EPA received many comments related to the proposed water system reporting requirements in §141.90. EPA received comments on reporting requirements for: tap sampling and water quality parameter (WQP) monitoring results, lead service line (LSL) inventories, lead service line replacement (LSLR) activities, trigger level exceedance (TLE) notification, schools and child care sampling, public education (PE) and customer notification of tap sample results, and find-and-fix. EPA also received numerous comments on the burden associated with the new reporting requirements of the Lead and Copper Rule Revisions (LCRR).
14.1 General Comments
Summary of Comments
EPA received comments stating that the amount of information required to be reported to the state primacy agency under the Lead and Copper Rule (LCR) provides a significant burden to both utilities and to states. Previous audits of state data reporting have discovered inaccuracies in national data. In order to resolve this issue, EPA has invested in data management systems such as the Safe Drinking Water Information System (SDWIS), the Compliance Monitoring Data Portal (CMDP), and SDWIS Prime, with the goal of allowing utilities to report data to a system that is shared by the states and EPA. However, currently SDWIS Prime is under review and is not available to states and utilities. As there are early implementation requirements, these data systems must be deployed and available for use at the time the rule is promulgated. Commenters supportive of the LCRR emphasized that in order for the data in these systems to be complete, there must be a federal requirement mandating the direct reporting to these systems. Other commenters noted that since there is no currently operating central data reporting system, EPA must invest additional resources to develop and make these systems available. They assert that if the software development effort is placed on individual states, this would represent a significant cost and personnel burden. One commenter encouraged EPA to consider a separate rule that would enable community water systems (CWSs) to submit compliance information directly to EPA. Another commenter stated that electronic reporting is critical to address data gaps, data quality, and underreporting and suggests a centralized shared data system is necessary. The commenter asserts that without a federal rule requiring direct electronic reporting to a shared system, universal electronic reporting is impossible. A commenter recommended that EPA be clear about exactly what information is expected to be tracked and what information is needed for compliance determinations (i.e., what will result in a reporting violation) and clarity is needed on who is responsible for tracking and maintaining records for the various components of the rule.
One commenter asks that EPA remove added language from § 141.31(d), stating that the public notification (PN) to the Administrator within 24 hours should apply only to Subpart 1 and not all Tier 1 PNs. They state it is confusing to have a PN requirement to be submitted within 10 days under (d)(1), but within 24 hours under (d)(2).
Some commenters suggested that requiring annual reporting or certification to the state may be burdensome for utilities and suggest that utilities maintain their own records of compliance activities that could then be audited by states. Another commenter suggested that EPA consider a separate rule that would allow utilities to report compliance information directly to EPA in order to reduce the burden on primacy agencies. Another commenter expressed concern that small and medium water systems do not have monitoring, reporting or recordkeeping requirements for optimal corrosion control treatment (OCCT), stating they can monitor less frequently but should not be exempt.
Other commenters noted that systems without laboratory capacity of their own would rely on state or private labs to conduct their compliance analyses, which could result in reporting delays. In addition, additional sampling, analysis and reporting requirements under the proposed revisions could present a burden to small systems and require primacy agencies to hire additional staff. Additional commenters recommended streamlining due dates for LCRR reporting requirements. Another commenter emphasized the importance of clarifying the required precision of reporting 90[th] percentile values for the determination of action level exceedances (ALEs) and noted the potential burden of requiring the 90[th] percentile value reporting for systems of all sizes, rather than just those serving populations above 3,300 persons.
Agency Response
In response to the comment on § 141.31(d), EPA is maintaining the language for (d)(1) and (d)(2) as they correctly explain separate requirements. Under (d)(1), the water system must certify it completed PN requirements under Subpart Q (Public Notification of Drinking Water Violations). This certification must be submitted within 10 days of completing the notifications required under that subpart; whereas (d)(2) describes the requirement under the Water Infrastructure Improvements for the Nation (WIIN) Act (USEPA, 2016) to notify the Administrator and the state no later than 24 hours after Tier 1 Notice for an ALE.
EPA agrees that data management systems are needed and 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. In January 2020, EPA formed the SDWIS Modernization Board with representatives from state information management programs and from state drinking water programs, with the Environmental Council of States (ECOS) and the Association of State Drinking Water Administrators (ASDWA) providing logistical support to the Board. The Board provided input into the SDWIS Modernization Alternatives Analysis and option selection. Following option selection, EPA will continue to work with the Board on SDWIS development and will engage with states in the development and testing of the SDWIS Modernization data system. EPA intends to provide LCRR Data Entry Instructions (DEIs) by Fall 2021. The LCRR DEIs will provide detailed guidance to primacy agencies regarding the data requirements for LCRR monitoring, record keeping, and reporting. EPA disagrees with commenters who wrote that there should be a direct federal reporting requirement for data related to this regulation. States with primacy for enforcing this regulation need the data from the water systems to review, approve and enforce the requirements in accordance with their primacy agreements. Where EPA is the primacy agency, these data should come directly to EPA. However, in other situations, EPA has established state reporting requirements to obtain the data needed from primacy agencies to fulfill the Agency's oversight role in enforcing this regulation.
EPA does not agree with commenters that wrote that systems should only be required to maintain records and not required to report information to the state. The reporting requirements are intended to provide states with the information that they need to review, approve and enforce the regulation and assure effective public health protection. EPA acknowledges the comment that there will be additional burden on small systems and states to report and assess this information, which is necessary to assure effective oversight of the rule and has assured clarity and consistency of reporting requirements. EPA has updated the various reporting requirements for each section of the rule from reporting of tap and WQP monitoring to reporting the testing in schools and child care facilities. In section § 141.90, EPA has outlined the specific information that water systems must track and report to the state for each section of the rule. Failure to meet any of these reporting requirements, results in a reporting violation. These reporting requirements are for the water system to report to the state; thus, the water system is responsible for tracking and submitting the applicable information on time. For recordkeeping requirements see §§ 141.91 and 142.14 of the final rule and response to comment Section 15. EPA has considered the additional burdens of reporting to states when developing the final rule. The dates and requirements have been streamlined where possible to ensure systems are reporting the most crucial lead in drinking water information to the state. In response to the comment about utilities maintaining their own records for compliance in lieu of reporting these activities to the state, EPA disagrees because it's imperative that states have information on water system compliance to ensure public health and safety. EPA has only included the most crucial activities for reporting to the state so as to reduce the burden on the water system.
Regarding the comment that small and medium water systems do not have reporting requirements for optimized corrosion control treatment (CCT), EPA would like to clarify that all systems have reporting requirements for OCCT, with the exception of certain small systems with a compliance flexibility option. EPA determined that OCCT data are important for effective implementation and state oversight as CCT is a critical component of the treatment technique. Therefore, EPA has maintained the proposed CCT reporting requirements in the final rule. Specifically, systems serving 50,000 or fewer people have to demonstrate they already have OCCT, provide their recommendation if they are required to optimize or evaluate the effectiveness of their OCCT, or are required to install OCCT. Another commenter is correct in noting that, according to the minor revisions to the LCR published in 2000 (USEPA, 2000), systems serving 3,300 or fewer persons were only required to report their lead and copper 90[th] percentile values if they exceeded the action level (AL). EPA is requiring water systems to report the 90[th] percentile regardless of their size and the value in this final rule. It is important for this information to be reported as it determines other requirements of the rule which will reduce lead and copper levels. It also provides full transparency of lead 90[th] percentile levels to consumers that are interested in understanding lead in their water system through SDWIS data. EPA does not believe reporting this value creates an undue burden as many systems currently report all 90[th] percentiles regardless of system size. In response to commenters expressing concern on the reporting burden for small systems, CWSs that are serving a population of 10,000 or fewer people can exercise small system compliance flexibilities and have only one reporting requirement if they are utilizing either the point-of-use (POU) option or the replacement of lead-bearing plumbing option. If utilizing a different option such as LSLR or CCT, they must meet the reporting requirements under that section.
14.2 Report Tap Sampling and WQP Monitoring
Summary of Comments
Commenters noted that there was a significant and "unproductive" reporting burden created by the amount of information required by the proposed LCRR for lead testing and that this information currently must be reported manually. A commenter asserted that the data submission of the LCRR will quickly overwhelm states' ability to process the information provided. A commenter requested clarification if customer-requested sampling results must be reported to the state. Another commenter expressed concern that the 90[th] percentile values must be reported before the end of the four-month monitoring period and requested that utilities be allowed the full monitoring period prior to calculating 90[th] percentile values. Another commenter asked that the monitoring period date for systems on reduced monitoring be confirmed as November 30[th] and the sampling period end date be confirmed as September 30[th]. Another commenter suggested the deletion of the paragraph requiring systems to report that they sampled at a different location than the location in the previous monitoring period. The commenter argues that the LSL inventory and tap sampling plans should already contain an additional number of sampling sites in each tier to prepare for these instances. Another commenter concurred with EPA's proposal to include reporting of the tap sampling protocol to the state.
Agency Response
In response to these comments, EPA has modified this section of the rule to provide more clarity to water systems and states. There were several instances where the rule has been revised to correct references that were noted by commenters. For example, commenters expressed concerned that the proposed language would require water systems to submit data to states that calculate the 90[th] percentile before the end of the tap sampling period, thus truncating the amount of time to collect tap samples. This was not EPA's intent, so EPA has modified the rule to ensure that all water systems have the entire tap sampling period to collect tap samples.
In response to comments about the burden to states, EPA does not believe the amount of reporting will overwhelm the states' ability to process the information. Because of new requirements in the LCRR such as testing in schools and child care facilities, overall there are more reporting requirements. However, there is a larger burden up-front, with requirements by the compliance date of the rule, with less reporting burden after. For example, the service line inventory is a critical component to the LCRR, and many other components of the rule rely on it. This is something that needs to be developed within 3 years of rule promulgation, as well as the service line replacement plan. Once these plans are in place, there are only updates required thereafter. In addition, the state may not need to be processing the reported information instantly. For instance, much of the reported information could be collected by the state for the record and only reviewed when necessary, such as during SDWIS reporting to EPA, etc. Compared to the previous rule, the LCRR has not significantly increased the amount of information reporting required.
In response to comments about customer-requested samples, results from sampling taken upon customer request is not required to be submitted to the state. EPA disagrees that data submission requirements will overwhelm a state's ability to process information. See response to comments Section 14.0 for a discussion of how EPA has streamlined reporting requirements and EPA's work with states on a data system that can assist states in processing compliance data. EPA recognizes the varying burdens for different sized water systems and has taken these into account when developing reporting requirements for this final rule.
EPA disagrees with the commenter that requested removal of paragraph § 141.90(a)(1)(v), which requires systems to note if they sampled at a different site from the previous tap sampling monitoring period. This requires water systems to include an explanation on why the tap sampling site(s) changed. EPA recommends that water systems include extra tap sampling sites in their tap sampling plans for each applicable tier to have a list in case a customer refuses sampling, does not respond, or other issues arise with re-sampling at the same site. However, it is still important for the state to have the information when sites change and an understanding why. This will prevent systems from sampling at different sites more frequently which results in incomparable data points and intentionally sampling at lower-risk sites without having to notify the state.
14.3 Lead Service Line (LSL) Inventory and Lead Service Line replacement (LSLR)
Summary of Comments
One commenter felt they would be "uniquely burdened" by the reporting requirements for LSL inventory and replacements, as they have a large number of service lines listed as "unknown." They argue that documenting and requesting approval to designate "unknown" lines to "non-lead" will be burdensome. Another commenter asked for clarification that once a utility has certified that there are no LSLs in their inventory, there should not be any requirement for further reporting, as new LSLs are not permitted to be installed.
