Some commenters thought that galvanized service lines should not be included in the inventory, even if they are or were downstream of an LSL, saying the requirement is unnecessary and burdensome. This requirement, a commenter said, would force water systems to start over on their inventory development and require an additional customer contact and potential customer confusion. One commenter noted that their water system lacks the records of galvanized service lines on the customer side. A few commenters questioned the science of lead adsorption on downstream galvanized service lines. One commenter suggested that due to the challenge of demonstrating a galvanized line "never was" downstream of an LSL, the replacement requirements for galvanized lines be limited to those which are currently downstream of an LSL. The commenter went on to say these lines should be subject to inventory requirements but not called "LSLs" in the inventory. One commenter said that separating the definition of galvanized from LSLs could allow water systems to prioritize LSLR over replacement of galvanized lines. One commenter suggested EPA allow the water system to come to a reasonable conclusion about the history of a given service line upstream of a galvanized line, determining if it was an LSL or not without requiring the installation record of the original service line. Another commenter suggested that systems with well-run optimal corrosion control treatment (OCCT) and low historical lead levels should not have to inventory galvanized lines. One commenter requested that all galvanized service lines should be considered LSLs, not just those that are or were downstream of lead, because a galvanized zinc coating can contain lead. Another commenter suggested all galvanized should be identified as requiring replacement to avoid the burden of determining whether or not there is or was an LSL upstream. One commenter sought clarification if galvanized downstream of a lead connector would be considered "galvanized requiring replacement," while another commenter believed that these lines should not require replacement.
Some commenters requested that water systems include additional information in the inventory, such as installation date, pipe diameter, premise plumbing materials, populations served (i.e., schools, daycares) to assist with replacement prioritization, health risks of LSLs, and the precise methods used to determine each service line's material. One commenter requested guidance about how to inventory service lines that serve multi-family homes.
A commenter suggested the inventory include the type of population served at each service line. One commenter suggested that the inventory scope be expanded to include all materials used to construct the distribution system, including piping, solder, caulking, interior lining of the distribution system mains, interior plumbing, and service lines. A commenter requested that EPA consider including only service lines of unknown lead content, rather than unknown material in the LSL inventory. Another commenter said that it would be a missed opportunity not to identify all service line materials during inventory development.
Agency Response
EPA agrees that LSLs that are never used for human consumption do not present a risk for human exposure to lead in drinking water, but disagrees that the inventory requirement in the final rule should be limited to only those service lines used for human consumption (to the extent that a system has any such service lines). Water systems do not have adequate knowledge to determine that an individual LSL will never be used for potable purposes, given that uses could change from non-potable to potable uses, making such a limitation on the inventory impractical to implement. Therefore, the final rule does not limit the scope of the inventory to only service lines for potable use. EPA also notes that the definition of "public water system" in Section 1401 of the SDWA is "a system for provision of water for human consumption . ..." In "Definition of a Public Water System in SDWA Section 1401(4) as Amended by the 1996 SDWA Amendments" (63 FR 41940, Aug. 5, 1998), EPA explained that "human consumption" as that term is used the definition of PWS means drinking, bathing, showering, cooking, dishwashing, or maintaining oral hygiene besides drinking. That document also provides guidance on the definition of PWSs and exclusions from the definition that may be useful. See also EPA's the definition of "service connection" as that term is used in "public water system" at 40 CFR 141.2.
EPA disagrees with comments suggesting that customer-owned LSLs should be excluded from the inventory. The existing rule has required an accounting of LSLs regardless of ownership status. See §§ 141.84(b)(1) and 141.90(e)(1). The customer-owned service line is connected to some system-owned components of the water system, and therefore, the water system has access to that connection point to determine the material of a customer-owned portion of the service line. System actions can impact lead release from customer-owned service lines. For example, partial LSLR of the system-owned portion can result in a lead spike on the customer-owned portion from physical disturbance and galvanic corrosion. Accounting for locations of customer-owned LSLs increases public health protection and is critical to several components of the rule such as sampling, LSLR, and execution of customer risk mitigation post-disturbance. Furthermore, customers are unlikely to possess records of service line materials if the water system originally installed the service line and maintains the original installation record. For these reasons, EPA disagrees a cost-benefit analysis of including the customer-owned service lines versus excluding them from the inventory is necessary. EPA also disagrees that including customer-owned service lines in the inventory is not an appropriate use of rate payers' money because as some commenters claimed it benefits an individual and not the system. EPA again highlights the direct effect system actions can have on individual service lines, regardless of ownership. EPA notes that the water system is not required to bear the cost of replacement of any customer-owned service line. EPA also disagrees that systems should have requirements to inventory customer-owned LSLs if they have no LSLs or unknowns on the system side. Water systems must still comply with other rule requirements, such as PE, risk mitigation, and tap sampling, regardless of LSL ownership. EPA agrees with the commenter that customer self-reporting or self-monitoring could be used for customer-owned service lines, however, disagrees that the state should require this given that many water systems may not need to rely on customer participation (i.e., the entire service line is system-owned, or customer cooperation is not needed to determine service line material).
EPA agrees that customer cooperation may be helpful in some circumstances, but it is not expected to be needed to identify the material of the customer-owned portion in most cases. As discussed above, the non-system-owned service line is connected to a system-owned component such that a water system should be able to visually inspect the material of the customer-owned portion without accessing customer property, for example when viewing or replacing the water meter. Additionally, as there is no deadline to verify all service line materials, the water system can remain in compliance despite potential customer noncooperation or nonresponse, where such cooperation is needed. In response to the customer who suggested that water systems be able to document where a customer refusal or non-response to investigate a service line material, EPA agrees that a system may document this in the inventory as an additional field; however, this would not change the service line material classification from lead status unknown.
EPA encourages but does not require water systems to partner with customers, local home inspectors, local building permitting agencies, real estate agencies, and other relevant parties to contribute to the verification of service lines on the customer-side. NPDWRs are applicable to water systems, they do not extend to those parties; therefore, it would not be appropriate for EPA to require water systems to partner with other entities. Moreover, a requirement for water systems to partner with other entities is not necessary for systems that want to do so. For information about disclosing customer-owned service line materials, including on sale or transfer of property, please see response to comment Section 5.4.
EPA received a request for guidance for inventorying service lines on private property. EPA understands guidance 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.
The proposed rule required water systems to identify LSLs, service lines of unknown material, and non-LSLs in the inventory. For the final rule, EPA adjusted the terminology based on a commenter's suggestion. Service lines of unknown materials, as referred in the proposed rule, are now identified as "Lead Status Unknown." This change is intended to reflect scenarios where the exact service line material might be unknown, but the water system can demonstrate it is not an LSL. For example, the water system may have records showing the service line was installed after a federal or state lead ban but does not know if the material is copper or plastic. In this case, the water system may categorize the service line as a non-LSL even though the actual material is "unknown." The final rule's inclusion of the term "lead status unknown" will add clarity and prevent duplication of effort for water systems that have already started inventory efforts without tracking the actual material of non-lead lines. Additionally, the final rule provides flexibility for "Non-lead" service lines to alternatively be classified in the inventory by their specific material, for example plastic or copper, if the water system chooses. EPA recommends that water systems do track service line materials for asset management purposes.
EPA disagrees that lead status unknown service lines should be excluded from the inventory or that EPA should require the inclusion of unknown service lines in certain circumstances (e.g., using tiered criteria, or on a case-by-case basis). It is necessary to inventory unknowns to comply with the PE requirement to inform customers who are served by an unknown that their service line may be an LSL. Additionally, the LSLR rate includes unknowns. Finally, including unknowns in the inventory allows the public to view the progress of LSLR as well as inventory development progress. Listing unknowns in the inventory also presents an opportunity for customer engagement and the identification of unknown materials. Rather than customer concern and distrust resulting from their inclusion, as some commenters claimed, EPA finds that exclusion of large swaths of homes with lead status unknown service lines from the inventory would likely cause significantly more confusion and alarm among the general public. While some commenters asked that multiple classifications be introduced for unknowns, for example "unknown but likely non-lead," "suspected lead," or "unknown -- not lead," or that EPA require the inclusion of unknown lines only in certain circumstances, EPA finds that this would be too complicated to regulate in this way, be more burdensome for water systems, and cause more confusion to customers who may not understand how the water system distinguishes among multiple unknown classifications. EPA is requiring just one classification for unknowns, "lead status unknown" or alternatively just "unknown." While a water system may not classify a lead status unknown service line under a different label, it may include additional information associated with each service line to convey, for example, the basis for the classification or, if the water system is using a statistical approach to populate its inventory, the likelihood that the service line is an LSL. EPA disagrees that unknowns should be tracked separately with a goal rate of unknown investigation. Systems outline a strategy for identifying unknowns in their LSLR plan. Water systems have the flexibility to actively identify service line materials, or to perform them in tandem with other water system activities. Given the variability of water system work that occurs each year (for example, main replacement), as well as the possibility that in a given year infrastructure work may not occur in areas with a high number of unknowns, EPA does not find it appropriate to prescribe that a numerical goal investigation rate be assigned to systems. EPA also disagrees there should be a cutoff to the number of unknowns that are considered LSLs. EPA clarified in the final rule the that unknowns are not considered LSLs for the purposes of tap sample tiering, inventory or PE, but they must be considered LSLs for determining the LSLR rate. For more information about the LSLR rate, please see response to comment Section 6.
Please see response to comment Section 6 regarding how unknowns apply towards the LSLR rate. For information about verifying unknowns over time, please see response to comment Section 5. For information about the strategy to verify unknowns within the LSLR plan, please see response to comment Section 6. For information about incentives to verify unknowns, please see response to comment Section 6.
EPA agrees that lead connectors can contribute lead to drinking water but does not agree they should be included in the LSL inventory. There is significant burden associated with the investigation of a connector's material, given they are primarily located beneath the street. Since records on connector material are often extremely limited, investigation of connector material composition would likely require partial road demolition and subsequent repair upon completion of the investigation. While EPA agrees that it is beneficial to know the location of all lead sources in the drinking water infrastructure, it would be overly burdensome for a water system to be required to inventory connector materials given the great difficulty accessing them. In addition, the final rule retains the proposed requirement to remove connectors owned by the water system as they are encountered during any water system activity. These activities could include, but are not limited to, main replacement and emergency repairs, as well as LSLR.
For more information about lead connectors in the final rule, please review response to comment Section 6.
