenters requested that the lead and copper tap sampling frequencies remain the same.
Many commenters supported the LCRR's increased requirements for systems to qualify for reduced monitoring and several requested that further restrictions be implemented, such as no longer allowing tap sampling once every 9 years. Commenters requested elimination of reduced, three-year monitoring cycles, or at least, significantly reduce the number of systems eligible for triennial monitoring by imposing more stringent requirements for eligibility. Some commenters suggested that only systems with no LSLs should be eligible for reduced monitoring or that monitoring should be conducted no less frequently than every six months until all LSLs have been removed and optimized CCT has been confirmed for at least two years.
One commenter suggested an alternate monitoring schedule for a lead action level exceedance: instead of standard monitoring for a two-year period, compress monitoring into an annual quarterly testing period.
One commenter noted that the complications of the revised LCR's action level and trigger level make sampling provisions difficult to follow. The final rule should include only the action level but restrict monitoring to at least annually or more frequently.
One commenter requested additional lead and copper monitoring be performed if a drinking water utility makes a change in disinfection technique (e.g., a free chlorine `burn out' in a distribution system that uses chloramines for secondary disinfection).
Agency Response
EPA acknowledges that the final LCRR will result in more frequent tap sampling for many water systems due to the establishment of the lead trigger level and new limitations for qualifying for reduced monitoring. However, the Agency has determined this is necessary in order to ensure actions water systems take in response to a trigger level exceedance or action level exceedance related to CCT installation or re-optimization are reducing lead levels in the distribution system. The final rule includes new criteria for water systems to be eligible for reduced monitoring based on the trigger level. For example, water systems serving 50,000 or fewer people must meet the lead trigger level (10 μg/L) to reduce their monitoring schedule to every three years. Water systems meeting the lead action level (15 μg/L) but exceeding the trigger level must monitor every year at the standard number of sites. Because the monitoring frequency in the revised rule is based on the lead action level as well as the lead trigger level, water systems must meet stricter criteria to move into reduced monitoring at the reduced number of sites. EPA believes this is an improvement to the previous rule in response to commenters asking for more strict criteria for reduced monitoring in the final rule.
EPA also believes the sampling window of June through September provides adequate time for the collection of 100 samples for large systems on annual monitoring under the final LCRR. It is important for samples to be collected during the warmest months of the year especially of they are only sampling annually. Studies indicate that lead leaching into water from pipes increases with increasing temperatures. The final LCRR includes provisions for development of an LSL inventory and outreach to customers that are served by LSLs which will result in increased customer interest in participation in tap sampling programs and LSLR. EPA concluded it is feasible for water systems to collect the standard number of samples during the June through September and this is important to improve public health protection.
In response to questions about the use of grandfathered data (i.e., sampling data taken between the final rule promulgation and the rule compliance date that meets all of the sampling requirements of the new rule under § 141.86) to determine the water system's tap sampling schedule, EPA determined that few systems would have such data because of the changes to the sampling requirements in the LCRR, especially since the final LCRR requires sites served by an LSL must collect a fifth liter for lead.
EPA understands the challenges water system may face when they have different monitoring schedules for lead and copper. Under the final LCRR, the tap sampling frequency for lead may be greater than that of copper; however, for reasons discussed elsewhere, the increased monitoring is critical to the goal of the rule to prevent know and anticipated adverse health effects from lead to the extent feasible. EPA acknowledges that different copper and lead tap sampling monitoring schedules will create some additional burden for water systems. However, the Agency concluded that public health improvements can be achieved by reducing lead in drinking water. The rule will better identify high levels of lead, improve the reliability of lead tap sampling results, strengthen CCT requirements, expand consumer awareness and improve risk communication. In addition, the rule will accelerate LSLRs by closing existing regulatory loopholes, propelling early action, and strengthening replacement requirements.
EPA determined that waivers for systems serving 3,300 or fewer people that allow them to sample once every nine years are still appropriate and has retained this provision from the previous LCR, due to the very strict criteria that water systems must meet to receive a waiver. Water systems may qualify for nine year tap sampling monitoring frequency if they certify to the state that the system has no lead and/or copper-containing plumbing materials in their system and have sampling data with levels of lead less than or equal to 0.005 mg/L and for copper less than or equal to 0.65 mg/L. The final LCRR includes many provisions that will require systems to increase tap sampling frequency and take other actions if they exceeded the lead trigger level or action level. EPA concluded that water systems with elevated lead should not be allowed able to qualify for reduced monitoring while systems with low lead levels are able to reduce tap sampling frequency. Therefore, the final LCRR maintains the nine-year tap sampling frequency for systems that do not have lead or copper materials in the distribution system.
Several commenters urged EPA to increase the number of samples required especially for large systems with populations over 100,000, while others asked for the number of samples to be decreased due to inherent challenges with customer participation. EPA has maintained the number of samples required for each water system based on its population under § 141.86(c). EPA has also strengthened the tiering requirements to assure samples are collected at locations with the most significant sources of lead. Targeting these samples to these tiered locations, assures a large enough sample size for evaluation of CCT effectiveness.
In response to commenters requesting clarification, EPA revised the regulatory text to streamline and clarify requirements in § 141.86.
In response to a comment asking EPA to require additional monitoring after certain changes such as a change in disinfection technique see response to comment Section 11.
9.6 Sequential Sampling
Summary of Comments
EPA requested comment on an alternative sampling methodology for water systems with LSLs. In the request for comment, EPA states "The EPA evaluated the feasibility of conducting sequential sampling techniques for every tap sample site for the public water system that are subject to the LCR. The EPA finds it is not feasible due to the complexity of the sequential sampling technique, the number of samples that must be analyzed, and the difficulty of interpreting the results from multiple tap samples." EPA received comments on sequential sampling methods, with some supportive of this technique and others opposed.
Sequential or profile sampling can be used as a diagnostic tool to assess the potential source of lead in drinking water. One-liter tap samples of water are collected, typically 10 to 20 samples, in succession after a defined stagnation time. Each liter sample represents a portion of the service from the water main to the tap, with the first few liters collected typically representing water from premise plumbing and subsequent samples representing water from the service line. This method tends to be intensive of labor, cost, and analysis.
Commenters noted that sequential sampling is too complex to be considered for compliance sampling purpose. They state that it requires numerous samples to be collected and the results may be difficult to interpret. Commenters state that sequential sampling would be difficult for homeowners to implement resulting in a burden to both the customer and the water system. However, commenters suggest that sequential sampling could be a useful tool for systems to use in sample site assessments, though it is important for EPA to provide proper guidance.
One commenter noted that sequential sampling would be an issue for collecting tap samples for copper. If a first liter sample is not used for lead tap sampling compliance, elevated copper may not be identified. One commenter suggested the use of sequential sampling for homes with LSLs if a first liter sample exceeds the trigger level as a means to obtain a more accurate measure of lead exposure.
One commenter suggested that if sequential sampling is required for compliance purposes EPA should consider: exempting systems that do not have LSLs, limiting small systems with LSLs to one sequential sampling event per monitoring period, limiting medium-sized systems with LSLs to three sequential sampling events per monitoring period, and limiting large systems with LSLs (including galvanized pipe) to five sequential sampling events per monitoring period.
Agency Response
EPA agrees with some commenters that performing sequential sampling techniques for compliance sampling under § 141.86 would be too complex and burdensome for water systems and customers. EPA does not believe sequential sampling is feasible for compliance tap sampling purposes due to the aforementioned reasons, that is it not feasible because of the complexity of the technique, the high number of samples that need to be collected and the difficulty interpreting results from multiple tap samples. EPA believes this is valuable tool that may be helpful to identifying source of lead for find-and-fix follow up sampling under section § 141.82(j). In the final LCRR, water system with LSLs, must collect fifth liter samples at LSL sites. EPA believes requiring water systems to collect the fifth liter at LSL sites is appropriate to ensure the sample is likely to capture water that has been in contact with the LSL. EPA has maintained a first liter sampling method for copper as well and for lead at sites not served by an LSL. See response to comment Section 9.2 regarding the fifth liter tap sampling requirements.
9.7 Setting a Minimum Tap Sampling Frequency Following Addition of a New Source Water or a Long-term Treatment Change
In the proposed LCRR EPA requested comment on requiring more frequent monitoring for lead and copper at the tap following a change in source water or long-term treatment change that is significant. EPA also sought comment on requiring water systems to monitor at the tap either biannually or annually. A summary of some of the comments received from this request for comment is below.
Several commenters indicated that a "significant" change in source water or treatment can encompass a wide range of scenarios influenced by multiple factors that need to be considered in establishing an appropriate sampling frequency. They noted that there are several factors that come into play that should determine the appropriate tap sampling frequency following the change, including: full WQP sampling of the new source, applicable saturation indices results, current or proposed CCT, blending with existing sources, size of system, and previous LCR tap sampling.
Several commenters recommended that the final rule not prescribe the minimum tap sampling frequency but should allow states to determine the appropriate tap sampling frequency based on the type of change and the associated risk profile.
Several commenters suggested the rule should specify a minimum of two rounds of six-month tap sampling following a source water or significant treatment change that affects WQPs or requires a CCT study. These commenters also requested clarification on specific types of treatment changes that would trigger additional monitoring.
One commenter recommended that EPA require annual tap sampling during the hottest months after a source water change or treatment change citing that it would be more feasible to perform than once every six months. A couple of commenters suggested that EPA require biannual sampling when a completely new source is used and annual sampling for treatment changes. One commenter noted that treatment changes can involve several years for completion, asserting the rule does not speak to this and a window of three to five years should be allowed for such changes to be implemented.
Several commenters requested that EPA provide a list of specific treatment changes that would require State approval before a system can make the changes and to help the states identify appropriate tap sampling frequencies.
Several commenters recommended allowing states to have the discretion to set a water system's monitoring schedule if the system has two wells in the same aquifer with the same water quality characteristics.
One commenter recommended that the final rule allow targeted monitoring when a source water change only applies to a portion of the distribution system.
One commenter requested clarification of LCRR applicability for systems that haul in water and add it to their storage tank during drought conditions, explaining that if sampling occurs, they may not be sampling their water.
Agency Response
After a full evaluation of these comments, EPA has determined a minimum tap sampling frequency of once every six months following a change in source water or long-term treatment change is appropriate unless the state determines that the addition of the new source or long-term treatment change is not significant in accordance with §141.86(d)(iv). EPA has determined that States will make the determination of when a treatment change by system is not significant enough to require the system to increase the frequency of monitoring. Deterioration in water quality or unintended consequences of source water or treatment changes will be more quickly identified and therefore addressed when tap sampling occurs every six months. Section § 141.90(a)(3) includes examples of long-term treatment changes. States have the expertise to determine whether the addition of a new source or long-term treatment change is not significant and therefore would not warrant standard six-month monitoring. While some commenters requested that EPA allow States to also determine the appropriate sampling frequency after the addition of a new source or long-term treatment change, EPA has set a minimum tap sampling frequency of once every six months to ensure national consistency. EPA notes that under §141.86(d)(iv) a system will remain on standard monitoring until the system is under the lead and copper action level for two consecutive six-month monitoring periods. EPA also disagrees with commenters who requested EPA allow for treatment changes to be implemented (e.g., 3 or 5 years) prior to requiring monitoring. As stated above, six-month monitoring allows for early and timely detection of water quality deterioration or other unintended consequences of source water and treatment changes.
