Barriers to identifying and implementing effective solutions.

Recognizing the challenges small CWSs and NTNCWS face in reliably providing safe drinking water to their customers, EPA proposed alternative compliance options. The final LCRR modifies but maintains small systems flexibilities for this same reason. These options allow small systems to select the option that is most appropriate for their system and community, considering the technical, financial and managerial capacity of the system so it can reliably provide safe drinking water. Under the final LCRR, small CWSs that serve 10,000 or fewer persons and any NTNCWS that exceeds the lead trigger level of 10 ug/L but does not exceed the lead action level of 15 ug/L (i.e., has a trigger level exceedance (TLE)) and does not exceed the copper action level of 1.3 mg/L must evaluate the four compliance alternatives and make a recommendation to the state within six months on which compliance alternative the water system would implement if the water system subsequently exceeds the lead action level. The state must approve the recommendation or designate an alternative compliance option within six months of submittal. In the event these water systems exceed the lead action level, they must implement the state-approved compliance option. Any small CWS and any NTNCWS that exceeds the lead action level and had not previously exceeded the trigger level, must evaluate the compliance alternatives and make a recommendation to the state within six months. The state must approve the system's recommendations or designate an alternative compliance option within six months; these water systems must implement the state-approved compliance option.
EPA does not agree with commenters that recommend extending the flexibility options to all systems subject to the LCRR. The SDWA requires that a treatment technique prevent known or anticipated adverse effects on the health of persons to the extent feasible. EPA has determined that it is feasible for systems serving more than 10,000 persons to implement the multiple treatment technique actions of optimized CCT, public education and LSLR. These systems have the technical, managerial, and financial capacity to implement multiple treatment technique actions. They have managerial, field, and operator staff and expertise to manage CCT and LSLR programs. These systems also have economies of scale that make the cost of multiple treatment technique actions affordable. Section 1412((b)(4)(E)(ii) of the SDWA requires EPA to identify a list of technologies, treatment techniques, or other means that are affordable for three subcategories of small systems  -  PWSs serving between 10,000 and 3,330 persons, between 3,300 and 500 persons, and between 500 and 25 persons. Also, section 1412(b)(9) of the SDWA requires that any revision of a NPDWR "shall maintain, or provide greater, protection of the health of persons." The Agency determined that small water systems serving 10,000 or fewer persons typically do not have the capacity to implement multiple measures simultaneously such as CCT and LSLR programs. EPA has concluded that these small systems can work with their state to identify an affordable and feasible treatment technique to reduce drinking water lead exposure and improve public health protection. EPA's ability to extend the small system compliance flexibilities to all systems is limited by these provisions. Moreover, EPA determined that for systems serving more than 10,000 persons, the provisions of the LCRR (the technologies, treatment techniques, and other means) are both feasible and affordable. Finally, EPA determined that larger systems typically have greater technical, financial and managerial capability to implement CCT and LSLR and maintain compliance with the final LCRR, and therefore do not need the small system flexibility compliance options. Because the provisions of the LCRR protect against lead leaching from sources of lead other than LSLs, it would not be appropriate to extend the small system compliance options to systems based on the number of LSLs in the distribution system. See also Preamble Section III.E (USEPA, 2020a).
7.2 Comments Supporting Small System Flexibility
Summary of Comments
Several commenters support the intention to provide small systems with additional flexibilities in the LCRR § 141.93. Some commenters noted the technical managerial and financial capacity challenges that some small systems face justify the small system flexibility provisions in the proposed LCRR and that these flexibilities will allow small systems to achieve compliance and reliably provide safe water. One commenter noted that small system flexibility options are beneficial to small systems that struggle with maintaining chemical treatment by providing them with alternative options to remediate their lead and copper issues. One comment letter from a state agency specifically stated that they anticipate some of their small CWSs and NTNCWS will elect one of the flexibility options. Some commenters generally supported the small system flexibilities but noted that additional compliance options can increase the tracking burden for states. One commenter noted that "Maintenance of corrosion control and point-of-use devices may be beyond the technical and financial capability of these systems" and requested that financial and technical assistance be provided "at no cost to low income communities to maintain corrosion control treatment and point-of-use devices programs if a community opts for one of those programs."
Agency Response
EPA agrees with commenters that greater flexibility is needed for small CWSs and all NTNCWSs because they tend to have more limited technical, financial, and managerial capacity to implement complex treatment techniques. Small system flexibilities will provide alternatives to chemical treatment as it is difficult for many small systems to find operators that have the more advanced skills necessary to implement and maintain such treatment, particularly given the limited financial and programmatic capacity of many small utilities (Kane and Tomer, 2018). In the final rule, small systems that exceed the trigger level must select and obtain state approval for one of the four compliance options and implement the option in the event of an action level exceedance. In most cases, state approval is obtained before a lead action level exceedance allowing systems to quickly implement the approved option. This is public health advancement over the previous rule which allows a system to conduct two semi-annual periods of tap sampling to demonstrate lead levels at or below the action level following which the system is no longer required to implement CCT or LSLR. EPA acknowledges commenters concerns that the state tracking burden will be increased due to the implementation of small systems flexibilities. EPA has included estimates of the changes to the primacy agencies burden to oversee the small system flexibility options in the "Economic Analysis for the Final Lead and Copper Rule Revisions" or "Final LCRR EA" (USEPA, 2020b). EPA agrees that small systems need additional support. Separate from the LCRR, EPA provides technical assistance and financial support to small systems through grants and low or no cost financing programs such as the Drinking Water State Revolving Fund (DWSRF).
7.3 Comments Opposing Small System Flexibility
Summary of Comments
Several commenters opposed the small system flexibility provision as proposed in § 141.93 because of concerns for public health protection. One commenter stated that "[f]rom a philosophical standpoint, all water systems should be treated the same. Preventing lead exposure to protect the public health should be the same for all people." Another commenter expressed a similar concern and said "[a]ll water systems regardless of size should be subject to the same requirements." Another commenter said "... [Commenter] firmly believes that equal public health protection should be provided at all systems and to all individuals, regardless of the size or type of the system. Thus, we would strongly encourage EPA to reconsider the provisions in the LCR that inadvertently create a two-tiered public health system." One commenter stated that "EPA has failed to present how different flexibilities granted to small systems would provide equivalent public health benefits to the residents of those communities as compared to larger communities." Another comment stated that "EPA's proposal to weaken health protections for consumers served by small water systems would violate the SDWA" and argued that the proposed LCRR is in violation of the SDWA's anti-backsliding provision. Another commenter noted that "[l]essening [small systems'] requirement is counterproductive."
Several of these commenters proposed changes to the small system requirements to address their concerns. One commenter stated, "[t]o rectify these violations, EPA must strengthen its proposed provisions. To avoid unlawful backsliding, EPA must require small systems continuing to exceed the action level after having fully replaced lead service lines to install and maintain optimal corrosion control treatment to control lead release. [See id.] And in order to optimally protect public health, EPA should also require small systems that sustain a lead action level exceedance while replacing lead service lines to implement a filter installation and maintenance program for at least two consecutive six-month monitoring periods where the systems' 90th percentile lead levels are at or below the action level. [See 84 Fed. Reg. at 61,770 - 71.]" This commenter also recommended "[t]o comply with the SDWA, EPA must require NTNCWSs that sustain a lead action level exceedance during or after replacing lead-bearing plumbing to install and maintain optimal corrosion control treatment to diminish residual lead levels stemming from lead service lines or copper pipes with lead solder remaining in the systems' distribution infrastructure. EPA must additionally require NTNCWSs with lead service lines to conduct mandatory lead service line replacement following subsequent action level exceedances. [See 40 C.F.R. § § 300g-1(b)(9).]" For systems that have implemented a compliance flexibility option, but subsequently exceed the lead trigger or copper action level, a commenter suggested that the final rule provide states "discretion to require implementation of an additional flexibility beyond that originally implemented." Similar recommendations were made by another commenter that said "We urge EPA to tighten its proposed ﬂexibility oﬀerings by requiring:
*Corrosion control treatment when water systems choose the full lead service line replacement option,
*Full lead service line replacement when they choose the corrosion control treatment option, and
*Full lead service line replacement when they choose the point-of-use (POU) ﬁlter option."
Other commenters stated that they opposed the small system flexibility provision because they felt the provisions in § 141.93 did not adequately address the needs of small systems. One commenter stated of EPA's proposed LCRR "...its proposed revisions actually lack important safeguards and do not allow affected systems to choose traditional remedies." Another commenter asked EPA to "...consider practical alternatives that will allow small water systems the flexibility to navigate the requirements of the LCRR and properly ensure that public safety is upheld." One commenter recommended that instead of small system flexibilities, "grants should be more heavily allocated towards non communal water users."
Agency Response
EPA disagrees with the commenter that claimed that the proposed LCRR violated the SDWA's anti-backsliding provisions. Similarly, another commenter stated that the proposed LCRR small systems flexibility options "...raise serious questions about the agency's a) scientiﬁc rationale, b) perpetuation of a well-documented and widespread environmental injustice that has allowed small water systems to routinely deliver unsafe drinking water to millions of water users [...] and c) potential regulatory backsliding." EPA disagrees with these assertions, and as a whole, finds that the proposed and final LCRR represent more stringent public health protection provisions than the previous LCR. Through strengthened treatment procedures, expanded sampling, and improved protocols for identifying lead, EPA's LCR revisions will require more water systems to progressively take more actions to reduce lead levels at the tap. Additionally, by improving transparency and communication, the rule is expected to increase community awareness and accelerate the replacement of LSLs. By taking these collective actions EPA, states, and water systems will be implementing a proactive holistic approach to more aggressively manage lead in drinking water.
EPA disagrees that the final LCRR violates the SDWA's anti backsliding provisions. The LCRR requires all water systems, including small systems, to complete and maintain a publicly available LSL inventory, provide annual notice to customers with an LSL, and collect tap samples from homes with LSLs if present in the distribution system. All systems, including small systems, must collect fifth liter samples that are representative of water that has been in the LSL for several hours, which will provide better information on the highest concentration of lead in drinking water. To reduce elevated levels of lead in certain locations, EPA's final rule requires water systems, including small systems, to engage in a "find-and-fix" process to identify the causes of these elevated levels as well as potential actions to reduce lead levels.
In addition to all of these other LCRR requirements, small systems that exceed the lead trigger level must recommend a compliance option and obtain state approval so if the system has a subsequent action level exceedance, it can implement the approved option quickly. The small system flexibility options assure that the water systems reduce drinking water exposure to the extent feasible for small water systems. Under the LCRR, a small system cannot discontinue implementation of the approved option, even if future tap sampling results are at or below the action or trigger level. For example, small systems that choose and are subsequently required to implement a LSLR program following an action level exceedance (ALE) must remove all the LSL in the system, within 15 years, even if the system never has another ALE. This is a public health protective measure that is incorporated into the small system flexibility requirements. This is public health advancement over the previous rule which allows a system to conduct two semi-annual periods of tap sampling to demonstrate lead levels at or below the action level following which the system is no longer required to implement lead reduction actions.
EPA would like to clarify an aspect of the flexibility requirements in response to commenters concerned about an ALE after LSLR has been completed, stating "[t]o avoid unlawful backsliding, EPA must require small systems continuing to exceed the action level after having fully replaced lead service lines to install and maintain optimal corrosion control treatment to control lead release." In the final rule, if a subsequent TLE occurs following complete implementation of any recommended and approved compliance flexibility options, water systems would be required to re-evaluate and recommend an additional compliance option to the state and implement the approved option should a subsequent ALE occur in accordance with 141.93 (a) and (b). It is important to also note that EPA designed the compliance flexibility options so that they must be implemented completely, which reduces the chance of a TLE or ALE following completion of the elected option.