EPA disagrees that inventorying galvanized service lines that are or were downstream of an LSL is unnecessary. Galvanized service lines that are or were downstream of an LSL can contribute to lead in drinking water and resulting lead exposure, and therefore must be identified in the inventory and replaced in LSLR programs in the final rule. EPA agrees that the proposed requirement to list galvanized lines as "LSLs" may introduce confusion, therefore the final rule requires they be labeled "galvanized requiring replacement" if they are or ever were downstream of an LSL and "non-LSL" if they aren't or never were downstream of an LSL. Where records don't exist to prove that a galvanized service line never was downstream of an LSL, the water system must presume it was downstream of an LSL and label it "galvanized requiring replacement." This approach ensures that all galvanized service lines that may have been downstream of an LSL will be treated as an LSL and counted towards replacement under LSLR programs, ridding this source of lead from distribution systems. EPA does not agree that the burden for water systems to demonstrate the galvanized line was never downstream of a lead line is excessive or unnecessary. Water systems are not required to conduct investigations beyond checking their records to determine if an LSL may have been upstream. If historical records do not exist, water systems would simply classify the lines as galvanized requiring replacement. This approach minimizes the burden to classify these lines while allowing water system with records demonstrating these lines are truly "non-lead" to avoid the burden of replacing them. EPA disagrees with the commenter who stated this requirement would force systems to "start over" if they have already created an inventory, noting that while some additional work might be required, this burden is necessary to identify these galvanized lines in the inventory because they can be a significant source of lead in drinking water if they were ever downstream from an LSL (HDR, 2009). EPA disagrees that in the absence of records water systems should be allowed to come to a conclusion whether the galvanized line had an upstream LSL, as without evidence this judgement would be subjective and potentially leave in place a high number of galvanized lines that were downstream of an LSL. EPA also disagrees that galvanized lines should be excluded from systems with historically low lead levels and well-run OCCT, as these lines may still episodically contribute particulate lead release. EPA agrees that some galvanized lines may have a zinc coating that contains trace amounts of lead. EPA disagrees that this fact makes it appropriate for the final rule to consider all galvanized lines eligible for replacement. The lead contribution from the zinc coating is expected to be lower compared to LSLs or galvanized lines that are or were downstream of an LSL that have adsorbed particulate lead. Including these lines as eligible for replacement would dilute a water system's progress to replace the highest risk service lines, which could result in LSLs remaining in service for a much longer period of time. For more detail, please see response to comment Section 5.
EPA agrees that galvanized service lines downstream of a lead connector may contribute lead into drinking water but does not believe it is appropriate to classify these galvanized lines as "galvanized requiring replacement" if there is not or never was an upstream LSL. As mentioned above, it is not feasible to include a requirement for all systems to inventory lead connectors; therefore, they cannot be used to classify a galvanized line as needing to be replaced under the final LCRR. In addition, replacement of LSLs and galvanized service lines downstream of an LSL are expected to contribute more lead into drinking water than galvanized service lines downstream of a lead connector, so requiring these galvanized lines to be replaced as part of the LSLR program could slow the replacement progress of these potentially higher-risk service lines. EPA encourages but does not require water systems that do have lead connector records to replace downstream galvanized service lines where feasible.
EPA disagrees with commenters who do not believe the scientific evidence is strong enough to show that upstream lead can adsorb on downstream galvanized service lines. There is ample and well-documented evidence that lead risk is frequently magnified or made more permanent by the accumulation of lead in the iron oxyhydroxide corrosion byproduct deposits in old corroded galvanized steel pipes. The citations by the commenters represents only a very small fraction of the body of evidence upon which EPA basis its recommendation. The amount of lead accumulated in galvanized pipe scales is highly variable. The variability results from a variety of factors, such as the background water chemistry, the lengths and types of the upstream lead sources, the exact nature of the corrosion scale on the galvanized pipe, and the water usage, as well as others. However, the chemistry principles of the phenomenon have been well-established for decades. Galvanized coatings on steel pipes, sometimes containing small percentages of lead, corrode non-uniformly into mixtures of ferrous and ferric iron rusts (Trussell et al., 1996). Listed below is a small subset of the numerous articles EPA has evaluated, documenting sorption and accumulation of divalent lead and other heavy and trace metals on iron oxyhydroxides in soils, the geosciences, and natural water systems. Pipe scale analyses done by EPA and others have shown that these hydrous ferric oxyhydroxides are accurate analogies for the corrosion byproduct rusts that form on steel and galvanized steel water pipes. The generalized phenomenon of lead and other trace contaminant was reviewed by Schock (2005), also pointing to natural water system analogues and principles described in aquatic chemistry texts such as Dzombak and Morel (1990) and Stumm and Morgan (1996), as well as referencing a history of drinking water studies of contaminant accumulation. In addition to the McFadden et al. (2011) and HDR (2009) studies cited by the commenters, there are other studies that have directly and indirectly observed the lead accumulation in iron/steel rust scales phenomenon in drinking water systems. For example, Del Toral et al. (2013) and Batterman et al. (2019) noted the evidence of lead accumulation from service lines in premise plumbing, associated with interior galvanized pipes in the Chicago system. Deshommes et al. (2010) and Camara et al. (2013) have observed lead accumulation in downstream galvanized pipes in Canadian water systems. Dolan (2016), Goovaerts (2017), and Lytle et al. (2019) have reported observing it in Flint, Michigan. Maynard and Wasserstrom (2017) directly observed it in galvanized pipes from three cities. Therefore, EPA believes the concern with lead accumulation within downstream service line or interior premise plumbing being a potentially important source of waterborne lead exposure is soundly based on a broad and extensive body of water chemistry research. For more information, see Coughlin and Stone, 1995; Dyer et. al., 2003a; Dyer et. al., 2003b; Gunneriusson et. al., 1994; Hua et. al., 2012; Komárek et. al., 2018; Peng et. al., 2013; Potter and Young, 1999; Rahimi et. al., 2015; Tiberg et. al., 2013; Trivedi et. al., 2003; Xu et. al., 2006a; Xu et. al., 2006b.
EPA does not agree that additional distribution system details, such as installation date, pipe diameter, premise plumbing materials, must be required in the inventory. Although EPA encourages water system efforts to include more detailed information in the inventory, the main purposes of the LSL inventory are to provide the water system with a record of their service line materials to guide rule requirements such as tap sampling, PE, and LSLR, as well as to help inform the public at large about the presence of LSLs in the distribution system. Depending on the situation, too much additional information could confuse the public by diluting the key information with less relevant details. EPA recommends tracking distribution system details for asset management purposes, even if a water system does not include this additional information in the publicly accessible inventory. EPA does not agree that premise plumbing, such as fixtures, should be tracked by the water system as a final rule requirement, as there may be several fixtures associated with each service line, customers may lack the original product documentation for the fixtures, and most customers would likely replace the fixtures without informing the water system.
EPA does not agree that water systems should be required to include the precise methods used to determine each service line's materials in the inventory. For more information, see response to comment Section 5.
EPA does not believe it is appropriate to include health information in the publicly available inventory, as this information is already provided in PE materials, the Consumer Confidence Report (CCR), and Public Notification requirements of the final rule.
EPA determined it is not appropriate to require water systems to include information on the type of population served at each service line in the inventory. The population served at each service line is highly likely to change over time (i.e., new occupancy, births, deaths) and systems would need to regularly contact the occupants of each service connection to determine the composition of the population at that site. This may be viewed as invasive and intrusive by consumers and adds significant burden for water systems. Although EPA recommends water systems use this type of information for its LSLR prioritization strategy, EPA is not requiring water systems to collect additional data in the service line inventory for that purpose. The water system may also choose include this information in the LSLR plan. For more information, please see response to comment Section 6.
It is not feasible for water systems to inventory the materials of all components of the distribution system, as one commenter suggested "piping, solder, caulking, interior lining of the distribution system mains, alloys, interior plumbing, and service lines." The investigation of these other possible lead sources would require enormous disruption, customer cooperation, represents a significant burden for water systems and states, and would likely disturb lead plumbing and cause lead spikes in drinking water.
In response to EPA's request for guidance about inventory scope or contents, a commenter requested clarification for how to inventory service lines that serve multifamily homes, such as high-rise buildings. EPA understands guidance 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. EPA also notes that due to the typical diameter of LSLs, which generally do not exceed two inches, it is unlikely that LSLs will serve high rise buildings.
5.4 Inventory Information Sources
Burden Associated with Certain Methods
Summary of Comments
Many commenters believed EPA identified appropriate records that must be used for the creation of the initial inventory. Some commenters noted that they do not have records, e.g., where the system is made of several systems that consolidated. Some commenters noted that even where historical records do exist, they can be outdated or unreliable. Including unreliable data in the inventory, those commenters said, could cause the public to regard the data with higher confidence than warranted, leading to customer disputes or liability where the initial material designation turns out to be incorrect. Commenters noted that records of customer-owned service connections are notoriously incomplete or missing.
Some commenters noted the significant burden associated with investigating service line material compositions, especially regarding methods such as potholing and trenching which require exposing and visually inspecting the underground service line. Older water systems often lack robust records and will rely more on these more burdensome techniques, commenters noted, and face a daunting challenge to achieve complete material composition identification of all service lines. One commenter stated that certain inventory techniques may disrupt an LSL and cause lead release into drinking water. A commenter requested that EPA identify funding sources for inventory development. Some commenters requested that water systems be allowed to self-certify that the distribution system has no LSLs, based on previous experience and general familiarity with the distribution system.
One commenter analyzed the burden to inventory its distribution system. The commenter stated that based on the 2,032 inlet service lines researched, an estimate of 7 minutes of labor per service line was expended and 25 percent of the accounts did not even have paper records to review (thus, the identity of the inlet services remained unknown). To research all 170,000+ accounts would occupy a full time staff member over 2 years, with the likelihood that over 42,000 accounts will remain undetermined in service line material identification due to a lack of records.
Agency Response
EPA agrees that identifying service line martials can be burden-intensive, especially where records do not exist or are unreliable, and visual inspection techniques, such as potholing, are used. Nevertheless, for reasons discussed here and elsewhere, the final rule requires an inventory regardless of these challenges. Like the proposal, the final rule does not include a deadline to identify all service line materials, allowing the burden of certain service line identification methods techniques to be eased by investigating service line materials over time and by coupling inventory development with existing water system activities. For example, if water system personnel are deployed on a street for other infrastructure work, they may use that opportunity to visually inspect service lines and engage with the customer to determine the customer-owned service line material if needed.
While EPA agrees with commenters who said that identification of customer-owned LSLs could potentially shift focus, funding and staff from LSLR, EPA highlights the importance of having an inventory that includes both portions of the service line, noting that knowledge of LSL locations is necessary to ensure sampling locations are tiered correctly, to conduct risk mitigation after a partial LSLR or LSL disturbance, as well as to ensure that goal and mandatory LSLR rates are calculated pursuant § 141.84(a)(7). The LSLR plan in the final rule adds a requirement for water systems to develop a strategy for verifying the materials of lead status unknown service lines over time, which could include how to fund the effort. EPA also notes that many funding sources exist for LSLR and related activities, such as inventorying LSLs. For more information, please see response to comment Section 6.
Which Service Line Material Investigation Methods and Techniques are Acceptable
Summary of Comments
Some commenters appreciated the rule's flexibility to allow water systems and states to determine acceptable service line verification methods. Other commenters requested EPA be more prescriptive and identify what constitutes acceptable evidence for service line materials verification. Some commenters requested EPA specifically approve the use of certain inventorying methods, such as tap sampling. Another commenter noted that when corrosion control treatment performs well, tap sampling can produce false negative results when used for determining service line composition. One commenter found that scratch tests did not provide accurate results. A commenter noted that customer self-reporting can be unreliable; however, accuracy can be improved when customers submit a photo with their self-identification for water system personnel to double check. The commenter noted that potholing is the only way to access lines which may not enter the home or the meter pit. Some commenters note that potholing can cause LSL disturbance and result in lead release into drinking water. Many commenters requested that water systems be able to presume service lines are lead-free after a certain year of installation. Many commenters suggested EPA approve use of a statistical method to verify service lines, with some commenters suggesting a confidence level of 90 percent or 95 percent is appropriate for classifying service line materials. Commenters noted that EPA has more technical expertise and would be better suited to prescribe acceptable and unacceptable methods than states. Some commenters requested EPA provide guidance regarding LSL verification methods.
Commenters were especially interested in how water systems could prove a galvanized service line "never was" downstream of an LSL, which must be replaced under the goal and mandatory LSLR programs. Many commenters wanted clarification regarding the burden of proof required to prove that there never was an LSL upstream of a galvanized line when one is not currently there.