EPA acknowledges comments regarding monitoring requirements for systems with more than one well in an aquifer. EPA intends to develop guidance and provide training and other supporting materials to assist primacy agencies and drinking water systems in achieving the public health protections under the LCRR. For more information, see response to comment Section 11.
9.8 Sampling Protocol and Methods
Summary of Comments
Numerous commenters supported the proposed sampling protocol specifying the use of wide-mouth bottles, elimination of pre-stagnation flushing and prohibition of aerator removal in §141.86(b). A few commenters requested the Agency clearly communicate that this protocol is to be used for compliance sampling only. They stated that many utilities try to educate consumers to flush stagnant water and clean their aerators to lower exposure to lead in drinking water and they expressed concern that the protocol could cause confusion if not clearly explained.
A couple of commenters disagreed with prohibiting pre-stagnation flushing. By not allowing both pre- and post-stagnation flushing they stated it may be more difficult to pinpoint the source of elevated lead. One commenter disagreed with the prohibition on aerator removal during sample collection stating that poorly maintained aerators could negatively impact sample results.
Many commenters supported maintaining the 6-hour stagnation period prior to sampling, but also requesting a mandatory maximum stagnation period for residences. Commenters noted that establishing a maximum stagnation time would not allow tap samples collected where residences have not been used for long periods of time as this can bias tap sample results. Some commenters suggested in these situations, pre-stagnation flushing would be appropriate prior to the start of the 6-hour stagnation period to simulate normal water usage. Many of the commenters suggested that the final rule establish a maximum 18-hour stagnation period which aligns with the requirements for school and child care sampling in §141.92(b) and as recommended in the 3Ts (USEPA, 2018). One commenter also requested that the Agency consider consistency in the bottle size, sample volumes collected, and minimum and maximum stagnation periods between the home sampling and school and child care sampling requirements to minimize system error and aid in compliance.
Many commenters recommended that the tap sampling protocol require sampling from the cold-water tap, explaining that many households now use faucets with a single lever that delivers both hot and cold water.
Numerous commenters requested that the final rule standardize and codify the language for sampling instructions sent to customers. They stated that the sampling protocol needs to provide detailed and precise instructions so that samples taken are scientifically valid. The protocol needs to be clear that samples are drawn from taps that are used on a regular basis for drinking and cooking.
Several commenters expressed concern that the LCRR still relies on untrained homeowners to conduct sampling with no certification or assurance of adherence to the sampling protocol, sampling location(s), or stagnation periods. Some commenters suggested that sampling should be conducted by licensed water operators, trained technicians or other locally appointed, state-certified water quality experts. Otherwise, utilities need to have the ability to invalidate improperly collected samples if a confirmatory sampling indicates a sample collection error.
A couple of commenters suggested allowing locally-governed water utilities to develop monitoring plans and schedules based on local preference including sampling during day-time hours, targeting schools for testing, varied aerator removal, targeting homes with children such as in-home daycare centers, homeowner non-participation, sampling flushed water samples versus first draw, historically negative sampling results, and findings of no potential lead sources.
A couple of commenters suggested alternate sampling methods such as the use of pipe loop sampling or other devices at specific approved points within the distribution system in order to assess lead levels without requiring homeowners to collect samples. One commenter suggested an alternate collection approach of testing fixture mounted carbon filters for total lead after consumers have used them under normal conditions for a week. The commenter asserts that this method would better represent actual lead exposure. Another commenter suggested that EPA consider the random daytime sampling practice utilized in the UK and European Union for the LCRR. Commenters recommended random daytime sampling as an alternative technique.
One commenter suggested that a certified water operator take two samples  -  one outside at the connector to the residence and another within the residence following the requisite 6-hour stagnation period. This would eliminate homeowner sampling issues and assist in troubleshooting sources of lead contamination. One commenter requested the option to collect four 250-mL samples instead of a single one-liter sample to assess brass corrosion.
A couple of commenters requested that the sampling protocol add the specification that sampling sites may not include point-of-entry (POE) treatment devices and sample taps may not have POU devices. The commenters requested additional clarity regarding POU filters and sampling.
Agency Response
EPA disagrees with commenters who supported allowing pre-stagnation flushing in LCRR tap sampling. Flushing, or running taps, has long been understood to decrease water lead levels in a home, and thus has been a recommendation by federal, state, and local authorities as a way to reduce lead exposure prior to water use, especially in residences of higher risk (e.g., houses containing LSLs) as well as a beneficial practice at homes that may have lead solder or faucets and fixtures that are not "lead-free". Flushing removes water that may be in contact with LSLs for extended periods of time, which is when lead typically leaches into drinking water (USEPA, 2016). As a general matter, EPA recommends consumers flush taps as a regular public health protective practice to reduce household exposure to lead in drinking water. However, this practice may mask potential higher lead levels and is prohibited in this final rule because the purpose of the tap sampling is not to determine the source of the lead or typical exposure, as suggested by commenters, but to measure whether corrosion control is effective in controlling lead from all sources, including premise plumbing. EPA also disagrees with commenters who supported removing and cleaning the faucet aerator prior to sampling. The taps used for monitoring likely contain an aerator as part of the faucet assembly, and particulate matter, including lead, may accumulate within these aerators. Thus, removing and/or cleaning these aerators only prior to sample collection could mask the contribution of particulate lead. However, it is advisable to regularly remove and clean faucet aerators to avoid particulate matter build-up. As a general matter, EPA recommends consumers clean faucet aerators as a regular public health protective practice to reduce household exposure to lead in drinking water. However, if customers only remove and clean the aerators before sample collection, the sample results will not be representative and serve the purpose of tap sampling  -  to determine whether corrosion control is effective in controlling lead, including particulate lead, from contaminating drinking water. Thus, EPA has prohibited the removal and/or cleaning of the faucet aerator as part of the procedures for collection of lead and copper tap samples.
Regarding stagnation times, EPA does not believe that a maximum stagnation period is necessary for the rule. Water systems can choose other sites from the same tier in the sample pool if they are aware that homes are vacant for extended periods of time. Most systems have a data sheet with time the water was last used and when the sample was taken. When a system looks at the data sheet and see the water was not used extended periods of time, then they can choose not to submit that sample to the lab for analysis. Therefore, EPA has not added a maximum stagnation time into the final rule requirements.
In response to commenters who asked that the final rule explicitly require sampling from a cold-water kitchen tap, this provision was in the previous LCR and EPA maintained it in the final LCRR. EPA believes that the final rule includes sufficient detail in the tap sampling collection methods under § 141.86(b), therefore is not codifying the instructions that water systems provide to customer samplers. Water systems may wish to add additional information or provide context for consumers.
Several commenters suggested that EPA include alternative sampling techniques such as random daytime sampling or using filters to measure the lead levels after water is used under normal conditions for a specified period of time. EPA considered other sampling methodologies such as random daytime sampling. However, EPA determined first liter samples at non-LSL sites and the fifth liter at LSL sites are the most appropriate means to evaluate CCT for both lead and copper. Random daytime sampling is a practice that collects samples at random locations in the distribution system at random times throughout the day (variable stagnation times). Under this method, lead samples are collected to characterize typical lead exposure and is not necessarily representative of maximum lead levels. EPA reiterates that the purpose of home tap sampling under §141.86 is to determine if CCT is effective system-wide at controlling lead levels. EPA is aware that lead levels vary significantly from location to location based upon differing plumbing materials. Lead levels also vary over time based upon water use at a location. The LCRR controls for these variables by tiering sampling locations to select sites with leaded plumbing materials and by requiring a stagnation period prior to collecting a sample resulting in a standardized and reproducible method across systems. Rather than selecting random sites throughout the distribution system, the LCRR prioritizes sites that are most likely to have the highest lead levels to evaluate CCT effectiveness (see the response to comment Section 9.2). These protocols will assure that elevated lead levels will be found, if present, which enables the system to evaluate corrosion. EPA also believes that including random sampling will increase rule complexity and would incur further costs and burden to water systems. EPA notes that water systems may use alternative sampling methods for customer-requested non-compliance samples that are fit for the desired purpose (see response to comment Section 9.9).
In response to comments regarding who collects samples, EPA does not specify in the LCRR who must carry out sample collection efforts leaving the decision to the water system and/or state. Locally appointed or state-certified water quality experts could be designated to conduct tap sampling instead of relying on customers. In response to commenters who expressed concern that the LCRR rule still relies on untrained homeowners to conduct sampling also see the response to comment Section 9.1.
In response to sampling at sites with POEs and POUs, EPA agrees with commenters and has clarified this language in the final rule to improve understanding of the sites and taps allowed under § 141.86(a), "Sampling sites may not include point-of-entry (POE) treatment devices and taps used at sampling sites may not have point-of-use (POU) devices designed to remove inorganic contaminants, except for systems monitoring under § 141.93(a)(3)(iv) and water systems using these devices for the primary drinking water tap to meet other primary and secondary drinking water standards and all service connections have POEs or POUs to provide localized treatment for compliance with the other drinking water standards.."
EPA recognizes that there are a few differences in the requirements for sampling methods for schools under § 141.92 and under compliance sampling in § 141.86, such as the stagnation times and volume of sampling bottles. However, these differences are due to the different purposes for tap sampling (i.e., evaluation of CCT effectiveness vs. identification of a lead source in a non-residential building), water use patterns, and plumbing configurations. For comments on the tap sampling protocol for schools and child care facilities see the response to comment Section 12.
9.9 Customer-Requested Samples
Summary of Comments
EPA received several comments on customer-requested lead samples. One commenter noted that customer-initiated sampling can inform and empower households. However, several commenters cautioned that customer-requested samples should be required to conform with the standard sampling protocol to ensure consistency of the data results. One commenter requested guidance on response actions that should be taken for compliance samples versus voluntary sample results.
One commenter also sought clarification on how to add residents to the sampling pool when the water system receives a request for tap sampling. Specifically, the commenter asked whether a resident that requests a sample during the compliance period can be added to the sample pool or only if the residence has an LSL and how to handle the results if the samples are collected and analyzed outside of the compliance period.
Agency Response
EPA agrees it may be desirable for customer-requested samples to be collected consistent with the protocol required for compliance tap sampling for consistent data results. However, EPA acknowledges that customer-requested samples may not meet tap sample site selection tiering criteria, may be requested for specific purposes such as identification of an LSL or other sources of lead in drinking water, or collected outside of the tap sampling period, and therefore, EPA determined that it is appropriate to allow water systems to design a customer-requested tap sampling programs that meets the needs of its customers. Accordingly, the final LCRR does not require customer-requested sampling to conform to the standard sampling protocol. EPA notes that if a customer requests sampling during the monitoring period and the site meets the appropriate tiering criteria in accordance with § 141.86(a), the sample can be used as a compliance sample if it is collected as specified in § 141.86(b).
In response to request for guidance, compliance tap sampling and required actions, including the actions associated with the new trigger level and find-and-fix requirements are critical components to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the areas of the rule that are most likely to support compliance. In addition to guidance, EPA will also provide training and other supporting materials that will help states and water systems implement the revised rule and promote greater national consistency.
References
Del Toral, M., A. Porter, and M.R. Schock. 2013. Detection and Evaluation of Elevated Lead Release from Service Lines: A Field Study. Environmental Science and Technology 47(16):9300-9307.