One commenter suggested that requirement of reporting LSL inventories to SDWIS, as recommended by the Governmental Accountability Office (GAO), is counterproductive, as SDWIS is not currently equipped to accept these inventories, and water systems currently provide their inventories to the communities they serve. They argue that inventories provided directly to consumers by water systems will be more up to date than inventories posted by the state or in SDWIS.
One commenter indicates that the proposal appears to require that consumers who have lead samples collected after an LSLR be notified with their results after three business days. They recommend keeping the same reporting timeframe as the initial tap samples. This commenter suggests that a certification statement be considered proof of customer notice, rather than requiring a mailed notice postmarked within three business days.
Multiple commenters recommended that EPA develop an online portal for LSL inventory tracking and requested that SDWIS be upgraded to manage implementation of this rule by the time that the final rule is promulgated. Another commenter suggested that funding, training and technical assistance programs should be used to help encourage water systems to self-report LSL inventories.
One commenter requested clarification of how inventory verification will impact LSLR violations. They cite the example of a system failing to meet its target of required annual percentage of LSLRs and ask if that violation would be rescinded if they later discover that they had fewer LSLs than had been previously thought. One commenter believes that it is not necessary to resubmit LSLR plans after an ALE, since there is a requirement to provide the LSL inventory and LSLR plan on the compliance date and updated inventories annually anyway. Another commenter asked for a requirement that LSLR plans be submitted to the state regardless of sampling results. A commenter recommended that for small systems that choose to replace all lead-bearing material, EPA should consider requiring certification that removal has been completed within one year.
One commenter noted references to a non-existent paragraph, and requests that the reference be checked and revised as necessary. Another commenter requests a wording change from "the annual letter" to the "annual certification." Several commenters provided suggested regulatory text to improve clarity of the final LCRR. One commenter presented specific revisions to a number of paragraphs in the reporting regulations.
Another commenter requests that the LCR provide for the development of standard operating procedures (SOPs) for LSLR and PE, including recordkeeping. One commenter states that the proposed LCRR requires water systems to annually certify their goal-based rate for LSLR and request EPA provide examples of this type of certification.
Agency Response
In response to comments, EPA has restructured reporting requirements of the final rule and modified these requirements as necessary. EPA understands how the new requirements will increase activities performed by the water system and communication with the state and has reduced burden wherever possible. In response to the comment that systems with large numbers of LSLs would be unduly burdened by the reporting requirements, EPA disagrees that these requirements present an undue burden. Information about the numbers of LSLs is important to understand the sources of lead in drinking water and to inform decisions on monitoring and LSLR requirements. EPA further notes that water systems are not required to submit documentation for changing the status of LSL nor is the water system required to obtain state approval of the LSL inventory under the final rule.
EPA has modified the requirement in the proposal to send an updated LSL inventory and replacement plan when an ALE occurs. As noted by commenters, water systems will be submitting these annually (or triennially) regardless of sampling results. The Agency agrees and thus has removed this requirement from the final rule.
After consideration of comments, EPA decided to maintain the requirement for certification by the water system that customers were provided tap sampling results after an LSLR within 3 or 30 business days of receipt of results, depending on the value of the result. Customers with results greater than 15 ug/L must be sent results within three days of obtaining results and all other results must be sent within 30 days. This is intended to demonstrate compliance with requirements to provide notification to individuals of the tap sampling results within 3 or 30 calendar days depending on the individual tap sample result.
EPA agreed that clarification was needed regarding updates to the LSL inventory and potential violations. Water systems must create inventories containing information on known LSLs, galvanized requiring replacement, and lead status unknown service lines. It is possible that systems will identify more LSLs when previously "unknown" service lines are verified to be lead, and it is also possible that some of the LSLs from the initial inventory will later be verified as not LSLs. The number of service lines applied to the LSLR rate can be updated every year taking into account the number of unknown service lines discovered to be made of lead, so LSLR burden should be reduced as service line verifications are conducted. Violations for failure to meet LSLR requirements where the inventory has changed will be addressed on a case by case basis.
EPA agrees with revisions to provide more clarity suggested by commenters, such as changing the "annual letter" to a "certification." EPA has taken many of these into account in preparing the final rule. EPA streamlined provisions by linking the LSL inventory and replacement reporting to the tap sampling monitoring schedules. In addition, those systems that no longer have LSLs, galvanized service lines requiring replacement or lead status unknown service lines, are not required to continue reporting their LSL inventory or replacement plans. However, if a system later discovers one of these lines that was missed, it must begin reporting again. The water system must not only report known LSLs, but also galvanized lines requiring replacement, and lead status unknown service lines. These inventory updates are important to ensure water systems are aware of the locations of LSLs for purposes of tap sampling and LSLR. In the final rule, reporting of LSL inventory and replacements must occur regardless of the water system's 90[th] percentile lead level. These updates occur annually or triennially for those on a triennial tap sampling monitoring schedule.
EPA agrees with commenters that data management systems will be important to effectively implement the LCRR and is working to update SDWIS Prime to be equipped for new lead and copper reporting requirements. 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. In January 2020, EPA formed the SDWIS Modernization Board with representatives from state information management programs and from state drinking water programs, with ECOS and ASDWA providing logistical support to the Board. The Board provided input into the SDWIS Modernization Alternatives Analysis and option selection. Following option selection, EPA will continue to work with the Board on SDWIS development and will engage with states in the development and testing of the SDWIS Modernization data system.
EPA intends to provide LCRR DEIs by Fall 2021. The LCRR DEIs will provide detailed guidance to primacy agencies regarding the data requirements for LCRR monitoring, record keeping, and reporting. Further, 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.
In response to comments, EPA agrees it is not necessary for a water system to submit its LSL inventory and LSLR plan at the time of a lead ALE as the state will already have this information beginning three years after final rule promulgation, and has thus removed this requirement. EPA agrees with the commenter that the LSLR plan should not be submitted based upon sampling results. The final rule requires all systems with LSLs to submit an LSLR plan within three years of promulgation irrespective of tap sampling results. The system also must update the inventory thereafter, to reflect information on the number of LSLs that have been replaced or lead status unknown lines that have been evaluated and determined to be lead or not LSLs. These updates must be submitted on the same schedule as the tap sampling monitoring periods, but no more frequently than annually.
EPA agrees that SOPs or guidance is needed for the LCRR. EPA received several comments requesting Agency guidance on implementation of the revised rule. 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.
14.4 Reporting Tap Sampling and Trigger Level Exceedance (TLE) Notification
Summary of Comments
Commenters have requested that EPA retain the current requirement that systems report the lead and copper results to the state within 10 days after the end of the monitoring period, rather than before the end of the monitoring period. They assert that this requirement would force states to shorten their own review time in order to make sure 90[th] percentile values have been calculated correctly by systems or labs. They also suggest that requiring states to notify systems in writing of their 90[th] percentile value is burdensome on the states. One commenter emphasizes the importance of collaboration between the states and EPA to ensure common understanding of what is required of water systems as a result of the lower, 10 ppb lead trigger level (TL).
Agency Response
EPA agrees with some commenters and has modified the final rule to allow water systems to report tap sampling results to states who are calculating the 90[th] percentile, within 10 days after the end of the applicable tap sampling period. This is consistent with reporting for systems that calculate their own 90[th] percentile. In addition, EPA has modified reporting requirements from the proposal to ensure effective use of water system and state resources. EPA disagrees with the comment describing water systems submitting their 90[th] percentile to be burdensome. This is an important reporting provision because it ensures that states have compliance information from tap sampling which helps to determine other requirements of the LCRR. For example, CCT and LSLR are requirements depending on the lead and copper levels from tap sampling. Because there is no safe level of lead, it's necessary for states to be monitoring levels in all systems, including those below and above the lead trigger and ALs.
14.5 School and Child Care Sampling and Public Education (PE) Reporting
Summary of Comments
One commenter reported that among the "burdensome" reporting requirements in the proposed LCRR are the requirements that water systems submit data relating to the number of schools and child care facilities tested, as well as document which schools and child care facilities have refused to be tested. Another commenter suggests that rather than requiring that this information be reported to the primacy agency, these records could be maintained locally by the water system and reviewed by the state upon request. Several commenters suggested tracking non-responses as well as direct refusals from schools and child care facilities, in order to track outreach attempts by the water utility. One commenter noted that the proposed regulation allows schools and child care facilities to refuse entry or decline to allow water systems to conduct testing or PE efforts.
Several commenters sought clarification about the requirements for reporting the analytical results from school and child care sampling, including whether these results should be reported in the same format as tap sample results used for 90[th] percentile calculations, and if the results from schools and child care facilities will be reported to EPA along with 90[th] percentile results. They also ask how EPA will make sure that data management systems do not co-mingle the LCRR compliance samples and the school/child care facility sample results.
Another commenter suggests the schools that have previously tested below the TL, or test below during current sampling be excluded from annual reporting and certification requirements. They recommend that systems that do not possess LSLs in their inventory not be subject to these annual requirements. A different commenter suggested requiring CWSs to have a voluntary lead testing in schools and child care facilities program, and submit an annual report on the program to the state.
One commenter recommends that EPA or states provide standardized forms or other materials to ensure that water systems are meeting the notification requirements under this rule. This commenter also mentioned that it would not make sense to make repeated attempts to contact facilities that refused to participate. Therefore, they argue that it is not necessary to provide the number of attempts to gain entry for sampling that were declined.
One commenter noted that the proposed rule requires water systems to report results to the primacy agency but suggests flexibility to report school and child care facility results to a different agency, such as the state Department of Education, which oversees such facilities.
Some commenters noted that since data are reported to the primacy agency, there does not need to be a separate certification for completion of this requirement, arguing that submission of the data should be sufficient to fulfill the requirement. Several commenters suggest a specific regulatory text revisions. Another commenter suggests a voluntary testing program and submittal of an annual report to the state with various information.
Another commenter mentions that the sampling requirements for schools and child care facilities will be difficult to track because primacy agencies do not know how many facilities are in the area. One commenter asks for clarification on how to demonstrate the water system has completed its annual requirements and include language indicating these certifications go to the state.
One commenter states that the added requirements in this section will be an additional burden and EPA needs to have a plan for how these samples will be tracked and reported with tools developed for this. One commenter is concerned about potential "loopholes" for schools and child care facilities that can decline testing, urging EPA to require the names of all those facilities that refused to be posted publicly, with an explanation from the board of education why they refused sampling. Another commenter notes that the rule is silent after the reporting of these results and doesn't explain actions for the water system and state after reporting.
Another commenter states that the annual reporting for school and child care facility testing results is redundant, arguing that once a site "passes" this verifies that lead and copper are not issues.
Agency Response
EPA maintains that reporting associated with the school and child care testing program and PE provisions is an important part of the rule for public health protection. See response to comment Section 12 for responses about the school and child care sampling requirements.
EPA disagrees with the comment proposing that instead of reporting the information in the proposal on school and child care facilities, the water system could maintain these records for state review upon request. Without these requirements in reporting, there is no way for EPA or the state to ensure these records are being maintained; thus, annual reporting has remained in the final rule. EPA has also maintained the reporting requirement of non-responses and refusals in the final rule. However, this includes listing the number of schools that refused and information on the number of attempts that were declined by the facility (which could be a non-response).