In response to commenters concerned about requirements for systems that elect LSLR and have another ALE during implementation of the LSLR plan, as well as the commenter that recommended EPA require a 7 percent removal rate for small systems that elect to conduct complete LSLR, EPA disagrees with these approaches and has decided not to require a minimum percentage removal rate for small CWSs and any NTNCWS that elect the LSLR compliance option. The LCRR allows states to determine an appropriate replacement schedule for small systems and specifies that the replacements timeframe should not exceed 15 years. EPA designed this option with small systems with few LSLs in mind, and the appropriate removal rate for those systems may in fact be higher than 7 percent per year. EPA understands states are in the best position to determine the LSLR rate and schedule for small systems based on system specific circumstances.
EPA disagrees with the commenter that recommended EPA require LSLR for NTNCWSs that elect the replacement of lead-bearing plumbing compliance option. EPA notes that this requirement is not necessary as the final LCRR makes this compliance option available only to systems with no LSLs or systems that first remove the LSL. This commenter also recommended that EPA require OCCT following replacement of lead-bearing plumbing to reduce corrosion from LSLs and copper pipes with lead solder. EPA does not agree. As indicated above, systems that select removal of lead-bearing plumbing materials must either have no LSLs or remove LSLs with lead-bearing plumbing materials. While lead solder on copper pipes is a source of lead, EPA's analysis indicate passivation of lead solder has reduced lead in drinking water from this source. However, if a system had an ALE following complete implementation of the plumbing replacement, it would be required to implement another option. Further, if there is a simultaneous or subsequent copper ALE, requirements remain unchanged for responding to a copper ALE from the previous rule.
EPA disagrees with commenters that called for EPA to provide additional flexibilities beyond those in the proposed LCRR. Commenters did not provide any detail of how the desired additional practical flexibilities would reduce drinking water lead exposure to the extent feasible. EPA has determined the small system flexibility options in the final LCRR are actions that reduce drinking water lead exposure and are feasible for small CWS and NTNCWS. EPA also disagrees with the commenter that recommended that the Agency allocate grant funding to small CWSs and NTNCWSs instead of allowing the small water system compliance flexibility. EPA has determined that providing grant funding would not completely address the challenges that small systems face in consistently meeting the requirements of the SDWA and NPDWRs. In addition to limited financial capacity, EPA recognizes that small systems may also lack the technical and managerial capacities to implement complex treatment technique rules such as the LCRR. Separate from the LCRR, the EPA provides financial support to small systems through technical assistance grants, Water Infrastructure Improvements for the Nation (WIIN) grants, America's Water Infrastructure Act (AWIA) grants, as well as the DWSRF. These programs provide much needed financial assistance to maintain or improve compliance through infrastructure improvements as well as support small systems through training and technical assistance to improve technical, managerial, and financial capacity.
7.4 Comments on the Small System Size Threshold
EPA requested comment on whether the flexibility provisions in § 141.93 are needed by systems serving between 3,301 and 10,000 persons and whether a different threshold is more appropriate. EPA received comments in support of the threshold in the proposed LCRR, advocating for the alternative threshold of 3,300 or fewer, and advocating for a threshold below 3,300.
Summary of Comments
Many commenters recommended that the small system flexibility provisions apply to systems serving 3,300 or fewer persons. These commenters stated that this threshold would allow for consistency across NPDWRs. Some commenters stated that there were differences in challenges and requirements of systems serving 3,300 or fewer persons than those serving between 3,301 and 10,000 persons. One commenter said, "Systems that serve 3,301 or more persons have the adequate financial, technical, managerial, and operational resources available to handle the requirements that are proposed by the LCRR." Similarly, another commenter said "...the waterworks serving more than 3,300 persons in [State] do not require the same degree of flexibility as those serving 3,300 or fewer persons." This commenter said "[Commenter] believes that waterworks serving over 3,300 persons likely would have adequate TMF [technical, managerial, and financial] to implement the LCRR requirements without the small system compliance flexibility." One commenter noted that the costs of POU filters and replacement of lead-bearing plumbing in particular would be greater than treatment at the entry point for systems serving between 3,301 and 10,000 persons. Another commenter supported the definition change to 3,300 or fewer persons stating, "water systems with 10,000 population or more are actually quite big" and that "3,300 people is a more reasonable threshold." This commenter suggested that if EPA chooses to use the "...10,000 person limit then EPA should consider additional breakdowns in population for this rule such as: 10,000, 3,300, 1,000, and 250. Adding that based on POU or LSL replacement costs, the small system flexibility options are most likely beneficial for water systems that serve less than 1,000 people." Other commenters supported the proposed LCRR small systems threshold of systems that serve 10,000 people or fewer and recommended that the small system flexibility provisions of the final LCRR apply to systems serving 10,000 or fewer persons. One commenter said "[t]he rule is very complex and small system flexibility will be needed for PWSs serving 10,000 or fewer." Two of these commenters suggested EPA differentiate systems further within the category by defining small water systems as serving a population between 3,300 and 10,000 and very small water systems as serving fewer than 3,300 people.
Some commenters suggested the small system threshold be further lowered below 3,300 or fewer persons. One commenter stated that EPA should use 250 persons as the threshold. One commenter said of the small system threshold of 10,000 and fewer "[t]his will allow an unacceptably high amount of water systems to opt out of the LCR's most protective requirements, even though most of these systems likely have sufficient resources to comply with the LCR," and suggested a small system be defined as serving no more than 500 persons. Another commenter also mentioned a 500 customer or fewer threshold, then went on to recommend the flexibilities should "possibly be eliminated altogether." Another commenter said "[t]he small system flexibility applies to systems that are too large. While corrosion can be managed/addressed differently by these systems, too much leeway given to a system with limited managerial capacity can be troublesome. The options should be restricted to special circumstances and much smaller systems than currently established."
Two commenters proposed that small system flexibilities be extended to all systems serving 100,000 or fewer persons. Another commenter recommended that EPA consider expanding flexibilities to systems serving fewer than 50,000 persons.
Agency Response
The LCR is a complicated rule due to the need to control corrosivity of drinking water as it travels through often antiquated distribution and plumbing systems on the way to the consumer's tap. States and PWSs need expertise and resources to identify the sampling locations and to work with customers to collect samples for analysis. Even greater expertise is needed for systems and states to identify the OCCT and water quality parameter monitoring to assure that lead and copper levels are reduced to the extent feasible. The determination of the OCCT is specific to each water system because it is based on the specific chemistry of the system's source water, and must be designed and implemented to take into account treatments used to comply with other applicable drinking water standards (56 FR 26487; USEPA, 1991).
Small CWSs and NTNCWSs tend to have more limited technical, financial, and managerial capacity to implement complex treatment technique rules such as the LCR. Many small PWSs face challenges in reliably providing safe drinking water to their customers and consistently meeting the requirements of the SDWA and the NPDWRs. See response to comment Section 7.9 for further discussion of the challenges small systems face.
Recognizing the challenges small CWSs and NTNCWS face in reliably providing safe drinking water to their customers, EPA proposed alternative compliance options. These options allow small systems to select the option that is most appropriate for their community, considering the technical, financial and managerial capacity of the system so it can reliably provide safe drinking water. Therefore, the final LCRR will include small systems flexibilities slightly modified from the proposal. Under the final LCRR, small CWSs that serve 10,000 or fewer persons and any NTNCWS that exceeds the lead trigger level but does not exceed the lead and copper action levels must evaluate the four compliance alternatives and make a recommendation to the state within six months on which compliance alternative the water system would implement if the water system subsequently exceeds the lead action level. The state must approve the recommendation or designate an alternative compliance option within six months of submittal. In the event these water systems exceed the lead action level, they must implement the state-approved compliance option. Any small CWSs and any NTNCWS that exceeds the lead action level and had not previously exceeded the trigger level, must evaluate the compliance alternatives and make a recommendation to the state within six months. The state must approve the system's recommendations or designate an alternative compliance option within six months; these water systems must implement the state-approved compliance option.
EPA agrees with commenters that supported the small system flexibilities for systems serving10,000 or fewer persons . The Agency agrees that small water systems serving 10,000 or fewer persons typically do not have the capacity to implement multiple measures simultaneously such as CCT and LSLR programs. Small CWSs serving 10,000 or fewer persons and NTNCWSs tend to have more limited technical, financial, and managerial capacity to implement complex treatment technique rules such as the LCR (USEPA, 2011). Many small public water systems face challenges in reliably providing safe drinking water to their customers and consistently meeting the requirements of the SDWA and the NPDWRs (USEPA, 2011). The Agency determined the compliance flexibility options would be most appropriate for small water systems that serve 10,000 or fewer persons, as they are most frequently the systems that are struggling to maintain compliance with the previous LCR and/or do not have the capacity to operate CCT in conjunction with other complex treatment technique requirements. Small water systems serving 10,000 or fewer persons have more monitoring and reporting (M&R) violations, approximately a total of 90 percent of all M&R violations for all NPDWRs. The number of violations decreases as system size increases (USEPA, 2011). Recurring M&R violations can obscure more important water quality problems because the maximum contaminant level (MCL) and maximum residual disinfectant residual level (MRDL) violations may not be discovered if a system fails to conduct routine monitoring. M&R requirements are often the simplest compliance requirements and systems that cannot complete these procedures may have other technical, financial and managerial issues (USEPA, 2011). Small system flexibilities will provide alternatives to chemical treatment as it is difficult for many small systems to find operators that have the more advanced skills necessary to implement and maintain such treatment, particularly given the limited financial and programmatic capacity of many small utilities (Kane and Tomer, 2018). EPA has concluded that these small systems can work with their state to identify an affordable and feasible treatment technique to reduce drinking water lead exposure. EPA expects that small systems will work with their state to identify the single most cost-effective measure from this list of affordable and feasible compliance options. That measure will depend upon the characteristics of the small system including the number of service connections, the number of LSLs, and the technical capacity of the system's operators.
Some commenters recommended that a threshold 3,300 of fewer persons should be used in the final rule as it would allow for consistency across NPDWRs. EPA notes that the NPDWR for lead and copper is a unique and complicated treatment technique rule that requires water systems with elevated lead to take a suite of actions to reduce lead levels in drinking water. To improve public health protection, the final rule maintains or modifies regulatory requirements from the previous LCR and includes new requirements that apply to all system sizes, for example, preparing an LSL inventory, collecting all tap samples from homes with LSLs, conducting "find-and-fix" assessments, conducting water system side LSLR when customer-initiated LSLR occurs and providing filters, providing filters in the event of an LSL disturbance, and conducting public education outreach to customers served by an LSL. Additionally, the final rule establishes a new trigger level that, when exceeded, prompts a set of actions designed to protect public health. Given the complex requirements associated with this treatment technique rule, EPA has determined that it is not feasible for water systems serving 10,000 or fewer persons to implement the full suite of requirements in the final LCRR because, in most cases, they lack the technical, financial, and managerial capacity to do so. EPA has concluded that small system flexibilities are appropriate and allows water systems, with state approval, to take the lead reduction approach that both maximizes public health protection to the extent feasible and is best tailored to their community.
EPA does not agree with commenters that support the small system flexibilities only for systems serving 3,300 or fewer persons. Similarly, EPA does not agree with commenters that suggested lowering the threshold below 3,300 persons served. EPA recognizes that while small systems serving between 3,301 and 10,000 persons may have greater technical, managerial and financial capacity than smaller systems, they still face financial and managerial limitations. EPA has determined that it is not feasible for systems serving 10,000 or fewer persons to implement the multiple treatment technique actions of optimized CCT, public education and LSLR due to the need to obtain financial, managerial, and technical capacity. Implementing such a complex program requires consequential managerial, operational, and financial investment. The systems serving 10,000 or fewer persons have less professional staff than larger systems; these systems have an average of 0.4 to 2.4 full time operators and 0.5 to 2.4 managers per system, which is approximately 2 to11 times less than the average number of operators in the larger systems. The lack of managerial oversight indicates these systems cannot appropriately plan and coordinate multiple treatment actions. Average revenues for systems serving 10,000 or fewer persons are about 4 to 170 times smaller than average revenues for large systems (USEPA, 2009).