Lytle, M.R. Schock, K. Wait, K. Cahalan, V. Bosscher, A. Porter, and M. Del Toral. 2019. Sequential Drinking Water Sampling as a Tool for Evaluating Lead in Flint, Michigan. Water Research 157:40-54.
Reduction of Lead in Drinking Water Act. Public Law 111-380. 111th Congress. https://www.congress.gov/111/plaws/publ380/PLAW-111publ380.pdf.
Sandvig, A., P. Kwan, G. Kirmeyer, B. Maynard, D. Mast, R.R. Trussell, S. Trussell, A. Cantor, and A. Prescott. 2008. Contribution of Service Line and Plumbing Fixtures to Lead and Copper Rule Compliance Issues. Denver, Colo.: AWWA Water Research Foundation 3018.
United States Environmental Protection Agency (USEPA). 1991. National Primary Drinking Water Regulations: Control of Lead and Copper; Final Rule. Code of Federal Register, 40 CFR parts 141 and 142. Vol. 56, No. 110. June 7, 1991.
USEPA. 2016. Memorandum to Water Division Directions, Regions I-X, from Peter C. Grevatt, Office of Ground Water & Drinking Water. Clarification of Recommended Tap Sampling Procedures for Purposes of the Lead and Copper Rule.
USEPA. 2018. 3Ts for Reducing Lead in Drinking Water in Schools and Child Care Facilities: A Training, Testing, and Taking Action Approach (Revised Manual). October 2018. Office of Water. EPA 815-B-18-007. https://www.epa.gov/ground-water-and-drinking-water/3ts-reducing-lead-drinking-water-toolkit.
USEPA. 2020. Economic Analysis for the Final Lead and Copper Rule Revisions.
10 Water Quality Parameter (WQP) Monitoring
EPA received numerous comments on the proposed revision to § 141.87  -  water quality parameter (WQP) monitoring. The Agency received comments related to the frequency of WQP monitoring for standard and reduced schedules, additional parameters that were suggested be included, and parameters EPA proposed to remove.
10.1 General Comments
Summary of Comments
There were numerous comments related to the frequency of WQP monitoring in the distribution system. Some commenters suggested more frequent monitoring, for example monthly, than the standard monitoring and numerous commenters were concerned with the reduced monitoring frequency, especially triennial monitoring. Commenters suggested that WQPs should be monitored frequently enough to identify developing trends in water quality that could indicate a challenge to corrosion control.
A commenter suggested that actions should not be driven by tap sampling, but rather scientific WQPs and corrosive testing by the PWS within its distribution system should be the determining factor for any corrective actions by the public water system (PWS) as required.
There were several comments on the regulatory requirements in § 141.87(b) indicating that the section header of initial monitoring for systems without corrosion control treatment was inconsistent since subsection (2) covered systems with corrosion control. Commenters requested clarity on WQP monitoring requirements for systems with and without corrosion control treatment (CCT) following a trigger level exceedance (TLE) and an action level exceedance (ALE).
There were a few comments on requirements for WQP excursions. Several commenters suggested allowing flexibility to impose other requirements rather than a violation when excursions exceeded the nine-day threshold. Several commenters suggested more frequent monitoring than the minimum in the rule both at the entry points and at distribution system locations. Some commenters were concerned about potential violations occurring for systems on bi-weekly entry point monitoring as the daily value would be the value from the last day when a sample was collected unless the system fixed their CCT and took samples to demonstrate it before nine days had passed.
There were several commenters that requested guidance on consecutive system monitoring and WQP analytical methods instrumentation and calibration.
Agency Response
EPA agrees with commenters that triennial WQP monitoring does not provide enough data on water quality in the distribution system, especially at the reduced number of sites. Even the largest systems may only be taking 20 samples over the course of a three-year period. EPA has revised the WQP reduced monitoring provisions to eliminate triennial WQP monitoring. EPA also removed associated regulatory requirements such as the timing for triennial WQP monitoring since it is no longer applicable. EPA determined that triennial WQP monitoring does not provide enough data which are critical to demonstrating optimal corrosion control treatment. EPA added a requirement for systems on annual monitoring to collect the WQP distribution system samples evenly throughout each six-month monitoring period to reflect seasonal variability and better characterize the water in the distribution system.
EPA does not agree that WQP monitoring should be the regulatory driver for actions when elevated lead levels are found. Tap sampling is critical to evaluating the effectiveness of CCT throughout the distribution system.
To address commenters request for regulatory text clarification, EPA revised the regulatory language in § 141.87(b). Subsection (b)(2) is now titled "initial sampling for water systems" and covers both systems with and without CCT. EPA has also clarified that the initial WQP monitoring sampling is required for one year beginning in the month immediately following the end of the monitoring period in which a small or medium system, those serving 50,000 or fewer people, exceeded the lead action level or for some systems with CCT, the trigger level.
EPA does not agree that flexibility should be provided for violations issued for excursions because meeting the optimal WQPs is critical for systems to ensure they are maintaining optimal corrosion control treatment. Systems should correct the excursion as soon as possible to ensure optimal corrosion control treatment is being maintained and to reduce the likelihood of a treatment technique violation. Systems that wait 14 days to take the next entry point sample after an excursion at that entry point, will exceed the nine-day threshold and receive a violation for being outside the optimal WQP range for one or more key WQPs. EPA notes that the biweekly monitoring is a minimum and systems can monitor more frequently. EPA notes that the LCRR retains the existing calculation procedures in § 141.82(g)(1), (2), and (3) for calculating daily values for WQP ranging from multiple samples on the same day to days where no sample is collected. Requirements for systems monitoring daily (or more frequently) were included in the previous Lead and Copper Rule (LCR) and the same requirements apply under the LCRR. The daily value under § 141.82(g)(3) when no measurement is taken shall be the daily value calculated on the most recent day on which the WQP was measured at the sampling location. Systems should fix their CCT as soon as they discover the excursion to ensure optimal CCT and conduct sampling to demonstrate that the system is back within the optimal water quality parameter (OWQP) range.
EPA notes that the monitoring rules for consecutive systems in § 141.29 is outside the scope of this lead and copper rulemaking. Section 141.29 allows the state, with the EPA Regional Administrator`s concurrence, to modify the monitoring requirements imposed by these requirements to the extent that the interconnection of the systems justifies treating them as a single system for monitoring purposes. In approving a consecutive system agreement that reduces WQP monitoring, states could consider requiring samples at the interconnection along with samples in the distribution system of the purchasing system. Regarding guidance for consecutive systems and analytical methods instrumentation and calibration for WQPs, EPA understands this is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the areas of the rule that are most likely to support compliance. In addition to guidance, EPA will also provide training and other supporting materials that will help states and water systems implement the revised rule and promote greater national consistency.
10.2 Monitoring Requirements for Systems w/CCT Above Trigger Level, but At or Below Action Level
Summary of Comments
There were several comments that relate to WQP sites being added due to the find-and-fix requirements when systems are at or below the lead action level. Several commenters expressed concern with requirements for small and medium systems with CCT to monitor WQPs, even if they were at or below the action level. Some commenters supported WQP sampling for medium and small systems at or below the action level at a reduced frequency and number of sites with lesser consequences for non-compliance. Other commenters suggested WQP sampling is only necessary if a small or medium system exceeded the action level.
Agency Response
For the comments that relate to the addition of find-and-fix sites, see the response to comments Section 13. Regarding the comments about requiring small and medium systems with CCT to monitor WQPs, EPA agrees that systems should be monitoring WQPs to ensure the OCCT is operating correctly regardless of system size for good process control, but does not believe that all data needs to be submitted to the state. In the final rule, EPA has provided states discretion to require systems above the trigger level to conduct WQP monitoring and submit it to the state. Section 141.87(c)(2) of the LCRR, gives states the discretion to require small and medium-size systems with treatment for which the state has not been required to designate OWQPs that exceed the lead trigger level but not the lead and copper action levels to conduct WQP monitoring as described in paragraph (c)(1) of this section or the state can develop its own water quality control parameter monitoring structure for these systems. As noted in Section 10.1, EPA disagrees with commenters suggesting lesser consequences for small or medium systems with excursions for operating outside a specified optimal WQP range.
10.3 Additional Corrosion Control Parameters in Addition to Those Listed in the Proposed Rule - Sulfate, Chloride, Oxidation/Reduction Potential
Summary of Comments
EPA received mixed comments about removing the WQPs associated with the calcium carbonate stabilization process that EPA proposed to delete as a CCT. EPA proposed to remove the mandatory calcium, conductivity, and temperature measurements associated with the calcium carbonate stabilization as OWQPs. Several commenters asserted that currently systems are optimized using calcium carbonate stabilization and that the parameters should remain as OWQPs. Several commenters noted that calcium carbonate stabilization indices like the Langlier Saturation Index are not relevant indicators of susceptibility or non-susceptibility of waters to lead or copper corrosion. Other commenters suggested retaining calcium as an OWQP as it could be useful for some individual systems.
Commenters also suggested adding new mandatory WQPs, including sodium, chloride, sulfate, manganese, iron, aluminum, free chlorine, and oxidation-reductions potential. Commenters cited several case studies to support adding other potential key WQPs, such as chloride, sulfate, chlorine residual, and oxidation-reduction potential. Case studies cited included Flint, MI, Washington, DC, Greenville and Durham, NC. Several commenters suggested requiring chlorinating systems to investigate the effectiveness of chlorination to maintain a tetravalent lead scale.
Agency Response
As discussed in Section 4 of this document, EPA received mixed comments on its proposal to remove calcium carbonate stabilization as a mandatory CCT and the removal of calcium, temperature and conductivity as mandatory WQPs when it was selected as the CCT. As noted there, EPA believes that calcium carbonate stabilization has not been shown to be an effective system-wide CCT and has removed it from the list of treatments that need to be evaluated by systems. As such, there is no need to retain calcium, conductivity, temperature as mandatory WQPs for monitoring. EPA agrees with the commenters that calcium carbonate stabilization indices are not relevant indicators for lead and copper corrosion control. EPA also noted that for systems that have previously been deemed optimized using this treatment approach, the key WQPs of pH and alkalinity are being maintained in the rule and § 141.82(f)(1)(vi) allows the state to designate additional WQPs determined by the state to reflect optimal corrosion control (which could include calcium, conductivity and temperature) if the state believes that calcium carbonate stabilization is an effective CCT. EPA has removed calcium carbonate stabilization and its mandatory associated unique WQPs from the final rule.
EPA disagrees with commenters about requiring additional parameters for all systems. Several of the suggested parameters that relate to potential increases in corrosivity would be due to long-term treatment changes but are not directly related to a CCT process. EPA notes that most of the cited case studies were regarding increased lead levels that were a result of long-term treatment changes. Long-term treatment changes require state approval prior to the change. In the final LCRR, EPA emphasizes the requirements for prior state approval for long-term treatment and for source water changes.