EPA has modified some aspects of reporting of this section to decrease the burden on water systems and to streamline communication. EPA has modified reporting requirements in this section to be consistent with changes in the schools and child care sampling and education provisions in the final rule. For systems encountering elementary schools and child cares that are non-responsive or decline testing in the first 5 years of sampling, EPA has required the system to certify it has made good faith attempts to identify facilities in the distribution system including the number of facilities that have refused sampling. The water system will also submit information on outreach attempts to non-responsive facilities and the  analytical results from the testing. For any secondary schools sampled on-request and elementary and child care facilities sampled on-request after the first five years, the water system must submit the number of schools and child care facilities in the system, the number of those sampled and the analytical results from the sampling.  In response to comments about whether the results are included in the 90[th] percentile calculation, the final rule further clarifies that the analytical results for the school and child care testing program is separate from those conducted for compliance tap sampling. EPA will work with states to ensure these sampling results are reported and tracked accordingly.
EPA has also made editorial improvements to the rule to clarify some requirements, as suggested by commenters (e.g., changing "annually on July 1" to "annually by July 1"). For most requirements, the water system must only list the number of facilities, such as the number of facilities that refused testing, the total number of facilities in the distribution system, and the number of facilities tested that year.
The final rule maintains the requirement to report test results to the schools, child care facilities, state and local health agencies, and the state. Water systems may want to submit these results to the Department of Education or other interested groups and agencies, but that is not required by the rule. EPA believes the submission of the certification to the state rather than having the files available for inspection by the state is necessary to ensure compliance with the schools and child care sampling provision of the rule. Since this is part of an annual submission containing all certifications required by the rule, EPA does not believe this is overly burdensome for water systems.
EPA disagrees that schools and child care facilities that have results below the TL should be excluded from testing and reporting requirements. Because there is no safe level of lead, it is important to report all results to the state, regardless of the value. EPA also disagrees with the suggestion that water systems that do not have LSLs should be exempt from school child care testing and reporting. Testing and reporting enables facilities and the community to determine if there is a lead problem, regardless of source, and to take steps to address these concerns. There are other sources of lead in school and child care facilities including meters, taps, faucets, fixtures and galvanized service lines to name a few. By exempting facilities that do not have LSLs from the requirements to test and report, elevated lead levels from other sources could be missed. Therefore, EPA has not modified the rule to permit exemptions from the testing and reporting requirements under these conditions. The final rule does allow the state to waive requirements for a CWSs if there is an existing comparable sampling program in place.
As stated before, EPA is working on updating data management systems to enable the tracking and reporting of various LCR requirements, including those under school and child care sampling and PE. The Agency is aware of the importance of keeping these sampling data separate from those under compliance tap monitoring and will make efforts to ensure their separate reporting so as not to comingle any results. 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. In January 2020, EPA formed the SDWIS Modernization Board with state representatives from ECOS and ASDWA, which provided input into the SDWIS Modernization Alternatives Analysis. EPA will continue to work with the Board on SDWIS development and will engage with states in the development and testing of the SDWIS Modernization data system. EPA intends to provide LCRR DEIs. The LCRR DEIs will provide detailed guidance to primacy agencies regarding the data requirements for LCRR monitoring, record keeping, and reporting. It is expected that these updates will streamline data reporting which will make the annual reports less burdensome. In addition, it will make certain that the data regarding school and child care testing is not commingled with other results.
EPA disagrees with commenters who are opposed to making two repeated attempts to contact a facility. The Agency believes the water system should make the best "good-faith" effort when contacting facilities. EPA considers a facility to be "non-responsive" after two attempts of contact result in no response; however, two attempts is not an official requirement in the final rule. EPA disagrees with including a requirement in the rule that water systems publicly identify facilities that have not responded to the water systems good faith efforts. The Agency believes this to be an extraneous burden to the water system.
EPA disagrees that reporting results for sampling at school and child care facilities is redundant. The commenter states that a low or "passing" lead or copper value would indicate there isn't a problem at the facility. This line of thinking is problematic and potentially dangerous. There is variability in lead results from tap sampling due to the size of the building and thus variability in stagnation, the type of lead release, plumbing configuration, etc. Therefore, deeming a home or site as safe after one test result could create a false sense of security. It is imperative that these facilities are testing at 20% of child care facilities and elementary schools in the first round to monitor the levels closely at these sites.
EPA will not be providing standardized forms for notification and reporting requirements under school and child care facility testing reporting. There are relatively few requirements, which are simple, and water systems and states have the flexibility on the format in which these will be reported. EPA is also not requiring systems to go into facilities that have refused sampling like the commenter explains. The proposed requirement on "information pertaining to attempts to gain entry" has been removed from the final rule.
A commenter states that EPA is silent after the reporting requirements, not mentioning actions the water system must take following reporting of results. The reporting for all LCRR sections is in § 141.90. For more information on recommended or required actions for school and child care sampling and education, see response to comment Section 12.0 or § 141.92 of the final rule.
14.6 Find-and-Fix Reporting
Summary of Comments
One commenter recommended that the primacy agency receive the actual observed data from follow-up tap samples taken during the find-and-fix period. Another commenter noted that follow-up investigations involve multiple reports from multiple experts, including plumbing and sanitary engineers, as well as electricians. Requiring this information to be provided to the primacy agency as well as non-compliance from homeowners would be a significant burden and present a potential privacy concern for homeowners, especially including non-responses. An additional commenter expressed concern that reporting associated with the find-and-fix provisions are not clearly defined in the proposed LCRR and suggested that utilities include find-and-fix activities in their monthly operating reports or submit one annual find-and fix report.
Commenters suggested that the summaries of find-and-fix investigations should be kept at the water utility and made available to state upon request. Another commenter suggested that only submitting recommendations for installing CCT or optimizing existing CCT should be reported to the primacy agency, and other records be maintained at the utility and made available upon request by the state. Another commenter recommended that SDWIS be modified to accept find-and-fix records.
One commenter requested that utilities be provided a specific template for the find-and-fix provisions of the rule to help reporting required information to the primacy agency. Another commenter suggested that the reporting of results from find-and-fix investigations be limited to the one report to prevent multiple submissions of the same information.
A commenter suggested allowing utilities to record the number of attempted contacts, rather than requiring homeowners to explicitly refuse to let the water system troubleshoot. Another commenter expressed concerns on reporting mitigation of find-and-fix every time to the state, stating that often it is a problem with the customer.
Agency Response
See response to comment Section 13 for a discussion of the responses to comments on the find-and-fix requirements. In response to the comment on the state receiving the actual observed data from the find-and-fix assessment, this is already a part of the reporting requirement under § 141.90(g), in that the previous rule requires systems to report additional tap, WQP and source water monitoring data.
After careful review of the concerns of commenters listed above, EPA is maintaining most of the reporting requirements proposed for find-and-fix because they are not overly burdensome. This includes information on non-responses and refusals, if there are any, as EPA feels it is important to report this information to prevent water systems from sampling at lower-risk sites. EPA has considered any redundancy in reporting for find-and-fix related to WQP monitoring and corrosion control assessment monitoring and has streamlined these aspects of the final rule where possible.
See response to comment Section 13 for a discussion of how EPA has responded to comments on the find-and-fix sampling requirements. EPA requires systems to report the results of their find-and-fix assessments within six months and encourages water systems to include find-and-fix data in their recommendations for both follow up tap samples and WQP monitoring samples as suggested by commenters.
EPA disagrees with a comment about including find-and-fix sites in the tap sampling site plan under §141.90(a) because the water system will not know which sites may result in elevated lead levels so will not be able to locate the follow-up sites prior to the monitoring period, when the sample site plan is due. Also see response to comment Section 13.
In response to a comment about only submitting information on find-and-fix related to recommendations for installing or optimizing CCT, EPA does not require this type of information for find-and-fix, but only requires sampling and PE information. In response to comments on SDWIS capability for find-and-fix requirements, these will be taken into consideration in the development of updates and upgrades to SDWIS Prime. EPA will not be providing utilities a template for find-and-fix reporting but will work to develop helpful guidance on these provisions overall for successful implementation. EPA understands that some of the fixes may not be able to be completed on behalf of the water system, if the customer has control over it. Therefore, EPA is not requiring this information to be reported to the state.

14.7 Burden of Reporting Requirements
Summary of Comments
Several commenters expressed that they felt the reporting requirements under the proposed LCRR were unnecessarily burdensome for a number of reasons, including:
 The volume of information that would need to be documented and reported.
 Some of the information that utilities may be required to submit, they may not legally be able to obtain, although they may be liable for failing to submit such information.
 The frequency and specificity of the required data reporting are beyond what EPA indicated was necessary under its Information Collection Request (ICR), and data collection and management may place a burden that extends beyond the start of rule implementation due to ongoing data collection and reporting requirements.
 EPA does not possess a currently deployed data management system that is capable of handling the required information.
 That utilities submit an annual report that compiles information previously submitted to states, such as state-approved template communication materials that are redundant.
 The lack of standardized reporting requirements for samples from find-and fix, customer requests, and lower-tiered sample sites, may lead to inaccurate compliance determinations.
 Requirements for annual recertifications may add little value, though failure to submit or delayed submission may result in violations that erode public confidence, as the public may not distinguish violations related to reporting vs. violations based on ALEs.
 Burdens of compliance with the new national rule may have disproportionate effects on small systems or systems in disadvantages communities.
A number of commenters expressed concern that these burdens would put a financial strain on both water systems and states, in terms of both implementation as well as staffing and administrative costs.
Suggestions for revisions to the rule to reduce the reporting burden included:
 Assisting water systems with developing SOPs for LSLR and PE and providing technical and staffing support.
 Replacing a requirement that utilities document refusal to participate in LSLR, or school or child care sampling with a provision in SOPs for documentation of efforts to engage homeowners, schools, or child care facilities.
 Using existing opportunities (such as the sanitary survey process) to assess LCR compliance.
 Streamlining reporting requirements to eliminate instances where the same information may need to be reported in multiple places or more than once.
 Allowing self-certification and online data reporting.
 Storing certain types of information locally at utilities, which would be made available to primacy agencies upon request.
Agency Response
Reporting is important to allow the primacy agency to effectively oversee implementation of the LCRR and to ensure water systems are complying with requirements. Effective implementation is necessary to achieve the improved public health protections of the LCRR. Where possible, dates for submission of reporting have been streamlined and reporting for separate provisions of the rule have been combined to increase efficiency and reduce administrative burdens. For example, EPA has revised the requirements for submission of the updated LSL inventory to coincide with the systems tap sampling reporting requirements. See response to comment Section 5.0 for a discussion of the LSL inventory.
In response to the comment on the LCRR requiring water systems to report information they may not be legally able to obtain, because this comment lacks specificity on which requirements it is referring to, EPA cannot provide a specific response. EPA can only assure that the information water systems are required to report do not have legal barriers. In cases where customers and affected populations refuse or do not respond, there are methods of reporting this also. Another commenter mentioned there is a lack of standardized reporting requirements for sampling from find-and-fix activities, customer requests and lower-tiered sampling sites that can lead to inaccurate compliance determinations. This commenter is referring to sections § 141.90(g) and § 141.86(e), which require systems to submit the following to the state but not include them in the 90[th] percentile: any extra lower-tiered sampling sites, customer-requested samples, and find-and-fix samples. These are the sampling results for each site, the lead and copper levels, source water monitoring data and WQPs that are required to be submitted.