 EPA understands that states play a critical role in the flexibility requirements due to the need for state review and approval. Applying small systems flexibilities to systems serving 10,000 or fewer persons would impose more burden on primacy agencies.
EPA acknowledges commenters' input regarding the infeasibility of some of the compliance flexibility options for systems between 3,301 and 10,000, particularly POU devices and complete LSLR.  EPA's analysis indicates that if provided an option, few systems serving greater than 3,300 persons would select full LSLR or POU compliance options over CCT due to relative cost considerations. EPA has found that as CWS population served increases, POU device costs can exceed CCT, re-optimization and LSLR costs (See Chapter 5 of the   Final LCRR EA (USEPA, 2020)). Nevertheless, EPA recognizes that systems and states are in the best position to elect and approve, respectively, from the compliance flexibility options. There may be water systems serving between 3,301 and 10,000 persons that after evaluating site specific conditions to determine which compliance option is most appropriate, elect a compliance option other that CCT with state approval. After considering the comments received, EPA determined it is appropriate to retain the small systems compliance flexibility threshold of the final LCRR to allow compliance flexibilities for small CWSs serving 10,000  or fewer persons, as well as NTNCWS of any size.
References
USEPA 2000. Report of the National Drinking Water Advisory Council Small Systems Implementation Working Group. EPA 816-R-00-012. April 2000.
USEPA 2009. 2006 Community Water System Survey. EPA 815-R-09-001. February 2009. Retrieved from https://www.epa.gov/dwreginfo/community-water-system-survey.
USEPA. 2011. National Characteristics of Drinking Water Systems Serving 10,000 or Fewer People. EPA 816-R-10-022. Retrieved from https://www.epa.gov/sites/production/files/2015-04/documents/epa816r10022.pdf
Kane, J., and Tomer, A. 2018. Renewing the water workforce: Improving water infrastructure and creating a pipeline to opportunity. Metropolitan Policy Program at Brookings.
7.5 Corrosion Control Treatment
In the proposal, EPA requested comment on whether different flexibilities would be more appropriate for small systems, regardless of the applicability threshold applied i.e., to water systems serving 10,000 or fewer persons or to systems serving 3,300 or fewer persons.
Systems Currently Operating Corrosion Control Treatments
Summary of Comments
Several commenters urged EPA to clarify the process for small systems that have CCT in place currently and wish to choose another small systems flexibility option under § 141.93. One commenter said "...US EPA should include language emphasizing that small systems with CCT already in place cannot stop treatment without prior approval from their state in order to pursue another small system flexibility. These systems should be required to continue to operate and maintain OCCT and meet their OWQPs [optimal water quality parameters], as applicable." Another commenter expressed a similar concern and said "[w]e suggest that the rule clearly state a mechanism to switch from OCCT to a small system flexibility option or state that this option is not allowed." Commenters stated that "[t]his will prevent systems from undermining their lead reduction efforts with CCT by moving to an alternative technique too quickly."
One commenter expressed support for the small system flexibility CCT option in the proposed LCRR § 141.93 and said the provision is helpful in "[e]ncouraging small systems to actively consider corrosion control without subjecting them and the states to the ongoing monitoring and reporting requirements of making such systems maintain `optimized corrosion control."
Agency Response
EPA agrees with commenters that recommended that small systems with CCT in place should not make treatment changes based on the flexibility options without obtaining state approval first. Treatment changes made too quickly or without state review and approval can lead to elevated lead and/or copper levels at the tap.
After considering the comments received, EPA added regulatory language to § 141.81(a)(3)(i) and § 141.93 to clarify that if a system with CCT recommends a different compliance option, they cannot discontinue CCT until the state has determined the alternative compliance option is effective in reducing lead levels. For example, a state may require a small system with CCT that recommends POU devices as a compliance alternative to continue to maintain and operate CCT until the state determines it is no longer needed (i.e., the system has fully implemented a point of use program).
In response to the commenter that expressed support for small systems utilizing corrosion control without being required to maintain OCCT, EPA would like to clarify that any water system that has CCT installed must re-optimize its CCT in accordance with § 141.81(d). Water systems required by the state to optimize or re-optimize CCT must follow the schedules in § 141.81 (d) or (e), respectively, beginning with Step 3 (the CCT study) of the appropriate paragraph unless the state specifies OCCT pursuant to either § 141.81(d)(2)(ii) or (e)(2)(ii), as applicable. Should a TLE or ALE occur at a small CWS or any NTNCWS with CCT, the system may submit another compliance flexibility option recommendation to the state for approval. These systems cannot discontinue CCT prior to state approval.
Corrosion Control Treatment and Lead Service Line Replacement
Summary of Comments
Some commenters expressed concerns that small systems that elect to conduct LSLR under § 141.93 would not be required to use control corrosion or POU devices in addition to LSLR. One commenter said "[t]hese households may receive high lead levels for potentially 15 years without CCT and/or pitcher filters." This commenter wrote that the LSLR provision for small systems is too lenient and "...is not acceptable from public health, health equity or environmental justice perspectives." Another commenter said "[b]y not requiring installation of corrosion control treatment, customers in small water systems could be exposed to higher levels of lead until completion of the lead service line replacement program, which could be as long as 15 years. The rule is unclear as to what interim measures are required." Another commenter stated, "[i]n addition, requiring that a small system provide CCT would protect against situations where an exceedance is caused by appurtenances such as lead goosenecks, pigtails, and connectors, or indoor plumbing." Another commenter requested that "...even a `small system,' be required to add corrosion control treatment or continue to provide corrosion control treatment, analogous to the way in which this is required for large and medium systems. Lead service line replacement should be encouraged in small systems through financial incentives, but not as an alternative to corrosion control treatment." Another commenter said that "[v]ery small, and medium systems that have not exceeded the Trigger Level or Action level and have not chosen to install CCT will not have the potential for lead leaching assessed in any way under the LCRR."
Other commenters expressed concern about CCT without mandating LSLR as an option for small system compliance under § 141.93. One commenter stated, "...[Commenter] cautions EPA against an approach that allows lead service lines to remain in the ground indefinitely (especially once a system has exceeded the lead Action Level)." Another commenter stated that LCRR "... will unintentionally require costly Corrosion Control Studies and Treatment that may not solve the underlying lead problem. One commenter supported the LSLR option for small systems with limited financial and technical resources as written in the proposed LCRR. Another commenter stated "[f]ailure of the revised LCR to require the full removal of lead service lines in small systems will risk leaving many of these lines in operation for decades, if not centuries, and will raise serious environmental justice concerns."
Agency Response
In response to commenters suggesting that the LSLR compliance option allows potentially high lead exposure for up to 15 years, EPA would like to underscore that for some systems that elect this option, particularly systems with few LSLs, complete LSLR may be achieved in a shorter time period. States are in the best position to work with water systems to determine and approve LSLR timeframes on a system by system basis. The state must require a system to replace LSLs on a shorter schedule, taking into account the number of LSLs in the system, where a shorter replacement schedule is feasible. Rather than split resources between installing CCT and conducting LSLR, the final rule allows often limited resources to be focused on LSLR to accelerate completion of the program and permanent removal of a significant source of lead in drinking water.
EPA would also like to emphasize both the LSLR and CCT compliance options require implementation and maintenance to continue even if a water system's 90[th] percentile lead levels subsequently drop below the action level to ensure that effective solutions are maintained, rather than potentially allowing systems to cycle between short term actions with limited effectiveness and ALEs. EPA estimates that water systems with few LSLs that could be removed within a few years will select the LSLR option. Systems with many LSLRs would likely select CCT as the most cost-effective compliance option. The Agency's economic analysis demonstrates that as system size increases, the least costly option is typically CCT.
In response to commenters concerned that the CCT compliance flexibility option allows LSLs to remain in the ground indefinitely, section 1412((b)(7)(A) of the SDWA requires EPA to establish a treatment technique that prevents known or anticipated adverse effect to the extent feasible. Section 1412(b)(9) of the SDWA requires that any revision of a NPDWR "shall maintain, or provide greater, protection of the health of persons." EPA determined that small water systems serving 10,000 or fewer persons typically do not have the capacity to implement multiple measures simultaneously such as CCT and LSLR programs. EPA has concluded that these small systems can work with their state to identify an affordable and feasible treatment technique to reduce drinking water lead exposure. For more information on this determination, see response to comment Section 7.4 and the final LCRR Preamble Section III.3 (USEPA, 2020a).
Additionally, in response to commenters concerned about small CWSs and NTNCWSs implementing CCT without conducting LSLR, EPA would like to emphasize that when properly installed and operated, OCCT is an effective treatment technique for reducing lead levels in tap water. Should a TLE or ALE occur at a small CWS or NTNCWS with CCT, the system may submit another compliance flexibility option recommendation to the state for approval. These systems cannot discontinue CCT prior to state approval.
In response to the commenter that raised a concern over the lack of assessment of potential for lead leaching under the LCRR for small systems that do not exceed the trigger level or action level, EPA emphasizes that other provision in the rule address this concern. For example, small systems must continue to collect tap samples and must do so at LSL sites when they have LSL sites and must conduct find-and-fix actions for any tap sample site that has a result above 15 ug/L.
After considering the comments received, EPA maintains CCT may be a preferable compliance option for some systems and finalized this provision as proposed. The final LCRR will afford all NTNCWSs and small CWSs more flexibility in evaluating the best treatment technique to control lead and to implement their chosen approach based on state approval. For more information on CCT requirements, see response to comment Section 4. For further discussion of the timeframe for the LSLR compliance option, see response to comment Section 7.6.
7.6 Lead Service Line Replacement
In the proposal EPA requested comment on whether different flexibilities would be more appropriate for small systems, whether they are applied to water systems serving 10,000 or fewer persons or 3,300 or fewer persons. EPA received comments on the feasibility and appropriateness of LSLR for small CWS and all NTNCWS.
Summary of Comments
Some commenters raised concerns over lack of flexibility for small systems in § 141.93 that is allowed for medium and large systems in the LCR. One commenter asked "[t]he larger CWS can still discontinue the LSL replacement in 141.84 (g) (6) when they drop below the AL [action level] for four consecutive monitoring periods (two years, assuming it is a 6-month sampling period). Why is the same option not allowed for the smaller system under "flexibility"? It seems to be punitive." Another commenter expressed a similar request and asked that EPA "...allow small water systems to elect to comply with the same requirements as medium and large systems (including off-ramps where 90th Percentile values fall below the action level) and provide safe harbor levels of effort to counteract uncooperative homeowners." One commenter stated that the LCRR "....proposed revisions actually lack important safeguards and do not allow affected systems to choose traditional remedies." Another commenter raised concern over the requirement to document customer refusal and stated that the provision in the proposed rule "...effectively precludes successful compliance with the small system flexibility provision by a community water system committing to complete removal of all lead service lines."
One commenter suggested specifically that EPA reduce the amount of time that a NTNCWS has to complete LSLR from 15 years to one year. This commenter stated that "[t]he one-year LSLR timeframe would be consistent with the Replacement of Lead-Bearing Plumbing option which involves replacing LSLs and all lead-bearing plumbing within the water system. There is no justification for allowing the same 15 years that a CWS has to replace LSLs in a NTNC system, which might have only one or two LSLs to replace, whereas a CWS might have hundreds of LSLs to replace." Another commenter recommended the LSL removal timeline for small systems be reduced to 10 years.