EPA notes that the cited Washington, DC example was a result of a change in disinfectants from chlorine to chloramine to address disinfection by-products due to the relatively high free chlorine levels, which also produced a tetravalent lead (Pb(IV)) scale due to the high oxidation/reduction potential. The lower oxidation/reduction potential after the switch to chloramine favors divalent lead (Pb(II)) scales, which are highly influenced by low and fluctuating pH levels present at the time of the exceedance (USEPA, 2007a). (https://nepis.epa.gov/Exe/ZyNET.exe/P1007ZEI.TXT?ZyActionD=ZyDocument&Client=EPA&Index=2006+Thru+2010&Docs=&Query=&Time=&EndTime=&SearchMethod=1&TocRestrict=n&Toc=&TocEntry=&QField=&QFieldYear=&QFieldMonth=&QFieldDay=&IntQFieldOp=0&ExtQFieldOp=0&XmlQuery=&File=D%3A%5Czyfiles%5CIndex%20Data%5C06thru10%5CTxt%5C00000018%5CP1007ZEI.txt&User=ANONYMOUS&Password=anonymous&SortMethod=h%7C-&MaximumDocuments=1&FuzzyDegree=0&ImageQuality=r75g8/r75g8/x150y150g16/i425&Display=hpfr&DefSeekPage=x&SearchBack=ZyActionL&Back=ZyActionS&BackDesc=Results%20page&MaximumPages=1&ZyEntry=1&SeekPage=x&ZyPURL)
In Flint, MI, the lead level increase resulted from switching sources from purchased water treated with orthophosphate to a poorer source water that was not treated with orthophosphate for corrosion control (USEPA, 2017). Elevated lead levels in Greenville and Durham resulted from a change in the coagulant chemical from alum to ferric chloride, which altered the sulfate to chloride ratio (Renner, 2009) (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2799485/). Systems considering long-term treatment or source changes should examine the impact of those changes on corrosion control prior to the change as was required for most systems by the 2007 Lead and Copper Rule Short-Term Revisions USEPA, 2007b). EPA believes that many of the suggested additional WQPs should be evaluated as systems explore long-term treatment changes that could affect those parameters and the impact those changes might have on the system's CCT or need for CCT. Systems may need to revise their CCT in conjunction with the implementation of the long-term treatment or source water changes based on that evaluation. States may need to revise the optimal WQP ranges for systems adjusting corrosion control (such as increasing pH or orthophosphate) to counter the potential impact of a long-term treatment or source water change. See the response to corrosion control studies in Section 4 for additional responses related to key WQP monitoring.
EPA disagrees with the comment about requiring chlorinating systems to evaluate the effectiveness of chlorination to maintain a Pb(IV) lead scale. EPA does not believe that many chlorinating systems have the conditions to produce a consistent Pb(IV) scale throughout the distribution system. Two of the best examples for a Pb(IV) are the Washington, DC system in the early 2000s with very high chlorine doses and Cincinnati, OH where the system uses granular activated carbon to remove disinfection by-product precursors. EPA also finds that Pb(IV) cannot be reliably predicted from water quality and CCT implementation factors, and, as such, is not actionable as a control mechanism (Tully, et al., 2019). EPA noted in the 2016 OCCT Evaluation Technical Recommendations for Primacy Agencies and Public Water Systems that questions remain on how systems and primacy agencies can ensure that disinfectant residuals required for the formation and maintenance of PbO2 scales are maintained in LSLs throughout the distribution system (USEPA, 2016). This may be a particular challenge with homes that go unoccupied for an extended period of time. Systems that are triggered into a CCT study will be using their existing treatment as a control and can compare the results with the orthophosphate and pH/alkalinity adjustment results to compare the approaches.
The WQPs that must be monitored in the CCT study are the critical parameters associated with each treatment strategy. EPA agrees that system may want to add other parameters based on their system-specific water quality considerations. However, EPA disagrees with mandating that all systems conducting studies add all of these parameters as it would significantly increase the cost of the study and many of the parameters may be unnecessary. EPA has provided costs for harvested pipe loops in the "Economic Analysis for the Final Lead and Copper Rule Revisions" (USEPA, 2020) with a default set that includes some of the additional parameters. The following is intended to demonstrate the impact of additional parameters on the cost of the CCT study. EPA used the default value for costing purposes. The baseline cost estimate for a pipe loop for systems serving greater than 50,000 people is $304,617 that includes monitoring for lead, pH, alkalinity and orthophosphate. The default value cost for a pipe loop is $342,476 that includes monitoring for calcium, iron, free and total chlorine, ammonia, heterotrophic plate count, total coliform, and total dissolved solids. The addition of chloride and sulfate to the default would result in a pipe loop study cost of $367,643. Similarly, the addition of mandatory parameters would also increase the cost of WQP monitoring.
In the final rule, § 141.82(f)(1)(vi) contains language that allows the state to designate values for additional water quality control parameters to reflect optimal corrosion control for the water system. Thus, for systems where the state has designated calcium, conductivity, and temperature as optimal WQPs for calcium carbonate precipitation or other reasons, the states will still have the authority to designate the necessary WQPs to allow these systems to maintain this treatment as optimal corrosion control unless the system exceeds the lead trigger level or action level. This provision also allows the state to require other parameters such as oxidation-reduction potential or iron and manganese to demonstrate optimal corrosion control if the state believes they are critical parameters for corrosion control and the state can establish an effective range for the parameter. Several of the parameters listed by commenters would be important in evaluating long-term treatment changes, such as chloride and sulfate if a system is considering switching coagulants but may not be key parameters in assessing the effectiveness of the CCT. EPA believes that additional WQPs can best be implemented through this system-state interaction.
10.4 Monitoring frequency at Entry Points
Summary of Comments
Several commenters suggested more frequent entry point monitoring than the biweekly minimum required by the LCR. There were also several comments dealing with consecutive water systems where commenters are recommending that purchasing water systems be required to monitor at the interconnection with the wholesale system.
Agency Response
EPA notes that the biweekly monitoring is a minimum and systems can and should monitor more frequently, especially to ensure good process control. EPA notes that the LCRR retains the existing calculation procedures in § 141.82(g)(1), (2), and (3) for calculating daily values for WQPs ranging from multiple samples on the same day to days where no sample is collected. Systems sampling daily (or more frequently) are already covered by the rule, even prior to the LCRR. The daily value under § 141.82(g)(3) when no measurement is taken is the daily value shall be the daily value calculated on the most recent day on which the WQP was measured at the sampling location. Systems only sampling biweekly would incur a treatment technique violation if they wait 14 days to take an entry point sample following the initial excursion.
EPA notes that the monitoring of consecutive systems in § 141.29 is outside the scope of the LCR. The language in this section states that the state may modify the monitoring requirements imposed by this part to the extent that the interconnection of the systems justifies treating them as a single system for monitoring purposes. In approving a consecutive system agreement that reduces monitoring, states could require samples at the interconnection along with samples in the distribution system of the purchasing system.
References
Renner, R. 2009. Out of Plumb: When Water Treatment Causes Lead Contamination. Environmental Health Perspectives. 117(12): A542-547.
Tully, J., M. Desantis, and M. Schock. 2019. Water quality  -  pipe deposit relationships in Midwestern lead pipes. AWWA Water Science. 2019; e1127.
United States Environmental Protection Agency (USEPA). 2007. "Elevated Lead in D.C. Drinking Water  -  A Study of Potential Causative Events, Final Summary Report. EPA 815-R-07-021. August 2007.
USEPA. 2007. National Primary Drinking Water Regulations for Lead and Copper: Short-Term Regulatory Revisions and Clarifications; Final Rule. Federal Register 72(195):57782. October 10, 2007. Washington, D.C.: Government Printing Office.
USEPA. 2016. "Optimal Corrosion Control Treatment Evaluation Technical Recommendations for Primacy Agencies and Public Water Systems. EPA 816-B-16-003. March 2016 (Updated).
USEPA. 2017. "Review of the Michigan Department of Environmental Quality Drinking Water Program  -  2016." Final Report October 24, 2017.
USEPA. 2020. Economic Analysis for the Final Lead and Copper Rule Revisions.
11 Source Water Monitoring
EPA received comments on the proposed requirements in § 141.88 - Monitoring Requirements for Lead and Copper in Source Water. The Agency received comments on the need for a thorough evaluation and approval prior to source water and treatment changes, waivers for source water monitoring, guidance on the state approval process and requirements following source water changes, and source water monitoring requirements and reporting.
11.1 Need for Evaluation Prior to Source Water and Treatment Changes
Summary of Comments
Some commenters stressed the need for any changes in source water or treatment to be thoroughly evaluated and approved prior to implementation. These commenters expressed concern that the proposed Lead and Copper Rule revisions (LCRR) do not adequately address the drivers of large-scale lead in drinking water problems in the past at water systems in Flint, MI; Washington, DC; Pittsburgh, PA; University Park, IL; and others. Other commenters were concerned that the proposed revisions are not sufficient to prevent similar events from occurring in the future. A commenter suggested that clarity is need on when a new corrosion control treatment (CCT) study, re-optimization, or additional monitoring will be required in preparation for a source or treatment change. Additional detail is needed for water systems to understand when they are required to submit written documentation to the state for approval for source and treatment changes; what the level of state review and evaluation entails; and the appropriate actions. The commenter requested specific circumstances be considered in the LCRR, such as "Where any other event impacts water quality such as a contamination incident or modification to the water system not related to the Lead and Copper Rule," and "Where a small system might think they can discontinue or stop CCT without notifying the state or undertaking any follow up actions. Examples of treatment changes that a small system might consider insignificant or `not CCT-related' but still impact water quality and corrosivity include (but not limited to): discontinuing or changes to iron and manganese sequestration, changes in mixed phosphate and orthophosphate chemicals, changes in treatment pH goal or operating range; and change in free chlorine residual goal or operating range at the entry point to the distribution system."
One commenter recommended that EPA "...require water systems to notify all consumers when they are considering source water and treatment changes, and make any studies investigating potential changes - including corrosion control studies - available to the public." Comprehensive water quality studies were emphasized by one commenter as a critical means of protecting public health. This commenter stated that "[s]uch studies can also identify whether different overall treatment approaches might be more effective at controlling contaminants of concern rather than adding treatment to address one contaminant at a time." One commenter stated that any change in water source should be evaluated to determine the need for corrosion control measures, emphasizing that source water changes should not be driven solely by politics or economics.
One commenter wrote that the proposed LCRR requires only water systems with reoptimized or optimized corrosion control to notify the state in writing prior to a source or treatment change. The commenter recommended the Agency clarify that the requirement to evaluate source water and treatment changes applies to all water systems subject to the LCRR.
Agency Response
EPA agrees with commenters stating the need for any addition of a new source or long-term treatment changes to be evaluated and approved prior to implementation. EPA acknowledges the importance of fully evaluating potential changes in water quality that result from adding a new water source and/or treatment that may impact the effectiveness of CCT. Changes in water quality have been demonstrated to impact CCT effectiveness as seen in Flint, MI; Washington, DC; and other localities. Therefore, the proposed and final LCRR §141.90(a)(3) requires all water systems that add a new source or make long-term treatment changes to obtain approval from the state before the new source is added or the treatment change is implemented by the water system. EPA is not including more specific provisions in the LCRR to describe all of the potential source water changes or treatment changes that would require state approval as some commenters recommended. It is not possible to give highly targeted guidance in a rule for system-specific circumstance because of the wide variation in system sizes, capacity, source water types, and treatment. Additionally, the state may require any such water system to conduct additional monitoring or to take other actions the state deems appropriate. The final LCRR §141.90(a)(3) provides that a water system must submit written documentation to the state describing the change or addition. The state must review and approve the addition of a new source or long-term treatment change before it is implemented by the water system. For more information on systems with CCT in place that choose to elect a small system flexibility, see the response to comment Section 7.4.