EPA disagrees with the commenter that the stated annual submissions may add little value but could result in unnecessary violations. Continuing to submit updates after the initial submission will ensure public health protection in the case lead or copper levels become a concern. Without consistent reporting, these issues could go unnoticed and, in some instances, could result in systems not taking needed action.
In response to a comment on the burdens of compliance being disproportionate to small systems and systems in disadvantaged communities, EPA has included in this final rule flexibility options for CWSs serving 10,000 or fewer people and all NTNCWSs (also see response to comment Section 7) which reduces the burdens of maintaining compliance. In addition, for requirements such as LSLR and other activities under the LCRR to promote lead reduction in drinking water, there are various ways disadvantaged communities may obtain funding such as through the WIIN Act grants.
EPA agrees that data management will be critical for effective implementation of the LCRR. 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. In January 2020, EPA formed the SDWIS Modernization Board with representatives from state information management programs and from state drinking water programs, with ECOS and ASDWA providing logistical support to the Board. The Board provided input into the SDWIS Modernization Alternatives Analysis and option selection. Following option selection, EPA will continue to work with the Board on SDWIS development and will engage with states in the development and testing of the SDWIS Modernization data system. EPA intends to provide LCRR DEIs by Fall 2021. The LCRR DEIs will provide detailed guidance to primacy agencies regarding the data requirements for LCRR monitoring, record keeping, and reporting.
There were various suggestions to reduce burden in the LCRR including: assisting systems in developing SOPs and providing support, replacing reporting of refusals with an SOP provision for documenting efforts to engage homeowners, etc., using sanitary surveys and existing opportunities to assess compliance and streamlining the reporting to prevent dual efforts. EPA has considered all of these suggestions and has implemented them where helpful. EPA will be providing guidance and training for important sections of the rule but will not be developing SOPs with water systems. This would not prove to be an efficient effort given the large number of water systems in the country and the variability among them. EPA has retained in the final rule the requirement for reporting refusals from schools and child care facilities. Systems must also report if the tap sampling sites changed from the previous monitoring period. EPA believes these requirements are a better indicator than a provision in an SOP about what is going on at the system-level when sites change. Otherwise, it may be possible to choose lower-risk sites when high risk sites are available. Thus, this is an effort to prevent that oversight. EPA has made efforts to streamline requirements in other areas, such as assessing CCT and WQP during sanitary surveys to assess compliance and providing LSL updates from the water system on the same schedule as the tap sampling frequency.
In response to the suggestion on storing certain types of information locally until the state requests it, EPA disagrees. For some of the reported information this could make sense; however, there would be no way to ensure water systems are tracking and maintaining the correct information. EPA has refrained from requiring reporting for many different provisions and has kept only the most essential so as not to create an undue burden.
References
United States. Water Infrastructure Improvements for the Nation Act. 2016. Public Law 114-322, 130 Stat. 1628 (Dec. 16, 2016). https://www.congress.gov/bill/114th-congress/senate-bill/612.
United States Environmental Protection Agency (USEPA). 2000. National Primary Drinking Water Regulations for Lead and Copper. Federal Register 65(8):1950. January 12, 2000. https://www.govinfo.gov/content/pkg/FR-2000-01-12/pdf/00-3.pdf.
15 State Implementation and Enforcement
In the proposed rule, EPA requested comments on state implementation and enforcement provisions under § 142.14 through § 142.16 and § 142.19. Specifically, EPA requested comment on the complexity of the regulatory requirements that result from targeting different actions for different types of water systems and challenges states and water systems will encounter. EPA also sought comment on ways it can improve the ability of state or Federal government to enforce this rule and improve the ability of state or Federal government to assist water systems with compliance.
In addition, EPA requested comment on the utility of states maintaining records of water system actions related to find-and-fix.
15.1 State Implementation and Enforcement
Summary of Comments
EPA received many comments regarding the proposed rule's overall burden to states. Commenters noted that the complexity and additional requirements of the proposed rule would require many more transactions between states and water systems, as well as the necessity for states to provide technical and informational assistance to water systems. Commenters noted that states face competing priorities and underfunding, and that increased state burden could redirect funding from compliance assistance. Commenters expressed concern that the proposed rule could create more violations or require the state to expend too many resources to know whether a system is in violation, especially compared to a maximum contaminant level (MCL) rule. EPA also received one comment stating that timeframes designated in the rule requirements were infeasible to states, although the commenter did not specify which timelines were infeasible. One commenter suggested that EPA consult with and ensure states have a clear understanding of new costs of the new rule provisions. One commenter suggested that EPA allow primacy agencies to utilize existing regulatory tools such as sanitary surveys to verify certifications and ensure compliance. Another commenter called for the state requirements to be simplified and reduced. Commenters believed that training and technical assistance to states were needed, especially for matters relating to corrosion control treatment (CCT). One commenter requested that a federal funding mechanism should be considered for primacy agencies so that they may adequately develop the resources and staffing to effectively administer the rule. At current funding levels, a commenter suggested that their state may be required to surrender primacy. One commenter requested that EPA take a more "generous" approach to estimating the cost to states.
A commenter stated that to ensure consistent nationwide implementation and continuation of the lead reduction momentum, states' flexibility in approving alternative compliance criteria and waivers should be limited as much as possible.
EPA received many comments about data management. Commenters claimed that the proposed rule increased data management and recordkeeping demands. Commenters said that upgrades to state and federal databases were needed. With a more complicated rule, commenters were concerned that reporting and monitoring violations could occur which would be very significant and a draw on state resources while eroding public confidence.
Many commenters requested guidance and technical assistance for the final rule. A commenter suggested the final rule should provide more clarity on how the primacy agency should be evaluating the completeness and level of effort of these inventories.
One commenter suggested that states take the lead on initiatives such as outreach and education for health care agencies, outreach and education for schools and child care facilities, and obtaining technical expertise in CCT to allow for support in making CCT designations.
Agency Response
EPA consulted with primacy agencies several times through the development of the final Lead and Copper Rule (LCR), including a federalism consultation and the opportunity to provide comments on the rule proposal. Additionally, the National Drinking Water Advisory Council workgroup membership included state representation.
EPA has estimated the costs to states to implement and enforce the final Lead and Copper Rule Revisions (LCRR). See "Economic Analysis for the Final Lead and Copper Rule Revisions" or "Final LCRR EA" (USEPA, 2020). While the estimate shows that the final rule costs to states will increase relative to the previous rule, EPA believes the implementation and enforcement requirements are still feasible. The cost increases result in part from new rule provisions and associated data management, such as the lead service line (LSL) inventory, tap and water quality parameter (WQP) testing, and school sampling, which are critical components of the final rule. EPA has attempted to streamline implementation to the extent possible, such as using sanitary surveys as opportunities to review a system's CCT. In addition, many state actions are targeted at water systems with higher lead levels, such as overseeing goal and mandatory lead service line replacement (LSLR) programs as well as supervising CCT decisions. Implementation of the new LCRR requirements facilitate inventorying of LSLs and increase LSLR, introduce sampling at schools and childcare facilities, and strengthen public education is a worthwhile investment that will advance public health protection relative to the previous rule. These benefits are monetized and presented in the Final Rule EA (USEPA, 2020. Furthermore, improved oversight and compliance assistance should result from these additional transactions between states and water systems. EPA notes that states can use a range of tools and resources to effectively protect public health through implementation of the Public Water System Supervision (PWSS) Program. Congress appropriates funding each year for the PWSS Program grants which support state, territorial and tribal primacy agencies in executing their primary enforcement authority under the Safe Drinking Water Act (SDWA). Funding is allocated to primacy agencies, per SDWA §1443, "on the basis of population, geographical area, [and] number of public water systems," taking into account data from EPA's Drinking Water Infrastructure Needs Survey and Assessment. Under the SDWA, states may set aside up to approximately 31 percent of their Drinking Water State Revolving Fund (DWSRF) capitalization grant to fund state programs and third parties to provide assistance and build the capacity of drinking water systems and ensure the delivery of safe drinking water. DWSRF set-asides can be used, for example, for providing technical assistance to systems of all sizes, provide technical assistance and training for small systems, and support state drinking water program activities.
EPA recognizes the balance between ensuring consistent nationwide implementation and reducing the administrative burden for implementing the rule, and the competing need for alternative compliance criteria and waivers that provide flexibility. EPA has set uniform requirements such as the LSLR plan and inventory requirements that apply to all water systems irrespective of size or 90[th] percentile level. However, because of the unique circumstances among water systems due to variability in source water characteristics, the number of LSLs, and other factors that affect the feasibility for systems to reduce drinking water lead exposure, the LCRR provides flexibility to states and water systems for actions such as the goal-based LSLR program where the water system and state are in the best position to determine what appropriate LSLR rate. Additionally EPA recognizes that small drinking water systems collectively are limited in their technical, managerial and financial capacity to implement multiple treatment technique actions and the LCRR allows flexibilities for these systems to work with the state to identify the most appropriate treatment technique action to reduce drinking water lead exposure.
For response to comments about how the state burden was calculated, please see response to comment Section 16.
EPA is providing primacy agencies with LCRR data management capabilities in the short-term through a new Safe Drinking Water Information System (SDWIS) State module and in the longer term through the SDWIS Modernization system project. The SDWIS Modernization system will be the long term replacement for the SDWIS State data system that most state programs use.
EPA worked with states to form the SDWIS Modernization Board in January 2020. The Board provided input into the third party led SDWIS Modernization Alternatives Analysis through the end of June 2020, and in July 2020 made recommendations to EPA. Following the recommendation, EPA is investigating the best method for developing the data system, with method selection and development initiation expected in late 2020 / early 2021. Following system development, EPA will then provide assistance to states in their adoption of the new system. Like SDWIS State, the SDWIS Modernization system will include functions for managing drinking water regulations and for ensuring data quality, as well as the ability to connect the system to locally-run applications, such as the Drinking Water Watch (DWW) application running on a state server.
EPA is intending to provide LCRR Data Entry Instructions (DEIs). The LCRR DEIs will provide detailed guidance to Primacy Agencies regarding the LCRR monitoring, record keeping, and reporting requirements.
EPA understands that rule guidance is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the most significant areas of the rule. 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.
In response to a comment suggesting that states take the lead on "initiatives such as outreach and education for health care agencies, outreach and education for schools and child care facilities, and obtaining technical expertise in corrosion control treatment to allow for support in making corrosion control treatment designations," EPA applauds any state initiative to reduces lead in drinking water. The final LCRR, however, focuses on actions water systems are required to take, and state requirements are limited to those necessary to implement and enforce the final rule. For information regarding development of LSL inventories and system reporting, see response to comment Sections 5 and 14. For discussion regarding costs to primacy agencies, see response to comment Section 16.
In response to the comment suggesting that the proposed rule created infeasible timelines for the states, EPA has reviewed the proposed rule and made revisions as appropriate for the final LCRR. For example, EPA has amended a timing discrepancy that clarifies states have six months to review the goal LSLR rate recommended by water systems. Other state timeframes EPA has reviewed but decided not to amend. For example, while some states requested a year to review water systems' inventories, EPA determined that would create significant delays for final rule implementation, and did not incorporate those commenters' suggestions. For more information about this provision, please see response to comment Section 5.