Commenters sought clarification about proposed regulatory text that states may require water systems to use certain inventorying techniques for the development of the initial inventory. States would not, commenters noted, have primacy before the rule compliance date of three years after rule publication. Commenters also noted that effort could potentially be duplicated if the water system created the initial inventory and had to revisit the inventory after the rule compliance date to exclude certain inventory identification methods prohibited by the state, or add new ones using new methods determined by the state. One commenter believed that the regulatory text should require water systems to investigate resources "as required or provided" by the state.
Some commenters thought that the rule should require the inventory to include information to note the method used to identify the material composition of each service line (i.e., records search, potholing, inspection of the service line entering the home). Commenters believed that this would provide transparency surrounding the basis of the inventory to the public and primacy agency, increasing the confidence in the inventory contents.
A commenter suggested that the LSLR plan include a description of resources and methods used to designate service lines as lead or non-lead.
A commenter noted that § 141.84(a)(2) of the proposed rule (corresponds to § 141.84(a)(3) of the final LCRR) requires water systems to use the information collected in accordance with § 141.42(d) (of the previous rule) when conducting the new inventory data, but those requirements are vague and not quantitative. The commenter asked EPA to specify how EPA anticipates water providers will use the previously collected information in the new inventory data collection effort.
Agency Response
EPA recognizes that some water systems have very robust records; whereas, other water systems' records may be outdated, incomplete, conflicting, or inaccurate due to poor recordkeeping or other circumstances. While the final rule requires water systems to review the records listed in § 141.84(a)(3), if they exist, the system can decide not to use those records to populate the inventory if it finds the records are unreliable or are not the best data source available. Note that the final rule requires service line materials to be tracked over time as service lines are encountered, LSLR is performed, or inspections are conducted. Given the variability of water systems' records, the rule requires the review of certain records but does not specify a national standard regarding which records are appropriate to include in the inventory.
EPA recommends water systems judge which records provide the most accurate information and consider including a disclaimer in their inventory stating that material identification of individual service connections are subject to change over time as additional data becomes available, such as from visual inspections. The rule by design acknowledges potential uncertainty in the data, requiring the inventory to be updated over time. Through inventory updates, water systems will have the opportunity to correct where the original material designation was wrong and verify the material of lead status unknown service lines as they are investigated.
Some commenters thought that EPA should prescribe which service line material identification techniques are acceptable because they claimed the Agency has more technical expertise in this regard than states. EPA notes that by avoiding explicitly approving or prohibiting any identification methods in the final rule, EPA allows for the advancement of such methods, as new technologies may become available or existing methods may be developed and improve over time. In addition, the appropriateness of some identification methods may vary geographically. Other methods will vary depending on different water system practices. This includes visual inspection of service line materials at the meter box, which may be possible for some systems with, for example, inline service lines; whereas, other water systems may only be able to view the pipe material of the water meter setter from the meter box. There are many instances where an identification method may be appropriate for one water system but not another and EPA cannot capture every possible variation in a national regulation. Allowing the state to require or provide a resource, information, or identification method will allow for regional or system-specific conditions to be considered, as well as to account for new or improved methods.
EPA disagrees that water systems should be allowed to self-certify that the distribution system, in whole or by individual service lines, has no LSLs without supporting records or other evidence that demonstrate their claim. Because the presence of an LSL is household-specific, § 141.84(a)(2) of the final LCRR requires that the inventory "include all service lines connected to the public water distribution system" and § 141.84 (a)(4) requires that "[e]ach service line, or portion of the service line where ownership is split, must be categorized..." as either lead, galvanized requiring replacement, non-lead, or lead status unknown. The Agency does not agree that general familiarity of the distribution system provides an adequate basis for making judgments about the material of individual service lines. Such experience and familiarity may be used, for example, as part of the LSLR plan's strategy for targeting service line investigations where the water system personnel believe LSLs are most likely present. The final rule includes the new text in § 141.84(a)(4)(iii) and (iv) which ensures that evidence is required to support material classifications to ensure that subjective judgments of those familiar with the distribution system as a whole do not assign material classifications to individual service lines without evidence of the material of the individual service line. Additionally, the final rule states that water systems may use other sources of information not listed in § 141.84(a)(3) if approved by the state.
The final rule includes a new option in § 141.84(a)(9) allowing a water system whose inventory shows no lead, galvanized requiring replacement, or lead status unknown service lines (regardless of ownership) in its inventory to make a written statement publicly available, in lieu of the inventory, declaring that the distribution system has no LSLs or galvanized requiring replacement service lines. The statement must also include a general description of the methods used to make this determination. This requirement does not allow water systems to avoid creating an inventory because an inventory is required to demonstrate the system has only non-LSLs, but allows a written statement certifying this information would demonstrate a similar message as an inventory of only non-LSLs.
Regarding statistical-based methods of service line materials identification, the final rule does not preclude their use for inventory development purposes, so long as the system has state approval. In response to commenters who believed that EPA should explicitly incorporate the use of statistical models into the final rule's inventory requirements, EPA notes that a statistical model may not be appropriate for all water systems, as there could be a variety of statistical models with different input parameters, as well as varying existence and reliability of input data from system to system based on the availability and robustness of records to populate model inputs. EPA cannot expect any level of consistency that would warrant these models to be required for use nationally in the final LCRR, or a national criteria be set to determine what level of confidence must be used as a threshold for making service line material classifications. EPA notes that statistical models can be used without state approval for planning purposes, such as estimating the locations where LSLs may be most prevalent. Water systems using a statistical approach for classifying service line materials may consider but are not required to provide additional information in the inventory, such as the statistical likelihood that an individual lead status unknown service line is made of lead as well as what probability thresholds are used to make material determinations.
EPA added text to require water systems to use resources "provided" by the state so the state (or EPA where the program is directly implemented) has flexibility to identify service line material identification techniques in the future and would not have to specify all methods and resources in their primacy revisions for the LCRR.
EPA agrees with commenters that recommended that water systems should be able to determine service lines are lead free based on the year of installation, noting that this information source would apply under the information sources listed in § 141.84(a)(3). Use of LSLs was prohibited at the federal level in 1986; however, some states had banned their use earlier. Other water systems may have records of local plumbing codes which show when LSLs were no longer used in the distribution system. These are all examples of benchmarks that water systems could potentially use to classify service line materials. The proposed requirements to search water system construction records and plumbing codes allowed for this information to be used and is being retained for the final rule. EPA removed the text allowing the state to require systems review "[a]ny resource required by the State to asses service line materials for structures built prior to 1989" from § 141.84(a)(2)(iv) of the proposal to acknowledge that some states may have banned lead in drinking water infrastructure before 1989. This change was not meant to prohibit installation year records from beings used for inventory development.
In the final rule, EPA clarified the criteria required to classify if a galvanized service line where no records exist to demonstrate if an LSL was ever upstream. The final regulatory text states that "if the water system is unable to demonstrate that the galvanized service line was never downstream of an upstream a lead service line, it must presume there was an upstream lead service line." This new text provides eases implementation by providing clarification on how water systems must classify galvanized lines where no historical records on upstream service lines exist. EPA acknowledges that in some cases, water systems will likely replace some galvanized service lines that were never downstream of an LSL. EPA has determined, however, that a high burden of proof is warranted because it ensures that the rule addresses lead from a galvanized service line previously downstream of an LSL by ensuring it will be replaced under the system's LSLR program. For additional information about how galvanized lines that are or were downstream of an LSL can contribute lead to drinking water, please see response to comment Section 5. Although not a factor in EPA's decision-making with respect to the requirements of this rule, EPA notes that there are additional benefits to replacing galvanized service lines, which are often old and prone to leaking.
Although not required in the final rule, EPA encourages water systems to include additional information in the inventory beyond the minimum required in the rule. For example, listing the basis of material verification for each individual service line could be useful to inventory users and the state. EPA disagrees, however, that this is necessary for the national regulation, as the final rule states that material classifications must be "evidence-based," and records or methods not specified in the final rule must have state approval. In addition, if required to state the exact method used to make a classification, the many proactive water systems who have already created inventories and may not be tracking their methods used on an individual service line basis would have been required to go back and potentially duplicate their efforts. Additionally, while the final rule does not require the verification method to be associated with each individual service line, a new requirement in the LSLR plan requires water systems to describe their strategy to verify lead status unknown service lines. This could include a description of the resources and methods that will be used, as well as when they will be used (for example, during main replacement or meter replacement). For more information about the LSLR plan, please see response to comment Section 6. In addition, when a water system has demonstrated it has no LSLs, galvanized requiring replacement, or unknowns, a new provision in the final rule allows them to issue a publicly available statement and language in the Consumer Confidence Report that they have no LSLs and include the methods used to reach that determination. These requirements will allow the water system to be transparent about the methods used to populate the inventory contents without the added burden of listing a method for each service line.
One commenter expressed concern that water systems are incentivized to undercount the number of LSLs in their inventory by listing them as non-lead. EPA notes that unless determined to be non-lead through an evidence-based record, method, or technique, water systems are required by the final rule to classify those service lines as unknown, per § 141.84(a)(4)(iv).
EPA added text to the final rule requiring water systems to develop their initial inventory using any resource, information, or identification method "as provided" or required by the state. While the proposal already required systems to use any resource, information, or identification method required by the state for the initial inventory, the text "as provided" allows states to utilize this text without adding a new requirement into their state LCR. This addition was applied to inventory updates as well. This will give states the ability to require water systems to utilize, for example, newly identified or updated techniques or methods that were not available for the initial inventory.
In the final rule, EPA maintained the requirement to identify construction materials in § 141.42(d), but the wording of this requirement was changed to better reflect the requirements in that section.
EPA agrees that some identification methods can potentially disturb LSLs. EPA notes that the final rule includes provisions require water systems to issue PE, flushing instructions, and filters in some instances when an LSL undergoes various types of disturbances. EPA recommends that water systems attempt to minimize disruption to service lines when investigating their material and recommends that water systems provide risk mitigation measures to consumers when the line has been disturbed but does not meet the disturbance criteria under § 141.85(f). EPA notes that in many cases, water systems will investigate service line materials in tandem with existing infrastructure activities that will disturb the LSL, meaning that risk mitigation measures will be provided as a result of the work.
Some commenters requested that EPA provide guidance regarding LSL verification methods. 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.
5.5 Public Availability of Lead Service Line (LSL) Inventory Information
Requirement for Water Systems to Make its Inventory Publicly Accessible
Summary of Comments
Several commenters signaled broad support for requiring systems to make the LSL inventory publicly accessible because transparency is a critical step for building trust, informing and educating consumers about the sources of lead in drinking water, and reducing risk. Commenters also noted that making the inventory publicly accessible helps to prioritize replacements across the country. Commenters indicated that LSLs and galvanized lines that are or were downstream of an LSL pose a known and signiﬁcant public health hazard that makes it diﬃcult to justify a water system's failure to disclose their location. One commenter also noted that making this type of information publicly available is consistent with the treatment of other types of property information that is made public through various real estate listing services, which make available detailed information on most homes, and therefore "it is difficult to see how the composition of the service line would be considered sensitive information."
Commenters that did not support a requirement to make the inventory publicly accessible raised concerns that such a requirement could infringe on customer privacy, add to confusion, cause panic, anxiety, and distrust of the water system, especially if the inventory identifies a high number of LSLs or service lines where the lead status is unknown. A commenter suggested the final rule should require utilities make the inventory "available to customers through open records requests so utilities can provide the proper background and explanation."