EPA does not agree with the commenter recommending that the LCRR requires public notification of source water treatment changes or investigations of potential source water changes, as well as public availability of CCT studies. EPA agrees that increasing consumer awareness is critical for public health protection. However, EPA does not believe that a regulatory requirement for public access to information is necessary for an intended source water or treatment change or a CCT study. Further, EPA has determined that providing public access to source water data may be confusing to consumers who might think they represent lead levels at the tap. It may be a burdensome requirement for water systems to present this information in a manner that the public will readily understand. EPA is strengthening other provisions in the LCRR, including public education and notification requirements, that are likely to be more informative and beneficial for consumers. See the response to comment Section 8.0 for more information on public education.
EPA agrees with the commenter that noted the language that requires water systems to notify their state in writing prior to addition of a new source or treatment as written in the proposed LCRR was inadvertently written as a requirement limited to systems with reoptimized or optimized corrosion control. EPA corrected the final LCRR §141.90(a)(3) to require reporting for all systems subject to the LCRR. For more information on guidance and reporting requirements prior to a new source or long-term treatment change, see response to comment Section 11.3. and response to comment Section 15.
11.2 Waivers for Source Water Monitoring
Summary of Comments
Several commenters expressed support for source water monitoring waivers as outlined in the proposed LCRR. One commenter specifically expressed support for source water monitoring waivers to be issued by the state or primacy agency in the case of an action level exceedance as outlined in the proposed LCRR. One commenter opposed the provision of a source water monitoring waiver and stated the "[w]aiver for source water sampling is inappropriate when the data is not available to the public. Remove this new requirement." Although in support of the waiver, another commenter emphasized that lead can occur naturally in source water in some geologic settings and that they have "more than a dozen public water systems that treat for naturally occurring, elemental lead found in their source water and even more systems with low levels of lead that do not require treatment." The commenter suggests that the final LCRR language be amended to reflect this and that Agency websites and factsheets also reflect this.
Agency Response
EPA agrees with commenters' support for the monitoring waivers for source water monitoring under certain circumstances. Lead and copper are rarely found in the source water in significant quantities (Chin and Karalekas, 1985; USEPA, 1988; USEPA, 1990); thus, where the state has decided that source water treatment is not needed, as specified in §141.83(b), the state may waive source water monitoring for any subsequent action level exceedance under the specific conditions specified in §141.88(b)(1)(i) through (iii).
In response to the commenter that suggested waivers only be issued if source water monitoring results are required to be made public. EPA does not agree that waiving source water monitoring should be determined based on whether or not the data is publicly available, it should be based on previously measured concentrations and the three considerations stated above. The source water monitoring waiver criteria do not preclude states, or utilities from obtaining the source water information necessary to determine if source water treatment is needed. States retain the ability to require additional source water monitoring following an action level exceedance and can only issue waivers under the conditions allowed in the final LCRR §141.88(b)(1)(i) through (iii). For more discussion of source water monitoring results availability, see response to comment Section 11.4.
In response to commenters suggesting that EPA acknowledge that lead and copper are naturally found in source water, the Agency does not dispute that lead and copper may be found in source water in certain geologic settings and has revised all Agency materials to reflect that. Section 141.88(c) of the LCRR requires that any system which adds a new source must collect one source water sample from each entry point to the distribution system (EPDS) until the system demonstrates that drinking water entering the distribution system has been maintained below the maximum permissible lead and copper concentrations specified by the state in § 141.83(b)(4).
11.3 New Sources and Guidance on the State Review, Approval and Requirements Following Addition of New Sources and Treatment Changes
Summary of Comments
Many commenters asked for further clarification on what constitutes a new source under the final LCRR §§141.88 and 141.90. Commenters provided examples of complicating circumstances that may make this distinction unclear, such as addition of a small water source to a larger water source with different water quality parameters (WQPs). One commenter requested that EPA clarify under what conditions a source water change should be considered a new source and trigger requirements or further actions. The commenter recommended that the Agency consider establishing thresholds for percent change in WQPs following source water changes above which the rule would require additional actions.
Other commenters identified specific situations that they don't believe should be considered a new source under the final LCRR. One commenter requested that EPA clarify that expanding the capacity of existing sources and treatment facilities is not considered a source water or treatment change. One commenter requested that "[n]ew groundwater wells drawing from the same aquifer as existing approved groundwater wells, demonstrated to have comparable pH and alkalinity as existing wells should not compel a re-optimization of corrosion control." Another commenter agreed that a new well from the same field should not be considered a new source and requested that EPA include a provision to demonstrate equivalent water quality of the new well in the final LCRR. A commenter asserted that including a matrix of common source and treatment changes and guidance on the type of additional study that the state should consider requiring would be invaluable when communicating with systems about the potential impacts of these changes and help systems more adequately plan for corrosion control studies. One commenter recommended EPA consider exemptions to seasonal changes in water sources that have already been considered in CCT development and approved by the state. This commenter recommended that any increased tap sampling frequency change should include criteria to allow systems to go back to routine or reduced tap sampling.
Many commenters asked that EPA increase specificity in the rule language, provide guidance, or both on the process that water systems must follow to request state approval prior to a new source water or treatment change. The commenters also recommended that the Agency provide guidance for states on how to review and approve the proposed source water or treatment changes. One commenter stated that the guidance must provide clear instructions about the types of documentation that the water systems must submit to the states when planning for source water or treatment changes. Likewise, the guidance must provide clear instructions and tools for states to evaluate those requests for source water or treatment changes and develop strong criteria for approval of these changes. Commenters asked that the Agency also provide guidance for specific circumstances such as when is a pipe loop study vs. a CCT study is needed when new sources require re-evaluation. This commenter also suggested that a matrix of common source and treatment changes and guidance on the type of study states should consider requiring would be invaluable when communicating with systems about the potential impacts of these changes and help systems more adequately plan for corrosion control studies. Also, commenters emphasized that the Agency must explain the implications of these requirements for wholesale and consecutive systems.
Agency Response
EPA recognizes, as some commenters stated, that it may be challenging for states to determine the criteria for approval of new sources and treatment changes. EPA is not including more specific provisions in the LCRR to describe all of the potential source water changes or treatment changes that would require state approval given the wide variation in system size, capacity, source water types, and treatment. EPA received several comments requesting Agency guidance on implementation of the revised rule, including this issue. EPA understands this is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop guidance and provide training and other supporting materials to assist primacy agencies and drinking water systems in achieving the public health protections under the LCRR. In response to questions regarding applicability, the reporting and need for state approval requirement in §141.90(a)(3) applies to wholesale and consecutive systems.
11.4 Source Water Monitoring Requirements and Reporting of Results
Summary of Comments
Several commenters opposed the use of the term "source water" in the Lead and Copper Rule (LCR). One commenter argued that "[a] sample collected at the entry point to the distribution system and after any application of treatment is an entry point sample and should be called such. Calling an entry point sample, a `source water sample' is confusing." Commenters stated that source water can be a misleading term indicating water at the intake rather than at the EPDS and suggested changing the term in the final LCRR from "source water" to "entry point to the distribution system."
One commenter suggested that source water monitoring should occur more frequently and be conducted at both the utility intake and the EPDS. The commenter argues "If they are taking their single `source water sample' in a source of fluctuating water quality, and they catch it on a good day, the treatment could be adequate for removing the contaminant from that source. However, if that contaminant fluctuates up in that source water, it is entirely possible that existing treatment might no longer be adequate for removing that contaminant. A single entry point sample that is called a "source water sample" is a sham when it comes to providing information about whether lead might be present in source water." The commenter noted that a single sample does not inform the variability of source water quality and potential need for treatment responses.
The commenter also proposed that source water monitoring results must be made available to the public in the same way that other lead data are. The commenter argued that "water systems frequently state that lead is not found in their source water but they do not make this data available to the public..." and "in a related note, the ability of state to determine a "maximum permissible source water level" is difficult to reconcile with the rest of the LCR that claims that lead in water comes only from pipe, solder, fittings, and fixtures. Lead should be non-detectable at the entry point to the distribution system."
Agency Response
Several commenters suggested to change the use of the term "source water sample" for a sample that is collected at the EPDS. One of the commenters found the use of the term "source water confusing." EPA disagrees. The term "source water sample" has been used in the 1991 LCR since it was first promulgated (USEPA, 1991). Most water systems and states are familiar with how this monitoring is to be conducted. Because water systems may have treatment in place that reduces lead and copper before it enters the distribution system, EPA has determined the EPDS to be the appropriate place to monitor lead and copper levels. Monitoring at the utility intake and the EPDS would be redundant. Monitoring at EPDS is more protective because, if no lead is present in the EPDS, it means that either there is no lead or copper in the source water, or that treatment is effective for those water systems where lead or copper are found in source water (i.e., the water system is meeting the state-established maximum permissible source water levels).
In addition, the rule provides some flexibility by allowing water systems to collect a sample in the distribution system at a point which is representative of each source after treatment in lieu of the EPDS. The Agency has found it is important to provide the option to take source water samples at other more representative locations in the distribution system, if applicable. In some cases, system-specific circumstances make source water samples elsewhere in the distribution system more representative of source water quality, such as water systems that augment their water supply. For example, some systems may have a well or wholesale supplier that connects directly into the distribution system at a location separate from the facility's EPDS. The Agency will finalize these requirements as proposed.
EPA decided not to revise the provision for state review of source water treatment and specification of maximum permissible source water levels. The provision in §141.83(b)(4) requires that the maximum permissible lead and copper concentrations for finished water entering the distribution system reflect the contaminant removal capability of the properly operated and maintained treatment and the state must explain the basis for its decision. EPA does not agree that the maximum permissible source water levels should be mandated as a single value nationally because differences in source water including those certain geologic settings where lead may be found naturally create variability.
In response to commenters concern about source water quality variability, §141.88(c) of the final LCRR requires that any system which adds a new source shall collect one source water sample from each EPDS until the system demonstrates that finished drinking water entering the distribution system has been maintained below the maximum permissible lead and copper concentrations specified by the state in § 141.83(b)(4). EPA has determined that this requirement is adequate for states and water systems to understand and address any fluctuations in source water lead levels that may occur.
EPA disagrees with the commenter that recommended that source water monitoring results should be required by the LCRR to be made publicly available because source water sampling results are not representative of water quality at the tap. The proposed and final LCRR strengthen requirements regarding public education and public notification of tap water lead and copper monitoring results, which is a more informative measure of potential exposure than source water monitoring results. See response to comment Section 8 for more information.
References
Chin, D. and P.C.F. Karalekas. 1985. Lead product use survey of public water supply distribution systems throughout the United States. In: Plumbing Materials and Drinking Water Quality: Proceedings of a Seminar Held at Cincinnati, Ohio, May 16 - 17, 1984. EPA 600/9-85-007, US Environmental Protection Agency, Washington, DC, pp. 132 - 146.
United States Environmental Protection Agency (USEPA). 1988. U.S. Environmental Protection Agency. Memorandum to Arthur Perler, Science and Technology Branch from Jon Longtin, Water Supply Technology Branch regarding Distribution Tables for NIRS Results. February 23, 1988.
USEPA. 1990. U.S. Environmental Protection Agency. Update of the National Inorganic and Radionuclides Survey (NIRS) for Lead. From Jeff Cohen to Docket (July 1990).