15.2 General and Special Primacy Requirements
Summary of Comments
Commenters noted the increase of burden associated with the rule requirements, specifically mentioning the requirements to update tap sampling plans to adhere to new sample tiering and to review inventories. Some commenters said that it could be challenging for states to execute the many requirements between the time they have primacy and the rule compliance dates, such as review of the inventory, LSLR plans and school sampling. Some commenters sought an extension to the deadline to adopt the final LCR provisions, such as the LSLR plan's goal LSLR rate which may require discussion and negotiation between the state and system. One commenter said that the proposed special primacy requirements contained very little detail, and that EPA should work with states to develop them.
Commenters pointed out the numerous "State may" clauses that will require states to develop additional requirements or policies, demanding extensive effort. Some commenters suggested developing national criteria for certain rule provisions, such as inventory methods and goal LSLR rates, rather than give each state the authority to develop their own criteria.
Commenters pointed out that monitoring and reporting violations are the most common, and with increased requirements, more violations can be expected than occur under the previous rule. Commenters raised reporting and data management concerns about the proposed rule, calling for EPA to improve SDWIS.
One commenter said that given ongoing state actions to reduce lead in drinking water, primacy states should be given a waiver from the rule, even if the state rule requirements differ from the federal LCR.
One commenter suggested there should be a time limit for EPA to review and supersede a state-set goal LSLR rate under § 142.19. One commenter agreed that EPA should have the authority to designate mandatory LSLR rates in addition to goal LSLR rates, while another believed that a federal goal rate should be set in the final rule.
A commenter suggested that the concept of the trigger level was too prescriptive, and that states should, in collaboration with EPA, have the latitude to work with water systems when their 90[th] percentile lead results are trending upwards, without the regulatory mandates of the proposed rule to guide how to respond.
One commenter recommended that the final rule provide flexibility so states may require additional information from and actions by the water system, such as submitting plans and specifications; WQPs; a follow-up corrosion control study and report; changing treatment; additional monitoring; and any other applicable requirements, to be determined by the state. The commenter pointed out that some state drinking water programs cannot be more stringent than Federal regulations and/or may adopt rules by reference, so the proposed LCRR limits the ability of some states to require additional information and actions from water systems that can help the state evaluate the water systems' circumstances and make determinations for appropriate actions when there are source or treatment changes.
Commenters also requested more detail and raised concerns about the proposed approach to conduct CCT reviews during sanitary surveys, noting that a CCT review is more specialized and will need dedicated staff to conduct the review. One commenter agreed with this approach and suggested additional language be added requiring a CCT evaluation when water systems are proposing changes in treatment that may impact water corrosivity, given that the previous rule requires review and approval from the state for changes only after CCT has been optimized. One commenter requested EPA release guidance for conducting these reviews and consider mandating this review only for systems whose 90[th] percentile lead levels are above 5 ppb, and they should not be mandated as a part of the sanitary surveys. This approach, the commenter claimed, would reduce implementation costs while maintaining the benefits.
One commenter suggested that the primacy requirements for find-and-fix and goal-based LSLR be removed. One commenter suggested that the term "find-and-fix" be changed to "site investigation."
One commenter said that EPA should designate acceptable inventorying methods, rather than the final rule include a primacy requirement that states can require water systems to review any resource, information, or identification method.
One commenter said that the proposed school sampling program is not scientifically defensible and does not provide public health protection. One commenter recommended EPA provide flexibility to allow entities other than community water systems (CWSs) (e.g., school district or childcare facility) to implement testing requirements imposed on schools or licensed childcares by local or state laws or regulations.
Commenters asked for additional training and guidance, in various rule areas. These requests extended to the topic of enforcement in various rule areas, such as the inventory, LSLR, and tap sampling pools, reviewing CCT during sanitary surveys, and reviewing changes in source water/treatment. A commenter requested guidance to be published one or two years before the rule requirements become effective.
Agency Response
EPA acknowledges that rule flexibilities can offer implementation benefits but may also increase state burden compared to a more prescriptive rule. For the final rule, EPA has identified areas where the Agency can be more prescriptive, and has left flexibilities for states where appropriate. For example, EPA provided a high level of prescription in the records that need to be searched for the initial inventory under §141.84(a)(3). States may, but are not compelled to, require or provide additional records or material identification methods or techniques. EPA is also prescriptive regarding the risk mitigation measures that must be taken following an LSL disturbance as well as the public education language that must be conveyed to consumers. Prescription in these areas is appropriate because it ensures uniform risk mitigation standards are in place, and that clear and consistent public health messaging is communicated to consumers about lead in drinking water, regardless of where they live.
Some examples in the final rule where states are granted significant discretion are LSLR rates. The final rule increases state discretion by not including the proposed requirement under § 141.19 to allow EPA to set alternative goal rates. Although some commenters requested EPA be more prescriptive about goal rates, EPA identified this as an area where more state discretion was appropriate given that states have a better understanding about the number of LSLR individual systems can manage, and states may also have varying LSLR priorities which are reflected in their prescribed goal LSLR rates. For more information see response to comment Section 6.7. EPA is also not adopting commenter suggestions to allow the Agency to set an alternative mandatory LSLR rate for individual water systems. The rule prescribes a national minimum rate of 3 percent and maintains the previous rule requirement that states under § 141.84(g)(9) must set alternative mandatory LSLR rates when feasible. Because setting an alternative LSLR rate requires detailed information about a system and close involvement by the regulatory authority, states are in a better position to make a judgment about the feasibility for individual systems to replace more than 3 percent of LSLs annually. Allowing EPA to override a state's decision about alternative mandatory LSLR rates could create additional uncertainty in implementing the final rule requirements. For more information, see response to comment Section 6.8.
In response to the comment requesting a state waiver from the LCR, EPA notes that, under SDWA Section 1413, in order to maintain primary enforcement authority or "primacy," state programs must be no less stringent than the federal program; as a result, a state may revise its program in a manner different than this rule so long as the resulting rule is no less stringent than this rule. However, many states choose to incorporate the federal drinking water standards by reference to reduce the transaction costs that can result in trying to compare a state program to a very different federal program to determine stringency.
EPA agrees that the final rule should allow the flexibility for states to require additional information from and actions by the water system, such as the commenter suggestion of "submitting plans and specifications; WQPs; a follow-up corrosion control study and report; changing treatment; additional monitoring; and any other applicable requirements, to be determined by the state." The final rule includes new language in § 141.90(a)(3) which allows states to "require the system to take actions before or after the addition of a new source or long-term treatment change to ensure the system will operate and maintain optimal corrosion control treatment such as increased water quality parameter monitoring or re-evaluation of corrosion control treatment such as additional water quality parameter monitoring, additional lead or copper tap sampling, and re-evaluation of corrosion control treatment. This will allow states to request this additional information that could be needed to evaluate new sources or treatment decisions, even where a state drinking water program cannot be more stringent than the Federal regulation or the state rule is adopted by reference.
For the final rule, EPA is not extending the timeline to adopt the final LCR provisions because it would cause significant delays in final rule implementation. While a commenter specifically mentioned the LSLR plan as requiring discussion and negotiation, EPA notes that while the LSLR plans must be submitted before the rule compliance date, the goal LSLR rate is the only provision within the plan that requires specific approval or designation of an alternative rate, for which states have six months after the compliance date.
EPA has not used the alternative name of "site investigation" to replace the term "find-and-fix" in the final rule because a site investigation could refer to many other activities, such as investigation of service line material. The term "find-and-fix" is more descriptive and specific to the requirements under that provision and was suggested by stakeholders during consultations
For EPA's response to comments about the trigger level, please see response to comment Section 3.
In response to comments about using sanitary surveys for CCT review, please see response to comment Section 4.9.
In response to a comment, EPA added regulatory text for water systems to assess service line materials using any resource, information, or identification method as provided or required by the state. This will allow states to compel water systems into these actions without requiring the state to pass a different version of the LCR. For more information about determining service line materials in the final rule, please refer to response to comment Section 5.4.
For EPA's response to a comment suggesting inventories should be reported in an online EPA portal, please see response to comment Section 5.6.
Because the final rule does not authorize EPA to review and supersede a state-set goal LSLR rate under §142.19, comments about the timing of this requirement are moot. Please see response to comment Section 6 for more information about goal LSLR rates. EPA notes that water systems must report LSLR activities to the state even if they are below the lead action level, such as certification of compliance with customer-initiated LSLR.
For EPA's response to comments about states implementing school testing programs, please see response to comment Section12.8. For response to comments about who must conduct the schools and child care sampling, please see response to comment Section 12.3.
For more information about implementation, enforcement, and primacy requirements, including SDWIS please see response to comment Section 15.1.
EPA understands that rule guidance is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the most significant areas of the rule. 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. EPA understands that training or guidance pertaining to provisions due at or before the final rule compliance date should be released in a timely manner so they can be used by states and water systems to comply with these provisions.
15.3 State Recordkeeping Requirements
Summary of Comments
Commenters highlighted the numerous "exchanges" between the water systems and the state, noting the paperwork demands for the systems to complete and for the states to track. A commenter believed that increased recordkeeping requirements would not lead to public health benefits. Commenters thought the increased tracking burden will make it difficult to issue violations.
A commenter said that state databases are currently unable to handle the proposed additional rule requirements. EPA received many comments stating that the proposed find-and-fix recordkeeping requirements are not practical, requiring significant resources and benefitting a limited number of customers. A commenter suggested these records be kept by the water systems and be available for review by the state, such as during the sanitary survey. Another commenter said that school sampling will also be difficult to track, given that states do not know how many schools or child care facilities are in the CWSs' service areas, and that states may have different licensing requirements for child care facilities which the commenter said should be clarified.
A commenter suggested that two additional recordkeeping requirements be introduced for LSLR plans under § 141.84(b) and compliance sampling pools under § 141.86(a).
One commenter noted that the recordkeeping requirement related to evaluation of source water or treatment changes, as well as LSL inventories, are important requirements and should be retained in the final rule.
One commenter suggested EPA include a requirement that states maintain records of LSLR plans and inventories.
A commenter highlighted an error made in the reg text under § 142.14(d)(8)(viii).
Agency Response
Recordkeeping in the final LCRR is essential for determining water system compliance, aiding implementation, and ensuring public health protection. Retaining records of, for example, inventories, tap sample tiering pools, goal and mandatory LSLR rates, and optimal corrosion control treatment (OCCT) designations are necessary for tracking compliance and ensuring effective implementation. EPA acknowledges that the final LCRR increases state burden in areas such as recordkeeping, and this is, in part, due to the introduction of new rule provisions, such as the LSL inventory, LSLR plan, and school sampling. These new rule provisions will improve public health, and recordkeeping is an essential part of ensuring these provisions are executed correctly. Despite cost increases in this area, the Agency disagrees that the added burden makes implementation infeasible. For more information about state burden in the final rule, please see response to comment Section 15.1 and the final LCRR Economic Analysis (USEPA, 2020).
EPA added two additional recordkeeping requirements for LSLR plans under § 141.84(b) and compliance sampling pools under § 141.86(a) to ensure that the state maintains this information critical to compliance with the final rule. EPA agrees that inventories should be kept as records too, noting that this requirement was included in the proposal. EPA updated the text in § 142.14(d)(8)(xx) to reflect that in the final rule, inventory updates are not required annually for systems on reduced monitoring. Maintaining records for inventories is critical for enforcement of LSLR, tap sampling, and other requirements in the final rule.