Agency Response
EPA disagrees with commenters concerned that the small system flexibility options are "punitive" and do not allow small systems to choose "traditional remedies." The small system flexibilities allow systems to choose among CCT, LSLR, POU and replacement of lead-bearing materials under § 141.93. Without this provision, systems serving 10,000 or fewer persons would be treated as  medium and large systems under the rule and therefore, could be required to replace LSLs and install, operate, and continue to maintain CCT. (Once installed by systems serving more than 10,000 persons, and all NTNCWSs CCT must be maintained and operated even if the system discontinues LSLR because it has not exceeded the lead action level for 4 semi-annual tap sampling rounds.)
Regarding the requirement that small systems that elect to conduct LSLR must complete LSLR on a schedule not to exceed 15 years, EPA intentionally did not set a lower mandatory rate or include an "off-ramp" even if 90[th] percentile levels drop below the ALE because EPA anticipates that this option is a feasible and affordable, as well as practical choice for small systems that have few LSLs that could be removed within a few years; thus, potentially avoiding the need to add a CCT process that would need to be continually operated and maintained. However, it still may not be feasible to remove all LSLs in a shorter time frame due to the need to: coordinate with homeowners to complete full LSLR, obtain permits, and account for winter months when LSLR may not be practical or possible. EPA understands that in order for this compliance option to be most effective, systems that elect this option must commit to removing all LSLs. After considering the comments received, EPA finalized the provisions as proposed to require elected small system flexibility options to be continued even if lead levels are reduced at or below the trigger or action levels.
In response to the concern over the requirement to document customer refusal of LSLR, EPA designed the associated provision to prevent a water system from violating the LCRR for customer decisions outside of its control. For more discussion of the customer-owned service lines and customer refusals of LSLR, see Section 6.11. EPA also disagrees with commenters that recommended shortening the timeframe for NTNCWSs and CWSs to complete LSLR. EPA chose to provide a maximum amount of time for LSLR, 15 years; however, the Agency anticipates that for some systems, including NTNCWSs with few LSLs, complete LSLR can be achieved in a much shorter period of time. For those systems, according to § 141.84(g)(9), states must require replacement of LSLs on a shorter schedule, i.e., a higher annual percentage than required under the federal rule, where the state determines a shorter schedule is feasible. For more discussion of the rationale for the small systems compliance flexibility options, see response to comment Section 7.3. For more information on small systems LSLR plans, see response to comment Section 6.1 .
7.7 Point-of-Use Devices
In the proposal, EPA also requested comment on whether different flexibilities would be more appropriate for small systems, whether they are applied to water systems serving 10,000 or fewer persons or 3,300 or fewer persons. EPA received comments in support and opposition to the POU device option, comments requesting clarifications, comments expressing concerns regarding oversight, implementation and maintenance burdens, and recommendations to limit POU device use to very small systems.
General Support for POU Device Compliance Option
Summary of Comments
Some commenters expressed support for the inclusion of the POU device compliance option in § 141.93. One commenter noted that the support is conditional on the proper installation and maintenance of POU filters. One commenter said that the POU device option is well suited to NTNCWS because "...the entity owns and operates all of the taps within its facility; it has complete legal and physical control of its system. It would still be an expensive option and other less expensive treatment or plumbing replacement projects, would be encouraged." Another commenter supported allowing POU devices for systems serving 10,000 customers and fewer. One commenter noted that POU device implementation is a cost effective and immediately effective solution to complex compliance issues. Another commenter said "[n]umerous studies have been published on the effectiveness of using point-of-use devices to mitigate lead in drinking water, and there is also a place of Point of Entry (POE) devices in quickly and affordably solving corrosion-related water quality issues."
Agency Response
EPA agrees with commenters who wrote that POU devices have the potential to be a feasible and effective compliance options for some systems. EPA has determined that with proper installation, maintenance, testing and public education, POU devices are an effective option for lead removal for some small CWSs and NTNCWSs. EPA disagrees with the commenter suggesting that POE devices should be included in this compliance option, because installing POE device at each household even for very small CWS is very likely to be cost prohibitive. Therefore, EPA did not include POE devices as a small system compliance flexibility option.
General Opposition to POU Device Compliance Option
Summary of Comments
Some commenters opposed the POU filter small system flexibility option in § 141.93 of the proposed LCRR. Commenters expressed concern with maintenance and performance issues, difficulty in ensuring the POU filters are used properly, and the capability of POU filters to remove lead to below the action level. One commenter stated concern that POU devices can give users a "false sense of security that the problem is resolved." This commenter recommended that POU devices be used only as a short term interim measures while systems are working on a long term solution and be limited to small community and NTNC systems that have total control of the operation and maintenance of buildings that are served by a water system. Another commenter stated "[a]s written, EPA's proposed provisions fail to provide sufficient direction to utilities in how to "maintain" POU devices and ensure that devices are reducing lead levels at the tap. EPA should require systems to implement an adequately protective filter installation, maintenance, education and training program."
Another commenter noted that if POU devices are only required to be installed at one tap in each household, water systems have no way of ensuring which taps customers use for consumption. They also note that it "...would be almost impossible to ensure adoption as home ownership or tenants change with time." Similarly, another commenter stated "[t]his is not a feasible option as most households and facilities have more than one tap where drinking water can be obtained." This commenter also claimed "[t]he POU device option cannot be implemented at a water system that has any restaurants, hospitals, or other facilities where a POU device cannot meet drinking water demand." One commenter recommended EPA require small systems to provide at least three POU devices to each household where necessary, assist residents with installation and maintenance, train customers through active demonstration on POU installation, and perform periodic filter inspections.
One commenter noted "[a] point of use approach leaves the source of lead in place at those premises for generations to come." Another commenter noted that POU filters should not be allowed without a full LSLR plan. Another commenter stated that systems "can continue to violate the lead action level with the only recourse being that it 'take corrective action' at the site at which a sample exceeds 10 ug/L, a mandate that requires additional clarity."
Agency Response
In response to the comment related to the capability of POU filters to remove lead to at or below the action level knowing that POU devices are certified using a challenge concentration of 150 ppb (i.e., ug/L) total lead, based on research and field evidence (Bosscher et al., 2019; Deshommes et al., 2012). EPA expects that POU devices are effective at removing lead at levels higher than 150 ppb. At typical drinking water pH and lead concentrations higher than 150 ppb, most lead is in particulate form (Schock et al., 1996; 2011). In a particulate form, lead would be trapped and physically removed by filters. However, in some water qualities, lead may not be particulate and flushing the tap prior to use may be necessary to reduce lead from levels above 150 ppb to 10 ppb or below (CDM Smith, 2019).
EPA disagrees with the assertions from commenters that it is difficult to ensure that POU devices are maintained properly because they are "primarily maintained by the customer," or that they should be an interim solution, EPA has designed the LCRR POU device provision to ensure that POU devices are ultimately the responsibility of the water system, not the homeowner. Section §141.93(a)(3)(iii) of the final LCRR requires PWSs using POU treatment units to maintain the treatment units to ensure proper operation and maintenance and compliance with the treatment technique according to manufacturer's recommendations to ensure continued effective filtration, including but not limited to changing filter cartridges and resolving any operational issues. It also requires that the POUs be equipped with mechanical warning devices to ensure that customers are automatically notified of operational problems. This addresses concerns of commenters regarding situations where a change in tenants creates a potential interruption to maintenance. This mandatory education will inform users, including new tenants, how to properly use the units to maximize the units' effectiveness in reducing lead levels in drinking water. Furthermore, the water system must provide public education to consumers in accordance with § 141.85(j) to inform them on proper use of POU devices to maximize the units' lead level reduction effectiveness.
In response to the commenters that expressed concern over the ability to meet water demand with POU device by a water system that has any restaurants, hospitals, or other facilities, EPA acknowledges that the POU device compliance option may not be the best option for every small CWS and NTNCWS. Water systems electing to use this compliance option are likely to consider a multitude of factors, including water demand, access to POU devices for testing and maintenance, and ability to resolve operational issue for consumers before submitting a plan to their state for approval. States will ultimately have the discretion to evaluate site specific conditions and determine if a water system's recommended compliance plan is appropriate, including the POU device option because § 141.93(a) provides that "[t]he State must approve the recommendation or designate an alternative from compliance options (1) through (4) of this paragraph within six months of the recommendation by the water system."
In response to commenters that raised concerns that the requirement of one POU device per household is not sufficient, EPA would like to emphasize this is a minimum that may be suitable for some households served, and, as commenters noted, not for others. For households, installing a POU device at the kitchen tap is consistent with EPA's guidance "Point-of-Use or Point-of-Entry Treatment Options for Small Drinking Water Systems" (USEPA, 2006). However, water systems and states may consider if it is appropriate to install POU devices at additional household taps. EPA estimates that the cost effectiveness of POU compared to CCT drops off substantially for systems serving more than 500 people.
Additionally, section § 141.93(a)(3)(iv) of the LCRR requires water systems to annually sample one-third of these devices to ensure that they are operating properly. In the case that samples are above the trigger level systems are required to document the problem and take corrective action at the site. In response to the commenter that said this mandate requires additional clarity, EPA disagrees. The provision is sufficiently clear for implementation, and EPA 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 agrees with commenters that stated that POU devices are not a feasible option for larger systems and that costs will likely be prohibitive for systems serving more than 3,300 people. In the Final LCRR EA, EPA estimates that small systems will select the least costly option and that as the size of the water system increases, they are less likely to select the POU compliance option (USEPA, 2020b). EPA anticipates that that some small water systems can cost effectively install and maintain POU devices in their customer's homes and can educate their customers on the proper operation of these devices. Most NTNCWSs own and control all the outlets in their system and can ensure proper operation and maintenance of installed units.
The commenter that stated that systems seem to be allowed to continue to violate the lead action level with the only recourse being that it "take corrective action" at the site at which a sample exceeds 10 ug/L, a mandate that requires additional clarity" should not that should a TLE or ALE occur at a small CWS or NTNCWS with CCT, the system may submit another compliance flexibility option recommendation to the state for approval.
Request for Clarifications
Summary of Comments
Several commenters recommended edits to clarify the certification of POU filters. These commenters clarified that "[t]he products are not certified by ANSI [American National Standards Institute], they are certified to NSF/ANSI standards by independent third-party certification bodies for the reduction of lead."
One commenter asked EPA to clarify that states with restrictions on POU devices will be able to retain them, and asked EPA to modify the final LCRR to reflect the limitations on the use of POU devices that exist in some states.
One commenter expressed concern that use of POU filters could have unintended microbial issues. Another asked if bacteria testing would be required for POU filters.
One commenter suggested extending the POU filter option to childcare facilities. This commenter stated "[g]iven that lead is present in virtually all plumbing, a POU strategy for schools and child cares that includes regular maintenance will result in an immediate source of safer drinking water with improved protection from lead in drinking water."
Agency Response
In response to the commenter that suggested that the final LCRR specifies that the POU device should be maintained according to the manufacturer's instructions, EPA agreed with this commenter and added language to the final LCRR to reflect this. The final LCRR in § 141.93(a)(3)(iii) reads "the POU device must be maintained by the water system according to manufacturer's recommendations to ensure continued effective filtration, including but not limited to changing filter cartridges and resolving any operational issues" in order to further clarify this requirement.
In response to commenters that expressed concern over microbial issues associated with POU devices, EPA agrees that the microbiological safety of the water is an important consideration. The SDWA requires that POU units must be owned, controlled, and maintained by the PWS or by a contractor hired by the PWS to ensure proper operation and maintenance of the devices and compliance with NPDWRs. Appropriate maintenance of POU devices is required under the final LCRR and replacement of POU cartridges to comply with the LCRR will also address potential microbial issues. While the final rule requires testing of POU devices for lead, the final rule does not require testing for bacteria.