USEPA. 1991. National Primary Drinking Water Regulations: Control of Lead and Copper; Final Rule. Code of Federal Register, 40 CFR parts 141 and 142. Vol. 56, No. 110. June 7, 1991.
12 Sampling for Lead in Schools and Child Care Facilities
In the proposed rule, EPA requested comments on requiring community water systems (CWSs) to conduct public education and monitoring for lead in schools and child care facilities once every five years (mandatory), specifically:
"The EPA requests comment on whether it should revise the rule to require community water systems (CWSs) to offer to collect samples from schools and child care facilities every five years or to collect samples from a school or a child care facility only if requested (on request). CWS would still be required to provide the schools and child care facilities information on the health effects and sources of lead in drinking water, and the 3Ts guidance."
EPA received many comments on the proposed requirements in §141.92 including comments on both the mandatory and on request options, comments in opposition to the requirements, and requests for exemptions to the requirements. EPA received comments on the sampling details in §141.92(b) such as the number of required samples, sampling frequency, collection protocol, and applicability of the requirements. EPA also received comments on the role of CWSs including compiling a list of schools and child care facilities in §141.92(a), conducting outreach in §§141.92(a) and (c), comments on whether CWSs should be responsible for the requirements over other entities, and comments on the financial and personnel burden of the requirements. EPA also received comments on the lack of remediation requirements and associated action level for schools and child care facilities and the provision of results in §141.92(f). Finally, EPA received many comments on granting waivers under §141.92(d) to CWSs where schools and child care facilities are being tested for lead through existing state or local programs.
12.1 Mandatory vs. On Request Sampling of Schools and Child Care Facilities
Summary of Comments
EPA received comments on the proposed requirements in §141.92 for CWSs to conduct public education and monitoring for lead in schools and child care facilities once every five years (mandatory). EPA specifically asked for comment on an alternative proposal for CWSs to conduct monitoring for lead in schools and child care facilities only when requested by the facility (on request). In the on request option, CWSs would conduct annual outreach to schools and child care facilities informing them of the opportunity to be tested. Some commenters supported the proposed requirements citing the importance of testing in schools and child care facilities, while others supported the alternative option citing the benefits of providing public education materials and sampling to interested facilities while reducing burden to CWSs. EPA also received comments suggesting a third "voluntary" option and removal of mandatory requirements from the final rule. Some commenters asserted that CWSs should not be required to conduct sampling in schools and child care facilities and that the responsibility should fall on the school or child care facility or other entity. Others stated that the requirements are an "overreach" and cited concerns about costs and CWS resources. These comments are discussed in further detail below.
Agency Response
Based on public comments, EPA has decided to combine the proposed and alternative options by incorporating both mandatory and on request sampling into the final rule. EPA has revised requirements such that a CWS will conduct public education outreach and sampling in elementary schools and child care facilities as described in the proposed requirements for one cycle of sampling (over a 5 year period). EPA has added a new requirement which states that while a CWS is conducting sampling in elementary schools and child care facilities, they will also conduct outreach to secondary schools annually, but will only conduct sampling at the request of the facility. After a CWS completes sampling in all elementary schools and child care facilities they serve once, they must continue to conduct outreach to all schools and child care facilities annually, but will only conduct sampling at the request of the facility. During the one cycle of mandatory sampling, CWSs will be required to sample 20 percent of the elementary schools and child care facilities they serve per year.
The Lead and Copper Rule revisions (LCRR) school and child care sampling requirements are part of a targeted public education effort to educate schools and child care facilities and their users of the risks from lead in premise plumbing and the importance of sampling for lead in drinking water as well as to help them make decisions to mitigate lead risks. EPA has included these requirements because students and young children are especially vulnerable to lead exposure and spend a large portion of their day in schools and child care facilities. The requirement for CWSs to conduct sampling provides an added measure of protection, above the other elements of the treatment technique rule, in light of the vulnerabilities of the population served and the potential variability of lead levels within the system and within a school or child care facility over time. Lead levels vary between outlets within a building and over time. The lead in drinking water information provided by the LCRR school and child care sampling requirements provides facilities with an improved understanding of the importance of lead testing, and is not a replacement for comprehensive testing as detailed in the 3Ts (USEPA, 2018a). These sampling requirements will provide a preliminary screen for lead in drinking water at schools and child care facilities. The one cycle of sampling for elementary schools and child care facilities accompanied by continued lead in drinking water outreach will provide schools and child care facilities with an understanding of how to create and manage a drinking water testing program that is customizable to their needs. Children under the age of 7 are at the greatest risk of drinking water lead exposure, and prioritizing sampling in those facilities with the greatest risks will reduce burden on CWSs and will enable them to focus upon those schools and child care facilities with the most susceptible population. This construct will also allow CWSs, following the initial two cycles of sampling, to focus resources on sampling in schools and child care facilities that request assistance. EPA anticipates that after one sampling cycle, elementary schools and child care facilities will better understand the process and benefits of  lead testing and be more likely to implement their own 3Ts programs. Secondary schools will be tested for lead by the CWS on request during the first sampling cycle. Thereafter, any school or child care facility  interested in further assistance will have the opportunity to be tested for lead by the CWS on request prompted through annual outreach.
Proposed Mandatory and Alternative On Request Options for Sampling
Summary of Comments
Some commenters supported the proposed requirements of §141.92, citing the health risks posed by lead in schools and child care facilities, the significant time children spend in these facilities, the benefits of protecting children from lead exposure, and asserting CWSs have the technical expertise to assist with sampling. A few commenters "commended" the addition of the proposed requirements, expressed their agreement with increased sampling at schools and child care facilities, and asserted that standardized lead testing will "help to keep kids safer." One commenter noted they "strongly encourage" sampling of drinking water outlets in schools and child care facilities by the CWSs while another stated that mandatory testing should be required for "all fountains and drinking sources that children use." Another commenter expressed support for mandatory sampling noting that while some states have implemented testing programs, many states lack requirements. A commenter also requested that the proposed requirements apply to child cares regardless of whether the facility is commercial or operated from a home. Some commenters objected to the alternative proposal and suggested that schools and child care facilities may not request lead sampling due to a lack of knowledge about lead risks and the importance of sampling for lead, or fear of the results. One commenter noted that in their experience, child care facilities may be particularly reluctant to request testing for these reasons. A few commenters further noted that facilities with fewer resources or public accountability may be less likely to request lead sampling from the CWS and could result in inequitable access to safe drinking water.
Conversely, some commenters preferred sampling on request if the requirements of §141.92 are retained, noting that water systems could spread costs and resources over multiple years while still providing benefits to school and child care facilities through annual outreach as proposed and suggesting that §141.92 state that CWSs must "offer" to sample for lead. One commenter suggested that the participation rate for on request sampling would not differ from the proposed requirements, while others noted instances of low school and child care facility participation rates during voluntary sampling programs. Another commenter stated that under a state testing program, few samples exceeded the action level for lead, and that repeat sampling "in perpetuity" as proposed, would increase costs over time and provide fewer benefits.
Some commenters expressed concern that CWSs would be subject to violations if a school or child care facility did not respond to CWS outreach, and suggested that the on request option would remove "arbitrary targets or benchmarks for the water system to meet" as well as encourage collaboration among CWSs and schools and child care facilities. Some commenters stated that if the requirements of §141.92 remain, that clarification is needed in §141.92(d) to allow states with existing programs that require or offer lead testing and remediation to exempt CWSs from the requirements.
Agency Response
EPA agrees with comments on the importance of public education and sampling in schools and child care facilities, and notes support for these requirements. EPA proposed these requirements because students and young children are especially vulnerable to lead exposure and spend a large portion of their day in schools and child care facilities. The intent of the requirement for CWSs to conduct sampling at schools and child care facilities is to inform and educate targeted CWS customers and users about risks for lead in premise plumbing at schools and child care facilities since large buildings, such as schools, can have higher potential for elevated lead levels due to complex premise plumbing and inconsistent water use patterns. Furthermore, the requirements provide an added measure of protection, above the other elements of the treatment technique rule, in light of the vulnerabilities of the population served and the potential variability of lead levels within the system and within a school or child care facility over time. The combination of potential higher lead levels in large buildings, vulnerability of children to lead, and the length of time spent at schools and child care facilities presents lead risks to children that can be mitigated through public education, sampling, and voluntary remediation actions.
EPA acknowledges both commenter concerns regarding potentially low participation levels for on request sampling and concerns regarding facilities with fewer resource and the potential inequalities that could arise as a result. EPA agrees with commenters that the on request sampling option will provide benefits to schools and child care facilities through annual public education requirements. However, EPA disagrees that participation rates for the on request alternative will likely not differ from the participation rate in the mandatory option. As noted by commenters, participation has typically varied across voluntary programs for school and child care sampling. In the final rule, EPA has maintained the proposed requirements for one cycle of sampling in all elementary schools and child care facilities because public education and water system sampling will provide schools and child care facilities with experience and assurance in the process and benefits of managing a drinking water testing program and the information necessary for them to take actions to reduce lead risk. Elementary schools and child care facilities serve children with the greatest risks from lead exposure, and one cycle of mandatory sampling reduces the burden on CWSs while enabling them to prioritize facilities with the most susceptible population. EPA anticipates that after one mandatory sampling cycle, elementary schools and child care facilities will better understand the importance of lead testing and will be more likely to implement their own sampling programs utilizing the 3Ts Toolkit. EPA notes that secondary schools will receive annual outreach from the CWS and may request sampling during the initial cycle of mandatory sampling in elementary schools and child care facilities. After the initial sampling cycle (5 years), schools and child care facilities that are interested in further assistance will be able to request lead sampling from their CWSs. While one commenter indicated that sampling "in perpetuity" will increase costs and reduce benefits over time, the Agency notes that lead levels at an outlet or within buildings have been shown to vary with repeat testing over time. Offering sampling on request after one cycle of mandatory sampling in elementary schools and child care facilities maintains the benefits of public education and sampling while also allowing CWSs to focus resources on sampling in schools and child care facilities that request assistance, particularly those serving vulnerable or disadvantaged populations and facilities that are not currently testing for lead. While not required, EPA encourages CWSs to consider factors such as age of students, building construction date, socioeconomic indicators, presence of lead service lines (LSLs), and federal funding through Title 1 (20 USC 6301 et seq.) and Head Start (42 USC 9801 et seq.) to prioritize sampling in facilities that serve vulnerable or disadvantaged populations. EPA reiterates that CWSs must offer sampling on request to all secondary schools they serve during the one cycle of mandatory sampling in elementary schools and child care facilities. EPA disagrees with commenters who suggest sampling all outlets used by children for drinking. EPA has retained the proposed requirement for CWSs to sample five outlets per school and two outlets per child care facility. These requirements are intended as a preliminary screen for lead in drinking water and an improved understanding of the importance of lead testing and is not a replacement for comprehensive testing as detailed in the 3Ts (USEPA, 2018a).