Regarding the comment about the difficulty of tracking school sampling, the final rule does not include a new requirement for the state to maintain records of school sampling. The state must, however, define a school or childcare facility under § 142.16, and CWSs are required under § 141.92(a) to compile a list of the applicable schools and child care facilities they serve and must update and submit that list to the state at least once every five years under § 141.92(e). The state is then responsible for ensuring that the CWS certifies compliance with the requirements as specified under § 141.90(i). While the state is not required to maintain a database of schools and child care facilities and associated results, they must retain the reports and the lists in accordance with § 141.91. These requirements will ensure that records of school testing compliance are retained without the burden of managing significant amounts of data.
The final rule retains recordkeeping requirement related to evaluation of source water or treatment changes. EPA agrees with the commenter who expressed support for these proposed requirements. Records of source water or treatment changes is important for states to maintain given the potential for such changes to impact CCT and optimal water quality parameters (OWQPs), for example.
Due to the burden of such requirements, EPA has not included state recordkeeping requirements for find-and-fix.
EPA has amended the error under §142.14(d)(8)(viii) regarding faster LSLR rates set by the state.
15.4 State Reporting Requirements
Summary of Comments
Commenters highlighted the increased burden associated with the proposed rule's increased state reporting requirements. Commenters noted that previous rule violations are not adequately reported, and said that the burdens added by the proposed rule without additional resources would result in even worse reporting. Many commenters highlighted the need for federal data management and reporting systems with the functionality to handle the new reporting requirements, without which states would be required to build their own systems at great expense. Commenters noted specific areas that require improved data management in SDWIS such as CCT, WQP monitoring, find-and-fix, tap sampling, and other areas. A commenter recommended that within six months of the final rule publication, EPA assess the capability of SDWIS to manage LCRR implementation and to release a schedule of planned system upgrades. One commenter said that EPA's data management system should be completed within six months prior to the rule effective date.
Commenters requested that EPA publish rule implementation guidance and DEIs, as well as provide training on effective data management strategies for implementing the final LCRR, including the use of existing or newly developed functionality in SDWIS for managing the rule.
Agency Response
EPA acknowledges that burden to states, including reporting requirements, will increase in the final LCRR. EPA has determined that the state reporting burden is feasible and will improve implementation, enforcement, and public health protection of the final rule. Reporting will be streamlined through a new SDWIS State module and longer term through the SDWIS Modernization system project, which EPA is providing to primacy agencies. The SDWIS Modernization system will be the long-term replacement for the SDWIS State data system that most state programs use. For more information about state burden in the final rule, please see response to comment Section 15.1 and the final LCRR EA (USEPA, 2020). For EPA's response regarding the development of SDWIS PRIME, please see response to comment Section 15.1.
Regarding requests for implication guidance and training for SDWIS, EPA understands that rule guidance is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the most significant areas of the rule. 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
United States Environmental Protection Agency (USEPA). 2020. Economic Analysis for the Final Lead and Copper Rule Revisions.
16 Economic Analysis
EPA requested comment on the five drivers of costs identified in the "Economic Analysis for the Proposed Lead and Copper Rule Revisions" or "Proposed LCRR EA" (USEPA, 2019a) that include: (1) the existing number of lead service lines (LSLs) in public water systems (PWSs), 2) the number of PWSs above the lead action level of 15 ug/L or lead trigger level of 10 ug/L under the current and proposed monitoring requirements, (3) the cost of installing and optimizing corrosion control treatment (CCT), (4) the effectiveness of CCT in mitigating lead concentrations; and (5) the cost of lead service line replacement (LSLR). EPA also requested comment on the assumptions regarding labor required to comply with the proposed rule, and solicited comment and peer reviewed information on the evidence relevant to quantifying the incremental contribution of blood lead concentrations (BLL) to cardiovascular disease (CVD) (and associated mortality) relative to other predictors such as diet, exercise, and genetics that may be useful in a future benefits analysis.
Section 16 provides a summary of public comments received on EPA's economic cost and benefits analysis and the Agency's responses that includes revisions to the cost benefit analysis in response to these comments. It is further organized into 26 numbered subsections.
16.1 General Comments
Summary of Comments
Two commenters indicated the economic and benefits analysis was complicated and lacked transparency. One commenter noted the complexity made it difficult to verify the assumptions used and the resulting calculations. The other commenter noted that the economic analysis needed to be carefully validated. Both commenters asked for the rule and the economic analysis to be simplified.
Agency Response
EPA agrees with commenters that the analysis is complex however the Agency has provided extensive information about the data and methodology used to assure transparency. The final rule includes multiple compliance actions (e.g., LSLR, CCT installation or re-optimization, find-and-fix, public education) triggered by individual and combined lead tap sampling results. The complexity of this treatment technique also means there are many more required inputs for the estimation of total compliance costs then is the case for a maximum contaminant level (MCL)-based rulemaking. In response to the comments, EPA made several changes to the "Economic Analysis for the Final Lead and Copper Rule Revisions," hereafter referred to as the "Final LCRR EA" to improve transparency and make it easier for readers to verify assumptions and resulting calculations (USEPA, 2020a). EPA added new PWS and Primacy Agency exhibits in Chapter 5 and Appendix B that shows each activity for which EPA developed cost estimates, organized by major rule component (e.g., implementation and administrations, sampling costs) and subcomponent (e.g., lead tap monitoring). Each activity is lettered in these exhibits and throughout Chapter 5 and Appendix B for easy reference. In addition, EPA added unit cost summary tables for each major rule component and included detailed assumptions and exhibits from the Excel derivation files in Chapter 5 and Appendix B. EPA also made the data variables in the Agency's national cost model, the SafeWater Lead and Copper Rule (LCR) model, a unique font so they are easy to find and track throughout the document.
EPA has also utilized new data, to the extent possible given the quality of data provided in public comments and new data sources developed post proposal, to validate the final rule economic assumptions and results and/or to better characterize uncertainty in the estimated values. Some examples of new information sources incorporated into EPA's cost model and analyses include:
State data that identify systems with and without LSLs. See "Number of Systems with LSLs" within the response to comment Section 16.2.
States that incur the cost of analytical services. See "Need to Re-evaluate the Cost Analysis" within the response to comment Section 16.3.
Studies on states with existing lead in school testing programs. See "Waivers" within the response to comment Section <IP_ADDRESS>.
Michigan first liter and fifth liter lead compliance data. See "Estimated Number of LSL Replacements" within the response to comment Section 16.3.4.
Data from a cost model developed by the Association of State Drinking Water Administrators (ASDWA) that estimates the cost to primacy agencies to implement the LCRR, as proposed. See "ASDWA CoSTS Model for Estimating Primacy Agency Workload" within the response to comment Section 16.3.6.
EPA has also simplified where possible rule requirements in the final rule; for example the synchronization of many of the system data reporting requirements, the elimination of the need for systems to revise the LSLR plans, the reduction in the frequency of LSL inventory updates, and the streamlining of the lead testing program for schools and child cares.
16.2 Baseline Universe of Systems: Major Data Sources and Affected Entities
Several commenters provided information on LSL inventory information, trigger level exceedance (TLE) and action level exceedance (ALE) data, rule complexity, and data accuracy. EPA summarizes and addresses these comments below by topic.
Number of Systems with LSLs
Summary of Comments
Four states provided information about the number or percentage of systems in their states with LSLs to help EPA better estimate costs. Indiana stated that in response to an LSL Inventory Questionnaire that was sent to all community water systems (CWSs) in 2016, with 66 percent (513 of 779) of CWSs reporting, 132 systems reported service lines with lead portions. Colorado reported that 5 percent of water systems in the state have identified as having LSLs. Wisconsin indicated that, in 2018, 132 municipal water systems reported a minimum of 195,000 LSLs, and this number is expected to rise as stricter reporting policies and procedures are put in place. Nevada reported that the state has no documented LSLs in PWSs.
Agency Response
EPA thanks these state commenters for including data on the number of LSLs in their comments. Because the presence or absence of LSLs is an important factor in determining the likelihood a system's lead 90[th] percentile level will exceed the trigger level of 10 ug/L or action level of 15 ug/L or an individual tap sample will exceed 15 ug/L, EPA needed to collect and use tap sampling information from systems with known LSL status. LSL information is not available in the federal version of the Safe Drinking Water Information System (SDWIS/Fed); therefore, EPA used system-specific data provided by states or available from their websites as detailed in the Chapter 4, Section <IP_ADDRESS> of the Final LCRR EA (USEPA, 2020a) and the file, "Derivation of State LSL Status_Final Rule.xlsx." For the proposed rule, these states included Indiana and Wisconsin among others. For the final rule, EPA expanded the universe of systems with known LSL status to include more current information for Wisconsin based on new data posted to their website and all systems in Nevada based on the state's public comment that no systems have LSLs. EPA was unable to use the information provided by Colorado because it did not include system-specific information.
Colorado also supplied a minimum estimate of 195,000 LSLs in the state. The data was too narrow in scope for EPA to adjust this methodology for estimating existing LSLs at a national level. For the number of LSLs at LSL systems, EPA continued to use in the two Final LCRR EA surveys of LSLs. The first survey is the 1988 Lead Information Survey (LIS) by American Water Works Association (AWWA), which included systems, in a wide range of sizes, from all nine EPA regions. The second data source combined results of two surveys, the AWWA 2011 and 2013 surveys of LSL occurrence. The surveys included responses from all states, were equally representative of surface and ground water systems, and represented a wide range of system sizes. See Chapter 4, Sections 4.2.5 and 4.2.6 of the Final LCRR EA for more information.
Trigger Level and Action Level Exceedance Data
Summary of Comments
Several commenters responded to EPA's request for data on the number or percentage of systems that exceed the lead action level or would exceed the new lead trigger level but not the action level, i.e., have a TLE as follows:
Connecticut Department of Public Health estimated that up to 20 PWSs may exceed the new trigger level but not the action level each compliance period.
North Dakota Department of Environmental Quality reported that 6 percent of PWSs (19 PWSs) in the state sampled in 2017, 2018, and 2019 had exceedances of the proposed trigger level and half of these (3.0 percent) did not exceed the action level.
The State of Wisconsin reported during 2016 through 2019, 26 publicly owned and 17 privately owned CWSs and 56 non-transient non-community water systems (NTNCWSs) exceeded the lead action level and for the same time period, an additional 28 public and 11 private CWSs and 43 NTNCWSs would have exceeded the lead trigger level but not the action level.
Indiana Department of Environmental Management indicated that, 106 of 779 CWSs (13.6 percent) and 34 of 583 NTNCWSs (5.8 percent) had results between the trigger level and the action level for lead within the past three years; 94 CWSs (12 percent) and 52 NTNCWSs (8.9 percent) had levels above the lead action level during the past three years; and 63 CWSs (8 percent) and 39 NTNCWSs (6.7 percent) had a copper ALE during the past three years.
Nevada Division of Environmental Protection reported that ALEs in 2009-2019 varied from zero to seven per year in Nevada, while exceedances of the proposed trigger level but not the action level would have varied from two to eight per year.
Colorado Department of Public Health and Environment indicated very few of the systems identified as having LSLs (i.e., 5 percent of systems) are over the proposed trigger level, but this may change with the targeting of LSL samples sites only.
Ohio EPA provided a table detailing five years from 2015  -  2019 of 90[th] percentile data that indicated a range of 16 to 18 systems had lead ALEs each year and 16 to 32 would have had a TLE.