Commenters also raised concerns that the requirement to make the inventory publicly available could result in unintended impacts to economic development for a community and property values for individual locations with LSLs or lead status unknown service lines. A commenter noted that for the majority of Americans, their homes are their largest investment and LCRR requirements should be cautious in inadvertently causing loss of property values, noting that home prices can be adversely affected by stigmatization of neighborhoods or because individual homes may test positively for lead or copper. Commenters claim that the requirement would burden a PWS with potential conflicts in real estate transactions and open the system to legal liability associated with the release of this type of information. Similarly, a commenter was concerned that a "utility placing this type of information in the public domain lends a certain amount of validity and credibility to the information that may not be justified given the potential uncertainty of the data." Commenters indicated that the inventory disclosure would be burdensome and result in increased sampling and inspection efforts that may be necessary to address customer concerns.
Some commenters also raised concerns with the requirement because there are alternatives to allowing open access to the general public (e.g., the requirement for the PWS to provide annual disclosure to customers with LSLs; a requirement to release the information after account verification; or other non-binding measures such as pre‐purchase residential inspections). Finally, there was a comment questioning, without any supporting rationale or detail, whether EPA has the authority to require systems to make this information publicly available.
Some commenters requested clarification as to whether the requirement to make the inventory publicly accessible applies to systems that do not have any unknown service lines or LSLs, pointing out that the opening sentence in § 141.84(a) of the proposal states, "[a]ll water systems must develop and maintain a publicly accessible inventory" whereas § 141.84(a)(7) of the proposal suggests that only systems with an LSL must make their inventory publicly accessible. One of these commenters expressed concern that "community members will likely not know that an absence of an online inventory means there are no LSLs in the system."
Finally, one commenter suggested that rather than making the information publicly accessible, the rule should require systems to make the information available upon request.
Agency Response
EPA agrees with commenters who support a requirement for water systems to make the inventory publicly accessible. A publicly accessible inventory will inform customers about the presence of lead in the distribution system as well as build transparency of water systems' inventory development and LSLR progress. Informed customers are better able to take actions to limit exposure to lead in drinking water and could potentially increase customer engagement, allowing for more rapid verification of lead status unknown service lines and increased participation in LSLR programs. EPA disagrees with commenters who expressed concern that a publicly available inventory would cause confusion, panic, and distrust of the water system. Many states and water systems currently make inventory information available to the public; EPA has not encountered any evidence from these localities indicating higher levels of confusion, panic or distrust of the system. The final rule includes requirements for PE and notification of customers with LSLs that will act as a countermeasure against the potential for confusion and panic. Because transparency generally increases trust, EPA expects that if water systems were to withhold information in the inventory, it would increase -- not decrease  -  the public's distrust of the water system. Although not addressed in the final rule itself, systems that are concerned about the validity or certainty of their data may choose to include disclaimers appropriate for their inventory.
EPA also disagrees with a commenter who believed inventories should not be disclosed due to increased sampling and inspection efforts that may be necessary to address customer concerns. While EPA acknowledges that the water system may receive increased sampling or inspection requests, or inquiries about LSLs and LSLR, many states have already promulgated requirements that water systems must create an inventory, and EPA is not aware of water systems in these states receiving an unmanageable level of requests as a result of their inventory publication. Therefore, the final rule includes the requirement in to make the inventory publicly accessible.
In response to comments requesting clarification as to the applicability of the public accessibility requirement, EPA has clarified that all water systems must make their inventory publicly accessible. In response to concerns expressed in comments about the perception of validity or credibility of the information, EPA is also requiring all systems, those with and without LSLs, to make publicly accessible the methods used to determine the presence or absence of LSLs. Together, these requirements ensure that the public has a more complete understanding of service line materials used in their distribution system, while also providing necessary context for the public to assess the reliability of the information provided in the inventory. This information is valuable in informing and educating consumers about the potential sources of lead in drinking water, helps to prioritize replacements across the country, and provides enough detail of the process used to draw the conclusions about LSL presence or absence to ensure the inventory is not given more or less weight than is appropriate. In addition, providing the public with information about the system's methodology for developing the inventory is expected to improve public confidence in the inventory where warranted and to protect water systems from becoming involved in real estate transactions.
One commenter suggested that the inventory be made available upon request. EPA notes that the final rule does not specify how systems serving 50,000 or fewer people must make the inventory publicly accessible, and therefore a system may be able to meet the public accessibility requirement by providing it upon request or, as described in the preamble to the proposal, by making the inventory available for review at the water system's headquarters. To ensure public accessibility, in the final rule, EPA added a requirement for the CCR to include instructions on how to access the LSL inventory.
Requirement of Water Systems to Include a Location Identifier, but Not Specific Street Address, in the Publicly Accessible Inventory
Summary of Comments
EPA proposed that a locational identifier be provided for each LSL (defined at proposal to also include galvanized lines that is or ever was downstream of an LSL line or a service line of unknown material) in the publicly available inventory. The location identifier requirement is only applicable to the publicly available inventory, not the water system's internal inventory which would necessarily include a specific address for each service line in order for the system to comply with other requirements in the rule such as the requirements in § 141.85(e) for known or potential lead service lines. EPA sought comments on whether to require the publicly available inventory to include a specific address for each LSL.
EPA received comments expressing support and opposition to the inclusion of specific addresses in the publicly available inventory. One commenter in support of including specific addresses in the inventory stated that it would "help water users better assess the risks of tap water in homes and buildings that may not be their own but that they frequent, and to alert residents at these homes (who might be family members, friends, or neighbors) and/or school/childcare facility managers about a [lead] hazard they may be unaware of." One commenter supported making "specific address information with appropriate disclaimers regarding accuracy and completeness ... to support private transactions." One commenter thought that the specific addresses should be included so that the general public as well as potential property buyers know the locations of the LSLs." One commenter stated that that in order for individuals (property owners and tenants) to take actions based on the inventory information (e.g., actions to mitigate risk and meet due diligence responsibilities in selling or renting out the property), address specific information would need to be provided. One commenter questioned whether there would be any benefit to the users, customers, or homeowners in a rural state where the "landmarks will either be more difficult to assign or will be so broad that they will not be useful." Another commenter expressed similar concerns:
    A primary purpose of the publicly available inventory is to inform both current and potential homeowners and tenants about the risks associated with having a lead service line, and omitting specific addresses from this dataset would leave potential homeowners and tenants unable to make fully informed decisions about whether to reside in that property. Conversely, including the specific address data in the publicly available information would encourage homeowners and landlords to take action to address their privately owned lead service line, particularly before putting their home up for rent or sale. Over time, this will prod progress toward the larger objective of replacing lead service lines nationwide.
The same commenter also stated that "we do not believe that the sale or rental of a home  -  particularly to a new owner or tenant who may have small children  -  should be facilitated through the suppression of information that could affect the health of the new owner or tenant." This commenter recognized that there may be situations in which the disclosure of specific street addresses could violate state or local laws, such as the Colorado Open Records Act, and therefore, "the rule should give the state agency the option to waive the street address publication requirement and allow water systems to use location identifiers as an alternative."
Similarly, other commenters suggested that the rule require exact addresses in the publicly available inventories, unless expressly prohibited by state legislation that limits the release of personally identifiable information such as street addresses, and that even in those cases an inventory without specific addresses should be made publicly available. One commenter stated that they "do not believe there is a substantial, real public concern about this information being available so we urge the Agency to require or at least highly encourage and incentivize use of specific property information about the location of lead service lines by utilities and not just allow identification to a nearby intersection or landmark."
Another commenter expressed support for using the exact address in the inventories although the commenter also explained that in some rural areas there may not be an exact physical street addresses, in which case the system should coordinate with state to ensure that a comparable identifier is used such as legal description (section, township, range), coordinates, etc. One commenter pointed out that the exact address will be easier to track, especially if multiple sites are on the same block. The same commenter also noted, correctly, that the regulatory language in the proposal does not preclude using exact addresses, and is therefore acceptable.
One commenter expressed concern about an inventory submitted to the primacy agency without the exact addresses which would assist the state in determining accurate notifications and cross referencing sample site selection with inventories much easier, as well as making compliance and enforcement more efficient and effective. Another commenter expressed concern that "[i[f the public cannot see the materials at a specific address, then no residents can know even their own service line materials even if they exist in a government database." Likewise, a commenter stated that they "do not see how the location identifier approach is workable  -  it is more likely to result in confusion and frustration by users."
One commenter argued that "the fact that lead service lines and galvanized lines pose a known and signiﬁcant public health hazard makes it diﬃcult to justify a water system's failure to disclose their precise location when this location is known. Such intentional non-disclosure seems antithetical to  -  if not in direct violation of  -  the Safe Drinking Water Act (SDWA)."
A commenter stated that in their "work with communities that have posted maps of their LSL inventories with exact addresses, we have heard of little or no concerns from the community about the disclosure. In fact, the disclosure has empowered property owners to investigate and update the information. And the disclosure reveals no real confidential information about the resident's exposure to lead since people may be using filters or fully flushing the lines before using them."
A commenter pointed out that "through various real estate listing services, detailed information on most homes, such as number of bedrooms and bathrooms and age of the home and significant renovations, is already publicly available" making it "difficult to see how the composition of the service line would be considered sensitive information."
Several commenters supported the proposed regulatory text that requires only a location identifier, and not a specific address, to be included in the publicly available inventory. These commenters expressed concerns related to privacy and confidentiality. One commenter expressed that this approach "respects the privacy of the individual owner, but allows for transparency for customers to know if they have LSLs in the vicinity of their home."
Some commenters expressed concern that a requirement to publish the exact address in the inventory could be a violation of state or local privacy laws, and that a requirement to include the specific address in the publicly available inventory could lead to "the possible burden to water systems of becoming unnecessarily involved in potential private real estate transactions" and therefore the "water system should be provided flexibility to determine if publishing exact addresses is the best approach for their community." The commenter pointed out that while "[s]ome communities have successfully done this, but others believe that publishing this information may lead to concerns of consumer privacy if the property resident hasn't consented to the release of this information."
Another commenter expressed "concerns that a publicly available, address-specific listing could adversely impact property values of the listed homes, especially when the information regarding service line construction material may be unreliable. Any utility placing this type of information in the public domain lends a certain amount of validity and credibility to the information that may not be justified given the potential uncertainty of the data. Our utilities do not want to be placed in the center of a dispute if a listed service line material is incorrectly reported."
One commenter, in consideration of the "common objection" that this information will have adverse effects on home and property value noted that "the problem cuts both ways: we must consider the seller and the buyer, the presence of lead and absence of lead. In a neighborhood or an entire water system that has concerns about lead, buyers facing uncertainty about service line materials will want to know. Indeed[,] there is a cost to that uncertainty, whereby buyers would offer a lower asking price. And from that reference point, one way the seller can increase the value of their home would be to demonstrate proof that the service line is in fact not lead. As a result, the property value could increase if a home seller can verify they do not have lead. So instead of worrying about the reduction in property value from the revelation of lead; we must also consider the value of the verification that the home does not have lead."
Agency Response
EPA acknowledges the many benefits commenters described of a publicly available inventory that includes specific addresses associated with LSLs and galvanized lines that are or were ever downstream of an LSL. The requirement to include a location identifier does not preclude any system from including the exact address in its publicly available inventory. However, because of commenters' concerns about violating privacy laws by releasing specific addresses, EPA has determined to not require the public disclosure of specific addresses in this regulation. Whether the concerns regarding privacy laws are real or perceived, they would hamper implementation of the inventory requirement for those systems with such concerns. In contrast, water systems without such concerns could include the specific addresses in the inventory  -  and may be more likely to than not because it would be less burdensome for the system to create one inventory rather than a second inventory to meet the public access requirement of the rule that replaces the specific addresses with a less precise location identifier. As noted previously, the PWS will need to maintain a non-publicly available inventory that includes the exact address in order to meet other requirements of the rule. Moreover, there may be state or local laws that require the inclusion of the specific address in the inventory.