The Agency recognizes that some commenters are concerned that a lack of school or child care facility response will place the water system in non-compliance and that a CWS must meet "a target" of sampling 20 percent of facilities per year. EPA also notes that some commenters cited these concerns as rationale for supporting sampling on request only. EPA agrees with commenters that the CWS does not have the authority to "force" schools or child care facilities to participate in sampling and that some facilities may not respond to outreach. The Agency does not intend for CWSs to be subject to violations based on lack of school and child care facility participation. In response to comments, EPA revised the requirements to allow a CWS to document a non-response after they have made two "good faith" efforts to reach the facility, and will only apply to elementary schools and child care facilities during the one cycle of mandatory sampling. The Agency also clarified that both non-responses and refusals may be accounted for in the 20 percent of elementary schools and child care facilities sampled per year during the first five years after the compliance date. Likewise, EPA notes concerns from commenters regarding challenges identifying the schools and child care facilities they serve. As noted in the final rule water systems must make a "good faith" effort in developing and maintaining the list of schools and child care facilities. See the response to comment Section 12.3 for further details.
Support for a Voluntary Sampling Option
Summary of Comments
Some commenters agreed with the concept of CWSs assisting with lead sampling in schools and child care facilities but suggested that any efforts be left to the discretion of CWSs (voluntary) as lead risks in institutional buildings are often due to premise plumbing. A few commenters suggested CWSs should provide support as resources allow in lieu of a "regulatory compliance role" where they would be subject to violations for non-compliance. Other commenters expressed concern regarding recurring sampling at facilities with "no lead contamination in premise plumbing." One commenter stated that schools and child care facilities are responsible for providing "a healthy environment for children in their care" and that CWSs should be prepared to assist facilities as a "civic service" and not through a regulatory requirement. One commenter noted that grants for school and child care testing established by the Water Infrastructure Improvements for the Nation (WIIN) Act (section 1464(d) of the Safe Drinking Water Act (SDWA)) are currently being implemented and suggested that CWSs could assist in ongoing efforts voluntarily.
Agency Response
EPA disagrees with commenters that CWSs should only provide testing and support for schools and child care facilities on a voluntary basis and commenters requesting that the requirements be removed from the final rule. Voluntary participation by CWSs is not significantly different than current efforts. EPA notes that while some states and localities have established mandatory and voluntary programs to test for lead in schools and child care facilities, many schools and child care facilities have not been tested for lead. In a 2017 national survey, the Government Accountability Office (GAO) found that 41 percent of school districts had not tested for lead and 16 percent did not know if they ever had (GAO, 2018). Furthermore, 60 percent indicated they were not familiar with the 3Ts guidance. The requirement to test for lead in schools is an opportunity to address this education gap through CWSs providing public education and sampling for lead in schools and child care facilities. EPA notes that one commenter suggested removing sampling requirements and "modifying the small system flexibility requirements of §141.93 option (3) for point-of-use [POU] devices to apply to schools and child cares" citing that POU devices would "immediately reduce lead levels in schools and child care facilities." However, EPA notes that most schools and child care facilities are not public water systems regulated under the SDWA and the Agency does not have the regulatory authority to require these facilities to install and maintain POU devices or to require them to implement testing programs. EPA further notes that requirements authorized by the SDWA for CWSs to take steps to prevent health effects from lead exposure are not a "civic service" to customers.
EPA also disagrees that CWSs do not have the necessary experience to conduct lead sampling in schools and child care facilities. Water systems have developed the technical capacity to do this work in operating their system and complying with current drinking water standards. EPA acknowledges commenters who state that many CWSs do not have experience addressing premise plumbing issues. EPA notes that CWSs are not required under §141.92 to conduct remediation activities or replace premise plumbing.
Removal of Sampling Requirements from Final Rule
Summary of Comments
Some commenters argued that CWSs lack the authority to compel schools and child care facilities to submit to testing, that CWSs do not have the necessary expertise to sample and address plumbing issues in schools and child care facilities, that CWSs are not responsible for premise plumbing, and that CWSs should not have to pay for school sampling. One commenter asserted that sampling for lead in schools and child care facilities "should not be addressed through [the] SDWA," but also stated that if retained, the CWS role should be "supporting sampling upon the request of these facilities." Another stated that the requirements for CWSs to sample all schools and child care facilities once every five years are an "overreach." One commenter stated that the proposed requirements have federalism implications and that without an exemption CWSs "operating in states that prohibit cross-subsidization, the proposed program is contrary to law." The commenter further stated that the requirements affect the "distribution of power" between states and the federal government and requested a federalism summary impact statement. A few commenters further stated that schools have demonstrated the ability to conduct their own sampling, that public funding cannot be used on private property, and that it is unlawful to "force water systems to ensure that protocols have been followed in legally separate facilities."
A few commenters supported the concept of monitoring for lead in schools and child care facilities but suggested that the requirements be removed from the final rule. They stated that state education and child care licensing agencies are better positioned to address water quality and safety issues within these facilities. One commenter stated that the proposed requirements would not provide benefits to schools and child care facilities due to limited sampling and lack of remediation while also imposing a financial burden on water systems.
Agency Response
EPA disagrees with commenters who state that EPA does not have the authority to include requirements for school and child care lead testing under the SDWA and that the requirements will not provide benefits. EPA's authority to promulgate the requirement for CWSs to conduct sampling and public education for this vulnerable subset of customers is under 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 1412(b)(7)(A)). The sampling requirements are part of a targeted public education effort to educate schools and child care facilities and their users of the risks from lead in premise plumbing, the importance of sampling for lead in drinking water, and to help them make decisions to mitigate lead risks. EPA disagrees that the proposed requirements are an "overreach" of this authority. Large buildings such as schools can have a higher potential for elevated lead levels because, even when served by a water system with well operated optimal corrosion control treatment (OCCT), there may not be technical improvements that the system can make to the OCCT. However, with information about lead levels, risk can be mitigated through public education and voluntary remediation action such as replacement of premise plumbing. The LCRR requires distribution of information on the 3Ts program along with testing results to both increase awareness of the need for lead testing and provide schools and child care facilities with information and tools to reduce lead risks in their drinking water. EPA anticipates that increased familiarity with the 3Ts will assist facilities in taking steps to reduce lead risks. Therefore, school and child care facility sampling contributes to increased public awareness of the potential for elevated levels of lead in premise plumbing independent of a water system's 90[th] percentile value. In addition, EPA disagrees with the premise that state prohibitions on cross-subsidization are implicated since schools and child care facilities are customers of the utilities and sometimes so are the families of the children at the schools and child care facilities. The public health benefit to the vulnerable population of children will likely benefit all rate payers. Because the public health benefit is to the entire community, testing in schools and child care facilities would not be a "service" to any specific rate payers that might trigger cross-subsidization requirements. Therefore, federalism principles would not be at issue since the requirement would not require a shift of balance between a utility following state law or federal law.
EPA also disagrees that school and child care lead sampling would be more appropriately addressed by another entity, such as school and child care licensing agencies, the state, or through other mechanisms such as interagency agreements. Please see the response to comment Section 12.4 for discussion.
EPA notes that there were many comments on existing state and local lead sampling efforts and requests for flexibility in implementing the proposed requirements. Some commenters stated that the proposed requirements would be a "duplication" of efforts where there are ongoing programs and data collection. EPA acknowledges that there are various state and local sampling requirements, schools and child care facilities conducting sampling as part of district or internal policy, and voluntary programs funded through grants under Section 1464(d) of the SDWA (WIIN Act: Lead Testing in School and Child Care Program Drinking Water). EPA notes that the Agency conducted a thorough review of existing state requirements of school and child care facility sampling programs. See Chapter 4, Section <IP_ADDRESS> of the "Economic Analysis for the Final Lead and Copper Rule Revisions" for details (USEPA, 2020a). EPA disagrees with comments that §141.92 would result in duplicative sampling but acknowledges that additional clarity is needed. In response to these comments, §141.92(d) has been updated to clarify situations under which states may exempt water systems from the requirements of §141.92. Please see the response to comment Section 12.8 for details. EPA also received a comment that the Agency had not considered the number of non-transient non-community water systems (NTNCWSs) that are schools and child care facilities and are subject to lead sampling requirements under §141.86. EPA accounted for schools regulated as NTNCWS in state-level estimates of schools and child care facilities (see Chapter 4, Section <IP_ADDRESS> of USEPA (2020a) for details) and notes that the requirements of §141.92 do not apply to NTNCWS.
12.2 Scope of Monitoring Requirements and Sampling Protocol
EPA received comments on the proposed requirements in §141.92(b)(1) for CWSs to "collect five samples per school and two samples per child care facility at outlets typically used for consumption." This includes comments on the required outlets in §§141.92(b)(1)(i-iv) and sampling protocol in §141.92(b)(1)(v). EPA also received comments on the required frequency of sampling in §141.92(c)(3) of once every five years and on the related requirement in §141.92(b)(1)(v)(D) that "samples may be collected by either the customer, school or child care facility, or the water system." Finally, EPA received comments on the applicability of §141.92 and received requests for exemptions based on factors such as testing results, LSL status, and system 90[th] percentile lead levels.
Number of Samples and Frequency of Sampling
Summary of Comments
Some commenters stated that the proposed requirements in §141.92(b)(1) to collect samples from five outlets per school and two outlets per child care facility is inadequate and recommended that the number of taps sampled should be in proportion to the size of the facility and or total number of taps. A few commenters stated that the requirements may not capture the variability of lead within these facilities, that limited sampling may create a "false sense of security" or be "misleading" for facilities receiving low or no detections of lead, and that EPA has not justified limited sampling. Some commenters indicated the sampling scheme is incapable of capturing worst case scenario lead levels and lacks a requirement for remediation. Some commenters noted that the proposed number and frequency of sampling is inconsistent with EPA's 3Ts (USEPA, 2018a), which recommends sampling all outlets used for drinking and cooking annually, and requested that EPA align its requirements with the 3Ts. Commenters also noted that the 3Ts recommends follow-up second draw samples and suggested that CWSs collect additional samples for outlets that exceed a specified threshold. Conversely, one commenter suggested testing less frequently than once every five years due to limited water system resources and the commenter's perceived complexity of the requirement. Some commenters also requested that EPA clarify the types of outlets considered to have POU devices in §141.92(b)(1) and allow for sampling at these outlets.
Many commenters also requested clarification of the proposed requirements in §141.92(c)(1) for water systems to collect samples from at least 20 percent of schools and 20 percent of child care facilities served by the system per year. Some commenters stated that they interpreted the 20 percent to include facility refusals and requested clarification. A few commenters also suggested flexibility in scheduling sampling such that a water system could sample all facilities once every five years, but not be required to sample 20 percent each year. Some commenters indicated that requiring CWSs to sample 20 percent of facilities annually could be resource prohibitive for systems with a large number of schools and child care facilities. One commenter suggested the sampling schedule should be targeted and prioritize sampling the most susceptible populations and focus sampling where needed most (e.g., where CWS demonstrate inadequate corrosion control treatment (CCT)). Another comment stated that sampling limited to only 20 percent of facilities per year raises environmental justice concerns. A few commenters also requested information on how the sampling approach (e.g., number of samples, frequency of sampling, exemptions) aligns with environmental justice principles.