Agency Response
EPA appreciates the compliance data from Connecticut, North Dakota, Indiana, Nevada, Colorado, and Ohio. Due to the aggregation level of the data, EPA could not directly use the information in the estimation of LSL and non-LSL system TLE and ALE percentages. The Agency did use the information as a rough check on the magnitude of the ALEs and TLEs estimated for the final LCRR. The values provided by states are similar to EPA's estimates of the percent of systems that exceed the trigger level (0 to 12 percent) and the action level (2 to 9 percent) under baseline conditions (i.e., before LCRR implementation). The high and low values are based on the lowest 90[th] percentile lead value reported to SDWIS/Fed for all 50 states from 2007 to 2015; the "low estimate" is based on the lowest, non-zero, 90[th] percentile lead value reported to SDWIS/Fed from 2007 to 2015, likewise, the "high estimate" is based on the highest 90[th] percentile lead value reported to SDWIS/Fed from 2007 to 2015. For the economic analysis, EPA used a subset of systems with known LSL status to acknowledge that systems with LSLs are more likely to exceed the trigger and action level as opposed to systems without LSLs. Final values for the baseline conditions for systems with and without LSLs are in Exhibit 4-19, Section <IP_ADDRESS> of the Final LCRR EA (USEPA, 2020a). Also see Section <IP_ADDRESS> for a discussion of EPA's verification of SDWIS/Fed data.
Rule Complexity and Economic Analysis
Summary of Comments
One commenter stated that "it seems unlikely that EPA's analysis accurately sets the stage for fully understanding the cost of state implementation of the proposed rule," and pointed specifically at the prevalence of small systems subject to the existing LCR, the complexity of the proposed rule, and the fact that a significant percentage (13 percent) of systems already struggle to comply with monitoring and reporting provisions of the existing rule. The commenter emphasized the limited capacity of small systems (many of which do not have CCT in place) and noted that small systems comprise the majority of existing LCR treatment technique and monitoring and reporting violations. In addition, the commenter cited that states must interact with approximately 67,700 water systems (most of which serve fewer than 10,000 people) in order to "assure reliable compliance status." The commenter implied that cost of state implementation in the Proposed LCRR EA does not adequately consider the state of compliance with the existing LCR, particularly for systems serving fewer than 10,000 people, and additional state workload associated with monitoring and determining system compliance for new treatment technique requirements and other complexities related to monitoring and reporting in the proposed rule (USEPA, 2019a).
Agency Response
See "ASDWA CoSTS Model for Estimating Primacy Agency Workload" in the response to comment Section 16.3.6 that details how EPA increased its costs estimate, from the proposed to final rule analyses, for primacy agencies to implement and oversee the final rule requirements.
Data Limitations and Uncertainty
Summary of Comments
One commenter thought that it would be irresponsible to make decisions based on the existing economic analysis, given the acknowledged uncertainty about model inputs and the very small sample sizes involved. This commenter indicated that "the first step in revising the LCR should be to first receive completed inventory from CWSs across the nation within a three-year time frame. Included in this inventory could be CCT status and actual costs of LSL replacements. This will give the EPA a more accurate snapshot of the current LSL situation nationwide."
Agency Response
EPA acknowledges the limitations of the LSL inventory data in Chapter 4, Section 4.3.4 of the Final LCRR EA but does not agree with the commenter that the revisions to the LCR requirements must wait for the collection of additional data. The Agency in its estimation of the costs and benefits of the final rule developed two values for the number of LSL systems and the number of LSLs present in those systems that allow for the estimation of both "low" and "high" scenarios impacts of the costs and benefits associated with the rule requirements. These values represent the bounds of cost and benefit values given the uncertainty associated with the amount and distribution of LSLs as well as other factors. Therefore, the Agency and stakeholders have an understanding of the range of impacts that are associated with the uncertainty in the base data used for the analysis allowing them to assess the impacts on governments, systems, and individuals related to the final LCRR.
The uncertainty range for LSLs is based on two studies, the first being from the economic analyses for the 1991 LCR, where EPA used results from the 1988 LIS conducted by AWWA to develop the LSL inventory for CWSs (USEPA, 1991). The second is based on a new estimate of LSLs presented in Cornwell et al. (2016) based on AWWA surveys conducted in 2011 and 2013. In order to capture the uncertainty associated with LSL inputs EPA developed low and high model inputs that correspond to two key parameters related to the LSL inventory: (1) the percent of systems with LSLs, and (2) the percent of service connections that are lead within systems that are known to have LSLs. The derivation of these input variables for the low cost scenario, which assumed 6,286,963 LSLs distributed nationwide, is described in detail in Chapter 4, Section <IP_ADDRESS> based on data from Cornwall et al. (2016). EPA used data the 1991 Regulatory Impact Assessment (RIA) (USEPA, 1991) to generate the high cost scenario estimate of these LSL inventory parameters. The RIA assumed that 10,274,845 LSLs existed nationwide in 1988. Based on this initial number, EPA adjusted the value to 9,239,141 for the year 2024. This adjustment is also described in Chapter 4, Section <IP_ADDRESS>.
The collection of inventory data as required in the final LCRR will help improve the accuracy of future cost analyses.
Corrosion Control Treatment
Summary of Comments
One commenter recommended that EPA review the economic impacts of the elimination of calcium carbonate at affected water systems.
Agency Response
EPA disagrees with the commenter that is it necessary to specifically evaluate calcium carbonate in the cost estimates. Under the final LCRR the Agency is not requiring those that are deemed optimized with this CCT to switch to another type of treatment. Primacy Agencies still have the authority to designate the necessary water quality parameters to allow these systems to maintain this treatment as optimal corrosion control unless the system exceeds the lead trigger level or action level. Because those systems currently using calcium carbonate are allowed to continue its use the incremental cost moving forward would be equal to zero. Further, EPA does not anticipate that many systems use calcium carbonate stabilization for CCT because as noted in EPA's 2016 "Optimal Corrosion Control Treatment Recommendations Document" (USEPA, 2016), newer research has shown that calcium carbonate films only rarely form on lead and copper pipe and are not considered an effective form of corrosion control.
EPA is eliminating calcium carbonate stabilization as a CCT option for the CCT study conducted to determine the appropriate CCT for new installations and re-optimization but the costs of the study and the resulting implementation of the CCT selection are captured in the cost estimates of the final LCRR.
In response to the request for comment about the effectiveness of CCT, the Agency received general comments that CCT is very effective with caveats. The State of Colorado indicated that, the water in the distribution system must be used on a regular basis, and sampling should be required to check on proper operation of CCT. The Agency agrees with commenters that CCT can be effective in reducing drinking water lead levels (WLL) if carefully operated and monitored. The Agency did not receive any comments on how to improve the estimates of the effectiveness of CCT from the proposed economic analysis and is therefore maintaining the same assumptions used in the proposed rule analysis.
16.3 Cost Analysis
EPA received comments pertaining to the need for the Agency to re-evaluate the cost analysis, the timeframe for implementing the rule, and the impact on small systems. EPA addressed each of these topics in more detail below.
Need to Re-evaluate the Cost Analysis
Summary of Comments
Several commenters indicated the cost analysis should be re-evaluated and cited reasons that included EPA's reliance on small samples to produce national cost estimates and the fact that cost estimates are low and did not seem to include all costs associated with a given requirement. For example, one commenter indicated that EPA underestimated the impact of school and child care requirements. One water system commenter estimated that the cost to implement the LCRR will be approximately five times the cost to implement the previous LCR, with school sampling, and additional reporting and documentation being the driving factors. Another water system commenter estimated that his water system will need to hire nine full-time equivalents (FTEs), plus one field crew and two supervisors, and acquire associated office space, vehicles, and computers, exclusive of what is needed to meet the requirements, as proposed for sampling of school and child care facilities. A commenter from a different water system estimated that implementation will require several million dollars per year regardless of whether any lead action level is exceeded. This commenter added that the required sampling, reporting and documentation will increase costs to water systems with significant costs associated with inventory, school sampling, and locating galvanized pipes. One commenter stated that EPA should incorporate opportunity costs into the economic analysis because these costs capturing "social benefits foregone," are needed to accurately characterize the costs and benefits of the rule, and are the preferred measure of benefits and costs based on EPA's guidance.
Agency Response
Based on comments on the proposed rule analysis the Agency has added additional data and modified the use of existing data to re-evaluate the national costs for the final LCRR. EPA is using the best available data to estimate the costs and benefits of the final rule. As described in response to comment Section 16.2, EPA updated the universe of systems with known LSL status for the final rule. Regarding the comment that the estimates are low and incomplete, EPA revised several of the cost input in SafeWater LCR and added new inputs based on public comment as follows:
Included Michigan's first and fifth liter compliance data in the economic analysis (See Chapter 4, Sections 4.2.7, <IP_ADDRESS>, and <IP_ADDRESS>).
Revised the initial start-up activity burden and ongoing technical assistance burden for Primacy Agencies based on ASDWA's 2020 Costs of State Transactions Study (CoSTS). (See response to comment Section 16.3.6, "ASDWA CoSTS Model for Estimating Primacy Agency Workload.")
Increased the burden for systems with LSLs to obtain a sampling pool comprised of 100 percent of households with LSLs.
Added burden for PWSs and primacy agencies to confer on initial lead monitoring data to determine a system's status under the LCRR.
Assigned analytical-related burden and costs for lead analyses to six states and burden to update the lead tap sampling instructions to reflect the final rule requirements to seven states that perform these activities in lieu of the system.
Revised the approach for estimating the number of schools and child cares to include more current studies and data sources; to develop state-specific estimates that include facilities located in the District of Columbia (DC), territories, and Navajo Nations; and to develop state specific estimates based on the population served in each state, territory, and the Navajo Nations. See response to comment Section <IP_ADDRESS>, "Number of Schools and Child Cares" for additional information.
Increased burden for CWSs to contact school or child care to determine and finalize its sampling schedule, to discuss sampling results, and added burden for them to provide detailed discussion of any high lead sample results and the "3Ts for Reducing Lead in Drinking Water in Schools and Child Care Facilities: A Training, Testing, and Taking Action Approach," or "3Ts" (USEPA, 2018).
Revised the likelihood a system will complete its initial LSL inventory in advance of the rule to limit it to states that include the identification of galvanized service lines, DC, and 5 percent of systems in other states under the LCRR.
Increased the burden for systems to develop an LSL inventory under the LCRR.
Changed the estimate for Primacy Agencies to review the initial LSL inventory under the LCRR for systems with and without LSLs.
Revised the estimates for LSLR to consider more current information. Also included system replacement costs incurred when customers initiates replacement of their portion of the LSL.
Included pitcher filter costs associated with disturbances of LSLs that are associated with water system work other than LSLR.
 Regarding the comments on school and child care testing requirements, see response to comment Section <IP_ADDRESS> for a discussion of the revisions to EPA's analysis that pertains to the number of schools and states that can waive the program requirements for CWSs and how EPA modified the requirements in the final rule to reduce the burden to water systems to implement this program. Also see Chapter 3, Section 3.11 of the Final LCRR EA (USEPA, 2020a) for a detailed discussion of the public education and sampling requirements at schools and child cares.