Therefore, on balance, EPA determined that the better course of action would be to rely on the built in incentives and desires of many water system commenters who supported disclosure of the specific addresses, and allow flexibility for those systems where privacy laws would impede their ability to comply with a requirement to provide specific addresses in the publicly available inventory. While EPA considered requiring the disclosure of specific addresses except where prohibited by state or local law, that approach would be difficult for water systems to implement. Where it is not clear whether and to what extent the privacy laws would apply to the inclusion of specific addresses in the publicly available inventory, a water system would need to resolve that issue prior to making the inventory publicly available. That could be especially challenging in those states where there is active litigation regarding privacy and open records laws.
Irrespective of whether the inventory includes addresses, persons served by an individual lead, galvanized requiring replacement, or lead status unknown service line will learn of their service line's material status through PE and notification requirements under § 141.85(e). This provision is designed to educate consumers about their service line material as well as health risks faced and steps they can take to protect themselves. In addition, Section 1417(a)(2) of the SDWA authorizes EPA to establish requirements for water systems to "identify and provide notice to persons that may be affected by lead contamination of their drinking water" where it results from either the lead content in construction materials of the distribution system and/or corrosivity of the water. This allows notice for all "persons that may be affected" by lead in drinking water, not just property owners.
Also see the response to comment Section 5 for public accessibility of the inventory regarding its format and availability online.
5.6 Format of Inventory
General Format of Inventory
Summary of Comments
One commenter requested that EPA require water systems to generate maps to represent their inventory because that format "is far more informative to most people" and "increases transparency and trust." One commenter stated that EPA should require PWSs to notify customers of the inventory and instructions with how to view it. Some commenters also raised concerns about other factors affecting accessibility (e.g., non-English language, colorblind and use of color schemes). One commenter said that a standard format for inventories created by EPA would "make the information more accessible, especially to service providers who want to aggregate the data for broader disclosure on real estate listing services." The commenter continued, noting that while some states have developed their own systems, some states may lack technical expertise and financial capacity to do so, and a national portal would be more efficient. They also noted that a publicly accessible database would help maintain knowledge on system materials and other "first-hand knowledge" that may otherwise be lost with personnel changes. Alternately, two commenters stated that EPA should direct the states to compile state-wide LSL inventory information into a publicly accessible database. Commenters cite similar benefits for both of these approaches, including the ability for the public to access a wider range of inventory information from one source, the potential to minimize overlapping efforts from water systems and states, and to reduce the burden on small water systems that may lack the technical capacity to develop their own electronic databases.
Commenters noted that guidance "related to expected content and format" or example templates could ensure that the inventory is done correctly on the first attempt and does not require additional effort after states obtain primacy for the LCRR. Several commenters requested that EPA develop guidance within time frames ranging from concurrent with final rule publication to within six months of publication. One commenter also requested that any developed guidance be frequently updated in partnership with states and stakeholder organizations.
Agency Response
In order to allow for maximum flexibility, EPA is not requiring a standard inventory format or template for the inventory. The rule does not prescribe how systems must display the information required to be included in the inventory specified in § 141.84(a): all service lines connected to the public distribution system regardless of ownership status, categorized as described in § 141.84(a)(4), and for the publicly available inventory, a location identifier for each LSL and each galvanized requiring replacement service line, as provided in § 141.84(a)(8)(i). Beyond those requirements, EPA determined to provide systems with maximum flexibility in how they format that information because ease of implementation of the inventory requirement is especially important for this requirement as it applies to systems with a wide variety of circumstances that will affect how the inventory information is complied, which may in turn affect formatting. For example, EPA expects that some water systems that have very few LSLs, unknowns, and galvanized requiring replacement service lines will create a simple inventory meeting the minimum requirements of the final rule. EPA expects other water systems may create more complex inventories using spreadsheets or maps, especially if they have large numbers of LSLs and multiple crews performing LSLR on a frequent basis that requires a more coordinated approach to data management of the inventory. Some water systems may even include additional data fields that allow the public to access more information. Furthermore, a standard format would impose additional burdens on the many water systems that have proactively created inventories before required by federal regulation. While EPA agrees with commenters that there are some benefits to standardizing inventory formats, they are outweighed by the benefits of allowing format flexibility.
EPA disagrees with some commenters suggestion that the rule require all inventories to be in a map format. While EPA believes maps can be effective at conveying information and encourages all efforts to make inventory maps, EPA does not believe a national rule should mandate the use of maps as they become more difficult to interpret where a water system has few LSLs over a large service area, and lower-tech maps might not be searchable as a list would be. In addition, maps require greater burden to create and update than other inventory formats, and for systems that will be using location identifiers which are not addresses in the publicly available version of their inventory, using a map could be problematic. Therefore, EPA is not requiring that all inventories be in a map format.
EPA has decided not to create an online database or portal to host LSL inventories, nor does the final rule require states to do so. As many water systems have already proactively created their own inventories, a requirement to conform to an EPA portal would be duplicative. Requiring states to each create their own data management system to host the inventories would be burdensome, expensive and again duplicative to water systems that have already created their own inventory databases and online sites for public access. Thus, the final rule retains the flexibility for systems to choose their own inventory format rather than use a standardized federal or state format.
Regarding requests for guidance, 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 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. EPA is aware that other organizations have published useful guidance on LSL inventory formats and encourages PWSs to seek out this information and incorporate best practices into their own inventory development. For discussion of comments on including addresses-level information in the inventory see the response to comment Section 5.
Making the Public Inventory Available Electronically
Summary of Comments
Most commenters gave broad support for the proposed requirement that PWSs serving greater than 100,000 persons must make the inventory available electronically. However, several commenters requested that EPA require more PWSs to post their inventory online, even if only by uploading a scanned image of a paper inventory. One commenter further stated that the size threshold of 100,000 would lead to a requirement that only 1 percent of all PWSs would need to make the inventory available electronically. Commenters provided a spectrum of recommendations regarding which PWSs should be required to post their inventory online, including all PWSs, all PWSs that already have a website, and all PWSs serving more than 500 people. One commenter noted that without an online inventory, inventory access is effectively limited by requiring customers to physically travel to the PWS's public office during business hours which may "have a disproportionate impact on low-income" communities. Several commenters requested that EPA develop a standardized online database or portal where water systems and states can directly submit inventory information. One commenter stated that an online portal would allow the CWS to "update and share LSL inventory data" thereby reducing public confusion. One commenter expressed concern that small systems will struggle to provide their inventories online due to technical and personnel limitations.
Agency Response
Initially, EPA proposed a requirement that all PWSs serving more than 100,000 people make their inventory available electronically. EPA's intent was that inventories be made available online, but based on comments, EPA now understands that the word "electronically" could be interpreted in multiple ways, some of which may not mean that the inventory is hosted on a website. For example, the inventory could be available electronically as a word document, pdf, or database that is made publicly accessible by sending it via email or a filesharing service, via a mailed electronic storage device, or allowing the public to access the inventory on a computer in the water system administrative office. For the final rule, EPA clarified the proposed regulatory text to be consistent with the intent to require that the inventory be made available electronically "online". Given that the requirement applies only to large systems that serve more than 50,000 people, a requirement to provide electronic transmission (e.g., email) upon request would not be practical and it would not have made sense to require that of only large systems since it would be more burdensome for them to respond to multiple individual requests than to make the inventory available electronically online. This clarification in the regulatory text will benefit water systems and the public. Publishing the inventory online also ensures consumers have immediate access to the most up-to-date information and do not have to return to the water system to view the most recent version. There are many free or low-cost services available, such as social media, web content hosting platforms, and cloud-based filesharing services that water systems can use to make their inventory available online. The format remains at the water system's discretion, so long as it meets the minimum content requirements of the final rule and is publicly available on the internet.
EPA agrees with commenters who suggest the proposed threshold to make inventories available electronically should be lower than systems serving greater than 100,000 people. More water systems hosting their inventory electronically or online leads to greater accessibility to the public. For the final rule, EPA is lowering the threshold to water systems that serve more than 50,000 people. EPA proposed systems serving greater than 100,000 persons to be consistent with the CCR rule (USEPA, 1998). However, the CCR was promulgated almost 20 years ago when access to free or low-cost social media, web hosting services, and filesharing platforms that water systems can use to host their inventories online were not available as they are today.
The final rule does not require all systems to post their inventory online due to the potential burden associated with digitizing and hosting the inventory on the internet. EPA selected 50,000 or more persons as the cutoff for this requirement because it would allow more customers nationwide to access the inventory online, and is feasible for these systems. All PWSs must make their LSL inventory publicly available; systems not required to post their inventory online may choose to do so in order to meet this requirement. All systems must include instructions in the CCR on how to access the inventory. Please see the response to comment Section 5 for further discussion on the requirement for water systems to make the inventory publicly available.
References
Batterman, S.A., S. McGinnis, A.E. DeDolph, and E.C. Richter. 2019. Evaluation of Changes in Lead Levels in Drinking Water Due to Replacement of Water Mains: A Comprehensive Study in Chicago, Illinois. Environ Sci Technol 53(15):8833-8844.
Camara, E., K.R. Montreuil, A.K Knowles, and G.A. Gagnon. 2013. Role of the water main in lead service line replacement: A utility case study. Jour. AWWA 105(8):E423-E431.
Coughlin, B.R. and A.T. Stone. 1995. Nonreversible Adsorption of Divalent Metal Ions (MnII, CoII, NiII, CuII, and PbII) onto Goethite: Effects of Acidification, FeII Addition, and Picolinic Acid Addition. Environ Sci Technol 29(9), 2445-55.
Del Toral, M., A. Porter, and M.R. Schock. 2013. Detection and Evaluation of Elevated Lead Release from Service Lines: A Field Study. Environmental Science and Technology 47(16):9300-9307.
Deshommes, E., L. Laroche, S. Nour, C. Cartier, and M. Prévost. 2010. Source and occurrence of particulate lead in tap water. Water Res. 44(12), 3734-3744.
Dolan, M. 2016. Study: Flint lead contamination goes beyond service pipes. Detroit Free Press; 2016 Sep 8. Available at: http://www.freep.com/story/news/local/michigan/flint-water-crisis/2016/09/08/study- flint-lead-contamination-goes-beyond-service-pipes/89994636/ Accessed November 23, 2016.
Dyer, J. A., P. Trivedi, N.C. Scrivner, and D.L. Sparks. 2003a. Lead Sorption onto Ferrihydrite. 2. Surface Complexation Modeling. Environ Sci Technol 37(5), 915-922.
Dyer, J. A.; P. Trivedi, S.J. Sanders, N.C. Scrivner, and D.L. Sparks. 2003b. Lead Sorption onto Ferrihydrite. 3. Multistage Contacting. Environ Sci Technol 37(5), 923-930.
Dzombak, D.A. and F.M.M. Morel. 1990. Surface Complexation Modeling: Hydrous Ferric Oxide; Wiley: New York.
Goovaerts, P. 2017. Monitoring the aftermath of Flint drinking water contamination crisis: Another case of sampling bias? Sci Total Environ, 590-591, 139-153.
Gunneriusson, L., L. Lövgren, and S. Sjöberg. 1994. Complexation of Pb(II) at the Goethite (a-FeOOH)/Water Interface: The Influence of Chloride. Geochim. Cosmochim. Acta 58(22), 4973-4983.