EPA recognizes that restrictions on POU devices exist in some states and 40 CFR 142.4 recognizes this state and local authority. POU devices represent one small systems flexibilities compliance option in the final LCRR. While some states may restrict the use of POU devices for compliances purposes, the remaining small systems flexibilities are still available. Further, EPA expanded the allowance of replacement of lead-bearing plumbing to CWS based on public comment.
In response to the commenter that stated POU devices compliance option should be "modified" to apply to schools and child care facilities, EPA understands that some small CWS and NTNCWS eligible for the flexibility options may in fact be schools and child care facilities. Schools and child care facilities that are either a small CWSs or NTNCWSs may comply with the LCRR using the flexibilities provided in § 141.93 If they exceed the trigger or action level, they may evaluate all of the compliance options, including POU devices, and submit a selection to the state for approval.
EPA agrees with commenters that the proposed small system flexibilities for the LCRR could be improved. EPA clarified the final LCRR regarding the POU device certification requirements in response to the several commenters that proposed additional or alternative language for that provision. EPA has revised §141.93(a)(3)(ii) to state that the POU device must be independently certified by a third party to meet the ANSI standard applicable to the specific type of POU unit to reduce lead in drinking water.
Oversight, Implementation, and Maintenance Burden
Summary of Comments
Several commenters expressed concern that the POU small system flexibility option would create an additional oversight burden for states. One commenter noted that both the state and the system will be required to track, manage and maintain these devices. Another commenter stated that the Safe Drinking Water Information System (SDWIS) has a limited capacity for POU tracking. Another commenter noted that states with many small systems will face oversight challenges in providing the flexibility. One commenter asked EPA to include a provision to provide states with "...deference with respect to determining the on-going capacity of the system..." and noted "[i]t is likely that system management will commit to installation of POU treatment but later realize they do not have the capacity to manage the on-going POU program."
Some commenters noted the implementation and maintenance burden that small water systems may face with the POU compliance option. Several commenters expressed concern that small and medium CWS do not have the resources to implement a POU program. One commenter noted that it is difficult to attain 100 percent participation from the community and stated it will likely not be possible in systems serving more than 250 people. This commenter also stated that POU installation may require overtime work after hours to gain access to the customer's homes. One commenter noted that in previous experiences "[n]egotiating ownership of the POU device and access for testing has been an issue..." and that "[t]he ownership and testing access issue has delayed implementation or made use of POU infeasible." Another commenter noted that "...the POU compliance option can be more expensive than other alternatives when factoring in device approval, operation, perpetual maintenance, monitoring and testing." One commenter said "[f]or waterworks serving between 3,301 and 10,000 persons, the cost of installing and maintaining point of use treatment will be greater than the cost of completing the study and installing entry point treatment."
Several commenters suggested creating a separate lower threshold under which the POU option would be available. These commenters note the limitations of implementing POU filters in systems serving between 3,301 and 10,000 people but suggest limiting the availability of POU filter option further below the small system threshold of 3,300 or fewer people served. Commenters suggested different thresholds for the POU filter option including 500, 250, 100, and 50 customers served instead of 3,300 or 10,000 customers served. These recommendations are based on suggestions that POU is only feasible in very limited cases.
Agency Response
EPA agrees with commenters that the POU compliance option will require significant oversight on the part of states, and significant implementation efforts from water systems that select a POU compliance option. However, EPA recognizes that this option may be a viable compliance alternative for some systems subject to the LCRR, particularly very small CWSs that serve relatively few households, and NTNCWSs that are responsible for the facility's plumbing. EPA understands that, as some commenters noted, gaining access to customers' homes can be a challenging requirement to meet; however, EPA understands that providing a POU device to all households or buildings served will be a critical component of ensuring this provision is protective of public health. Even homes without LSLs would need to be provided with a POU device to address lead leaching from lead solder or plumbing fittings and fixtures that contain lead because system-wide CCT would not be provided under this option.
In response to commenter's concerns over the large number of systems potentially eligible for this option, EPA would like to emphasize that the Agency expects primarily very small systems will elect the POU device option. In the Final LCRR EA, EPA estimates that small systems will select the least costly option and that as the size of the water system increases, they are less likely to select the POU compliance option (USEPA, 2020b).
In response to concerns over the capacity of SDWIS to track POU devices, EPA intends to support the data management needs of states for the LCRR through the SDWIS Modernization development project, and to have a product available for state use by the compliance date of the LCRR.
EPA agrees with the commenters that stated that the costs of POU device implementation and maintenance can exceed the costs of CCT in some situations. EPA has found that the POU device implementation can be the least cost alternative when the number of households in the system is low and therefore, EPA expects that systems will be less likely to select the POU option as water system population size increases. In response to commenters that recommended EPA set a POU option threshold below 3,300 people served, EPA disagrees and did not find an additional limiting threshold necessary because eligible water systems, as well as state reviewers are expected to evaluate costs and feasibility on a case by case basis. In addition, states may limit the POU option to different size thresholds either through state regulations or policy.
For more information on EPA's response to commenters concerns over state policy regarding POU device, see subsection Request for Clarifications in response to comment Section 7.7 POU devices.
7.8 Replacement of Lead-Bearing Plumbing
In the proposal, EPA requested comment on whether different flexibilities would be more appropriate for small systems, whether they are applied to water systems serving 10,000 or fewer persons or 3,300 or fewer persons. EPA received comments on the timeline for replacement of lead-bearing plumbing and requesting guidance on implementation of this compliance option.
Summary of Comments
Some commenters expressed support for the option to replace lead-bearing plumbing that is available in § 141.93(a)(4) for systems that have control over all plumbing in its buildings and no unknown, galvanized service lines or LSLs. Several commenters expressed concern that the one-year replacement timeline in the proposed LCRR was too short. One commenter noted that "[s]tates can have some large NTNCWS, such as industrial facilities, sports venues, and military bases, among others, and completing replacement of lead- bearing plumbing within this short timeline would be incredibly challenging." Another commenter stated "[f]or some systems, this time frame may be problematic if funding or approvals from the state or funding agency and local plumbing jurisdictions are needing to be obtained prior to beginning the replacement." One commenter suggested extending the timeline for replacement to three years, another commenter suggested 18 to 24 months. Another commenter recommended "...allowing states to set a timeline for the replacement to be completed would allow state to customize the option so that systems can better plan and budget for the replacements."
Some commenters recommended that this option should apply to copper as well. One commenter noted "[Commenter] has advised such waterworks to replace copper plumbing, observed decreases in that contaminant as a result, and approved this process for practical, cost effective public health protection."
Many commenters recommended that "...the Lead-Bearing Plumbing Replacement option currently reserved for Non-Transient Non-Community Water Systems (NTNCWS) should be included in the final LCRR as a compliance option for Community Water Systems (CWS) and that the use of this option be at a state's discretion." One commenter echoed this recommendation for small CWSs and said "[w]ater systems of this size may find this alternative preferable to installing corrosion control treatment, which can be technically challenging and require a level of skill that the operators of these systems might not possess." Another commenter noted "[t]he Lead-Bearing Plumbing Replacement option may be beneficial for very small, disadvantaged communities that would rather replace fixtures and plumbing than commit resources to maintaining POU devices in perpetuity. Several states have seen success with small systems using a similar approach to replace copper plumbing and fixtures." One commenter provided examples of small CWSs and said "[e]xamples of community water systems that could take advantage of such an option include assisted living facilities, boarding schools, apartment buildings, and other state-identified situations where the system `regularly serves at least 25 year-round residents' and a single person or entity owns the property. [42 U.S. Code § 300f(15).]"
Some commenters asked EPA to clarify the requirements and provide guidance on implementation of this option. One commenter said, "detailed guidance must be provided on how this will be implemented, including how to address when plumbing replacement is not successful." Another commenter asked Is the system "deemed" to have optimized upon replacing plumbing components? If so, how is it optimized/re-optimized? EPA must then identify what to do if plumbing replacement is not successful." This commenter also expressed concern that the option to replace premise plumbing will raise jurisdictional challenges.
Agency Response
In response to the commenters that expressed concern that the one-year timeframe is too short and recommended that EPA extend the timeframe to replace all lead-bearing plumbing, EPA disagrees with these commenter's recommendations. EPA understands that complete replacement of all lead-bearing plumbing, particularly for larger NTNCWSs, may not be feasible, and would like to emphasize that systems where that may be the case would be able to select a different flexibility option. EPA determined it is feasible to achieve replacement in a one-year timeframe for certain types of systems eligible for the flexibilities, and therefore, finalized this timeframe in the final rule.
EPA disagrees with commenters that recommended this option should apply to copper ALEs as well. EPA has found that CCT is likely to be more cost effective than complete copper plumbing replacement for systems with copper ALEs. In determining the scope of the proposed LCRR, EPA decided not to make revisions to the copper provisions of the rule and therefore did not propose extending this option to small CWS and NTNCWS with copper ALEs.
EPA agrees with commenters who recommended that replacement of all lead-bearing plumbing be available to small CWSs as well NTNCWSs. Research has shown that corrosion of lead-bearing premise plumbing has the potential to leach higher levels of lead in drinking water (Elfland et al., 2010). Lead from premise plumbing contributes on average 20-35 percent of lead in drinking water where an LSL is present (Sandvig et al., 2008), and could potentially represent an even greater percentage where no LSL is present. In this light, EPA acknowledges that in certain circumstances, when small CWSs have no LSLs and control all of the plumbing materials in its building, replacement of all lead-bearing plumbing material might be the most cost effective option for them. As commenters noted, some small CWSs may in fact have complete ownership or control of the plumbing materials in a system such as prisons, boarding schools, apartment buildings and long-term care facilities, among others. In small CWS where water is primarily delivered through premise plumbing rather than a distribution system, replacement of lead-bearing plumbing might be the best option for reducing the sources of lead in a system that does not have LSLs, and therefore potentially more appropriate than CCT or POU devices for reducing exposure. EPA is therefore including the replacement of lead-bearing plumbing materials as an alternative path to compliance for small CWSs as well as NTNCWSs that have control over all plumbing materials in the system and have no LSLs.
In response to commenters requesting additional guidance on the implementation of this compliance option, EPA received several comments requesting Agency guidance on implementation of the revised rule. EPA understands this is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the areas of the rule that are most likely to support compliance. In addition to guidance, EPA will also provide training and other supporting materials that will help states and water systems implement the revised rule and promote greater national consistency.
  7.9 Technical, Managerial and Financial Capacity
Summary of Comments
Many commenters discussed the lack of technical, managerial, and financial capacities that small systems can be challenged with. Commenters raised concerns that small systems can be short staffed, lack the capacity to comply with complex rules, and may lack technical expertise. Commenters noted that small systems may be unable to conduct CCT studies, implement CCT, implement LSLR, or install and maintain POU devices. Some commenters suggested increased flexibility beyond what was included in the proposed LCRR, including longer compliance time frames.
One commenter expressed concern that the deadlines for small system compliance flexibilities may not be achievable. This commenter said "[s]ystems trying to get access to consumers' homes for plumbing replacement or to install a POU device might need additional time to get legal authority to access properties." Another states that EPA's "...mind-set towards large systems is still prevalent and some of the requirements set forth in this proposed rule do not fully consider the resource and financial burden it will place on smaller systems."
One commenter asked that EPA give small systems the "flexibility of testing out of permanent treatment requirements" without any further detail or explanation.