Agency Response
EPA is retaining the proposed protocol in §141.92(b) for lead testing in schools and child care facilities.  EPA has revised the proposed requirements to require CWSs to sample all the elementary schools and child care facilities they serve at least once during the first five years after the rule compliance date. EPA has added a requirement in §141.92(c) and §141.92(a)(4) that during the  one mandatory sampling cycle in elementary schools and child care facilities a CWS will offer to conduct sampling on request to secondary schools. After the one mandatory cycle, a CWS will offer to conduct sampling on request to all schools and child care facilities in accordance with §141.92(g) (see the response to comment Section 12.1 for more detail). The Agency disagrees that the required sampling approach is inconsistent with the 3Ts. The requirements in §141.92(b)(1)(vi) (§141.92(b)(1)(v) in the proposal) state that samples must be 250-ml first-draw with a stagnation time of 8-18 hours, which is consistent with the 3Ts. However, while the 3Ts recommends that schools and child care facilities sample all outlets used for drinking and cooking, the Agency notes that the proposed requirements in §141.92 are not intended to replace the 3Ts recommendations. The intent of §141.92 is to inform and educate targeted CWS customers and users about risks for lead in premise plumbing at schools and child care facilities. Sampling under §141.92 provides a preliminary screen for lead risks within schools and child care facilities, and is intended to initiate lead sampling in schools and child care facilities, particularly where no testing is currently being conducted. One cycle of CWS sampling in elementary schools and child care facilities are intended to reinforce the importance and benefits of  lead sampling in schools and child care facilities, while prioritizing facilities that serve young children who are at the greatest risk of drinking water lead exposure. EPA notes that all schools and child care facilities will receive annual outreach and have the opportunity to request sampling from their CWS.
The Agency disagrees with comments that results from a limited number of outlets will provide a "false sense of security" or be "misleading" if results show low or non-detected lead levels. The accompanying 3Ts clearly discusses the variety of factors (e.g., plumbing configurations, stagnation time) that should be taken into consideration when evaluating lead risks. CWS dissemination of public education materials (including the 3Ts Toolkit) is intended to inform schools and child care facilities of ways to mitigate lead risk, including expanded sampling, follow-up sampling, and remediation actions. For response to comments requesting a requirement for CWSs to conduct follow-up sampling, see response to comment Section 12.3. EPA anticipates that increased familiarity with the 3Ts will help to reduce potential misconceptions regarding sampling and strategies to reduce lead risks (see the response to comment Section 12.6 for more detail on remediation resources). The required testing by the CWS is not meant to supplant other recommended lead testing measures.
EPA is aware that schools and child care facilities may install POU devices on outlets typically used for cooking and drinking. To accommodate facilities that install POU devices, the Agency has added an additional provision in §141.92(b)(1)(iv) that outlets with POU devices may be sampled if POUs are installed on all outlets used for cooking and drinking. EPA has also revised §141.92(b)(1)(i) to include "classroom faucet or other outlet used for drinking" to accommodate situations such as sink units that include a faucet for hand washing and a water fountain style outlet for drinking. Some commenters requested clarification on what outlets to sample if the outlets specified in §§141.92(b)(1)(i) - (ii) are either not used for drinking or not present in the facility. The Agency notes that if a facility does not contain the type of outlet specified, another outlet typically used for consumption must be sampled, as stated in §141.92(b)(1)(v) in the final rule.
EPA has revised §141.92(c) in response to comments stating that the requirement to conduct sampling in at least 20 percent of school and 20 percent of child care facilities per year is unclear. The Agency has clarified in §141.92(c)(1) that a water system may count a refusal or non-response from an elementary school or child care facility as part of the 20 percent of facilities monitored per year during the one cycle of mandatory sampling for elementary schools and child care facilities. Please see the response to comment Section 12.3 for discussion on documenting non-responses and refusals. The Agency agrees that there may be cases where a water system may sample more than 20 percent of the elementary schools and child care facilities they serve per year and has revised §141.92(c)(2) to allow for an alternative sampling schedule to be approved by the state as long as each elementary school and child care facility identified in §141.92(a)(1) is sampled at least once during the  five year period following the rule compliance date. This will help accommodate situations where a CWS wants to conduct sampling in all facilities of one type in a given year (e.g., all elementary schools in the first year and child care facilities the second year).. EPA has added a new requirement in §141.92(c)(4) that CWSs must sample in secondary schools on request during the one cycle of mandatory sampling in elementary schools and child care facilities. CWSs are not required to fulfill a request for sampling from a given secondary school more than once during this five-year period (see the response to comment Section 12.3).  EPA notes that after one five-year sampling cycle, CWSs will only be required to sample in schools and child care facilities on request.
One commenter requested information on how this sampling approach aligns with environmental justice principles. EPA notes that all schools and child care facilities, regardless of socioeconomic factors, will receive outreach from their CWS and will have the opportunity to be sampled. While not required, EPA does recommend that CWSs consider a range of factors in prioritizing sampling in facilities most at risk for lead exposure (please see the response to comment Section 12.3 for further discussion). EPA is requiring CWSs conduct one cycle of mandatory sampling as proposed for elementary schools and child care facilities as these facilities serve the youngest children, who are the most vulnerable to lead exposure, and should be prioritized. EPA notes that secondary schools will be sampled on request and after the one cycle of mandatory sampling, all schools and child care facilities will be sampled by the CWS at the request of the facility. The requirements of §141.92, including mandatory and on request sampling, are intended to educate schools and child care facilities about the risks of lead in drinking water and inform them of ways to mitigate lead risks while allowing CWSs to focus resources on sampling in schools and child care facilities that request assistance. This includes facilities serving vulnerable or disadvantaged populations and facilities that are not currently testing for lead. EPA anticipates that after one sampling cycle elementary schools and child care facilities will better understand the process and benefits of lead testing and be more likely to implement their own 3Ts programs. However, facilities interested in further assistance will have the opportunity to be tested for lead by the water system on request (see the response to comment Section 12.1 for more details). The commenter further states that sampling is "not necessary for raising awareness of increasing knowledge about the risks and likelihood of the presence of lead in school drinking water" and cites several studies on the health effects of lead exposure. The Agency disagrees with the argument regarding awareness of lead in drinking water. Many schools and child care facilities currently do not sample for lead and/or are unfamiliar with the sources of lead risks in their facilities (GAO, 2018). Lead sampling is intended to raise awareness of lead risks while also encouraging schools and child care facilities to take additional voluntary actions to reduce lead risk, such as prioritizing remediation actions at outlets with the highest lead levels as recommended in the 3Ts Toolkit. The Agency acknowledges that some facilities may require additional assistance, and notes both the continued opportunity for sampling on request in §141.92(g) and resources to assist with remediation (see the response to comment Section 12.6 for details).
Sampling Protocol
Summary of Comments
Some commenters stated that the required 8-18 hour sample stagnation time proposed in §141.92(b)(1)(v)(C) implies that a facility should conduct flushing if water is stagnant for more than 18 hours and requested clarification or appropriate guidance. A few commenters questioned the required stagnation time and EPA's justification for requiring 8-18 hours. One commenter suggesting EPA allow for a maximum 48-hour stagnation time as it represents stagnation after a typical weekend, while another noted that the 3Ts states that a longer stagnation time may be appropriate if it is representative of typical building use. Alternatively, some commenters argued that it would be difficult for water systems to achieve the stated stagnation times and requested clarification on the individuals that may collect samples under §141.92(b)(1)(v)(D). A number of commenters requested modification to the rule that CWSs are responsible for assisting the facility and facilitating sample collection rather than CWSs being responsible for conducting sampling at school and child care facilities. A few commenters also noted the use of 1-L sample bottles in existing sampling programs and questioned the rationale for requiring 250-ml bottles in §141.92(b)(1)(v)(B).
Agency Response
EPA notes that commenters requested clarification on whether pre-stagnation flushing should be conducted prior to sampling due to the 18-hour stagnation limit under §141.92(b)(1)(vi)(C) for the final rule. Pre-stagnation flushing prior to sampling is not recommended as it reduces the likelihood of detecting lead levels associated with building water use (USEPA, 2018a). Furthermore, as §141.92 is intended to inform and educate schools and child care facilities about risks for lead in premise plumbing and encourage voluntary actions to reduce lead risk, sampling should be conducted during normal school operations and not after long periods of stagnation that are not typical of daily use (e.g., vacations, summer break). EPA notes that the "3Ts Flushing Best Practices" guidance in the 3Ts Toolkit offers guidelines for flushing as part of regular maintenance practices but clearly states that flushing should not be conducted prior to lead sampling (USEPA, 2018b). While some commenters expressed concern regarding the ability for water system staff to achieve the 8-18 hour stagnation time, EPA notes that appropriately trained individuals besides the CWS or the school/child care facility may collect the samples (see response to comment Section 12.3 for further discussion). To reduce potential confusion, EPA has revised §141.92(b) to include §141.92(b)(2), which specifies entities other than the water system that may conduct the required sampling. This includes the schools, child care facilities, and "other appropriately trained individuals" in addition to water systems.
EPA disagrees with comments that the 18-hour stagnation limit has not been justified. EPA uses 8-18 hours as it represents routine stagnation time in a school or child care facility and captures overnight stagnation. However, the Agency recognizes that the 3Ts states that longer stagnation can be used if it is representative of typical building use (USEPA, 2018a). The Agency is also aware that existing state and local testing requirements include stagnation times ranging from 6 to 48 hours and longer. The Agency has noted additional comments regarding the use of 1-L bottle sizes in existing programs. A sample volume of 250-ml is required under §141.92 as it is representative of the volume of water consumed per serving. The Agency has revised the requirements in §141.92(d) that allow states to issue waivers for CWSs where existing state or local sampling requirements are consistent with §141.92, to accommodate differences in the sampling protocol if the program meets stated criteria (see the response to comment Section 12.8 for further details). While one commenter expressed concern that 18-hour stagnation times would "drive lead levels above the 10 ppb proposed standard for action because the older schools have older distribution lines with lead solder," the Agency reiterates that while remediation is not required under §141.92, an 18-hour stagnation time is typical for school and child care facility water use and sampling results can be used to inform additional sampling and remediation activities independent of CWS requirements (please see the response to comment Sections 12.5 and 12.6 for further discussion).
Exemptions to Sampling and Applicability of Requirements
Summary of Comments
EPA received comments noting that there were no provisions in the proposed rule for ending recurring monitoring at schools and child care facilities. Some commenters argued that if sample results show low or non-detected lead levels that recurring testing is not necessary, although one commenter added, unless the CWS changes source water or treatment techniques. Other commenters suggested giving lower priority in a future sampling cycle to facilities that had low or non-detect levels of lead in previous sampling, or "testing-out" individual outlets or facilities. Other suggested exemptions included outlets within a facility that have been replaced with certified lead free components, facilities that do not have LSLs, and for systems with low 90[th] percentile lead levels or OCCT. Some comments argued that repeat testing would not provide any benefit in these cases and that a CWS should not be required to continue testing those facilities. One commenter stated that sampling in schools and child care facilities that had already sampled for lead and replaced fixtures is duplicative and unnecessary. Some commenters also questioned the exemption of facilities built after 2014, with some arguing for alternative exemption dates while others requested no exemptions due challenges in tracking and the possibility of faulty installation of fixtures.
One commenter expressed concern that samples collected at home-based child care facilities under §141.92 cannot be used for tap monitoring compliance in §141.86 and stated it would lead to "homeowner fatigue" and "erode public trust." Finally, EPA received comments requesting additional clarification regarding the applicability of §141.92 to consecutive water systems and schools and child care facilities that are regulated as public water systems, with commenters noting an apparent contradiction in the introduction to §141.92 and §141.92(a).
Agency Response