HDR. 2009. An Analysis of the Correlation between Lead Released from Galvanized Iron Piping and the Contents of Lead in Drinking Water. https://archive.epa.gov/region03/dclead/web/pdf/galvanizedprojectreport.pdf.
Hua, X., D. Dong, L. Liu, M. Gao, and D. Liang. 2012. Comparison of trace metal adsorption onto different solid materials and their chemical components in a natural aquatic environment. Applied Geochemistry 27(5), 1005-1012.
Komárek, M., J. Antelo, M. Králová, V. Veselská, S. Číhalová, V. Chrastný, V. Ettler, J. Filip, Q. Yu, J.B. Fein, and C.M. Koretsky. 2018. Revisiting models of Cd, Cu, Pb and Zn adsorption onto Fe(III) oxides. Chemical Geology 493:189-198.
Lytle, M.R. Schock, K. Wait, K. Cahalan, V. Bosscher, A. Porter, and M. Del Toral. 2019. Sequential Drinking Water Sampling as a Tool for Evaluating Lead in Flint, Michigan. Water Research 157:40-54.
Maynard, J.B. and L. Wasserstrom. 2017. Premise plumbing scales that can release lead after a lead service line replacement: Galvanized pipes from three cities, Proc. AWWA Annual Conference and Exposition, Philadelphia, PA, June 11-14, 2017.
McFadden, M., R. Giani, P. Kwan, and S. Reiber. 2011. Contributions to Drinking Water Lead from Galvanized Iron Corrosion Scales. Journal American Water Works Association 103(4):pp 76-89. DOI: 10.1002/j.1551-8833.2011.tb11437.x.
Peng, C. Y., J.F. Ferguson, and G.V. Korshin. 2013. Effects of chloride, sulfate and natural organic matter (NOM) on the accumulation and release of trace-level inorganic contaminants from corroding iron. Water Res 47(14), 5257-69.
Potter, H. A. B. and R.N. Yong. 1999. Influence of iron/aluminum ratio on the retention of lead and copper by amorphous iron-aluminum oxides. Applied Clay Science 14(1-3), 1-26.
Rahimi, S.; R.M. Moattari, L. Rajabi, A.A. Derakhshan, and M. Keyhani. 2015. Iron oxide/hydroxide (α,γ-FeOOH) nanoparticles as high potential adsorbents for lead removal from polluted aquatic media. Journal of Industrial and Engineering Chemistry 23:33-43.
Schock, M.R. 2005. Distribution Systems as Reservoirs and Reactors for Inorganic Contaminants; In Distribution System Water Quality Challenges in the 21[st] Century: A Strategic Guide; American Water Works Association: Denver, CO; pp 105-140.
Stumm, W. and J.J. Morgan. 1996. Aquatic Chemistry: Chemical Equilibria and Rates in Natural Waters; Third ed.; Wiley: New York; p 1022.
Tiberg, C., C. Sjöstedt, I. Persson, and J.P. Gustafsson. 2013. Phosphate effects on copper(II) and lead(II) sorption to ferrihydrite. Geochim. Cosmochim. Acta 120(0):140-157.
Trivedi, P., J.A. Dyer, and D.L. Sparks. 2003.Lead Sorption onto Ferrihydrite. 1. A Macroscopic and Spectroscopic Assessment. ES&T 37(5):908-914.
Trussell, R.R. and I. Wagner. Corrosion of Galvanized Pipe. 1996. Internal Corrosion of Water Distribution Systems. AWWA Research Foundation/TZW: Denver, CO, pp 71-129.
United States Environmental Protection Agency (USEPA). 1991. National Primary Drinking Water Regulations: Control of Lead and Copper; Final Rule. Code of Federal Register, 40 CFR parts 141 and 142. Vol. 56, No. 110. June 7, 1991.
USEPA. 1998. National Primary Drinking Water Regulations: Consumer Confidence Report; Final Rule. Code of Federal Register, 40 CFR parts 141 and 142. Vol. 63, No. 160. August 19, 1998.
USEPA. 2016. Memorandum from Peter C. Grevatt, Director, Office of Ground Water and Drinking Water, to Water Division Directors, Regions I-X. Clarification of Recommended Tap Sampling Procedures for Purposes of the Lead and Copper Rule. February 29, 2016. https://www.epa.gov/dwreginfo/memo-clarifying-recommended-tap-sampling-procedures-lead-and-copper-rule.
USEPA. 2019d. National Primary Drinking Water Regulations: Proposed Lead and Copper Rule Revisions. Federal Register 84(219):61684. November 13, 2019. Washington, D.C.: Government Printing Office.
Xu, Y., L. Axe, N. Yee, and J.A. Dyer. 2006a. Bidentate Complexation Modeling of Heavy Metal Adsorption and Competition on Goethite. ES&T 40(7), 2213-2218.
Xu, Y., T. Boonfueng, L. Axe, S. Maeng, and T. Tyson. 2006b. Surface complexation of Pb(II) on amorphous iron oxide and manganese oxide: Spectroscopic and time studies. Jour. Colloid & Interface Sci. 299(1): 28-40.
6 Lead Service Line Replacement (LSLR)
In the proposed rule, EPA requested comments on LSLR, an LSLR plan, the removal of lead-bearing connectors, and protocol for mitigating risk after an LSLR or lead service line (LSL) disturbance under § 141.84, specifically:
       EPA requested comment on the proposed LSLR plan. EPA requested comment on how water systems conducting LSLR can identify and prioritize replacements at the locations that have the highest lead levels and/or the most susceptible populations. EPA requested comment on whether to require water systems to describe in their LSLR plan, how LSLR will be prioritized or to require a prioritization plan at the time LSLR is compelled.
       EPA requested comment on whether small water systems should be exempt from the requirement to prepare an LSLR plan concurrent with their LSL inventory, given that they may opt not to select LSLR as a compliance option if the action level is exceeded.
       EPA requested comment on including galvanized pipe in LSL inventories and in goal-based and mandatory LSLR rates under the proposed Lead and Copper Rule revisions (LCRR).
       EPA requested comment on proposed revisions to the LSLR program requirements. EPA requested comment on the goal-based LSL requirement for systems that exceed the trigger level, asking if the proposed goal-based LSLR requirement provided adequate incentives for water systems to achieve meaningful reductions in their LSL inventory. EPA also asked if the proposed goal based-program enabled systems to effectively incorporate LSLR into their infrastructure replacement programs. EPA requested comment on what criteria must be met for the EPA to establish a federal goal LSLR rate for water system under § 142.19. EPA also requested comment upon the feasibility of replacing a minimum of three percent of the LSLs a year for the systems that exceed the action level. EPA requested comment on whether the number of lines required to be replaced should be three percent of the number of LSLs plus the number of unknown service lines at the time the systems exceeds the action level.
       EPA requested comment on the feasibility for a water system to replace its portion of an LSL within 45 days of being notified that a customer has replaced the customer portion of an LSL, and if that timeframe should be longer or shorter. EPA also requested comment on whether such replacement by a water system should be mandatory or voluntary.
       EPA requested comment on the appropriateness of requiring two years of tap sample monitoring before water systems may stop LSLR to ensure enough time has passed to evaluate if corrosion control treatment (CCT) measures can consistently reduce lead to meet the action level.
       EPA requested comment on the appropriateness of pitcher filters for risk mitigation after LSLR or LSL disturbances given that the customer would be responsible for operation and maintenance.
EPA received many comments representing a wide range of perspectives about the proposed LSLR requirements. Several commenters generally supported full LSLR as a way to reduce lead exposure from drinking water. Commenters noted the significant costs associated with LSLR as well as the challenges that may arise from potential dual ownership of the LSL between the customer and the water system. Some commenters expressed that the final rule should require more LSLR at more water systems, while other comments believed that the requirements in the proposed rule were too burdensome. Some commenters expressed general support for the proposed LSLR approach, while recommending changes for the final rule regarding the LSLR plan, the goal and mandatory LSLR programs, removal of lead connectors, and risk mitigation measures after LSLR and LSL disturbances.
6.1 General LSLR comments
Summary of Comments
EPA received a range of comments regarding the proposed rule's LSLR requirements. Many commenters support LSLR in general, acknowledging that removal of legacy lead from drinking water infrastructure can reduce lead exposure. Commenters highlighted the significant time, resources, and coordination between the water system and customers that facilitate full LSLR. Some commenters stated that there is "inadequate funding at the federal level" for LSLR while others expressed concern that low-income or disadvantaged customers will not be able to pay for LSLR and cited environmental justice considerations. While a few commenters stated that water systems should pay for full LSLR, others agreed with the provisions in §141.84 reflecting that water systems are not required under the National Primary Drinking Water Regulations (NPDWRs) to bear the cost of replacement of customer-owned LSLs, goosenecks, pigtails, or connectors. Commenters offered support for proposed LSLR requirements to emphasize full LSLR, such as prohibiting "test-outs" and partial replacements from counting towards the annual mandatory and goal-based replacement rates in §141.84(f) and (g), respectively. Some commenters supported the proposed rule allowing partial LSLR to occur with risk mitigation measures to protect customers, while other commenters believed partial LSLR should be banned under all circumstances or allowed under a narrow set of circumstances.
Some commenters expressed dissatisfaction with the proposed LSLR program requirements, saying the proposed revisions to the LSLR program did not go far enough in reducing the risk of lead exposure and that "more emphasis should be placed on removing lead service lines."
Conversely, two commenters indicated that LSLR should not be the main approach to reduce lead in drinking water, but one of several strategies public water systems (PWSs) could use including CCT, increased use of filters, and increased lead monitoring. A few commenters asked why LSLR is necessary if "CCT is working". One commenter indicated that the small water systems that exceed the lead action level should be allowed to conduct test-outs in lieu of LSLR due to low sample size and variability of lead levels. Two commenters expressed concern that the focus on LSLR does not address lead sources in customer premise plumbing.
Two commenters recommended that LSLR take place on "a calendar year annual basis, with encouragement to start early coming from the states," rather than the first day following the end of the monitoring period when a lead action level exceedance (ALE) occurred, in order to give the state more time to determine the 90[th] percentile lead level. Another commenter said a calendar year approach would be easier to implement by requiring fewer compliance dates to be tracked.
Several commenters stated that the replacement of customer-owned LSLs and lead-containing plumbing and fixtures would be better addressed by involving other state and local institutions, such as health departments and building departments. They noted that the proposed rule does not have protections for renters and home buyers and recommended adding a requirement for real estate regulatory bodies to require lead testing, inspection of service line material, and removal of LSLs during property sales, which would be more "economical and administratively feasible" than the proposed requirements. In a similar vein, several commenters suggested that LSL disclosure be required for all property sales and rental agreements.
One commenter stated that full LSLR will "require legislation and funding from local, state and federal bodies" and that states and EPA should evaluate existing state statutes and regulations to facilitate identification and replacement of LSLs (e.g., disclosure during building sale and rentals, protection of water systems from lawsuits for damage to private property, use of rate payer funds on private property). They suggested that EPA make this review a part of §142.16 and §142.19. A few commenters also requested that EPA give primacy agencies discretion to grant systems flexibilities for existing LSLR programs where there are inconsistencies with the proposed rule (e.g., replacement schedules, use of ratepayer funds).
One commenter suggested point-of-use (POU) devices be required for any home that "exceeds the AL [action level]" until LSLs or other lead-bearing plumbing can be replaced. One commenter suggested that EPA should provide vouchers to residents for pitcher filters and cartridges if they self-identify that their home is served by an LSL as an incentive to verify customer-side LSLs and to mitigate the potential increase in lead levels resulting from an LSLR.