In response to the generalized comment of EPA's cost estimate being low and not including all costs for given actions, the cost analysis of the final rule is as accurate as possible based on the best data available to the Agency. EPA has included all cost components to the requirements analyzed where sufficient data exist taking into account all actionable public comments (those comments containing enough specific information to allow its use in the cost modeling framework). EPA does acknowledge uncertainty in the cost estimates based on the availability of data. The uncertainties associated with individual datapoints are documented throughout Chapters 4 and 5 of the Final LCRR EA. Also see sections in Chapter 4, titled "Discussion of Data Limitations and Uncertainty" for specific discussions of the impacts of uncertainty from specific costing inputs or assumptions. EPA developed low and high cost scenarios to represent bounds on cost estimates which represent the impact of uncertainty on the major cost drivers in the rule analysis. See Chapter 5, Section 5.2.4 for a discussion of the uncertainty associated with the low and high cost scenarios.
Regarding the comment indicating that opportunity costs were not incorporated into the economic analysis resulting in inaccurate estimates of social costs, EPA disagrees with the comment that it did not properly estimate the cost of the LCRR. The commenter correctly points out that when conducting an economic analysis of a proposed regulation it is important to consider the opportunity costs imposed upon society by the regulation. EPA also agrees that using only direct compliance costs as a measure of opportunity costs can lead to an underestimate of costs, but not in the case of the LCRR. In a competitive market where demand for goods are price sensitive (i.e., elastic demand elasticity), the increased cost of production associated with a regulation would cause suppliers to reduce the amount of product they are willing to sell at a given price (i.e., upward shift in the supply curve) and this would result in an increase in the equilibrium price for the good in the market. Facing this higher price, consumers would choose to purchase less of the product. In this case, both consumers and producers incur a welfare loss (e.g., a decrease in consumer and producer surplus, respectively). The sum of the decrease in consumer and producer surplus is the opportunity cost of the regulation. However, water supply is not a competitive market; it is almost exclusively a regulated monopoly. In addition, potable water has a highly inelastic demand -- customers' consumption of water does not change much when the price of water changes (Metaxas and Charalambous, 2005). Because they are regulated monopolies, water suppliers can pass the increased cost of production, resulting from the regulation, to their customers, through an increase in price. Furthermore, consumers are unlikely to decrease the quantity of water consumed due to the higher price. In this case, there will be a change in the price of water -- equal to the increase production costs due to the regulation -- but little change in the quantity of water produced and consumed. In addition, since water utilities can fully recover cost through rate adjustments, alternative investment opportunities are not crowded out. Therefore, the direct cost of compliance, as estimated by EPA, is a sound estimate of the opportunity costs of the proposed and final LCRR.
Timeframe for Implementing the Rule
Summary of Comments
One commenter argued that three years will not be long enough to make all the necessary changes (including hiring) to come into compliance with all of the new and competing requirements in the proposed rule.
Agency Response
While EPA acknowledges that a review of existing records specified in §141.84(a)(3) may require significant effort for some water systems, the Agency disagrees that three years is inadequate. See EPA's response to comment Section 5.
Small Systems
Summary of Comments
One commenter stated that provisions of the rule will be particularly burdensome to small systems: in particular, the cost of LSLR, the cost of providing water pitchers and/or filters to customers for 3 months to locations that have experienced an LSLR, and the cost of public outreach informing customers annually that they are served by an LSL or a service line of unknown material.
Agency Response
EPA recognizes that many small water systems have limited resources and technical capabilities and implementing the regulatory requirements of the final LCRR will be challenging. In recognition, EPA has sought to reduce the burden of the LCRR requirements to a substantial fraction of small systems (i.e., more than 91 percent of CWSs and 100 percent of NTNCWSs). The final LCRR provides flexibility for small CWSs serving 10,000 and fewer people and all NTNCWSs to select from among CCT, LSLR, provision and maintenance of point-of-use (POU) devices, or replacement of lead-bearing materials as the compliance response to a lead ALE. EPA has promulgated this small system flexibility because the Agency agrees that small water systems serving 10,000 or fewer persons and NTNCWSs typically do not have the capacity to implement multiple measures simultaneously such as CCT and LSLR programs. EPA has concluded that these small systems can work with their state to identify the most cost-effective measure from this list of affordable and feasible compliance options depending on the characteristics of the small system including the number of service connections, the number of LSLs and the technical capacity of the system's operators. See response to comment Section 7 for more discussion of small system flexibility. With these flexibilities EPA found in its Regulatory Flexibility Act (RFA) analysis that under the final LCRR, the number of small PWSs serving 10,000 or fewer people that is  also the small system size threshold used in the RFA analysis, which is defined in the Safe Drinking Water Act (SDWA) and confirmed, in consultation with the Small Business Administration, in the Agency's Consumer Confidence Report regulation, 63 FR 44524; USEPA, 1998) that will experience estimated annual costs of more than one percent of revenues ranges from 37,885 to 40,940 and the number of small CWSs that will have estimated annual costs exceeding three percent of revenues ranges from 21,860 to 25,466.
16.3.1 SafeWater LCR National Cost Model
Summary of Comments
EPA received a number of comments related to the treatment of capital and operations and maintenance (O&M) costs in the SafeWater LCR model. These include comments on when capital and O&M costs should be applied during the period of analysis. A commenter suggested that capital costs should be "loaded upfront" and not annualized to better represent the costs to systems. Another commenter suggested the annualization of O&M costs over the 35-year period of analysis. A third commenter provided a number of points on the appropriate social discount rate to use for estimating the present value and the annualized costs of the rule. The commenter pointed to the use of a 3 percent or lower social discount rate based on the intergenerational impacts of the LCRR, the fact that substantial public funding is available from the federal government and that costs are primarily born by public utilities and individual households indicating that this regulation primarily affects consumption as opposed to displacing private capital expenditure, and that newer data are available based on current economic conditions that would reduce the 3 and 7 percent estimates for discount rates. The commenter also suggested clarifying which discount rates (the social rates or system cost of capital) are being used in different analyses. EPA also received comments on the underlying data for estimating the cost of capital used to estimate the annual economic impact to PWSs and households. The concerns included both the age of the data and the limited sample size.
EPA received a comment that capital costs should be "loaded up front" and not annualized. Another, comment stated that "EPA should also convert operation and maintenance costs over the (35) year period to present worth to get a complete cost of compliance picture."
Agency Response
These comments seem to take issue with using annualized costs as a means to evaluate the cost of the rule and EPA disagrees with these comments. In determining the annual cost of the rule, EPA used a 35-year time horizon and, for each PWS and primacy agency impacted, EPA determined the capital and O&M costs they would incur in each of the 35 years. Since the timing of costs differ from the timing of benefits, EPA calculated the present value of costs and benefits, and then annualized the present values, so social costs and benefits could be compared on an annualized basis. To do this, EPA used two alternative social discount rates, 3 percent and 7 percent. These rates, required by OMB's Circular A-4 (OMB, 2003), provide a range for the social discount rate which is uncertain. Regarding the comment that EPA should consider the 3 percent or lower discount rate as representative of the social discount rate, EPA has provided costs and benefits based on the 3 percent discount rate to allow the Agency and stakeholders to assess impacts based on this time preference. However, there is uncertainty in the estimate of the discount rate given long term potential privatization of PWSs, and the potential for inflation over the next 35 years (the period of analysis). Therefore, it is appropriate to provide the 7 percent value to capture the potential uncertainty in long term time preferences. In considering the impacts of the regulatory requirements of the final LCRR, EPA considered both perspectives regarding the appropriate social discount rate.
There was some confusion regarding how EPA discounted costs when estimating the economic impact to PWSs or the households they serve. In these cases, instead of using a social discount rate (3 or 7 percent), EPA used an estimate of the cost of capital faced by PWSs as this better reflects their true financing cost. So, whenever a cost per PWS, cost per household, or cost-revenue ratio is presented in the LCRR economic analysis, the cost of capital was used for discounting.
One comment pointed out the cost of capital estimates used by EPA to estimate economic impacts seemed to be inconsistent, as the rates by system size and ownership seemed to fluctuate without a pattern. EPA agrees with this comment. EPA used data reported by CWSs in the 2006 Community Water System Survey (CWSS) to calculate these cost of capital estimates (USEPA, 2009). The questionnaire asked systems how they funded "major capital improvements, repairs, and expansions" during the past five years, including the percentage of capital expenses funded from different sources, the associated interest rate paid, and the average loan period. EPA used the CWSS data to calculate the overall weighted average interest rate (across all funding sources and loan periods) for each size/ownership category, weighted by the percentage of funding from each source and using sampling weights. EPA also calculated the weighted average interest rates across five loan timeframes (<5 years, 5-15 years, 15-30 years, >=30 years, and unknown), and across the categories of public and private borrowing. The CWSS collected data on interest rates only for public and private borrowing. Therefore, EPA made assumptions for the other funding sources. EPA assumed that there is no cost of capital for grants and for Principal Repayment Forgiveness under the Drinking Water State Revolving Fund (DWSRF). For capital improvements financed by equity or other funds from private investors, EPA assumed an average interest rate of 9 percent based on several examples of the allowable cost of equity for public utility. Unfortunately, while EPA used the best available data to calculate the cost of capital by system size and ownership, the 2006 CWSS had a small return sample size for the questions addressing financing. This was the cause of the seeming randomness in rates across system sizes and ownerships. In addition, the data are rather dated.
It is EPA's intention to update and improve the robustness of the cost of capital estimates when the next survey is conducted. Until that time these data represent the most up to data values available obtained directly from the regulated entities.
16.3.2 National Sampling Cost
Summary of Comments
A commenter from the City of Rochester expressed concern about the significant burden and cost of the rule as proposed. The commenter noted that the additional workload for the new sampling costs associated with tap sampling, school and child care facilities, at locations where LSLs have been replaced or disturbed, and requested by customers after being notified they have LSLs will require an additional 2,000 hours of staff time, and increase the water system's sample volume by more than 3,000 percent. The commenter added that this estimate is in addition to increased staff time for LSLR and the new reporting requirements of the rule.
Agency Response
EPA acknowledges that some systems may see a large increase in the frequency of sampling and/or the number of samples taken due to the requirements to offer consumers follow up sampling after completion of any full or partial LSLR, the changed eligibility requirements for reduced monitoring, and follow-up tap sampling at any site that exceeds 15 ug/L under find-and-fix requirements. In addition, CWSs with a large number of schools and child cares that are not eligible for a waiver will also experience an increase in the required number of samples. The average system will not see such significant increases in the number of samples taken. Under the final rule, EPA has taken steps to reduce the sampling burden on systems. EPA has modified the lead in drinking water testing program at schools and child cares in response to public comment. EPA has expanded the criteria that allow a Primacy Agency to waive this testing program for water systems. In addition, EPA is requiring CWSs to sample only at elementary schools and child cares that request testing after completing one five-year cycle of testing and only at secondary schools that request testing. See topic area <IP_ADDRESS> for additional detail on these changes. In addition, the sampling requirement associated with LSLR will decrease over time as systems replace LSLs. Further, the final LCRR does not require systems to sample LSL locations that have been disturbed due to water system work other than LSLR. Also, the final rule does not require systems to pay for customer-requested sampling in instances where an LSL had not been replaced.
<IP_ADDRESS> Lead Tap Sample Monitoring
EPA received input on lead tap sample monitoring from four commenters related to sampling plans, tap sampling costs, and recruiting customer to collect samples. EPA addressed these comments by topic.
Sampling Plans
Summary of Comments
One commenter stated that the proposed rule effectively requires every water system subject to the rule to submit a revised sampling plan and argued that EPA must acknowledge and account for this burden in its cost-benefit analysis.
Agency Response