Agency Response
EPA agrees with commenters that raised concerns over the technical, managerial, and financial capability challenges that small systems can face. EPA has determined that small CWSs and all NTNCWSs need greater flexibility to comply with the requirements of the LCRR because they tend to have more limited technical, financial, and managerial capacity to implement complex treatment techniques. Many small PWSs face challenges in reliably providing safe drinking water to their customers and consistently meeting the requirements of the SDWA and the NPDWRs. These challenges include, but are not limited to: (1) lack of adequate revenue or access to financing; (2) aging infrastructure; (3) retirement of experienced system operators and the inability to recruit new operators to replace them; (4) lack of managers and operators with the requisite financial, technical or managerial skills; (5) lack of planning for infrastructure upgrades or the ability to respond to and recover from natural disasters (e.g., floods or tornadoes); and (6) lack of understanding of existing or new regulatory requirements and treatment technologies. As a result, some small systems may experience frequent or long-term compliance challenges in reliably providing safe water to their customers while others may be in compliance now but lack the technical capacity to maintain compliance (OIG, 2016).
EPA designed the flexibilities to ensure the LCRR requirements for these systems are feasible, particularly for small systems for which operating and implementing OCCT may be a challenge. In response to the commenters that suggested the flexibilities actually increase the burden on small systems because they would have to evaluate multiple options and select a recommended option, EPA is requiring water systems, including small water systems, that have already installed CCT and subsequently exceed the lead action level to re-optimize CCT.
Additionally, EPA understands that early and frequent communication between states and waters systems, particularly those eligible and interested in evaluating the small system compliance flexibility options, can help to reduce implementation burdens. For more information on implementation guidance, see response to comment Section 7.10 Timing and Implementation.
7.10 Timing and Implementation
Recommendations for Timing of Small System Flexibility Requirements
Summary of Comments
One commenter stated "[m]andating all three options at Section 141.93 of the proposed rule to all water systems would set a reasonable timeline to replace all lead service lines and remove the lead threat, it would implement corrosion control to quickly lower lead levels and prevent lead levels from rising, and it would provide point of use devices to protect people at the tap to allow people to have safe drinking water immediately."
One commenter suggested that small systems be required to propose a preferred compliance alternative to the state either at the same time as the LSL inventory submission or with a phased submission approach. This commenter recommended that adding this requirement before a TLE or ALE would allow for a quicker response if the action level is subsequently exceeded One commenter suggested requiring systems to implement the compliance flexibility options "after their first ALE, rather than their second ALE."
Agency Response
EPA does not agree with one commenter's suggestion that all small systems should be required to submit their compliance alternative selection for State approval at the same time as the LSL inventory. Completing the LSL inventory will be a significant effort for water systems to compile and submit and requires a significant amount of review and approval time for states. The LCRR does not require simultaneous submission of the LSL inventory, the flexibility option recommendation, and the associated plans because it would likely overwhelm the capacities of both the small water systems and their state reviewers. In response to the commenter considering first and second ALEs, EPA would like to clarify that implementation of the approved compliance flexibility option is required after the first ALE. EPA introduced the trigger level in the LCRR, in part, to encourage a more proactive approach to addressing lead in drinking water. EPA determined that the timeline for developing a recommended option for small systems following a TLE is sufficient for ensuring systems are prepared to take action should an ALE occur. For more information on EPA's rationale for the trigger level, see response to comment Section 3.
Requested Implementation Clarifications
Summary of Comments
Commenters requested various clarifications on § 141.93 implementation by states.
One commenter said "[t]he Agency will have to be clear in the rule how it will assure that State primacy agencies utilize this compliance option." This commenter also said "[f]or example, it is not clear in the proposed rule if the states will accept lead service line replacement in lieu of corrosion control or if they will rely on triggers in the rule to require additional action by individual systems." This commenter also noted that current EPA guidance on POU and POE filters will have to be updated to align with the final LCRR.
Other commenters asked that the final LCRR encourage systems to work with states in the initial development of their compliance alternative plan. These commenters noted that "States can assist small systems in developing a system-specific plan rather than states having to spend their already limited resources reviewing an entire plan with which they are unfamiliar and/or making an alternative suggestion based on their own review of the system. Having the State involved early on will reduce time wasted on developing non-viable alternatives." Another commenter recommended that EPA extend the state review timeline to greater than six months and stated "[s]mall systems may have limited records and resource constraints that will limit the capacity for [Commenter] to review things like engineering plans and CCT within a six-month timeframe."
Some commenters requested clarification from EPA on how the small systems flexibilities would apply in certain circumstances. One commenter noted "There is no discussion about how the small system flexibility applies when there is also a copper action level exceedance. There are times when a system exceeds both action levels." Another commenter asked EPA to clarify if systems that implement a small system flexibility option are "deemed optimized." One commenter asked "Is a system permitted to do a combination/mixture of different options under the Small System Flexibility? If a system has limited LSL to the point where replacing them won't make a wide-spread improvement, could they also do LSLR and POU Installation?" One commenter noted "[t]here is not currently a protocol for rescinding the small system flexibility and mandating a more conventional approach." Another commenter suggests that in this case, "...the primacy agency should be given discretion to require implementation of an additional flexibility, beyond that originally implemented." Another asked that EPA allow for "off ramps" for the selection option, asking EPA to "[p]lease include language to allow a waterworks to change or stop a selected option, with state approval, if the facts change."
Agency Response
EPA disagrees that it must "assure that State primacy agencies utilize this compliance option." As provided in Section 1414(e) of the SDWA and EPA's primacy regulations (40 CFR 142.4), nothing in the SDWA or the implementing regulations diminishes the authority of a state to adopt or enforce a more stringent law or regulation regarding drinking water or PWSs.
EPA agrees that it is mutually beneficial for small CWSs and NTNCWSs and states to coordinate in the initial development of their compliance alternative plan. EPA agrees with commenters that early engagement between systems and states would particularly help streamline the development and review process and could reduce the amount of work and/or revisions required to approve a plan. EPA encourages States to initiate early engagement at that time they notify the water system of the TLE.
In response to the commenters concerned about a state's timeframe for review of compliance plans, EPA disagrees that the timeframes proposed should be extended in the final LCRR. EPA understands that a six-month review period for states might be challenging in some cases; however, the Agency determined it is essential to require timely action in case a subsequent ALE occurs.
In response to commenters that asked if the flexibilities apply to copper ALEs, EPA would like to clarify that the flexibilities do not apply. Small systems that exceed the copper action level are required to implement CCT to reduce copper corrosion. The small systems that exceed both the lead and copper action levels could work with their states to optimize CCT to reduce both lead and copper levels.
In response to comments about combining flexibility options and determining if a water system is optimized; these flexibilities are designed as individual options. A small system that selects CCT is deemed to be optimized as long as it meets its OWQPs. For systems that select POU, LSLR, or replacement of lead-bearing materials, the system is in compliance as long as they meet the requirements for the selected option. In response to comments regarding "off-ramps" during implementation, and other implementation questions, EPA does not believe that off-ramps are appropriate for water systems that have exceeded the action level. EPA is requiring that small water systems carefully evaluate the four options and is providing systems six months following a trigger level exceedance to identify the most appropriate action for their system to reduce drinking water lead levels. EPA is also requiring systems to submit their selection to the primacy agency for their review and approval. EPA is providing states with six months to review and approve this designation. EPA believes this is sufficient time for small water systems working with their states to identify the most appropriate action so that the system is ready to implement steps if it exceeds the action level. EPA believes that providing small systems with off-ramps could unnecessarily delay the actions needed to reduce drinking water lead exposure. EPA acknowledges that there may be challenges encountered in systems that implement small system flexibility options. EPA received several comments requesting Agency guidance on implementation of the revised rule. EPA understands this is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the areas of the rule that are most likely to support compliance. In addition to guidance, EPA will also provide training and other supporting materials that will help states and water systems implement the revised rule and promote greater national consistency.
References
CDM Smith, 2019. CDM Smith Inc. City of Newark Point-of-Use Filter Study August  -  September 2019. Filter Results Report  -  Final. City of Newark Department of Water and Sewer utilities. Newark, NJ. November 19, 2019.
Deshommes, E., S. Nour, B. Richer, C. Cartier, M. Prévost. 2012. POU Devices in Large Buildings: Lead Removal and Water Quality. J. AWWA 2012, 104, E282 - E297.
Kane, J., and A. Tomer. 2018. Renewing the water workforce: Improving water infrastructure and creating a pipeline to opportunity. Metropolitan Policy Program at Brookings.
Sandvig, A., P. Kwan, G. Kirmeyer, B. Maynard, D. Mast, R.R. Trussell, S. Trussell, A. Cantor, and A. Prescott. 2008. Contribution of Service Line and Plumbing Fixtures to Lead and Copper Rule Compliance Issues. Denver, Colo.: AWWA Water Research Foundation 3018.
Schock, M.R. and D.A. Lytle. 2011. Chapter 20. Internal Corrosion and Deposition Control. In: Water Quality and Treatment: A Handbook of Community Water Supplies, 6th ed.; Edzwald, J.K., Ed.; McGraw-Hill, Inc.: New York, 2011.
Schock, M.R., I. Wagner, and R. Oliphant. 1996. The Corrosion and Solubility of Lead in Drinking Water. In Internal Corrosion of Water Distribution Systems, 2nd ed.; AWWA Research Foundation/DVGW Forschungsstelle: Denver, CO, 1996; pp. 131 - 230.
United States Environmental Protection Agency (USEPA). 1991. Drinking Water Regulations; Maximum Contaminant Level Goals and National Primary Drinking Water Regulations for Lead and Copper; Final Rule. Federal Register 56(110): 26460. June 7, 1991. Washington, D.C.: Government Printing Office.
USEPA. 2006. Point-of-Use or Point-of-Entry Treatment Options for Small Drinking Water Systems. April 2006. Office of Water. EPA 815-R-06-010. https://www.epa.gov/sites/production/files/2015-09/documents/guide_smallsystems_pou-poe_june6-2006.pdf.
USEPA. 2009. 2006 Community Water System Survey. February 2009. Office of Water. EPA 815-R-09-001. https://www.epa.gov/dwreginfo/community-water-system-survey.
USEPA. 2011a. National Characteristics of Drinking Water Systems Serving 10,000 or Fewer People. EPA 816-R-10-022. https://www.epa.gov/sites/production/files/2015-04/documents/epa816r10022.pdf.
USEPA. 2020a. National Primary Drinking Water Regulations: Lead and Copper Rule Revisions. Final Rule. Federal Register xx(xxx): p. Date. Washington, D.C.: Government Printing Office.
USEPA. 2020b. Economic Analysis for the Final Lead and Copper Rule Revisions. Office of Water. December 2020.
Valerie Bosscher, Darren A. Lytle, Michael R. Schock, Andrea Porter & Miguel Del Toral (2019). POU water filters effectively reduce lead in drinking water: a demonstration field study in flint, Michigan, Journal of Environmental Science and Health, Part A, 54:5, 484-493.
8 Public Education Requirements
EPA received many comments on the proposed public education requirements in §141.85. EPA specifically requested comment on the following:
 Whether the Agency should require water systems to provide public education materials to consumers served by service lines of unknown materials as proposed in §141.85(e);
 The appropriateness of the outreach activities proposed in §141.85(g) for community water systems (CWSs) that exceed the lead trigger level and fail to meet their goal rate for lead service line removal (LSLR) and comments on additional actions or outreach efforts water systems could take to meet their LSLR goal rate and;
 The appropriateness, frequency, and content of required outreach in §141.85(h) to State and local health agencies and whether the requirements should apply only to a subset of the country's CWSs.
In addition to these topics, EPA also received comments on the proposed mandatory health language in §141.85(a)(1)(ii), the development and accessibility of public education materials, the requirements in §141.85(d) to provide notification within 24-hours for a lead action level exceedance (ALE) and for individual sites where the tap sample exceeds 15 ug/L, comments on personnel and resource burden in carrying out the requirements of §141.85, and comments on proposed changes to the Consumer Confidence Report (CCR).