Several commenters requested that EPA provide further rule guidance and clarification of specific aspects of the proposed LSLR revisions. One commenter, citing the complexity of the LSL definition, recommended that EPA include "a summary table or flow chart in the rule or preamble that better explains the components that would trigger certain actions required for a water system to complete under different scenarios." Two commenters indicated a need for national criteria for conducting LSLR in order to prevent wide variability across the country; one commenter recommended that EPA codify the ANSI/AWWA LSLR standard C810-17 (ANSI, 2017) into the LSLR requirements. One commenter asked EPA to deem trenchless pipe lining technologies as equivalent to LSLR. They stated that trenchless pipe lining technology would be more cost-effective, require less property restoration, would "eliminate lead contamination and provide benefits to customers," and allow water systems more time to secure funding for future full replacement.
One commenter requested that EPA adopt the provisions of the State of California's LSL program (State of California, 2016), which includes but is not limited to a target 10-year LSLR schedule that must be planned and drafted by each water system and submitted to the state, upon which the state will have 30 days to review the plans, recommend changes, and revise timetables, if needed.
Other commenters suggested that EPA provide financial resources to aid LSLR. A commenter suggested that EPA work with Congress and the Internal Revenue Service to offer tax incentives to property owners who remove LSLs, working with the state and the water industry to ensure that assistance programs for low-income families are available where needed, and finding sources of low-interest or principal forgiveness funding for LSLR. Finally, one commenter requested federal guidance on how to address "management, disposal, or recycling of removed LSLs [and] their respective economic and environmental costs" noting inconsistencies among state policies.
Agency Response
The final LCRR will require more water systems to conduct LSLR to reduce drinking water exposure to lead. The LCRR will prioritize LSLRs in the communities with the highest levels of lead by requiring a goal-based LSLR program for systems that exceed the lead trigger level of 10 ug/L and mandatory LSLR programs for systems that exceed the lead action level of 15 ug/L. EPA disagrees with commenters who state that the proposed LCRR unnecessarily compelled LSLR when "CCT is working." The final LCRR requires LSLR only when CCT is not able to reduce 90[th] percentile lead levels at or below the trigger level or action level and when customers have replaced their portion of an LSL, which can cause lead release into drinking water. In addition, when present, LSLs typically contribute approximately 50-75 percent of lead into drinking water (Sandvig et al., 2008). EPA is requiring that only full LSLR count towards LSLR programs in the LCRR, no longer allowing partial LSLR to count. The Science Advisory Board concluded that partial LSLRs have not been shown to reliably reduce drinking water lead levels in the short-term and may cause harm (USEPA, 2011). EPA does not agree with the commenters who argue that the LCRR should maintain the ability for water systems of any size to test out an LSL rather than physically replace the LSL. The levels of lead in drinking water vary over time as water quality conditions change; therefore, the final rule does not allow systems to consider a line replaced based upon testing results.
EPA disagrees with the commenter who suggested that given the increasing number of LSLR programs around the country, EPA should grant flexibilities to water systems with existing programs. EPA commends and encourages water systems to replace LSLs proactively, and the final rule establishes the minimum national LSLR requirements for water systems. Water systems that are proactively conducting LSLR programs may integrate their existing programs into their compliance with the LCRR if these systems exceed the lead trigger level or action level, or if the consumers of these systems replace their private portion of the LSL.
EPA is not incorporating commenter suggestions to begin the LSLR program with the calendar year, versus the day after the end of the monitoring period in which the system's 90[th] percentile exceeds the trigger or action level. EPA emphasizes the importance of beginning LSLR promptly after exceeding these lead thresholds given the public health benefits of timely action. Beginning the LSLR program with the calendar year may cause significant delays, in some cases up to one year, where a water system has elevated lead levels but would not be compelled into LSLR.
EPA disagrees with the commenter who suggested the LCRR requires systems to provide a voucher to customers that can verify they are served by an LSL to speed inventory development. EPA does not believe that this approach would be feasible for all water systems but the final LCRR does not preclude water systems from providing incentives, such as a filter or rate rebate, to encourage customer participation in inventory development.
EPA is not prescribing how water systems should pay for the costs of LSLR. The final rule includes a provision in the LSLR plan for water systems to identify strategies to prioritize LSLR at locations serving sensitive populations, such as schools and child care facilities, and disadvantaged households. EPA highlights several EPA and other funding opportunities to support LSLR, such as EPA's Drinking Water State Revolving Fund (DWSRF), Water Infrastructure Finance and Innovation Act (WIFIA) Program, Water Infrastructure Improvements for the Nation (WIIN) Act of 2016 grant programs, and Community Development Block Grants from Housing and Urban Development. There may be additional federal, state and local funding sources, as well as the use of rate revenue, that can further reduce the financial burden of full LSLR for the water system and customers. Regarding tax incentives for LSLR, this and other new forms of new financial assistance are beyond the scope of the LCRR and EPA's authority under the Safe Drinking Water Act (SDWA) to promulgate new and revised NPDWRs. Also please see response to comment 6.2.
Regarding commenters suggesting the LCRR should require lead testing/disclosure related to property sales, EPA does not have the authority under the SDWA to impose requirements on entities other than water systems in an NPDWR, and thus cannot establish requirements to facilitate or encourage LSLR that would require compliance by these other entities such as those involved in regulating rental, sale, or regulation of real property. EPA does not discourage the creation of laws or regulations involving lead plumbing upon the transfer of property; however, the LCRR establishes treatment technique requirements for PWSs under the SDWA. It is not feasible for PWSs to establish such requirements. EPA notes that some final rule requirements, such as the creation of an inventory, can indirectly create an incentive for LSLR either prior to or during real estate transactions. Please see the response to comment Section 5 for further discussion on LSL inventory comments.
EPA is not including pipe lining or coating technologies as a compliance path to LSLR under § 141.84. A Water Research Foundation study evaluated three pipe lining and coating technologies (WRF, 2017); however, these technologies have not been demonstrated to reduce health risks to the extent feasible. EPA determined not to incorporate these technologies for use in § 141.84 because the uncertainty of the technology's performance over time would require additional monitoring to ensure lead levels at the tap remain low, and EPA is not aware of any scientific evidence concluding that the performance or integrity of a lining or coating can be evaluated with tap samples. Additionally, the costs of pipe lining or coating, combined with the added costs of a site-specific evaluation to assess if these technologies are appropriate for a given LSL, regular monitoring over the duration of their use, and the eventual need for re-lining/re-coating or replacement of the LSL after the lining/coating's failure date may reduce the purported cost savings associated with these technologies relative to full LSLR, especially when compared to less expensive LSLR methods such as trenchless replacement.
In response to the commenter suggestion that the rule requirements mirror those required in the State of California, EPA does not agree. The Agency determined that the provisions in the final rule are most appropriate for a national rule, based on the EPA analyses as well as comments on the proposed rule. EPA notes that states may pass their own LCR requirements, so long as the rule is at least as stringent as the federal rule.
EPA disagrees that the final rule should specifically mandate POU devices be required for any home that "exceeds the AL" until LSLs or other lead-bearing plumbing can be replaced. EPA notes that find-and-fix requirements take effect when an individual residence tests above 15 ug/L. Depending on the source of lead contamination, the water system will provide education to the customer and may suggest a range of remedies, including flushing, use of filters, LSLR, or replacement of lead fixtures. Also, the final rule requires that where a water system conducts certain activities that disturb the LSL and are likely to cause increased lead levels, it is required to provide the customer with a pitcher filter. For more information, see response to comment Section 13.
Regarding requests for guidance, EPA understands that implementation guidance 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. In response to the request for flow charts or tables in the final rule, EPA intends on utilizing rule guidance and training to support final rule implementation.
Commenters offered additional suggestions for the final rule's LSLR provisions (e.g., LSLR plan, mandatory and goal-based LSLR replacement rates, customer-initiated LSLR, requirements after an LSL disturbance, private property considerations, concerns about partial replacements, customer refusals or non-response). For EPA responses to these comments, please see the relevant comment responses below. For discussion of small system flexibilities for LSLR see the comment response Section 7. In response to comments requesting editorial changes and clarification, EPA has revised portions of §141.84 as appropriate.
6.2 LSLR Plan
General Comments on LSLR Plans
Summary of Comments
Several commenters expressed general support for the requirement that all water systems with LSLs in their distribution system must create an LSLR plan, and some expressed support for the proposed contents. These commenters cited the benefits of a strategy to provide information and a pitcher filter before LSLR, as well as reinforcement of the idea that LSLR is the best long-term solution for reducing the risk of elevated lead in drinking water. One commenter supported the proposed requirement that the LSLR plan be developed by the rule compliance date of three years after promulgation, "to ensure that the plan is complete in the event they [the PWS] trigger LSLR at the effective date of the rule." One commenter recommended that the LSLR plan include a description of how service line material compositions are identified as well as justification for why the recommended goal LSLR rate is appropriate given the system-specific factors, such as financial or legal factors. Some commenters expressed concern that years may pass between when the LSLR plan is developed and approved by the state and when it is actually used, depending on if and when the water system exceeds the lead trigger or action level, such that the LSLR plan out of date by the time it is used. One commenter incorrectly interpreted the proposed rule as requiring development of the LSLR plan only after a system's 90[th] percentile lead level exceeds the lead trigger level of 10 ug/L.
Other commenters had concerns that an LSLR plan would be "put on a shelf" after it is created, rather than be used to "advanc[e] lead service line replacement prior to exceeding the trigger or action level..." One commenter expressed a related concern that the proposed rule does not provide enough incentive for proactive LSLR and instead reduces the incentive for proactive LSLR by taking away LSLR resources to comply with other rule provisions.
One commenter said that systems without LSLs should not be required to create an LSLR plan, and asked for clarification if systems with unknowns must create an LSLR plan. Another commenter asked for clarification about how systems could create an LSLR plan where the entire service line is customer-owned. Another commenter said that the LSLR plan could become an "identification plan" if the inventory has several lead status unknown service lines.
Several commenters requested that EPA provide more general guidance on what level of detail the LSLR plan should contain and how long it should be.
Another commenter pointed out that the state will have the opportunity to review the plan before LSLR begins, minimizing potential implementation issues and reducing state burden with the consistency of regulatory requirements across PWSs regardless of size.
Agency Response
The final rule retains the proposed requirement for all water systems with LSLs or lead status unknown service lines to create an LSLR plan. EPA determined that LSLR plans are critical because they require water systems to consider its logistic, cost, communication and coordination needs before the system is required to implement LSLRs due to trigger level exceedance (TLE), ALE or a customer-initiated LSLR. This will allow water systems to quickly implement goal, mandatory, or customer-initiated LSLR and the associated required education and notification in the LCRR. As some commenters were unclear which water systems are subject to the LSLR plan requirement, EPA added regulatory text more clearly specifying that all water system with LSLs, galvanized requiring replacement, or lead status unknown service lines in their inventory must create a plan, regardless of their 90[th] percentile lead level. The plan will ensure that all applicable systems have a strategy to investigate potential LSLs and to replace known lead or galvanized requiring replacement service lines. EPA agrees that systems without any known or potential LSLs or galvanized requiring replacement service lines should not be required to create an LSLR plan as those systems would never need to implement such a plan. Further, community water systems (CWSs) that serve 3,300 or fewer people and all non-transient non-community water systems (NTNCWSs) are not required to recommend a goal LSLR rate in their plan because they are not required to conduct goal-based LSLR under the final LCRR.
EPA finds that an LSLR plan is vital to a well-operating LSLR program. In the previous rule, water systems that begin mandatory LSLR can face challenges meeting the annual LSLR rate because they must determine the technical, logistical, and financial details of LSLR while simultaneously conducting enough replacements to meet their LSLR rate. By requiring the plan to be completed by the rule compliance date, EPA is ensuring that water systems will be ready to implement an LSLR program immediately should they exceed the trigger or action level. This was supported by some commenters of the proposal. In the final rule, water systems at any 90[th] percentile lead level must also replace LSLs should customers initiate the LSLR. The water system must make a good faith effort to coordinate simultaneous replacement of its portion of the service line, and if that is not possible, the water system must replace its portion of the LSL as soon as practicable but no later than 45 days. If they system fails to meet that deadline, it must notify the state within 30 days and complete the replacement no later than 180 days of the original customer replacement. Thus, one important goal of the LSLR plan is to facilitate system compliance with the good faith effort requirement to coordinate simultaneous replacement. If is not possible, the LSLR plan will ensure that water systems at or below the lead trigger level, including small systems defined in the final LCRR as systems serving 10,000 people or fewer, can comply with the other applicable time frames for replacement of the system's portion of the LSLR when customers initiate LSLR.
To address comments regarding the appropriate length of the LSLR plan, EPA added the following text to §141.84(b): "The lead service line replacement plan must be sufficiently detailed to ensure a system is able to comply with the lead service line replacement requirements in accordance with this section." Water systems may make the LSLR plan as short or long, or as general or detailed, as they need, so long as the minimum content requirements are included and the plan contains sufficient detail to ensure implementation of the plan.
Some commenters expressed concern that the LSLR plan would be less useful to water systems if it were to simply "sit on a shelf" unused, especially given that water system circumstances may change from the time the LSLR plan is created to the time where it needs to be used. EPA notes that the final rule has LSLR requirements for water systems regardless of 90[th] percentile lead level, such as a strategy for service line materials investigation or procedures which apply to customer-required LSLR, making it likely that the LSLR plan will not sit on a shelf but rather be used immediately and with regularity. EPA acknowledges that some LSLR plan components may change over time due to changing circumstances. EPA encourages water systems to update their LSLR plan as necessary. EPA notes that while implementation of the contents of the LSLR plan is not enforceable (except the extent the plan includes the regulatory requirements), water systems stand to benefit from improved LSLR efficiency and ability to achieve full compliance with the regulatory requirements for LSLR by self-implementing the procedures set in the LSLR plan.
EPA disagrees that the proposed rule requirements reduced the incentive for proactive LSLR by requiring resources to be redirected from LSLR to comply with other rule provisions. EPA notes that creating an LSLR plan can facilitate LSLR because the water system will have planned for the logistical, financial, and technical operating procedures for LSLR, which in effect reduces the burden of conducting proactive LSLR.
The LSLR plan requirements still apply where systems don't own any part of the service line because the LSLR requirements of the LCRR also apply to those systems. In response to the commenter requesting clarification regarding this scenario, EPA highlights that creating an LSLR plan may be even more important for these systems, given the potential need for increased planning and coordination with the owners of the LSLs. For example, the plan's funding strategy to assist customers with paying for LSLR may require more planning and investigation of funding resources. Water systems could investigate the use of rate revenue, as well as grants or loans, to help customers pay for LSLR. Additionally, the plan would still outline procedures for conducting LSLR, as ownership of the service line by the customer does not relieve the system from the LSLR requirements that apply in the event of an ALE until the system has no remaining lead status unknown service lines in its inventory and the system obtains refusals to conduct full LSLR or non-responses from every remaining customer in its distribution system served by either a full or partial LSL, or a galvanized requiring replacement service line (see § 141.84(g)(7) of the final rule). Further, CWSs serving over 10,000 people must include a goal LSLR rate in the plan because LSLR is required in the event of a TLE, which also applies regardless of service line ownership. This is not a comprehensive list of requirements nor guidance to these water systems where the service line is owned solely by the customer but is intended to illustrate the ways in which the LSLR plan requirements are still applicable to systems with this ownership scenario.
Regarding requests for guidance for creating the LSLR plan, 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 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.
One commenter was concerned that PWSs "will need to develop [LSL] removal plans before states have primacy and will be in a position that they will be willing to discuss plans." EPA notes that LSLR plans themselves are submitted to the state but are not subject to state approval, only the goal LSLR rate within the plan.
LSLR Plans for Small Water Systems
Summary of Comments
Several commenters agreed with the proposal that small water systems should not be exempt from creating an LSLR plan. Commenters cited the benefits of an LSLR plan, such as allowing a small system to prepare to begin LSLR promptly after a lead TLE or ALE, which will facilitate the execution of an LSLR program. Commenters also noted that having an LSLR plan in place may set up small systems to execute a voluntary LSLR program even when not exceeding the lead trigger or action levels.
Conversely, some commenters recommended that small water systems be exempt from the requirement to develop an LSLR plan because they may choose a compliance option other than LSLR if they exceed the lead action level. Another commenter said that small systems with reasonable knowledge of no LSLs based on year of construction, with historical lead levels below 5 ug/L, should not have to prepare an LSLR plan. A few commenters thought that small water systems should have extended time for completing the plan, submitting it to the state past the final rule compliance date.
Agency Response
Some commenters stated that small water systems should not have to create an LSLR plan because it is too burdensome and potentially unnecessary given they may not pick LSLR as their compliance path under small system flexibility. EPA agrees with commenters that said small systems should not be exempt from creating the LSLR plan as it will facilitate LSLR should they elect LSLR as a compliance option. Additionally, having an LSLR plan in place should help inform the system's evaluation of the small system compliance options. EPA also notes that even if a small water system chooses POU or CCT under the small system flexibility provision (see response to comment Section 7), it is still required to conduct LSLR when a customer initiates replacement of the portion that they own. It is essential that small water systems complete their LSLR plan by the rule compliance date, given they might be conducting customer-initiated LSLR in the first year of rule implementation. An LSLR plan also sets up small water systems for executing proactive LSLR, if they choose to do so. Uniform LSLR plan requirements minimize burden on states by avoiding the need to track different requirements for systems of various sizes, especially if a water system gains or loses customers and changes size classification. EPA clarified in the rule text that although all water systems with known or possible LSLs must develop an LSLR plan, only CWSs that serve over 10,000 persons must recommend a goal LSLR rate with the state, as this rule provision does not apply to small systems. All other LSLR plan requirements apply to small water systems.
The final rule includes a provision that water systems of any size, including small systems, need not create an LSLR plan if they have no LSLs, galvanized requiring replacement, or lead status unknown service lines in their inventory. EPA disagrees that historical lead levels should determine whether a system should create an LSLR plan. Small water systems must comply with other rule provisions, such as having a strategy for investigating lead status unknowns, as well as completing customer-initiated LSLR, which apply regardless of 90[th] percentile lead levels. As mentioned above, an LSLR plan can help small systems evaluate their compliance options should their lead levels increase.
LSLR Prioritization in the LSLR plan
Summary of Comments
Several commenters stated that the LSLR plan should include LSLR prioritization criteria. Commenters believe that a prioritized approach to LSLR will target exposure reduction most effectively and allow faster response because LSLR priorities would have already been identified during earlier planning. Two commenters disagreed with this notion, stating that PWSs should not be required to describe in their plan how LSLR will be prioritized because it may require extensive analysis and may be subject to change over time.
Many commenters provided suggestions on how to prioritize LSLR, including targeting areas where large numbers of LSLs are present in the inventory and where lead tap and water quality parameter sampling data indicate high lead levels; conducting LSLR in areas where construction work is already scheduled and in coordination with emergency repairs; targeting areas that serve susceptible populations, such as daycares, schools, and medical facilities; targeting areas with older infrastructure; and using socioeconomic data to target areas where there are potential environmental justice communities. Another commenter suggested collaborating with stakeholder groups to develop prioritization criteria.
Several commenters recommended that EPA create a tool, develop a set of ranking criteria, or simply provide general guidance for prioritizing LSLR. Some of these commenters expressed concern that, without EPA guidance, the burden of reviewing water system criteria in LSLR plans would fall on the states. Several other commenters stated that a simple narrative providing general LSLR priorities would be sufficient for purposes of the LSLR plan.
Another commenter requested that EPA provide funding for LSLR and stated "...there should be explicit language in the revisions that require water systems to prioritize equity in their approach to LSLR" to avoid disproportionately impacting minority and low-income communities.
Agency Response
EPA agrees with commenters who stated that an LSLR prioritization strategy should be included in the LSLR plan and has included the requirement into the final rule. The water system can prioritize LSLR based on factors of its choosing, such as cost efficiency (i.e., prioritizing LSLR where main replacement is occurring to make LSLR more affordable for the system and customers), as long as one of the factors includes targeting replacements for disadvantaged consumers and populations most sensitive to lead. The water system may, for example, begin its LSLR program by first replacing LSLs at any schools or childcare centers served by an LSL, as well as residences served by children or other vulnerable populations. This new requirement benefits public health by targeting LSLR where, for example, the people consuming the water are especially impacted by the health effects of lead in drinking water. It also benefits the water system by facilitating prompt implementation of their LSLR program, as they will have planned where they will begin their replacement efforts should they exceed the trigger or action levels. In addition to using the prioritization strategy when conducting LSLR after a lead TLE or ALE, the prioritization strategy may also be used in proactive LSLR should the water system choose to conduct proactive LSLR. The LCRR does not require water systems to collaborate with stakeholder groups to develop prioritization criteria, however, EPA agrees with commenters who stated that these groups may provide important input to how LSLRs should be prioritized and encourages water systems to involve communities in the development of these LSLR prioritization plans.
Some commenters called for EPA to designate LSLR priorities or create a tool to reduce state burden to review and approve individual water system priorities in their LSLR plans. EPA disagrees, noting that LSLR programs and priorities should be designed to address each individual community's specific needs within the limits of the rule, which requires one of the factors in the prioritization strategy to be "targeting of lead service line replacement for disadvantaged consumers and populations most sensitive to the effects of lead." For example, one community may serve a large number of schools and childcare facilities in its service area and choose to prioritize those locations for LSLR to reduce lead exposure in children's drinking water. Other communities may have recently conducted partial LSLR and wish to begin their LSLR completing those partial replacements. Other communities may be recipients of local, state, or federal grants or loans for LSLR that require specific criteria be met to use the funds that they would like to adopt into their LSLR plan prioritization strategy. EPA notes that there may be several other specific circumstances individual to a water system that could not be captured in a national regulation. EPA is therefore maintaining that aside from the minimum criteria specified in the final rule, water systems set their own LSLR priorities in their LSLR plan.
In response to public comments, EPA added a requirement for the LSLR plan requiring water systems to consider a strategy for funding LSLR where the customer wishes to replace the customer-owned LSL but is unable to afford the work. Nothing in this provision or anything in the final rule obligates the water system to pay for replacement of a customer-owned LSL. Water systems have flexibility in how they approaches their strategy, however EPA recommends water systems investigate using internal water system funding sources and external LSLR funding sources, such as EPA State Revolving Funds (DWSRFs), WIFIA Program, (WIIN Act of 2016 grant programs, Community Development Block Grants from Housing and Urban Development, and additional federal, state and local funding sources that could be used to assist customers pay for LSLR. Water systems may also choose to prioritize environmental justice communities for LSLR in the LSLR plan.
Pitcher Filter Tracking and Maintenance Plan
Summary of Comments