8.1 Public Notification and Public Education Development, Timing, and Delivery
EPA received comments on the mandatory lead health effects language proposed in § 141.85(a)(1)(ii) that is required in public education materials as well as the CCR and the public notice of a lead ALE. EPA also received comments on the burden of effort needed for water systems to carry out the proposed public education provisions specified in § 141.85. EPA received comments on the timing of some of the public education provisions including notification of tap sampling results in § 141.85(d). EPA received comments on how to reach different kinds of consumers. EPA received comments on availability of public education materials in different languages, in reference to § 141.85(b)(1). Lastly, EPA received comments suggesting additional opportunities for public education.
Mandatory Lead Health Effects Language and Risk Communication
Summary of Comments
Many commenters supported the proposed updates to the mandatory language on health effects of lead, finding it easier to read and understand compared to the language required in the previous rule. However, EPA also received many comments requesting modifications to the proposed mandatory lead health effects language. Some commenters characterized the proposed language as redundant, too long, and questioned how well the proposed language followed risk communication principles and how accurately it portrayed risks of lead exposure. Some commenters recommended using more definitive language about the health risk in adults. Several commenters thought the statement did not emphasize enough that there is no safe level of lead, whereas some commenters expressed concern that the health effects language would cause undue fear of tap water among consumers. Many commenters took issue with the statement's reference to evidence of cardiovascular and other health risks of lead as "recent," citing EPA's 2013 Integrated Science Assessment for Lead and noting that a statement required in all public education materials should be timeless (USEPA, 2013). Many commenters also thought the statement included redundant language and provided suggestions for making it more concise. One commenter found it unclear whether the reference to increased prenatal risk was referring to the pregnant woman, the fetus, or the pregnancy itself. Many commenters provided recommendations for addressing the issues they identified. One commenter said that health effects language and information should come from the state health department to ensure consistency of the message across the state.
Many commenters also offered suggestions for making the mandatory health effects language more accessible and inclusive. Some commenters suggested requiring systems to provide public education materials in different languages in communities where English is not the most prominently spoken language. One commenter provided Michigan's Lead and Copper Rule as an example which requires water systems serving communities where at least 10 percent of the population primarily speak a language other than English to provide public education materials in that language (Michigan EGLE, 2019). Another commenter requested the statement use gender-neutral language in order to align with their state's communication policies. While commenters supported the improved risk communication, one commenter noted that informing consumers is not enough without addressing socioeconomic factors that may make certain lead risk reduction actions inaccessible.
Agency Response
In response to comments requesting modifications to the proposed mandatory lead health effects language, EPA has revised the mandatory health effects language to address and incorporate many of these suggestions in the final rule. For example, EPA has removed reference to "recent" studies as suggested by a commenter and has revised the language to be timeless, clearer and more concise. The updated mandatory health effects language in the final rule can be found in § 141.85(a)(1)(ii).
In response to the commenter who requested that the mandatory health effects language be gender neutral in order to align with their communication policies, EPA has taken this into consideration and has added flexibility for a water system to modify the language with state approval.
EPA disagrees with the commenter that it is necessary for lead health effects information to be delivered by the health department. Water systems are responsible for lead levels at the tap and therefore, it is important that they provide information to consumers about the health effects of lead, sources of lead in drinking water, actions consumers can take to reduce their exposure to lead in drinking water and provide information on how to get water tested for lead. When revising the previous rule, EPA consulted risk communication experts and updated the mandatory health effects language in all public education materials, the CCR and public notification to ensure that consumers receive accurate and consistent health information.
EPA considered comments requesting that the Agency update the requirements for providing public education materials in different languages. The previous rule required that for systems that serve a large proportion of non-English speaking customers as determined by the state, public education materials must include a statement that the materials provide important information about the customer's drinking water and directing the customer to contact the water system to get a translation. Because this existing provision is sufficient in its requirements to make public education materials accessible to non-English speakers, EPA has retained this in the final Lead and Copper Rule revisions (LCRR).
EPA acknowledges that socioeconomic factors may pose a barrier to effective risk communication. However, EPA notes that the health effects language in § 141.85(a)(1)(ii) is intended to be a clear, concise, and easy to understand statement. EPA also notes that there are multiple requirements for public education in § 141.85 and opportunities for consumer engagement, including information to consumers served by a lead service line (LSL), galvanized requiring replacement, and lead status unknown service lines (see Section 8.3), targeted outreach to consumers when a system exceeds the lead trigger level of 10 ug/L and fails to meet the LSLR goal rate (see Section 8.6), and information in the CCR (see Section 8.7). EPA notes that water systems are encouraged to use delivery methods that increase accessibility, such as posting their CCR on a website or via electronic delivery and notes that the outreach options listed in § 141.85(h) also offer opportunities for various types of consumer engagement. EPA also notes that water systems are required under § 141.84(b)(7) to consider funding strategies in their LSLR plans to "considers ways to accommodate customers that are unable to pay to replace the portion they own."
Burden of Public Education and Public Notification Material Development
Summary of Comments
Many commenters considered the proposed public notification and public education requirements to be burdensome on water systems, particularly their frequency and timing. Many commenters found the requirement to notify customers of an individual tap sample exceeding 15 ug/L within 24 hours challenging due to staff availability and the need to review results and letters prior to delivery, with a few commenters suggesting that 3 days would be more practical. Some commenters took issue with the frequency of public education and notification requirements (e.g., annual notification of an LSL or lead status unknown service line). EPA also received comments that questioned whether water systems have the health communication expertise for these efforts or whether these efforts would be better suited to public health agencies. Many commenters requested technical support and guidance on developing public notification and public education materials. One commenter thought that the requirement for water systems to annually certify they are adhering to public education and public notification requirements was unnecessary for implementation.
Agency Response
EPA believes that water systems have the capacity to conduct the public education and public notification requirements of the LCRR and notes these activities are necessary to help inform and educate the public of the health effects of lead, sources of lead, and steps they can take to reduce their risk to lead exposure. EPA acknowledges commenters' concerns about some of the proposed public notification and education requirements being challenging for water systems. In response to requests to allow water systems more time to deliver the notice of an individual sample exceeding 15 ug/L, EPA extended the 24-hour deadline in the final rule to "as soon as practicable but no later than 3 calendar days after the water system learns of the tap monitoring results." For more information on timing of notification of tap sampling results, see the response to comment Section 8.4. For response to comments on the 24-hour public notification requirement for a systemwide ALE, see Section 8.2. EPA disagrees with requests to reduce the frequency of notifications to consumers served by an LSL or lead status unknown service line; for more information on timing and frequency of LSL notification, see responses to comment Section 8.3.
EPA also acknowledges commenters' concerns that water systems may lack the health communication expertise for developing public education materials; however, they are responsible for providing customers with drinking water and must keep them informed of the quality of their water and how to reduce their exposure to contaminants in drinking water. While systems are required to provide public education to consumers in accordance with the various public education provisions, EPA notes that systems may develop the materials in consultation with public health agencies. One of the goals of the new public education provisions is to encourage collaboration between water systems and local and state health agencies on lead public education efforts (see response to comment Section 8.5). EPA also acknowledges commenters' request for guidance. EPA understands that development of public education materials and public notices is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the most significant areas of the rule. In addition to guidance, EPA will also provide training and other supporting materials that will help states and water systems implement the revised rule and promote greater national consistency.
EPA disagrees with the commenter that stated that it is unnecessary for water systems to annually certify that they are adhering to public education and public notification requirements. EPA notes that the public education requirements of § 141.85 are an important component of the Lead and Copper Rule (LCR) and are necessary to help inform and educate the public of the health effects of lead, sources of lead, and steps they can take to reduce their risk to lead exposure, therefore EPA has retained them in the LCRR. Failure to comply with the requirements of § 141.85 constitutes a violation of the treatment technique. Certification that a water system has conducted the public education and notification requirements is necessary to ensure compliance.
Delivery and Timing
Summary of Comments
Many commenters expressed concern that the frequency of public notification and public education would unnecessarily alarm consumers. One commenter thought some of the proposed public education provisions like the annual notification of an LSL or lead status unknown service line would lead to "unnecessary concern and degradation of customer confidence," and that corrosion control is enough to protect customers. Many commenters requested guidance on how to reach different kinds of consumers (e.g., transient populations) in order to provide public notification and public education, particularly with regards to LSLs. Some commenters also requested clarity on the timing of delivery of public education, specifically notification of tap sampling results under § 141.85(d).
Agency Response
EPA considered commenters' concern about how water systems notify transient consumers, especially to deliver LSL notifications. EPA notes that the LCRR requires systems to provide notification of a lead, galvanized requiring replacement, or lead status unknown service line to all persons at a service connection with a lead, galvanized requiring replacement, or lead status unknown service line. This includes residential consumers, but not necessarily transient populations such as Bed and Breakfast guests and restaurant patrons whose addresses are unknown. EPA acknowledges the importance of ensuring such transient populations are informed; however, it is not feasible for water systems to locate and notify each of these consumers. EPA encourages the property owner who receives the notification to notify their guests or patrons if they are served by a lead, galvanized requiring replacement, or lead status unknown service line. Consumers can also refer to the LSL inventory which is publicly available and includes locational identifiers for LSLs as specified in § 141.84(a) of the final rule. EPA understands that reaching as many consumers as possible is a critical component to ensure the rule's effectiveness in protecting public health. The Agency intends to develop implementation guidance targeting the most significant areas of the rule. In addition to guidance, EPA will also provide training and other supporting materials that will help states and water systems implement the revised rule and promote greater national consistency.
EPA notes some confusion about the timing of delivery of public education, specifically notification of tap sampling results. One commenter thought that notification of all lead and copper tap sampling results is required within 24 hours. However, notification within 24 hours is only required when lead tap sample results exceeded 15 ug/L, while tap sampling results at or below 15 ug/L must be provided within 30 days of the system learning of the results. As noted above, in the final rule, EPA extended the 24-hour deadline for providing an individual tap sample exceeding 15 ug/L to no more than 3 days after the system receives the result.
For more information on timing of notification of tap sampling results, see § 141.85(d) of the final rule or the responses to comments in Section 8.4. For timing of Tier 1 public notification of a lead ALE, see § 141.202 and response to comments in Section 8.2. For information on timing of outreach activities systems must conduct if they fail to meet their goal LSLR, see § 141.85(h) of the final rule and response to comments in Section 8.6. For information on timing of outreach to local and state health agencies, see § 141.85(i) of the final rule and response to comments in Section 8.5. For timing of the CCR, see § 141.152 and response to comments in Section 8.7.
Many commenters expressed concern that the frequency of public notification and public education would unnecessarily alarm consumers. One commenter thought some of the proposed public education provisions like the annual notification of an LSL or lead status unknown service line would lead to "unnecessary concern and degradation of customer confidence," and that corrosion control is enough to protect customers. EPA disagrees; the Agency believes that public education is an integral part of protecting public health by helping to ensure that customers are informed, aware of risk, and can decide to take actions to protect their health. Further, notifying customers that they are served by an LSL can help encourage customer-initiated LSLR, regardless of a system's 90[th] percentile level. For responses to comments on notification of LSLs, see the response to comment Section 8.3.
Requests for Additional Requirements
Summary of Comments
A few commenters requested additional public notifications, including notifying consumers before a source water treatment change and to provide public notice of the results of the mandatory study. A few commenters requested updates to copper public education and public notification requirements, taking issue with the fact that public notification is not required when there is a copper ALE even though the copper AL is health-based.
Agency Response
EPA considered commenters' suggestion that systems be required to notify customers when considering a source water or treatment change and provide public notice of the results of the mandatory study. EPA does not believe this notification to be necessary as systems are already required to notify the state and obtain approval for a source water or long-term treatment change prior to making the change.
EPA also considered comments requesting that the Agency require public notification of a copper ALE. Such a provision was not part of the previous rule or the proposed rule revisions. Water systems are required to issue Tier 2 Public Notification if the system has a treatment technique violation in response to a copper ALE. In addition, a system must report copper tap sampling compliance information in its annual CCR. The Agency is retaining these requirements as they pertain to a copper AL exceedance. The Agency expects that any elevated copper levels will be addressed by corrosion control treatment adjustments and that in the event a system does not adequately address those issues, the appropriate health effects language is provided to consumers through public notification or the CCR.
In the final rule, EPA is clarifying the requirement that small CWSs and non-transient non-community water systems (NTNCWSs) that select point-of-use (POU) devices as their compliance option in response to a lead AL exceedance must provide public education materials to inform users how to properly use POU devices to maximize the units' effectiveness in reducing lead levels in drinking water.
8.2 Public Notification Tier 1 Requirements
EPA received comments on the proposed rule's incorporation of the 2016 Water Infrastructure Improvements for the Nation Act (WIIN Act) amendments to section 1414 of the Safe Drinking Water Act (SDWA) in 40 CFR 141 subpart Q-Public Notification of Drinking Water Violations (and as necessary into any provisions cross-referenced therein) and the addition of lead ALEs under § 141.80(c) to the list of Tier 1 violations or exceedances subject to the new 24-hour notice requirement. In particular, EPA received comments on the categorization of a lead ALE as Tier 1 violation. EPA also received comments on the 24-hour delivery requirement of the notice to sites where the tap sample was > 15 μg/L. Finally, EPA also received comments on the methods for delivering the public notice of a lead ALE.
Appropriateness of a Tier 1 Public Notice Designation
Summary of Comments
EPA received comments on the proposed public notification requirement to categorize lead ALEs as Tier 1. Specifically, EPA received comments on the appropriateness of the proposed amendments to § 141.201 to categorize lead ALEs as Tier 1 violations, as specified under the current Public Notification Rule. Many commenters recognized the importance of transparency through clear and timely communications, however expressed concern or objected to the proposed amendment and suggested that Tier 1 notices are generally reserved for contaminants that have a significant potential to cause adverse effects on human health as a result of short-term exposure, such as "risks posed by microbial contamination where there is the prospect of immediate acute health consequences for anyone exposed to a very small concentration of pathogens." Some commenters stated that providing Tier 1 public notices based on a 90[th] percentile concentration greater than 15 μg/L is inconsistent with Congress' instructions to provide such notices to the public after a lead level exceedance that "has the potential to have serious adverse effects on human health as a result of short-term exposure." A few commenters suggested that the AL (action level) is "not a health-based standard" and therefore does not meet the definition of a Tier 1 Public Notice categorization as described in section 2106 of the WIIN Act. These commenters recommended that EPA classify lead AL exceedances as Tier 2 violations if the Agency retains the public notification requirement. Many commenters felt these notifications would cause undue panic and mistrust amongst consumers, and some commenters suggested that primacy agencies should be given the flexibility to add their own language about the AL. One commenter asked if the inclusion of an ALE as a treatment technique violation in Appendix B to Subpart Q of Part 141 of the proposed rule was an error.
A few commenters also suggested edits to the mandatory health effects language required in the Tier 1 public notice of a lead AL exceedance as well as the CCR and public education materials. A summary of public comments on the mandatory health effects language can be found in Section 8.1.
Agency Response
EPA does not agree with commenters and notes that Section 2106 of the 2016 WIIN Act required that a notice "be distributed as soon as practicable, but not later than 24 hours, after the public water system learns of the violation or exceedance" "that has the potential to have serious adverse effects on human health as a result of short-term exposure." In the final rule, EPA is giving effect to that amendment and maintaining its categorization of a lead ALE as a Tier 1 violation, resulting in Tier 1, 24-hour notification. The scientific evidence demonstrates that exposure to lead is associated with serious adverse health effects, including prenatal risks, cognitive effects in infants and children, as well as cancer and cardiovascular, renal, reproductive, immunological, and neurological effects in adults (USEPA, 2013; National Toxicology Program, 2012; USEPA 2004). Given there is no safe level of lead, EPA believes that lead AL exceedances even in the short term could have serious adverse health consequences and that to avoid these impacts, consumers must be notified as soon as possible.
EPA agrees with commenters that guidance will be important for successful implementation. For recommendations that EPA provide guidance on managing risk communication challenges associated with such notices, including provisions to allow water systems to add additional language in a manner as to "not cause undue confusion and public panic" or "damage public trust," 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.
EPA notes that a lead AL exceedance is not considered a treatment technique violation. However, failure to take the required actions after an AL exceedance (LSLR, OCCT, source water monitoring, Public Education) is a violation of the treatment technique. This has not changed as a result of the final LCRR.
EPA has incorporated many of the suggestions that commenters provided into the mandatory health effects language. The mandatory health effects language in the final rule can be found in Appendix B to Subpart Q of Part 141. For a summary of the comments and the Agency's response on the mandatory health effects language, please see response to comment Section 8.1.
Scope, Timing, and Delivery of Tier 1 Public Notifications
Summary of Comments
EPA received many comments expressing concerns about the ability of water systems to meet the proposed 24-hour distribution requirement for notification of an AL exceedance. Specifically, EPA received comments on the distribution of public notifications to be made "as soon as practicable, but not later than 24 hours after the public water system learns of the violation or exceedance" and that such notifications must also "be provided to the Administrator and the head of the State agency that has primary enforcement responsibility under section 1413 of the SDWA, as applicable, as soon as practicable, but not later than 24 hours after the public water systems learns of the violation of exceedance," as described in the 2016 WIIN Act and in the proposed LCRR. Many commenters had concerns with the logistics and feasibility of issuing notifications within 24 hours and believed additional flexibilities should be afforded to water systems. Suggestions included extending delivery time to several business days instead of 24 hours. Some commenters expressed concern with the need to validate sample results before making such notifications and if included as proposed, many commenters requested EPA allow for additional time to provide such notification (e.g., allow several business days or until a confirmation sample is collected). A few commenters asked for flexibilities to broadcast this information in a manner that makes sense for their system (e.g., on a public website or other broadcast media as a delivery option), and suggested that EPA should provide additional guidance on the timing and delivery of notifications and a mechanism to report to EPA via fax or email.
Many commenters also had questions on when the notification clock starts (e.g., at time of sample collection or when samples are properly assessed for quality assurance). Some commenters requested clarification on how water systems should provide these notices to the state and EPA as these systems "are not normally in direct contact with the EPA" and it may result in more administrative violations as these systems "navigate the challenges of this unfamiliar communication path."
Some commenters recommended the rule prioritize and target notifications to a subset of the customer base that are potentially more affected by lead ALEs. For example, a few commenters suggested that notifications within 24 hours should "only be required for individual households impacted." A few commenters did not believe that all customers should receive a notice about a 90[th] percentile lead ALE "at the same time as customers who do in fact receive their water through a lead service line." One commenter recommended that EPA revise the provision to require "public notice within 24 hours to all individuals with a known service line, galvanized steel, or unknown services, as this customer population may be potentially affected" as opposed to notifying all customers within the water system. One commenter recommended that the Agency allow an option for a water system to distribute its notice to the entire service population if that system may be hesitant to "divide their post-exceedance public notification in this manner."
Agency Response
EPA acknowledges commenters' concerns; however, the Agency disagrees that systems would not be able to provide the notice within 24 hours. Water systems must comply with Tier 1 public notification (i.e., within 24 hours) for other situations now and already have the mechanisms in place to do so. The Agency notes that it is not revising the form and manner of these notices as currently outlined in § 141.202. Water systems may have a template notice prepared in advance and may choose from several options that make it feasible to provide the notice to all persons served by the system within 24 hours of learning of the exceedance. These options include broadcast media such as radio and television, posting the notice in conspicuous locations throughout the area served by the water system, hand delivery of the notice to persons served by the water system, or another delivery method approved by the primacy agency. The body of scientific evidence supports the Agency conclusions that exposure to lead can result in serious adverse health effects which the Agency believes necessitates such notifications to be made as expeditiously as possible. Therefore, EPA is maintaining the provision for distribution of public notices to be made "as soon as practicable, but not later than 24 hours after the public water system learns of the violation or exceedance." In addition, the Agency is maintaining the provision as proposed to provide a copy of the public notice to the primacy agency and the Administrator (as applicable). However, EPA is clarifying in the final rule that the requirement for water systems to provide a copy of the Tier 1 public notice to the Administrator and the head of the Primacy Agency as soon as practicable, but not later than 24 hours after the public water systems (PWSs) learns of the violation or exceedance will only apply to lead AL exceedances and not all Tier 1 public notices.
Some commenters requested that EPA provide additional clarification and guidance on the timing and delivery of such notifications (e.g., when does the 24-hour window start) and what appropriate mechanisms are available to notify the EPA Administrator and state agencies. In the final rule, EPA is clarifying that the deadline for providing public notice of a lead ALE is within 24 hours of the system receiving and calculating the 90[th] percentile value that exceeds the lead AL. EPA agrees 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.
EPA does not agree that guidance is needed on the form and manner for Tier 1 public notification. The current Tier 1 Public Notification rules provide the form, manner, and timing of such notices to the relative risk to human health. There are certain elements that must be included in a public notice which are described in 65 FR 25982 (USEPA, 2020). EPA believes the current notification rules and EPA's Public Notification Handbook are adequate for notifying persons served by the water system that there is a potential risk to public health and is not considering revising them at this time.
EPA acknowledges comments regarding the timing of notification for individual tap sample results. EPA has revised the requirement in §141.85(d)(2)(ii) to require water systems to provide a notice of individual tap sample results that exceed 15 ug /L of lead "as soon as practicable but no later than 3 calendar days after the water system learns of the tap monitoring results" instead of within 24 hours. For those comments related to individual tap sample results, please reference the response in Section 8.4 on individual samples above 15 ug/L.
 8.3 Public Education about Lead, Galvanized Requiring Replacement, and Lead Status Unknown Service Lines
EPA received comments on the proposed requirement in §141.85(e) for water systems with LSLs to provide education materials to all consumers with an LSL or service line of unknown material within 30 days of completion of the LSL inventory required under §141.84(a) and repeat notification on an annual basis until the customer no longer has an LSL. EPA specifically requested comment on "whether the Agency should require water systems to distribute education materials to homes with unknown service line types." EPA also received comments on the proposed requirement in §141.85(f) (i.e., §141.85(g) in final rule) for water systems with LSLs that exceed the lead trigger level of 10 ug/L to provide consumers with LSLs information on the water system's LSLR program. EPA also received comments relating to the proposed requirement in §141.85(e)(5) (i.e., §141.85(f) in final rule) for notification and public education to consumers if a water system causes disturbance to an LSL.
Scope of Requirements
Summary of Comments
EPA received many comments regarding its proposal for water systems with LSLs to provide education materials to all consumers with an LSL or service line of unknown material within 30 days of completion of the LSL inventory required under § 141.84(a) and repeat notification on an annual basis until the customer no longer has an LSL, as specified in § 141.85(e). Many commenters supported the requirements to provide public education materials to consumers with an LSL or lead status unknown service line as a method towards encouraging homeowner engagement in LSLR; however, many commenters felt that distributing materials to consumers with unknown service lines types could cause unwarranted concerns, stating that doing so could "potentially cause fear, concern and mistrust" towards the water system and "foster distrust in the community." Some commenters also expressed concern with the potential for mis-categorization in the proposed LSL inventory provisions under §141.84(a) and how potential errors could affect the public education requirements for lead status unknown service lines. These commenters recommended that EPA provide clearer definitions for the inventory categories to "ensure that resources are not spent unnecessarily to address a risk that doesn't exist." A few commenters requested additional guidance on the information and language to be included in such notices.